Lindsay v McGrath

Case [2015] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

Lindsay v McGrath [2015] QCA 206

PARTIES:

GEOFFREY DAVID LINDSAY

(appellant)v
HEATHER DAWN McGRATH
(respondent)

FILE NO/S:

Appeal No 9012 of 2014
SC No 5011 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane –  Unreported, 4 September 2014

DELIVERED ON:

27 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2015

JUDGES:

Gotterson and Philippides JJA and Boddice J
Separate reasons for judgment of each member of the Court, Gotterson JA and Boddice J concurring as to the orders made, Philippides JA dissenting

ORDERS:

1.   The appeal be dismissed.

2.   The parties have leave to file written submissions as to costs within seven days.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CHARACTER – where the deceased made a Will with the Public Trustee in December 1986 but subsequently revoked that Will – where the appellant believed the deceased died without a last Will, the appellant applied for, and was granted, the Letters of Administration on the basis of an intestacy – where the appellant later located a five page hand-written document in a storage box containing items removed from the deceased’s family home – where the document was inside an envelope which was marked “The envelope contains the Will of”, and contained other personal and financial documents – where the appellant, in his role as administrator of the deceased’s estate, brought an application, seeking an order that the Court pronounce that document in solemn form as the deceased’s last Will – whether that document should be pronounced as the deceased’s last Will

Succession Act 1981 (Qld), s 10, s 18

Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, cited
Oreski v Ikac [2008] WASCA 220, cited

COUNSEL:

A B Fraser for the appellant
R D Williams for the respondent

SOLICITORS:

Hall Payne Lawyers for the appellant
Weldon, Zande & Reddy for the respondent

  1. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.

  2. PHILIPPIDES JA:  I have had the advantage of reading the reasons of and orders proposed by Boddice J, with which Gotterson JA concurs.  However, for the following reasons, I take a different view and consider that the appeal should be allowed.

    Background

  3. The appeal concerns the estate of Nora Priscilla Lindsay, who died on 16 October 2012 aged 90.  The estate is comprised of her family home, which was sold for about $630,000, a small amount in a passbook at the Commonwealth Bank of Australia (CBA) and 15 CBA shares.

  4. The deceased had divorced her husband in about 1971 and was survived by her son, Geoffrey Lindsay (the appellant), and her daughter, Heather McGrath (the respondent).  The appellant was granted letters of administration on intestacy on 17 June 2013.  Soon after, the appellant located a document (a copy of which is annexed to the reasons).  It was…

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AGLC
Lindsay v McGrath [2015] QCA 206
Case
[2015] QCA 206
Decision Date

CaseChat Overview and Summary

In the case of Lindsay v McGrath, the deceased, Nora Priscilla Lindsay, died intestate. Her son, Geoffrey David Lindsay, who was granted Letters of Administration on the basis of intestacy, subsequently found a handwritten document he believed to be the deceased's last Will. The appellant applied for the Court to pronounce the document as the deceased's last Will. The respondent, the deceased's daughter, Heather McGrath, opposed the application. The central legal issue before the Court was whether the document met the requirements of section 18(2) of the Succession Act, particularly whether it was intended by the deceased to be her last Will. The Court had to determine whether the document was sufficiently complete and final to be considered the deceased's last Will.

The Court examined the nature of the document, its content, and the circumstances of its discovery. The document was handwritten, undated, and contained numerous corrections and deletions. It was found in an envelope marked with the words "The envelope contains the Will of" and was accompanied by personal and financial documents. The document itself stated it was "for the purpose of making the will" and contained a bequest of the deceased's real property to the appellant but did not cover all the deceased's property. The primary judge found that while the document did contain a bequest to the appellant, it was insufficient to satisfy the requirements of section 18(2) of the Act, considering the whole document. The Court held that the document was not the deceased's last Will as it was not complete or final in form and did not adequately express the deceased's testamentary intentions.

