Catch and Release: Court considers when s33Z applies to a ‘purported’ Will (Qld)

Recently, the case of Saltmer v Rennick Lawyers Pty Ltd [2018] QSC 307 was heard in the Supreme Court of Queensland in Townsville where the Court was called upon to question of costs in a situation where a deceased person’s family member requested a copy of a document held by a Solicitor that the family member argued was a Will for the purposes of s33Z of the Succession Act 1981 (Qld).

Section 33Z of the Succession Act 1981 (Qld) relevantly provides:

33Z Persons entitled to inspect a will or to obtain a copy of a will

(1)A person who has possession or control of a will of a deceased testator must, if asked, do either or both of the following—

(a)allow an entitled person to inspect the will;

(b)give an entitled person a certified copy of the will on payment of the person’s reasonable expenses of giving the certified copy.

(2)If a will of a deceased testator has been lost, stolen or destroyed, a person who has possession or control of a copy of the will must, if asked, do either or both of the following—

(a)allow an entitled person to inspect the copy;

(b)give an entitled person a certified copy of the copy on payment of the person’s reasonable expenses of giving the certified copy.

(3)A person who has possession or control of a will, or a copy of a will, of a deceased person must produce it in court if the court requires it.

(4)In this section—

certified copy

(a)of a will—means a copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of the will; or

(b)of a copy of a will—means a copy of the copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of what it purports to be.

entitled person, in relation to a will, means—

(a)a person mentioned in the will, whether as beneficiary or not and whether named or not; or

(b)a person mentioned in any earlier will of the testator as a beneficiary and whether named or not; or

(c)a spouse, parent or issue of the testator; or

(d)a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or

(e)a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or

(f)a creditor or other person who has a claim at law or in equity against the estate; or

(g)a person who may apply for an order under section 41.

parent see section 61A.

will includes—

(a)a purported will or revoked will; and

(b)a part of a will, purported will or revoked will.

 

The document held by the solicitor was a partially completed and unsigned Lexon Will Instruction Checklist and, importantly, a signed “No Immediate Will Acknowledgment” sheet.  The solicitors who held these documents denied the request by the daughter, on the basis that the Lexon Will Instruction Checklist was not a Will for the purposes of s33Z and further on the basis that they were subject to legal professional privilege.

Relevant to these proceedings was the fact that the deceased’s daughter (and the applicant in these proceedings against the solicitors) had later applied for a limited grant of letters of administration under different proceedings, which was subsequently granted to the daughter, subsequently making her the legal personal representative (LPR) for the estate.  The fact that the daughter had obtained a grant, albeit limited, had made the question of whether the lawyers were required to hand over the documents largely moot, as the applicant (as the now LPR of the estate) was able to seek copies of those documents in her capacity as LPR.

The question was then one of costs.

In order to determine the issue of costs, the Court had to consider the extent of s33Z; something of which has not really been done to date.

The Court also noted that s33Z directs a ‘person’, and not simply a solicitor, to produce a copy of a Will they have possession or control of and as such the Court noted that such drafting of the legislation would suggest that “it is a document which could be regarded as falling within the definition of ‘will’ on it’s face, which would be apparent to non-lawyers‘ (at para [15]).

The Court drew an understanding of the purpose of s33Z from the explanatory memorandum from when the amendments to the legislation were made in 2006, and noted that the right to obtain such a copy is intended to allow a person with an interest in the estate to see the contents of a Will prior to probate being applied for and, if there is no probate, where the estate may be administered informally.

Determining the relevance of whether the Lexon Will Instruction Sheet would be considered a ‘will’ for the purposes of s33Z, the Court said:

“In order to satisfy the Court that will instructions may form a will wholly or in part under s33Z of the Act, the applicant must establish that the document was or may have been intended to be the person’s will, an alteration to the person’s will or part of their will.  The reference to “purported” broadens the definition of “will” so as to include a document which may not satisfy the formal requirements of a will but on its face purports to state the testamentary intentions of a deceased person. That is consistent with the legislative intention set out the explanatory memorandum. A document may purported to be a will if it sets out testamentary intentions of the deceased, even if the formal requirements under Part 2 of the Act are not met.” (para [20])

In this unique situation where the deceased had partially completed (but not signed) the Lexon Will Instruction Checklist and signed the “No Immediate Will Acknowledgement” sheet, the Court held that the Lexon Will Instruction Sheet was not a ‘will’ for the purpose of s33Z, in this situation.

In reaching it’s decision, the Court said:

“It is evident that the will instruction sheet in the present case does not satisfy the requirements under s 10 of the Act, not having been executed or witnessed. At best, the incomplete instructions could be said to form part of a “purported” will, insofar as they could reflect the testamentary intentions of Mr Spottiswood. However, while will instructions may be determined by the Court to be a will, that was not apparent on the face of the documents, which the respondent had completed with Mr Spottiswood, given that not only was the Will Instruction sheet not signed, but the No Immediate Will Acknowledgement was signed by Mr Spottiswood” (para [21])

“In my view, s 33Z does not apply to a document which, even if it on its face arguably sets out testamentary intentions at least partially, is accompanied by a document completed at the same time by the deceased specifically signing a “No will acknowledgment” stating that “I do not wish the Will Instructions Checklist to be my will”. In those circumstances, the document does not purport to be a will nor is it one that can be described as a doubtful testamentary instrument.  That is not to decide that the partially completed will instructions in combination with other evidence cannot still be determined to represent Mr Spottiswood’s testamentary intention.  However, the intent of s 33Z is not to require parties to engage in a process similar to that required under s18 of the Act to determine whether it is a document that should be produced or not.” (para [22])

The Court ordered that lawyers costs be paid by the applicant on the standard basis and not be paid from the estate.

This particular case is very unique and I think the most important aspect of this comes down to the existence of a signed “No Immediate Will Acknowledgment” form.  The very terms of those forms state that the client had the opportunity to sign their Instructions, to basically form an Interim Will, however the client does not wish for the Will Instruction Checklist to form their Will.  This is central to the argument of whether this was a “purported Will” for the purposes of s33Z.  In the absence of this signed form, the outcome of this case would likely have been quite different.

For legal practitioners, this highlights the importance of scrutinizing the documents they hold in their position, in light of not only those documents that appear, prima facie, to be a valid Will, but also those documents that perhaps may be argued to be a “purported Will” under the Act (both under s18 and s33Z).

You can read the case here.

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