COURT DETERMINES IF A WILL EXECUTED BY AUDIO VISUAL MEANS, WHERE THE TESTATOR OMITTED TO SIGN A PAGE, SHOULD BE ADMITTED FOR PROBATE

Re Sheehan [2021] QSC 89 (5 May 2021)

This is an application for probate of an informal will or, expressed another way, a will that was not executed in accordance with the formal requirements of the governing legislation.

Facts:

On 2 November 2020, the testator attempted, with the help of his solicitors, to execute a will from his hospital bed in a way that took advantage of subordinate legislation promulgated earlier last year in response to the COVID19 pandemic. Ms Cornford-Scott (counsel) met with the deceased and Mr Loveday online (via Zoom) for the purpose of the deceased executing the will. This meeting was recorded with the deceased’s consent and a copy of that footage was tendered in evidence on the hearing of this application as well as a transcript.

The altered regime under that legislation allowed for wills to be witnessed by audio visual link. In any such case, the testator is required to sign each page of the will but, here, the deceased omitted to sign one of the pages of the will as well as an accompanying schedule.

Ms Corford-Scott contacted Mr Loveday to draw these irregularities to his attention but, by then, the deceased was going in for surgery. They agreed that Mr Loveday would take an unsigned copy of the will to the deceased after his surgery for re-execution. Unfortunately, the deceased became increasingly unwell after his surgery, and never recovered sufficiently to re-execute the will. He died a little under a month later.

Because the instrument does not comply with the formal requirements for the making of a will, it became necessary for the persons named as executors under it – the deceased’s friend and business associate (Mr Loveday) and brother (Mr Noel Sheehan) – to apply for probate of it. As counsel for the applicants pointed out on the hearing of this application, the unfortunate irony is that there is no requirement to sign every page of a will under S10 of the  Succession Act

Issue: Should the will be probated?

Law:

• By S.10 of the Succession Act, a will must be in writing and signed by the testator in the presence of two witnesses. However, on 23 April 2020, the  COVID-19 Emergency Response Act  2020 (Qld) came into force. It contains a regulation-making power where an Act (here, the  Succession Act) requires or permits, amongst other things, the signing and witnessing of documents.It further provides that such a regulation may modify the requirements or arrangements about signing or witnessing such documents and that occurred when the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld) was promulgated on  15 May 2020.
• Regulation 7 is as follows: “Presence by audio visual link—A requirement under the Succession Act 1981  or another law for the presence of a witness, signatory, substitute signatory or other person in relation to the making, signing or witnessing of a will is taken to be satisfied if— (a) the witness, signatory, substitute signatory or other person is present by audio visual link; and (b) the making, signing or witnessing of the will is carried out in accordance with  part 4.”

Analysis:

It was plain on the evidence before the court that the solicitor who took instructions, prepared the will and supervised its execution, Ms Cornford-Scott, brought a high degree of competence and diligence to bear on those tasks, as well as in the provision of advice to the deceased regarding what was (and remains) a complicated estate with a multiplicity of potentially affected persons. Audio-visual recordings of the critical parts of the process were placed before the court. They are of excellent quality and allowed the court to make its own assessment of the deceased’s understanding and intent.

Not only was there a document and one that purported to embody the testamentary intentions of the deceased, it was plainly established on all of the evidence that the deceased intended it to take immediate effect as his last will. So much was demonstrated by part of the recorded exchange between Ms Cornford-Scott and the deceased.

Conclusion: The court hereby grants the probate of the will executed by the deceased.

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