A love letter penned two years after a formal will has been rejected as an informal will.
In the Brisbane Supreme Court in February, Keelan Michael Lewis argued the handwritten declaration of love made to his mother in July 1991 by Stewart Robb Gray, who died in May last year, was a valid will and entitled him to Mr Gray’s estate.
Mr Lewis sought revocation of the letters of administration granted to Mr Gray’s sister in August last year, in relation to the formal will made in September 1989, which left the estate to Mr Gray’s 94-year-old father.
Justice Treston dismissed Mr Lewis’s application, concluding the seven-page letter was not an informal will for the purposes of Section 18 of the Succession Act 1981 (Qld).
Mr Gray, who was 62, unmarried and had no children when he died, had penned the letter to Sharon Mitchell, also known as Sharon Lewis, when he was aged about 29.
At the time of Mr Gray’s death, he had been friends with Ms Mitchell for more than 40 years, having worked at the same company as her for decades. However, Mr Gray and Mr Lewis had never met.
The envelope containing the letter had been stamped at Stafford Mail Centre in Brisbane, but the exact date was not able to be deciphered.
Mr Lewis relied on certain parts of the document as evidence it should be construed as an informal will.
Justice Treston said the document plainly did not comply with the execution requirements set out in the Act but the court could admit a document to probate if it was satisfied the document embodied the testamentary intentions of a deceased person.
She said there was no particular form required to satisfy the elements of s 18.
“This court has construed a variety of documents as ones which satisfy the requirements of s 18 including handwritten notes drafted shortly prior to death, unsent text messages, video recordings on mobiles phones, audio recorded voice memos, documents created on an iPhone, and a DVD,” she said.
“Equally however, the court has rejected other such documents such as unsigned documents saved on a computer.
“What can be gleaned from the array of cases to which I have referred above is that the court will carefully scrutinise the document in question for the purpose of drawing a conclusion as to whether or not it satisfies the requirements of s 18.”
Justice Treston said the letter satisfied the first element of s 18 in that it was a document, but it did not satisfy the second and third elements related to intention.
To satisfy the second element, Mr Lewis relied on words in the letter including:
“My sole ambition in life now is to love you forever and to accumulate as much wealth as I can to one day give to you and your son. If I were to die tomorrow then you and your little boy would inherit almost a half a million dollars. I didn’t ever want to tell you this because I know how angry you’ll be with me. But I want you to have it Sharon, I have to leave it to somebody and I know I will never have children of my own. So please just accept it. I’m not looking for a medal or anything; I would be happy enough for eternity if you would simply have fond memories of me and the short time we had together. Just a poor silly fool who loved you above all else the world had to offer.”
Justice Treston did not accept that those words were “sufficient to demonstrate a dispositive intention”.
“The language is crafted as an ‘ambition’ to ‘one day’ make such a gift to Sharon and her son,” she said.
“At best, the words might suggest a future intention to ‘one day’ make a will in Sharon’s favour, but the words do not record the present dispositive intention that the document be that gift.”
She pointed to other factors, including that if Mr Gray had made a will in favour of Ms Mitchell, he could have alerted her to this, and that if the letter was intended to be a will, Mr Gray would likely have used words as he did in his 1989 will.
She said the identified words could not be seen in isolation from the rest of the document.
“The document has the hallmarks of a letter from a love-struck man to a woman who was in a relationship with someone else,” she said.
“The relied upon words are part of a much broader piece of correspondence professing the deceased’s love for Sharon and seeking to describe that love in a variety of different ways including:
a) wistful reminiscences of occasions that they had spent alone together;
b) recollections of occasions that he had spent with her in the company of others;
c) descriptions of his grief at being unable to share a relationship with her; and
d) a denial that he had started a fire at her family home.”
She said the document did not resemble a will, in form or substance, as the one of 1989 did.
“Had the deceased intended to make a will in favour of Sharon, and/or her son, he well knew and understood what the requirements were because he had made such a document himself previously. The document the applicant seeks to prove is an entirely different one,” she said.
She said there was no evidence to satisfy the third element of s 18, and accordingly, dismissed the application.
Mr Lewis was ordered to pay costs.
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