SHANE DESMOND MATTHEW FRIZZO AND ALAN GRAHAM TAYLOR (plaintiffs) v DEREK VICTOR KENNETH FRIZZO (first defendant) and ROBERT SERGIO EMIDIO FRIZZO (second defendant) and RENATO ADRIANO GABRIEL FRIZZO (third defendant) and ROSANNA LYDIA ANGELA FRIZZO (fourth defendant)
FILE NO:
5422 of 2008
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
12 May 2011
DELIVERED AT:
Brisbane
HEARING DATE:
21, 22, 24, 25 March 2011
JUDGE:
Applegarth J
ORDERS:
The questions for separate determination should be answered as follows:
1. The deceased had testamentary capacity at the time she made the 2006 Will.
2. The photocopy of the will that is Exhibit 5 ought to be admitted to probate.
3. The 2006 Will impliedly revoked the whole of the 2003 Will.
CATCHWORDS:
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where testatrix suffered longstanding but mild cognitive impairment – where testatrix made will in 2003 which favoured one child over his siblings – where testatrix was hospitalised in 2006 and required hip surgery –where testatrix suffered episodic delirium in the days following admission – where no symptoms of delirium were observed for a period of 36 hours before surgery – where testatrix dictated new will to doctors before entering theatre for surgery – where doctors considered testatrix’s capacity before writing down her instructions – where 2006 will divided entire estate equally among all children – where medical staff did not observe symptoms of “quiet delirium” during preparation for surgery and dictation of will – whether testatrix was suffering quiet delirium at time of dictating will – whether testatrix had testamentary capacity
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – IN GENERAL – where testatrix dictated will to doctors before entering theatre for surgery – where doctor wrote down will and a document naming the testatrix’s children – where original documents were retained by hospital staff when patient went into theatre – where photocopies were made for hospital records – where hospital staff annotated and signed photocopies to the effect that the originals had been sighted and the photocopies were true copies – where original documents were never found – whether photocopy of dictated will should be admitted to probate
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – OTHER WILLS, CODICILS OR WRITINGS – where former will contained appointment of executors, debt payment clause and miscellaneous provisions about trustees and administrative matters – where former will also contained numerous specific dispositions to different children – where testatrix expressed wish to “change” will and made a new will containing one clause disposing of entire estate equally to all children – where new dispositive clause inconsistent with former dispositions…
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.
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Details
AGLC
Frizzo v Frizzo [2011] QSC 107
Case
[2011] QSC 107
Decision Date
CaseChat Overview and Summary
The case of Frizzo v Frizzo involved a dispute regarding the validity and effect of a will made by the deceased, who had a history of mild cognitive impairment. The deceased had previously made a will in 2003, which favoured one of her children over his siblings. In 2006, while hospitalised for hip surgery, the deceased dictated a new will to medical staff, which divided her entire estate equally among all her children. The 2006 will and a document naming her children were written down by a doctor, photocopies were made for hospital records, and the originals were retained by hospital staff but never found. The deceased’s children contested the validity of the 2006 will and sought clarification on its effect.
The legal issues the court needed to address included whether the deceased had testamentary capacity when she made the 2006 will, whether the photocopy of the will should be admitted to probate in the absence of the original, and whether the 2006 will revoked the 2003 will entirely or only partially. The court also needed to determine whether the deceased’s solicitor, who had been granted letters of administration pendente lite, should be appointed to administer the estate.
The court found that the deceased had testamentary capacity when she made the 2006 will, as there were no symptoms of delirium observed for a period of 36 hours before surgery and the medical staff did not notice any signs of “quiet delirium” during the dictation of the will. The court also ruled that the photocopy of the will should be admitted to probate, as the photocopies were certified as true copies of the originals, and the originals were lost without fault. Regarding the revocation of the 2003 will, the court held that the 2006 will impliedly revoked the whole of the 2003 will, as the new dispositive clause was inconsistent with the former dispositions. Finally, the court declined to appoint the deceased’s solicitor as executor, due to potential conflicts of interest and family antagonism.
Orders
Orders of the court
The questions for separate determination should be answered as follows:
1. The deceased had testamentary capacity at the time she made the 2006 Will.
2. The photocopy of the will that is Exhibit 5 ought to be admitted to probate.
3. The 2006 Will impliedly revoked the whole of the 2003 Will.