Selig v Selig - [2024] QSC 189

SUPREME COURT OF QUEENSLAND

CITATION:

Selig v Selig [2024] QSC 189

PARTIES:

AARON JAMES SELIG

(first plaintiff)

MELINDA JANE SELIG

(second plaintiff)

v

JANNA ROSE SELIG (also known as ZHANNA SIROMOLOTOVA)

(defendant)

FILE NO:

15720 of 2023

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

26 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2024

JUDGE:

Crowley J

ORDERS:

1. Pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”), the formal execution requirements of s 10 of the Act are dispensed with in relation to the informal Will of the deceased Ronald Gordon Selig, comprised of the original document titled “My Wishes” and a copy of the document entitled “Nomination of Beneficiaries Form”, each dated 23 April 2021, copies of which are exhibit six to the affidavit of Aaron James Selig sworn on 22 March 2024.

2.   I declare the informal Will of the deceased, Ronald Gordon Selig, to be his Last Will and Testament.

3. Pursuant to s 6 of the Act, I pronounce for the force and validity of the Will of the deceased, Ronald Gordon Selig, late of 17/92 King Street, Buderim in the State of Queensland, dated 23 April 2021, in solemn form of law.

4.   The plaintiffs, Aaron James Selig and Melinda Jane Selig, are appointed as administrators of the Estate of the deceased, Ronald Gordon Selig.

5.   Subject to the formal requirements of the Registrar, letters of administration with the Will annexed are to be issued to the plaintiffs, Aaron James Selig and Melinda Jane Selig as the administrators.

6.   The defendant is to pay the plaintiffs’ costs.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION –

INFORMAL DOCUMENT INTENDED TO BE WILL –

GENERALLY – where an application is made pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”) – where the formal requirements under s 10 of the Act were not complied with – where the informal Will was in writing and signed by the deceased but was only signed in the presence of one witness – where the defendant claims the informal Will and the signatures are forgeries – where an original of one of the documents said to comprise the informal Will has been lost – whether the deceased made an informal Will and intended it to be his last Will and Testament – whether the Court can proceed on a copy of the informal Will

Succession Act 1981 (Qld), s 6, s 10, s 13(c), s 18

Banks & Goodfellow (1870) LR 5 QB 549, cited

Hatsatouris v Hatsatouris [2001] NSWCA 408, cited

Price v Tickle [2013] 1 Qd R 236, cited

Re Calabro [2024] QSC 71, cited

Re Nichol; Nichol v Nichol [2017] QSC 220, cited

COUNSEL:
S R D Blaxland for the first and second plaintiff

The defendant appeared on their own behalf

SOLICITORS:
Simpson Quinn Lawyers for the first and second plaintiff

The defendant appeared on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QSC 189
Decision Date: 26 August 2024

CaseChat Overview and Summary

The case of Selig v Selig involved a dispute regarding the validity of an informal will. The plaintiffs, Aaron James Selig and Melinda Jane Selig, sought to have an informal document executed by their father, Ronald Gordon Selig, recognised as his last will and testament. Ronald Selig had passed away, and the defendant, who was also a family member, contested the validity of the informal will. The court was required to decide whether the informal document was indeed the last will and testament of Ronald Selig and whether the court could proceed based on a copy of the informal will.

The legal issues before the court were whether Ronald Selig had made an informal will and intended it to be his last will and testament, and whether the court could proceed with a copy of the informal will when the original had been lost. The court considered the provisions of the Succession Act 1981 (Qld) and previous case law, particularly regarding the execution of wills and the discretion of the court under s 18 of the Act. The court also assessed the evidence presented, including the testimonies of witnesses and the circumstances surrounding the execution of the informal will.

The court found that there was cogent evidence that Ronald Selig executed the informal will by signing the documents in question. The court also concluded that the informal will satisfied the requirements under s 18 of the Act, which allows the court to dispense with the formal execution requirements if certain conditions are met. The court accepted that the informal will was intended to be Ronald Selig's last will and testament. The defendant's claims of forgery were rejected as the court found the evidence insufficient to support such a conclusion.

In light of the findings, the court made orders declaring the informal will to be Ronald Selig's last will and testament, appointing the plaintiffs as administrators of his estate, and directing the issuance of letters of administration with the will annexed. The defendant was ordered to pay the plaintiffs' costs. The decision underscores the court's discretion under s 18 of the Succession Act to recognise informal wills when the formal requirements are not met, provided the court is satisfied that the document embodies the deceased's testamentary intentions.

Orders

Orders of the court

1. Pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”), the formal execution requirements of s 10 of the Act are dispensed with in relation to the informal Will of the deceased Ronald Gordon Selig, comprised of the original document titled “My Wishes” and a copy of the document entitled “Nomination of Beneficiaries Form”, each dated 23 April 2021, copies of which are exhibit six to the affidavit of Aaron James Selig sworn on 22 March 2024.

2. I declare the informal Will of the deceased, Ronald Gordon Selig, to be his Last Will and Testament.

3. Pursuant to s 6 of the Act, I pronounce for the force and validity of the Will of the deceased, Ronald Gordon Selig, late of 17/92 King Street, Buderim in the State of Queensland, dated 23 April 2021, in solemn form of law.

4. The plaintiffs, Aaron James Selig and Melinda Jane Selig, are appointed as administrators of the Estate of the deceased, Ronald Gordon Selig.

5. Subject to the formal requirements of the Registrar, letters of administration with the Will annexed are to be issued to the plaintiffs, Aaron James Selig and Melinda Jane Selig as the administrators.

