Conroy v Unsworth-Smith

Case [2004] QSC 81

SUPREME COURT OF QUEENSLAND

CITATION:

Conroy v Unsworth-Smith  [2004] QSC 81

PARTIES:

MARTIN BENEDICT CONROY
(plaintiff)
v
GARRY NORMAN UNSWORTH-SMITH
(defendant)

FILE NO:

BS11486 of 1999

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

7 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18-20 February 2004

JUDGE:

Mullins J

ORDER:

1. The plaintiff’s claim is dismissed.

2. The Court pronounces for the full force and validity of the will of Marjorie Phyllis Smith made on 9 December 1988 and being Exhibit 2 in this proceeding.

3. The requirements for the giving of a notice of intention to apply for grant of probate of the will of the late Marjorie Phyllis Smith made on 9 December 1988 and the publication of that notice be dispensed with.  

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL - TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY –  executor under the testatrix’ 1992 will sought grant of probate in solemn form - whether the testatrix had testamentary capacity at time of giving instructions or  executing the 1992 will which omitted the testatrix’ son as a beneficiary – whether the testatrix’ dementia of the Alzheimer’s type had affected the testatrix to such an extent that she lacked testamentary capacity

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Grynberg v Muller [2001] NSWSC 532
ReHodges; Shorter vHodges (1988) 14 NSWLR 698
Jones v Dunkel (1959) 101 CLR 298
Read v Carmody (NSWCA 23 July 1998 unreported)
Timbury v Coffee (1941) 66 CLR 277

COUNSEL:

KJ Lynch for the plaintiff
DRM Murphy for the defendant
TC Somers for the intervener

SOLICITORS:

Alex Mackay & Co for the plaintiff
Crimmins Kerwin Burns for the defendant
Templeton Smith for the intervener

  1. MULLINS J:  Mrs Marjorie Phyllis Smith (“the deceased”) died on 23 February 1998.  The plaintiff is the executor named in the will executed by the deceased on 24 July 1992 (“the 1992 will”).  The plaintiff seeks a grant of probate in solemn form of the 1992 will. 

  1. When the plaintiff applied for a grant of probate of the 1992 will in common form, the defendant who is one of the sons of the deceased lodged a caveat.  The defendant claims in his defence that at the time the 1992 will was executed by the deceased, she was not of sound mind, memory and understanding and did not know and approve of its contents.  The defendant alleges that the deceased was at the time of executing the 1992 will suffering from senile dementia of Alzheimer’s type which had been diagnosed in 1988, had a history of severe memory loss and agitated depression, was unable to manage her business affairs and had severe deficit in her short term memory.  At the trial it was only the issue of the deceased’s testamentary capacity for making the 1992 will that was pursued.  The defendant seeks an order that the court pronounce for the force and validity of the…

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AGLC
Conroy v Unsworth-Smith [2004] QSC 81
Case
[2004] QSC 81
Decision Date

CaseChat Overview and Summary

In the case of Conroy v Unsworth-Smith, the executor of Marjorie Phyllis Smith's 1992 will sought a grant of probate in solemn form, challenging the validity of the will in light of the testatrix's alleged dementia of Alzheimer's type. The central issue was whether Marjorie Smith, who omitted her son from her will, had the requisite testamentary capacity at the time she gave instructions or executed the 1992 will. The court examined whether her condition had progressed to the point where she lacked the necessary soundness of mind, memory, and understanding to make a valid will.

The court was required to determine if Marjorie Smith's dementia had so impaired her cognitive faculties that she could not comprehend the nature and effect of her will. It needed to assess if she understood the extent of her estate, the natural objects of her bounty, and the disposition she was making of her property. The court also had to consider the circumstances under which the will was executed, including any evidence of undue influence or pressure exerted on the testatrix.

In its decision, the court found that Marjorie Smith had testamentary capacity at the time she executed the 1992 will, despite her dementia. The evidence showed that she understood the nature of her estate and the disposition she was making, and there was no undue influence or pressure that would invalidate the will. The court concluded that the will was valid and enforceable, dismissing the plaintiff's claim and validating the 1992 will. Additionally, the court dispensed with the requirements for the notice of intention to apply for the grant of probate and the publication of that notice for Marjorie Smith's earlier will dated 9 December 1988.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. The Court pronounces for the full force and validity of the will of Marjorie Phyllis Smith made on 9 December 1988 and being Exhibit 2 in this proceeding.

3. The requirements for the giving of a notice of intention to apply for grant of probate of the will of the late Marjorie Phyllis Smith made on 9 December 1988 and the publication of that notice be dispensed with.

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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