Stephens & Ors v. Stephens & Ors - [2007] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

Stephens & Ors v Stephens & Ors [2007] QSC 016

PARTIES:

GAIL SUSAN STEPHENS, KEITH CHARLES STEPHENS AND JOHN DAVID ANDREW PUNCH
(applicants)
v
ANTHONY JOHN DOUGLAS STEPHENS; KATHERINE JAQUELINE MAY STEPHENS; PHILLIP JOSEPH EDWARD STEPHENS AND HENRY JACKSON LEON STEPHENS (by their litigation guardian TIMOTHY CLIFTON WHITNEY); PETER JAMES STEPHENS; CHRISTOPHER STEPHENS, TANIA STEPHENS; LOUISE STEPHENS AND NICOLE STEPHENS

(respondents)

FILE NO/S:

5008/06

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT: Supreme Court

DELIVERED ON:

8 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2006

JUDGE:

Philippides J

ORDER:

1.   The will of Anthony Leon Stephens executed on 18 January 1988, together with sheet two of the document 12, filed 20 July 2006, being the paper writing dated 1 July 2001 (“the 2001 amendments”), be admitted to probate, subject to the formal requirements of the registrar.

2.   The 2001 amendments constitute a codicil to the 1988 will and on proper construction of the will and codicil:

(a)   have the effect of revoking cls 5(a), (b) and (c) of   the 1988 will;

(b) do not have the effect of revoking cl 5(d) of the 1988 will.

3.   As to the one forty-second part of the residuary estate which is unallocated under the will there is an intestacy.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – Execution – Informal document intended as testamentary instrument – attestation – where one attesting witness – whether substantial compliance with the formal requirements of s 9 of the Succession Act – construction of will and codicil – where a part of the residuary estate not allocated – whether s 29 of the Act applicable to prevent intestacy as to an unallocated portion of the residuary estate

Succession Act 1981, s 9, s 29

Comiskey v Bowring-Handbury [1905] AC 84
Finche v Combe [1894] P 191
In re Burley [1910] 1 Ch 215
In the Estate of Ashley David Schwartzkoppff [2006] SASC 131
Public Trustee of Queensland v Attorney General of Queensland [2004] QSC 328
Re Adams (deceased) [1990] 2 All ER 97
Re Cashin [1992] 2 Qd R 63
Re Estate of Robert Wilcock [2004] QSC 473
Re Hess [1992] 1 Qd R 176
Re Johnston [1983] 1 Qd R 516
Re Matthews [1989] 1 Qd R 300
Re Nicholls [1996] 1 Qd R 179
Re Olive [1989] 1 Qd R 544.
Re the Will of Eagles [1990] 2 Qd R 501
Re White [1985] QSC 611

COUNSEL:

D G Mullins for the applicants
R Peterson for the respondents
R Whiteford for the litigation guardian

SOLICITORS:

Short Punch & Greatorix for the applicants
Robbins Watson for the respondents
McCullough Robertson for the litigation guardian

PHILIPPIDES J:
Background

Anthony Leon Stephens, the testator, died on 30 April 2005 aged 58 years. He was survived by his wife, Mrs Gail Susan Stephens, and the four children of their marriage, Tony, aged 27 years, Kathy, aged 24 years, Phillip aged 10 years and Henry aged 4…

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 Stephens & Ors v. Stephens & Ors

Details

AGLC: Stephens v Stephens [2007] QSC 16
Case: [2007] QSC 16
Decision Date: 8 February 2007

CaseChat Overview and Summary

The case of Stephens & Ors v. Stephens & Ors involved a dispute over the validity of a will executed by Anthony Leon Stephens and subsequent amendments. The will, dated 18 January 1988, along with a document dated 1 July 2001, were the subject of contention. The primary issue was whether the will, and the 2001 amendments, complied with the formal requirements of the Succession Act, particularly the attestation clause. Additionally, the court had to determine the effect of the 2001 amendments on specific clauses of the 1988 will, and whether an unallocated portion of the residuary estate resulted in intestacy.

