Re Goward

[1996] QSC 247

IN THE SUPREME COURT

OF QUEENSLAND

No 9346 of 1996

Brisbane

Before the Hon. Justice Williams

[Re Goward]

IN THE WILL OF Anne Elizabeth Goward (also known as Annie Elizabeth Goward) formerly of 24 McMahon Street, Brighton in the State of Queensland but late of Ashworth House, Koberg Street, Zillmere, Brisbane in the State of Queensland, Pensioner, deceased.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 06/12/1996

CATCHWORDS: SUCCESSION - probate - ss. 9 and 10 of the Succession Act 1981 - will prepared for A signed by B, and will prepared for B signed by A ‑ on A's death held document prepared for her signature was not executed in substantial compliance with s.9 - probate refused - Queensland and authorities from other jurisdictions considered.

Counsel:Cross for applicant

Cumming for Public Trustee

Solicitors:Biggs and Fitzgerald for applicant

Official Solicitor to the Public Trustee

Hearing Date:   27 November 1996

IN THE SUPREME COURT

OF QUEENSLAND

No 9346 of 1996

Brisbane

IN THE WILL OF Anne Elizabeth Goward (also known as Annie Elizabeth Goward) formerly of 24 McMahon Street, Brighton in the State of Queensland but late of Ashworth House, Koberg Street, Zillmere, Brisbane in the State of Queensland, Pensioner, deceased.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 06/12/1996

This is an application by Dawn Elizabeth Webb for the determination of certain points of law and for consequential orders.  Two questions are posed for the court:

"(i)whether the last will and testament dated the sixth day of April, 1990 of Anne Elizabeth Goward ... has been executed in substantial compliance with the formalities described in s.9 of the Succession Act 1981 ...

(ii)whether the said will expresses the testamentary intention of Anne Elizabeth Goward".

If the court answered each of those questions affirmatively then the court was asked to pronounce for the force and validity of that will in solemn form of law and decree probate to Dawn Elizabeth Webb subject to the formal requirements of the registrar.
           The applicant is the granddaughter of the deceased.  On 8 March 1990 the applicant, her husband Ronald James Webb, and the deceased attended at the office of Biggs and Fitzgerald, solicitors, at Aspley and each gave instructions in relation to the drafting of a will.  The three returned on 6 April 1990 for the purpose of executing wills prepared by the solicitor.  Whilst each of the three was sitting in a reception area of the solicitor's office, the solicitor handed each of them their respective wills and asked each to check the same for accuracy.  Each of the three persons then proceeded to read the will handed to that person.  The applicant swears that she read her will and found it to be accurate.  She observed her grandmother, the deceased, reading the will given to her.  The deceased then asked the applicant to check her (that is the deceased's) will and handed it to her.  The applicant says that she checked that will by reading through it, and then read aloud its contents to the deceased.  The deceased confirmed to the applicant that the will contained "what she wanted".
           The three were then taken into the solicitor's office where each of the documents was executed and each attestation clause completed by the solicitor and his managing clerk who were present as required by law.
           Erroneously, and without anyone present apparently realising what occurred, the deceased placed her signature on the applicant's will, and the applicant placed her signature on the deceased's will.  That error was not discovered until after the death of the deceased on 26 September 1995.
           The will prepared for execution by the deceased, and erroneously executed by the applicant, provided in substance that the deceased's residence at 24 McMahon Street, Brighton, should pass to the applicant and the deceased's great-grandson, Garry Mitchell Webb, as tenants in common in equal shares and that the residue of her estate should pass to the applicant.  The will prepared for execution by the applicant, and erroneously executed by the deceased, provided in substance that the whole of the applicant's estate should go to her husband if he survived her for thirty days, failing which the whole of her estate should go to her son Garry Mitchell Webb.  Thus it can be seen that this was not a case of mutual wills being erroneously signed by the wrong party.  Here the substance of each will is so different that solutions devised in some cases, such as omitting a few words, will not leave a document, signed by the deceased, which reflects her true testamentary intention.
           The applicant seeks that the document entitled the last will and testament of Anne Elizabeth Goward and actually signed by the applicant be admitted to probate on the basis that it has been executed in substantial compliance with the requirements of the Act and expresses the testamentary intention of the deceased.
           Before leaving the facts it should be noted that there was an earlier will dated 13 December 1977, duly executed by the deceased and attested, which left the whole of the deceased's estate to "such of them my daughter Jean Elizabeth Swain and Dawn Elizabeth Webb (who is the daughter of my said daughter) as shall be living at my death and if both in equal shares."  Jean Elizabeth Swain died on 6 August 1981, and in consequence the applicant in the events which have happened is the sole beneficiary under the will of December 1977.
           Further, the applicant, in her capacity as sole beneficiary under the earlier will, does not oppose the court making the orders sought by the application.  Garry Mitchell Webb also has no objection to, and in fact consents to, the court making the orders sought by the application.
           The Public Trustee was named as executor in the will of December 1977 and as such was served with the material.  As the sole beneficiary under that earlier will does not oppose the making of the orders sought the Public Trustee did not formally oppose the application, but made submissions with a view to assisting the court in arriving at the proper resolution.
As noted above the applicant relies on the provisions of s.9 of the Succession Act, which is in these terms:-

