Re Chambers (dec'd)

Case [2023] QSC 230

SUPREME COURT OF QUEENSLAND

CITATION:

Re Chambers (dec’d) [2023] QSC 230

PARTIES:

IN THE WILL OF KEVIN JOHN CHAMBERS

(deceased)

CHERIE GAYLE JOHNSON

(applicant)

FILE NO:

BS No 5943 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Davis J

ORDERS:

1. The application is to proceed without oral hearing pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).

2.   Letters of administration with the will of Kevin John Chambers dated 14 October 2017 be granted to the applicant as administrator.

3.   The costs of and incidental to the application be paid from the estate of the late Kevin John Chambers on an indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – SIGNATURE OF TESTATOR – POSITION OF SIGNATURE – where the testator purported to make a will – where the testator signed the first page of the will – where the testator did not sign the second page of the will – where the witnesses signed the second page of the will – where the witnesses did not sign the first page of the will – where there were no operative clauses on the second page of the will –  whether the will was duly executed

Preece, Lee’s Manual of Succession Law, 8th Ed, Law Book Co, 2019

Succession Act 1981, s 9, s 10, s 11, s 13, s 15
Succession Amendment Act 2006
Succession Act Amendment Bill 2005
Uniform Civil Procedure Rules 1999, r 489, r 491, r 603

Cinnamon v Public Trustee (Tas) (1934) 51 CLR 403; [1934] HCA 26, cited
Coyle v Kerwin [2006] QSC 50, cited
Re Bell [2001] QSC 092, cited
Re Gardner (dec’d) [2023] QSC 142, cited
Re Kimpton (1864) 164 ER 1340; [1864] EngR 315, cited
Re Sharland [2006] 1 Qd R 562, cited
Will of Moroney (1928) 28 SR (NSW) 553; [1928] NSWStRp 74, cited

SOLICITORS:

Andrew Douglas Solicitors for the applicant

  1. The applicant, Cherie Gayle Johnson (Cherie), applies for letters of administration of a document which purports to be a will of Kevin John Chambers (Kevin).  Application to the Court is necessary as the Registrar issued a requisition that the will was not duly executed.

    Background

  2. Kevin died on 17 March 2023 at the age of 91.

  3. Kevin’s marriage to Merle Agnes Chambers (Merle) produced two children:

    1.Cherie; and

    2.Michael Frederick Chambers called in some of the documents “Michael Thomas Chambers” (Michael).

  4. Merle died in 2003 and Michael died in 2014. 

  5. Kevin made a will on 14 October 2017 (the will) by which he:

    1.appointed his grandson, Daniel Thomas Johnson (Daniel), his trustee and executor;

    2.left his entire estate to Cherie.

  6. Daniel has renounced his right to administration of Kevin’s will.

  7. Cherie, having priority,[1] applied for letters of administration.  Her application was met with the following requisitions from the Registrar:

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AGLC
Re Chambers (dec'd) [2023] QSC 230
Case
[2023] QSC 230
Decision Date

CaseChat Overview and Summary

Cherie Gayle Johnson applied for letters of administration of a document purporting to be the will of her father, Kevin John Chambers, who passed away on 17 March 2023. The Registrar issued a requisition stating that the will was not duly executed and could not grant letters of administration. The will, dated 14 October 2017, consists of two pages. Kevin signed the first page at the foot, while the witnesses signed the second page, which contains no operative clauses. The will appoints Cherie as the sole beneficiary of Kevin's estate.

The primary issue before the court was whether the will was duly executed, particularly concerning the position of Kevin's signature and the witnesses' attestation. The court noted that Kevin signed the first page of the will, which contains all the operative provisions. The witnesses signed the second page, which lacks any operative clauses. The pre-printed form included notes stating that the testator should sign the attestation clause and the witnesses should sign the first page, but these were not followed. The court considered the evidence of the witnesses, Simon and Sarah Anderson, who attested that Kevin signed the will in their presence, and they signed the will in each other's presence.

The court found that it was not inappropriate to decide the application without an oral hearing as per rule 489 of the Uniform Civil Procedure Rules 1999. The witnesses' evidence was not disputed, and there was no suggestion that an oral hearing was necessary or desirable. The court concluded that the will was duly executed as Kevin signed the first page containing the operative provisions. The witnesses' signatures on the second page, despite not signing where indicated by the pre-printed form, did not invalidate the will.

The court granted the application for letters of administration and ordered that Cherie Gayle Johnson be issued with letters of administration with the will. The costs of the application were to be paid from Kevin's estate on an indemnity basis.

Orders

Orders of the court

1. The application is to proceed without oral hearing pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).

2. Letters of administration with the will of Kevin John Chambers dated 14 October 2017 be granted to the applicant as administrator.

3. The costs of and incidental to the application be paid from the estate of the late Kevin John Chambers on an indemnity basis.