The court addressed the formal requirements of the will, noting that while the will did not strictly adhere to the attestation clause of section 9 of the Succession Act, it demonstrated substantial compliance. This was because the document was intended as a testamentary instrument and was signed in the presence of a witness. Regarding the 2001 amendments, the court found that they constituted a codicil to the 1988 will, revoking certain clauses but not others. The court also determined that an unallocated portion of the residuary estate resulted in intestacy, as section 29 of the Succession Act did not apply to prevent intestacy in this situation.

The court concluded that the 1988 will, along with the 2001 amendments, should be admitted to probate subject to the registrar’s formal requirements. The 2001 amendments revoked specific clauses of the 1988 will but left others intact. Furthermore, an unallocated part of the residuary estate led to intestacy, as the provisions of section 29 did not apply. Consequently, the court issued orders admitting the will and codicil to probate with specific conditions and clarified the effect of the amendments.

Orders

Orders of the court

1. The will of Anthony Leon Stephens executed on 18 January 1988, together with sheet two of the document 12, filed 20 July 2006, being the paper writing dated 1 July 2001 (“the 2001 amendments”), be admitted to probate, subject to the formal requirements of the registrar.

2. The 2001 amendments constitute a codicil to the 1988 will and on proper construction of the will and codicil:

(a) have the effect of revoking cls 5(a), (b) and (c) of the 1988 will;

(b) do not have the effect of revoking cl 5(d) of the 1988 will.

3. As to the one forty-second part of the residuary estate which is unallocated under the will there is an intestacy.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stephens & Ors v Stephens & Ors [2007] QSC 016
PARTIES:	GAIL SUSAN STEPHENS, KEITH CHARLES STEPHENS AND JOHN DAVID ANDREW PUNCH (applicants) v ANTHONY JOHN DOUGLAS STEPHENS; KATHERINE JAQUELINE MAY STEPHENS; PHILLIP JOSEPH EDWARD STEPHENS AND HENRY JACKSON LEON STEPHENS (by their litigation guardian TIMOTHY CLIFTON WHITNEY); PETER JAMES STEPHENS; CHRISTOPHER STEPHENS, TANIA STEPHENS; LOUISE STEPHENS AND NICOLE STEPHENS (respondents)
FILE NO/S:	5008/06
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	8 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2006
JUDGE:	Philippides J
ORDER:	1. The will of Anthony Leon Stephens executed on 18 January 1988, together with sheet two of the document 12, filed 20 July 2006, being the paper writing dated 1 July 2001 (“the 2001 amendments”), be admitted to probate, subject to the formal requirements of the registrar. 2. The 2001 amendments constitute a codicil to the 1988 will and on proper construction of the will and codicil: (a) have the effect of revoking cls 5(a), (b) and (c) of the 1988 will; (b) do not have the effect of revoking cl 5(d) of the 1988 will. 3. As to the one forty-second part of the residuary estate which is unallocated under the will there is an intestacy.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – Execution – Informal document intended as testamentary instrument – attestation – where one attesting witness – whether substantial compliance with the formal requirements of s 9 of the Succession Act – construction of will and codicil – where a part of the residuary estate not allocated – whether s 29 of the Act applicable to prevent intestacy as to an unallocated portion of the residuary estate Succession Act 1981, s 9, s 29 Comiskey v Bowring-Handbury [1905] AC 84 Finche v Combe [1894] P 191 In re Burley [1910] 1 Ch 215 In the Estate of Ashley David Schwartzkoppff [2006] SASC 131 Public Trustee of Queensland v Attorney General of Queensland [2004] QSC 328 Re Adams (deceased) [1990] 2 All ER 97 Re Cashin [1992] 2 Qd R 63 Re Estate of Robert Wilcock [2004] QSC 473 Re Hess [1992] 1 Qd R 176 Re Johnston [1983] 1 Qd R 516 Re Matthews [1989] 1 Qd R 300 Re Nicholls [1996] 1 Qd R 179 Re Olive [1989] 1 Qd R 544. Re the Will of Eagles [1990] 2 Qd R 501 Re White [1985] QSC 611
COUNSEL:	D G Mullins for the applicants R Peterson for the respondents R Whiteford for the litigation guardian
SOLICITORS:	Short Punch & Greatorix for the applicants Robbins Watson for the respondents McCullough Robertson for the litigation guardian