Section 10 of the Succession Act 1981 (Qld) states that a Will must meet certain requirements to be valid in Queensland. These requirements are as follows:
The Will must be in writing.
- It must be signed by the testator (the will-maker) or by someone else in the presence of and at the testator’s direction.
- The testator’s signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time.
- At least two witnesses must attest and sign the Will in the testator’s presence.
- The witnesses must be over 18 and can see the will-maker’s signature. If a gift is made to someone who attests to the execution of the Will, those gifts may fail.
What happens if the formal requirements still need to be met?
If a document is claimed to represent the testamentary intention of a deceased person, section 18 of the Act allows the Supreme Court of Queensland to waive the formal execution requirements for a Will or an alteration or revocation of the Will, provided that the Court is convinced that the person who made the document intended it to be their Will or a full or partial revocation of their Will.
There are three conditions required for the Court to waive the formal execution requirements:
- Was there a document?
- Did the document claim to embody the testamentary intentions of the deceased person?
- Did the evidence satisfy the Court that, either at the time the deceased created the document or at a later time, through an act or words, they demonstrated their intention for the document to operate as their Will?
Background
In December 2013, Erika Kaegi-Fluri (the deceased) left her entire estate to her only daughter, Juliana Wool. (the defendant).
However, in 2017, the defendant and her husband fell out with the deceased concerning the financial arrangements they had made for the deceased to live with them in Cairns. Although there was a resolution to their resulting legal action, it did not resolve the family’s strained relationship.
The deceased returned to Mackay to live in a retirement village, creating Wills in 2018 and 2020. The defendant was not named as a beneficiary in either document, with the deceased providing a statement outlining her reasons for not leaving the defendant any inheritance.
The 2020 Will divided the deceased’s estate into one-third shares for the RSPCA and two friends, Micael Johannsson and Adam Anderson. Following the deceased’s death in July 2022 in Mackay, Charles Marino (the executor) applied for a grant of probate on the 2020 Will.
However, the defendant claimed that there was a subsequent Will. A note was discovered in the deceased’s bedside drawer that read:
“DEAR JULIANA
I AM CHANGING MY WILL!
KIM ADAM AND MICAEL HAVE ABANDEND ME. RSPCA LET ME DOWN.
I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA. I GO TO HOSPITAL NOW. WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER. NO MONEY MUST BE PAID TO RSPCA, MICAEL OR KIM AND ADAM. I CANCEL THE CAIRNS WILL
SORRY MY HANDS GETTING SORE.
I LOVE YOU VERY MUCH YOU ARE MY ONLY DAUGHTER YOU ARE ALL I HAVE NOW.
I WRITE THIS LETTER IN CASE SOMETHING HAPPEN TO ME. SORRY I AM VERRY TIRED.
I CONTACT YOU FROM HOSPITAL.
I LOVE YOU MORE THAN ANYTHING IN THE WORD! YOUR MOTHER,
[… Erika’s signature…]
Mackay 6.6.2022″
Wool v Marino [2024] QSC 89
The Succession Act 1981 (Qld) provides that a Court may accept a document as a Will if it is satisfied that it expresses its maker’s testamentary intentions, even if it does not comply with the Act’s formal requirements.
The main issue is whether a note written by the deceased expressing a change in her Will should be accepted for probate despite not meeting formal execution requirements.
Although English was not the deceased’s first language, the defendant sought an order from the Supreme Court to admit the note to probate as the deceased’s last Will.
For a Court to be satisfied the deceased intended the document “to form” her will, the defendant must establish the deceased intended the document itself to operate as her Will.
The decision
The Supreme Court of Queensland was concerned that the deceased may have had undiagnosed dementia and that her health issues before the hospital admission may have affected her mental capacity to create a Will. Additionally, the Court found that her emotions fluctuated with her mood.
The Court concluded that the deceased’s note indicated a change in her testamentary intentions, favouring her daughter over previously named beneficiaries. However, the note did not meet the requirements for a valid informal will.
The deceased’s 2020 Will was accepted for probate, with the Court deferring the decision on costs and scheduling a future hearing for the defendant’s family provision claim from the 2020 Will. The plaintiff’s application for maintenance and support has been listed for directions at 9:15 am on 17 May 2024; costs have been reserved. The deceased’s note dated 6 June 2022 is likely to provide significant support for her claim.