Prince Phillip’s Will to remain unpublished for at least 90 years

In the United Kingdom s124 of the Senior Courts Act 1981, (‘SCA 1981’) provides that when a grant of probate is made, any Will or other documents that are relevant to that grant must be open to inspection.

Rule 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’) provides that:

“An original will, or document referred to in section 124 of the [Senior Courts] Act shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be undesirable or inappropriate.”

While the Sovereign’s will does not need to be proved by a grant of probate, the estates of other members of the Royal Family shall be administered following the ordinary probate rules, this includes the power of a court to direct that the will or other document filed with the grant of probate not be open to inspection.

The Application

The executor of HRH Prince Philip, Duke of Edinburgh (“the Deceased”) applied for an order that the deceased’s will, executed on 5 June 2013, be sealed in an envelope and that no copy of the will should be made for the record or kept on the court file. The purpose of the application is to protect the dignity of the person of the Sovereign, by protecting the privacy of those family members closest to Her. Additionally, the application seeks to exclude the value of the estate from the grant of probate.

Recent case law concerning sealed Royal Wills

The first family member whose will was sealed up by the court was the younger brother of Queen Mary, Prince Francis of Teck, who died in 1910 leaving valuable emeralds prized by the Queen to his mistress.

In 2007, Robert Brown, claiming to be the illegitimate child of Princess Margaret, applied to unseal the wills of the Queen Mother and Princess Margaret however this claim was struck out as “vexatious and an abuse of process”.

On appeal, the Court of Appeal held that although Mr Brown was motivated by a “belief that is both irrational and scandalous” accepted that he should have been able to raise several general issues of public importance relating to the original process by which the Wills had been sealed.

Attorney Generals Practice note

Following the discontinuation of the appeal by Mr Brown, he made a request under the Freedom of Information Act 2000 for the document describing the practice of the sealing of Royal wills. Before the hearing, the Attorney General had decided to disclose the confidential note which provided that the Family Division applied to ‘senior members of the Royal Family’ including

• The Consort of a Sovereign or former Sovereign.

• The child of a Sovereign or former Sovereign; and

• A member of the Royal Family who, at the time of His/or Her death, is first or second in line of succession to the throne or the child of such a person.

The Decision

Once any potential appeal against his judgement has been able to run its course Sir Andrew as the President of the Family Division will publish a complete list of the names of the Royal Family members whose Wills are sealed in envelopes and contained in a safe to which he is the custodian. Additionally, the wills of other, less senior, members of the Royal Family may have been sealed for specific reasons, or due to a wider definition of “Royal Family” being applied in this context in earlier times.

The parties argued that the wills should be sealed for 125 years, but Sir Andrew believed that 90 years was “proportionate and sufficient” after which each royal Will would be opened by a professional archivist to ensure the documents and seals are properly preserved prior to examination by the Sovereign’s private solicitor, the keeper of the Royal Archives, the attorney general and any personal representative of the deceased who may still be available. A decision as to whether the Will is made public will be made at that stage, however, Sir Andrew believes that some royal wills may never be published, even in part.

Missing Presumed Dead

Following a person’s disappearance for at least seven years, that person may be presumed to be dead. However, whether the person has died is a question of fact therefore it is not always necessary to wait seven years – even where that person’s body has not been found.

Background

Wiehong Guo (“WG”) was a permanent resident of Australia. She had been born in China but moved to Australia in 2000 where she purchased a property in Carlingford (“the Carlingford Property”). WG continued to maintain relationships with people in Australia and her family in China.

WG had not been seen since April 2001. Despite inquiries police couldn’t locate her, nor did any bank or government agencies have any records or transactions after this date similarly immigration records indicated that WG had not left Australia.

The Proceedings

On 1 October 2019, WG’s daughter Sijia Guo, (“the Plaintiff”) sought various forms of relief, including a family provision order based upon the premise that WG was dead.

Yong Wei Gao, WG’s husband (but not the Plaintiff’s father) was named as a defendant. Yong Wei married WG in about March 2000 and they remained married at the date of her disappearance.

Sijia and Yong Wei agreed that WG should be considered dead but as there was no proof that they had died required the Court to decide that the missing person was dead. The onus of establishing the presumption the WG was dead rests on the party who seeks it, and it is found on the balance of probabilities.

