In Re Chambers (dec’d) [2023] QSC 230, Cherie Gayle Johnson (The applicant) applied for letters of administration of a document that purports to be the will of Kevin John Chambers (the deceased). Application to the Court was necessary as the Registrar issued a requisition that the deceased did not duly execute the Will.
Background
The deceased died on 17 March 2023 at the age of 91. The deceased’s marriage to Merle Agnes Chambers (Merle) produced two children: the applicant and Michael Frederick Chambers, called in some of the documents “Michael Thomas Chambers” (Michael). Merle died in 2003, and Michael died in 2014.
The deceased made a Will on 14 October 2017 (the Will). The Will is in a pre-printed form and consists of two pages. The first page contains all the operative provisions. It identifies Kevin as the testator, revokes all former testamentary instruments, appoints his grandson, Daniel Thomas Johnson (Daniel), his trustee and executor and leaves his entire estate to the applicant.
The deceased signed the two-page pre-printed will in two places on the front page before two witnesses. Contrary to the pre-printed note at the bottom of the first page, the witnesses did not sign that page. The witnesses each signed the second page, but the testator did not, contrary to the pre-printed note at the bottom.
Application for a grant of Letters of Administration
Daniel renounced his right to administration of the Will. As the applicant has priority under r 609 of the Uniform Civil Procedure Rules 1999, she applied for letters of administration. The Registrar met her application with the following requisitions:
“Section 10 of the Succession Act 1981 (the Act) sets out the way a Will must be executed that the attestation clause in this Will has to be signed by the two witnesses; however, the testator has not signed the Will in the attestation clause.
Action required a form 9 to the Court as constituted by a judge, together with obtaining an order following Section 18 of the Succession Act 1981 as a Judge can dispense with execution requirements for a Will, alteration, or revocation.”
The matter
In response to the requisitions, the applicant sought an application for letters of administration to be determined without an oral hearing. There are three matters for consideration:
- whether the application should be determined without an oral hearing;
- whether the Will is duly executed; if not,
- whether an order should be made dispensing with due execution.
Should the application be determined without an oral hearing?
Rule 489(2)of the Uniform Civil Procedure Rules 1999 provides that if the applicant proposes the application be decided without an oral hearing, the Court must determine the application without an oral hearing unless—
- (a) the Court considers it inappropriate to do so; rule 491, or
- (b) the respondent requires an oral hearing, rule 494, or
- (c) the applicant abandons the request for a decision without an oral hearing; rule 495, or
- (d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.”
The applicant enlivened r489 by proposing that the application be determined without an oral hearing. The application for letters of administration has been duly advertised.
- The applicant continues to press for the application to be determined without oral hearing.
- There is no opposition to the application being determined in this way.
- The Chief Justice has not suspended the operation of r 489.
Therefore, none of the circumstances prescribed by r 489(2)(b), (c) or (d) apply
The question before the Court, then, is whether it is inappropriate for the application to be heard without an oral hearing. The substantive questions on the application are as to the execution of the Will. There is no reason to doubt the evidence of the two witnesses. The original Will, which bears the execution by both the deceased and the two witnesses, has been filed. Nothing suggests that an oral hearing is necessary or desirable in the interests of justice. In the circumstances, it is not “inappropriate” to consider the application without an oral hearing.
Was the Will duly executed?
The Court found that the witnesses did sign at the foot or end of the Will. Nothing in s 10 of the Succession Act suggests that the witnesses must sign on the same page or place as the testator. Section 10(4) requires the witnesses to “attest and sign the will”, and s 10(6) provides that the testator’s and the witnesses’ signatures need not be at the foot of the Will. Section 10(6) applies to all signatures required by s 10(2) and (3), and on a proper construction, some of those signatures might and might not be at the foot of the Will, and some might be on different pages to others. The Court decided the Will was validly executed, and there was no need to consider dispensation with due execution.
The decision
The Court:
- held that the evidence shows the deceased signed the Will. The two witnesses were present with the deceased and saw him sign the Will; each attested and signed the Will in the presence of the deceased. It follows that the Will is validly executed; there is no need to consider dispensation with due execution under s 18 of the Succession Act; a grant of letters of administration should be made to the applicant.
- Ordered the application is to proceed without an oral hearing under r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld). Letters of administration with the Will of Kevin John Chambers dated 14 October 2017 are to be granted to the applicant as administrator. The application costs are to be paid from the estate of the late Kevin John Chambers on an indemnity basis.