Lessons from the will of Andrew Charles Pearce [2012] QSC 199.

On 2 August 2012, the Queensland Supreme Court determined an application by an executor to have informal amendments and documents admitted to probate as altering the will of the deceased.

The deceased died in June 2011, his wife having predeceased him.

The deceased and his wife made a homemade document headed “Trish and Andrew Pearce” dated 19 August 2006 (the 2006 document). The 2006 document read “as we are about to travel overseas we wish to make the following amendments to our wills”. However, there was no evidence of any earlier wills and the homemade document did not refer to any earlier document, but rather read as a standalone document.

The executor led evidence that the 2006 document had been signed by both the deceased and his wife and properly witnessed.

There were also two handwritten alterations on the 2006 document which both struck out the name of one of the deceased’s sons, Daniel. Next to each amendment were the words “see amendment attached,” the date “4 February 2007” and two signatures similar to that of the deceased and his wife. There were no witness signatures next to the alterations.

There was evidence produced to the effect that in December 2006 the deceased and his son, Daniel, had a falling out over business affairs.

The Court was told that the 2006 document was found stapled to a similar document headed “Trish and Andrew Pearce” dated 4 February 2007 (the 2007 document). The 2007 document appeared to be identical to the 2006 document except that instead of the name of Daniel Pearce being struck out it was substituted or omitted. The 2007 document appeared to be signed by both the deceased and his wife however it had not been witnessed.

The Court held that the 2006 document complied with the formal requirements of execution under the Succession Act 1981 (Qld) (the Act) so it was a valid will. However, neither the handwritten amendments made to the 2006 document nor the attached 2007 document complied with the formal requirements for amendments under the Act as they had not been witnessed.

The executor argued that the Court should dispense with the formal requirements of the Act. The Court considered:-

  • The evidence relating to the way in which the documents were executed, and
  • Evidence of the deceased’s testamentary intentions.

Justice Dalton was satisfied that the documents containing the irregular alterations purported to embody the deceased’s testamentary intentions because the handwritten alterations were made to the 2006 document, which, apart from the alterations, was a validly executed will, and the 2007 document was found stapled to the 2006 document.

Accordingly, both the amendments on the 2006 document and the attached 2007 document were held to be valid amendments to the 2006 document as a will and could be admitted to probate.

Comment – The executor was fortunate in this case that the deceased and his wife had executed the 2006 document which was held to be a validly executed will and the Judge could infer from the circumstances that the deceased had the intention for the 2007 document and handwritten amendments to validly alter the will.

However, this was a costly exercise for the estate with the Court ordering that the costs of this application, on an indemnity basis, be paid out of the estate assets therefore reducing the amount available for distribution to the beneficiaries. A salutary lesson in the pitfalls of “do it yourself wills” and other legal documents.