In the Will of; Ex parte

The application before the court was brought by the applicant, who sought a declaration that certain handwritten documents constituted a valid codicil to the deceased's will. Dr James Edward O’Connor passed away on 1 July 2020, having executed a will in 2003. The applicant argued that various handwritten papers found at the home of Dr O’Connor constituted an informal codicil to his will. These papers included a set with the heading "UPDATE AND CHANGES TO THE WILL OF JAMES EDMOND O’CONNOR", listing several beneficiaries and corresponding apportionments of the estate. The applicant relied on section 18 of the Succession Act 1981 (Qld) to argue that these notes should be recognised as a legally operative testamentary document. The legal issues for the court to decide were whether the handwritten notes constituted a legally valid codicil to the deceased’s will and whether the applicant had demonstrated that Dr O’Connor had the requisite testamentary capacity.

The court considered the principles established in Lindsay v McGrath and other relevant authorities, noting that for section 18 to apply, the court must be satisfied that the document in question was intended by the deceased to operate as their will, an alteration of their will, or a revocation of their will. The court found that the notes did not clearly express the deceased's settled testamentary intentions. The evidence did not establish that Dr O’Connor intended the documents to operate as his final will, as they contained preliminary, tentative, or incomplete expressions of his testamentary intentions. Furthermore, the court found that there was insufficient evidence to demonstrate that Dr O’Connor had the requisite testamentary capacity to execute the documents as a codicil. The court concluded that the applicant had not satisfied the necessary threshold for the court to recognise the documents as a valid codicil.

The court dismissed the application, noting that the applicant had not demonstrated that the handwritten notes met the requirements under section 18 of the Succession Act 1981 (Qld). Consequently, the court granted a common form grant of Letters of Administration with the Will to Mary Catherine Simpson, on behalf of St Vincent de Paul Society Victoria Incorporated. The court ordered that the parties’ costs of and incidental to this application be paid from the estate on the indemnity basis.