Green v Critchley

[2004] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Green v Critchley [2004] QSC 022

PARTIES:

THOMAS JOSEPH GREEN
(applicant)

and

EVELYN MAY CRITCHLEY
(respondent)

FILE NO/S:

11865/03

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

24 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

6, 13 February 2004

JUDGE:

Atkinson J

ORDER:

The application is dismissed.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – IN WHAT CIRCUMSTANCES – DISCOVERY AND INVALIDITY OF WILL – test to be applied – whether sufficient evidence of undue influence to raise suspicion of the court – whether testator had testamentary capacity when giving instructions or at the execution of the will – whether illness or age affected testator’s understanding of instructions and disposition of her estate

Uniform Civil Procedure Rules 1999, r640
Succession Act 1981, s36A(4), s36A(5)

Re Russell [1986] 1 Qd R 131, cited
Bailey v Bailey (1924) 34 CLR 558, applied
Boughton v Knight (1873) LR 3 P&D 64, cited
Bur Singh v Uttam Singh (1910) 38 Cale 367, cited
Harrison v Peterson [2000] QSC 415, considered
Maw v Dickey (1974) 6 OR (2d) 146, cited
Parfitt v Lawless (1872) LR 2 P&D 462, cited
Tyrrell v Painton (1894) P 151, cited
Tipper v Moore & Anor (1911) 13 CLR 248, cited
Wingrove v Wingrove (1885) 11 P 81, cited

COUNSEL:

QT Cregan for the Applicant

SOLICITORS:

Alex Nelson Lawyers for the Applicant

John K Harris for the Respondent

1. The applicant and the respondent in this matter are brother and sister.  They are the only two children of Margaret Josephine Lawrence who died on 4 July 2003 at the age of 88 years.  Both Thomas Joseph Green, the applicant, and Evelyn May Critchley, the respondent, were children of Mrs Lawrence’s first marriage.  They are now aged 68 and 66 years respectively.  Mrs Lawrence died of a myocardial infarction having suffered from atrial fibulation and cerebrovascular disease for many years.  Mr Green applied to the Court for the revocation of a grant of probate issued to Mrs Critchley in relation to Mrs Lawrence’s estate.  He has sufficient interest to do so as he would be entitled to take on the intestacy of Mrs Lawrence were he to be successful in his application.[1]

   [1]Re Russell [1986] 1 Qd R 131; UCPR r 640; Succession Act 1981 ss 36A(4), (5).

1. Mrs Critchley applied for probate as executor of a will made by Mrs Lawrence on 22 November 2000.  Mrs Critchley was named as the executor in that will.  Under that will, Mrs Lawrence divided the whole of her estate equally between her daughter, Mrs Critchley, and her grand-daughter, Mrs Critchley’s daughter, Jennifer Margaret Hearn.  Probate was granted on 21 August 2003.  The estate is a relatively small one having a net value of less than $200,000.

1. Mr Green gave evidence by affidavit that in about June 2000, some four to five months prior to the execution of her will, Mrs…