Radford v White - [2018] QSC 306

SUPREME COURT OF QUEENSLAND

CITATION:

Radford v White [2018] QSC 306

PARTIES:

KATRINA PAULINE RADFORD

(applicant)

v
NICOLE WHITE

(respondent)

FILE NO:

SC No 3602 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2018

JUDGE:

Jackson J

ORDER:

It is declared that the video recording in the terms transcribed in paragraph [5] of these reasons forms the will of Jay Matthew Schwer within the meaning of s 18(2) of the Succession Act 1981 (Qld).

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where application under Succession Act 1981 (Qld) s 18 – where deceased made video recording purporting to be a will – where recording states intended dispositions of property – where recording contemplates deceased may “fill out the damn forms later” – whether video recording a document – whether video recording states testamentary intentions – whether video recording intended to operate without more as will – whether deceased had testamentary capacity

Succession Act 1981 (Qld), s 18

COUNSEL:

D Stevenson for the applicant

S McLeod for the respondent

SOLICITORS:

Wockner Lawyers for the applicant

Michelle Porcheron Lawyers for the respondent

JACKSON J: This is an application for an order that a video recording is a document that forms a will within the meaning of s 18(2) of the Succession Act 1981 (Qld) (“the Act”).
On 24 January 2018, Jay Matthew Schwer died as a result of a self-administered overdose of prescribed pain killers following his discharge from hospital after surgery. It is not suggested that he deliberately took his own life.
On the date of his death, Mr Schwer did not have a will executed under Part 2 of the Act. He was then aged 39 and appears to have been a United States citizen, although he had lived in Queensland for approximately 12 or 13 years. It is not suggested that he had a will made in accordance with the laws of any other jurisdiction.
On 21 November 2016, in the afternoon, Mr Schwer suffered injuries, including a significant head injury, in a motorcycle accident. He had purchased and started riding the motorcycle on that day.
Relevant to this proceeding, earlier that day Mr Schwer made a video recording of his testamentary intentions at the request of his de facto partner. The recording comprised a file on his personal computer. A transcript of what he said is as follows:
“It’s Monday the 21^st November 2016. My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I’ll just say it. Everything goes to Katrina Pauline Radford if anything was to happen to me.
If my daughter decides to go to school, on completion of a four year degree, in something other than the Arts – so any business, psychology, sociology degree, that’s fine – Katrina will have $30,000 put/set aside…

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 Radford v White

Details

AGLC: Radford v White [2018] QSC 306
Case: [2018] QSC 306
Decision Date: 17 December 2018

CaseChat Overview and Summary

In Radford v White, the dispute centred on the validity of a video recording made by the deceased, Jay Matthew Schwer, as his will. The applicant, Schwer's de facto partner, sought a declaration that the video recording constituted Schwer's will under section 18 of the Succession Act 1981 (Qld). The respondent, Schwer's wife, contested the application. The case was heard in the Supreme Court of Queensland.

The legal issues before the court included determining whether the video recording constituted a document within the meaning of section 18(2) of the Succession Act, whether the recording embodied Schwer's testamentary intentions, and whether Schwer intended for the recording to operate as his will without further formality. The court also had to assess Schwer's testamentary capacity at the time of making the video recording.

The court found that the video recording did constitute a document under the Act, as it contained Schwer's intended dispositions of property. The recording clearly stated Schwer's testamentary intentions and he expressed his intention for it to operate as his will without additional formalities. The evidence presented demonstrated that Schwer had the requisite testamentary capacity when he made the recording. The court concluded that the video recording satisfied the factual conditions for being recognised as Schwer's will.

The court granted the declaration sought by the applicant, confirming that the video recording in the terms transcribed in the judgment forms the will of Jay Matthew Schwer. The court also noted that while the application was for declaratory relief, it could have been more comprehensive, including a claim for proof of the video recording as Schwer's will and for the appointment of an administrator to the estate. However, given the appropriate parties were represented, the court deemed it appropriate to proceed with the declaration.

Orders

Orders of the court

It is declared that the video recording in the terms transcribed in paragraph [5] of these reasons forms the will of Jay Matthew Schwer within the meaning of s 18(2) of the Succession Act 1981 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent adduced some evidence about Mr Schwer’s state of mind and behaviour in the months before his death. Two observations may be made about that evidence. First, it is not relevant to his capacity as at the date of making the video recording. Second, even if it were relevant, it does not displace the evidence otherwise that proves his capacity.Conclusion The applicant has established that the three factual conditions for the conclusion that the video recording forms a will within the meaning of s 18(2) are satisfied. First, there was a document within the meaning of the section. Second, the document purports to embody the testamentary intentions of Mr Schwer. Third, Mr Schwer demonstrated that it was his then intention that the document without more operation as his last will. These conditions have been satisfied as a matter of fact, not discretion.[6] [6]Re Estate of Carrigan (deceased) [2018] QSC 206, [16]; Lindsay v McGrath [2016] 2 Qd R 160, 177 [16], 185 [57] and 187 [63]; Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408, [56]. The present proceeding is constituted as an application for orders as to those conclusions but must be, in effect, for declaratory relief. It might have been better had the application included a claim for relief for proof of the video recording as Mr Schwer’s will and for the appointment of an administrator to the estate. However, the appropriate parties are represented. The respondent, as the wife of Mr Schwer and as the mother of their infant daughter was an appropriate party. The applicant, as Mr Schwer’s de facto partner and the mother of their daughter, was an appropriate applying party. And Mr Schwer’s mother swore an affidavit for use in the proceeding and accordingly had notice of the proceeding. In the circumstances, in my view, it is appropriate to declare that the video recording in the terms transcribed in paragraph [5] of this judgment forms the will of Mr Schwer within the meaning of s 18(2) of the Succession Act 1981 (Qld).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Radford v White [2018] QSC 306
PARTIES:	KATRINA PAULINE RADFORD (applicant) v NICOLE WHITE (respondent)
FILE NO:	SC No 3602 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2018
JUDGE:	Jackson J
ORDER:	It is declared that the video recording in the terms transcribed in paragraph [5] of these reasons forms the will of Jay Matthew Schwer within the meaning of s 18(2) of the *Succession Act* 1981 (Qld).
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where application under Succession Act 1981 (Qld) s 18 – where deceased made video recording purporting to be a will – where recording states intended dispositions of property – where recording contemplates deceased may “fill out the damn forms later” – whether video recording a document – whether video recording states testamentary intentions – whether video recording intended to operate without more as will – whether deceased had testamentary capacity Succession Act 1981 (Qld), s 18
COUNSEL:	D Stevenson for the applicant S McLeod for the respondent
SOLICITORS:	Wockner Lawyers for the applicant Michelle Porcheron Lawyers for the respondent