SUPREME COURT OF QUEENSLAND
CITATION:
Carey v Carey [2015] QSC 197
PARTIES:
PATRICIA MARGARET CAREY
(applicant)
v
TONY CURTIS CAREY(respondent)
FILE NO/S:
SC No 4974 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application on the papers
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 June 2015
DELIVERED AT:
Brisbane
JUDGE:
Douglas J
ORDER:
The order of the court is that:
1. Declare that, on 8 November 1976, the late Elizabeth Lillian Carey wrote and executed a document which was in the words, figures and symbols following, or in the words figures and symbols to the like effect:
a. I Elizabeth Lillian Carey of 17 Erbacher Street, Centenary Heights QLD 4350 do hereby revoke all my previous wills and declare this to be my final will and testament.
b. I give my house at 17 Erbacher Street, Centenary Heights QLD 4350 to Patricia Margaret Carey and Tony Curtis Carey, absolutely, as tenants in common, in the following proportions:
i. As to Patricia Margaret Carey, two thirds (2/3); and
ii. As to Tony Curtis Carey, one third (1/3).
c. I give divide the residue of my estate equally among Patricia Margaret Carey and Tony Curtis Carey as tenants in common.
2. Declare that, at the date of late Elizabeth Lillian Carey passing, the said Will had not been revoked.
3. Order that, subject to the formal requirements of the Registrar, a grant of probate of the will of Elizabeth Lillian Carey of 17 Erbacher Street, Centenary Heights QLD 4350 issued to Patricia Margaret Carey as sole executor, limited until the original will or more authenticated evidence be brought into and left in the Registry, in the following terms:
a. I Elizabeth Lillian Carey of 17 Erbacher Street, Centenary Heights QLD 4350 do hereby revoke all my previous wills and declare this to be my final will and testament.
b. I give my house at 17 Erbacher Street, Centenary Heights QLD 4350 to Patricia Margaret Carey and Tony Curtis Carey, absolutely, as tenants in common, in the following proportions:
i. As to Patricia Margaret Carey, two thirds (2/3); and
ii. As to Tony Curtis Carey, one third (1/3).
c. I give divide the residue of my estate equally among Patricia Margaret Carey and Tony Curtis Carey as tenants in common.
4. That the Applicant’s cost of and incidental to this Application be paid out of the estate of Elizabeth Lillian Carey on an indemnity basis.
CATCHWORDS:
SUCCESSION – MAKING OF A WILL –TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – EVIDENCE – where it was likely that the file together with the will for the deceased was destroyed after 10 years as nothing had been heard from the children of the deceased – where the evidence of the children of the deceased was that she had made three wills – where the deceased’s son recalled a final will being read to him at a law firm after the death of the deceased – where the deceased’s son recalled that…
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- AGLC
- Carey v Carey [2015] QSC 197
- Case
- [2015] QSC 197
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the son's recollection of the will's contents, as recited to him after the deceased's death, was sufficient to grant probate of the will. This required the court to consider the credibility of the son's testimony and the extent to which it could be relied upon to determine the contents of the will. Additionally, the court had to assess whether the son's disclaimer of his role as executor and his interest in the estate affected the grant of probate.
The court determined that the son's testimony was credible and that it was appropriate to grant probate based on his recollection of the will's contents. The court found that the son's testimony was sufficiently detailed and consistent with other evidence, including the will register which listed the son and daughter as executors. The court also considered that the daughter's inability to sell the deceased's house due to it still being registered in the deceased's name supported the need for a grant of probate. Consequently, the court declared the contents of the will and ordered the grant of probate to the daughter as sole executor, pending the production of the original will or more authenticated evidence.
The final orders of the court declared the contents of the deceased's will, confirmed that the will had not been revoked at the time of the deceased's passing, and granted probate to the daughter as sole executor, subject to formal requirements. The court also ordered that the applicant's costs be paid from the estate on an indemnity basis.
Orders
Orders of the court
The order of the court is that:
1. Declare that, on 8 November 1976, the late Elizabeth Lillian Carey wrote and executed a document which was in the words, figures and symbols following, or in the words figures and symbols to the like effect:
a. I Elizabeth Lillian Carey of 17 Erbacher Street, Centenary Heights QLD 4350 do hereby revoke all my previous wills and declare this to be my final will and testament.
b. I give my house at 17 Erbacher Street, Centenary Heights QLD 4350 to Patricia Margaret Carey and Tony Curtis Carey, absolutely, as tenants in common, in the following proportions:
i. As to Patricia Margaret Carey, two thirds (2/3); and
ii. As to Tony Curtis Carey, one third (1/3).
c. I give divide the residue of my estate equally among Patricia Margaret Carey and Tony Curtis Carey as tenants in common.
2. Declare that, at the date of late Elizabeth Lillian Carey passing, the said Will had not been revoked.
3. Order that, subject to the formal requirements of the Registrar, a grant of probate of the will of Elizabeth Lillian Carey of 17 Erbacher Street, Centenary Heights QLD 4350 issued to Patricia Margaret Carey as sole executor, limited until the original will or more authenticated evidence be brought into and left in the Registry, in the following terms:
a. I Elizabeth Lillian Carey of 17 Erbacher Street, Centenary Heights QLD 4350 do hereby revoke all my previous wills and declare this to be my final will and testament.
b. I give my house at 17 Erbacher Street, Centenary Heights QLD 4350 to Patricia Margaret Carey and Tony Curtis Carey, absolutely, as tenants in common, in the following proportions:
i. As to Patricia Margaret Carey, two thirds (2/3); and
ii. As to Tony Curtis Carey, one third (1/3).
c. I give divide the residue of my estate equally among Patricia Margaret Carey and Tony Curtis Carey as tenants in common.
4. That the Applicant’s cost of and incidental to this Application be paid out of the estate of Elizabeth Lillian Carey on an indemnity basis.
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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