Re Vogele

[2007] QSC 404

SUPREME COURT OF QUEENSLAND

CITATION:

Re Vogele [2007] QSC 404

PARTIES:

IN THE WILL OF NOEL ROY VOGELE (deceased)

AMANDA LEE VOGELE
(applicant)

FILE NO:

5600/07

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

29 August 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

16 July 2007

JUDGE:

Douglas J

ORDER:

Application dismissed.

CATCHWORDS:

SUCCESSION — WILLS, PROBATE AND ADMINISTRATION — PROBATE AND LETTERS OF ADMINISTRATION — CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS — GENERALLY — where will document not signed by testator in accordance with s 10 of the Succession Act 1981 (Qld) — where s 18 of the Succession Act 1981 (Qld) permits the court to admit a document to probate if satisfied it embodies the testamentary intentions of the deceased, despite non-compliance with legislative requirements — whether the will document signed by the deceased embodies the deceased’s testamentary intention.

Succession Act 1981 (Qld) ss 10, 18

Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, referred
Re Garris [2007] QSC 181, referred
Hatsatouris v Hatsatouris [2001] NSWCA 408, considered
Estate of Hines v Hines [1999] WASC 111, considered
Re Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, considered

COUNSEL:

D R M Murphy SC for the applicant
T Ryan for the respondent

SOLICITORS:

Gleeson Lawyers for the applicant
Chris Wlodarczyk & Co. for the respondent, Patricia Daisy Vogele

[1]      Douglas J: Noel Roy Vogele died on 19 January 2007 survived by four children and a widow from whom he was estranged. His estate is valued at $162,237.70. His youngest child, the applicant, Amanda Lee Vogele, was named as his personal representative in a document of which she seeks a grant of probate pursuant to s. 18 of the Succession Act 1981. His widow, Patricia Daisy Vogele, opposes the application.

[2] The document was not executed at all, let alone in the manner required by s. 10 of the Act but s. 18, introduced into the Act in 2006, allows the Court to dispense with the execution requirements for a will if “satisfied that the person intended the document … to form the person’s will”. In making a decision under s. 18(2) the Court may have regard to any evidence relating to the way in which the document was executed and any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

Background

[3]      The document for which probate is sought is contained in a form from a booklet called the National Will Kit, prepared by the publisher as a guide to assisting people to prepare a simple will.  It included an instruction to sign the original document “at the foot or end thereof with your usual signature, exactly as you wrote it at the beginning of the Will Form”.  The instruction goes on to say:

“You must sign it in the presence of two people who must not be beneficiaries named in your Will and who, preferably, should also…