Albury v Sammut

Case [2019] QSC 105

SUPREME COURT OF QUEENSLAND

CITATION:

Albury & Anor v Sammut [2019] QSC 105

PARTIES:

LEANNE FRANCES ALBURY

(first plaintiff)
TONI ANNE SAMMUT
(second plaintiff)

v
APINYATREE SAMMUT

(defendant)

APINYATREE WUTITUM under Part IV Sections 40-44 Succession Act 1981
(applicant)
v
LEANNE FRANCES ALBURY and TONI ANNE SAMMUT as Executors of the Estate of FRANK ANTHONY SAMMUT Deceased
(respondents)

FILE NOS:

BS10519 of 2017
BS13643 of 2018

DIVISION:

Trial Division

PROCEEDING:

Proof of will in solemn form and family provision application

DELIVERED ON:

26 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18-20 February 2019

JUDGE:

Mullins J

ORDER:

In proceeding BS10519 of 2017:

1.  The Court pronounces for the full force and validity of the will of Frank Anthony Sammut (the deceased) late of 55 Kensington Street, Bundaberg in the State of Queensland dated 23 February 2017, a copy of which is Exhibit A to the affidavit of Leanne Frances Albury filed on 6 February 2018 in proceeding BS13643 of 2018 (the said will).

2.  Subject to the formal requirements of the Registrar, probate of the said will be granted to Leanne Frances Albury and Toni Anne Sammut as executors.

3.  The counterclaim is dismissed.

4.  Adjourn the question of the costs of the proceeding to a date to be fixed.

In proceeding BS13643 of 2018:

1.  It is ordered that adequate provision be made for the proper maintenance and support of the applicant Apinyatree Wutitum out of the estate of Frank Anthony Sammut deceased (the deceased) by substituting the following for clause 5.1 of the last will of the deceased dated 23 February 2017:

“5.1 (a)  I give and devise to my wife Apinyatree Wutitum the real property that I own at 55 Kensington Street, Norville in the State of Queensland described as Lot 4 on Registered Plan 72587 in the Country of Cook Parish of Bundaberg for her own use and benefit absolutely.

(b)  I give and bequeath to Apinyatree Wutitum the sum of $50,000 for her use and benefit absolutely.”

2.  Adjourn the question of the costs of the proceeding to a date to be fixed.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the testator was survived by three adult daughters from his first marriage and his second wife – where the testator made a new will four days before he died that reduced his widow’s inheritance –– where the widow challenges the validity of the will – whether the testator lacked testamentary capacity – whether the testator was suffering a delusion about the widow’s conduct – whether the will was procured by undue influence of the daughters – whether the testator knew and approved the contents of the will

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – DUTY OF TESTATOR – DUTY TO SPOUSE OR PARTNER – where the applicant for adequate provision for proper maintenance and support out of the estate is the testator’s widow – whether the jurisdictional question is answered in favour of…

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Details
AGLC
Albury v Sammut [2019] QSC 105
Case
[2019] QSC 105
Decision Date

CaseChat Overview and Summary

In the case of Albury v Sammut, the widow of the deceased, Apinyatree Wutitum, challenged the validity of a new will made by her husband, Frank Anthony Sammut, just four days before his death. The will significantly reduced her inheritance. The court was tasked with determining whether the testator had the requisite testamentary capacity and if the will was influenced by undue pressure from the testator's three adult daughters from his first marriage. Additionally, the court needed to decide if the widow's actions while the testator was incapacitated constituted disentitling conduct that would affect her eligibility for adequate provision under the Family Provision Act.

The court examined the evidence regarding the testator's state of mind at the time of making the will, including his belief that the widow had misappropriated funds from his accounts. It was established that the testator's statements about the widow's conduct were admissible to explain his motives but not as proof of their truth. The court also considered the widow's use of the testator's credit card and withdrawals from his account while he was incapacitated. The court concluded that the testator had testamentary capacity and that the will was not the product of undue influence or delusions. However, the widow's actions while the testator was incapacitated were deemed to be disentitling conduct, impacting her entitlement under the Family Provision Act.

