Section 10 of the Succession Act 1981 (“the Act”) outlines the formal requirements for executing a Will. This includes the need for the person making the Will (the testator) to sign the Will in the presence of at least two witnesses. At least two witnesses must also attest and sign the Will in the presence of the testator.
However, section 18 of the Act allows the court to dispense with the execution requirements for a document that purports to state the testamentary intentions of a deceased person if the court is satisfied that the person intended the document to form their Will, alter their Will, or a full or partiall revocation of their will.
The court may consider evidence relating to how the testator executed the document and any proof of the person’s testamentary intentions.
Background
Ronald Gordon Selig (the deceased) completed a document titled “My Wishes” and a copy of the document entitled “Nomination of Beneficiaries Form”, each dated 23 April 2021. The plaintiffs in this case are the deceased’s adult children from his first marriage, Ronald Gordon Selig (the plaintiff).
The deceased and his first wife, Vicki Garvie, got married in 1974, separated in 1994, and finalised their divorce in 1995. The defendant is the deceased’s second wife. They tied the knot in 1996 after meeting in 1995; nevertheless, they separated around 2008 without formalising a divorce. In 2015, the deceased and the defendant reached an unofficial agreement regarding their property.
During his marriage to the defendant, the deceased created a formal Will on November 6, 2003 (the “2003 Will”) and appointed the defendant as executor. Tragically, the deceased passed away in an accident while working on a remote rural property near Longreach on November 26, 2022. Following his death, the defendant sought Probate of the 2003 Will, but the plaintiffs contested the application and lodged a caveat. The registry declined the defendant’s application for Probate on June 23, 2023.
Selig v Selig [2024] QSC 189
The plaintiffs have initiated legal proceedings to seek orders about allegedly informal documents created by the deceased on April 23, 2021, titled “My Wishes” and a completed “Nomination of Beneficiaries Form” for a life insurance policy with Australian Seniors Insurance (“ASI”). They argue that the deceased completed and signed these documents with the assistance of his first wife, intending for them to override the 2003 Will and serve as his last will.
According to the “Nomination of Beneficiaries Form,” each plaintiff receives 50% of the $150,000 in benefits payable by ASI under the deceased’s life insurance policy. In their claim, the plaintiffs request orders under section 18 of the Succession Act 1981 (Qld) to waive the formal requirements under section 10 of the Act. An informal Will can be recognised when a supporting document is included, which includes the original “My Wishes” booklet and a copy of the ASI Nomination of Beneficiaries Form.
The “My Wishes” booklet, published by ASI, allows individuals to document their funeral plans. According to Ms Garvie’s testimony, she prepared these documents at the deceased’s request, ensuring he signed them fully understood and agreed with their contents. She witnessed the signing and confirmed it reflected his intentions.
The defendant’s claim that the deceased’s signatures were forged has been dismissed due to lack of evidence. Ms Garvie’s credible testimony, corroborated by the plaintiffs’ unchallenged evidence, confirms that the deceased signed these documents as his last will.
The claim that the deceased intended to reconcile with the defendant and build a family home is implausible, as it conflicts with the evidence provided by the plaintiffs. The two documents express the deceased’s testamentary intentions, including funeral preferences, music choices, and the beneficiaries of his life insurance. Ms Garvie confirmed that on 23 April 2021, the deceased wanted these documents to serve as his last Will.
Uncontested evidence establishes the deceased’s testamentary capacity at the time of signing these documents, including regular communication with the plaintiffs and Ms Garvie, his awareness of his estate, and the absence of mental health issues in the Death Certificate and Coroner’s Report. While there is no direct evidence of the deceased discussing potential claims against his estate, it is clear he was aware of them and could assess them.
Based on the testimony from Ms Garvie and the plaintiffs’ accounts of the deceased’s statements about his Will, it is clear the deceased meant the documents to be his final Will.
For a valid testamentary decision:
1. The testator must understand the legal significance of the act they are undertaking.
2. They must know their estate’s nature, extent, and value.
3. They must recognise those who might reasonably expect to benefit from the estate.
4. They must be capable of weighing and differentiating between the strengths of these claims.
Capacity
The Banks v Goodfellow test emphasises that perfect mental clarity is not required; instead, the testator must have sufficient mental capacity to comprehend the implications of their Will, despite any reduced mental powers, as long as they understand the act and its consequences.
In this case, the plaintiffs have not been able to produce all the original documents of the informal Will. While the original “My Wishes” document is available, ASI unintentionally disposed of the original Nomination of Beneficiaries Form after it was submitted in connection with a life insurance claim. The plaintiffs rely on a copy of this form.
Probate can be granted on a copy of a Will, including informal Wills, if the court is satisfied that:
- 1. A Will did indeed exist.
- 2. The Will revoked all previous Wills.
- 3. The presumption that a missing Will was destroyed is rebutted.
- 4. There is evidence of the Will’s terms.
- 5. There is evidence of the Will’s execution.
A Will doesn’t have to revoke previous Wills explicitly; the testator can imply revocation if the provisions of the new Will are utterly inconsistent with any earlier Wills.
By section 18 of the Succession Act 1981 (Qld) (“the Act”), the Court waives the formal execution requirements of section 10 of the Act for the informal Will of the deceased Ronald Gordon Selig.
This Will consists of the original “My Wishes” document and a copy entitled “Nomination of Beneficiaries Form,” dated 23 April 2021. Copies of these documents are exhibit six to Aaron James Selig’s affidavit, sworn on 22 March 2024.
By section 6 of the Act, the Court confirms the validity and force of the Will of the deceased, Ronald Gordon Selig, who resided at 17/92 King Street, Buderim, in the State of Queensland, dated 23 April 2021, in a formal legal manner.
I declare the informal Will of Ronald Gordon Selig to be his last Will and Testament.
Subject to the formal requirements of the Registrar, letters of administration with the Will annexed are to be issued to the plaintiffs, Aaron James Selig and Melinda Jane Selig, as the administrators.
The plaintiffs, Aaron James Selig and Melinda Jane Selig have been appointed administrators of Ronald Gordon Selig’s estate.
The defendant is to pay the plaintiffs’ costs.
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