Re Garris - [2007] QSC 181

SUPREME COURT OF QUEENSLAND

CITATION:

Re Garris [2007] QSC 181

PARTIES:

In the Will of Stephen Charles Garris deceased

FILE NO:

BS 4153 of 2007

DIVISION:

Trial Division

PROCEEDING:

Applications

DELIVERED ON:

Order made 30 May 2007

Reasons given 20 July 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

30 May 2007

JUDGE:

Philippides J

ORDER:

That Letters of Administration with the Will of Stephen Charles Garris be granted to Suzanne Dawson

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – where will document signed by testator but not witnessed in accordance with s 10 of the Succession Act 1981 (Qld) – where s 18 of the Succession Act 1981 (Qld) permits the court to admit a document to probate if satisfied it embodies the testamentary intentions of the deceased, despite non-compliance with legislative requirements – whether the will document signed by the deceased embodies the deceased’s testamentary intention

Succession Act 1981 (Qld), s 9, s 10, s 18

Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, cited
Re Hodge, unreported, Moynihan J, Supreme Court of Queensland, delivered 14 February 2007, followed

Re Windus, unreported, Philippides J, Supreme Court of Queensland, delivered 15 March 2007, followed

COUNSEL:

Ms Treston for the applicant

SOLICITORS:

Smith and Stanton for the applicant

Philippides J: This is an application for letters of administration in respect of the Will of the deceased, Stephen Charles Garris, in circumstances where the Will was not executed in accordance with the provisions of the Succession Act1981 (Qld) (“the Act”).

The will document is dated 12 December 2006 and entitled “LAST WILL & TESTAMENT FOR STEPHEN CHARLES GARRIS”. It states:

“I, Stephen Charles Garris, being of sound mind & body do hereby leave my house and all possessions to Suzzanne Dawson 3 Palinga St Bracken Ridge. Suzzanne Dawson is to have ownership of all my assets and possessions. This document is to override any prior arrangements.

This being my last will and testament.”

The deceased died aged 35 years on 16 December 2006, by hanging himself. The application is brought by the deceased’s de facto spouse, Suzanne Dawson. The main asset in the deceased’s estate is a house worth between $300,000 and $350,000. There is also a car worth some $15,000 and a Sunsuper account of $4,325.66. The deceased had brought a personal injury claim in respect of injuries sustained in the workplace which had not settled prior to his death.

Legislativeframework

By s 10 of the Act, a will is required to be in writing and signed by the testator in the presence of two witnesses. The Will is in writing and is signed and dated by the deceased, but does not satisfy the attestation requirements of the Act, in that it is not witnessed.

Section 18 of the Act[1] permits the court power to admit…

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 Re Garris

Details

AGLC: Re Garris [2007] QSC 181
Case: [2007] QSC 181
Decision Date: 20 July 2007

CaseChat Overview and Summary

The case of Re Garris was heard in the Queensland Supreme Court. The deceased, Stephen Charles Garris, left behind a document that he had signed, but which was not witnessed in compliance with section 10 of the Succession Act 1981 (Qld). The dispute centred on whether the document, despite not meeting the formal requirements for a valid will, embodied the testamentary intentions of the deceased and thus could be admitted to probate under section 18 of the Act. Suzanne Dawson applied for Letters of Administration with the Will annexed, seeking to have the document recognised as the deceased's will.

The court needed to determine whether the unsigned document signed by the deceased expressed his testamentary intentions, and whether it could be admitted to probate under section 18 of the Succession Act. This involved a careful examination of the content of the document, the circumstances of its execution, and the extent to which it aligned with the deceased's known wishes and intentions. The court considered whether the statutory requirements for witnessing a will were strictly mandatory or if there were circumstances under which a court could exercise its discretion to admit a document to probate despite non-compliance.

The court found that the document in question did embody the testamentary intentions of the deceased, despite not being witnessed in accordance with the legislative requirements. The court was satisfied that the content of the document reflected the deceased's wishes and that there were no indications that he intended for the document to be anything other than his will. The court exercised its discretion under section 18 of the Succession Act, granting Letters of Administration with the Will annexed to Suzanne Dawson.

Accordingly, the court ordered that Letters of Administration with the Will of Stephen Charles Garris be granted to Suzanne Dawson.

Orders

Orders of the court

That Letters of Administration with the Will of Stephen Charles Garris be granted to Suzanne Dawson

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Re Garris [2007] QSC 181
PARTIES:	In the Will of Stephen Charles Garris deceased
FILE NO:	BS 4153 of 2007
DIVISION:	Trial Division
PROCEEDING:	Applications
DELIVERED ON:	Order made 30 May 2007 Reasons given 20 July 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	30 May 2007
JUDGE:	Philippides J
ORDER:	That Letters of Administration with the Will of Stephen Charles Garris be granted to Suzanne Dawson
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – where will document signed by testator but not witnessed in accordance with s 10 of the Succession Act 1981 (Qld) – where s 18 of the Succession Act 1981 (Qld) permits the court to admit a document to probate if satisfied it embodies the testamentary intentions of the deceased, despite non-compliance with legislative requirements – whether the will document signed by the deceased embodies the deceased’s testamentary intention Succession Act 1981 (Qld), s 9, s 10, s 18 Hatsatouris v Hatsatouris [2001] NSWCA 408, cited In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, cited Re Hodge, unreported, Moynihan J, Supreme Court of Queensland, delivered 14 February 2007, followed Re Windus, unreported, Philippides J, Supreme Court of Queensland, delivered 15 March 2007, followed
COUNSEL:	Ms Treston for the applicant
SOLICITORS:	Smith and Stanton for the applicant