BY REBECCA TRESTON QC
Holmes CJ on 12 October 2016 ordered that a statutory will be admitted to probate, despite the fact that the will had been not lodged with the Registrar and signed whilst the deceased was alive.
Pursuant to s.21(2) of the Succession Act, an order authorising a statutory will can only be made whilst the testator is alive. Such an order was made by P. McMurdo J on 27 August 2014, but the will was never lodged with the Registrar for signing. Pursuant to s.26 of the Succession Act, a will or other instrument made under an order under s.21 is properly executed if it is in writing and signed by the Registrar and sealed with the seal of the Court. A will or other instrument made under s.21 may only be signed by the Registrar if the person in relation to whom the order was made is alive. The s.26 equivalents across Australia are consistent – the person must be alive not only when the order is made, but also at the time the Registrar signs the will.
Holmes CJ was satisfied however that pursuant to s.21(3) of the Succession Act (which provides that a Court may make or give any necessary related orders or directions) gave power to order that the statutory will be admitted to probate notwithstanding its form, and the absence of any execution of it by the Registrar of the Court. In doing so her Honour followed the decision of Lindsay J in Estate of Scott; Re Application for Probate  NSWSC 465.
The decision appears to be the first of its kind in Queensland where a statutory will ordered to be made was admitted to probate without satisfying the requirement that it be executed by the Registrar and sealed with the Court’s seal.
The Chief Justice gave an extempore decision, not yet published. Hemmant’s List will provide the citation as soon as it becomes available.
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