In The Will of

SUPREME COURT OF QUEENSLAND

CITATION:

In The Will of Bruce George Gillespie Deceased [2012] QSC 335

PARTIES:

GLORIA DAWN GILLESPIE

(Applicant)

v

GEOFFREY BRUCE GILLESPIE

(First Respondent)

And

WILLIAM BRUCE GILLESPIE

(Second Respondent)

And

MICHAEL PELDAN AND MORGAN LANE as trustees for THE ESTATE OF ANNETTE MIRIAM MAREE GREEN (FORMERLY ROGERS) (A BANKRUPT)

(Third Respondent)

FILE NO/S:

S222/2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

7 November 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

18 October 2012

JUDGE:

McMeekin J

ORDER:

1. The caveat lodged by the first and second respondents on 3 May 2012 is set aside.
2. Probate of the last Will of Bruce George Gillespie deceased dated 3 April 2006 be granted to the applicant as executor.

CATCHWORDS:

SUCCESSION – WILLS PROBATE AND
ADMINISTRATION – Probate and letters of administration
– Lack of Testamentary Capacity - whether testator of sound

mind during creation of will  – whether any undue influence exercised over the testator – whether caveats should be removed

Uniform Civil Procedure Rules 1999 (Qld) r 626

Barrand v Coxall [1999] QSC 352

Dore v Billinghurst [2006] QCA 494

Golybovitch v Soshnina [2009] QSC 437

In re Muirhead [1971] P 263

Nock v Austin [1918] 25 CLR 519

Woodgate v Hobbs [2011] QSC 224

COUNSEL:

C Heyworth-Smith for the applicant

G Lynham for the first and second respondents

SOLICITORS:

Macrossan & Amiet Solicitors for the applicant

SB Wright & Wright and Condie for the first and second respondents

1. McMeekin J: Gloria Gillespie has applied for a grant of probate of a Will of Bruce George Gillespie, deceased (executed 3 April 2006). She is the executor named in the Will and the widow of the deceased. The only asset in the estate is the home in which she lived with the testator and in which she continues to live.

1. The respondents filed caveats preventing the grant and requiring that the Will be proved in solemn form. This is an application to remove those caveats.

1. The respondents are the children of the deceased from an earlier marriage.

1. Ten days prior to the hearing the caveat lodged by the third respondent was withdrawn.

1. The application is brought pursuant to r626(2)(b) Uniform Civil Procedure Rules 1999 (“UCPR”) which provides:

Setting aside caveat
(1) If—

(a) a person intends to apply for a grant; and
(b) a caveat is in force in relation to the estate;

the person may apply to the court, naming the caveator as a respondent, for an order setting aside the caveat.
(2) The court may set aside the caveat if the court considers that
the evidence does not—

(a) show that the caveator has an interest in the estate or a reasonable prospect of establishing an interest; or
(b) raise doubt as to whether the grant ought to be made.

…

1. There is no love lost between the parties. Unfortunately this has meant that common sense has been discarded. The caveats have no purpose. The Will in question effectively leaves the deceased’s…