Massey v Smith - [2015] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:

Massey & Ors v Smith & Ors [2015] QSC 86

PARTIES:

DAPHNE EVELYN MASSEY, STEPHEN JOHN MASSEY and JENNIFER ANN BUSHBY (as Executors of the Will of MARGARET DOREEN SMITH)

(applicant)

v
NOEL JAMES SMITH

(first respondent)
DOROTHY MARY GEHRIG
(second respondent)
PAUL GERARD SMITH
(third respondent)
CHRISTINE HENSCHKE
(fourth respondent)
TRUDI DIESTEL
(fifth respondent)
ELISE KARANDREWS
(sixth respondent)

FILE NO/S:

8548 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2015

JUDGE:

Martin J

ORDER:

Application dismissed.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – JURISDICTION AND DISCRETION OF THE COURT – QUEENSLAND –– where the applicant seeks a declaration that a handwritten document is a codicil to the last will of the deceased – whether the deceased intended the document to constitute an alteration to her will – whether the court should exercise its discretion under s 18 of the Succession Act 1981 to dispense with the execution requirements – whether upon the proper construction of the handwritten document the deceased created a trust – whether the court has the power to make directions under s 96 of the Trusts Act 1973
Succession Act 1981, s 6, s 18
Trusts Act 1973, s 96

Harpur v Levy (2007) 16 VR 587

Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29

Re Grindrod (deceased) [2014] QSC 158

COUNSEL:

S McLeod for the applicant

C Brewer for the first, third, fourth, fifth and sixth respondents

SOLICITORS:

Hayward & Co Lawyers for the applicant

Crouch & Linden for the first, third, fourth, fifth and sixth respondents

The applicants are the executors of the will of Margaret Doreen Smith, deceased. They seek:
(a) A declaration that a document signed by the deceased on 28 March 2011 is a codicil to the last will of the deceased pursuant to s 18 of the Succession Act 1981 (“the Act”);
(b) A declaration that upon the proper construction of the document of 28 March 2011 the deceased created a trust of a one-fifth share in a property in Nundah; and
(c) A direction that pursuant to s 96 of the Trusts Act 1973 and s 6 of the Act that the applicants as the executors and trustees of the deceased’s property would be justified in distributing a one-fifth share in the proceeds of sale of the Nundah property to the grandchildren of a sister of the deceased.
The will
The will was executed on 27 July 2009. It provided for a number of legacies for some of the deceased’s relatives and that the residue of the estate was to be divided equally amongst her brothers and sisters.
The document of 28 March 2011
This document was hand-written by the deceased. It reads:
“To: The Executors in my Estate
and to: The residuary beneficiaries in my Estate
I thought by now I would have sold my home at 10 Boyd St. Nundah.
In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Massey v Smith

Details

AGLC: Massey v Smith [2015] QSC 86
Case: [2015] QSC 86
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the case of Massey v Smith, the applicant sought a declaration that a handwritten document was a codicil to the last will of the deceased. The legal issues before the court included whether the deceased intended the document to constitute an alteration to her will, whether the court should exercise its discretion under s 18 of the Succession Act 1981 to dispense with the execution requirements, and whether the court had the power to make directions under s 96 of the Trusts Act 1973. The court found that the deceased's signature on the 2011 document had not been witnessed by two or more people, which was a requirement of s 10(3) or (4) of the Act. Additionally, the deceased was familiar with the will making process and would have known that a document that was not witnessed by two witnesses was not valid. Therefore, the court was not satisfied that the deceased intended the document to constitute an alteration to her will. The court further found that the deceased's occupation as a probate clerk would have made her aware of the capacity to dispense with the requirements for executing a will, which did not arise until the amendments to the Act in 2006. The court held that the deceased was unlikely to have been familiar with the change and the "testamentary intention test." The application was dismissed.

