Re: Tinker (d'ced)

[2016] QSC 217

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Tinker (d’ced) [2016] QSC 217

PARTIES:

IN THE WILL of SAMANTHA TINKER deceased

FILE NO:

BS3543/16

DIVISION:

Trial Division

PROCEEDING:

Application without an oral hearing

DELIVERED ON:

21 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2016 on the papers

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   That the document that was not executed under Pt 2 of the Succession Act 1981 (Qld) forms the will of the deceased under s 18.

2.   Probate of the will be granted to the applicant as executor.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – whether a document entitled “My Last Will and Testament…” handwritten on an unknown date prior to the deceased’s suicide formed a will

Succession Act 1981 (Qld), s 18

SOLICITORS:

Welsh & Welsh Solicitors for the applicant

1. Jackson J: There are two relevant applications. The originating application is for proof of an informal will made on or about 6 August 2015. The second application is for a declaration under s 18 of the Succession Act 1981 (Qld) that the relevant document (“informal will”) form a will of the deceased.

1. On 6 August 2015, the deceased died by suicide.  She was 43 years of age.

1. From 2002 until her death, the deceased lived with her parents. 

1. She had no children and was divorced.

1. On 22 July 1999, the deceased executed a will whilst serving in the Royal Australian Navy (“prior will”). 

1. The prior will appointed her parents as executors and left all her estate to them to distribute as they saw fit, with a gift over to her brother if they predeceased her.

1. The informal will appoints her brother, the applicant, as executor.  It gives the money in her bank accounts and her car to her brother, the money from her superannuation to her parents and directs her brother to liaise with other members of her family regarding other items. 

1. The informal will is handwritten and was executed by the deceased but not witnessed. It is headed “My Last Will and Testament for Samantha Tinker”.  It formed page 2 of a document which on the evidence seems to have begun as a letter addressed to her family, written in contemplation of suicide. 

1. However, part of the document preceding the section headed “My Last Will and Testament for Samantha Tinker” possibly dealt with or also evidenced her testamentary intentions as follows:

“I have money in my cheque account – PIN 1504.

In my Term deposit account there is $20,000.

I also have a Super Saver Account that has about $4,900.

I have left my bank details in the pink file with this letter.

I give my full permission that all of this money [is] to go to my nephew Oliver Joseph Tinker and my niece Finella Dulce Tinker.

My car is to go to my brother Richard George Tinker and sister-in-law Michelle Leanne Tinker.”

1. On the face…