Re Turnbull (dec'd)

Case [2023] QSC 140

SUPREME COURT OF QUEENSLAND

CITATION:

Re Turnbull (dec’d) [2023] QSC 140

PARTIES:

IN THE WILL OF LESLIE OWEN TURNBULL

(deceased)

KENNETH GRAHAM TURNBULL

(applicant)

FILE NO:

BS No 7028 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDERS:

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.

2. It is declared pursuant to s 18 of the Succession Act 1981 (Qld) that the informal will bearing the handwriting of Leslie Owen Turnbull and signed by witnesses, Stephanie Wood and Lee Hornby, a copy of which is exhibit A to the affidavit of Kenneth Graham Turnbull sworn 26 April 2023, is the last will of Leslie Owen Turnbull.

3.   Subject to the formal requirements of the Registrar, probate of the will be granted to Kenneth Graham Turnbull.

CATCHWORDS:

SUCCESSION – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where the deceased completed a standard will form in his own handwriting – where the completion of the document was witnessed – where the deceased met with two witnesses who both executed the will – where the deceased did not execute the will – where the named executor sought probate of the informal will – whether the Court should declare that the informal will is the last will of the deceased – whether probate should be granted to the applicant

Succession Act 1981, s 10, s 18, s 35, s 36A
Uniform Civil Procedure Rules 1999, r 489

Hatsatouris v Hatsatouris [2001] NSWCA 408, followed
Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, followed
Macey v Finch [2002] NSWSC 933, followed
Proctor v Klauke [2011] QSC 425, followed

SOLICITORS:

Andrew Wheldon for the applicant

  1. The applicant, Kenneth Graham Turnbull (Kenneth), seeks a declaration that a document purporting to be the will of Leslie Owen Turnbull (Leslie) is his last will.  Kenneth seeks to have the application decided without oral hearing and he seeks other orders about costs.

    Background

  2. Kenneth is Leslie’s brother.

  3. Alexander Edmund Denis Turnbull (Alex) is the only issue of Leslie.

  4. Leslie was, at the time of his death, divorced and single.  By the intestacy rules,[1] Alex would take the entirety of the estate in the event of Leslie dying intestate.

    [1]Succession Act 1981, ss 35, 36A, Schedule 2, Part 2, Circumstance 1.

  5. The estate consists of $147,000 held in bank accounts and the freehold of a property in Lawnton in which Leslie resided.

  6. Leslie was diagnosed with terminal lung disease.

  7. In either late 2017 or early 2018, Leslie took steps to make a will.  He obtained a standard will form which he completed himself in the presence of Alex (the will).  The will appointed Kenneth as executor and trustee of Leslie’s estate.

  8. A special gift was made to Lee Hornby of what was described…

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AGLC
Re Turnbull (dec'd) [2023] QSC 140
Case
[2023] QSC 140
Decision Date

CaseChat Overview and Summary

The applicant, Kenneth Graham Turnbull, seeks a declaration that an informal document, completed by the deceased, Leslie Owen Turnbull, is his last will. Kenneth, Leslie's brother, is the named executor of the will. The will was completed by Leslie, who was terminally ill, in his own handwriting, but it was not signed by Leslie or the two witnesses present. The will names Kenneth as the executor and trustee of Leslie's estate and provides for gifts to Lee Hornby and Alexander Edmund Denis Turnbull. The estate comprises $147,000 in bank accounts and a property in Lawnton. The legal issues before the court were whether the Court should declare that the informal will is Leslie's last will, and whether probate should be granted to Kenneth. The court found that the application could proceed without an oral hearing, as none of the exclusions in rule 489 of the Uniform Civil Procedure Rules 1999 applied. The court considered that the document was testamentary, and Leslie intended it to operate upon his death as his will. While the will was not signed by Leslie, the court found that Leslie intended to sign it later, and the witnesses signed it in his presence. The court declared the informal will to be Leslie's last will and granted probate to Kenneth, subject to the formal requirements of the Registrar.

Orders

Orders of the court

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.

2. It is declared pursuant to s 18 of the Succession Act 1981 (Qld) that the informal will bearing the handwriting of Leslie Owen Turnbull and signed by witnesses, Stephanie Wood and Lee Hornby, a copy of which is exhibit A to the affidavit of Kenneth Graham Turnbull sworn 26 April 2023, is the last will of Leslie Owen Turnbull.