The appeal was dismissed. The Court concluded that the document, despite containing a bequest to the appellant, did not meet the criteria for being declared the deceased's last Will. The parties were granted leave to file written submissions regarding costs within seven days.

Orders

Orders of the court

1. The appeal be dismissed.

2. The parties have leave to file written submissions as to costs within seven days.

Background

Background to the litigation

The appellant appeals that decision. At issue is whether the Court ought to have been satisfied the requirements of s 18(2) of the Act were met in that the handwritten document was intended by the deceased to form her last Will.Background The deceased was born on 3 March 1922. In or about 1951, she married David Hill Lindsay. There were two children from the marriage. The deceased divorced her husband in 1971. They did not remain on amicable terms. The deceased died on 16 October 2012, aged 90 years. She was survived by her two adult children, the appellant and the respondent. At the time of the application they were aged 62 years and 60 years respectively. The deceased maintained a close relationship with the appellant throughout her life. In 2001 or 2002, the appellant began construction of a granny flat at his residence. The deceased was proposing to reside in that flat. In early 2007, the deceased commenced occupation of the flat. However, the deceased later returned to live in her own home. The appellant and his family moved into her home. When the deceased required more care, she moved to an aged care facility. She remained in that facility from 2010 until her death. The deceased did not enjoy as close a relationship with the respondent as with the appellant. The deceased was estranged from the respondent and her two children between 1999 and 2006. That estrangement seemed to stem from the deceased’s belief that the respondent wished the deceased to maintain an amicable relationship with her ex-husband, the respondent’s father. The deceased also perceived the respondent’s children lacked respect for her on various occasions. There had been some reconciliation in the relationship between the deceased and the respondent after 2006. The respondent visited the deceased from time to time in the ensuing years, including when she entered the aged care facility.Estate The deceased’s estate consisted of real property, being her family home, a small amount of money in a passbook account, and a small shareholding in a bank. By the time of the application, the real property had been sold but the proceeds were still retained by the estate. No distribution has been made pursuant to the grant of Letters of Administration.Application The deceased made a Will with the Public Trustee in December 1986. The deceased subsequently revoked that Will. As it was believed the deceased died without a last Will, the appellant applied for, and was granted, the Letters of Administration on the basis of an intestacy. On 9 July 2013, the appellant located the handwritten document in a storage box containing items removed from the deceased’s family home. The appellant, in his role as administrator of the deceased’s estate, brought an application, filed 15 August 2014, seeking an order that the Court pronounce that document in solemn form as the deceased’s last Will.Handwritten document The handwritten document was located in a “L & C – Blue Ribbon Will envelope” which had on its front, in bold type, the words “The envelope contains the Will of”. The envelope also contained a copy of the deceased’s birth certificate and a pro forma sheet completed by the deceased setting out her personal and financial circumstances, including the location of the title document for her home.