"A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in the testator's presence and by the testator's direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that -

(a)the court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the court is satisfied that the instrument expresses the testamentary intention of the testator; and

(b)the court may admit extrinsic evidence including evidence of statements made at anytime by the testator as to the manner of execution of a testamentary instrument."

As the statute must be read as a whole, it is desirable to refer to s.10 before considering the scope of operation of s.9. Section 10 concentrates attention on the signature to a will and essentially provides:-

"(1)a will, so far only as regards the position of the signature of the testator on the will, is not invalid if the signature is so placed at, after, following, under, beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as the testator's will.

(2)without limiting the generality of sub-s.1, the validity of a will is not affected by reason of the fact -

(a)that the signature of the testator does not follow, or is not immediately after, the foot or end of the will; or

...

(3)the signature of the testator on a will does not operate to give effect to a disposition or direction that is underneath or follows that signature, or that is inserted in the will after that signature is made.

(4)in this section, reference to the signature of the testator shall, in relation to a will signed by a person by the direction of a testator, be read as references to the signature of that person."

I have not quoted in full the provisions of sub-s.(2); the omitted provisions deal with the consequences of the testator's signature being located at a particular place on the face of the will.
           As observed by King CJ in Estate of Williams (1984) 36 SASR 423 at 425 "execution and signature are, of course, not synonymous." Signature by the testator is but one of the formalities of execution required by s.9. The "substantial compliance" qualification can therefore apply to the aspect of execution involving the testator's signature. But given the express references in ss. 9 and 10 to the testator's signature, I am of the view that some signature or mark placed on or directly associated with the document by or on behalf of the testator is required. The "substantial compliance" qualification could well apply in factual situations such as that considered in the Goods of Mann (1942) P. 146 - the signature was on the envelope in which the unsigned but otherwise validly executed will was placed.
Prior to the inclusion of the proviso in s.9 the courts had liberally construed what constituted a signature (see the text and cases referred to in Williams and Mortimer Executors Administrators and Probate at 169-170) but total absence of signature had been held to be an incurable defect (Goods of Hunt (1875) LR 3 P & D 250 and Estate of Meyer (1908) P. 353).
Most of the Queensland cases in which reliance has been placed on the proviso in s.9 have been concerned with the attestation clause. The questions for the court have generally been whether or not there was in the circumstances "substantial compliance" with attestation formalities and whether the "instrument expresses the testamentary intention of the testator". I had occasion in re Nicholls (1996) 1 Qd.R. 179 to refer to most, if not all, of the relevant cases decided prior to August 1995. I will not repeat that list here. It may well be, as some academic writers have contended, that Queensland Judges have been somewhat strict in determining what amounts to "substantial compliance, but nevertheless those cases indicate the circumstances in which the court has been prepared to excuse strict non-compliance with the statutory provisions as to attestation. It may well be that the more recent trend is to place greater emphasis on the question whether the document expresses the testamentary intention of the deceased, but that alone will not be decisive here.
           All of the situations considered in the cases collected in Nicholls involved a document signed by the deceased.  The only case in Queensland involving the absence of a signature appears to be the decision of Demack J. in In the Will of F.D. Thomson  (Rockhampton No. 161 of 1994, judgment 2 February 1995).  The facts were remarkably similar.  Husband and wife each gave instructions for the preparation of a will.  When they later attended at the office of the Public Trustee to execute their respective wills, through inadvertence they each signed the other's will.  His Honour was prepared to assume that the document prepared for execution by the husband expressed his testamentary intention.  It was, however, signed by his wife.  The learned judge said in the course of his reasons:-

