Mahlo v Hehir

[2011] QSC 243

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, considered

The Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, applied

COUNSEL:

RM Treston for the plaintiff
NJ Nevison for the first defendant

The second and third defendants appeared on their own behalf

SOLICITORS:

Thynne & Macartney for the plaintiff
Greenhalgh Pickard Solicitors for the first defendant

The second and third defendants appeared on their own behalf

1. 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. 

1. 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.

1. 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…