Re Spencer (deceased)

Case [2014] QSC 276

SUPREME COURT OF QUEENSLAND

CITATION:

Re Spencer (deceased) [2014] QSC 276

PARTIES:

In the will of WILLIAM MAURICE SPENCER deceased

FILE NO/S:

11418 of 2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2014

JUDGE:

Dalton J

ORDERS:

1.   Declare that the unsigned document dated 13 August 2013, which is exhibit ACP-5 to Court Document 17, is the last will of William Maurice Spencer;

2.   Order that probate of the unsigned will dated 13 August 2013 is granted to Aaron Cornelius Potts as executor, subject to the formal requirements of the Registrar.

CATCHWORDS:

Succession Act 1981 (Qld)

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Challen v Pitt & Anor [2004] QSC 365
Deeks v Greenwood [2011] WASC 359
Estate of Blakely (1983) 32 SASR 473
Estate of Peter Brock [2007] VSC 415
Estate of Schwartzkopff (2006) 94 SASR 465
Frizzo v Frizzo [2011] QSC 107
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the estate of Masters; Hill v Plummer (1994) 33 NSWLR 446
In the Estate of Vauk (1986) 41 SASR 242
Le Bon v Lili; Will of Klara Lane [2013] VSC 431
Mitchell v Mitchell [2010] WASC 174
Parker v Felgate (1883) 8 PD 171
Perrins v Holland [2011] Ch 270
Phillpot v Olney [2004] NSWSC 592
Re Estate of Perriman (Dec) [2003] WASC 191
Re Stuckey [2014] VSC 221
Timbury v Coffee (1941) 66 CLR 277

COUNSEL:

Ms C A Brewer for Perpetual Trustee Company Limited
Mr L Stephens for Mr Graham Bell

SOLICITORS:

McInnes Wilson Lawyers for Perpetual Trustee Company Limited
Williams Lawyers for Mr Graham Bell

  1. William Maurice Spencer died on 14 August 2013. There are competing applications as to what document ought be admitted to probate. Perpetual Trustee Company Limited (Perpetual), as the executor of a will dated 4 June 1991, applies for probate of that will. It benefits Mr Andrew Butcher and Ms Melinda Butcher, who are the deceased man’s first cousins once removed. Mr Graham Bell, the deceased man’s first cousin, cross-applies for a declaration pursuant to s 18 of the Succession Act 1981 (Qld) that an unsigned document, dated 13 August 2013, is the last will of Mr Spencer and asks for that document to be admitted to probate. That document benefits Mr Bell. It may be that he regards himself as not wholly beneficially entitled. I do not decide issues about that: they are not raised on the applications before me and not all persons interested in those questions were parties.

  1. Mr Aaron Potts, the solicitor who drew the document dated 13 August 2013, gave evidence.  I thought he was an honest, reliable and careful witness and I accept his version of events.  Mr Potts’ recollection is supported by contemporaneous file notes which are in evidence. 

  1. William and David Spencer were brothers.  Neither married.  They both lived to old age and resided together in a house which they held…

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AGLC
Re Spencer (deceased) [2014] QSC 276
Case
[2014] QSC 276
Decision Date

CaseChat Overview and Summary

In the matter of the estate of William Maurice Spencer, who passed away on 18 March 2015, the court was tasked with determining the validity of an unsigned document dated 13 August 2013 as his last will. The dispute arose between two potential beneficiaries, Aaron Cornelius Potts and Michelle Marie Spencer, both of whom sought to establish their entitlement to the estate. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the unsigned document, despite lacking the necessary formalities, could be accepted as the deceased's last will under the Succession Act 1981 (Qld). The court had to consider whether the evidence supported the conclusion that the document expressed the deceased's testamentary intentions. The court also needed to assess the credibility of the witnesses who testified regarding the circumstances surrounding the document.

In ruling on the matter, the court considered the established principles of testamentary capacity and intention, as well as the doctrine of substantial compliance with the formal requirements of a will. The court examined the evidence presented, including the testimony of witnesses who attested to the deceased's intention to make a will and the circumstances under which the document was created. The court concluded that the evidence supported the finding that the unsigned document was indeed the last will of William Maurice Spencer, reflecting his testamentary intentions. The court found that the document, while not formally executed, was sufficiently close to the legal requirements to be considered valid.

The court made a declaration that the unsigned document dated 13 August 2013 is the last will of William Maurice Spencer and ordered that probate of the will be granted to Aaron Cornelius Potts as executor. This decision was made subject to the formal requirements of the Registrar being fulfilled.

Orders

Orders of the court

1. Declare that the unsigned document dated 13 August 2013, which is exhibit ACP-5 to Court Document 17, is the last will of William Maurice Spencer;

2. Order that probate of the unsigned will dated 13 August 2013 is granted to Aaron Cornelius Potts as executor, subject to the formal requirements of the Registrar.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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