Little v. Hammond

[2007] QSC 183

SUPREME COURT OF QUEENSLAND

[2007] QSC 183

CIVIL JURISDICTION

FRYBERG J

No 5569 of 2007

JASON GILBERT LITTLE	Applicant
and
MARITA HAMMOND, RAYMOND HAMMOND and TREVOR HAMMOND	Respondents

BRISBANE

..DATE 20/07/2007

ORDER

HIS HONOUR: This is an application for a declaration under section 18 of the Succession Act that a handwritten document forms the Will of Ashley Mullett deceased. The application also seeks a grant of administration of the Will annexed but as I understand it, it is accepted that such a grant can be made by a Registrar. The Court need concern itself then only with declarations in relation to section 18.

The document propounded as a Will is a handwritten statement on a piece of paper apparently torn from a lined writing pad headed simply To Who It May Concern.  It is said to be, on its face, the last Will and Testamont, so spelled, of Ashley Mullett.  It says:

"I am writing this letter as my will.  Excuse the writing as I have a broken hand.  I leave my property of 27 Hamilton Road Wavell Heights to Mr Raymond Hammond, Mrs Marita Hammond and Mr Trevor Hammond to be split three ways equally.  Money still owing with Westpac mortgage."

It goes on about other matters and then appoints Jason Little as the executor.

The application is supported by an affidavit by a handwriting expert.  The only respondents to the application are the three named beneficiaries. 

The document refers to a person named Lavery and asserts that under no circumstances is she to receive anything, albeit that her name apparently appears on some superannuation documentation.
The applicant is Jason Little, the person named in the document as executor. 

Section 18 confers a power on the Court to declare that a document forms a Will of a deceased person if it is satisfied that the person intended the document to form the person's Will. In making a decision in that regard the Court 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 evidence in the present case is fairly thin.  In particular there does not seem to be any evidence of the circumstances in which the document was executed or how it came into Mr Little's possession.  However that need not be explored further at the present time.  If the order is made the property of the deceased, the value of which is approximately $300,000 net, will go to the three named respondents to this application, but if it is not made it will go as on an intestacy.

Mr Little has deposed that there are no persons who would be interested under an intestacy and has stated that the deceased died having never married and without issue, parent, brother or sister, uncle or aunt, nephew or niece.  In fact the deceased told him, he says, that he had no living relatives.  He deposes that the deceased did not leave a spouse and had no children.
There is no evidence of how Mr Little comes by any of this information apart from the statement made by the deceased to which he refers.  There has been no search conducted of any register of births, marriages or deaths, and no material otherwise to satisfy me that Mr Little is in a position to know whether or not the matters to which he deposes are true.  Ms Reeve, who appeared on his behalf, indeed conceded that the affidavit is simply in a standard form used for the purposes of applying for probate.

In the event that there are no relatives of the deceased the property would, I assume, find its way pursuant to legislation to some emanation of the State of Queensland. Ms Reeve was not able to tell me under what provision of the Succession Act or other legislation that result would be achieved. It seems to me that it is necessary before proceeding with this application that the body which would take in the event that the order were not made should be served with the application. In addition, if there is any person who would take on an intestacy that person should be served. If there is no such person rather more convincing evidence of that fact is needed than is before me at the moment.

Finally, since it is possible that the Will may be construed to deprive Ms Lavery of some property it seems to me that it would be prudent that she be served with the application also.

I am not prepared, therefore, to make the orders sought on the material as it presently stands.  The applicant has, in those circumstances, requested that I should adjourn the application and I am content to do that. 

The application is therefore adjourned to a date to be fixed.

‑‑‑‑‑