Re Marshall

Case [2020] QSC 109

SUPREME COURT OF QUEENSLAND

CITATION:

Re Marshall [2020] QSC 109

PARTIES:

BRENDAN ROBERT ANDREW STEWART

(Applicant)

FILE NO/S:

SC 30 of 2020

DIVISION:

Trial

PROCEEDING:

Application
ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

12 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

27 March 2020

JUDGE:

Henry J

ORDERS:

1.          A grant of letters of administration upon intestacy be made to Brendan Robert Andrew Stewart in respect of the estate of Gayle Leigh Marshall, such grant being subject to the formal requirements of the Registrar.

2.          The balance of the application filed 22 January 2020 is dismissed.

3.          Liberty to apply on the giving of written notice, including to the Registrar, within five business days hereof.

4.          If the applicant seeks costs, written submissions in support thereof, not exceeding three pages, should be filed within no later than ten business days hereof.

CATCHWORDS:

SUCCESSION - MAKING OF A WILL – EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER CASES - where shortly after suffering a heart attack the deceased drafted an informal will – where the informal will purported to appoint her son to “be my power of eterny [attorney] to distribute my worldly posetions [possessions] or take care of my affairs if needed” – where the informal will declared that the deceased’s son was “aware of my wishes” – whether the informal will “purports to state the testamentary intentions of a deceased person” pursuant to s 18(1)(a) Succession Act 1981 (Qld) – whether the document indicates that the disposition of the deceased’s property is to take effect upon death – whether the document indicates what is to be done with the deceased’s property

SUCCESSION - MAKING OF A WILL – EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where s 18(3) Succession Act 1981 (Qld) permits recourse to extrinsic evidence to determine whether an informal will was intended to be the deceased’s will pursuant to s 18(2) Succession Act 1981 (Qld) – where s 33C Succession Act 1981 (Qld) permits recourse to extrinsic evidence to interpret a will where the will is meaningless, ambiguous on the face of the will, ambiguous in the light of surrounding circumstances – whether extrinsic evidence admissible under s 18(3) can be used to determine the threshold issue in s 18(1)(a), namely, whether the document “purports to state the testamentary intentions of a deceased person” – whether s 33C can be relied upon before a document purporting to be an informal will has been declared to form a will under s 18 Succession Act 1981 (Qld)

Powers of Attorney Act 1998 (Qld), s 19, s 51
Succession Act 1981 (Qld), s 10, s 18, s 33C

Bothwick v Mitchell [2017] NSWSC 1145, distinguished
Cook v Cooke (1866) LR 1 P & D 241, applied
Costa v The Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223, cited
Estate of Angius; Angius v Angius [2013] NSWSC 1895, cited
Estate of Kallidis; Kallidis v Kallidas [2012]…

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Details
AGLC
Re Marshall [2020] QSC 109
Case
[2020] QSC 109
Decision Date

CaseChat Overview and Summary

The case of Re Marshall involved a dispute over the validity of an informal document intended to be a will. The deceased, Gayle Marshall, had drafted the document shortly after suffering a heart attack, in which she appointed her son, Brendan Stewart, as her power of attorney to distribute her worldly possessions or take care of her affairs if needed. The document was found in a red envelope labelled "My Will Last Wishes" in a box containing the deceased's personal papers. The legal issues before the court were whether the document purported to state the testamentary intentions of the deceased and whether it indicated what was to be done with the deceased's property upon her death.

The court held that the document did purport to state the testamentary intentions of the deceased, despite its informal nature and grammatical errors. The court also found that the document indicated what was to be done with the deceased's property upon her death, as it appointed her son as her power of attorney to distribute her possessions or take care of her affairs. The court relied on section 18(3) of the Succession Act 1981 (Qld) to permit recourse to extrinsic evidence to determine whether the informal document was intended to be the deceased's will. The court held that the document did indeed form a will, and granted letters of administration upon intestacy to the son, Brendan Stewart. The court dismissed the balance of the application and ordered that if the applicant sought costs, written submissions in support thereof should be filed within ten business days.

Orders

Orders of the court

1. A grant of letters of administration upon intestacy be made to Brendan Robert Andrew Stewart in respect of the estate of Gayle Leigh Marshall, such grant being subject to the formal requirements of the Registrar.

2. The balance of the application filed 22 January 2020 is dismissed.

3. Liberty to apply on the giving of written notice, including to the Registrar, within five business days hereof.

4. If the applicant seeks costs, written submissions in support thereof, not exceeding three pages, should be filed within no later than ten business days hereof.

