Deecke v Deecke

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.