Shaw v Tane - [2022] QSC 301

SUPREME COURT OF QUEENSLAND

CITATION: Shaw v Tane [2022] QSC 301
PARTIES: MARIA BERNADINA SHAW
(Plaintiff)
v
TAMAR TANE
(Defendant)
FILE NO: BS 11214 of 2021
DIVISION: Trial Division
PROCEEDING: Trial
ORIGINATING Supreme Court at Brisbane
COURT:
DELIVERED ON: 23 December 2022
DELIVERED AT: Brisbane
HEARING DATE: 3 – 4 November 2022
JUDGE: Jackson J

ORDER:

1.

The court pronounces against the force and validity of the alleged will of the late Martin Joseph Tullemans dated 18 October 2019, being exhibit 2 in this proceeding.

2.

The court pronounces against the force and validity of the typed letter dated 18 October 2019, being exhibit 3 in this proceeding.

3.

The court pronounces for the force and validity of the last will and testament of the late Martin Joseph Tullemans dated 6 May 2013, being exhibit 1 item E in this proceeding.

4.

Probate of the will dated 6 May 2013 be granted in whole in solemn form to Tamar Tane, executor, subject to the formal requirements of the Registrar.

5.

The parties are to provide written submissions as to costs limited to four pages by 16 January 2023.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – where the plaintiff
propounds a will of her deceased father found by her and

handwritten by her son – where the plaintiff propounds a letter of the same date – whether the plaintiff has proved that the will
propounded is the last true will of the deceased
Succession Act 1981 (Qld), s 10, s 13, s 18
Uniform Civil Procedure Rules 1999 (Qld), r 150

Bailey v Bailey (1924) 34 CLR 558, cited Baker v Batt (1838) 2 Moo PC 317, cited
Banque Commerciale SA, en Liquidation v Akhil Holdings
Ltd (1990) 169 CLR 279, applied
Barry v Butlin (1838) 2 Moo PC 480, applied
Bolger v McDermott [2013] NSWSC 919, cited
Gould v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490,
cited
In the Estate of Osment [1914] P 129, cited
Lindsay v McGrath [2016] 2 Qd R 160, applied
Nock v Austin (1918) 25 CLR 519, applied
McKinnon v Voigt [1998] 3 VR 543, cited
Ortner v Mewjork – Estate of Shing [2009] NSWSC 1381,
cited
Tyrrell v Painton [1894] P 151, applied
Vout v Hay [1995] 2 SCR 876, cited
COUNSEL: Hon. M Foley for the Plaintiff
C Brewer and J Pezet for the Defendant
SOLICITORS: Connor Hunter for the Plaintiff
McInnes Wilson Lawyers for the Defendant
JACKSON J:

On 1 December 2020, Martin Tullemans, a well-known surf photographer from the 1970s, died.
His sister, Maria Shaw (“Mary”), is the plaintiff in this proceeding. She seeks a grant of probate in solemn form of a will dated 18 October 2019 (“2019 Will”).[1] Tamar Tane, the daughter of Martin’s deceased former partner, Barbara, is the defendant and
cross-claimant. She disputes the validity of the 2019 Will and propounds a will dated
6 May 2013 (“2013 Will”). It…

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.

Continue reading Shaw v Tane

Details

AGLC: Shaw v Tane [2022] QSC 301
Case: [2022] QSC 301
Decision Date: 23 December 2022

CaseChat Overview and Summary

The case of Shaw v Tane was before the Supreme Court of Queensland. The central dispute revolves around the validity of two wills executed by Martin Tane. The plaintiff, Mary Shaw, sought to establish the validity of a 2019 Will and a Letter of Wishes, arguing that these documents should be considered Martin's last testamentary instruments. The defendant, David Shaw, argued that the 2013 Will should be recognised as Martin's last will, contending that the 2019 Will was not validly executed.

The court was required to determine several key legal issues. Firstly, whether the 2019 Will was properly executed as Martin's last will. This involved assessing the authenticity of the date, the legitimacy of Martin's signature, and the circumstances surrounding the document's creation. Secondly, the court had to consider whether the Letter of Wishes could be incorporated by reference into the 2019 Will or whether it stood alone as an independent testamentary document. The court also needed to evaluate the credibility of the evidence presented by both parties, particularly regarding the events leading to the creation of the 2019 Will.

The court found that the 2019 Will was not validly executed as Martin's last will. The physical alterations to the date, the questionable nature of Martin's signature, and the inconsistencies in the testimony cast significant doubt on the document's authenticity. Furthermore, the court rejected the claim that the Letter of Wishes could be incorporated into the 2019 Will, finding it to be more consistent with an adjunct to the 2013 Will rather than a separate testamentary document. As a result, the court ruled in favour of the 2013 Will, declaring it to be Martin's valid last will.

