SHANE DESMOND MATTHEW FRIZZO (first appellant) ALAN GRAHAM TAYLOR (second appellant) v DEREK VICTOR KENNETH FRIZZO (first respondent) ROBERTO SERGIO EDMIDIO FRIZZO (second respondent) RENATO ADRIANO FRIZZO (third respondent) ROSANNA LYDIA ANGELA FRIZZO (fourth respondent)
FILE NO/S:
Appeal No 4883 of 2011 SC No 5422 of 2008
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
1 November 2011
DELIVERED AT:
Brisbane
HEARING DATE:
19 October 2011
JUDGES:
Margaret McMurdo P, Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed with costs.
CATCHWORDS:
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where the testatrix dictated a will to her doctors in 2006 immediately prior to undergoing hip replacement surgery – where the 2006 Will purported to change the testatrix’s 2003 Will and divide the estate equally between her five children – where the 2003 Will left certain property to certain children, with the residue of the estate to the first appellant – where the estate included parcels of land, an entitlement under her late husband’s estate, choses in action and shares – where there was evidence that the testatrix was confused and agitated in the days prior to her surgery and the making of the 2006 Will – where the primary judge accepted the testatrix’s doctor’s evidence that she was not suffering from delirium at the time of making the 2006 Will – whether the testatrix had testamentary capacity – whether the testatrix was aware, at least in general terms, of the nature and extent of her assets – whether the 2006 Will was validly made
W Sofronoff QC SG, with C A Brewer, for the appellants A P J Collins, with M Horvath, for the first respondent J C Bell QC, with J I Otto, for the second to fourth respondents
SOLICITORS:
North Coast Law for the appellants Quinn & Scattini Lawyers for the first respondent Murphy Schmidt Solicitors for the second to fourth respondents
MARGARET McMURDO P: I agree with Muir JA's reasons for dismissing this appeal.
The second to fourth respondents,…
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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AGLC
Frizzo v Frizzo [2011] QCA 308
Case
[2011] QCA 308
Decision Date
CaseChat Overview and Summary
The appeal was brought by two of the testatrix's children against the executors of her estate, who were also her children, following a ruling by the Supreme Court of New South Wales. The testatrix had executed a will in 2003 which left property to certain children and the residue to the first appellant. In 2006, prior to undergoing hip replacement surgery, she dictated a will to her doctors which purported to change the 2003 will and divide the estate equally between her five children. The appellants contested the validity of the 2006 will, claiming that the testatrix lacked testamentary capacity at the time of its execution.
The court was required to determine whether the testatrix had testamentary capacity at the time of making the 2006 will. The testatrix's capacity to make a will was assessed by considering whether she was aware, at least in general terms, of the nature and extent of her assets, and whether she understood the effect of the 2006 will. The court also considered whether there was evidence of the testatrix being confused and agitated in the days prior to her surgery, which could have impacted her testamentary capacity.
The court found that the testatrix had testamentary capacity at the time of making the 2006 will. The court accepted the evidence of the testatrix's doctor that she was not suffering from delirium at the time of making the will, and that she was aware of the nature and extent of her assets. The court found that the testatrix understood the effect of the 2006 will and that it was validly made.