"It would seem to me ... that this document clearly expresses the testamentary intention of the deceased. It seems also likely that as the same two witnesses to the signatures appear on each document, that the parties were all present together when the documents were signed so that what was done was done in the presence of two witnesses who were present at the same time and those two witnesses are described as public servants. What is lacking is any signature of Mr Thomson on the document which expresses his testamentary intention. On that document his wife's signature appears and his signature appears on her document. The court is given wide powers under s.9 to admit to Probate a testamentary instrument executed in substantial compliance with the formalities prescribed where the document expresses the testamentary intention of the testator. It seems to me that s. 9 and s.10 together make it clear that there must be some signature or other mark of the testator on the actual document to indicate acceptance of its contents.

Section 10 sets out a range of circumstances about where the signature may appear and these permit the Will to be valid. The whole tenor of s.10 is that there must be some kind of acceptance that is recorded on the document and that acceptance should be in the form of a signature of some kind. Consequently, it seems to me that the document that was signed on 8 December cannot in any way be admitted to Probate because the non-compliance with the provisions of s.[9] is so fundamental that the Will must be treated as a nullity."

With respect, I agree with that approach. Particularly when read with s.10, it is a fundamental requirement of s.9 that there be some signature associated with the document evidencing the deceased's adoption of it. Once that position is reached the court can have recourse to the substantial compliance provisions of s.9, and the facilitative provisions of s.10, in order to determine to what extent there is a valid testamentary instrument. But where there is no signature there can be no valid testamentary instrument.
           In coming to that conclusion I am comforted by the fact that the well respected academic author on succession law Mr W. A. Lee (Manual of Queensland Succession Law, 4th Edition, para.315) is of the same view. Though he generally appears to advocate a more liberal application of s.9 than has hitherto been adopted by Queensland Judges, it does not extend to this situation: "It sometimes happens that a person by mistake executes someone else's will. Usually the mistake occurs when a husband and wife execute their wills at the same time but they get mixed-up in the signing process. The better view is that such execution is defective, since the testator could hardly be said to have known and approved of the contents of the will which was actually executed, and further could hardly have intended to execute that instrument at all."
           Counsel for the applicant in this case raised two specific arguments which must be addressed. 
           It was argued that as the deceased verbally acknowledged that the document prepared for her execution reflected her testamentary intention that was sufficient to overcome the absence of a signature.  That cannot be so.  If that argument was accepted it would follow that in all cases an oral declaration of testamentary intention clearly and specifically proved would be sufficient. 
           The force of that was appreciated by counsel because his second submission was that principally relied upon.  He argued that in this case not only was there a clear oral statement of testamentary intention, but there was the placing of the deceased's signature on a document in the belief that such signature assented to and confirmed the stated oral intention.  It was said that the facts here were somewhat analogous to those considered in the Goods of Mann.  Whilst it must be acknowledged there is some force in the argument, ultimately the question must be resolved by a consideration of the statutory requirements.  Fundamentally there has been no compliance with the statutory requirement that the document said to be the testamentary instrument bears in some form the signature of the deceased.  There is not, as there was in Mann, some signature associated directly with the document in question.  Though the consequences of a failure to comply with formalities are now less draconian than they were in the past, nevertheless there must be a signature of the deceased on or associated with the document before it becomes that persons testamentary instrument.
           Somewhat similar problems have arisen in other jurisdictions, and it is true to say that in some instances judges have found a way of admitting one of the documents in question to Probate.
           Powell J. of the New South Wales Supreme Court was confronted with such a problem in re Gillespie (114668 of 1991, 25 October 1991). Mirror wills were prepared for husband and wife, but through inadvertence each signed the document intended for signature by the other. On the husband's death probate was sought of the document prepared for execution by the deceased but which had in fact been executed by his wife. Section 18A of the relevant New South Wales legislation is much broader than s.9 of the Queensland Act; any deficiency in the formal requirements of a valid will can be overcome if the court is satisfied as to the deceased's intention that the document in question should constitute his or her will. In other words there is no necessity for "substantial compliance". Nevertheless Powell J. was not prepared to act under that section in granting probate of the document in question. Rather he relied on s.29A of the New South Wales Act which empowered the court to rectify a document "so as to carry out the testator's intentions". That enabled His Honour to order that the document in fact signed by the deceased be rectified so that it conformed in all respects with the document originally intended to be signed by the deceased; all the substantive parts of the document signed by the deceased were deleted and the provisions of the other document were inserted.
Section 31 of the Queensland Act gives this court a limited power to rectify wills (re Allen (1988) 1Qd.R.1 and re Hess (1992) 1Qd.R.176), but clearly the power so conferred is not as wide as that given by the New South Wales legislation. The reasoning adopted by Powell J. strongly suggests that he would not have resolved the matter as he did if he were obliged to apply Queensland Law.
           A similar factual situation to that under consideration here has come before South Australian Courts on a number of occasions, and applying the relevant statute law the document intended to be signed by the deceased has been admitted to probate.  (Estate of Blakely (1983) 32 SASR 473, Estate of Williams (1984) 36 SASR 423, Estate of Sutton (1989) 51 SASR 150 and Estate of Roberts (1985) 38 SASR 324). Section 12(2) of the South Australian legislation provides that a document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required, be deemed to be a will of the deceased person if the Supreme Court is satisfied that there can be no reasonable doubt that the testator intended the document to constitute his will. In Williams it was expressly held that s.12(2) applied where there was no signature on that document; if the intention requirement was satisfied the instrument could be admitted to probate. Such a provision goes well beyond ss.9, 10 and 31 of the Queensland Legislation, and clearly the South Australian Supreme Court has a much wider power to grant probate in circumstances such as exist here. In consequence I find the South Australian authorities of no real assistance given the terms of the Queensland Legislation.
           The Western Australian Legislation is almost identical with the South Australian, and in consequence the decision of the West Australian Supreme Court in the Matter of the Will of Lobato Shields v. Caratozzolo (1991) 6 WAR 1 is similarly of no assistance to me.