The court examined the requirements for an order to be made under s 18 of the Act, which included proof of three matters. Firstly, that there must be a document. Secondly, that the document must purport to state the deceased's testamentary intentions. Lastly, the document must constitute the will of the deceased. The court found that the handwritten note was such a document and that the document must state the deceased's testamentary intentions. The court further found that the deceased's occupation as a probate clerk would have made her aware of the capacity to dispense with the requirements for executing a will, which did not arise until the amendments to the Act in 2006. The court held that the deceased was unlikely to have been familiar with the change and the "testamentary intention test." The application was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 18 of the Act provides:“18 Court may dispense with execution requirements for will, alteration or revocation (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 may, in addition to the document or part, have regard to—(a) any evidence relating to the way in which the document or part was executed; and(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.” The 2011 document does not meet the requirement of s 10(3) or (4) of the Act as the deceased’s signature has not been witnessed by two or more people. The 2011 document was sealed in an envelope and held with the deceased’s will at her then solicitors. In order to determine whether or not dispensation under s 18 should be given, the court must be satisfied that the deceased intended the document to constitute an alteration to her will. Specific reference is made in s 18(3)(d) to the court being able to have regard to any evidence of the person’s testamentary intentions, including evidence of statements made by the person. Of relevance in this case is that the deceased worked as a legal secretary and legal clerk. Her death certificate notes her occupation as “probate clerk”. She worked as a legal secretary for 47 years. It is common ground that she was aware of and familiar with the will making process as it existed prior to her retirement in 1997. As such, she would have been aware that a document that was not witnessed by two witnesses was not valid. She would also have known what a codicil was. The capacity to dispense with the requirements for executing a will did not arise until the amendments to the Act in 2006. It is common ground that it was unlikely that the deceased would have been familiar with that change and with the “testamentary intention test”. The test to be applied in an application of this type has been summarised in Re Grindrod (deceased)[1] where A Lyons J said:“[16] There are three conditions that need to be satisfied before an order can be made under s 18. These requirements were previously set out in the decision of New South Wales Court of Appeal decision of Hatsatouris v Hatsatouris and have been more recently examined in a number of Queensland decisions including Proctor v Klauke, and Re Yu. In Proctor v Klauke the three conditions were discussed as follows:‘In relation to the matters that I am required to be satisfied about, Young CJ in Equity in Macey v Finch ([2002] NSWSC 933), considered the equivalent provision in the New South Wales legislation and stated that the provision required proof of three matters. Firstly, that there must be a document. Secondly, that the document must purport to state the deceased's testamentary intentions and, thirdly, the document must constitute the will of the deceased. That is, it is not to operate during his or her life time. It must be intended to constitute the deceased's will.’[17] Turning to the first requirement that there must be a document, it is clear that a document is widely defined in the Act by specific reference to the Acts Interpretation Act 1954 (Qld) which defines ‘document’ in Schedule 1 as including “(a) any paper or other material on which there is writing”. I am satisfied that the handwritten note is such a document.[18] In terms of the second requirement that document must purport to state the deceased’s testamentary intentions. In The Estate of Masters; Hill v Plummer; Plummer v Hill the meaning of testamentary intention was discussed in the following terms:‘There are in the present context, several things which are relevant in that regard. First, the document must state the deceased’s ‘testamentary intentions’, that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. A will may, of course, do other things: it may, for example, appoint a legal personal representative, exercise a special power, appoint a guardian or the like: see Halsbury’s Laws of England, par 202. But it is the disposition of the deceased’s property voluntarily after his death which is, for the present purposes, the relevant characteristic of a will.’” (citations omitted)[1] [2014] QSC 158.Testamentary intentions?

CITATION:	Massey & Ors v Smith & Ors [2015] QSC 86
PARTIES:	DAPHNE EVELYN MASSEY, STEPHEN JOHN MASSEY and JENNIFER ANN BUSHBY (as Executors of the Will of MARGARET DOREEN SMITH) (applicant) v NOEL JAMES SMITH (first respondent) DOROTHY MARY GEHRIG (second respondent) PAUL GERARD SMITH (third respondent) CHRISTINE HENSCHKE (fourth respondent) TRUDI DIESTEL (fifth respondent) ELISE KARANDREWS (sixth respondent)
FILE NO/S:	8548 of 2014
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2015
JUDGE:	Martin J
ORDER:	Application dismissed.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – JURISDICTION AND DISCRETION OF THE COURT – QUEENSLAND –– where the applicant seeks a declaration that a handwritten document is a codicil to the last will of the deceased – whether the deceased intended the document to constitute an alteration to her will – whether the court should exercise its discretion under s 18 of the Succession Act 1981 to dispense with the execution requirements – whether upon the proper construction of the handwritten document the deceased created a trust – whether the court has the power to make directions under s 96 of the Trusts Act 1973 Succession Act 1981, s 6, s 18 Trusts Act 1973, s 96 Harpur v Levy (2007) 16 VR 587 Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29 Re Grindrod (deceased) [2014] QSC 158
COUNSEL:	S McLeod for the applicant C Brewer for the first, third, fourth, fifth and sixth respondents
SOLICITORS:	Hayward & Co Lawyers for the applicant Crouch & Linden for the first, third, fourth, fifth and sixth respondents