3. Subject to the formal requirements of the Registrar, probate of the will be granted to Kenneth Graham Turnbull.

Background

Background to the litigation

The applicant, Kenneth Graham Turnbull (Kenneth), seeks a declaration that a document purporting to be the will of Leslie Owen Turnbull (Leslie) is his last will. Kenneth seeks to have the application decided without oral hearing and he seeks other orders about costs.Background Kenneth is Leslie’s brother. Alexander Edmund Denis Turnbull (Alex) is the only issue of Leslie. Leslie was, at the time of his death, divorced and single. By the intestacy rules,[1] Alex would take the entirety of the estate in the event of Leslie dying intestate.[1]Succession Act 1981, ss 35, 36A, Schedule 2, Part 2, Circumstance 1. The estate consists of $147,000 held in bank accounts and the freehold of a property in Lawnton in which Leslie resided. Leslie was diagnosed with terminal lung disease. In either late 2017 or early 2018, Leslie took steps to make a will. He obtained a standard will form which he completed himself in the presence of Alex (the will). The will appointed Kenneth as executor and trustee of Leslie’s estate. A special gift was made to Lee Hornby of what was described in the will as “my car”. Other evidence identifies a Toyota Camry as Leslie’s car and therefore the subject of that gift. The standard will form used by Leslie provides for a clause dealing with the residue of the estate. Leslie completed this so that it read:“I direct my Executor(s) to pay all my debts and then I give the residue of my estate to Alexander Edmund Denis Turnbull (my son) all my worldly possessions, The House at 25 Macaranga Street, Morayfield to be kept or sold. Talk to co-owner Jacob Walton. My trustee Kenneth Graham Turnbull I give immediate control of my financial matters. Money can be allocated to Alexander for educational purposes till he reaches the age of 25 years and then collects the balance of my estate.The Bendigo Bank Account 116 714 973 can be put to Alexander on death.”[2][2]The words in italics were part of the printed form. It can be seen that the will provides for Kenneth to be given control of Leslie’s “financial matters” and “money can be allocated to Alexander for educational purposes till he reaches the age of 25 years and then collects the balance of my estate”. Alex was between 21 and 22 years of age at the time the will was made and 28 by the time of Leslie’s death. In the will, Leslie directed that he be cremated[3] and stated that he wished his organs to be available for donation.[4][3]Clause 8.[4]Clause 9. The will is not signed by Leslie, but it is signed by Stephanie Wood and Lee Hornby as witnesses. Stephanie Wood lived with Leslie and Alex. Lee Hornby is a friend of Alex and knew Leslie for about 17 years before his death. Leslie died on 8 October 2022.Statutory provisions Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for applications without oral hearing. Rule 489 provides:“489 Proposal for decision without oral hearing(1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—(a) under rule 491, the court considers it inappropriate to do so; or(b) under rule 494, the respondent requires an oral hearing; or(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for applications without oral hearing. Rule 489 provides:“489 Proposal for decision without oral hearing(1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—(a) under rule 491, the court considers it inappropriate to do so; or(b) under rule 494, the respondent requires an oral hearing; or(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.” The structure of r 489 is that:1.jurisdiction to proceed without oral hearing is granted;2.the jurisdiction is enlivened by a proposal by an applicant;3.the proposal must be accepted in the absence of the features in r 489(2)(a)-(d). Section 10 of the Succession Act 1981 prescribes the requirements for the execution of a valid will. Section 10 provides:“10 How a will must be executed(1)This section sets out the way a will must be executed.(2)A will must be—(a) in writing; and(b) signed by—(i)the testator; or(ii)someone else, in the presence of and at the direction of the testator.(3)The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.(4)At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.(5)However, none of the witnesses need to know that the document attested and signed is a will.(6)The signatures need not be at the foot of the will.(7)The signature of the testator must be made with the intention of executing the will.(8)The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.(9)A will need not have an attestation clause.(10)A person who can not see and attest that a testator has signed a document may not act as a witness to a will.(11)If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.(12)If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.(13)This section does not apply to a will made under an order under section 21.” Section 18 of the Succession Act provides that the Court may dispense with formal execution requirements. 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.”

Ratio Decidendi

Legal Principle Established

It has been held that the discretion to dispense with due execution arises where:(a)there is a document;(b)the document purports to state the deceased’s intention as to how, voluntarily, the testator’s property is to pass after death; and(c)the document constitutes the will of the deceased; that it is to operate upon death.[5]Consideration[5]Macey v Finch [2002] NSWSC 933, Hatsatouris v Hatsatouris [2001] NSWCA 408, Lindsay v McGrath [2016] 2 Qd R 160, Proctor v Klauke [2011] QSC 425.Application without oral hearing None of the exclusory factors in r 489(2)(b), (c) or (d) apply. The circumstances under which the will was prepared are deposed to by Alex. The circumstances under which the will was signed by each of Ms Wood and Mr Hornby are deposed to by those two people. There is nothing which would give rise to doubt about any of that evidence. The principles governing informal wills are well set. There is no need for an oral hearing. It is appropriate to deal with the application on the written submissions without oral hearing and so the exclusion under r 489(2)(a) does not apply. I have therefore decided the application without oral hearing.Orders under s 18Is there a document? The circumstances in which the will came into existence and came to be executed by the two witnesses but not by Leslie were the subject of affidavits from three witnesses, being Alex, Ms Wood and Mr Hornby. As earlier observed, Alex was present when Leslie completed the will form. Ms Wood and Mr Hornby both swear that they were in the presence of each other and in the presence of Leslie for the purposes of making Leslie’s will. This meeting occurred in the lounge room of Leslie’s home at 34 Bates Drive, Everton Hills. Leslie identified the document as his will and asked both Ms Wood and Mr Hornby to sign it, which they did. Ms Wood was in a hurry to leave the meeting because of some other commitment and she left. Ms Wood’s memory is that Leslie said to her “words to the effect that he would sign the purported will after I left”. Mr Hornby’s memory is a little different. He recalls “Leslie said to me that he would get us back together again at a later time to finish signing it properly”. I am satisfied that the will is a document for the purposes of s 18.Does the document state the testator’s intention as to how his property would pass after death? The will clearly does.Is the document testamentary and that it is only to operate upon death and is intended to constitute the deceased’s will? As already observed, there is a difference between Ms Wood’s memory of events and Mr Hornby’s.[6] From Ms Wood’s version, the inference would be drawn that Leslie intended the will to operate immediately and he would simply formalise it by signing it. Mr Hornby’s recollection of Leslie saying to him that Leslie intended to meet with the witnesses later and “finish signing it properly” leads to two possible inferences. The first is that Leslie intended the will to operate immediately and would formalise it later in the presence of the witnesses. The second is that he did not intend for it to operate until it was “signed properly”.[6]See paragraph [25] of these reasons.