Section 10 of Queensland’s Succession Act sets out the specific requirements for the valid execution of a will. The same law – in section 18 – allows a court to declare a document that has not been executed in that manner to be nevertheless valid if certain conditions are met.

iStock 472171561 1Two recent court rulings illustrate the vagaries in the interpretation of section 18 and the hurdles that must be cleared to gain a declaration as to the validity of an “informal will”.

Consider first the estate of Kenneth Hicklin who died in Brisbane on 10 June 2017.

His partner Jennifer had predeceased him in 2016. They left behind Ken’s two children Cameron and Nina, and Jennifer’s children Lara and Terry who were step-children to Ken.

All four adult children were close to the couple and they all regarded Ken as their dad.

Ken’s will – made in 1979 – provided as a result of Jennifer’s death, that his estate would be distributed equally to the four children.

There was however a further handwritten memorandum dated 4 June 2017 prepared by a different solicitor recording Ken’s new instructions as regards the major asset of his estate, the Kallangur home where he resided with Nina and her son Ethyn.

The memorandum of instructions which gifted the home to Ethyn was signed by Ken and witnessed by the solicitor. It could not qualify as formal will because there was only one witness.

Nina made application to the Supreme Court for a declaration that the memorandum of instructions be approved as a will.

Her argument was premised upon the memorandum having a heading “Will”, the fact that it appointed an executor, dealt with all estate assets and included a certification that “This document sets out my testamentary intent as of today”.

Her brother Cameron opposed the application and urged Justice Susan Brown to rule that the 1979 will should stand.

There was no dispute as to two threshold issues which the court was required to consider namely that the memorandum of instructions was a “document” or that it expressed the deceased’s testamentary intentions.

Justice Brown also had to consider whether Ken had the necessary legal capacity to make a will at the time he signed the memorandum of instructions to the solicitor.

No one contended any diminished legal capacity and the court ultimately accepted that Ken had the requisite capacity at the time the informal document was signed.

Cameron argued though, that his father had not intended the memo to be his will. Rather  it merely contained the solicitor’s notes of their meeting. The testator had relied – he asserted – on the solicitor having told Ken before he signed the memo that it would not be his will and that he would return the next day with a formal document for signing.

Justice Brown considered in intricate detail whether Ken intended the signed instructions to be his will and whether he knew and approved of the contents.

Evidence called from the solicitor and all four children was closely examined.

Close analysis was made of the differing accounts of the various witnesses and some “inconsistencies” that had unsurprisingly crept into the solicitor’s account over the three year period between notes prepared at the time, a written statement given some months later and his oral testimony.

Noting that the inconsistencies arose as a result of the passage of time and not from any fault of the solicitor, Justice Brown ultimately preferred the notes prepared at the time and held that the signed memorandum of instruction was not intended by Ken to be a will.

The judgement provides a valuable insight into the rigour applied in this context to the nuances of inconclusive evidence.

A determination of an almost identical issue was far more easily reached in the estate Barry Weedon who died on 6 November 2019.

Family members discovered a document headed “My Last Will 19/April/2013” amongst Barry’s effects.

His signature had been witnessed by a Justice of the Peace. Given the absence of a second witness, the document needed a declaration of validity if it was to be enforced.

Justice James Henry observed that that he “would, in the ordinary course, have no hesitation” in declaring that the document was the deceased’s last will. He had no doubt it was a document that was intended by the deceased to be his will and that the deceased had the requisite legal capacity to make a will at that time. The issues that had troubled Justice Brown in relation to Mr Hicklin’s estate were not material here.

The informally signed will left Barry’s entire estate to his niece Miranda Coss save for nominal gifts of $2 each to his two daughters. But unless the informal will was declared valid, the daughters would receive the entire estate between them under the rules of intestacy.

His Honour was concerned that the daughters had not been served with the application and -although strictly not required – he ordered they be given an opportunity to be heard.

But even after service of the proceedings, the daughters chose not to challenge the application.

Justice Henry thus declared the informally signed document to be Barry’s last will.

These cases demonstrate as always the value in preparing a will that meets the formal requirements and getting professional assistance to do so.

The cost of a professionally prepared will is insignificant compared to the legal costs, uncertainty and inconvenience associated with a contest over the validity of a document that does not meet minimum legal requirements.

Tolbert v Hicklin [2020] QSC 199 Brown J 26 June 2020

Re Weedon (deceased) [2020] QSC 161 Henry J 29 April 2020