Re Heidrich (dec'd)

[2023] QSC 70

SUPREME COURT OF QUEENSLAND

CITATION:

Re Heidrich (dec’d) [2023] QSC 70

PARTIES:

IN THE WILL OF CHRISTINA JANE HEIDRICH (deceased)

DAVID GREGORY HEIDRICH

(applicant)

FILE NO:

BS No 3710 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

6 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDERS:

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.

2. It is declared pursuant to s 18 of the Succession Act 1981 (Qld) that the informal will signed by Christina Jane Heidrich dated 23 May 2022, a copy of which is exhibit “DGH-2” to the affidavit of David Gregory Heidrich, is her last will.

3. It is declared that the Notice of Intention to Apply for a Grant advertised in the Queensland Lawyer on 14 October 2022 and served on the Public Trustee on 11 November 2022 satisfies r 599 of the Uniform Civil Procedure Rules 1999 (Qld).

4.   Subject to the formal requirements of the Registrar, letters of administration with the will be issued to the applicant David Gregory Heidrich as administrator.

5.   The applicant’s costs of this application on the indemnity basis be paid out of the deceased’s estate.

CATCHWORDS:

SUCCESSION – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where the deceased left an informal will – where the deceased then committed suicide – whether the court should declare the informal will is the last will of the deceased – whether letters of administration should be granted to the applicant

Succession Act 1981 (Qld), s 10, s 18
Uniform Civil Procedure Rules 1999 (Qld), r 489, r 599, r 603

Banks v Goodfellow (1870) LR 5 QB 549, cited
Frizzo v Frizzo [2011] QSC 107, cited
Frizzo v Frizzo [2011] QCA 308, cited
Macey v Finch; Estate of Donald Munro [2002] NSWSC 933, followed
Proctor v Klauke [2011] QSC 425, followed
R v Spencer (deceased) [2015] 2 Qd R 435, followed
Re: Estate of Carrigan (deceased) [2018] QSC 206, followed
Read v Carmody [1998] NSWCA 182, cited

SOLICITORS:

Klar Legal, solicitors for the applicant

1. The applicant, David Gregory Heidrich, applies for letters of administration of an informal will made by his wife, Christina Jane Heidrich, who is now deceased.

   Background

2. Mr Heidrich and Mrs Heidrich married in 2001 and produced two daughters.

3. The family lived in Chermside.

4. Mrs Heidrich suffered from depression.

5. Mrs Heidrich made two informal wills in the years before her death, although the wills were not discovered until well after Mrs Heidrich died.  The first of these earlier wills is dated 28 March 2018 and the second is dated 17 May 2021.  Both are clearly intended to be testamentary documents.  Both identify family members including Mr Heidrich.  Both evidence the expression of logical thought processes relevant to the disposition of her estate.

6. On 24 May 2022, Mrs Heidrich committed suicide at the family home.  Located nearby was a document which Mr Heidrich, the applicant, seeks to have declared as Mrs Heidrich’s last will (the will). 

7. The will was left on the kitchen bench next to the stove.  It is in hand writing which has been identified as Mrs Heidrich’s.  It is addressed to Mr Heidrich and the two children and commences:  “I didn’t want to leave you but after five years of fighting I have lost my battle (5 years) with depression.  I believe I have tried everything, but nothing seems to have helped.  I am sorry I am so useless.  Forgive me”.

8. The inevitable inference, and one that I draw, is that Mrs Heidrich made the will shortly before she committed suicide and left it in a place where it would be found and acted upon.

9. The will purports to be a testamentary instrument.  It identifies property owned by Mrs Heidrich and it purports to leave that property to various beneficiaries.  It is signed by Mrs Heidrich and above her signature appear the words:

   “This is my last will and testament.  Christina Jane Heidrich.”

10. Dr Andrew Springfield is a medical practitioner in general practice in Everton Park.  He has known Mrs Heidrich since 2003 and was her general practitioner for most of the period between 2003 and her death.

11. Dr Springfield swore an affidavit exhibiting a detailed report as to Mrs Heidrich’s mental health and treatment history.  In his affidavit, and by reference to his report, he expressed this opinion:

    “As stated in my report exhibited to this affidavit, there was nothing about the mental health issues suffered by Christina nor anything of an organic or other disturbance to her abilities which would have affected her ability to consider her responsibilities and freely consider and make decisions concerning her estate. Specifically, there was nothing that impacted on her capacity to make a Will either at the time of her will made in May 2022 or at the time of her previous wills made in May and October 2021 and in March 2018.”

    Statutory provisions/legal principles

12. The application is made on the basis that it be determined without oral hearing.  Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for such a procedure:

    “489   Proposal for decision without oral hearing

    (1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

    (2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—

    (a)     under rule 491, the court considers it inappropriate to do so; or

    (b)     under rule 494, the respondent requires an oral hearing; or

    (c)     under rule 495, the applicant abandons the request for a decision without an oral hearing; or

    (d)     the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

13. The structure of r 489 is that:

    1.jurisdiction to proceed without oral hearing is granted;

    2.the jurisdiction is enlivened by a proposal by an applicant;

    3.the proposal must be accepted in the absence of the features in r 489(2)(a)-(d).

