Jackson J states
On 24 January 2018, Jay Matthew Schwer died as a result of a self-administered overdose of prescribed pain killers following his discharge from hospital after surgery. It is not suggested that he deliberately took his own life. [3] On the date of his death, Mr Schwer did not have a will executed under Part 2 of the Act. He was then aged 39 and appears to have been a United States citizen, although he had lived in Queensland for approximately 12 or 13 years. It is not suggested that he had a will made in accordance with the laws of any other jurisdiction.
On 21 November 2016, in the afternoon, Mr Schwer suffered injuries, including a significant head injury, in a motorcycle accident. He had purchased and started riding the motorcycle on that day.
Relevant to this proceeding, earlier that day Mr Schwer made a video recording of his testamentary intentions at the request of his de facto partner. The recording comprised a file on his personal computer. A transcript of what he said is as follows:
“It’s Monday the 21st November 2016. My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I’ll just say it. Everything goes to Katrina Pauline Radford if anything was to happen to me.
If my daughter decides to go to school, on completion of a four year degree, in something other than the Arts – so any business, psychology, sociology degree, that’s fine – Katrina will have $30,000 put/set aside in a savings account. That will be given to Aleena Schwer as of completion of college, as long as it’s before the age of 25. If she doesn’t graduate by the age of 25 from a university with a four year degree, that money will be absolved (sic) back to Katrina Radford. This money that will be accumulated is to be used for one thing only, and that is to put a deposit on a house in Aleena’s own name.
Other than that, all money, all super funds, all three – that would be Q Super, Sunsuper and Colonial Super – and any insurance policies attained with those will all go to Katrina Pauline Radford.
Nothing, I repeat, nothing, will go to my soon to be ex-wife Nicole White/Schwer.
Other than that, no I don’t really plan on dying, but if I do it’s by accident, and yeah, I’ll fill out the damn forms later. But as sound mind and body, everything goes to Kat. Not one thing will go to Nicole Schwer. The only thing that will be given to Nicole on – I take that back – nothing will be given to Nicole. Katrina should be allowed to maintain contact with Aleena on my behalf so she could find out who I really was as a person.
On Aleena’s 16th birthday, Kat will give all coinage and American girl doll to Aleena. All the coinage is just, mainly, old coins mainly her birth year, silver coins and stuff like that. But I would like Katrina to have an impact, in, in as a mentor, per se in Aleena’s life, if anything should happen to me and I would like Nicole White to respect that. I’ve never really done one of these so it’s kind of weird.
Other than that, everything’s good. … I don’t plan on dying today, hopefully”
As a result of the head injury suffered in the motorcycle accident later that day, it is not disputed that Mr Schwer suffered amnesia or memory loss in relation to that day and the succeeding days. It is not suggested that he later referred to or otherwise showed that he remembered the video recording.
From mid-2014, until of the date of Mr Schwer’s death, the applicant became his girlfriend, then his de facto partner, and also the mother of their daughter, Taylor, who was born in December 2017.
The applicant applies for orders that the video recording is a document that forms a will of Mr Schwer within the meaning of s 18(2) of the Act because it purports to state the testamentary intentions of Mr Schwer and submits that the court should be satisfied that Mr Schwer intended the video recording to form his will. ...The Court goes on to state
Only a document that has not been executed under Part 2 of the Act can form a will for the purposes of s 18(2). “Document” is defined in s 5 of the Act by reference to the Acts Interpretation Act 1954 (Qld), which includes, as paragraph (c) of the definition of “document” in Schedule 1: “any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).”
Cases have decided that a digital video disc and an audio recording are documents within the meaning of s 18. In accordance with those decisions, the video recording on Mr Schwer’s personal computer or the disc constituting the media on which that recording was made, is a document.The Court considered capacity, whether the recording purported to state Schwer's testamentary intentions and whether Schwer intended that the recording should without more operate as his will.
Jackson J concluded
The applicant has established that the three factual conditions for the conclusion that the video recording forms a will within the meaning of s 18(2) are satisfied. First, there was a document within the meaning of the section. Second, the document purports to embody the testamentary intentions of Mr Schwer. Third, Mr Schwer demonstrated that it was his then intention that the document without more operation as his last will. These conditions have been satisfied as a matter of fact, not discretion.
The present proceeding is constituted as an application for orders as to those conclusions but must be, in effect, for declaratory relief. It might have been better had the application included a claim for relief for proof of the video recording as Mr Schwer’s will and for the appointment of an administrator to the estate. However, the appropriate parties are represented. The respondent, as the wife of Mr Schwer and as the mother of their infant daughter was an appropriate party. The applicant, as Mr Schwer’s de facto partner and the mother of their daughter, was an appropriate applying party. And Mr Schwer’s mother swore an affidavit for use in the proceeding and accordingly had notice of the proceeding.
In the circumstances, in my view, it is appropriate to declare that the video recording in the termstranscribed in paragraph [5] of this judgment forms the will of Mr Schwer within the meaning of s 18(2) of the Succession Act 1981 (Qld).