The court found that there was no acceptable, affirmative, or direct evidence that WG is dead. Nor is there proof of death by inference therefore, the parties rely upon proof of death by presumption that the person has been absent, and not been heard of, or from, by those who might have been expected to hear of, or from, her, or him, for seven years.

The Court was satisfied, on the balance of probabilities, WG has been missing for more than 7 years; her disappearance was unexpected and unexplained and those most likely to have not heard from her. WG’s body has not been discovered or identified. Importantly, there is no evidence to raise an issue that WG is alive or any reason to believe that she was alive, which would rebut the presumption of death.

Section 40A of the Probate and Administration Act 1898 (NSW), relevantly, provides:

(1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

Section 40B(3) of the Probate and Administration Act, relevantly, provides:

The estate shall not be distributed without the leave of the Court.

The Decision

The Court was satisfied that WG, on presumption of death, is no longer alive and left no Will. Sijia and Yong Wei are entitled under the operation of the rules of intestacy, to share the estate of WG each consent to an independent administrator being appointed to administer the intestate estate of WG.

Additionally, Yong Wei will not sell, mortgage, charge, or in any way encumber, or deal with, the Carlingford property until further order of the Court.

Resealing Probate in the BVI

Where a person has died leaving assets in the British Virgin Islands (BVI), one of the following will be required in order to deal with those assets

(1) a grant of probate has been issued by the Registry; or

(2) a grant of letters of administration has been obtained from the Registry; or where a foreign grant is eligible for resealing

(3) the deceased shareholder’s foreign grant of probate or letters of administration has been re-sealed by the Registry.

Without a grant assets will cannot be transferred, and any powers derived from the asset cannot be exercised, and any benefit cannot be distributed.

Until recently foreign grants could only resealed in the BVI where the grant was issued by courts of probate in “Her Majesty’s dominions”which were limited to:

  • any British protectorate;
  • any [British] protected state; or
  • any territory in respect of which a mandate or trusteeship is being exercised by Her Majesty’s Government in the United Kingdom or the Government of any part of Her Majesty’s dominions.

The absence of a clear list of jurisdictions, often added to the cost, delay and complexity of the BVI probate process.

In July 2021, the Probates (Resealing) Act, 2021 (the Act) repealed The Probates (Resealing) Act (Cap. 60), 1937 (the 1937 Act) to modernize and provide greater flexibility to the trusts and probate laws in the BVI.

Importantly the Act expands the list of relevant jurisdictions to whose grants of representations may be resealed in the BVI. Including Hong Kong and the USA in addition to all Commonwealth countries.

Intestacy, Siblings & Statutory Interpretation

In Australia, on intestacy some jurisdictions do not distinguish between the entitlements of full siblings and half-siblings; s 101 of the Succession Act 2006(NSW) defines brother or sister, similarly,  s 12B of the Administration Act 1903 (WA) provides that relationships of the full blood and the half-blood are treated equally.

From 1 November 2017,  the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) (‘the 2017 amendments’) applies to those who die leaving intestate estates in Victoria.

Before the 2017 amendments, s  52(f)(vii) of the Administration and Probate Act 1958 (Vic) (the “Act”) reflected the common law position that on the distribution of an intestate estate, there shall be no difference between full siblings and half siblings. However, the 2017 amendments repealed  s 52 of the Act , did not include a replacement for s 52(1)(f)(vii), nor did it define ‘sibling’.

Background

Lynndall McKinnon died intestate in December 2018 her husband, Kenneth, daughter, Kerrie, and her parents, Leroy Clarence  and Gladys  Shears, all predeceased her.  Kerrie did not have any children.   

Lynndall was survived by children of Leroy and Gladys Dorothy Shears; Carmen Giddens (‘the plaintiff’), Gregory  and Raymond Shears, her brother John  Shears, predeceased Lynndall leaving no children.

Lynndall is also survived by children of her mother Gladys and Robert Turner; Dianne Perkins, Wendy  Zanin, Robyn  Medew and Debbie Turner. Donna Lee Turner, predeceased Lynndall leaving no children.

At the date of her death, Lynndall did not have a domestic partner.

Carmen Giddens was granted letters of administration of Lynndall’s estate on  25 June 2019, seeking clarification from the Court how the estate is to be distributed under s 70ZI(1) of the Administration and Probate Act 1958.

