What happens if a will-maker goes to all the trouble of having his will duly witnessed but then omits to apply his own signature?
That is the case that recently confronted the Supreme Court in Brisbane in connection with the estate of Jacob Ormerod who died in August 2021.
Aware that his cancer would soon end his life, Jacob – aged 29 – listed his assets in a document titled “Last Will and Testament”.
He arranged for two witnesses to come to his Gold Coast home on 1 July 2021 for the purposes of witnessing the document. He made an amendment to the will, initialling the change before the two witnesses signed and dated it.
What he didn’t do was sign the will where required.
His mother Susan – who the unsigned will appointed executor and a beneficiary – applied to the court under s 18 of the Succession Act for the incomplete document to be declared to be a valid will.
Her Honour Justice Sue Brown observed that it was incumbent upon the applicant to establish Jacob wanted the particular document to be his will and required no changes be made.
The existence of a document that purports to be the will-maker’s last will satisfied the first of three conditions of which she was required to be satisfied.
That the document set out specific items of property and the people to whom they were to be given also indicated it purported to express the deceased’s testamentary intentions, thereby satisfying the second of those requirements.
Her Honour then whether the document was intended by the will-maker to be legally operative so as to dispose of his property upon his death.
Given the arrangements for the witnesses to attend his home for the specific purpose of witnessing his will, his completion of the document before their arrival and the statements made to his girlfriend and mother that he was making a will, Justice Brown was persuaded that this third condition was satisfied.
Both witnesses swore affidavits as to what had occurred.
Robert Hogg, a Justice of the Peace swore that he drew an error at the top of page 2 of the will to Jacob’s attention as a result of which the change was made and initialled.
“Rather surprisingly, neither of the witnesses noticed that Jacob had failed to sign the will,” noted the judge. “Given the steps taken, I infer it was most likely an oversight”.
Her Honour went on to observe that because the will was not executed in accordance with the requirements of s 10 of the Act, there was no presumption as to Jacob’s testamentary capacity.
She was though prepared to conclude he had the requisite testamentary capacity because he had undertaken the exercise of listing his assets in a rational way; had taken the steps to organise the attendance of the witnesses at his home; and spoke to others about his intentions regarding his assets and the making of the will.
Finally, the court was required to be satisfied that attempts had been made to locate Jacob’s father, a potentially interested party in the event of intestacy. Despite attempts that included engaging a private investigator, he could not be located.
Satisfied on all relevant points, the court ruled that the unsigned document be held to be Jacob’s will and that probate should be granted to Susan.