Frizzo v Frizzo

Case [2011] QCA 308


SUPREME COURT OF QUEENSLAND

CITATION:

Frizzo & Anor v Frizzo & Ors [2011] QCA 308

PARTIES:

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

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21, considered
Banks v Goodfellow (1870) LR 5 QB 549, considered
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, approved
Groom v Thomas (1829) 2 Hag Ecc 434; [1828] EngR 80, cited
Kerr v Badran [2004] NSWSC 735, considered
McDonald v Watson (1872) 11 SCR (NSW) 4, cited
Nicholson & Ors v Knaggs & Ors [2009] VSC 64, cited
Tu v Tu Estate of Tu [2008] NSWSC 458, considered
Waters v Waters (1848) 64 ER 263; [1848] EngR 73, cited
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, considered

COUNSEL:

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

  1. MARGARET McMURDO P:  I agree with Muir JA's reasons for dismissing this appeal. 

  1. The second to fourth respondents,…

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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.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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