“There is no one alive who is you-er than you!” – Imposter Testator and the Supreme Court

“There is no one alive who is you-er than you!” – Dr Seuss

In an odd case, Chief Justice Catherine Holmes was called upon to determine an application of impostorprobate in solemn form with a side order of an imposter claim.

In the case Martin Terrence Farrell v Warren Elbridge Boston [2016] QSC 278, the Applicant, Martin Farrell, was the brother-in-law of the deceased, Erris Maie Farrell.  Erris died in October 2015 and probate was granted on 11 April 2016 to her executor (the Respondent) of her 2007 Will.  The Respondent was a partner of the firm who drew the will, Steindl Lawyers. Erris’ husband had predeceased her.  They had no children.  In her later years, Erris had suffered from dementia and lived in a nursing home.

The Applicant claimed that he had a later will of Erris’ and that probate should be set aside as made under a mistake of fact; that mistake of fact being that the document did not have regard to an alleged will made by Erris in 2013.

Not only that but also, by submission, the Applicant made a further claim that the 2007 Will was executed by an imposter.  The Applicant had claimed that Erris’ nephew, who was the major residuary beneficiary under that will, had falsely identified as his aunt to the solicitors who drew up the Will.  The Respondent filed affidavits sworn by himself, another partner of Steindl Lawyers, Erris’ nephew and a former Steindl’s estates law clerk.

The Court considered that the notion of an imposter was extraordinary and not worthy of examination.  Her Honour said:

“The notion of an imposter’s having signed documents in Mrs Farrell’s place does not bear examination. It would require not only that a  bogus Mrs Farrell was taken to Steindls’ offices, but that on those occasions when Ms McIntosh visited Mrs Farrell’s home and the nursing home, Mrs Farrell was somehow secreted and the other woman substituted. It seems highly improbable that such an exercise could have taken place, particularly under the noses of nursing home staff. More to the point, there is absolutely no evidence to support the applicant’s extraordinary claim.” (para 12)

The Court’s focus shifted to the consideration of the 2013 will against that of the 2007 will.  The Court noted that:

  • the signature of the 2007 will was consistent with the testator’s earlier 1984 will;
  • the contents of the 1984 and 2007 were consistent;
  • the 2007 will was ultimately an “update of the 1984 will to accommodate the deaths of Mrs Farrell’s husband and brother” who were the beneficiaries under the 1984 will respectively;
  • the 2013 will, however, represented a “completely different disposition”.

Ultimately, Her Honour stated that:

“It is unnecessary to resolve how the 2013 document came into being. It is conceivable that the signature it bears is Mrs Farrell’s.  But given the contemporaneous evidence as to Mrs Farrell’s debility and confusion, Dr McSweeney’s view as to her incapacity, and the complete absence of any contrary evidence, the only available conclusion is that even if the document were signed by Mrs Farrell, she lacked testamentary capacity at the time, and it is not a valid will.” (para 15)

The application was dismissed and the Respondent’s costs were paid from the estate on the indemnity basis.

You can read the short judgement here.

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