Evidence

Evidence Before The Court

The fifth page of the handwritten document was in the following terms:As Regard to my [nephew’s] wife Valerie Elton she is never to become the owner of my Antique Sideboard which many times she came to my house to pick up her daughter, Donna Elton, who I was looking after every Saturday all day for no payment, to enable her mother to work Saturday as she worked there also Monday to Friday.Valerie and her Husband my nephew, Ronnie Elton my late sister Gwen’s Son, would purposely come as they believed I had [Alzheimer’s] disease and try to acquire my Sideboard. I at the time had [an] undiagnosed complaint of “Ross River Virus” which was not known to be as far down the Coast as Brisbane. When after 4 years of sickness from the said illness a New Doctor I visited confirmed it was Ross River Virus and would take another 2 or 3 years to recover. My weight was a mere 6½ Stone. Heather and her sons Geoffrey and Jason were not interested and had no feelings for my state of health as they never once visited my home.The alterations to the document included changing dates and adding items to the Appendix setting out the reasons for bequeathing nothing to the respondent or her two sons. There were no handwritten changes to the paragraph on page 1 bequeathing the house property and its contents to the appellant, although the bottom of that page had been torn off.Evidence The affidavit material relied upon at the hearing included affidavits from the appellant and the respondent. In broad terms, the affidavit from the respondent confirmed the events set out by the deceased in the Appendix had occurred, although the deceased’s interpretation of those, and of the motivation of the respondent and the respondent’s children was in dispute. The affidavit material also revealed:(a)Around the time the deceased revoked her Will made by the Public Trustee, she told the respondent she intended to divide her estate equally between the appellant and the respondent. The breakdown in the relationship with the respondent occurred after that conversation.(b)In July 2002, the deceased told the appellant he would receive her house or the proceeds of its sale.(c)In early 2008, the deceased told the appellant she had written a Will leaving “everything” to him. The deceased said she was grateful for everything he had done and that the respondent wants for nothing and would be taken care of by her father in his Will.Primary Judge The primary Judge found that whilst the handwritten document did contain a bequest of the deceased’s real property to her son, that statement in itself was insufficient to satisfy the requirements of s 18(2) of the Act when regard was had to the whole of the document. The primary Judge particularly noted the document was said to be “for the purpose of making the Will” rather than the Will itself. The primary Judge also noted the handwritten document had been found with personal items in the beauty case. It was not located in the deceased’s metal filing cabinet, which contained many of her personal documents, such as tax and medical documentation.Submissions

Decision

Reasons for decision

The deceased had divorced her husband in about 1971 and was survived by her son, Geoffrey Lindsay (the appellant), and her daughter, Heather McGrath (the respondent). The appellant was granted letters of administration on intestacy on 17 June 2013. Soon after, the appellant located a document (a copy of which is annexed to the reasons). It was not disputed that the document was written and signed by the deceased. That document was the subject of the application for probate brought by the appellant before the primary judge.The decision at first instance The learned primary judge, in his ex tempore reasons, made the following observations about the document and the envelope in which it was found:“The informal document is signed by the deceased, is undated, but on the applicant’s evidence was prepared between 3 March 2005 and 2 March 2006. The document on its face contains many corrections and some deletions. It is necessary to set out some of the content of the informal document for the purposes of determining whether this court may exercise a discretion under section 18 of the Succession Act. The document is entitled Nora Priscilla Lindsay; her date of birth, 3rd of March 1922; 28 Martha Street, Camp Hill, Queensland 4152:Being of sound mind, this document is for the purpose of making the will of Nora Priscilla Lindsay.The document then goes on to give some history of Ms Lindsay’s birth in England and her arriving in Australia on 1 May 1949. Relevantly, the document on page 1 contains the following statement:To my only son, Geoffrey David Lindsay born 2 August 1952, I bequeath my home on property at Camp Hill, a high-set timber house with Besser block rumpus room built underneath, also contents of said house with the exception of china.The document then appears to have been torn. In this respect the applicant has filed an expert handwriting report by John Heath, who at page 3 of his report states that the fragmented section nature [sic] of the will, while unusual, does not in itself constitute evidence indicative of falsehood. ‘The torn edge at the bottom of sheet 1, page 1 shows evidence of its having been torn through a line of writing.’Whilst it is clear from the document itself that the torn page 1 does contain writing underneath the words which have been quoted above, the document continues to outline various reasons why the deceased did not wish her daughter or her daughter’s two sons to be in a position to challenge any will that she may make. In that regard the document continues for a further four pages outlining the history of the relationship between the deceased and various members of her family and, in particular, her daughter and her two grandchildren by her daughter.The document was found with or in an envelope which is exhibit GLD3 to the affidavit of [the appellant]. That is a L&C Blue Ribbon Will envelope. This document has not been dated nor does it identify the deceased or, indeed, any executors under the will. Whilst the informal document has been signed by the deceased, it has not been witnessed by any person.”

Ratio Decidendi

Legal Principle Established

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