Apk v JDS - [2012] NTSC 96

APK v JDS [2012] NTSC 96
PARTIES: APK
v

JDS

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   51 of 2012 (21220732)
DELIVERED:   3 July 2012
HEARING DATES:   14 & 28 June 2012
JUDGMENT OF:   BARR J
CATCHWORDS:

SUCCESSION – Wills, probate and administration – statutory requirements of will – testamentary capacity – whether suicide note constitutes will
Wills Act (NT) s 8(1), s 10(2)

Bailey v Bailey (1924) 34 CLR 558; Banks v Goodfellow (1870) LR 5 QB 549; Stuart v Kirkland-Veenstra [2009] 237 CLR 215, considered
REPRESENTATION:
Counsel:
Applicant:   T Liveris
Respondent:   A Young
Solicitors:
Applicant:   Withnalls Lawyers
Respondent:   Maleys Barristers and Solicitors
Judgment category classification:    B
Judgment ID Number:   Bar1208
Number of pages:   7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
APK v JDS [2012] NTSC 96

No. 51 of 2012 (21220732)
BETWEEN:

APK

Applicant

AND:

JDS

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 3 July 2012)

The deceased SDK [aged 41 at date of death] committed suicide by hanging on 5 February 2012.
Found next to the deceased’s body was a note written by him in a Spirax Note Pad notebook, which read as follows:
“To the cops:-
Well it has finally come to this. I Can’t Keep Getting Kicked in the head from this shit. I leave everything to my son J. I mean all I own. I Know it is not much But after all is paid he should have a Bit of a Start. I am So Sorry J, I Love You So Much. But I Just Can’t Go on any more. IT IS NOT YOUR fault.
JDS – I Give You Nothing You have been the Biggest Bitch! Thank For J, But now fuck off.
My family is to look after my money until J is old enough to take over.
BLK is to have NO Say or intervention in these issues.
I want to Be Burned and Scattered over the Sea. NO Big Funeral, Just Burn me and fuck me off.
I am So Sorry for being me. Just a wanker, Low Life, cock head.
Catch you all on the other side.
I am So Sorry J.
I Love You. XXXXX XX
K, I Love You with all my heart. Please Be [illegible, possibly “onest”, ie, honest]
Miss You. XXXXX X
I love you Mum and family. take care I will Be watching.
Love to You all.
NO more Drama’s NOW.
all free and ezey.
Weak prick I am.
Bye all.
Please look after my Kids Someone!!
Good Bye
XXXXX XXXX
JDS is the former de facto partner of the deceased and is the mother of the deceased’s son, J. BLK is the brother of the deceased.
The note took up three pages in the note book. There is no issue that the handwriting was that of the deceased.[1] The deceased also wrote the words “Such is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NTSC 96
Decision Date: 2/07/2012

CaseChat Overview and Summary

The court was presented with a dispute regarding the validity of a handwritten note as a will, specifically whether the note constituted the last testament of the deceased. The parties involved were the appellant, APK, and the respondents, JDS. The case was heard in the Supreme Court of Queensland. The central issue was whether the deceased, SDK, had testamentary capacity at the time he wrote the note, which was alleged to be his will, and whether this note met the statutory requirements for a valid will.

The court needed to determine if the note was indeed a valid will and if SDK had the requisite testamentary capacity when he wrote it. The court had to consider whether the note was written under duress or undue influence and if it was made in contemplation of death. The court also had to assess if SDK’s actions were consistent with someone of sound mind and if the note met the formal requirements of a will under the Succession Act.

The court concluded that there was no factual or legal basis to find that SDK lacked testamentary capacity at the time he wrote the note. The court found that the note was written in a coherent and logical manner, with clear intentions and dispositions of his estate. The judge held that the note was made in contemplation of death and met the statutory requirements for a valid will. The court declared that the handwritten note constituted the will of SDK deceased, rejecting the claims that it was a suicide note or the product of undue influence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no factual or legal basis on which I could find that the deceased lacked testamentary capacity at the time he wrote the note which constitutes his will. Conclusion I declare that the handwritten note extracted in par [2] above constitutes the will of SDK deceased. This judgment has been edited to prevent or at least minimise the possibility of a member of the public identifying the parties or any other person.

Ratio Decidendi

Legal Principle Established

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