Deecke v Deecke - [2009] QSC 65

SUPREME COURT OF QUEENSLAND

CITATION:

Deecke v Deecke [2009] QSC 65

PARTIES:

ANNETTE JOY DEECKE
(applicant)
v
LYNELLE TANYA DEECKE
(first respondent)
BRIAN DEECKE
(second respondent)

FILE NO:

BS1230 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

1 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2009

JUDGE:

Mullins J

ORDER:

1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981.
2. A will is authorised to be made on behalf of Lynelle Tanya Deecke in the terms set out in Exhibit AJH4 to the affidavit of AJ Hanson filed on 5 February 2009 (document 7).

3. The applicant’s costs of the originating application filed on 5 February 2009 must be assessed on an indemnity basis and paid out of the assets of the first respondent.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – in general – where application made under s 22 Succession Act 1981 (Qld) for leave to apply for an order under s 21 of that Act for a Court authorised will – where proposed testator had no prior will – where her parents would inherit on intestacy – where proposed testator had significant assets – where proposed testator sustained a major brain injury which affected her cognitive functioning – where the proposed will provided for a small charitable bequest with the residue given to the proposed testator’s mother and primary care-giver – where the first respondent’s father did not consent to or appear on the application – where the proposed testator lacked testamentary capacity – whether leave to apply for an order under s 21 should be granted – whether appropriate to authorise the will for the proposed testator – whether the costs of the application should be paid out of the assets of the proposed testator

Succession Act 1981, s 21, s 22, s 23, s 24

Boulton v Sanders (2004) 9 VR 495, distinguished
Bryant v Blake [2004] SASC 369, considered
Hoffman v Waters [2007] SASC 273, considered
Re Joachim (unreported, BS 12325 of 2008, Dutney J, 22 December 2008), considered
Winstanley v Winstanley (unreported, BS 11203 of 2007, Daubney J, 18 January 2008), considered

COUNSEL:

PJ Goodwin for the applicant
No appearance for the respondents

SOLICITORS:

MurphySchmidt for the applicant
No appearance for the respondents

MULLINS J: The applicant is the mother of the first respondent. The applicant applies under s 22 of the Succession Act 1981 (the Act) for leave to apply for an order under s 21 of the Act authorising the will be made for the first respondent.

The first respondent’s circumstances

The first respondent was born in 1978 and is 31 years old. She has had life-long cystic fibrosis, developed insulin dependent diabetes at age 13 years and has a history of epilepsy. She sustained a major brain injury which has affected her condition and functioning since October 1998. The injury was likely to…

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.

Continue reading Deecke v Deecke

Details

AGLC: Deecke v Deecke [2009] QSC 65
Case: [2009] QSC 65
Decision Date: 1 April 2009

CaseChat Overview and Summary

In the matter of Deecke v Deecke, the court was tasked with deciding an application for leave to apply for a court-authorised will under the Succession Act 1981 (Qld). The applicant sought the authorisation on behalf of Lynelle Tanya Deecke, who had suffered a significant brain injury affecting her cognitive abilities. Without a prior will, her parents would inherit under the intestacy rules. The proposed will intended to make a small charitable bequest and leave the residue to the applicant, Deecke’s mother and primary caregiver. The application was made without the consent of the father of the respondent, who did not appear in the proceedings. The central legal issues were whether leave should be granted for the application, if it was appropriate to authorise the will for the proposed testator, and whether the costs should be paid from the proposed testator's assets.

The court considered the statutory framework provided by the Succession Act 1981, particularly section 22, which governs applications for court-authorised wills, and section 21, which allows the court to authorise a will if the proposed testator lacks testamentary capacity. The court evaluated the evidence concerning Deecke’s cognitive impairment and her understanding of the nature and effect of making a will. Given that Deecke lacked testamentary capacity and the proposed will aligned with her intentions prior to the injury, the court found that authorising the will was appropriate. The court also considered the costs, determining that they should be paid from the respondent’s assets, as the application aimed to protect the proposed testator’s interests.

Accordingly, the court granted leave to the applicant to apply for an order under section 21 of the Succession Act 1981. It authorised a will for Lynelle Tanya Deecke in the terms specified in Exhibit AJH4 to the affidavit of AJ Hanson. The costs of the originating application were to be assessed on an indemnity basis and paid by the respondent.

Orders

Orders of the court

1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981.

2. A will is authorised to be made on behalf of Lynelle Tanya Deecke in the terms set out in Exhibit AJH4 to the affidavit of AJ Hanson filed on 5 February 2009 (document 7).

3. The applicant’s costs of the originating application filed on 5 February 2009 must be assessed on an indemnity basis and paid out of the assets of the first respondent.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Deecke v Deecke [2009] QSC 65
PARTIES:	ANNETTE JOY DEECKE (applicant) v LYNELLE TANYA DEECKE (first respondent) BRIAN DEECKE (second respondent)
FILE NO:	BS1230 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	1 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2009
JUDGE:	Mullins J
ORDER:	*1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act* 1981. 2. A will is authorised to be made on behalf of Lynelle Tanya Deecke in the terms set out in Exhibit AJH4 to the affidavit of AJ Hanson filed on 5 February 2009 (document 7). 3. The applicant’s costs of the originating application filed on 5 February 2009 must be assessed on an indemnity basis and paid out of the assets of the first respondent.**
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – in general – where application made under s 22 Succession Act 1981 (Qld) for leave to apply for an order under s 21 of that Act for a Court authorised will – where proposed testator had no prior will – where her parents would inherit on intestacy – where proposed testator had significant assets – where proposed testator sustained a major brain injury which affected her cognitive functioning – where the proposed will provided for a small charitable bequest with the residue given to the proposed testator’s mother and primary care-giver – where the first respondent’s father did not consent to or appear on the application – where the proposed testator lacked testamentary capacity – whether leave to apply for an order under s 21 should be granted – whether appropriate to authorise the will for the proposed testator – whether the costs of the application should be paid out of the assets of the proposed testator Succession Act 1981, s 21, s 22, s 23, s 24 Boulton v Sanders (2004) 9 VR 495, distinguished Bryant v Blake [2004] SASC 369, considered Hoffman v Waters [2007] SASC 273, considered Re Joachim (unreported, BS 12325 of 2008, Dutney J, 22 December 2008), considered Winstanley v Winstanley (unreported, BS 11203 of 2007, Daubney J, 18 January 2008), considered
COUNSEL:	PJ Goodwin for the applicant No appearance for the respondents
SOLICITORS:	MurphySchmidt for the applicant No appearance for the respondents