           I was also referred by counsel for the applicant to Guardian Trust Executors Company of New Zealand Limited v. Inwood (1946) NZLR 614, a decision of the New Zealand Court of Appeal, re Brander (1952) 4 D.L.R. 688, re Wagner (1959) 20 D.L.R. (2d) 770 and re the Application of Brown; Estate of Springfield (1991) 23 NSWLR 535. Again each of those decisions was based on specific legislation and I find nothing in the reasoning therein which causes me to doubt the approach which should be followed under the Queensland legislation.
The document which in fact bears the deceased's signature does not express her testamentary intention and cannot therefore be admitted to Probate; indeed no application was made in that regard. The document which was intended to constitute the deceased's last will and testament is not signed by her, nor is there a signature by her associated with that document, and in consequence I am not satisfied that there has either been compliance or substantial compliance with the formalities prescribed by s.9 of the Succession Act 1981; that document cannot be admitted to Probate.
           In all the circumstances I answer the questions posed by the application as follows:-

(i)the document headed last will and testament dated sixth day of April 1990 of Anne Elizabeth Goward and signed by Dawn Elizabeth Webb has not been executed in substantial compliance with the formalities described in s.9 of the Succession Act 1981 notwithstanding the signature of Anne Elizabeth Goward placed on the document described as the last will and testament of Dawn Elizabeth Webb on the sixth day of April 1990;

(ii)the contents of the document headed last will and testament of Anne Elizabeth Goward dated sixth day of April 1990 and signed by Dawn Elizabeth Webb reflect the testamentary intention of Anne Elizabeth Goward as at sixth April 1990.

Further I refuse to pronounce for the force and validity of the will of Anne Elizabeth Goward dated sixth April 1990.