GAU v GAV

Case [2014] QCA 308


SUPREME COURT OF QUEENSLAND

CITATION:

GAU v GAV [2014] QCA 308

PARTIES:

GAU
(appellant)
v
GAV
(respondent)

FILE NO/S:

Appeal No 8257 of  2014
SC No 4919 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2014

JUDGES:

Muir, Gotterson and Morrison JJA
Judgment of the Court

ORDERS:

2014. Order 5 delivered 28 November 2014. Orders 1, 2, 3, 4 and 6 delivered ex tempore on 17 October

1.Appeal allowed.     

2.Set aside the order made on 6 August 2014.     

3.Grant leave to the Appellant, GAU, pursuant to s 22 of the Succession Act 1981 (“the Act”) to apply for an order pursuant to s 21 of the Act authorising the alteration of the will of GM dated 21 June 1998.     

4.Alteration of the said will of GM in terms of the form of codicil marked “A” attached to this order is authorised pursuant to s 21 of the Act.     

5.The appellant’s costs of the appeal and the respondent’s costs of the appeal each be assessed on an indemnity basis and be paid out of the assets of GM.     

6.Liberty to apply.     

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the testatrix had lost testamentary capacity – where the testatrix’s will bequeathed property to her son and daughter-in-law (the respondent) – where the son and respondent have separated – where divorce and property settlement proceedings are pending in the Family Court – where the testatrix’s husband of more than 55 years filed an application to amend the will by way of a codicil pursuant to s 21 of the Succession Act 1981 (Qld) – where the learned primary judge concluded that the testatrix would have made the proposed codicil if she had testamentary capacity – whether it was appropriate for the Court to make an order pursuant to s 21

Acts Interpretation Act 1954 (Qld), s 32CA(1)
Succession Act 1981 (Qld), s 21, s 22, s 23, s 24, s 24(e), s 25

Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112, cited
Doughan v Straguszi [2013] QSC 295, cited
Hausfeld v Hausfeld [2012] NSWSC 989, cited
Hoffman v Waters (2007) 98 SASR 500; [2007] SASC 273, cited
Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530, cited
Re Matsis; Charalambous v Charalambous & Ors (2012) 8 ASTLR 361; [2012] QSC 349, cited
Saunders v Pedemont [2012] VSC 574, cited
Secretary, Department of Family and Community Services v K [2014] NSWSC 1065, cited

COUNSEL:

W Sofronoff QC, with R D Williams, for the appellant
R M Treston QC, with J Brasch, for the respondent

SOLICITORS:

Merthyr Law for the appellant
Phillips Family Law for the first respondent

  1. THE COURT:  Mrs GM (“the testatrix”) is now 81 years old.  She and her husband, GAU, who is the appellant…

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Details
AGLC
GAU v GAV [2014] QCA 308
Case
[2014] QCA 308
Decision Date

CaseChat Overview and Summary

The appeal, heard in the Queensland Court of Appeal, involved a dispute over the validity of a will made by GM and the appropriateness of amending it. GM, who had been married to her husband for over 55 years, created a will that bequeathed her property to her son and daughter-in-law. The son and daughter-in-law have since separated, with divorce and property settlement proceedings ongoing in the Family Court. The husband, GAU, sought to amend the will through a codicil, arguing that GM lacked testamentary capacity at the time the will was made. The daughter-in-law, GAV, opposed the application, contending that the will should stand as it was made with testamentary capacity.

The central legal issues before the court were whether GM had testamentary capacity when she made the will and, if not, whether the court should permit the alteration of the will via a codicil under section 21 of the Succession Act 1981 (Qld). The primary judge had concluded that GM would have made the proposed codicil if she had testamentary capacity. The Court of Appeal had to consider the evidence regarding GM's mental state at the time of making the will and determine the appropriate legal principles to apply in deciding whether to authorise the codicil.

The Court of Appeal allowed the appeal, setting aside the earlier order that denied the husband's application to amend the will. The Court found that GM did not have testamentary capacity when she made the will, thus making it invalid in its current form. However, the Court concluded that it was appropriate to authorise the codicil, as it would reflect GM's intentions if she had the requisite mental capacity. The Court authorised the alteration of the will in the terms specified in the form of codicil attached to the order. Additionally, the Court ordered that the costs of the appeal be borne by each party equally and assessed on an indemnity basis, to be paid out of GM's estate.

Orders

Orders of the court

2014. Order 5 delivered 28 November 2014. Orders 1, 2, 3, 4 and 6 delivered ex tempore on 17 October

1.Appeal allowed.

2.Set aside the order made on 6 August 2014.

3.Grant leave to the Appellant, GAU, pursuant to s 22 of the Succession Act 1981 (“the Act”) to apply for an order pursuant to s 21 of the Act authorising the alteration of the will of GM dated 21 June 1998.

4.Alteration of the said will of GM in terms of the form of codicil marked “A” attached to this order is authorised pursuant to s 21 of the Act.

5.The appellant’s costs of the appeal and the respondent’s costs of the appeal each be assessed on an indemnity basis and be paid out of the assets of GM.

6.Liberty to apply.

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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