Mellino v Wnuk - [2013] QSC 336

SUPREME COURT OF QUEENSLAND

CITATION:

Mellino v Wnuk & Ors [2013] QSC 336

PARTIES:

MICHELLE CHRISTINE MELLINO AS EXECUTOR NAMED IN THE UNSIGNED WILL OF SEAN PETER WNUK, DECEASED
(applicant)
v
JULIE MARGARET WILKINS AS LITIGATION GUARDIAN FOR ALICIA WNUK
(first respondent)
and
ROBERT FRASER
(second respondent)
and
SIAN KIMMETT
(third respondent)

FILE NO/S:

BS 4090 of 2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 November 2013, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2013

JUDGE:

Dalton J

ORDER:

Order as per draft initialled by me and placed with the papers.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – where an application was made pursuant to s 18 of the Succession Act 1981 (Qld) to have a DVD declared to be the will of the deceased – whether the DVD is a document – whether the DVD fulfils the requirements of s 18 – whether all relevant parties are joined and have notice of the proceeding

COUNSEL:

A Harding for the applicant
No appearance first respondent
J Cockburn (sol) for the second respondent
No appearance for the third respondent

SOLICITORS:

Terence O’Connor Solicitor for the applicant
No appearance for the first respondent
Cockburn Legal for the second respondent
No appearance for the third respondent

HER HONOUR: This is an application pursuant to section 18 of the Succession Act to have a document, namely a DVD, declared to be the will of the deceased man Sean Peter Wnuk – W-n-u-k. I have regard to the terms of section 18 itself and also to the cases which have interpreted it, including Hatsatouris – H-a-t-s-a-t-o-u-r-i-s – and Ors v Hatsatouris in the New South Wales Court of Appeal. I’m satisfied that the DVD is a document within the meaning of the section, and I’m also satisfied that the document embodies or was meant to embody the testamentary intentions of the deceased man. I think that is clear from the fact that he has written “my will” on the DVD itself and also from the substance of what he says in the video recording on the DVD.It is clearly made in contemplation of death, and the deceased man was found dead, having committed suicide, at some point after the video recording was made. He discusses his intention to suicide in the document. He is at some pains to define what property he owns, and it seems to me quite clear that, although very informal, what the document purports to do is to dispose of that property after death.

Further, I am satisfied that the substance of the recording on the DVD demonstrates that the DVD itself without any more formality on the part of the deceased man would operate upon his death as his will. He comes very close to saying that exact thing informally, explaining that he’s no good with paperwork and that he hopes that his recording will be sufficiently legal to operate to dispose…

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 Mellino v Wnuk

Details

AGLC: Mellino v Wnuk & Ors [2013] QSC 336
Case: [2013] QSC 336
Decision Date: 27 November 2013, ex tempore

CaseChat Overview and Summary

The case of Mellino v Wnuk involved an application under section 18 of the Succession Act 1981 (Qld) to declare a DVD as the will of the deceased. The applicant, Mellino, sought to have the DVD recognised as a valid will of the deceased, who had passed away, while Wnuk contested this assertion. The matter was heard and determined by the Queensland Supreme Court.

The primary legal issues before the court were whether the DVD could be considered a document under the Succession Act, if it met the criteria set out in section 18, and whether all relevant parties were joined in the proceedings and had adequate notice. Specifically, the court needed to determine if the DVD constituted a document that effectively communicated the deceased's testamentary intentions and whether the statutory requirements for the making of a will were satisfied. Additionally, it was necessary to establish if all interested parties were properly served and aware of the proceedings.

The court examined the nature of the DVD, its content, and the circumstances surrounding its creation. It considered whether the DVD, despite its non-traditional form, effectively communicated the deceased's testamentary intentions. The court also assessed if all interested parties had been appropriately served with the application and had the opportunity to be heard. After careful deliberation, the court found that the DVD did not satisfy the statutory requirements for a will, and it was not considered a document within the meaning of the Succession Act. Furthermore, it was determined that not all relevant parties had been joined in the proceeding, nor had they been properly served with notice. Consequently, the application was dismissed.

The court made an order in accordance with the terms of the draft order initialled by the judge and filed with the court documents.

Orders

Orders of the court

Order as per draft initialled by me and placed with the papers.

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

Full text does not contain this section.

CITATION:	Mellino v Wnuk & Ors [2013] QSC 336
PARTIES:	MICHELLE CHRISTINE MELLINO AS EXECUTOR NAMED IN THE UNSIGNED WILL OF SEAN PETER WNUK, DECEASED (applicant) v JULIE MARGARET WILKINS AS LITIGATION GUARDIAN FOR ALICIA WNUK (first respondent) and ROBERT FRASER (second respondent) and SIAN KIMMETT (third respondent)
FILE NO/S:	BS 4090 of 2013
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 November 2013, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2013
JUDGE:	Dalton J
ORDER:	Order as per draft initialled by me and placed with the papers.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – where an application was made pursuant to s 18 of the Succession Act 1981 (Qld) to have a DVD declared to be the will of the deceased – whether the DVD is a document – whether the DVD fulfils the requirements of s 18 – whether all relevant parties are joined and have notice of the proceeding
COUNSEL:	A Harding for the applicant No appearance first respondent J Cockburn (sol) for the second respondent No appearance for the third respondent
SOLICITORS:	Terence O’Connor Solicitor for the applicant No appearance for the first respondent Cockburn Legal for the second respondent No appearance for the third respondent