Re Gloria May Limpus Deceased

[2013] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:

Re Gloria May Limpus Deceased [2013] QSC 66

PARTIES:

IN THE WILL OF GLORIA MAY LIMPUS Deceased

FILE NO/S:

BS 404/13

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2013

JUDGE:

Philippides J

ORDER:

1.   Subject to the formal requirements of the Registrar, probate in common form be granted to Rosemary Elisabeth Lawrence of 359 Old Goombungee Road, Cawdor Qld 4352 of the document dated 17 August 2012, being exhibit “A” to the affidavit of Rosemary Elisabeth Lawrence filed on 11 January 2013, as the true and original last will of the deceased.

2.   That the applicant’s costs of and incidental to this application be paid out of the estate.

CATCHWORDS:

PROBATE – instructions for will – whether documents should be admitted to probate – whether evidence of animus testandi

COUNSEL:

C Brewer for the applicant

SOLICITORS:

Chris Sheath & Associates for the applicant

Background

1. This is a common form probate application.  It was referred to a judge by the probate registrar as a result of a requisition dated 1 February 2013.

1. The requisition indicates that the registrar’s concern is that the document purporting to be the last will of the deceased is actually a signed Will Instruction Sheet: see exhibit A to the affidavit of Rosemary Lawrence. That document is indeed headed “Will instructions” and the registrar’s particular concern is as to whether the document was executed with a testamentary intention.

1. In relation to the document, the requisition states (in part):

“It is comprised of seven pages and page one is headed Will instructions.  It contains the deceased’s instructions in respect of her will.  On page six the deceased has executed those instructions in the presence of two witnesses and on page seven an appointment date for execution of the will is noted as being on 24 August 2012 at 2.00pm. … the deceased died … the day before the deceased was due to execute her will on 24 August 2012.

Pursuant to s 10 of the Succession Act 1981, a will must be in writing and be signed by the testator in the presence of two witnesses. This purported document satisfies those requirements. However, s 10(7) of the Succession Act 1981 states that the signature of the testator must be made with the intention of executing the will.”

Relevant legislation and principles

1. Section 10 of the Succession Act 1981 sets out the formal requirements for the execution of a will in Queensland. It relevantly provides:

“10 How a will must be executed

(1)This section sets out the way a will must be executed.

(2)A will must be—

(a) in writing; and

(b)signed by—

(i) the testator; or

(ii) someone else, in the presence of and at the direction of the testator.

(3)The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4)At least 2 of…