Re Sheehan - [2021] QSC 89

SUPREME COURT OF QUEENSLAND

CITATION:

Re Sheehan [2021] QSC 89

PARTIES:

In the Will of STANISLAUS KEVIN SHEEHAN, deceased

FILE NO/S:

BS 1974 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders made on 15 March 2021, reasons delivered on 5 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2021

JUDGE:

Burns J

ORDER:

1. Pursuant to s 18 of the Succession Act 1981 (Qld), the will signed by Stanislaus Kevin Sheehan (the deceased) on 2 November 2020 (the Will) is the last will of the deceased.

2. Subject to the formal requirements of the Registrar, a grant of probate of the copy of the Will that is exhibit 1 in this proceeding be made to the applicants, Matthew Paul Loveday and Noel James Sheehan, as executors.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – application for probate of an informal will – where the deceased was admitted to hospital – where the will was executed and witnessed during the COVID-19 pandemic – where the will was executed and witnessed by audio visual means – where the testator omitted to sign one page of the will and a schedule forming part of the will – whether the document signed by the deceased should operate as his will – whether probate of the will should be granted

COVID-19Emergency Response Act 2020 (Qld) , s 9
Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld), reg 7, reg 17

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

Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, cited
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed
Frizzo v Frizzo [2011] QCA 308, cited
Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
Re Kelsall [2016] VSC 724, cited
Konui v Tasi [2015] QSC 74, cited
Lindsay v McGrath [2016] 2 Qd R 160, followed
Massey & Ors v Smith & Ors [2015] QSC 86, cited
Re Prien [2019] VSC 47, cited
Re Spencer [2015] 2 Qd R 435, cited

COUNSEL:

C A Brewer with P J Coore for the applicants, appearing pro bono

SOLICITORS:

Cornford-Scott Lawyers Pty Ltd for the applicants, acting pro bono

This is an application for probate of an informal will or, expressed another way, a will that was not executed in accordance with the formal requirements of the governing legislation.
The deceased, Mr Stan Sheehan, died at the Gold Coast University Hospital on

1 December 2020 leaving an estate in Queensland. He was 70 years of age.
On 2 November 2020, he attempted with the help of his solicitors to execute a will from his hospital bed in a way that took advantage of subordinate legislation promulgated earlier last year in response to the COVID-19 pandemic. The altered regime under that legislation allowed…

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 Sheehan

Details

AGLC: Re Sheehan [2021] QSC 89
Case: [2021] QSC 89
Decision Date: 5 May 2021

CaseChat Overview and Summary

The case of Re Sheehan involved an application for the probate of an informal will executed during the COVID-19 pandemic. The deceased, Stanislaus Kevin Sheehan, was admitted to hospital and executed the will and accompanying schedule via audio-visual means, with the witnesses also participating remotely. The will was incomplete as the deceased failed to sign one page and the schedule. The applicants, Matthew Paul Loveday and Noel James Sheehan, sought to have the document recognised as the deceased's will and to be granted probate.

The court had to determine whether the document signed by the deceased should operate as his will and whether probate should be granted. The legal issues revolved around the execution of the will, the informality of the document, and whether the court could invoke its remedial power under s 18 of the Succession Act 1981 (Qld) to recognise the document as the deceased's will. The court examined whether there was a document purporting to state the deceased's testamentary intentions, whether the deceased intended the document to form his will, and if the evidence established this intention on the balance of probabilities.

The court held that the document in question did embody the deceased's testamentary intentions and that the deceased intended it to operate as his will. The court was satisfied that the document was the deceased's last will, despite the informality of its execution and the omission to sign one page and a schedule. The court found that the evidence, when evaluated according to the Briginshaw principles, demonstrated that the deceased intended the document to be his final will. The court invoked its remedial power under s 18 of the Succession Act 1981 (Qld) to recognise the document as the deceased's will and ordered that probate be granted to the applicants.