The Decision

The Court expressed that the meaning of the Act is to be derived from its text, context and purpose. Additionally, s 35 of the Interpretation of Legislation Act 1984 (Vic) provides that, an interpretation of a provision of an Act, promoting the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.  

In respect of the laws of intestacy, a review of Victorian succession laws by the Victorian Law Reform Commission was tasked by the Attorney-General  to review and report on whether the statutory scheme for distribution of property on intestacy was operating effectively to achieve just and equitable outcomes.

 Additionally the Court found no reference in the second reading speech and explanatory memorandum  or definition of the meaning of sibling, of an intention by Parliament to create a distinction  between siblings including narrowing the previous scheme to exclude half siblings from receiving any distribution. 

In Answering the questions raised by Carmen the Court ordered that the estate be distributed equally between surviving siblings and half siblings.

 

Calderbank

A Calderbank offer is made by one party putting the other side on notice that if the dispute goes before a court, and the outcome is less favourable to the other, the court, in exercising its discretion as to costs, can order a party who rejected the settlement offer to pay the successful party’s costs up to the time the offer was made, on an ordinary basis; and from the date of the offer to the end of the litigation on an indemnity basis.

In August 2018, Olga Hart was advised by her solicitor that a “no-contest clause” in her Will would be unenforceable. However under ACT law if a deceased estate had no net value there would be no funds available to create the Olga Hart Trust (“the Trust”) and write cheques (the Cheques) totalling $1.2M  in favour of the Trust to “exhaust” her estate. Clause 10 of the Trust deed provided that upon Olga’s death her daughter Donna Gordon succeeded her as trustee.

On 5 September 2018, Olga Hart prepared her final will (the Will) naming Donna as the sole executor and making a provision that her former de facto partner James Ross receive a cash sum of $200,000.00 but no property from the estate(the Estate). James was not made aware of the existence of this will until after Olga’s death.

Following Olga’s death in September 2018 Donna became the trustee of the Trust. James filed a caveat on 18 October 2018  against the probate of Olga’s estate. On 25 October, James was informed that the Estate had insufficient assets to pay the Cheques issued by Olga to the Trust, therefore any gifts and bequests in the Will would not be satisfied. However, if James agreed to abandon any rights against the Estate by 14 November 2018 he would be paid the bequest in the Will.

James failed in proceedings seeking declaratory relief, an order for family provision, damages for the tort of devastavit, and relief in equity against Donna in her capacity as trustee of the Trust, and, in her capacity as Executor of the estate.

Donna was granted probate on 25 March 2019. In late April 2019, the Cheques were presented and dishonoured by a financial institution. The Cheques were dishonoured on 26 April 2019.

The purpose of a costs order is to reach a fair and just result, usually the unsuccessful party is ordered to pay the costs of the successful party however in this matter the defendants made it clear in the September 2019 Calderbank letter of offer that an indemnity costs order would be sought and that the plaintiff received legal advice. Ultimately the defendants sought the usual order as to costs.

In the Court’s view, justice required that the unsuccessful party pay the costs of the successful party on the usual basis.

What Constitutes a Gift of a Chattel?

Sidney Nolan one of Australia’s most significant modernist artists, was already an established artist when he married his second wife, Cynthia, in 1948. Soon after the marriage, Sidney Nolan adopted Cynthia’s daughter, Mosca Gai Jinx Margaret Ellery Nolan (“Jinx”) who was then seven years of age. Throughout their marriage, Cynthia assisted Sidney Nolan with his work and in promoting his reputation.

In November 1976, Cynthia committed suicide leaving Jinx a life estate under an English will executed on 13 February 1976 and an Australian will executed on 22 April 1976. Sidney was surprised and distressed to receive no benefit under either of Cynthia’s wills. Shortly after Cynthia’s death, he began to reside at the home of Mary, who he married in February 1978. Sidney maintained a relationship with Jinx Nolan until he died in 1992.

The Claim

Jinx commenced proceedings in September 2001 claiming that she was entitled as the owner to the possession of three paintings by Sidney, “Hare in Trap”, “Royal Hotel” and “Italian Crucifix”, which she alleged were given by Sidney to Cynthia before her death in 1976.

Jinx submitted that she was not aware until September 2001 that there was evidence that the paintings were the property of Cynthia therefore, she was entitled to them as the sole beneficiary under her mother’s English and Australian wills.

