Re Fraser
[2010] QSC 208
•27 May 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Re Fraser [2010] QSC 208
PARTIES:
IN THE MATTER OF THE WILL OF HUAN DONALD JOHN FRASER, DECEASED
and
IN THE MATTER OF AN APPLICATION BY STUART DONALD JOHN FRASER AND GINA MARGARET MURPHY, personal representatives of HUAN DONALD JOHN FRASER, deceased
FILE NO/S:
4691 of 2010
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
27 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
27 May 2010 (reasons delivered ex tempore)
JUDGE:
Ann Lyons J
ORDER:
1. The court pronounces for the force and validity of the last Will of Huan Donald John Fraser, deceased, late of unit 113, 501 Admiralty Two Queen Street, Brisbane in the State of Queensland, dated 22 July 2008, a copy of which Will is exhibit SF1 to the affidavit of Stuart Donald John Fraser filed on 7 May 2010 in solemn form of law;
2. Probate of the Will dated 22 July 2008 in solemn form be granted to the deceased’s son and daughter, Stuart Donald John Fraser and Gina Margaret Murphy, named as executors and trustees in clause 3.1 of the Will, subject to any formal requirements of the Probate Registrar and subject to any outstanding compliance with the requirements of the UCPR;
3. The plaintiffs deliver up to the Probate Registrar the original Will of Huan Donald John Fraser, deceased, dated 22 July 2008;
4. The applicants’ costs of and incidental to the application be paid out of the estate of Huan Donald John Fraser on an indemnity basis;
5. The costs of the application today by Ms Poulsen be paid out of the estate on an indemnity basis as part of the administration of the estate.
CATCHWORDS:
SUCCESSION – WILLS, PROBATES AND ADMINISTRATION - THE MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION OR STRIKING OUT PORTIONS – IN GENERAL - Where deceased crossed out signature on the final page of his most recent Will of 2008 and wrote the word ‘cancelled’ in front of his son – where that Will revoked all previous Wills – where the deceased indicated to family members he wished to revert to his 2006 Will – whether the 2008 Will was actually revoked – whether the 2006 Will is valid.
COUNSEL:
DA Skennar for the applicants
AB Fraser for C PoulsenSOLICITORS:
McCarthy Palethorpe & Blanch Solicitors for the applicants
de Groots wills and estate lawyers for C PoulsenANN LYONS J:
By this application the applicants seek orders that:
1. the court pronounce in solemn form of law for the full force and validity of the last Will of Huan Donald John Fraser, which is dated 22 July 2008; and
2. subject to compliance with the requirements of the Uniform Civil Procedure Rules 1999 (Qld), probate of the Will dated 22 July 2008 be granted in solemn form to the executors.
Huan Fraser (the deceased) died on 18 February 2010. His last Will was executed on 22 July 2008. It is clear that that Will is a complicated document which sets up bloodline trusts for each of his children, together with certain specific gifts to various people. It is a 24 page Will and it is accompanied by a Letter of Wishes, which is dated the same date.
Each page of the 24 page Will was signed by the deceased. His signature on the last page has been crossed out and the word “Cancelled” has been written above the crossed out signature. That cross-out was then initialled by the deceased. A Letter of Wishes accompanied that Will and the signature on that document has also been crossed out and the word “Cancelled” written above it. The cross-out was also initialled by the deceased.
The executors appointed by the 2008 Will are Stuart Fraser and Gina Murphy. They are the son and daughter respectively of the deceased. By Clause 1 of that 2008 Will - all previous Wills were revoked.
The Will immediately preceding the 2008 Will was dated 6 December 2006 and in that Will he forgave any loans to his children, he bequested the sum of $50,000 to his estranged wife, Wendy, together with a house at Daisy Hill. He left the residue as to one-quarter to his daughter Gina, one-quarter to his daughter Jodie and one-half to his son Stuart. There was a prior Will to the 2006 Will which was executed on 2 June 1994.
The deceased had an interest in bloodline trusts which were created by Wills. He had informed his son, in 2006, that he was worried about his 1994 Will because it disadvantaged his daughters. It is clear that as an interim measure he executed the 2006 Will. He then saw solicitors to draw up his new Will which incorporated the bloodline trust. That is the 2008 Will.
After the execution of that 2008 Will, it is clear that the international financial situation deteriorated and that Mr Fraser sold property to meet the defaults.
In April 2009 in a conversation with his son, he told his son that he could not afford to keep the unit he had at 420 Queen Street and had sold it; that due to the financial situation, his 2008 Will did not provide sufficient funds for his daughters because the net assets of the entities they were to receive were too low, and that he intended to revert back to the 2006 Will as it was fairer to his daughters.
