Haggarty v Wood

[2013] QSC 327

SUPREME COURT OF QUEENSLAND

CITATION:

Haggarty v Wood [2013] QSC 327

PARTIES:

JOHN PETER JOSEPH HAGGARTY
(plaintiff)

v

JOAN WOOD
(defendant)

FILE NO/S:

BS 5303 of 2013

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013

JUDGE:

Jackson J

ORDERS:

On the plaintiff’s application to add the proposed second plaintiffs as parties and to amend the claim and statement of claim it is ordered that:

1.    the application is dismissed.

2.    the plaintiff pay the defendant’s costs of the application

On the defendant’s application to strike out the amended statement of claim it is ordered that:

1.    The amended statement of claim is struck out;

2.    on or before 28 February 2014 the plaintiff file and serve a further amended statement of claim;

3.    the plaintiff pay the defendant’s costs of the application.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – UNDUE INFLUENCE – GENERALLY – where the deceased made several wills which eventually distributed the estate to the defendant – whether the plaintiff sufficiently pleaded the material facts constituting testamentary undue influence – whether the amended statement of claim should be amended and/or struck out    

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS –  CONTRACTS TO LEAVE PROPERTY BY WILL – where the deceased and wife agreed on the distribution of property owned by a company controlled by the deceased who held all the shares and made wills accordingly – where the wife pre-deceased the deceased who made several subsequent wills – where no agreement not to revoke the wills or other consideration alleged – whether the plaintiff sufficiently pleaded material facts to allege a testamentary contract – whether the amended statement of claim should be amended and/or struck out   

Uniform Civil Procedure Rules 1999, r 149, r 150(1), r 150(2)

Berzins & Anor v Russo & Anor [2008] SASC 192, cited
Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, cited
Hussey & Anor v Bauer & Ors [2011] QCA 91, cited
Riches v Hogben (1985) 2 Qd R 292, cited
Tobin v Ezekiel [2012] NSWCA 285, cited   
Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor[2007] NSWCA 136, cited
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, cited

COUNSEL:

K Fleming QC and A Marks for the plaintiff
D Savage QC and C Brewer for the defendant

SOLICITORS:

Walker Pender Lawyers for the plaintiff
McNamara & Associates for the defendant

1. JACKSON J:  The plaintiff applies to add further plaintiffs and to further amend the claim and statement of claim.  The defendant resists the application to amend and applies to strike out the existing amended statement of claim. 

A family arrangement

1. The underlying dispute is over the estate of John Haggarty (also known as Jack Haggarty) who died on 10 August 2012.  There are three sets of dispositions on which the claims and proposed claims…