Duncan v Gibson

Case [2020] QSC 204

SUPREME COURT OF QUEENSLAND

CITATION:

Duncan v Gibson [2020] QSC 204

PARTIES:

DUNCAN, Michele Simone

(Plaintiff)

v
GIBSON, Peter Michael

(First Defendant)
and

GEBICKI, Karl Mark

(Second Defendant)

FILE NO/S:

BS 5172 of 2019

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

9 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 12 June 2020

JUDGE:

Boddice J

ORDER:

I will hear the parties as to the form of orders and costs.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – SIGNATURE OF TESTATOR – GENERALLY – where the plaintiff seeks declaratory and other relief in relation to a document said to be the last Will of the deceased – where one issue at trial was whether the deceased affixed her signature to the document – where the plaintiff contended a number of circumstances aroused a suspicion that the document was not signed by the deceased – where there was evidence from two witnesses that the deceased affixed her signature to the document, in their presence, before each affixed their own signatures to the document – whether the remaining matters said to constitute suspicious circumstances were sufficient to displace the direct evidence – whether the deceased affixed her signature to the document

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where one issue at trial was whether the deceased had testamentary capacity – where the plaintiff contended a number of circumstances raised a real doubt about the deceased’s capacity to execute a valid will – where the deceased had a number of medical conditions – where there was evidence from two witnesses that the deceased was coherent on the day she affixed her signature to the document – whether the deceased knew and approved of the contents of the document and intended that it would represent her last Will – whether the deceased had testamentary capacity

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – GENERAL PRINCIPLES – where one issue at trial was whether the deceased made adequate provision for the plaintiff – where the estate was modest in size – where the plaintiff and the deceased were estranged – whether the plaintiff was left without adequate provision for her proper maintenance, education and advancement in life

Succession Act 1981 (Qld), s 41(1)

Banks v Goodfellow (1870) LR 5 QB 549
Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 853
Collett & Anor v Knox v Anor [2010] QSC 132
Freeman & Ors v Jacques [2006] 1 Qd R 318
Goodchild v James (1994) 13 QAR 229
Grey v Harrison [1997] 2 VR 359
Hamill & Anor v Wright & Ors [2018] QSC 197
In the Estate of L E Jones; Incarnuti v Chambers, Supreme Court of Queensland, 4 April 1988, unreported
Nock v Austin [1918] HCA 73
Read v Carmody [1998] NSWCA 182
Singer v Berghouse (1994) 181 CLR 201
Veall v Veall

Continue reading Duncan v Gibson

Sign in free to access the full text

Details
AGLC
Duncan v Gibson [2020] QSC 204
Case
[2020] QSC 204
Decision Date

CaseChat Overview and Summary

The case of Duncan v Gibson involves the plaintiff, the sole surviving child of the deceased, who seeks declaratory and other relief regarding a document claimed to be the deceased’s last Will. The deceased, Fay Lorraine Duncan, was found dead in her home in Cooroy, Queensland, and the document in question appoints Peter Michael Gibson, her carer, as the sole beneficiary. The plaintiff contends that the document was not signed by the deceased, or that if signed, the deceased lacked testamentary capacity to execute it. The central issues before the court were whether the deceased affixed her signature to the document, whether she had testamentary capacity at the time of signing, and whether she made adequate provision for the plaintiff.

The court considered the evidence from two witnesses who attested to witnessing the deceased sign the document. However, the plaintiff argued that various circumstances suggested the document was not valid, including the deceased’s alleged lack of testamentary capacity, the document being prepared by a principal beneficiary, discrepancies in the signature, and the misspelling of the plaintiff's name. The court evaluated these claims against the direct evidence provided by the witnesses, finding that the attestation evidence was compelling and that the suspicious circumstances did not sufficiently displace it. The court also considered the deceased's medical conditions and concluded that she demonstrated testamentary capacity at the time of signing.

In terms of the adequacy of the provision for the plaintiff, the court noted the modest size of the estate and the estrangement between the plaintiff and the deceased. The court found that the deceased had made adequate provision for the plaintiff, taking into account the circumstances and the nature of their relationship.