He also stated that it did not matter that his friend Ms Poulsen was not mentioned in the 2006 Will because he would help her complete the purchase of a unit at Alderley in her name. He also indicated that he was going to finish his relationship with Ms Poulsen. Ms Poulsen has been served with the application and supporting material and is represented today at this hearing.
On 15 May 2009 Mr Fraser asked his son to prepare a fax to send to his solicitors, asking them to send him the original of the 2008 Will and the Letter of Wishes. On or about 20 May 2009 Mr Fraser called his son into his office so that his son could witness him cancelling his Will. Mr Fraser crossed out the signature on the last page of the 2008 Will and said to his son, “I have repudiated the Will and you have witnessed it”. He pointed to a drawer of the filing cabinet and said, “The 2006 Will is in there and that is now my current Will”. He told his son that Blanch holds his Will from 1994. His son asked whether he had discussed these actions with his solicitors, and his father replied “No”.
It is clear from the affidavit material and from the conversations set out in the affidavits that Mr Fraser intended to revert back to the 2006 Will. It is also clear that he did not understand that he could not revive or revert back to the 2006 Will.
He also discussed his 2008 Will with his daughter, Gina Murphy, in March 2009. In that conversation in March 2009 he indicated that he was concerned about the 2008 Will and stated that he was having to dispose of property and shares which were mentioned in the Will. He said he did not want to spend any more money on legal fees in getting a new Will drawn up. He stated that it was his intention to cancel the 2008 Will and revert back to the 2006 Will. He often referred to this 2006 Will as his interim Will until his affairs were more settled and he could arrange for a new Will. Ms Murphy deposes that in June 2009 Mr Fraser also said to her words to the effect that he had cancelled the 2008 Will and reverted back to the 2006 Will. He also referred to the fact that he was assisting Ms Poulsen in purchasing a unit in Alderley.
In January 2010 Mr Fraser told Ms Murphy that he had cancelled his 2008 Will and he had reverted back to his 2006 Will. This was the last time that Ms Murphy saw her father and he left her in no doubt that he believed that the 2006 Will was his current valid Will. This was because he talked about it as an interim Will and mentioned how it split the estate on a percentage basis between the three children.
It is clear that at various times in 2009 the deceased had told his son that he was thinking of making a new Will to replace that 2006 Will because his financial position was now more stable. He wanted to make Mr Stuart Fraser’s bloodline trust a five per cent owner of another unit in Queen Street and he had other plans in relation to the new Will.
Revocation
Turning then to the question of revocation. In general, a revocation clause revokes all prior Wills as if they had never existed and leaves no operation to any former Will. It is clear that in order to revoke a Will there must be some words or conduct on the part of the testator and an intention of the testator to revoke the Will.
If the signature of the testator is removed from the Will by burning, tearing or cutting it away, the entirety of the Will is revoked provided that the testator also had an intention to revoke it.
In Clarke and others v Scripps[1] the intention of the testator to revoke a Will was examined. It is also clear that the courts have recognised the notion of conditional revocation of Wills or, as it is often called, the doctrine of dependent relative revocation. This occurs in circumstances where the intention to revoke is conditional upon some matter being true or some event occurring. In Re Jones[2], Justice Buckley analysed the doctrine as follows:
[1](1852) 163 ER 1414.
[2][1976] Ch 200.
“Where a testator mutilates or destroys a will., the questions which arise, I think, are these. (1) did he do so with the intention of revoking it?
...
If there was no intention of revoking it, the act of destruction or mutilation will not affect a revocation.
If, however, the answer to that question is that the testator did have a revocatory intention, the second question arises. (2) If he had an intention of revoking the Will, was his intention absolute or qualified so as to be contingent or conditional? If it was absolute, that is the end of the investigation for the Act takes effect as a revocation.
If, however, it was qualified, the further question which arises is, (3) what was the nature of the qualification? The testator’s intention may have been dependent upon an intent to revive an earlier testamentary document founded on an erroneous belief that the cancellation of the later Will would have that effect as in Powell v Powell (1866) L.R.1P.& D. 209 Or it may have been wholly and solely dependent upon an intention to displace it by some new testamentary disposition.
....
If the testator’s intention is found to have been a qualified one, subject to some condition or contingency, the final question arises. (4) Has that condition or contingency been satisfied or occurred? If the condition or contingency to which the intention to revoke was subject has not been satisfied or occurred, the revocation is ineffective; if it has been satisfied or occurred, the revocation is effective
....
It is consequently necessary to pay attention to the circumstances surrounding the mutilation or destruction of the will to discover whether any intention that the testator then had of revoking the will was absolute or qualified, and if qualified, in what way it was qualified.”
