In the Will of - [2024] QSC 141

SUPREME COURT OF QUEENSLAND

CITATION: In the Will of Hans-Juergen Meyer [2024] QSC 141
PARTIES: RE: IN THE WILL OF HANS-JUERGEN MEYER,
DECEASED
NOELINE MARGARET FAIRLESS
(first applicant)
CARMEN BERNADETTE VAN NIEKERK
(second applicant)
FILE NO/S: BS No 13261 of 2023
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING Supreme Court at Brisbane
COURT:
DELIVERED ON: 2 July 2024
DELIVERED AT: Brisbane
HEARING DATE: 21 May 2024
JUDGE: Kelly J
ORDERS:

1. Pursuant to rule 388(2) of the Uniform Civil Procedure Rules 1999 (Qld), paragraph 3 of the orders made on 21 May 2024 is corrected so that it reads:
“3. For the avoidance of doubt it is declared that a true copy of the Will of the late Hans Juergen-Meyer dated 6 June 2023 is exhibit B to the affidavit of Keith Robert Bow filed 10 April 2024 which contains five pages comprised of one handwritten page and four typed pages.”
2. The parties have liberty to apply.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL –

GENERALLY – application pursuant to s 18 of the Succession Act 1981 (Qld) to dispense with execution requirements for a will – where deceased was gravely ill and provided his solicitor with a testamentary document comprising four typed pages and one handwritten page – where the deceased told his solicitor that the testamentary document contained the terms of his new will – where the testamentary document did not satisfy s 10 of the Succession Act 1981 (Qld) as it was not witnessed
– whether the deceased intended for the testamentary
document to form his will
Succession Act 1981 (Qld), s10, s 18
Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
Re Estate of Brock [2007] VSC 415, cited
Re Spencer (deceased) [2014] QSC 276, cited
COUNSEL: R Haddrick for the applicants
SOLICITORS: AVA Solicitors for the applicants

Hans-Juergen Meyer (“the deceased”) died in the Robina Hospital on 11 June 2023. The cause of his death was pancreatic cancer. There was no issue that he retained testamentary capacity. On 7 June 2023, he had met with his solicitor at his mother’s unit for the purpose of providing instructions for a new will. On that occasion, he provided a handwritten page and four typed pages[1] in the form of a will (together the five pages are referred to as “the testamentary document”) to his solicitor, Mr Bow. The handwriting on the handwritten page was the deceased’s handwriting. The deceased had written “Hans” at the bottom of the handwritten page and had signed and dated each of the typed pages “6.6.2023”. The applicants are the executors nominated by the testamentary document. They applied for orders under the Succession Act 1981 (Qld) (“the Act”) dispensing with the requirement that the testamentary document be witnessed by two persons and seeking a grant of probate in respect of the testamentary document.
[1] Exhibit B to the affidavit of Keith Robert Bow filed 10 April 2024.
The application was heard by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QSC 141
Decision Date: 2 July 2024

CaseChat Overview and Summary

The case involves the deceased, whose will is being contested. The dispute centres on whether an informal document discovered posthumously can be accepted as a valid will. The matter was heard in the Queensland Supreme Court. The key question before the court was whether the informal document, which was not executed in the formal manner required by law, could still be recognised as a testamentary document intended to operate as the deceased's will.

The court had to determine whether the informal document satisfied the legal requirements for the creation of a valid will. This involved examining the circumstances surrounding the creation and the content of the document to ascertain if it expressed the deceased's final wishes in a manner that was clear and unequivocal. The court also needed to consider whether the document was intended by the deceased to be his or her will.

The court concluded that the document, while not formally executed, contained clear indications of the deceased's intentions regarding the distribution of their estate. The evidence presented demonstrated that the deceased intended the document to serve as their will. The court found that the document was a valid expression of the deceased's testamentary wishes, and thus could be admitted as the deceased's will. The court's decision was influenced by the clear and unambiguous nature of the document, along with the circumstances in which it was created and the deceased's conduct in treating it as their will.

Pursuant to rule 388(2) of the Uniform Civil Procedure Rules 1999 (Qld), paragraph 3 of the orders made on 21 May 2024 is corrected so that it reads: [corrected text].

Orders

Orders of the court

Pursuant to rule 388(2) of the Uniform Civil Procedure Rules 1999 (Qld), paragraph 3 of the orders made on 21 May 2024 is corrected so that it reads:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL –
GENERALLY – application pursuant to s 18 of the Succession Act 1981 (Qld) to dispense with execution requirements for a will – where deceased was gravely ill and provided his solicitor with a testamentary document comprising four typed pages and one handwritten page – where the deceased told his solicitor that the testamentary document contained the terms of his new will – where the testamentary document did not satisfy s 10 of the Succession Act 1981 (Qld) as it was not witnessed
– whether the deceased intended for the testamentary document to form his will
Succession Act 1981 (Qld), s10, s 18
Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Re Estate of Brock [2007] VSC 415, cited Re Spencer (deceased) [2014] QSC 276, cited
COUNSEL:	R Haddrick for the applicants
SOLICITORS:	AVA Solicitors for the applicants