ADT v LRT

Case [2014] QSC 169

SUPREME COURT OF QUEENSLAND

CITATION:

ADT v LRT [2014] QSC 169

PARTIES:

ADT
(applicant)
v
LRT
(respondent)

FILE NO:

SC No of 2014

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

6 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 and 24 July 2014

JUDGE:

Flanagan J

ORDER:

The application for leave under section 22 of the Succession Act 1981 to apply for an order under section 21 is refused

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant is the husband of an incapacitated testatrix of more than 55 years – where the applicant applies for leave pursuant to s 22 of the Succession Act 1981 to amend or vary the testatrix’s 1998 will – where, under her 1998 will, the testatrix intended to bequeath to her son valuable real property – where the respondent is the testatrix’s son’s wife – where the son and the respondent have separated and intend to be divorced – where the respondent has initiated Family Court property settlement proceedings – where the applicant alleges the testatrix would have altered her will, were she to have testamentary capacity, to ensure her son’s interest in the testatrix’s real property would be protected from the reach of the property settlement proceedings – whether, pursuant to s 24(d) of the Succession Act 1981, the proposed alteration of the testatrix’s will is or may be an alteration the testatrix would make were she to have capacity – whether, pursuant to s 24(e) of the Succession Act 1981, an order of the court authorising the proposed alteration of the testatrix’s will is or may be appropriate to be made.

Family Law Act 1974 (Cth), s 79
Succession Act 1981 (Qld), s 21, s 22, s 23, s 24(d), s 24(e)

Doughan v Straguszi [2013] QSC 295, considered
Grace v Grace (1998) FLC ¶92-792, cited
Hausfeld v Hausfeld [2012] NSWSC 989, considered
McKay v McKay (2011) 4 ASTLR 429; [2011] QSC 230, applied
Re: Fenwick (2009) 76 NSWLR 22, considered
Re: JT [2014] QSC 163, applied
Re Matsis; Charalambous v Charalambous (2012) 8 ASTLR 361; [2012] QSC 349, distinguished
Re Will of Jane [2011] NSWSC 624, applied
Sadler v Eggmolesse [2013] QSC 40, applied
SPM v LWA [2013] QSC 138, cited
Stanfordv Stanford (2012) 247 CLR 108, cited
Van der Meulen v Van der Meulen [2014] QSC 33, applied

COUNSEL:

R D Williams for the applicant

R M Treston QC, with J Brasch, for the respondent

SOLICITORS:

Merthyr Law for the applicant

Phillips Family Law for the respondent

Introduction

  1. By originating application filed 27 May 2014 the applicant seeks an order pursuant to s 22 of the Succession Act 1981 (Qld) (“the Act”) that he have leave to apply for an order pursuant to s 21 of the Act authorising the alteration of the Will dated 21 June 1998 of his wife, MWT…

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Details
AGLC
ADT v LRT [2014] QSC 169
Case
[2014] QSC 169
Decision Date

CaseChat Overview and Summary

The case of ADT v LRT involves a dispute over the validity and interpretation of a will. The applicant, ADT, is the husband of LRT, who was over 55 years old at the time of her death. LRT made a will in 1998 that intended to bequeath valuable real property to her son. The son has since separated from his wife, who is the respondent in this case, and they intend to divorce. The respondent has initiated Family Court property settlement proceedings, and ADT seeks to amend or vary LRT’s 1998 will. ADT argues that LRT would have altered her will to protect her son’s interest in the property from the property settlement proceedings if she had testamentary capacity. The Court of Appeal was required to determine whether the proposed alteration of the will met the criteria set out in sections 24(d) and 24(e) of the Succession Act 1981.

The legal issues before the Court of Appeal were whether the proposed alteration of LRT’s will met the criteria under sections 24(d) and 24(e) of the Succession Act 1981. Section 24(d) requires the court to consider whether the alteration is or may be an alteration that LRT would have made if she had testamentary capacity. Section 24(e) requires the court to consider whether an order of the court authorising the proposed alteration of the will is or may be appropriate to be made. The Court of Appeal held that the applicant did not establish that the alteration was or may be an alteration that LRT would have made if she had testamentary capacity. The Court of Appeal also held that the alteration was not appropriate to be made under section 24(e) of the Succession Act 1981.

In conclusion, the Court of Appeal dismissed the application for leave under section 22 of the Succession Act 1981 to apply for an order under section 21. The Court of Appeal found that the applicant did not establish that the proposed alteration of the will met the criteria set out in sections 24(d) and 24(e) of the Succession Act 1981. The Court of Appeal held that the applicant did not establish that LRT would have altered her will if she had testamentary capacity, and that the alteration was not appropriate to be made under section 24(e) of the Succession Act 1981.

Orders

Orders of the court

The application for leave under section 22 of the Succession Act 1981 to apply for an order under section 21 is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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