Re the will of Clem Jones, deceased

[2008] QSC 115

[2008] QSC 115

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

MCMURDO J

No 3320 of 2008

DAVID ALEXANDER MUIR	Applicant
and CLEM JONES (deceased)
BRISBANE
..DATE 08/05/2008
HIS HONOUR: This is an application for a grant of probate of	1
four testamentary instruments of Clem Jones who died on 15 December 2007. The instruments are a Will dated 22 September 2005, a codicil which I will call the first codicil dated 5 March 2007, a second codicil dated 21 March 2007 and a third

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codicil dated 31 July 2007.

I shall deal with the issues in the order in which they are helpfully set out in the submissions of Mr Whiteford who appears for the applicants. There is no other appearance.

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The first issue concerns the Will itself. The problem which arises is that the third codicil refers to not the Will dated 22 September 2005 but to one dated 26 February 2007, raising the suggestion that the deceased executed another Will of that

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date which may have revoked therefore the Will of 22 September
2005 in whole or in part.

I am satisfied, however, that this was an error and that the intention in the third codicil was to refer to this Will dated

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22 September 2005. There are several reasons for that. Of
them I think the most telling are the facts that the first and
second codicils were dated 5 March and 21 March 2007 and
thereby they post-date the suggested Will of 26 February 2007.

Yet they do not refer to such a Will. They refer to the one

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dated 22 September 2005. Further there is an explanation,
which appears from the evidence, of that date of 26 February
2007. The explanation is that in the records of the deceased
it appears that there is some notation as to the state of the

records as at 26 February 2007, and there is a note that	1
current at that date was the Will of Mr Jones which was said to be a Will of "Sept 2005". I infer when the third codicil was made this led to a mistake as to the date of the Will.

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The next point is that the Will appoints six executors. Accordingly, section 48 of the Succession Act 1981 applies, with the result that the grant should be made to four of those executors and in the order in which they are named. I accept, as Mr Whiteford submits, that the order should bear the

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notation that power is reserved to the remaining two executors
to apply for a grant on any vacancy occurring.

The next issue concerning the Will itself is that there are pages numbered up to 18 and from 22 onwards, but there are no

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pages numbered 19, 20 and 21. Looking only at the Will, it
appears that pages have been omitted because the text does not

logically flow from the end of page 18 to the top of page 22.

The intention however of the testator does appear from the

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evidence. His intention was to omit what had been drafts of
those three pages. The content of those pages appears from
the evidence and for the most part they consisted of the
expression of powers to be granted to the executors. They

also contained what I would describe as the introductory words

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by which sense could be made of what commences from the top of
page 22 of the Will.

Subsequently, that is in the first codicil, the testator	1
referred to these pages. In clause 2.2 of that codicil he said:

I omitted in error pages 19 to 21 inclusive in my

"original Will. These pages dealt largely with the	10
powers of my executors which I understand to be derived under legislation in any event."

There is also evidence from Ms Townsend who was present when
the deceased signed the Will, who says that when the deceased

checked it prior to execution, he did notice that the pages	20
were missing and he said words to her to the effect that as
they dealt with the trustees powers and similar matters which
were not essential, he wished to sign the Will in its
incomplete form. That resulted, as I have said, in an
imperfection in the drafting because of the way in which the	30
Will then dealt with other things from the top of page 22.
But the question is not whether there is a difficulty in the
interpretation of the Will; it is whether the Will, absent
those three pages, represents the Will which the testator
intended to be his Will. I am satisfied that he did intend to	40
omit those three pages, and therefore that the absence of them should not deny a grant of probate.
I go then to the codicils. There is no problem with the first
codicil. The next issue arises in relation to the second	50
codicil. In clause 1(a) there is, or was originally when it was executed, a blank. Reference was there made to a clause of the Will and a space was left for the insertion of the
number of that clause but when the codicil was executed that	1
space was blank.
As a matter of construction clearly the codicil in that respect referred to clause Z(iii) of the Will. What happened

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was that after the codicil was executed, it seems about three
or four days afterwards, the deceased instructed Ms Townsend
to write Z(iii) in the space, which she did in his presence
but not in the presence of the witnesses. Accordingly this

was an alteration which did not satisfy the formal

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requirements.

Section 18 of the Succession Act 1981 applies to this instrument, the deceased having died after 1 April 2006. By subsection 18(2), it is provided that the document or the part

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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 or a full or partial

revocation.

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In the circumstances I am satisfied that the testator did intend this alteration by the insertion of Z(iii) to be part of his Will. As I have said that was clear in any event as a matter of interpretation even prior to the specific insertion

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of Z(iii). The result is that the second codicil will be
admitted to probate and with that specific alteration
included.

The issue in relation to the third codicil is that it has in	1
handwriting at the top of the first page the words "copy only". I am satisfied from the evidence that when this codicil was executed those words did not appear. The codicil bears original signatures and this is the only version of the

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third codicil which has been located. There is some
explanation for the appearance of these words in the evidence
of Ms Townsend. She cannot now recall the precise
circumstances of this, but she says that Mr Jones was in the

habit of instructing his staff to write "copy" on copies of

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documents. I infer that through error the words "copy only" were written on this document, although it was the original.

For these reasons none of the matters which counsel for the executors has drawn to my attention should impede the grant of

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probate of these instruments. It will be ordered then that
subject to the formal requirements of the Registrar, a grant
of probate be made to Mr D A Muir, Mr B T Halligan, Mr M M
Heiner and Ms D A Townsend of those instruments in accordance

with the draft which I will initial and place with the file.

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