The 1953 decision of Re Lindrea deceased[3] was a case of the doctrine of dependent relative revocation. In that case the deceased had two Wills and tore up the second Will and said he wanted his first Will carried out as originally planned. In deciding the application Dean J considered the doctrine and looked at the test which was to be applied. In particular, his Honour looked at the 1860 decision of Dickinson v Swatman[4] where Sir C Kreswell had looked at the law in these terms: “At all events, to make it a case of dependent relative revocation you would have to show that he did not intend to revoke the second Will unless by doing so the first would have been revived”. He said further, “This question may also be suggested - namely whether he would rather have no Will at all than the Will of 1851.”
[3][1953] VLR 168.
[4](1860) 4 Sw. & Tr. 205; 30 L.J. (P.M. and A.) 84 .
Dean J referred to the decision of Ward v Crook[5], which stated:
“… the principles that seem to be deductible therefrom are first, that the Court must be satisfied that the deceased did not intend to die intestate, and that he fully believed that his act of destruction would revive the earlier will, that that was the true reason or causa causans of his action, and secondly, that such intention, which is usually proved by statements made at the time, is still capable of being proved in other ways, though of course the evidence must be very strong and convincing where no declaration of intention was made at the time.”
[5](1896) 17 NSWR (B & P) 64.
Dean J continued:
“Although the statements of the doctrine will always include the requirement that the revocation must be solely referrable to the intention to set up another will, I have found no case in which this requirement has formed the basis of the decision other than Re Niven (supra). It probably originated in the distinction to which I have already adverted between the case of a testator who, notwithstanding his belief that the earlier will would be revived, intends to revoke his later will in any event, and one who intends to revoke the later will solely in order to set up the earlier one. This, I think, is the true test…”
His Honour then concluded:
“I think that I must hold the real purpose and the sole purpose of the revocation of the later Will was to set up the earlier one. This was the only purpose to which he at all adverted, and I am not able to attribute to him an intention that he desired the later will to be revoked whether or not the earlier Will was revived, even though he may die intestate … I hold that there was a conditional revocation only, and not a true animus revocandi, and that upon failure of the condition the second will remained unrevoked.”
Was the 2008 Will Revoked?
Accordingly, the question I must answer is whether the 2008 Will was revoked. It is clear that the evidence in the affidavits indicates that Mr Fraser was labouring under a clear mistake of law that he believed that, by revoking the 2008 Will, the 2006 Will would be revived.
I am satisfied from the affidavit material that the deceased was the type of man to be very concerned about how he would leave his estate and the legacy that he was providing for his children and grandchildren. That is clearly set out in the affidavit material and I am satisfied on the basis of that material.
It is also clear that Mr Fraser consistently talked about the contents of his Wills and his family members clearly understood what his intentions were at any given time.
It is also clear that he specifically indicated to his wife and his children that his 2006 Will was to be his Will in lieu of the 2008 Will.
I am satisfied on the basis of the affidavit material that the deceased was clearly not a man who wanted to die intestate.
It is clear that Ms Boyle in her affidavit states Mr Fraser had said to her he would rather be buried with his money than have some Judge decide how it should be spent. He had set up bloodline trusts in his 2008 Will to ensure that his lineal descendants would benefit from his estate. It was clear that he was adamant that his legacy was to be passed down to his children, grandchildren and their children. It is clear he did not want to be without a Will.
Whilst he was thinking about making another Will after cancelling the 2008 Will, he believed that the 2006 Will would carry him through in the meantime.
Given those circumstances, I am satisfied that there should be an order in the terms of the draft which has been initialled by me and placed with the file.
ORDERS
1. The court pronounces for the force and validity of the last Will of Huan Donald John Fraser, deceased, late of unit 113, 501 Admiralty Two Queen Street, Brisbane in the State of Queensland, dated 22 July 2008, a copy of which Will is exhibit SF1 to the affidavit of Stuart Donald John Fraser filed on 7 May 2010 in solemn form of law;
2. Probate of the Will dated 22 July 2008 in solemn form be granted to the deceased’s son and daughter, Stuart Donald John Fraser and Gina Margaret Murphy, named as executors and trustees in clause 3.1 of the Will, subject to any formal requirements of the Probate Registrar and subject to any outstanding compliance with the requirements of the UCPR;
3. The plaintiffs deliver up to the Probate Registrar the original Will of Huan Donald John Fraser, deceased, dated 22 July 2008;
4. The applicants’ costs of and incidental to the application be paid out of the estate of Huan Donald John Fraser on an indemnity basis;
5. The costs of the application today by Ms Poulsen be paid out of the estate on an indemnity basis as part of the administration of the estate.
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