This morning Martin J dismissed an application for probate of an informal codicil under s18 of the Succession Act 1981 (Qld). The deceased left a duly executed will, prepared by a solicitor. There was a later handwritten document, which was signed by her and dated, but not witnessed. It was stored with the will at a solicitor’s office. Importantly, the deceased had worked for 47 years as a legal secretary, including as a probate clerk. It was common ground that she was aware of and familiar with the will making process and that she was aware that a document that was not witnessed by two witnesses was not valid. She would have also known what a codicil was. It was also common ground that it was unlikely that she would have been familiar with the new testamentary intention test as introduced with the 2006 amendments (as she retired in 1997). His Honour found that the application failed on two grounds. Firstly, the document did not purport to state testamentary intentions. “I express the wish …” and “I would like …” were words used in the document. His Honour found that the terms were not consistent with general dispositive language, but with the expression of a wish that property be dealt with in a particular way. It was no more than an expression of desire and importantly, did not purport to replace the disposition envisaged in her will. Secondly, the deceased did not intend that the document would alter her will. There was no evidence to suggest that the deceased had ever demonstrated, by act or words, that it was her intention that the document should operate, without anything further being done, as her codicil. Further, there were matters “which militate strongly against the finding that it was intended to operate as a codicil”:
- the document expressed her desire that certain things might occur with a share of property, it did not purport to dispose of the property;
- the deceased’s history and knowledge of the requirements of a valid will, and especially that such a document needed to be correctly witnessed;
- having worked in a law firm in this area of the law, raises the question why anyone with that knowledge would not attend to the formal requirements if they wanted it to be effective; and
- her sister had told her (with reference to the actual document) that if she needed to update her will she should call a solicitor and ask them to come to her home. She did not do that.
In the alternative (to the s18 claim) the executors sought a declaration that the words used in the document created a trust and they sought a direction pursuant to s96 of the Trusts Act that they be permitted to distribute in accordance with the document (which was inconsistent with the will). It was found that there was no express trust created. Further, the wishes of the testator were not intended to take immediate effect. A declaration of trust, which is not made for consideration, which is intended to operate only from some appointed future time, is ineffective. The application was dismissed. Read Massey v Smith  QSC 86 here.