Lewis v Watson

Case [2025] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Watson [2025] QSC 35

PARTIES:

KEELAN MICHAEL LEWIS

(applicant)

v
ROBYN LYN WATSON

(respondent)

FILE NO/S:

BS 362/25

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

28 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2025

JUDGE:

Treston J

ORDER:

Application dismissed

The applicant is to pay the respondent’s costs of the application on the standard basis
CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – TESTAMENTARY CHARACTER – where applicant contends that handwritten document is informal will for the purposes of s 18 of the Succession Act 1981 – where deceased made a formal will – where handwritten document postdated formal will by two years – where applicant and deceased had no familial relationship – where applicant relies on evidence of relationship between the deceased and applicant’s mother – whether applicant able to establish that handwritten document was informal will pursuant to s 18 of the Succession Act 1981

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – DISCOVERY OF WILL AND INVALIDITY OF WILL – where applicant contends that handwritten document is informal will for the purposes of s 18 of the Succession Act 1981 – where deceased made a formal will – where handwritten document postdated formal will by two years – where applicant contends grant should be revoked on the basis that the grant was made because of a mistake pursuant to r 642 of the Uniform Civil Procedure Rules 1999

Succession Act 1981 (Qld), ss 5, 10, 18
Uniform Civil Procedure Rules 1999 (Qld), r 642
Acts Interpretation Act 1954, Schedule 1

Hatsatouris v Hatsatouris [2001] NSWCA 408
In The Estate of Leslie Wayne Quinn (deceased) [2019] QSC 99
In The Estate of Masters (deceased) Hill v Plummer (1994) 33 NSWLR 446
Lindsay v McGrath [2016] 2 Qd R 160
Mahlo v Hehir [2011] QSC 243
Massey v Smith [2015] QSC 86
Mellino v Wnuk & Ors [2013] QSC 336
Re: Estate of Carrigan (deceased) [2018] QSC 206
Re GEW [2020] QSC 119
Re Nichol; Nichol v Nichol & Anor [2017] QSC 220
Re Sheehan [2021] QSC 89
Re: Yu [2013] QSC 322
Sadleir v Kähler [2019] 1 Qd R 52

COUNSEL:

Applicant self-represented
I Klevansky for the respondent

SOLICITORS:

GKS Law for the respondent

  1. By an originating application the applicant sought a revocation of the letters of administration with the will which had been issued by the Supreme Court in Townsville on 29 August 2024. The grant was issued to the respondent, as attorney for her father, who is the named executor of the deceased’s last will.

  2. The basis for the revocation of the grant was a contention by the applicant that in fact there was another handwritten document of the deceased’s which, pursuant to s 18 of the Succession Act 1981 (Qld), ought to be declared to constitute the deceased’s valid informal will. The applicant claims to be a beneficiary…

Continue reading Lewis v Watson

Sign in free to access the full text

Details
AGLC
Lewis v Watson [2025] QSC 35
Case
[2025] QSC 35
Decision Date

CaseChat Overview and Summary

The case of Lewis v Watson concerns a dispute over the validity of a handwritten document as an informal will under s 18 of the Succession Act 1981. The applicant, Lewis, contends that the handwritten document is the deceased's informal will, while the respondent, Watson, argues that the deceased's earlier formal will should be upheld. The deceased, Stewart Robb Gray, was a 62-year-old man who died without children and left a formal will dated 22 September 1989. The applicant and the deceased had no familial relationship, but the applicant claims that the deceased had an intention to leave his estate to the applicant's mother. The central legal issues were whether the handwritten document could be admitted as an informal will under s 18 and if the grant of probate for the formal will should be revoked due to a mistake under r 642 of the Uniform Civil Procedure Rules 1999.

The court examined the requirements for admitting a document as an informal will, considering if the document existed, purported to state the deceased's testamentary intentions, and if the deceased intended it to be his last will. The court highlighted the need for clear evidence of the deceased's intention that the document should operate as his will, which must be evaluated under Brigginshaw principles. The applicant's evidence did not sufficiently demonstrate that the deceased intended the handwritten document to be his final will, especially given the existence of a formal will executed two years earlier. The court also considered whether the grant of probate for the formal will should be revoked due to a mistake but found no grounds to do so.

Ultimately, the court dismissed the application, finding that the applicant had not established that the handwritten document satisfied the requirements of an informal will under s 18. The court ordered that the applicant pay the respondent's costs of the application on the standard basis.

