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Probate

Probate is the formal proof of the validity of the last will of a deceased person and is granted by the Supreme Court. It provides the executor with the legal authority to carry out the intentions of the deceased as expressed in the will.

Where a person passes away without a will or without a legally valid will, they are deemed to have died intestate and the rules of intestacy will govern the most appropriate relative of the deceased to be appointed as their administrator and who the beneficiaries entitled to receive the estate will be. Please see our separate article on our website on this.

To obtain a grant of probate, it is necessary to follow prescribed legal procedure which includes:

  • publication of a Notice of Intention to apply for probate to determine that there are no subsequent wills in existence and to notify potential claimants that the executor is making an application for probate to the court. The notice must be published in the Queensland Law Reporter and a copy lodged with the Public Trustee of Queensland.
  • filing an Application for Probate and supporting documentation (including affidavit material) to the Supreme Court, no less than fourteen (14) days from the last publication of the Notice of Intention and service on the Public Trustee.

When dealing with estates where the preferred executor has passed away, or the original last will of the deceased has been marked, lost, blemished or otherwise damaged, complications with obtaining Probate can occur, requiring additional supporting evidence or even a chamber application before a Judge prior to such a will being admitted into Probate.

Where the deceased has not left a formal or valid will, but may have left some other form of evidence of their testamentary intentions, these may be sufficient for a Court to make orders to the effect that they represent the last will of the deceased.

Statutory requirements for a valid will

Traditionally, the Courts had refused to recognize a will that was not properly prepared and executed in accordance with the formal requirements set out in section 10 of the Succession Act 1981 (Qld) (“Act”), which requires a formal will to satisfy the following criteria:-

  • It must be in writing;
  • It must be signed by the Testator (ie the person making the will) or someone else in the Testator’s presence and at their direction;
  • It must be acknowledged by the Testator in the presence of two (2) or more witnesses.

In 2006, amendments were made to section 18 of the Act, which essentially grants the Courts a power to dispense with the formal requirements of section 10 for creating a valid will, if the Court is satisfied that:-

  1. the document expresses sufficient testamentary intention from the Testator for it to be or form part of their will; and
  2. it is clear from any conduct of the Testator at the time the document was made that they intended the document to be or form part of their Will.

The test is objective and dependent on the facts, matters and circumstances that exist in each case.

The following is a summary of recent cases across Australia which have both recognized and rejected certain informal documentation as a valid will. It should be noted that the term “document” is no longer a document in the traditional sense and that term has, in itself, been expanded to include:-[1]

  • any paper or other material on which there is writing; and
  • 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
  • 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).

Case examples involving informal wills

  1. Lindsay v McGrath[2] involved the deceased’s children finding handwritten documents in her personal items which gifted real property and contents to the deceased’s son, with specific instructions not to leave anything to the deceased’s estranged daughter (who was the respondent) or her children. In this case, there was no dispute that the handwriting was that of the deceased and that same contained testamentary intentions, however as the documents were handwritten and not executed by the deceased or in a final form, the Court was not satisfied that these documents amounted to a final will and could easily have constituted handwritten notes, or unfinalised drafts. The Court refused to recognize these handwritten documents as a valid and final will.
  2. Re Estate of Wai Fun Chan, Deceased[3] concerned an 85 year old Chinese widow who, with the assistance of her children, had made a video recording certain wishes and intentions as an amendment (ie a codicil) to a pre-existing and formally drafted will that was signed just two (2) days earlier. The video amendment made special provision for 2 of her 8 children, in gratitude for their recent support to her. The Court was satisfied that the video itself was a document, as contemplated by the Act, which contained sufficient proof that the Testatrix was of sound mind. It also showed well considered and disciplined statements of intent and motherly exhortations in passing by the Testatrix, together with a calm and measured demeanor in conveying her testamentary intentions, so as to constitute a valid codicil to her original will.
  3. Estate of Roger Christopher Currie, late of Balmain[4] involved a document found on two (2) encrypted USB sticks, which was last accessed on 13 May 2012, just weeks prior to the deceased undertaking risky heart surgery on 10 July 2012. The deceased died on 25 July 2012. The encrypted document found on the USB sticks was held to be a valid will. The Court determined that the document exhibited the general language found in a will, together with the deceased’s name and the date. The Court accepted evidence given by the deceased’s cousin, who gave evidence that the deceased had told her “If anything happens to me, I have made a will. It is encrypted”.
  4. In Re Yu[5] the Queensland Supreme Court held that a will typed out in an application on an iphone constituted a valid will, because the deceased had begun the document with words to the effect that “This is my last will and testament” with his name and address and proceeded to appoint an executor. The document on the iphone also contained the name of the deceased at the end of the document, where his usual signature would have appeared.
  5. A more recent decision, handed down by the Supreme Court of Queensland on 9 October 2017 is that of Re Nichol[6] where the Court held that a draft unsent text message written by a man shortly before he took his own life was a valid will. The text message gifted his house and superannuation to his brother and nephew respectively, that his ashes were to be placed in his back garden with his first wife, “Trish”. It also purported to exclude is current wife, who had returned to her former partner, advised that there was “a bit of cash behind the TV” and provided the deceased’s bank account details before ending with the date and the words “My Will”.

If the text message had not been held to be a valid will, his estate would have been divided between his current wife (from whom he had separated and rekindled several times prior to his death) and his estranged son, which is vastly different to the testamentary intentions evidenced in the text message found on the deceased when his body was discovered.

The text message satisfied the definition of a “document” under the Act and when the same argument from Lindsay v McGrath (above) was raised, being that the text message was always a draft and was never sent to evidence some semblance of finality the Court considered that the deceased had deliberately concealed his decision to commit suicide and deliberately did not send it as the deceased did not want anyone to realise what he intended to do. Further, the mobile phone was found with his body, evidencing the deceased intended for it to be found with his remains as evidence of his testamentary intentions.

Comments

Whilst the above cases clearly illustrate that under the right circumstances, the Courts are amenable to declaring informal documents as a valid will, there is no guarantee that this will occur in every situation and informal documents are never an adequate substitute for a properly prepared will and estate plan. The importance of seeking legal advice whilst the Testator is still alive cannot be overstated.

In each of the above cases, the deceased person’s failure to make a proper will had significant and unintended consequences for their estates.

In particular, expensive legal proceedings with detailed evidence were required to determine whether, in each case, the deceased had left a valid will. These proceedings and the time and expense to the deceased’s estate could easily have been avoided had the deceased person engaged an experienced solicitor to prepare a will which comprehensively set out their testamentary intentions for the division of their estate.

Being very familiar with the processes involved, our Queensland estate lawyers can assist with the application for probate expeditiously and cost effectively.

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