In June 2020, James O’Connor – a never married medical specialist who had no children – suffered a heart attack and died some weeks later in a Gold Coast hospital.
He had made a formal will with solicitors in May 2003 which appointed the St Vincent de Paul Society of Victoria as the major beneficiary.
However some informal notes found at his residence by relatives who assisted him when he was hospitalised appeared to grant Cancer Council Queensland a 20% share.
The inevitable dispute between the two charities came before Justice Glenn Martin of the Supreme Court of Queensland in August 2024 who was charged with determining which document or documents constituted James’ last valid will.
The first set of informal notes (referred to as the Update Notes) consisted of 8 numbered pages titled UPDATE AND CHANGES TO THE WILL OF JAMES EDMUND O’CONNOR which were signed and dated by two entries 10/02/2020 and 8/4/2020.
The second tranche of informal notes – titled DETAILED NOTES – comprised 6 pages with page 2 headed “Details for the last will of James Edmond O’Connor”. It contained a detailed summary of a large variety of James’ assets, including cash deposits, shares, bonds, real estate, a car and superannuation entitlements.
Ordinarily a will must be in writing and signed by the willmaker and 2 witnesses (and ideally, the will should also be dated). But Queensland law permits an informal document – not made in accordance with those formalities – to be admitted to probate as an informal will subject to the ruling of the court.
With this in mind, Samantha Lennox on behalf of Cancer Council Queensland, sought to have the Update Notes declared as James’ informal will.
Justice Martin concluded that neither the Update Notes nor the Detailed Notes constituted an informal will but were instead “notes to be used when [James was] considering changes he might want to make to his will” and an aide memoir for him doing so.
His Honour observed that James had previously made a will and was thus aware of the formalities and protocols for making a will. Additionally, the informal notes contained a lengthy summary of the legal requirements for doing exactly that.
The May 2003 will favouring the St Vincent de Paul Society of Victoria was held to be the valid will for which probate was granted reflecting the willmaker’s intention.
The case serves as a reminder that informal notes accompanying or referring to wills must be treated cautiously and can cause significant delay. In this instance the process occupied more than 4 years from James’ death and incurred significant legal costs payable by James’ estate to resolve the ambiguity.