Orders

Orders of the court

Application dismissed

The applicant is to pay the respondent’s costs of the application on the standard basis

Background

Background to the litigation

It followed that the only matter for my consideration at the hearing was whether the applicant was able to establish that the handwritten document satisfied the requirements of s 18 of the Succession Act as an informal will. Background Stewart Robb Gray was a 62-year-old, unmarried man, when he died on 16 May 2024. He had no children. He was survived by his father, Leslie Robb Gray who is 94 years of age, and his only sibling, the respondent Robyn Lyn Watson. The deceased’s mother and father had divorced many years before. In September 1989, when the deceased was approximately 27 years of age, he made a will in the form of a typewritten document which provided as follows:“WILL.This is the last will and testament of me, Stewart Robb GRAY, single, of Flat 2, 41 Kidston Terrace, Chermside, Brisbane, in the State of Queensland.1. I revoke all former wills and codicils and declare this to be my last will.2. I appoint my father, Leslie Robb GRAY, of 17 Hinkler Street, Kedron, Brisbane, to be the executor of this my will.3. To my father, the aforesaid Leslie Robb GRAY, I bequeath the following:-(a)Property (including house) and such contents of the afore-said house that are not the property of the tenant who, from time to time, may be renting the premises situated at 51 Viscount Street, Bray Park, Brisbane, in the State of Queensland described as Lot 241 on Registered Plan 141721, County of Stanley, Parish of Warner; and(b)Property (including shed) and such contents of the aforesaid shed situated at Ellwood Drive, Caboolture, in the State of Queensland described as Lot 10 on Registered Plan 153 495, County of Canning, Parish of Wararba; and(c)Any monies and other assets of which I am the owner; and(d)Any remainder which may be due to my estate.Signed this twenty second day of September, 1989 at Brisbane in the State of Queensland.(signature affixed)Signed the said Stewart Robb GRAY as and for his last will and testament in the presence of us, both being present at the same time at his request. In his presence, and in the presence of each other, we have hereunto subscribed our names as witnesses(signatures of witnesses affixed)” The will is dated 22 September 1989 and is signed by the deceased. On the part of the document for witnesses’ signatures, the will was witnessed by two persons, both of whom identified themselves by reference to their addresses and occupations. Each of them separately dated the document to bear the same date as the deceased’s own signature, 22 September 1989. That is the will for which a grant has issued. The will gifted the entirety of the deceased’s estate to his father, Leslie Gray. During his lifetime, the deceased suffered from significant ill health. He was an insulin dependent diabetic and suffered from cardiomyopathy, atrial fibrillation and obstructive sleep apnoea. He was morbidly obese which severely affected his ability to be active. Because of his poor health, he had a couple of major health scares prior to his death; a stroke in around 2016 or 2017, and in 2020 or 2021 his big toe required amputation due to a cut which did not heal properly as a result of his diabetes. At the time he became septic and was seriously unwell.

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

One then turns to the terms of s 18 which provides:“18 Court may dispense with execution requirements for will, alteration or revocation(1)This section applies to a document, or a part of a document, that─(a)purports to state the testamentary intentions of a deceased person; and(b)has not been executed under this part.(2)The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.(3)In making a decision under subsection (2), the court may, in addition to the document or part, have regard to─(a)any evidence relating to the way in which the document or part was executed; and(b)any evidence of the person’s testamentary intentions, including evidence of statements made by the person.(4)Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).(5)This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.” The three requirements which must be satisfied in order for the court to admit a document to probate are:(a)first, whether there was a document;(b)second, if yes, did the document purport to embody the testamentary intentions of the deceased? and(c)third, did the deceased intend that the document would operate as his last will?[1][1]Lindsay v McGrath [2016] 2 Qd R 160 at [55] adopting the approach outlined by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]. See also Massey v Smith [2015] QSC 86 at [6] and Re Sheehan [2021] QSC 89 at [17]. In respect of the last criteria, Burns J in Sheehan’s case observed:[2][2]Re Sheehan [2021] QSC 89 at [17].“[17]… there will need to be satisfactory evidence to demonstrate (either at the time the document is brought into existence or at some later time) that the deceased, by some act or words, manifested the intention that the document should, without more on his or her part operate as his or her will. In examining the evidence in this regard, the court must keep in mind that the evidence is to be evaluated in accordance with Brigginshaw principles. As Boddice J (with whom Gotterson JA agreed said in Lindsay v McGrath:“Great care is to be taken in the evaluation of the relevant evidence. To satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death. The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and didn’t want to make any changes to that document.…Documents which contain only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions, or which on the evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible revision, will not suffice for the purposes of s 18 as the evidence will not establish the document in question embodied the settled testamentary intentions of the deceased.”(footnotes omitted)