SUPREME COURT OF QUEENSLAND
CITATION:
Sadleir v Kähler & Ors [2018] QSC 67
PARTIES:
ANNE SADLEIR
(applicant)
v
HANS-GERD KÄHLER AND ANTJE CHRISTINE ELSE ELISABETH GIEHR(first respondent)
JULIA DECKER AND LAURA ISABEL PINTO
(second respondent)
MAIKE KÄHLER AND TIM KÄHLER(third respondent)
FILE NO/S:
SC No 11828 of 2017
DIVISION:
Trial
PROCEEDING:
Originating Application
DELIVERED ON:
6 April 2018
DELIVERED AT:
Brisbane
HEARING DATE:
19 February 2018. Further submissions provided 19 February 2018 and 1 March 2018.
JUDGE:
Atkinson J
ORDERS:
1. Pursuant to section 18 of the Succession Act 1981(Qld), the handwritten document dated 15 January 1984, a copy of which is exhibit AS-2 to the affidavit of Anne Sadleir filed on 10 November 2017 forms the will of Hannes Kähler, deceased.
2. Pursuant to section 6 of the Succession Act 1981(Qld) and rules 603(1)(e) and 603(2) of the Uniform Civil Procedure Rules 1999(Qld) that, subject to the formal requirements of the Registrar, Letters of Administration with the Will of Hannes Kähler, deceased, dated 15 January 1984 be granted to the applicant.
3. Pursuant to s 6 of the Succession Act 1981 (Qld), I declare that upon the proper construction of the Will of Hannes Kähler, deceased, dated 15 January 1984 and in the events that have occurred, the estate of the said deceased should be distributed to the applicant and the third respondents as tenants in common in equal shares.
4. I will hear the parties’ submissions as to costs.
CATCHWORDS:
SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where the deceased deposited a handwritten document referred to as “my will” with a firm of solicitors – whether the document forms a valid will
SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PRINCIPLES OR RULES OF CONSTRUCTION – PRESUMPTION AGAINST INTESTACY – where the disposition to the deceased’s brother was contingent on the deceased’s brother not having divorced or separated from his wife – where the gift over was to the deceased’s brother’s three children – where the deceased’s brother pre-deceased him, having not divorced or separated from his wife – whether the rule in Jones v Westcomb (1711) Prec Ch 316; 1 Eq C Ab 245, pl 10; 24 ER 149 applies – whether the real contingency has been satisfied and the gift over to the deceased’s brother’s children should operate
Succession Act 1981 (Qld), s 6, s 10, s 18
Uniform Civil Procedure Rules 1999 (Qld), r 603(1)(e), r 603(2)
Wills Act 1936 (SA) s 12(2)
Fell v Fell (1922) 31 CLR 268, cited
Fraser & Anor v Melrose & Ors [2016] QSC 213, cited
In the will of Dianne Margaret Cardie [2013] QSC 265, cited
Jones v Westcomb (1711) Prec Ch 316; 1 Eq C Ab 245, pl 10; 24 ER 149, followed
Kirby-Smith v Parnell [1903] 1 Ch 483, cited
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- AGLC
- Sadleir v Kähler [2018] QSC 67
- Case
- [2018] QSC 67
- Decision Date
CaseChat Overview and Summary
The court was tasked with interpreting the handwritten document and determining whether it constituted a valid will, focusing on whether the document expressed the deceased's testamentary intentions. Additionally, the court had to consider whether the rule in Jones v Westcomb applied, as the disposition to the deceased's brother was contingent on the brother not having divorced or separated from his wife, with a gift over to the brother's children. This required the court to examine whether the contingency had been satisfied and if the gift over should operate. The court also needed to address whether section 18 of the Succession Act allowed the court to dispense with the formal execution requirements for the document to be admitted as a will.
The court found that the handwritten document constituted a valid will under section 18 of the Succession Act, which allows for the court to admit a document to probate if it is satisfied that the document expresses the deceased's testamentary intentions. The court determined that the deceased intended the document to form his will and that the document did express his testamentary intentions. Furthermore, the court found that the contingency had been satisfied as the deceased's brother had not divorced or separated from his wife, and thus the gift over to the brother's children should operate. The court granted Letters of Administration with the Will to the applicant, Anne Sadleir, and declared that the estate should be distributed to her and the third respondents as tenants in common in equal shares.
The court issued several orders. Firstly, it declared that the handwritten document dated 15 January 1984, deposited with the firm of solicitors, constituted the will of Hannes Kähler. Secondly, it granted Letters of Administration with the Will to the applicant, subject to formal requirements. Thirdly, it declared that the estate should be distributed to the applicant and the third respondents as tenants in common in equal shares. Lastly, it noted that it would hear submissions regarding costs.
Orders
Orders of the court
1. Pursuant to section 18 of the Succession Act 1981 (Qld), the handwritten document dated 15 January 1984, a copy of which is exhibit AS-2 to the affidavit of Anne Sadleir filed on 10 November 2017 forms the will of Hannes Kähler, deceased.
2. Pursuant to section 6 of the Succession Act 1981 (Qld) and rules 603(1)(e) and 603(2) of the Uniform Civil Procedure Rules 1999 (Qld) that, subject to the formal requirements of the Registrar, Letters of Administration with the Will of Hannes Kähler, deceased, dated 15 January 1984 be granted to the applicant.
3. Pursuant to s 6 of the Succession Act 1981 (Qld), I declare that upon the proper construction of the Will of Hannes Kähler, deceased, dated 15 January 1984 and in the events that have occurred, the estate of the said deceased should be distributed to the applicant and the third respondents as tenants in common in equal shares.
4. I will hear the parties’ submissions as to costs.
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
However, s 18 of the Succession Act provides that the court may dispense with those formal execution requirements. It 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).” Before the Succession Act was amended, the court had a limited power to admit a testamentary instrument to probate if the court was satisfied that the instrument expressed the testamentary intention of the testator and was in substantial compliance with the prescribed formalities. Section 18 gave effect to the recommendations of the Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills by the National Committee for Uniform Succession Laws.[6] The Queensland Law Reform Commission observed that the requirement that there must be “substantial compliance” had proven to be so great a stumbling block that the provision had had poor success.[7] The recommendation was made that the new power of dispensation be uniform across Australia. It followed a model first introduced in South Australia in 1975[8] and refined in subsequent model legislation.[6] Queensland Law Reform Commission, Consolidated Report to the Standing Committee of Attorneys General on The Law of Wills, Miscellaneous Paper No 29 (1997), chapter 3.3; see also Queensland Law Reform Commission, The Law of Wills, Report No 52 (1997), chapter 2.4.[7] See for example Re Grosert [1985] 1 Qd R 513 where, although the testator’s signature appeared to be witnessed by two witnesses’ signatures, the only witness who could be found said that she was the only witness present when the testator signed the Will; and Re Johnston [1985] 1 Qd R 516 where the deceased signed the Will in the absence of witnesses but obtained the signatures of two “witnesses” over the following week. In neither case was the document admitted to probate as a Will.[8] Wills Act 1936 (SA) s 12(2). The matters that will concern the court when there is an application under s 18 of the Succession Act include:1. Is there a document by the deceased person?2.Does the document fail to comply with the execution requirements found in Part 2 Div 2 of the Succession Act? 3.Does the document purport to state the testamentary intentions of the deceased person?4.Is the court satisfied that the deceased person intended the document to form the person’s Will?