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TO BE OR NOT TO BE – WHEN WILL INFORMAL DO? An update on informal wills under s18 Succession Act

TO BE OR NOT TO BE – WHEN WILL INFORMAL DO? An update on informal wills under s18 Succession Act NQLA Conference – Townsville – 27 May 2011 Caite Brewer - Senior Associate, QLS Accredited Specialist, Succession Law. Section 18. New s18 introduced in 2006 “testamentary intention test”

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TO BE OR NOT TO BE – WHEN WILL INFORMAL DO? An update on informal wills under s18 Succession Act

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  1. TO BE OR NOT TO BE – WHEN WILL INFORMAL DO? An update on informal wills under s18 Succession Act NQLA Conference – Townsville – 27 May 2011 Caite Brewer - Senior Associate, QLS Accredited Specialist, Succession Law

  2. Section 18 • New s18 introduced in 2006 • “testamentary intention test” • Replaced the old “substantial compliance” test

  3. Section 18 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.

  4. Section 18 • Admissible evidence: (a) evidence relating to the way in which the document was executed (b) evidence of the person’s testamentary intentions, including statements made by the person • Applies to a document whether it came into existence in or outside of Queensland

  5. What is a “document”? • “Document” defined in s5 Succession Act: Document - (a) for part 2, other than section 18, means any paper or material on which there is writing; or (b) for section 18, see the Acts Interpretation Act 1954, section 36.

  6. What is a “document”? • Section 36 of the Acts Interpretation Act provides: document includes – (a) any paper or other material on which there is writing; and (b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and (c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

  7. Testamentary Intention Test • 3 requirements to be considered a will (Estate of Masters – Hill v Plummer) (a) it must be a document and must purport to state the testator’s testamentary intentions - that is, his wishes or intentions as to how his property is to pass or be disposed of after his death; (b) it must not operate to bind the deceased during his lifetime; (c) it must be intended by the deceased to constitute his will.

  8. Testamentary Intention Test • 3 questions of fact (Hatsatouris v Hatsatouris) (a) was there a document? (b) did that document purport to embody the testamentary intentions of the 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 document, 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?

  9. Testamentary Intention Test • Relevant fact is whether deceased intended document operate as a will not whether court is satisfied that was the deceased’s intention • Document therefore operates as a will as and from the date when the relevant intention existed (not from the date the Court determines it existed) • Court not restricted in its search for intention to some particular time – must have regard “to the totality of events” • Testamentary intention is at time of making the document, not at time of death.

  10. Cases • Estate of Masters – Hill v Plummer (1994) 33 NSWLR 446 • Hatsatouris v Hatsatouris[2001] NSWLA 408 • Re Hodge (unreported Supreme Court of Queensland, Moynihan J, 14 February 2007 • Re Windus[2007] QSC 391 • Estate of Blakely (1983) 32 SASR 473

  11. Cases • Re Garris[2007] QSC 181 • Re Vogele [2007] QSC 404 • Hensler v Padget [2008] QSC 82 • Re Yates [2008] WASC 211 • Re Pierce [2009] QSC 282 • Estate ofHines v Hines [1999] WASC 111

  12. Evidence • the “document” itself • circumstances surrounding the creation or execution of the document • how it was found • statements made by the deceased • family members or friends • treating doctor or other medical specialist • medical Files • handwriting expert

  13. Evidence • solicitor/will file • previous wills • death Certificate • estate assets and liabilities • evidence of search for a formal will • police investigators • the usual executor’s affidavit • identification of beneficiaries under previous wills • who is interested on intestacy

  14. Procedural Issues • Caveat • Registrar or Judge • Advertising • Costs • Timing • Representation of all relevant parties • Conflicts • Litigation guardian

  15. Questions? For More Information, please contact: Caite Brewer Senior Associate (07) 3014 6578 cbrewer@mcw.com.au

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