The paintings were said to have been converted by Sidney shortly after Cynthia’s death and have never been delivered either to Jinx or the executors and trustees of Cynthia Nolan’s English or Australian estates, but passed to Sidney’s widow, Mary as executrix and sole beneficiary of his last will and estate.

Gift of a Chattel

At first instance the court stated the three elements of a valid inter vivos gift of a chattel (in the absence of a deed of gift, direction or declaration of trust) are:

(a) the intention to make a gift usually expressed by words;

(b) the intention on the part of the donee to accept the gift; and

(c) delivery.

Jinx claimed that each of the three paintings was given to Cynthia by Sydney Nolan before her death in 1976 and constituted assets of Cynthia’s estate. The Court accepted that Sidney Nolan gave paintings to his wife Cynthia during their marriage, which, upon her death, constituted assets of Cynthia’s English and Australian estates. Similarly, the three paintings were in the possession of Sidney Nolan until he died in 1992.

Mary Nolan acquired title to the three paintings according to Sidney’s will executed on 6 February 1978, under which she was the sole beneficiary. Artworks are chattels – personal, tangible, moveable items of property.

The Decision

In dismissing the claim, the court held that Jinx hadn’t established that Sidney Nolan had given the paintings to Cynthia. Although if this had been established the right of action of Cynthia’s trustees would have been barred after the expiration of a six-year period under the Limitation of Actions Act 1958 (“the Act”).

Similarly, the court dismissed the submission that as Sidney Nolan had completed all elements of a gift save for the transfer of legal title, therefore as constructive trustee no limitation applies under s.21 of the Act. Where a gift of chattels is complete and valid, there is no legitimate role for a constructive trust as the legal title to the chattels would have passed to the donee.

The Appeal

In dismissing Jinx’s appeal, the Supreme Court of Victoria Court of Appeal upheld that the claim was statute-barred and the approach to the legal elements of a gift, however, they held that it was arguable that if at first instance the court had considered all the evidence as a whole, (and not individually) it is open to conclude that on the balance of probabilities, Sidney Nolan had made an absolute gift of the three paintings to Cynthia Nolan, which amounted to a fundamental error to the conclusion that Jinx had not established her case. 

Administrator ad litem

Alan and Gwyneth Grant married in 1953 and had five children, Nerez, Seth, Ryven, Miles and Tansin. Gwyneth died in May 2017 and Alan in November 2019. The Grant family life was marred by conflicts that had to be resolved by Court proceedings through their estates, which were parties to two sets of proceedings that were heard together.

Action by administrator ad litem

An administrator ad litem is a person appointed by the court (if there is no existing executor or administrator of the estate or if the executor or administrator has a conflicting interest) to represent the estate during a lawsuit- if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests.

The Proceedings

Alan commenced proceedings against his daughter Nerez Grant who as her father’s attorney had transferred a property at Killcare to her daughter Kashaya on 27 September 2017. Additionally, Allan sought sums of $100,000 and $34,700 that Nerez had transferred out of his bank account. Following Alan’s death, his estate was represented by his son Seth as administrator ad litem.

Power of Attorney

Alan’s power of attorney did not authorise Nerez to make gifts of real property. The transfer executed by Nerez expressed consideration of $900,000 in favour of Alan; however, no consideration was paid.

Nerez and Kashaya submitted a copy of a typed letter purportedly sent by Alan directing Nerez to transfer the property to Kashaya. The letter was signed “Alan”. The Court accepted the evidence of a handwriting expert, finding the transfer constituted a fraud to which Kashaya was a party.

The Court held that Nerez had breached her fiduciary duty in a dishonest and fraudulent scheme to transfer Alan’s interest in the Killcare property to Kashaya and in debiting $34,700 from Alan’s account to pay transfer duty to the Office of State Revenue; ordering that the Killcare property be transferred to the administrator for no consideration.

Similarly, the Court held the sum of $100,000 transferred from Alan’s bank account by Nerez be held on trust for the estate.

Family Provision claim

Nerez sought a family provision order from Gwynneth’s estate. The Court dismissed the claim finding that Nerez had already received substantial benefits from her mother and had ill-treated her parents. Ordering Nerez to pay the estate’s costs of the family provision proceedings.

