Re Gew - [2020] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Re GEW [2020] QSC 119

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

30 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2020

JUDGE:

Lyons SJA

ORDER:

1. Order as per amended draft

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE A WILL – where an application for probate of an Informal Will pursuant to section 18 of the Succession Act 1981 (Qld) was brought – where the Informal Will was a suicide note made by the deceased shortly before he ended his life – where the Informal Will was not signed or witnessed but was in the deceased’s handwriting, was in an envelope addressed to the applicant (his eldest daughter) dated 1 July 2019 and was found with the deceased’s body – where the deceased was survived by his second wife (the first respondent) from whom he had separated, as well as three children (two from his first marriage and one from his second) – where the first respondent was the sole executor and beneficiary of a Will that the deceased made in 2001 – where the deceased had discussed updating his Will with the applicant and had made it clear to her that he wanted to make her the executor, and that his three children were to be the beneficiaries – where the deceased had also told his second daughter that he was giving the applicant the responsibility to divide the estate between the three children – whether the deceased intended his note to form his Will – whether the deceased’s note purported to embody his testamentary intentions – whether the evidence satisfies the Court that either at the time of the document, or some later time, the deceased, by some act or words, demonstrated that it was his intention that the document should, without more on his part, operate as his Will – whether at the time the handwritten note was made the deceased retained testamentary capacity, and knew and approved of its contents – whether the Informal Will ought to be admitted to probate pursuant to s 18 of the Succession Act

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

Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
Lindsay v McGrath [2015] QCA 206, cited

Re Carrigan [2018] QSC 206, cited

COUNSEL:

C Brewer for the applicant
J Otto for the first respondent
L Nevison for the second respondent

SOLICITORS:

Thyne McCartney for the applicant
Robbins Watson Lawyers for the first respondent
Parsons Law for the second respondent

HER HONOUR (delivered ex tempore): This is an application for probate of an Informal Will pursuant to section 18 of the Succession Act 1981 (Qld). The Will is a suicide note which was made by the deceased shortly before he ended his life, and it was found with his body. The note is not signed…

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 Gew

Details

AGLC: Re Gew [2020] QSC 119
Case: [2020] QSC 119
Decision Date: 30 March 2020

CaseChat Overview and Summary

The case of Re Gew involved an application for the probate of an Informal Will made by a deceased person, Geoffrey Gew, who left behind his handwritten suicide note. The note was addressed to his eldest daughter, the applicant, and dated 1 July 2019. It was found with his body. The deceased had separated from his second wife, the first respondent, who was the sole executor and beneficiary of a Will made by the deceased in 2001. The deceased had previously discussed updating his Will with the applicant and expressed his intention for her to be the executor and for his three children to be the beneficiaries. The deceased had also informed his second daughter that he was assigning the applicant the responsibility of dividing the estate between the three children.

The legal issues before the court were whether the deceased intended his note to be his Will, if the note embodied his testamentary intentions, and whether the deceased, by some act or words, demonstrated that it was his intention for the document to operate as his Will. Additionally, the court needed to determine whether the deceased had testamentary capacity at the time the note was written and whether he knew and approved of its contents. The final issue was whether the Informal Will should be admitted to probate pursuant to section 18 of the Succession Act 1981 (Qld).

The court concluded that the deceased intended the note to be his Will and that it embodied his testamentary intentions. The court found that the evidence satisfied it that the deceased, by his actions and words, demonstrated that it was his intention for the document to operate as his Will. The court also found that the deceased had testamentary capacity at the time the note was made and that he knew and approved of its contents. Consequently, the court determined that the Informal Will should be admitted to probate.

The final order of the court was to admit the Informal Will to probate as per the amended draft.

Orders

Orders of the court

1. Order as per amended draft

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Re GEW [2020] QSC 119
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	30 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2020
JUDGE:	Lyons SJA
ORDER:	1. Order as per amended draft
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE A WILL – where an application for probate of an Informal Will pursuant to section 18 of the Succession Act 1981 (Qld) was brought – where the Informal Will was a suicide note made by the deceased shortly before he ended his life – where the Informal Will was not signed or witnessed but was in the deceased’s handwriting, was in an envelope addressed to the applicant (his eldest daughter) dated 1 July 2019 and was found with the deceased’s body – where the deceased was survived by his second wife (the first respondent) from whom he had separated, as well as three children (two from his first marriage and one from his second) – where the first respondent was the sole executor and beneficiary of a Will that the deceased made in 2001 – where the deceased had discussed updating his Will with the applicant and had made it clear to her that he wanted to make her the executor, and that his three children were to be the beneficiaries – where the deceased had also told his second daughter that he was giving the applicant the responsibility to divide the estate between the three children – whether the deceased intended his note to form his Will – whether the deceased’s note purported to embody his testamentary intentions – whether the evidence satisfies the Court that either at the time of the document, or some later time, the deceased, by some act or words, demonstrated that it was his intention that the document should, without more on his part, operate as his Will – whether at the time the handwritten note was made the deceased retained testamentary capacity, and knew and approved of its contents – whether the Informal Will ought to be admitted to probate pursuant to s 18 of the Succession Act Succession Act 1981 (Qld), s 10, s 18 Briginshaw v Briginshaw (1938) 60 CLR 336, cited Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Lindsay v McGrath [2015] QCA 206, cited Re Carrigan [2018] QSC 206, cited
COUNSEL:	C Brewer for the applicant J Otto for the first respondent L Nevison for the second respondent
SOLICITORS:	Thyne McCartney for the applicant Robbins Watson Lawyers for the first respondent Parsons Law for the second respondent