SUPREME COURT OF QUEENSLAND
CITATION:
Mahlo v Hehir [2011] QSC 243
PARTIES:
BRETT JOHN MAHLO
(Plaintiff)v
JOHN MICHAEL HEHIR
(First Defendant)and
BENJAMIN YURI SASONOW
(Second Defendant)and
ANASTASIA JANE SASONOW
(Third Defendant)FILE NO/S:
BS 1036 of 2009
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
19 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
8-10 August 2011
JUDGE:
McMurdo J
ORDER:
The claim be dismissed.
CATCHWORDS:
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER STATES OR TERRITORIES – where the deceased typed on her home computer a document in the form of a will two weeks prior to her death – where the plaintiff seeks to prove that the electronic document was the deceased’s last will – whether the deceased intended the electronic document to form her will
Succession Act 1981 (Qld), s 18
Cahill v Rhodes [2002] NSWSC 561, cited
Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408, cited
Mitchell v Mitchell [2010] WASC 174, considered
Oreski v Ikac [2008] WASCA 220, cited
Prucha v Standing [2011] VSC 90, considered
Re Trethewey [2002] VSC 83, consideredThe Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, applied
COUNSEL:
RM Treston for the plaintiff
NJ Nevison for the first defendantThe second and third defendants appeared on their own behalf
SOLICITORS:
Thynne & Macartney for the plaintiff
Greenhalgh Pickard Solicitors for the first defendantThe second and third defendants appeared on their own behalf
Dr Karen Mahlo died on 28 May 2008. About two weeks earlier, she had typed on her home computer a document in the form of a will. It provided for the appointment of her brother, Brett Mahlo, as the executor and for gifts of $300,000 to her parents and the residue to her son and daughter.
Brett Mahlo seeks to prove this document as her last will. His application, which is made under s 18 of the Succession Act 1981 (Qld), is supported by the deceased’s son and daughter who are the second and third defendants. It is opposed by Mr Hehir, who was the executor and a beneficiary under a will made by Dr Mahlo in February 2008 when she and Mr Hehir were in a de facto relationship.
Section 18 provides, in part, as follows:
“(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…
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- AGLC
- Mahlo v Hehir [2011] QSC 243
- Case
- [2011] QSC 243
- Decision Date
CaseChat Overview and Summary
The court considered several factors in reaching its decision. It examined whether the document was intended by the deceased to be her will, taking into account the circumstances surrounding its creation and the content of the document itself. The court also assessed whether the deceased's actions and statements showed an intention to replace any existing will with the electronic document. Furthermore, the court evaluated if the document satisfied the legal requirements for the execution of a will, particularly in the context of whether it was executed with the formality required by law.
After thorough deliberation, the court concluded that the electronic document did not meet the legal standards required to be recognised as a valid will. The court found that while the deceased intended the document to reflect her wishes, there was insufficient evidence to establish that she intended it to replace any existing will or to be her formal testamentary document. Consequently, the court dismissed the plaintiff's claim, ruling that the electronic document could not be recognised as the deceased's last will.
Orders
Orders of the court
The claim be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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