In The Will of

SUPREME COURT OF QUEENSLAND

CITATION:

In The Will of Edward Victor Macfarlane Deceased [2012] QSC 20

PARTIES:

In The Will of Edward Victor Macfarlane Deceased

(Applicant)

FILE NO/S:

S602/2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

16 February 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

30 January 2012

JUDGE:

McMeekin J

ORDER:

1. Declare that the grant of probate dated 26 November 2010 of the will dated 11 May 2000 is valid
2. Order that the executors’ costs be met out of the estate on the indemnity basis.

CATCHWORDS:

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

mind during creation of second will

Succession Act 1981 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
In re Muirhead [1971] P 263
Middlebrook v Middlebrook (1962) 36 ALJR 216
Re Estate Griffith (Deceased); Easter v Griffith & Ors (1995)
217 ALR 284

COUNSEL:

Mr N Peacey (Solicitor) for the executors

SOLICITORS:

John Crossan and Company Solicitors for the executors

The Registrar in person

1. McMeekin J: This application concerns the testamentary capacity of the deceased testator. The matter has been referred to the court by the Registrar pursuant to r 601(2) Uniform Civil Procedure Rules 1999.

1. The testator, Edward Macfarlane, died on 1 May 2010 aged 96 years. His executors have been granted probate of his will dated 11 May 2000. There is however a later will dated 16 April 2008.

1. The executors initially sought to administer the estate in accordance with the later will. However, upon receipt of the Death Certificate it was noted that “multi infarct dementia” was listed as a cause of death and the duration of the illness dated back to 2002. It is the registrar’s practise to requisition the will in these circumstances. The testator’s solicitor, Mr Peacey, advised the executors of the imminent problems in obtaining probate of this will. The executors subsequently sought, and were granted, probate of the earlier will dated 11 May 2000 without, however, disclosing to the Court the existence of the later will.  I should stress that there is no suggestion of any impropriety by those involved. However probate of the earlier will in common form should not have been sought in these circumstances. It is for the Court to determine matters of testamentary capacity.

1. Here the matter is complicated by the circumstance that the same executors are appointed under the two wills, and the two wills make the same disposition, save that the later will makes no reference to certain realty which had in the meantime been sold.  The executors, who are themselves beneficiaries, and the sole non executor beneficiary, have no interest in propounding one will over the other.

1. If the executors thought it appropriate they could have sought to prove the earlier will in solemn form. Alternatively they should have propounded the later will and sought to meet the…