The Appeal

On appeal, Nerez and Kashaya submitted that the court failed to consider “expert reports in evidence supporting the(ir) case”, and that Alan intended that the property remain out of the hands of Seth and his sister Tansin.

In dismissing the appeal, the full court found the appellants failed to identify any “expert reports” supportive of their case; affirming that Kashaya was a party to obtaining title by fraud.

Nerez challenged the family provision decision on several grounds including Alan’s dementia, several wills made by Alan under undue influence and an assertion of favouritism on the part of the primary judge.

The full court held that Alan’s dementia, which went to testamentary capacity, and the allegations of undue influence were irrelevant to the family provision proceedings against Gwynneth Grant’s estate. Nerez made no submissions to the court of appeal in support of the allegation of favouritism, additionally, a review of the transcript revealed no basis for the assertion.

The New South Wales Court of Appeal ordered Nerez and Kashaya to pay the legal costs of the estate.

 

Multiple Wills, Codicils & Estrangement

David Lewis and his brothers Peter, Roger and Hugh had a history of conflict and estrangement which renewed around March 2012.

Background

In May 2010 Pamela Lewis instructed her solicitor to make a will dividing her estate into five equal shares with each of her sons to receive one share. The remaining share was to be divided between her seven grandchildren.

Pamela’s son Peter (a solicitor) prepared a Will for his mother in 2011 containing minor changes to her previous Wills. However, Pamela signed the document, and later Peter had her neighbours sign as witnesses putting the validity of the Will at risk.

Between 2012 and 2015, David instructed a solicitor to prepare several testamentary documents however it wasn’t clear if the instructions reflected David or Pamela’s intentions.

Pamela died in 2017. David sought probate on Pamela’s December 2014 Will and two 2015 codicils (“2014 Will and Codicils). Pamela’s son Peter claimed she lacked testamentary capacity to make the 2014 Wills and codicils and did not understand or approve their contents. Peter sought Probate on a 2011 Will, along with two of the four following codicils (2011 Will and codicils) In the alternative if the Court found both Wills invalid, then Pamela’s July 2010 Will should be admitted for Probate.

The decision


At first instance, the Court found that Pamela had testamentary capacity but had not been shown to have known and approved the clauses of the 2014 will and its codicils which conferred powers on David. Accordingly, the Court admitted part of the 2014 Will along with three clauses of the August 2015 codicil into Probate. The 2010 and 2011 Will were not included in the grant ofbprobate but were used to confirm the testator’s testamentary capacity.

The Court expressed concern with Peter’s conduct in connection with the attestation of the 2011 will. As on the face of it, it may justify the referral to the Law Society for consideration of disciplinary action against Peter as a solicitor.

The Appeal

David appealed. The main issues in the appeal were:


• Whether the 2014 will had been read out loud to Pamela who then executed it;
• Whether, if so, the primary judge had erred in failing to find that she had known and approved the instruments.
• Whether the primary judge had erred in severing the 2014 will and one of its codicils.

The Court of Appeal rejected David’s appeal on grounds including that merely reading a will out loud to a capable testator does not mean that they know and approve the Will: additionally, the trial judge had not erred in severing the 2014 will and its codicils.

Probate Administration & the Unexecuted Will pt 2

Susan Sugars died on 23 March 2018 without leaving a will that had been executed with the formalities required by the Wills Act 1936 (SA). (”the Act”)

Susan was survived by the applicants her husband, Lynton , and two adult sons from a previous marriage, Jason and Darren Bridgman, who are the only issue of the deceased for the purposes of any administration of the deceased’s estate by way intestacy pursuant to section 72G of the Administration and Probate Act 1919 (SA).

Background

On 13 October 2016, Susan and Lynton instructed their solicitor to prepare mutual wills. The solicitor emailed a draft will on 7 November 2016, Susan replied the following day with additional instructions. On 17 November 2016, an amended draft will was emailed to Susan together with an explanation of recent changes.

Susan and Lynton responded on 4 July 2017, apologising for the delay in finalising the matter including  further amendments and concluding:

“Once these corrections have been made we will pay the invoice and send copies of the paperwork to our respective children to sign. Thank you for your patience in this matter.”

After updating the documents the solicitor replied on 17 July 2017, seeking further instructions concerning a proposed enduring power of attorney and concluding

“I will await your further instructions before sending through all of your amended documents.”