Background

Background to the litigation

Melissa was self-represented. In the course of submissions apparently calculated at resisting the application, she made factual allegations potentially adverse to the application, which I told her I could not act upon in the absence of evidence. However, she declined to request an adjournment of the matter in order to file affidavit evidence in the application. This has the consequence that Brendan’s evidence, sparse as it is, is uncontested.The facts After Ms Marshall’s death Brendan and his brother Jaycob searched her personal papers in a box at a property in Frankston, which Jaycob and Ms Marshall owned. They there found a small red envelope which contained the document. Brendan does not depose whether the envelope was sealed. It is exhibited. It appears from its state that the flap of the envelope was once sealed to the envelope by sticky tape which is still present. Brendan searched all of Ms Marshall’s paperwork in Victoria, with Jaycob’s assistance, and at her address in Queensland. No “other wills or documents appearing testamentary in nature” were located.[3] Brendan also contacted solicitors his mother had dealt with, but none held a will.[4][3]Ibid, [10].[4]Ibid. Turning in more detail to the document, the red envelope in which it was contained was labelled as follows, in handwriting in capital letters:“MY WILLLAST WISHES[5]It appears a “3” was originally written and then a “1” superimposed over the “3”.21/FEB[[5]] 2016”. Inside the envelope was a page from a spirax notebook. The page contained handwriting in capital letters, in apparently the same handwriting and pen as the handwriting on the envelope. The writing traversed both sides of the page. It stated:“23 BELAR RDTOOKGAROOKVIC 3941ON THIS DAY SUNDAY 21st FEBRUARY 2016I GAYLE MARSHALLDO #[[6]][6]The word “DO” is crossed out and a hash symbol appears next to it.BEING OF SOUND MIND TO[[7]] HEARBY GIVE MY SON BRENDAN STEWART TO TAKE CARE OF ALL OF MY AFFAIRS IF I CAN NOT DO THIS MYSELF.[7]Perhaps “TO” is an error and should read “DO”.I GIVE HIM NOT ONLY NEXT OF KIN BUT TO BE MY POWER OF ETERNY[[8]] TO DISTRIBUTE MY WORLDLY POSETIONS OR TAKE CARE OF MY AFFAIRS IF NEEDED.[8]The letters “N” and “Y” appear written over one another but it is tolerably clear that the phrase “power of attorney” was intended (or, perhaps a malapropism “power of eternity” with a corruption of “eternity” into “eterny”). It is unclear whether a full stop appears after “eterny”.HE IS AWARE OF MY WISHES AND I TRUST HIM TO TAKE CARE OF ANYTHING I CANT.THESE ARE MY WISHES AND THIS MY LAST WILL AND TESTOMENT.DATED ON THIS 21st FEB 2016.[Ms Marshall’s signature appears] D.O.B 7/2/66GAYLE MARSHALL23 BELAR ROADTOOKGAROOKVIC 3941.” The signature that appears on the document appears to be in the same ink as the rest of the writing and is the same as the signature on Ms Marshall’s driver’s licence.[9] The box in which the envelope was found also contained other belongings of the deceased. I infer the document was signed by Ms Marshall.[9]Ex BS-4.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 18 relevantly 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). ...” (emphasis added) Section 18(2) has the effect of saving informally executed wills if the court is satisfied the deceased person intended the document to form the person’s will. Whether a court is so satisfied involves consideration of a subjective fact – what the deceased intended. It may be that such a document does not, in an objective sense, meet all the legal requirements of a will. Quite apart from not being executed properly its language might be legally ineffective in validly implementing the alleged intentions of the deceased. That is an objective fact a court may of course have regard to in inferring whether the deceased person intended the document to form the person’s will. But many deceased persons are not lawyers. Depending on the circumstances, a court may well be satisfied a deceased person intended a document to form the person’s will, despite its legal flaws. If the court is so satisfied, then the document will then fall for consideration as the deceased’s will and question’s regarding the validity of its individual provisions and their construction will remain to be resolved as a subsequent exercise. So, for example, the court may rectify a will pursuant to s 33 of the Act if the will does not affect the testator’s intentions. It may also conduct a proceeding to interpret meaningless or ambiguous language in a will by reference to extrinsic evidence pursuant to s 33C of the Act. In carrying out such tasks it is well established interpretations which avoid the failure of the will’s operation and thus avoid intestacy are to be preferred.[13][13]Fell v Fell (1922) 31 CLR 268, 275–6 (Isaacs J).A threshold requirement However, the court does not get to those legal tasks unless it has first concluded the document forms a will. In the case of a document which is not properly executed it cannot form a will unless saved by s 18(2). It cannot fall for potential rescue by s 18(2) unless it is first established, pursuant to s 18(1)(a), that the document “purports to state the testamentary intentions” of the deceased person. If s 18(1)(a)’s threshold requirement is not met, the potential remedial mechanism of s 18(2) has no application.