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”

• Replaced the old “substantial compliance” test

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.

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

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.

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).

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.

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?

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.

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

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 of Hines v Hines [1999] WASC 111

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

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

Procedural Issues

• Caveat

• Registrar or Judge

• Advertising

• Costs

• Timing

• Representation of all relevant parties

– Conflicts

– Litigation guardian

Questions?

For More Information, please contact:

Caite BrewerSenior Associate(07) 3014 6578cbrewer@mcw.com.au