Duncan v Gibson

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.