Re Bell

[2001] QSC 92

SUPREME COURT OF QUEENSLAND

CITATION:

Re Bell [2001] QSC 092

PARTIES:

MANFRED KARL HERING
(applicant)
v
ERIC BELL and VELMA BELL
(respondents)

FILE NO:

S 10314 of 2000

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

6 April 2001

DELIVERED AT:

Brisbane

HEARING DATE:

24 January 2001

JUDGE:

Wilson J

ORDER:

That probate of pages 1 and 2 of the will dated 22 February 2000 and the codicil dated 22 February 2000 issue subject to the formal requirements
of the Registrar.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – where deceased used pre-printed standard form will – where testamentary dispositions appeared after signatures of witnesses – whether dispositions appearing after signatures should be admitted to probate

Succession Act 1981 (Qld), s 9, s 10
Wills Amendment Act 1852 (UK), s 1

Cinnamon v the Public Trustee for Tasmania (1934) 51 CLR 403, followed.
In re Brown [1944] VLR 24, considered.
In the Will of Smith [1965] Qd R 177, considered.
Will of Witts [1962] NSWR 1045, followed.

COUNSEL:

DRM Murphy for the applicant
GW Diehm for the respondents

SOLICITORS:

Noel R Williams for the applicant
Butler McDermott and Egan for the respondents

1. WILSON J: Colin Eric Bell died on a date unknown between 16 March 2000 and 18 May 2000 at Palmwoods in the state of Queensland. This is an application by Manfred Karl Hering for probate of his will and codicil bearing date 22 February 2000. The respondents are the deceased’s parents, Eric and Velma Bell, who would take his estate if there were an intestacy.

1. The deceased used a printed will form, of the type readily available from newsagents and stationers. It was contained on one sheet of paper of approximately A3 size, folded in half so as to give the effect of a booklet of 4 pages.

1. The deceased wrote on pages 1, 2 and 4 in his own handwriting; he left page 3 blank. He completed page 1 so that it read –

“This Will dated 22-2-2000 is made by me Colin Eric Bell.

all former testamentary dispositions.I REVOKE1.          

devise and bequeath unto I GIVE2.          

Manfred Hering

Scott Cains

3.           I APPOINTManfred Hering Lot 4 Policemans Spur Road Maleny QLD 4552

EXECUTOR.”

He wrote the following on page 2 –

Scott Cains  Toyota Hi Ace 975 DHF

P.O. Box 500  All Tools & Machinery Fridge

E.L. Arish 4855  Box Trailor

PH (0740) 685 – 058  any remaining cash

Manfred Hering  Real Estate – Lot 5 Eudlo Rd

Lot 4 Policeman Spur Rd   Palmwoods

Maleny 4552  Lot 5 RP 207582 Vol 6897 Fol 13

PH 54943635  Motor cycle. Honda GL 580

Other items divided between himself & Scott Cains

Bell Family

Telescope & Furniture, Photos

Funeral  Note to Executor

Minimum legal necessity  Eric Bell is not to be allowed

No Plark  on Property

No Religious Ceremony

No Head Stone

Ashes to the Ocean

He completed page 4 so that it read –

Dated 22.2.2000

Will

of

Colin Bell

This Codicil dated 22.2.2000 is made by me

I GIVE DEVISE AND BEQUEATH unto1.            

IN ALL OTHER RESPECTS I confirm my Will dated 2.            22.2.2000.”

(The printed material has been reproduced in bold type and the handwritten material in italics.)

1. The will was signed and attested on page 1, and the codicil was signed and attested. According to the attesting witnesses, the deceased had completed page 2 as set out above before his signature and theirs were put on to page 1.

1. It was conceded that the will was duly executed in accordance with the requirements of s 9 of the Succession Act 1981, and that the effect of the codicil was simply to republish the will.

1. The principal issue before me was whether page 2 should be included in the will admitted to probate. There was a secondary issue of construction, which both parties asked me to deal with in the event that page 2 was not admitted to probate.

1. Section 10 of the Succession Act provides in part –

When signature to a will shall be deemed valid

“10.(1)  A will, so far only as regards the position of the signature of the testator on the will, is not invalid if the signature is so placed at, after, following, under, beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as the testator’s will.

(2) Without limiting the generality of subsection (1), the validity of  a will is not affected by reason of the fact –

(a) that the signature of the testator does not follow, or is not immediately after, the foot or end of the will; or

…

(d)that the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature;

(e)that there appears to be sufficient space for the signature on or at the bottom of the side, page or other portion of the paper on which the will is written preceding that on which the signature is.

10.(3) The signature of the testator on a will does not operate to give effect to a disposition or direction that is underneath or follows that signature, or that is inserted in the will after that signature is made.”

1. Subsection 10(3) follows the Wills Act Amendment Act 1852 (UK) s 1 and similar provisions in other jurisdictions. The dispositions on page 2 of the will cannot be described as “underneath” the signature on page 1. The question is whether they “follow” that signature. In Cinnamon v the Public Trustee for Tasmania (1934) 51 CLR 403 at 412 Gavan Duffy CJ and Dixon J said of a similar provision:

“In the present case the legacies set out on the third page are certainly not ‘underneath’ the signature on the first page. It is not so clear that they do not ‘follow’ it. This expression refers to sequence or order. But in a written document the sequence or order is established by the writer. If upon inspection the arrangement which he has adopted appears and adherence to that arrangement results in a writing which terminates in the signature, the circumstance is not fatal that, according to a conventional use of the paper, the signature is upon an earlier fold or side, or even stands higher on the same side than part of the written matter.”

And in Will of Witts [1962] NSWR 1045 Myers J said –

“It must now be taken to be established that the ‘foot or end’ of a will for this purpose is not necessarily the foot or end physically; that is, the execution need not physically follow the whole of the dispositive provisions.

………………….

All that is required is some admissible evidence that satisfies the Court that the subsequent portion was intended to form part of the earlier, was written prior to execution and was intended to be authenticated by it.”

See also In the Will of Smith [1965] Qd R 177 and In re Brown [1944] VLR 24.

1. In the present case there is nothing such as “PTO” or “over” on page 1 expressly to indicate that page 2 was intended to be read as part of the will. Further, as counsel for the respondents highlighted, there is an inconsistency between pages 1 and 2: on page 1 there are two beneficiaries named, while of page 2 there is a third (the Bell family). Unlike some of the reported cases on provisions similar to s 10(3), page 2 is not a continuum of what appears on page 1.

1. However, there is the evidence of the attesting witnesses that page 2 was completed before the will was signed on page 1, the handwritten material on pages 1 and 2 is all in the writing of the deceased, and  it appears all to have been produced with the same pen. Although the names of two beneficiaries appear in the dispositive provision on page 1, that provision is incomplete in that it does not contain any description of the property they were to be given. In my view there is sufficient evidence to establish that the deceased intended that page 2 form part of the will. Accordingly, probate should be granted of both pages 1 and 2, subject to the formal requirements of the Registry.

1. Both counsel asked me to rule upon the proper construction of clause 2 on page 1 in the event that only page 1 was admitted to probate. It is unnecessary for me to do so in the circumstances. Suffice it to say that, in leaning against an intestacy, I would have been inclined to hold that the two named beneficiaries took the whole estate as tenants in common in equal shares.

Order:             That probate of pages 1 and 2 of the will dated 22 February 2000 and the codicil dated 22 February 2000 issue subject to the formal requirements of the Registrar.