Susan and Lynton sent further instructions by  email on  24 July 2017, concerning their proposed enduring powers of attorney, advising that as Jason and Darren would be in Adelaide between 2 and 9 August 2017, it would be the ideal time to have them sign the documentation.

The solicitor replied via email on 25 July 2017, including proposed enduring power of attorney (EPA), advanced care directive (ACD) and a draft will.

The EPA and ACD were signed by Jason and Darren when they visited their mother between 2 and 9 August 2017. The will was not executed however, as all three of the applicants were named as executors and beneficiaries so couldn’t witness the execution of the will.

In August 2017, Susan was diagnosed with leukaemia; over the next few months she had inpatient treatment before dying unexpectedly in March 2018.

The application

The applicants sought probate on an unexecuted and undated four page typed document prepared by solicitors instructed by Susan. The document names the applicants as executors.

The applicants sought an order under s12(2) of the Act providing if the Court is satisfied that—

(a) a document expresses testamentary intentions of a deceased person; and

(b) the deceased person intended the document to constitute his or her will,

the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by the Act.

However as the Court observed in In the Estate of Graham deceased (1978) 20 SASR 198

“… s 12(2) is remedial in intent, … its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act…”

At 202

The decision

The Court was satisfied that the draft will conformed to the instructions Susan gave to her solicitor; had been approved of as at 4 July 2017 and that at that date Susan intended to execute a will in that form. Further, a latter draft only updating her address and sent on 25 July 2017 remained unexecuted for a short time before Susan was diagnosed with cancer.

Following her diagnosis Susan experienced a period during which she had multiple admissions to hospital and was focussed on her treatment. The Court accepted that Susan was of the belief that she would make a full recovery. Therefore the execution of the will was not seen as urgent.

In the circumstances, the Court was satisfied that the document:

(a)  expresses the testamentary intentions of the deceased; and

(b) the deceased intended, as at her death, the document to constitute her last will and testament.

 

 

Probate, Administration and the Unexecuted Will

In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], the NSW Court of appeal observed the questions arising on applications for letters administration of an informal will are essentially questions of fact to be answered being:

  • was there a document;
  • did that document embody the testamentary intentions of the deceased; and
  • the deceased 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?”

A similar approach was followed by the Queensland Court of Appeal in Lindsay v McGrath  [2016] 2 Qd R 160, where the Court observed:

“it is not enough that the document set out the deceased’s testamentary intentions…evidence must be submitted that the deceased intended the document to operate to dispose of their property upon death…”

In Western Australian in Oreski v Ikac [2008] WASCA 220.the Court of Appeal observed:

“It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased’s testamentary intentions, that is not of itself sufficient…It is…of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.”

Background

David McNamara died suddenly on 25 July, 2020, he was intestate. In contemplation of his marriage a will had been prepared for David by a solicitor, naming his de facto partner Ema as executor; he had not executed it.

David and Ema had both attended a solicitor and gave instructions for the making of their wills; they received draft copies on 23 September 2019. Following further instructions a revised version of the document was forwarded by email on 27 September. On 7 October 2019, David said he was happy with the content and that he asked Ema to make an appointment with their Solicitor to sign their wills.

David was unavailable to attend the solicitor’s office as he was busy with his work; in March Eva and David married and following this, were concerned with COVID-19.

Consideration

In Re McNamara [2021] QSC 148 Ema sought a declaration under s 18 Succession Act 1981 (Qld) that the unexecuted will is David’s will, and sought a grant of probate. Alternatively, Ema sought a grant of letters of administration on intestacy.

“The Court must determine whether the document … forms a will … of the deceased person … that the person intended the document … to form the person’s will…”

Ema further submitted that due to David’s heart condition they isolated as much as possible during COVID-19, in particular during late March up to the date of his death. The Court held that although there were many opportunities for the deceased to make time to execute their wills, particularly from October 2019 to February 2020, the COVID-19 pandemic may have made that somewhat more difficult.

Importantly the Court found that in conversations David had indicated he was uncertain that the content of the unexecuted will expressed the testamentary intention of the deceased.

“His conduct bespeaks a lack of conviction or a hesitancy in perfecting his choice to favour his wife relative to his children, at least to the extent that the unexecuted will purported to do.”

Decision

The Court in granting Ema letters of administration of David’s intestate estate wasn’t satisfied that David had intended the unexecuted document to form his will.