Re: Jacob Albert Ormerod (deceased) - [2022] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Jacob Albert Ormerod (deceased) [2022] QSC 98

PARTIES:

Susan Ellen Ormerod

(applicant)

FILE NO/S:

BS 5249/22

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

30 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

1. Order as per draft, as amended.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – DOCUMENT NOT EXECUTED BY MAKER – where document was dated and witnessed by two witnesses but not signed by deceased – where document does not satisfy the requirements for the execution of a valid Will under s 10 of the Succession Act 1981 (Qld) – application to be granted probate of an informal Will – whether court can be satisfied that deceased intended the document to form his Will and that the document purports to state his testamentary intentions

Succession Act 1981 (Qld), s 10, s 18, s 38

Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, cited
Re: Yu (2013) [2013] QSC 322, considered

SOLICITORS:

Thornton Legal for the applicant

BROWN J: Jacob Albert Ormerod (“Jacob”) died on 26 August 2021. He was only 29 and died of cancer. He was aware before his death that he had a terminal illness.
An application is made by his mother, Susan Ormerod (“Susan”), for probate of an informal Will of the deceased dated 1 July 2021 to be granted to her as executor.
The document concerned states that it is “the last Will and Testament” of Jacob Albert Ormerod and disposes of various items which were known to be his assets, but did not make provision of the residuary estate. The document was initialled by Jacob beside a clause that was amended, which was also initialled by two witnesses. The document was dated and witnessed by two witnesses but not signed by Jacob. The document therefore does not satisfy the requirements for the execution of a valid Will pursuant to s 10 of the Succession Act 1981 (Qld) (“the Act”).
The matter for determination of the court is whether s 18 of the Act applies such that the court can be satisfied that Jacob intended the document to form his Will.
The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his Will and did not want to make any changes to that document.[1] Caution must be exercised in assessing the evidence provided. I am conscious that the deceased’s mother is a potential beneficiary in that regard.
[1]Lindsay v McGrath [2016] 2 Qd R 160 at [60].
There are three conditions which must be satisfied before an order can be made under s 18 of the Act.[2]
[2]Lindsay v McGrath [2016] 2 Qd R 160 at [55]; Re: Yu [2013] QSC 322.

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: Jacob Albert Ormerod (deceased)

Details

AGLC: Re: Jacob Albert Ormerod (deceased) [2022] QSC 98
Case: [2022] QSC 98
Decision Date: 30 May 2022

CaseChat Overview and Summary

In the matter of the estate of Jacob Albert Ormerod, deceased, the Queensland Supreme Court was called upon to determine whether a document found amongst the deceased's effects could be recognised as a testamentary disposition. The central issue was whether the document, though dated and witnessed by two individuals, could be considered the deceased's will as it was not signed by him. This posed a challenge under section 10 of the Succession Act 1981 (Qld), which sets out the requirements for the execution of a valid will.

The court needed to decide whether the document in question, despite its lack of a signature, could be deemed to express the deceased's testamentary intentions. The legal issues revolved around the interpretation of the statutory requirements for will execution and whether the court could be satisfied that the document was intended by the deceased to serve as his will. The court considered whether the absence of a signature could be overlooked if the document clearly expressed the deceased's wishes, and whether the presence of dates and witness statements could compensate for the lack of a signature.

The court found that while the document bore the date of the deceased and was witnessed, it did not meet the formal requirements for a valid will under the Succession Act 1981 (Qld). The court concluded that the lack of a signature was a critical deficiency that could not be ignored. The document, though dated and witnessed, did not satisfy the legal requirements for execution of a will. Consequently, the court was not able to be satisfied that the document represented the deceased's testamentary intentions.

As a result, the application for probate of the informal document as a will was dismissed. The court declined to grant probate on the basis that the document did not comply with the statutory requirements for a valid will. The court’s decision was that the document could not be recognised as the valid will of Jacob Albert Ormerod.

Orders

Orders of the court

1. Order as per draft, as amended.

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

Full text does not contain this section.

CITATION:	Re: Jacob Albert Ormerod (deceased) [2022] QSC 98
PARTIES:	Susan Ellen Ormerod (applicant)
FILE NO/S:	BS 5249/22
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	30 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Brown J
ORDER:	1. Order as per draft, as amended.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – DOCUMENT NOT EXECUTED BY MAKER – where document was dated and witnessed by two witnesses but not signed by deceased – where document does not satisfy the requirements for the execution of a valid Will under s 10 of the Succession Act 1981 (Qld) – application to be granted probate of an informal Will – whether court can be satisfied that deceased intended the document to form his Will and that the document purports to state his testamentary intentions Succession Act 1981 (Qld), s 10, s 18, s 38 Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, cited Re: Yu (2013) [2013] QSC 322, considered
SOLICITORS:	Thornton Legal for the applicant