The court ruled that the will was valid and ordered probate to be granted to the named executors. It further ordered that the widow receive adequate provision for her maintenance and support, modifying the will to include a bequest of the matrimonial home and an additional $50,000. The court dismissed the counterclaim and deferred the decision on costs to a later date.

Orders

Orders of the court

In proceeding BS10519 of 2017:

1. The Court pronounces for the full force and validity of the will of Frank Anthony Sammut (the deceased) late of 55 Kensington Street, Bundaberg in the State of Queensland dated 23 February 2017, a copy of which is Exhibit A to the affidavit of Leanne Frances Albury filed on 6 February 2018 in proceeding BS13643 of 2018 (the said will).

2. Subject to the formal requirements of the Registrar, probate of the said will be granted to Leanne Frances Albury and Toni Anne Sammut as executors.

3. The counterclaim is dismissed.

4. Adjourn the question of the costs of the proceeding to a date to be fixed.

In proceeding BS13643 of 2018:

1. It is ordered that adequate provision be made for the proper maintenance and support of the applicant Apinyatree Wutitum out of the estate of Frank Anthony Sammut deceased (the deceased) by substituting the following for clause 5.1 of the last will of the deceased dated 23 February 2017:

“5.1 (a) I give and devise to my wife Apinyatree Wutitum the real property that I own at 55 Kensington Street, Norville in the State of Queensland described as Lot 4 on Registered Plan 72587 in the Country of Cook Parish of Bundaberg for her own use and benefit absolutely.

(b) I give and bequeath to Apinyatree Wutitum the sum of $50,000 for her use and benefit absolutely.”

2. Adjourn the question of the costs of the proceeding to a date to be fixed.

Background

Background to the litigation

There is no issue that this written statement by Mr Sammut and the similar statements made orally by Mr Sammut to Mr Baker about the conduct Mr Sammut ascribed to the defendant are admissible to provide evidence of the reasons for Mr Sammut making the later will, but are not evidence of the truth of the assertions: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 137, 150, 159.Mr Sammut’s background Mr Sammut had been a successful cane farmer in the Bundaberg area. He then acquired real properties which he rented and described his occupation as landlord. He married his first wife in 1965 and the plaintiffs and Mrs O’Donnell are the children of that marriage. He and his first wife divorced in 1993. Mr Sammut banked with the National Australia Bank. One of the accounts that was still operative at the time of his death described as a “Flexiplus Mortgage” account was the account into which the tenants paid their rent and had approval for a line of credit of up to $150,000, so that he was in a position, if he chose to do so, to use the line of credit for further investments without seeking specific loan approval. Mr Sammut’s last days in hospital I will set out in narrative form the events that took place in the last couple of weeks of Mr Sammut’s life. Much of the evidence was not contentious, but it was the interpretation the parties placed on what happened that was contentious. Where it is necessary to do so, I will identify where I have preferred the evidence of one witness over another. Mr Sammut had lung cancer and contracted pneumonia. He was having difficulty breathing and was taken by ambulance to the Bundaberg Hospital on 9 February 2017. Mr Sammut had an NAB Visa credit card and an NAB Visa debit card (which is referred to in the evidence as the pink debit card). Although the NAB Classic banking account which could be accessed by the pink debit card was in Mr Sammut’s name, he was in the habit of putting money in that account for the defendant to use and the defendant considered the money on the pink debit card to be a gift to her from Mr Sammut. From time to time Mr Sammut would allow the defendant to use his Visa credit card for small purchases by tapping it on a shop’s EFTPOS device. When the defendant visited Mr Sammut on 10 February 2017, he wrote his PIN for the Visa credit card on a piece of paper and told the defendant that she would need that “to pay some bills and for living expenses” and that he wanted her to get the car repaired, to buy the paint that he had told her about, and she might need it to pay for the visa. The reference to the visa was an application for permanent residence that the defendant and Mr Sammut had investigated for the defendant, before he was admitted to hospital. They had ascertained that the cost of the visa would be $1,156. On admission to hospital, Mr Sammut gave his wallet to the defendant that contained his Visa credit card, Medicare card, driver’s licence, membership cards and some cash. Between 10 and 12 February 2017, the defendant used the credit card to make some small tap and go purchases.

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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