14. Section 10 of the Succession Act 1981 prescribes the requirements for the execution of a valid will. Importantly here, the will must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time who must also attest and sign the will in the presence of the testator. Here, the will is not witnessed.

15. Section 18 of the Succession Act provides that the court may dispense with formal execution requirements. Section 18 provides:

    “18     Court may dispense with execution requirements for will, alteration or revocation

    (1)This section applies to a document, or a part of a document, that—

    (a)     purports to state the testamentary intentions of a deceased person; and

    (b)     has not been executed under this part.

    (2)The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

    (3)In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—

    (a)     any evidence relating to the way in which the document or part was executed; and

    (b)     any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

    (4)Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

    (5)This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

16. It has been held that the discretion to dispense with due execution arises where:

    (a)there is a document;

    (b)the document purports to state the deceased’s intention as to how, voluntarily, the testator’s property is to pass after death; and

    (c)the document constitutes the will of the deceased; that it is to operate upon death.[1]

    [1]Macey v Finch; Estate of Donald Munro [2002] NSWSC 933 and Proctor v Klauke [2011] QSC 425.

17. As already observed, Mrs Heidrich committed suicide.  The will was made a short time before she did so.  She had battled depression for a number of years.  That raises questions as to her testamentary capacity.  There is no presumption of testamentary capacity in relation to an informal will and the onus of proving capacity is upon Mr Heidrich.[2]

    Consideration

    [2]Re: Estate of Carrigan (deceased) [2018] QSC 206 following Re Spencer (deceased) [2015] 2 Qd R 435.

    Application without oral hearing

18. Rule 489(2) of the UCPR provides that where an application is made for a decision without an oral hearing, the court must decide the application without oral hearing unless one of the circumstances in r 489(2)(a) or (b) or (c) or (d) is present. None are, and so I will decide the application without oral hearing.

    Orders under s 18

19. There are relevantly four elements:

    1.Is there testamentary capacity? (element 1)

    2.Is there a document? (element 2)

    3.Does the document state Mrs Heidrich’s intention as to how her property would pass after death? (element 3)

    4.Is the document testamentary in that it is only to operate upon death and is intended to constitute Mrs Heidrich’s will? (element 4)

    Element 1 - Testamentary capacity

20. I accept the evidence of Dr Springfield that Mrs Heidrich had the capacity to understand what comprised her estate and to consider logically who might have legitimate claims to it.[3]

    [3]Banks v Goodfellow (1870) LR 5 QB 549, Read v Carmody [1998] NSWCA 182 and Frizzo v Frizzo [2011] QSC 107 approved Frizzo v Frizzo [2011] QCA 308.

21. I find that Mrs Heidrich had testamentary capacity when she made the will.

    Element 2

22. There is a document.  It is the will.

    Element 3

23. The document clearly evidences Mrs Heidrich’s intentions as to how her property is to pass after her death.  She identifies the property.  She identifies beneficiaries and she explains in the will how the property is to be distributed.

    Element 4

24. The will manifests an intention by Mrs Heidrich that it ought operate upon her death and is to constitute her will.  In particular, the document is described as “This is my last will and testament”.  It is clearly made in contemplation of her immediate death.

    Should letters of administration be granted to Mr Heidrich

25. As the trustee of the residuary estate, Mr Heidrich has priority to a grant of letters of administration.[4]  There are no apparent reasons as to why he ought not have the benefit of a grant.  It is appropriate to make a grant in his favour.

    [4]Uniform Civil Procedure Rules 1999, r 603.

    Advertising

26. The applicant seeks a declaration that he advertised in compliance with r 599 of the Uniform Civil Procedure Rules 1999.

27. The advertisement complies except that it refers to a grant of probate rather than a grant of letters of administration.  The error is of no material consequence.  The declaration should be made.

28. The applicant applies for his costs on the indemnity basis to be paid from the estate.  This is the usual practice and there is no reason to depart from it.  The application was successful and it was necessary for the orderly administration of Mrs Heidrich’s estate.

29. The orders are:

    1.Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.

    2.It is declared pursuant to s 18 of the Succession Act 1981 (Qld) that the informal will signed by Christina Jane Heidrich dated 23 May 2022, a copy of which is exhibit “DGH-2” to the affidavit of David Gregory Heidrich, is her last will.

    3.It is declared that the Notice of Intention to Apply for a Grant advertised in the Queensland Lawyer on 14 October 2022 and served on the Public Trustee on 11 November 2022 satisfies r 599 of the Uniform Civil Procedure Rules 1999 (Qld).

    4.Subject to the formal requirements of the Registrar, letters of administration with the will be issued to the applicant David Gregory Heidrich as administrator.

    5.The applicant’s costs of this application on the indemnity basis be paid out of the deceased’s estate.