Hensler v Padget

[2008] QSC 82

SUPREME COURT OF QUEENSLAND

CITATION:

Hensler v Padget & Ors [2008] QSC 82

PARTIES:

KAREN DOREEN HENSLER
(plaintiff)
v
BEVERLEY JOAN DORIS PADGET
(first defendant)
COLLEEN ANNE MARIE DAVIDSON (ALSO KNOWN AS COLLEEN FOELZ)
(second defendant)
CHRISTEN SWAMI (ALSO KNOWN AS CHRISTEN BEETON)
(third defendant)

FILE NO/S:

11564 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2008

JUDGE:

Martin J

ORDER:

That the revised Will document forwarded to the deceased on 11 December 2003 be admitted to Probate. 1.   

That the applicant’s costs of and incidental to the application assessed on an indemnity basis be paid out of the estate of the deceased.2.   

That the intervener’s costs of and incidental to the application assessed on an indemnity basis be paid out3.    of the estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – TESTAMENTARY CAPACITY- where testamentary capacity apparent at all relevant times - where deceased subsequently diagnosed with gradual onset dementia.

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – where deceased gave signed instructions for execution of  new Will – where draft Will prepared but not formally executed - whether the Will document signed by the deceased embodies the deceased’s testamentary intention.

Succession Act 1981, s 10
Uniform Civil Procedure Rules, r 288

In the Estate of Radziszewski (1982) 29 SASR 256
McGrath v de Plater [2004] QSC 21 at [13].
Re Garris [2007] QSC 181
Re Male [1934] VLR 318
Worth v Clasohm (1952) 86 CLR 439

COUNSEL:

P D Tucker for the plaintiff
T  W Quinn for the Intervenor Orielle Jean Foelz

SOLICITORS:

Hogan and Company Lawyers for the plaintiff
De Groots Wills & Estate Lawyers for the Intervenor Orielle Jeann Foelz

Introduction

1. The applicant seeks judgment under r 288 of the Uniform Civil Procedure Rules.

1. The applicant is the executor of the estate of the late Bryan George William Gibson. In August 2000 the deceased executed a Will which had been prepared, on his instructions, by his solicitor, the applicant.

1. In February 2003 he again consulted the applicant and gave her some instructions in relation to the preparation of a new Will. Those instructions were both oral and in writing and the deceased signed (or initialled) his written instructions and the notes taken by the applicant of his oral instructions.

1. After a number of revisions a draft revised Will was sent to him in December 2003. In April 2004 the deceased lost testamentary capacity by which time he had not executed the revised Will. He died in August 2007.

1. The applicant seeks, among other things:

(a)        A declaration that either the unexecuted December 2003 Will or the signed notes of the meeting between the applicant and the deceased that took place in February 2003 records the true testamentary intention of the deceased, and

(b)        An order that either the unexecuted Will of December 2003 or the Will of August 2003…