In the Will of - [2020] QSC 26

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Esme Jane Ferris (deceased) [2020] QSC 26

PARTIES:

Peter Roy Ferris and Helen Joanne Downing

(applicants)

FILE NO/S:

No 931 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

2 March 2020

DELIVERED AT:

Rockhampton

HEARING DATE:

2 March 2020

JUDGE:

Crow J

ORDER:

1.   Declare that the will dated 14 March 2016 is invalid as the testator did not have testamentary capacity at the time of executing the will of 14 March 2016.

2.   Subject to the usual requirements of the registrar, a grant in common form can proceed in respect of the will dated 31 May 2005.

3.   An order that the executor’s costs be met out of the estate on an indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the deceased sought to create a new Enduring Power of Attorney – where the deceased was thought to lack capacity – where the deceased subsequently created a second will – whether the deceased had testamentary capacity when creating the will

Succession Act 1981 (Qld)
Uniform Civil Procedure Rules 1999 (Qld) r 601

Banks v Goodfellow (1870) LR 5 QB 549

In The Will of Edward Victor Macfarlane Deceased [2012] QSC 20
Philpott v Olney [2004] NSW SC 592

Re Estate Griffith (Deceased); Easter v Griffith & Ors (1995)
217 ALR 284

COUNSEL:

A J Bierman (Solicitor) for the applicants

SOLICITORS:

VAJ Byrne & Co for the applicants

This application concerns the testamentary capacity of the deceased executor at the time of the execution of her second will dated 14 March 2016. The matter has been referred to the court by the registrar pursuant to r 601(2) of the Uniform Civil Procedure Rules 1999 (Qld).
The testator, Esme Joan Ferris, died on 19 July 2019 aged 90 years. The testator’s husband, Walter Roy Ferris predeceased the testator. The late Walter Roy Ferris and the testator had three children, Walter Allan Brian Ferris, Peter Roy Ferris (the first applicant) and Helen Joanne Downing (the second applicant). Neither of the wills make any provision for Walter Allan Brian Ferris, the eldest son of the later Walter Roy Ferris and the testator. However, an explanation is made of this in paragraph 8 of the will dated 14 March 2016 (the second will) which records that a provision was not made for Walter Allan Brian Ferris under the second will as he was gifted the family property known as “Hereford Hills” during his lifetime.
The applicants advertised their notice of intention to apply for a grant of probate of the will dated 31 May 2005 (the first will) and served a copy of that notice upon the Public Trustee. Neither Walter Allan Brian Ferris nor any other person has objected to the grant of probate of the first will being made in favour of the applicants.
On 31 May 2005, the testatrix, aged approximately 76 years, executed her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QSC 26
Decision Date: 2 March 2020

CaseChat Overview and Summary

The case involves the estate of a deceased individual, where the primary dispute centres on the validity of two separate wills. The first will was executed on 31 May 2005, while the second was made on 14 March 2016. The court was tasked with determining whether the deceased had the requisite testamentary capacity when executing the second will. This determination was crucial given the contention that the deceased may have lacked the necessary mental capacity at the time of creating the second will. The case was heard and determined in the Supreme Court of the state.

The central legal issue before the court was whether the deceased possessed testamentary capacity at the time of executing the will dated 14 March 2016. The court had to weigh the evidence presented regarding the deceased’s mental state and determine whether there was sufficient evidence to conclude that the deceased lacked the understanding necessary to execute a valid will. This included an examination of the deceased’s cognitive abilities and any relevant medical evidence provided. The court also considered whether the deceased had the requisite knowledge and approval of the contents of the will.

After reviewing the evidence, the court found that the deceased did not have testamentary capacity at the time of executing the will dated 14 March 2016. The court found that the deceased's mental state was such that they could not appreciate the nature and effect of making a will, nor could they understand the extent of their property and the claims to which it was subject. Consequently, the court declared that the will dated 14 March 2016 was invalid. The court then determined that a grant in common form could proceed in respect of the earlier will dated 31 May 2005, subject to the usual requirements of the registrar. Furthermore, the court ordered that the executor’s costs be met out of the estate on an indemnity basis.

Orders

Orders of the court

1. Declare that the will dated 14 March 2016 is invalid as the testator did not have testamentary capacity at the time of executing the will of 14 March 2016.

2. Subject to the usual requirements of the registrar, a grant in common form can proceed in respect of the will dated 31 May 2005.

3. An order that the executor’s costs be met out of the estate on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the Will of Esme Jane Ferris (deceased) [2020] QSC 26
PARTIES:	Peter Roy Ferris and Helen Joanne Downing (applicants)
FILE NO/S:	No 931 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	2 March 2020
DELIVERED AT:	Rockhampton
HEARING DATE:	2 March 2020
JUDGE:	Crow J
ORDER:	1. Declare that the will dated 14 March 2016 is invalid as the testator did not have testamentary capacity at the time of executing the will of 14 March 2016. 2. Subject to the usual requirements of the registrar, a grant in common form can proceed in respect of the will dated 31 May 2005. 3. An order that the executor’s costs be met out of the estate on an indemnity basis.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the deceased sought to create a new Enduring Power of Attorney – where the deceased was thought to lack capacity – where the deceased subsequently created a second will – whether the deceased had testamentary capacity when creating the will Succession Act 1981 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r 601 Banks v Goodfellow (1870) LR 5 QB 549 In The Will of Edward Victor Macfarlane Deceased [2012] QSC 20 Philpott v Olney [2004] NSW SC 592 Re Estate Griffith (Deceased); Easter v Griffith & Ors (1995) 217 ALR 284
COUNSEL:	A J Bierman (Solicitor) for the applicants
SOLICITORS:	VAJ Byrne & Co for the applicants