A testator must, at the time of signing, have had an intention to put
into effect a document that comes within the definition of a will. This intention can be expressed in the document, by the commencing words:
”This is the last will and testament …”;
or implied by the form of the document. Oral evidence is admissible to prove testamentary intention.
The definition in Sch 1 of the Acts Interpretation Act 1954 (Qld) provides that “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).
The following events took place in a hospital room in a private hospital at the Gold Coast. The testator was a Chinese National with substantial investments in Queensland who spoke and understood little English. He was being supported through the last stages of his illness by a nephew who was present during the events. The testator’s executor Doris Choi had been involved in his business affairs for some time.
Due to the testator’s bad health the will was executed in urgent circumstances wIth the intention that it be a temporary will pending preparation and execution of a more complete document As it turned out, the testator’s condition deteriorated rapidly and he did not execute any further will.
Doris engaged a solicitor, to assist in the preparation of the will who had regularly undertaken legal work for the testator’s businesses but was not an estate lawyer. It is important to note that the testator did not understand what passed between Doris and the solicitor. The testator’s appreciation of events, for the purpose of assessing his awareness and approval of the contents of the will, depended on what passed between him and Doris .
The solicitor advised Doris that the testator needed to name beneficiaries and specify the proportions of the estate for each beneficiary. The nephew sent Doris a video clip of the testator specifying his two daughters and two sisters as beneficiaries. Following this Doris sent an electronic message to the testator enquiring whether his estate was to be distributed equally before receiving a response Doris sent details of the proposed beneficiaries to the solicitor following this the testator replied to her request (about equal distribution) stating that he hoped everyone would agree.
Although, there was no evidence that the testator had any appreciation of Chinese law on the subject the Court of appeal had consulted the Law of Succession of the People’s Republic of China as in that jurisdiction the time and mode for partitioning the estate shall be decided through consultation by and among the successors in the spirit of mutual understanding and mutual accommodation.
Later that day, Doris and the solicitor met with the nephew and the second witness attended the testator in his hospital room. While drafting the will on her personal computer, the solicitor asked Doris whether the testator had decided the distribution proportions. Doris responded that the testator hoped everyone would agree but had received no further information.
As a result of this conversation, the solicitor prepared the draft will providing expressly that the distribution to the beneficiaries would be made equally, although the clause was set out in a way that would readily enable amendment to insert differential proportions.
Shortly after Doris and the solicitor arrived, the testator without further explanation asked for the will took the document and signed it. He then wrote in Chinese characters confirming that his assets were to be given to four beneficiaries although he was “not yet decided” on the proportions. Following her explanation of the operation of the express provision of the will as to equal distribution and a short discussion among those present Doris asked the testator in Mandarin:
“What do you want to write? Equally distributed among four people.”
The testator replied:
”No, not equally – not equally distributed” .
Doris told the solicitor that the testator wanted to cross out equally; then said to the testator in Mandarin
“So we will delete the word”
and told him to initial the change, which he did after the word equally had been crossed out. Following that, the witnesses witnessed the will.
The execution of the will complied with the requirements of s 10 of the Succession Act 1981 (Qld). However, the circumstances attending the execution of the will raised a real question as to whether the testator knew and approved of its contents and effect.
Did the testator intend to execute: a will that had the effect of leaving his estate to the four named beneficiaries equally, or on the footing that the distribution was not to be equal and that he had not made up his mind as to what their shares would be.
At first instance, the Court found that at no stage before or after the testator signed the deletion did Ms Choi seek confirmation from the testator that he understood that the deletion would have no impact on the assets being distributed equally between the four beneficiaries contrary to his express wishes.
Further, if the testator understood Doris’s statement that the distribution would be equal, absent an allocation of proportions, there was no rational basis on which the testator would have required the word “equally” to be crossed out.
Significantly the testator was not asked, at the time Doris gave her explanations to confirm that he understood them in particular, whether he understood and was not advised that crossing out the word “equally” would still result in an equal distribution of assets between the beneficiaries.
The appellant’s argument was whether the will should be admitted under s 18 of the Act. Section 18 outlines the circumstances when the court may dispense with execution requirements for a will, alteration or revocation of a will.
On appeal, the sole question for determination is whether that finding, made by inference, was incorrect. The draft will executed by the testator was written in English; the testator did not understand written English. The Solicitor did not speak Mandarin and did not understand the conversation between Ms Choi and the testator. Ms Choi and the Solicitor spoke to one another in English, and the testator did not understand the conversation between them. The nephew spoke both Mandarin and English. The language capabilities of the other witness were not established.
The Court found on the part of the primary judge in reaching the conclusion that the deceased did not understand or approve of the document providing for an equal distribution to the beneficiaries as his last will.
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