In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], the NSW Court of appeal observed the questions arising on applications for letters administration of an informal will are essentially questions of fact to be answered being:

• was there a document;
• did that document embody the testamentary intentions of the deceased; and
• the deceased by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part, operate as her, or his, Will?”

A similar approach was followed by the Queensland Court of Appeal in Lindsay v McGrath  [2016] 2 Qd R 160, where the Court observed:

“it is not enough that the Document set out the deceased’s testamentary intentions…evidence must be submitted that the deceased intended the document to operate to dispose of their property upon death…”

In Western Australian in Oreski v Ikac [2008] WASCA 220.the Court of Appeal observed:

“It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased’s testamentary intentions, that is not of itself sufficient…It is…of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.”

Background

David McNamara died suddenly on 25 July, 2020, he was intestate. In contemplation of his marriage a will had been prepared for David by a solicitor, naming his de facto partner Ema as executor; he had not executed it.

David and Ema had both attended a solicitor and gave instructions for the making of their wills; they received draft copies on 23 September 2019. Following further instructions a revised version of the document was forwarded by email on 27 September. On 7 October 2019, David said he was happy with the content and that he asked Ema to make an appointment with their Solicitor to sign their wills.

David was unavailable to attend the solicitor’s office as he was busy with his work; in March Eva and David married and following this, were concerned with COVID-19.

Consideration

In Re McNamara [2021] QSC 148 Ema sought a declaration under s 18 Succession Act 1981 (Qld) that the unexecuted will is David’s will, and sought a grant of probate. Alternatively, Ema sought a grant of letters of administration on intestacy.

“The Court must determine whether the document … forms a will … of the deceased person … that the person intended the document … to form the person’s will…”

Ema further submitted that due to David’s heart condition they isolated as much as possible during COVID-19, in particular during late March up to the date of his death. The Court held that although there were many opportunities for the deceased to make time to execute their wills, particularly from October 2019 to February 2020, the COVID-19 pandemic may have made that somewhat more difficult.

Importantly the Court found that in conversations David had indicated he was uncertain that the content of the unexecuted will expressed the testamentary intention of the deceased.

“His conduct bespeaks a lack of conviction or a hesitancy in perfecting his choice to favour his wife relative to his children, at least to the extent that the unexecuted will purported to do.”

Decision

The Court in granting Ema letters of administration of David’s intestate estate wasn’t satisfied that David had intended the unexecuted document to form his will.

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