Doughan v Straguszi

[2013] QSC 295

SUPREME COURT OF QUEENSLAND

CITATION:

Doughan v Straguszi & Ors [2013] QSC 295

PARTIES:

LYNETTE MARIE DOUGHAN   
(applicant)
v
ROSS ANTHONY STRAGUSZI
(first respondent)
and
SHARLAINE RAE STRAGUSZI
(second respondent)
and
SHONELL ROSE ROOS, LEIANA MARIE GLENWRIGHT, ROSS ANTHONY DOUGHAN AND STEVEN JOHN DOUGHAN
(third respondents)
and
RENEE SMITH, TANYA STRAGUSZI AND BIANCA STRAGUSZI

(fourth respondents)

FILE NO:

SC No 405 of 2013

DIVISION:

Trial 

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

16 October 2013 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

16 October 2013

JUDGE:

Henry J

ORDERS:

1.   The applicant has leave to make application to the court for an order that a will be authorised to be made for Rose Straguszi.

2.   The Registrar is authorised to make a will for and on behalf of Rose Straguszi in terms of the draft will which comprises pages five through to 15 inclusive of exhibit NDC1 to the affidavit of Naomi Rowan Lahara De Costa.

3.   This application otherwise be adjourned to a date to be fixed.

4.   There be liberty to apply.

5.   There be no order as to costs. 

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant applies for an order pursuant to s 22 of the Succession Act 1981 (Qld) that the applicant have leave to apply for an order pursuant to s 21 of the Act authorising a will to be made for her mother – where the applicant’s mother has dementia and lacks capacity to make, revoke or alter her will – where the will presently in existence creates uncertainty and complications due to its failure to deal specifically and accurately with various assets that comprise the family farm – where the applicant’s brother is presently entangled in dealings with receivers of businesses in which he had an involvement – where there is a possibility he could become the subject of personal bankruptcy – whether leave to apply should be granted – whether a will in terms of the draft will should be authorised to be made

Succession Act 1981 (Qld), s 21, S 22

Hausfeld v Hausfeld & Anor [2012] NSWSC 989, distinguished

COUNSEL:

MA Jonsson for the applicant
No appearance for the first, second, third and fourth respondents

SOLICITORS:

Miller Harris on behalf of the applicant

No appearance for the first, second, third and fourth respondents 

HENRY J: This is an application for orders pursuant to s 22 of the Succession Act 1981 (Qld) that the applicant have leave to apply for an order pursuant to s 21 of the Act that a will be authorised to be made for Rose Straguszi in terms of the draft will which is part of exhibit NDC1 to the affidavit of Naomi Rowan Lahara De Costa filed in these proceedings.

The applicant’s mother, Rose Straguszi, the testatrix, suffers from dementia and is without capacity to make or revoke or alter her will. 

There is a will…