6. The defendant is to pay the plaintiffs’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, as I have already noted above, there is cogent evidence, which I accept, that the deceased executed the informal Will by signing each of the original documents.Conclusion and Orders I am satisfied that the plaintiffs have established their entitlement to the relief they seek. I will make orders to the effect sought by the plaintiffs, albeit with some slight amendment in form. I order: 1. Pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”), the formal execution requirements of s 10 of the Act are dispensed with in relation to the informal Will of the deceased Ronald Gordon Selig, comprised of the original document titled “My Wishes” and a copy of the document entitled “Nomination of Beneficiaries Form”, each dated 23 April 2021, copies of which are exhibit six to the affidavit of Aaron James Selig sworn on 22 March 2024. 2. I declare the informal Will of the deceased, Ronald Gordon Selig, to be his Last Will and Testament. 3. Pursuant to s 6 of the Act, I pronounce for the force and validity of the Will of the deceased, Ronald Gordon Selig, late of 17/92 King Street, Buderim in the State of Queensland, dated 23 April 2021, in solemn form of law. 4. The plaintiffs, Aaron James Selig and Melinda Jane Selig, are appointed as administrators of the Estate of the deceased, Ronald Gordon Selig. 5. Subject to the formal requirements of the Registrar, letters of administration with the Will annexed are to be issued to the plaintiffs, Aaron James Selig and Melinda Jane Selig as the administrators. 6. The defendant is to pay the plaintiffs’ costs.

Ratio Decidendi

Legal Principle Established

Despite the formal requirements stipulated by s 10, s 18 of the Act states: “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.” In Hatsatouris v Hatsatouris [2001] NSWCA 408, [56] Powell JA, when considering an analogous provision to s 18 of the Act, contained in s 18A of the Wills Probate and Administration Act 1989 (NSW), stated:“It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:(a) was there a document;(b) did that document purport to embody the testamentary intentions of the relevant Deceased?(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more, on her, or his, part operate as her, or his, Will?”[1][1](emphasis omitted); Recently, in Wool v Marino [2024] QSC 89, [9], Henry J described these requirements as “well established”. In addition to these requirements, the court must also be satisfied as to the various elements applicable to the execution or making of a formal Will. In Re Nichol; Nichol v Nichol [2017] QSC 220, Brown J summarised those requirements in the following passage:[2][2][10] (citations omitted).“The classic statement of what constitutes testamentary capacity was set out by Cockburn CJ in Banks v Goodfellow. Applegarth J in Frizzo & Anor v Frizzo & Ors stated that:‘The classic test for testamentary capacity was enunciated in Banks v Goodfellow. The relevant principles were restated by Powell JA in Read v Carmody:1.The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;2.The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;3.The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;4.The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties. The Banks v Goodfellow test does not require perfect mental balance and clarity; rather, it is a question of degree. As Cockburn CJ put it in that case, ‘the mental power may be reduced below the ordinary’ provided the testatrix retains ‘sufficient intelligence to understand and appreciate the testamentary act in its different bearings’.’”

CITATION:	Selig v Selig [2024] QSC 189
PARTIES:	AARON JAMES SELIG (first plaintiff) MELINDA JANE SELIG (second plaintiff) v JANNA ROSE SELIG (also known as ZHANNA SIROMOLOTOVA) (defendant)
FILE NO:	15720 of 2023
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	26 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2024
JUDGE:	Crowley J
ORDERS:	1. Pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”), the formal execution requirements of s 10 of the Act are dispensed with in relation to the informal Will of the deceased Ronald Gordon Selig, comprised of the original document titled “My Wishes” and a copy of the document entitled “Nomination of Beneficiaries Form”, each dated 23 April 2021, copies of which are exhibit six to the affidavit of Aaron James Selig sworn on 22 March 2024. 2. I declare the informal Will of the deceased, Ronald Gordon Selig, to be his Last Will and Testament. 3. Pursuant to s 6 of the Act, I pronounce for the force and validity of the Will of the deceased, Ronald Gordon Selig, late of 17/92 King Street, Buderim in the State of Queensland, dated 23 April 2021, in solemn form of law. 4. The plaintiffs, Aaron James Selig and Melinda Jane Selig, are appointed as administrators of the Estate of the deceased, Ronald Gordon Selig. 5. Subject to the formal requirements of the Registrar, letters of administration with the Will annexed are to be issued to the plaintiffs, Aaron James Selig and Melinda Jane Selig as the administrators. 6. The defendant is to pay the plaintiffs’ costs.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where an application is made pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”) – where the formal requirements under s 10 of the Act were not complied with – where the informal Will was in writing and signed by the deceased but was only signed in the presence of one witness – where the defendant claims the informal Will and the signatures are forgeries – where an original of one of the documents said to comprise the informal Will has been lost – whether the deceased made an informal Will and intended it to be his last Will and Testament – whether the Court can proceed on a copy of the informal Will Succession Act 1981 (Qld), s 6, s 10, s 13(c), s 18 Banks & Goodfellow (1870) LR 5 QB 549, cited Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Price v Tickle [2013] 1 Qd R 236, cited Re Calabro [2024] QSC 71, cited Re Nichol; Nichol v Nichol [2017] QSC 220, cited
COUNSEL:	S R D Blaxland for the first and second plaintiff The defendant appeared on their own behalf
SOLICITORS:	Simpson Quinn Lawyers for the first and second plaintiff The defendant appeared on…