The court will hear the parties regarding the form of orders and costs.

Orders

Orders of the court

I will hear the parties as to the form of orders and costs.

Background

Background to the litigation

A further issue, in the event the document was found not to be the last Will of the deceased, was a claim by the first defendant for unpaid wages and other sums.Background The plaintiff is the sole surviving child of the deceased, who was found dead at Cooroy in the State of Queensland on 19 October 2018. She was aged 67 years. The deceased was found by the first defendant, lying face down on her bedroom floor wrapped in a doona. An autopsy recorded the cause of death as “not ascertained”, as smothering could not be completely excluded as a cause of death. At the time of her death, the deceased was living with the first defendant. He was her carer. He alleges they were also in a de facto relationship. The deceased was the registered owner of the real property at Cooroy. That property contained a modest home. It is in a poor state and requires substantial repairs. Its value is between $320,000 and $350,000.Document The document is a typed document in the following terms:“This is the last will and testament of FAY LORRAINE DUNCAN of 11 Miva Street Cooroy in the State of Queensland, widow.1.I HEREBY REVOKE all Wills Codicils and Testamentary Dispositions heretofore made by me and I declare this to be my last will.2.I HEREBY APPOINT my dear friend Karl Mark Gebicki of Lot 72 Plan no: 16532 Mount Perry in the state of Queensland Sole Executrix of this my Will AND I DECLARE that in the interpretation of this my will the term “my Trustees” shall where the context permits mean and include the trustee or trustees for the time being here of whether original or substituted.3.I GIVE AND BEQUEATH all jewellery personal effects money in accounts and any motor vehicle of which I die possessed including any duty and fees incurred. Unto my daughter Michelle Simone Rook in the state of NSW. 4. I GIVE DEVISE AND BEQUEATH The rest and residue of my property all furniture and fittings real and personal of whatsoever kind and wheresoever situate to my carer Peter Michael Gibson of 11 Miva Street Cooroy in the stale of Queensland.IN WITNESS WHEREOF I the above named FAY LORRAINE DUNCAN have hereunto set my hand this day of 2017SIGNED by the said Fay Lorraine Duncan as her last will in the presence of us both being present at the time who at her request and in her presence and in the presence of each other have hereunto subscribed our names as attesting witnesses” The date section contained “19TH” and “Janui” in handwriting, below which was affixed “Fay Duncan”. The witness section contained two signatures, with the names Ernest Sanderson and Karl Gebicki beside those signatures.Evidence The deceased was born on 19 September 1951. She had two older siblings, Kevin Cliffe (“Kevin”) and Brian Cliffe (“Brian”). When aged 23 years, the deceased married Sidney Russell Duncan (“Sidney”). The deceased and Sidney divorced in about 1979. Sidney died in 1993. There were two children from that relationship, a son, who died on 11 November 2014, aged 43, and the plaintiff.