Background

Background to the litigation

The applicant, Cherie Gayle Johnson (Cherie), applies for letters of administration of a document which purports to be a will of Kevin John Chambers (Kevin). Application to the Court is necessary as the Registrar issued a requisition that the will was not duly executed.Background Kevin died on 17 March 2023 at the age of 91. Kevin’s marriage to Merle Agnes Chambers (Merle) produced two children:1.Cherie; and2.Michael Frederick Chambers called in some of the documents “Michael Thomas Chambers” (Michael). Merle died in 2003 and Michael died in 2014. Kevin made a will on 14 October 2017 (the will) by which he:1.appointed his grandson, Daniel Thomas Johnson (Daniel), his trustee and executor;2.left his entire estate to Cherie. Daniel has renounced his right to administration of Kevin’s will. Cherie, having priority,[1] applied for letters of administration. Her application was met with the following requisitions from the Registrar:[1]Uniform Civil Procedure Rules 1999, r 603.“RequisitionsI refer to the above matter filed in the registry on the 15 May 2023, notwithstanding the evidence you have filed in the matter I do not have the authority to issue the Grant.Section 10 of the Succession Act 1981 (the Act) sets out the way a Will must be executed that attestation clause in this Will has been signed by the 2 witnesses however the testator has not signed the Will in the attestation clause.Action required:-File a form 9 to the Court as constitute by a judge, together with supporting material, and obtain an order in accordance with Section 18 of the Succession Act 1981 as a Judge can dispense with execution requirements for a Will, alteration, or revocation.”[2][2]The above requisition notice has been faithfully produced with grammatical errors. In response to the requisitions, Cherie filed an application to the Court constituted by a judge[3] for letters of administration. She seeks to have that application determined without oral hearing.[4][3]As opposed to the Registrar. [4]Uniform Civil Procedure Rules 1999, r 489.The execution of the will The will is in a pre-printed form and consists of two pages. The first page contains all the operative provisions. It identifies Kevin as the testator, revokes all former testamentary instruments, appoints Daniel as executor and trustee, and gives the entire estate to Cherie. Kevin has signed the will under the clause which makes the gift to Cherie.[5] At clause 3, this appears:[5]Clause 3. At the foot of page 1, this appears: No operative clauses appear on the second page of the will. The second page is headed “The Will continued”. Below that heading is blank and then at the bottom of the page: The two witnesses to the will are Simon and Sarah Anderson. Mr Anderson swore an affidavit, relevantly in these terms:“2.The deceased executed the will on the day it is dated by signing his name at the foot of the first page of the will meaning and intending the same to be his final signature to the will.3.The deceased signed the will in my presence and in the presence of my wife SARAH ANDERSON the other witness who signed the will, both of us being present at the same time, and we then attested and signed the will in the presence of the deceased and of each other.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides:“489 Proposal for decision without oral hearing(1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—(a) under rule 491, the court considers it inappropriate to do so; or(b) under rule 494, the respondent requires an oral hearing; or(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.” The structure of r 489 is that:1.jurisdiction to proceed without oral hearing is granted;2.the jurisdiction is enlivened by a proposal by an applicant;3.the proposal must be accepted, and the application determined without oral hearing, in the absence of the features in r 489(2)(a)-(d).[6][6]Re Gardner (dec’d) [2023] QSC 142 at [22]. Cherie has proposed that the application be determined without oral hearing. That enlivens the jurisdiction. The application for letters of administration has been duly advertised. There is no opposition to the application being determined in this way. The Chief Justice has not suspended the operation of r 489. Cherie continues to press for the application to be determined without oral hearing. Therefore, none of the circumstances prescribed by r 489(2)(b), (c) or (d) apply. The question then is whether it is inappropriate for the application to be heard without oral hearing.[7][7]Uniform Civil Procedure Rules 1999, rr 489(2)(a) and 491. The substantive questions in issue on the application are as to the execution of the will. There is no reason to doubt the evidence of Mr and Mrs Anderson. The original will which bears the execution by both Kevin and Mr and Mrs Anderson has been filed, and is before me. There is nothing to suggest that an oral hearing is either necessary or desirable in the interests of justice.[8][8]Re Briggs (dec’d) [2023] QSC 226 at [17]. In the circumstances, it is not “inappropriate”[9] to consider the application without oral hearing.[9]Uniform Civil Procedure Rules 1999, r 491(1).Was the will duly executed? Kevin signed the front page of the will in two places; below the gift to Cherie,[10] and at the foot of that page.[11][10]See paragraph [10] of these reasons.[11]See paragraph [11] of these reasons. Contrary to the pre-printed note at the bottom of the first page, Mr and Mrs Anderson did not sign that page. Mr and Mrs Anderson each signed the second page but, contrary to the pre-printed note on the bottom of that page, Kevin didn’t. Therefore, the first question is whether there is any significance in the fact that Kevin has not signed the second page of the will which contains an attestation clause or, in other words, has not signed at the foot or end of the will.

Ratio Decidendi

Legal Principle Established

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