Harrison v Petersen

[2000] QSC 415

SUPREME COURT OF QUEENSLAND

CITATION:

Harrison v Petersen [2000] QSC 415

PARTIES:

WANDA HARRISON
(plaintiff)
v
DELMA PETERSEN
(defendant)

FILE NO:

9669 of 1998

DIVISION:

Trial Division

DELIVERED ON:

21 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23-24 August 2000

JUDGE:

Mullins J

ORDER:

The action be dismissed.

CATCHWORDS:

WILLS, PROBATE AND LETTERS OF ADMINISTRATION – MAKING A WILL – whether deceased had capacity when giving instructions or at the execution of the will –whether deceased knew and approved of the contents of the will – whether there was a testamentary act – whether testator had capacity to comprehend and appreciate the claims on his estate.

Astridge v Pepper [1970] 1 NSWR 542
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5QB 549
Nock v Austin (1918) 25 CLR 519
Parker v Felgate (1883) 8PD 171
Perera v Perera [1901] AC 354
Tyrell v Painton [1894] P151

COUNSEL:

G M Egan for the plaintiff
S J English for the defendant

SOLICITORS:

Bolster & Co for the plaintiff
Skuse & Co for the defendant

1. MULLINS J:  Mrs Wanda Harrison brings this action as plaintiff asking the court to pronounce for the validity of a will of Cyril Oscar Madden ("Mr Madden") bearing date 21 January 1997.  Mr Madden died on 5 June 1997 when he was almost 87 years old, having been born on 15 June 1910.  His estate comprised assets having a total value of approximately $80,000.  He was survived by his daughter Mrs Delma Petersen who is the defendant in this action and who is the only child of Mr Madden and his wife Eunice Madden ("Mrs Madden").

1. Mr and Mrs Madden's last home together was at Tyalgum in northern New South Wales.  The plaintiff lives at Eungella which is about 11 kilometres from where Mr and Mrs Madden lived.  Mr and Mrs Madden were aware that the plaintiff did volunteer work at Murwillumbah District Hospital through a group known as "Pink Ladies".  They had some brief acquaintance with the plaintiff when they approached her in 1991 to come and assist them in their home one day each week.  Mrs Madden offered to pay the plaintiff $7 for the day's work.  The plaintiff agreed to the arrangement and undertook activities such as ironing, dusting, vacuuming and food preparation. 

1. The frequency with which the plaintiff visited Mr and Mrs Madden to provide assistance increased over time.  Mrs Madden had a sight problem and eventually the plaintiff took over cooking in their home.  Eventually, they depended on her to take them to doctors' appointments.  A routine developed where the plaintiff would take Mr and Mrs Madden to Murwillumbah to shop once each week.  The plaintiff used Mr and Mrs Madden's vehicle for these trips. 

1. In May 1996 Mrs Madden was admitted to the Nerang Nursing Home.  Mr Madden was distressed at his separation from his wife.  The defendant considered that Mr Madden blamed her for being separated from his wife, as the defendant was involved in…