Little v Hammond

[2007] QSC 398

[2007] QSC 398

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

LYONS J

No 5569 of 2007

JASON GILBERT LITTLE

Applicant

and

RAYMOND HAMMOND

and

MARITA HAMMOND

and

TREVOR HAMMOND

First Respondent

Second Respondent

Third Respondent

BRISBANE

..DATE 02/11/2007

ORDER

HER HONOUR: The applicant, Jason Little, applies for the following orders. Firstly, a declaration under section 18 of the Succession Act that the handwritten document signed by Ashlee Mullock headed "To whom it may concern, last Will of [sic] testament 5/12/06", forms his Will. Secondly, a further declaration that the execution requirements for the Will be dispensed with. Thirdly, subject to the formal requirements of the Registrar, Jason Gilbert Little of 10 Western Street, Zillmere, receive a grant of administration with the Will annexed in the estate of the late Ashlee Mullock. Fourthly, that the applicant's costs of and incidental to this application be paid by the estate on an indemnity basis.

The deceased died at his home at Wavell Heights in Brisbane on 5 December 2006 leaving an estate in Queensland.  The death certificate indicates he died of carbon monoxide toxicity. The death certificate also indicates he was aged 40 at the time of his death, and that he had no children, and that he was not married.

The affidavit of Jason Little indicates that he is aware of the following assets only.  The deceased's home, which is worth at least $300,000; a Colonial Rollover Fund which was worth, as at 30 June 2006, $29,481.25; a Smorgan Superannuation Fund with a balance as at 30 June 2006 of $8,514.29; a BT Business Super Account with an account balance as at 30 June 2006 of $541.70; an ARF Super Fund with an account balance as at 31 December 2005 of $20.63; a Ford Fairlane worth approximately one hundred dollars; and a Suncorp account with a balance of $2,523.78.  There were also items in his home that also form part of his estate.

The deceased signed a document dated 5 December 2006 in these terms.  It is headed "Last Will of [sic] testament, 5/12/06":

"Mr Ashlee Mullock, being of sound mind, I am writing this letter as my Will.  Excuse the writing as I have a broken hand.  I leave my property of 217 Hamilton Road, Wavell Heights to Mr Raymond Hammond and Mrs Marita Hammond and Mr Trevor Hammond, to be split three ways equally, money still owing with Westpac mortgage.  My superannuation Colonial money to be left to Mr Jason Little, the forms will still have a Mr Don Hammond, now deceased, and Miss Kelly Lavery, under no circumstances is Lavery to receive anything.  I appoint Jason Little as my executor to this Will.  All my belongings, furniture, car, home theatre etc is to be split between my friends, Jason knows who they are.", and then "Yours faithfully", the name of the deceased is printed, and then it is signed.

The beneficiaries of the deceased's home are Raymond, Marita and Trevor Hammond, who are the adult children of the late Don Hammond, a close friend of the deceased. The deceased had a mortgage debt to Westpac bank in the amount of $60,000 at the time of his death, and outstanding rates of approximately $2,800. The deceased died having never married and without issue, parent, brother or sister, uncle or aunt, nephew or niece, and the applicant Jason Little deposes that the deceased had previously told him he had no living relatives. There are therefore no known persons who have a beneficial interest under sections 35 to 37 of the Succession Act 1981.

The document in question was therefore signed by the deceased without any witnesses. Section 10 of the Succession Act states that "the signature of a testator on a Will must be made in the presence of two or more witnesses present at the same time." Therefore the document in question is not a valid Will.

Section 18 of the Act, however, provides that "this section applies to a document or part of a document that purports to state the testamentary intention of a deceased person, and has not been appropriately executed". Subsection 2 of section 18 provides that "the document forms a Will of the deceased if the Court is satisfied that the person intended the document to form the person's Will".

In coming to a determination the Court then may have regard to any evidence relating to the way in which the document was executed, and any evidence of the person's testamentary intentions, including evidence of statements made by the person.

The affidavit material indicates that Gregory Keith Marheine, a forensic document examiner, in his report dated 17.6.07 indicates that he is of the opinion that the document was signed and written by the deceased.  In his affidavit he deposes to the basis of that conclusion and the documents that he examined in order to come to that conclusion.  That document was dated 5 December 2006.

The record of the Coroner's findings dated 07.06.07 indicates as follows:

"On 7 December 2006 Jason Little discovered the body of Ashlee Mullock in his car in the garage of his house. The exhaust fumes had been directed into the car via a hose.  A note had been left signed by Ashlee detailing the difficulty he was facing.  Police were satisfied that there were no suspicious circumstances."

The certificate of death states that the date of death was between 5 December and 7 December.  I am satisfied, therefore, that the deceased wrote and signed the subject document while contemplating suicide.

In his affidavit the applicant deposes to the fact that the deceased had never married and was without issue, parent, brother, sister, uncle, aunt, nephew or niece, and in fact the affidavit revealed the applicant had been advised there were no living relatives.  There was no spouse.  There were no children.  The applicant further deposes in his affidavit that the beneficiaries under that document are the children, the adult children, of a good friend of the deceased.  The children are the children of a friend of the deceased, who was in fact deceased as well.  This would seem a rational choice of beneficiary on the part of the deceased when he had no next of kin or spouse.

I am therefore satisfied that the evidence indicates that the deceased intended this document to form his Will. I am therefore satisfied that an order should be made that there be a declaration under section 18 of the Succession Act that that handwritten document forms his Will. I will also make an order that the execution requirements of the Will be dispensed with.

The respondents, that is Raymond Hammond, Marita Hammond and Trevor Hammond are the major beneficiaries under the document in question and the only named beneficiaries, apart from the applicant.  The deceased specified that the respondents were to receive his property at Wavell Heights.  This property is worth approximately $300,000 and there is a mortgage to Westpac.  The deceased specified that his next most valuable asset, his Colonial Super Fund, was to go to the applicant.  The deceased then specified that his belongings, furniture, etc were to be split amongst his friends, and that the applicant knew who his friends were.

The deceased did not specifically deal with any residuary estate.  Although the applicant believes there will be no residuary estate after all debts, funeral and testamentary expenses are paid, he nevertheless seeks under section 38 of the Act a grant of Letters of Administration with the Will annexed.  This will avoid the possibility of the need to make further application.  The applicant also deposes in his affidavit that he was served on 5 September 2007 with a default notice by the mortgagee Westpac, requiring payment of arrears in the extent of $3,079.

In all of the circumstances then I will make the orders that are sought.  In particular, that subject to the formal requirements of the Registrar, Jason Gilbert Little receive a grant of administration with the Will annexed in the Estate of the late Ashlee Mullock.  I also make a further order that the applicant's costs of and incidental to this application be paid by the estate on an indemnity basis.

Accordingly, I am making the following orders (as per the draft which has been initialled by me and placed with the file).

1. The Court declares under section 18 of the Succession Act 1981 that the handwritten document signed by Ashlee Mullock headed ‘To Whom It May Concern – Last Will of Testament [sic] 05-12-06’, forms his Will.

1. The Court further declares that the execution requirements for the Will be dispensed with.

1. Subject to the formal requirements of the Registrar Jason Gilbert Little of 10 Weston St, Zillmere, Qld, 4034 receive a grant of administration with the Will annexed in the estate of the late Ashley Mullock.

1. The applicant’s costs of and incidental to this application be paid by the estate on an indemnity basis.

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