Evidence

Evidence Before The Court

The date section contained “19TH” and “Janui” in handwriting, below which was affixed “Fay Duncan”. The witness section contained two signatures, with the names Ernest Sanderson and Karl Gebicki beside those signatures.Evidence The deceased was born on 19 September 1951. She had two older siblings, Kevin Cliffe (“Kevin”) and Brian Cliffe (“Brian”). When aged 23 years, the deceased married Sidney Russell Duncan (“Sidney”). The deceased and Sidney divorced in about 1979. Sidney died in 1993. There were two children from that relationship, a son, who died on 11 November 2014, aged 43, and the plaintiff. The deceased’s son suffered from mental health issues. A failed attempt at suicide in 1993 left him with significant brain damage. He was difficult to manage and would, on occasions, be violent. During one violent episode, the deceased suffered some broken bones, which limited her mobility in the latter stages of her life.Plaintiff The plaintiff was born on 9 March 1976. She is now aged 44 years. The deceased changed the spelling of the plaintiff’s christian name, when the plaintiff was approximately 16 months old, from “Michelle” to ‘Michele”. That reflected the spelling of the name of the wife of one of the deceased’s brothers, who was regarded by the deceased as her best friend. The plaintiff had not seen her original birth certificate until it was produced in an affidavit by the first defendant. To her knowledge, the deceased did not have her original birth certificate. The deceased struggled with addiction. She abused alcohol, prescription medication and illicit drugs. As a consequence, the plaintiff had a dysfunctional upbringing. The plaintiff was subjected to violence throughout her childhood. In her teenage years, the plaintiff lived with Sidney. The plaintiff had limited contact with the deceased. Since adulthood, the plaintiff had limited her contact with the deceased, on the advice of her psychologist and, later, her trauma counsellor. The plaintiff last saw the deceased approximately 20 years before her death. She last spoke to her some 17 years before her death. The plaintiff kept herself informed as to the deceased’s circumstances through Kevin and Brian and her aunties. The plaintiff organised the deceased’s cremation and memorial service. The plaintiff sent an email to the first defendant on 22 October 2012 confirming the arrangements and costs. That email referred to a funeral benefits policy. It also referred to the plaintiff’s intention to collect the deceased’s jewellery and other effects. The plaintiff said she had spoken to the first defendant before she sent that email. The first defendant told the plaintiff he was to receive $6,000 from a funeral benefits policy. The plaintiff said he expressed pleasure in the fact that as the deceased had died accidently he would have a greater pay out under the policy. The plaintiff said the first defendant also said he had typed up a Will for the deceased about one year previously, but he could not find it and it was not validated. He said he was getting the deceased’s jewellery and family photographs together for her.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Tina accepted that in the last two years of the deceased’s life the first defendant was the deceased’s carer. She said the first defendant was caring for the deceased and her son for a long time, but did not officially become the deceased’s carer until the deceased’s son died in 2014.Consideration The plaintiff contends that the following circumstances arouse a suspicion that the document was not signed by the deceased, or at least raise a real doubt about the deceased’s capacity to execute a valid Will: (a)The deceased’s lack of testamentary capacity.(b)The document was prepared by the first defendant, a principal beneficiary under it.(c)The signature on the Will does not appear to be that of the deceased, being materially different to examples of her known signature.(d)The plaintiff’s name is misspelt within the document.(e)The second defendant was not known to any member of the deceased’s family.(f)The document was prepared in 2016 but had a typed date 2017.(g)Different versions were given by the witnessing parties as to the circumstances of the execution of the document.(h)Different versions were given by the first defendant and the second defendant about the discovery of the document.(i)The deceased’s death was surrounded by suspicious circumstances.(j)The deceased had no memory of having signed the document.(k)Shortly prior to her death, the deceased told Brian that the first defendant was unhappy as she had told him she was not leaving the house to him.(l)The first defendant has given conflicting accounts about the preparation of an earlier Will.Legal principles In order to have testamentary capacity, a testator must:(a)understand the nature of the act and its effect, that is, be aware of and appreciate the significance of the making of a Will;(b)understand the extent of the property of which she is disposing, that is, be aware, at least in general terms, of the nature, extent and value of the estate;(c)comprehend and appreciate the claims to which she ought to give effect, that is, be aware of those who may reasonably be thought to have a claim upon the estate and the basis for and nature of the claims of such persons;(d)have no disorder of the mind which influences the disposition of his estate, that is, have an ability to evaluate and discriminate between the respective strengths of the claims on his estate.[6][6]Hamill & Anor v Wright & Ors [2018] QSC 197 at [140] per Applegarth J; Banks v Goodfellow (1870) LR 5 QB 549 at 565; Read v Carmody [1998] NSWCA 182. Material circumstances include the nature of the document, the rationality or otherwise of its provisions, the exclusion or non-exclusion of persons naturally having a claim on the testator, extreme age, sickness and the opportunity to exercise undue influence.[7][7]In the Estate of L E Jones; Incarnuti v Chambers, Supreme Court of Queensland, 4 April 1988, unreported, per Connolly J. The existence of suspicious circumstances places an onus, on those propounding a document as the last valid Will of a deceased person, of proving that the Will was validly made and that it was the last Will of the deceased.[8][8]Williams v Public Trustee of New South Wales (No 2) [2007] NSWSC 974 at [60].