In a recent matter, the Supreme Court of Queensland had to decide upon a 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).
Alan Spottiswood, died in May 2018 leaving a will made in 1988 naming his wife as executor. Alan had two children, Hayley and Matthew.
In July 2017, Alan met with his lawyers who were conducting a property settlement on his behalf and discussed and completed several documents as part of an “Estate Kit” including; Will instructions, enduring power of attorney instructions, and a “No Immediate Will Acknowledgement”.
During the discussion, Alan indicated that he wished to name his daughter Hayley as executor and leave everything to her or her children. He did not sign the will instruction sheet however he gave instructions in relation to his funeral arrangements and as to organ donations. Importantly he signed a No Immediate Will Acknowledgement.
Hayley applied for a certified copy of Alan’s will under s 33Z of the Succession Act 1981 (Qld) (the Act). Alan’s lawyers refused as they considered that the documents did not consist of a will as he had signed the No Immediate Will Acknowledgment.
Additionally, Alan’s Lawyers argued that the will instructions checklist were subject to legal professional privilege and that Alan or the executors (Legal Personal Representatives (“LPR”) of Allan’s estate had not waived such privilege.
Haley applied to the Supreme Court of Queensland for a finding whether that document constitutes a will (as defined) for the purpose of s 33Z of the Act.
In the intervening period Hayley applied for a limited grant of letters of administration making her the LPR for the estate; therefore was able to seek copies of those documents in her capacity as LPR.
The Courts Decision
The Court held that s 33Z did not apply to a document which, as although it arguably sets out testamentary intentions, it is accompanied by a document completed at the same time stating that
“ I do not wish the Will Instructions Checklist to be my will.”
Therefore 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.
In the circumstances, Hayley would not have been successful in the application. The court ordered that Hayley should pay the costs of the application and that they should not be paid out of the estate.
Importantly if there had not been a signed “No Immediate Will Acknowledgment” form. It could have been argued that Alan’s instructions were an informal Will and the outcome of this matter may have been quite different.
