Garrihy v Garrihy

[2013] QSC 74

SUPREME COURT OF QUEENSLAND

CITATION:

Garrihy v Garrihy [2013] QSC 74

PARTIES:

LEISHA MARIE GARRIHY
(applicant)

v

INA MARY GARRIHY
(respondent)

FILE NO/S:

9835/12

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

8 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2013

JUDGE:

Dalton J

ORDERS:

1.   Set aside the caveat filed by the respondent on 23 October 2012.

2.   Subject to the formal requirements of the registrar, grant probate of the will of Eileen Theresa Garrihy dated 31 May 2001.

3.   Order that the respondent pay the costs of and incidental to the application on a standard basis to be assessed or agreed.

SOLICITORS:

Affinity Lawyers for the applicant
Respondent in person

1. This is a dispute between two sisters over the estate of their mother.  The application is pursuant to UCPR 626(2) to remove a caveat lodged by the respondent pursuant to r 624(2)(a) forbidding the grant of probate to the applicant of the deceased’s will dated 31 May 2001.  The applicant also applies for probate of the will in common form, subject to the formal requirements of the registrar. 

1. The interest claimed in the estate pursuant to the caveat is, “next of kin (eldest daughter) and entitled in intestacy to a share of the estate.”  The notice in support of the caveat lodged by the caveator goes on to say that the caveator requires, “the alleged will of [the deceased] propounded by the applicant to be proved in solemn form”.  The respondent contends that her mother did not have capacity to make the will.  Her mother was suffering from dementia when she died in 2010.  Interpreting the respondent’s claim as a claim that the deceased lady was suffering from dementia in 2001, the applicant produced a medical certificate from her treating doctor.  It stated that the doctor was her treating doctor from 2006 until her death, and that in his view she did not suffer from dementia until 2008.

1. The deceased died on 22 July 2010.  At that stage all her offspring were adults over the age of 50 years.  The deceased’s will was made by the Public Trustee on 31 May 2001.  It appointed the applicant as executor and trustee and one of the deceased’s sons as the alternative executor and trustee.  The estate was left to the applicant and her two brothers.  The respondent was not mentioned in the will. 

1. An earlier will had been made for the deceased by the Public Trustee on 19 April 2001.  It made the same appointments and bequests.  It contained errors: the testator’s son Sean was called Shern; the applicant’s middle name was written as Mary rather than Marie.

1. Two of the Public Trustee’s computer-driven forms to record instructions to make a will were in evidence before me.  The form completed before the will of April 2001 shows the mistakes Shern and Mary recorded by the officer of the Public Trustee who took instructions from the testator.  In this form is a place where the…