Pursuant to s 18 of the Succession Act 1981 (Qld), the will signed by the deceased on 2 November 2020 is recognised as his last will. Subject to the formal requirements of the Registrar, a grant of probate of the copy of the will that is exhibit 1 in this proceeding is made to the applicants, Matthew Paul Loveday and Noel James Sheehan, as executors.

Orders

Orders of the court

1. Pursuant to s 18 of the Succession Act 1981 (Qld), the will signed by Stanislaus Kevin Sheehan (the deceased) on 2 November 2020 (the Will) is the last will of the deceased.

2. Subject to the formal requirements of the Registrar, a grant of probate of the copy of the Will that is exhibit 1 in this proceeding be made to the applicants, Matthew Paul Loveday and Noel James Sheehan, as executors.

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

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.” When deciding whether the remedial power under s 18 of the Act may be called in aid, the court will be interested in three things: first, whether there was a document; second, if so, did the document purport to embody the testamentary intentions of the deceased; and third, did the deceased intend that the document would operate as his or her last will.[4] In the last-mentioned respect, there will need to be satisfactory evidence to demonstrate (either at the time the document is brought into existence or at some later time) that the deceased, by some act or words, manifested the intention that the document should, without more on his or her part operate as his or her will. In examining the evidence in this regard, the court must keep in mind that the evidence is to be evaluated in accordance with the Briginshaw[5] principles.[6] As Boddice J (with whom Gotterson JA agreed) said in Lindsay v McGrath:[7]“Great care is to be taken in the evaluation of the relevant evidence. To satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death. The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.…Documents which contain only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions, or which on the evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible revision, will not suffice for the purposes of s 18 as the evidence will not establish the document in question embodied the settled testamentary intentions of the deceased.”[8][4]Lindsay v McGrath [2016] 2 Qd R 160, [55], adopting the approach outlined by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408, [56]. And see Massey & Ors v Smith & Ors [2015] QSC 86, [6].[5]Briginshaw v Briginshaw (1938) 60 CLR 336, 342.[6]Re Kelsall [2016] VSC 724, [21]; Re Prien [2019] VSC 47, [44].[7][2016] 2 Qd R 160, [60], [62].[8]Footnotes omitted.

CITATION:	Re Sheehan [2021] QSC 89
PARTIES:	In the Will of STANISLAUS KEVIN SHEEHAN, deceased
FILE NO/S:	BS 1974 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Orders made on 15 March 2021, reasons delivered on 5 May 2021
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2021
JUDGE:	Burns J
ORDER:	1. Pursuant to s 18 of the *Succession Act* 1981 (Qld), the will signed by Stanislaus Kevin Sheehan (the deceased) on 2 November 2020 (the Will) is the last will of the deceased. 2. Subject to the formal requirements of the Registrar, a grant of probate of the copy of the Will that is exhibit 1 in this proceeding be made to the applicants, Matthew Paul Loveday and Noel James Sheehan, as executors.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – application for probate of an informal will – where the deceased was admitted to hospital – where the will was executed and witnessed during the COVID-19 pandemic – where the will was executed and witnessed by audio visual means – where the testator omitted to sign one page of the will and a schedule forming part of the will – whether the document signed by the deceased should operate as his will – whether probate of the will should be granted COVID-19Emergency Response Act 2020 (Qld) , s 9 Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld), reg 7, reg 17 Succession Act 1981 (Qld), s 10, s 18 Briginshaw v Briginshaw (1938) 60 CLR 336, applied Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, cited Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed Frizzo v Frizzo [2011] QCA 308, cited Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Re Kelsall [2016] VSC 724, cited Konui v Tasi [2015] QSC 74, cited Lindsay v McGrath [2016] 2 Qd R 160, followed Massey & Ors v Smith & Ors [2015] QSC 86, cited Re Prien [2019] VSC 47, cited Re Spencer [2015] 2 Qd R 435, cited
COUNSEL:	C A Brewer with P J Coore for the applicants, appearing pro bono
SOLICITORS:	Cornford-Scott Lawyers Pty Ltd for the applicants, acting pro bono