ISSUES
- Was the “will” actually a will?
- How may a will be revoked?
- When can a Grant be revoked?
FACTS
The Testator died on 13 May 2013, aged 73 years.
He had made a “will”[1] with the Public Trustee in Barcaldine in 1996.
He had no children and never married. His will appointed his brother-in-law and accountant, Mr Walsh as his executor and divided his small estate amongst his surviving siblings., with no gift over as to nieces and nephews
The will was witnessed by staff at Mr Walsh’s accounting practice. Mr Walsh took the signed will and put it into his safe at his accounting practice for safe keeping.
In about 2000, Mr Walsh’s accounting practice suffered a break in. Documents including those in the safe were scattered all over the office and damaged. Specifically, the Testator’s will was torn during the robbery.
Mr Walsh sticky taped the tears up, re-stapled the will and sent it to the Public Trustee in Rockhampton for safekeeping.
Mrs Walsh was advised by the Public Trustee, that the fact of the will being torn had the effect of revoking the will and that rather than a Grant of Probate, a Grant of Letters of Administration on intestacy would be required.
Accordingly, a Grant of Letters of Administration on Intestacy was applied for and issued on 3 September 2013.
Sometime in 2016, the solicitor who had applied for the Grant on intestacy attended a seminar which included the topic of a torn will.
The solicitor informed Mr Walsh that notwithstanding earlier advice, he could indeed have applied for a Grant of Probate of the torn will.
One of the testator’s siblings had pre-deceased him, leaving children. Under the will, those children would not take. On intestacy, they were entitled to take their parent’s share of the estate.
Accordingly, the change from a distribution on intestacy to a distribution pursuant to the will would see certain beneficiaries miss out and this in turn gave rise to the dispute.[2]
DECISION
The torn document prepared by the Public Trustee was headed “Instructions for a will” however it contained an attestation clause and was executed in accordance with s10 of the Succession Act. In addition, it contained a statement that it would be a will unless and until a further testamentary document was executed.
Referring to the earlier decision of Re Limpus [2013] QSC 66, Crow J found that the instructions were capable of being regarded as a will.[3]
The circumstances giving rise to the tear in the will are of paramount importance. Section 13(e)(i) of the Succession Act 1981 (Qld) (“Succession Act”) provides that a will may be revoked by tearing. However, revocation will only result where this has been done by the Testator or at the Testator’s direction.
As the tear occurred during a robbery which in no way involved the testator, the tear did not in fact revoke the will.[4]
Rule 642 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that the Court may revoke a grant if it was made because of a mistake of fact or law: Rule 642(1)(a)(iii) of the UCPR. Crow J found that the original mistaken advice was sufficient to engage the rule.[5]
However, the respondents argued that the discretion should not be exercised in favour of revoking the Grant.
Crow J considered the analogous situation where a Grant is revoked for the purpose of removing an executor and appointing an administrator. He cited the following passage from Conroy v Smith & Anor [2007] QSC 182:
“… the Court will not lightly intervene to revoke the appointment and substitute an administrator. An added consideration in this case is the size of the estate and the diminishing if not disappearing surplus of assets over liabilities”.[6]
In addition, the prejudice suffered by a beneficiary by the revocation of a Grant is also particularly relevant. In this case, although steps had been taken to collect and preserve assets, these remained within the estate.
As to the disadvantage said to be suffered by the beneficiaries who would not take under the will, Crow J said this:
“Whilst the respondents as potential beneficiaries under an intestacy will be disadvantaged by their loss of interest in the estate, the disadvantage arises only because of the earlier mistake in accepting the advice that, as the document had been torn it could not be admitted to probate as a Will.”[7]
The Respondents also argued that the executor had made an election to take out a Grant of Letters of Administration on Intestacy, instead of a Grant of Probate, and having made that election, were now unable to exercise the right to have the Grant revoked and a fresh Grant of Probate issue.
After examining the authorities, Crow J determined that the doctrine of election is difficult to apply to the law of probate. Further the fact of an election being made cannot bind a court’s broad discretion under s6(1) of the Succession Act, but they may be relevant to the exercise of that discretion.
However, at the time the applicant made the application for Letters of Administration on Intestacy, he was unaware that he could instead have applied for a Grant of Probate of the will. Crow J found that in these circumstances, election does not arise.[8]
Orders revoking the original Grant and issuing a fresh Grant of Probate of the torn will were made.
Read the full decision here.
[1] The document was titled: “Instructions for a Will”.
[2] At [8].
[3] At [25].
[4] At [27] and [28].
[5] At [30].
[6] Conroy at [16]. See also Baldwin v Greenland [2007] 1 Qd R 117 at 130.
[7] At [41].
[8] At [46].