Barrand v Coxall

[1999] QSC 352

SUPREME COURT OF QUEENSLAND

CITATION:

Barrand v Coxall [1999] QSC 352

PARTIES:

JOYCE DOLORES BARRAND
(Plaintiff)
v
ROBERT JOHN COXALL
(Respondent)

FILE NO/S:

8222 of 1999

DIVISION:

Trial Division

DELIVERED ON:

30 November 1999

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 1999

JUDGE:

Mackenzie J

ORDERS:

1.   The application is dismissed.

2.   The applicant pay the respondent's costs of and incidental to the application to be assessed.

CATCHWORDS:

WILLS PROBATE AND LETTERS OF ADMINISTRATION – THE MAKING OF A WILL – Testamentary  Capacity 
LAND TITLES UNDER THE TORRENS SYSTEM – Caveats against dealings

Uniform Civil Procedure Rules 626

Succession Act 1981 s 17(1)
In the Estate of Park, deceased; Park v Park (1954) P 112
Banks v Goodfellow (1870) LR 5QB 549
Boughton v Knight (1873) LR 3P&D 64
Bailey v Bailey (1924) 34 CLR 558

COUNSEL:

Mr M Jarrett for the applicant
Mr T Quinn for the respondent

SOLICITORS:

Hely & Cameron Solicitors for the applicant
James Varitimos for the respondent

1. MACKENZIE J:  This is an application to set aside a caveat pursuant to Uniform Civil Procedure Rule 626.  Rule 626(1) permits a person intending to apply for a grant of probate to apply to the court for an order setting aside a caveat.  The court may set aside the caveat if the court considers that the evidence does not:

(a)        show that the caveator has an interest in the estate or a reasonable prospect of  establishing an interest; or

(b)        raise doubt as to whether the grant ought to be made.

1. The respondent caveator is the stepson of the testator in respect of whose will the caveat has been entered.  The testator married the respondent's mother when he was 60.  He and the respondent's mother made wills identical in effect, the testator's being made on 4 January 1985.  The survivor of the two was entitled for life to use of the balance, after payment of expenses, of the other's estate.  Upon the death of the survivor the balance was to pass to the respondent absolutely.

1. At about the time the testator's will was made in 1985 he and the respondent's mother had acquired a parcel of real property as joint tenants.  The transfer was produced to the Titles Office on 11 February 1985 and registered on 20 February 1985.  It is likely that the contract was entered into at about the time when the will was made, assuming the normal timeframe for purchase of residential property.  It is reasonable to assume that the fact that the real property would pass by survivorship to the other, and if it was the testator who survived, to him was within their contemplation at the time the 1985 will was made.  It may also have been within their contemplation that the property would ultimately pass to the respondent as a consequence of the wills which mirrored each other. 

1. There is an allegation that the expressed intention of the parties was that the balance of the estate should pass to the respondent upon…