The court's orders reflect this decision. The plaintiff's claims for a grant of probate for the 2019 Will and the Letter of Wishes were dismissed. Instead, the court granted a grant of probate in solemn form for the 2013 Will, affirming its validity and enforceability.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Overall, I find that her unrealistic challenges to objective facts call into question the reliability of her evidence to the extent that I should only accept it where it is corroborated by independent evidence that is accepted. Physical features of the 2019 Will and handwriting evidence A distinct oddity of the 2019 Will is the date written in the execution block. The pro forma execution block says “signed and dated this ____ day of ______ 20__”, leaving the writer to insert the day, the month and the last two numbers of the year. There were two distinct attempts to write the day on the 2019 Will. The first has been crossed out but appears to have initially been a “7” before being changed to an “8” and then a “9”. David said in evidence that this attempt was written by Martin and denied that it was ever a “7”, saying instead that he thought Martin was going to draw a box around the “8”. According to David, Martin scrubbed that number out and David then wrote the second attempt at inserting the day. The second attempt has the word “18th” but appears to have originally been “19th”. David’s evidence is that he wrote “19th” because he was thinking about the year being 2019, which meant he had to change the “9” to an “8” upon realising his error. David said that is why he did not simply add a “1” before the earlier written “8” to change “8” to “18”. The result of these amendments is a clumsily written date. On one hand, this could suggest that the date was changed at some later time, perhaps to match when Martin had scheduled a meeting with Petrus in his calendar. On the other hand, if the document were inauthentic, it would be strange for the drafter to make errors of this kind, especially errors that necessitate the inscription of more initials. In any event, this abnormality, combined with the document being written almost entirely by David, not Martin, raises suspicion. The next questions are whether Martin signed the 2019 Will and if so, whether it was otherwise completed when he signed it, and if so, whether those positive findings would be sufficient to remove the suspicions raised. On its face, Martin’s signature has clearly been traced over or touched up. That is not in dispute. David said in evidence that after he had otherwise completed the 2019 Will with one pen, Martin grabbed another pen and first wrote his signature. He then grabbed the pen David used and slowly went over the first written signature, seemingly due to his belief that the same pen had to be used for the whole document. Three reports of forensic document examiner John Heath were tendered. The first report concluded that Martin’s signature is a false signature completed using a method of tracing whereby the writer has traced over a transmitted or hard copy image of a genuine signature in an attempt to have the tracing accepted as a genuine signature. Mr Heath said that Martin’s signature on the 2019 Will is characterised by numerous stroke disconnections and there is substantial evidence of retouching line strokes.

Decision

Reasons for decision

Mary claimed, in the alternative, a grant of probate in solemn form of the Letter of Wishes and a declaration that the 2019 Will is incorporated by reference and forms part of the Letter of Wishes. However, the terms of the Letter of Wishes are consistent with it being an adjunct to a will on terms akin to the 2019 Will. It is not itself a document Martin intended to form his will. This claim must fail. Conclusion The authenticity of the 2013 Will is not disputed. As I have found that Mary has not proved that the 2019 Will is Martin’s last will, I must pronounce against its force and validity and pronounce in favour of the 2013 Will. ANNEXURE A

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Shaw v Tane [2022] QSC 301
PARTIES:	MARIA BERNADINA SHAW
(Plaintiff)
v TAMAR TANE
(Defendant)
FILE NO:	BS 11214 of 2021
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING	Supreme Court at Brisbane
COURT:
DELIVERED ON:	23 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	3 – 4 November 2022
JUDGE:	Jackson J

ORDER:	1.	The court pronounces against the force and validity of the alleged will of the late Martin Joseph Tullemans dated 18 October 2019, being exhibit 2 in this proceeding.
2.	The court pronounces against the force and validity of the typed letter dated 18 October 2019, being exhibit 3 in this proceeding.
3.	The court pronounces for the force and validity of the last will and testament of the late Martin Joseph Tullemans dated 6 May 2013, being exhibit 1 item E in this proceeding.
4.	Probate of the will dated 6 May 2013 be granted in whole in solemn form to Tamar Tane, executor, subject to the formal requirements of the Registrar.
5.	The parties are to provide written submissions as to costs limited to four pages by 16 January 2023.

CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – where the plaintiff
propounds a will of her deceased father found by her and
handwritten by her son – where the plaintiff propounds a letter of the same date – whether the plaintiff has proved that the will
propounded is the last true will of the deceased
Succession Act 1981 (Qld), s 10, s 13, s 18
Uniform Civil Procedure Rules 1999 (Qld), r 150
Bailey v Bailey (1924) 34 CLR 558, cited Baker v Batt (1838) 2 Moo PC 317, cited
Banque Commerciale SA, en Liquidation v Akhil Holdings
Ltd (1990) 169 CLR 279, applied Barry v Butlin (1838) 2 Moo PC 480, applied Bolger v McDermott [2013] NSWSC 919, cited Gould v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490, cited In the Estate of Osment [1914] P 129, cited Lindsay v McGrath [2016] 2 Qd R 160, applied Nock v Austin (1918) 25 CLR 519, applied McKinnon v Voigt [1998] 3 VR 543, cited
Ortner v Mewjork – Estate of Shing [2009] NSWSC 1381,
cited Tyrrell v Painton [1894] P 151, applied Vout v Hay [1995] 2 SCR 876, cited
COUNSEL:	Hon. M Foley for the Plaintiff C Brewer and J Pezet for the Defendant
SOLICITORS:	Connor Hunter for the Plaintiff McInnes Wilson Lawyers for the Defendant
JACKSON J: