Konui v Tasi

Case [2015] QSC 74

SUPREME COURT OF QUEENSLAND

CITATION:

Konui v Tasi & Anor  [2015] QSC 74

PARTIES:

MOLLY RAPIA KONUI AS THE EXECUTOR NAMED IN THE WILL DATED 5 MARCH 2012 OF MITA MICHAEL KONUI, DECEASED
(Applicant)
v
RUIA TASI
(First respondent)
And

MATTHEW JON ANDERSON
(Second respondent)

FILE NO/S:

S 432/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

9 April 2015

DELIVERED AT:

Rockhampton

HEARING DATE:

5 March 2015

JUDGE:

Boddice J

ORDERS:

1.    The application filed by the first respondent be dismissed;

2.    I declare the force and validity of the last Will and Testament of Mita Michael Konui Deceased dated 5 March 2012;

3.    Probate of the last Will and Testament of the Deceased dated 5 March 2012 in whole be granted to Molly Rapia Konui, subject to the formal requirement of the Registrar;

4.    The applicant receive remuneration in the sum of $9,210.00

CATCHWORDS:

SUCCESSION – making of a Will – testamentary capacity – whether the deceased had testamentary capacity

SUCCESSION – execution – whether informal document intended to be Will

Succession Act 1981 (Qld), s 10, s 18

Banks v Goodfellow (1870) LR 5 QB 549, applied
Barry v Butlin (1838) 12 ER 1089, cited
Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Estate of Williams (1984) 36 SASR 1282, cited
Hatsatouris v Hatsatouris [2001] NSWCA 408, applied
Kenny v Wilson (1911) 11 SR (NSW) 460, cited
Macey v Finch [2002] NSWSC 933, cited
Mitchell v Mitchell [2010] WASC 174, cited
National Australia Trustees Ltd v Fazey [2011] NSWSC 559, considered
Nock v Austin (1918) 25 CLR 519 at 528, cited
Phillpot v Olney [2004] NSWSC 592, applied

Public Trustee v McKeon (1917) 17 SR (NSW) 157, cited

Smith v Hayler [1999] NSWSC 1282, applied
Re Estate of Angius [2013] NSWSC 1895, cited
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, cited
Re Spencer (Dec’d) [2014] QSC 276, applied
Re Springfield (1991) NSWLR 535, applied
Re Stuckey [2014] VSC 221, cited
Timbury v Coffee (1941) 66 CLR 277, cited
Tyrrell v Painton [1894] P15, cited
Will of Wilson (1897) 23 VLR 197, cited

COUNSEL:

A R Arnold for the applicant

S J Deaves for the first respondent  

SOLICITORS:

Swanwick Murray Roche for the applicant

Robert Harris Rivett for the first respondent

  1. Boddice J: The applicant and the first respondent each make application for declaratory and other relief in relation to what constitutes the last Will of Mita Michael Konui (“the Deceased”) who died at the Princess Alexandra Hospital, Woolloongabba, on 14 November 2013.  Various ancillary orders are also sought, depending on the determination of that primary issue.  The applicant also seeks an order, by way of separate application, for the payment of remuneration.

  1. The applicant is the appointed executor and trustee of the Deceased’s Will dated 5 March 2012 (“2012 Will”). The applicant seeks a declaration that the 2012 Will is the valid last Will of…

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Details
AGLC
Konui v Tasi [2015] QSC 74
Case
[2015] QSC 74
Decision Date

CaseChat Overview and Summary

Mita Michael Konui passed away, leaving behind a will dated 5 March 2012, which designated his wife, Molly Rapia Konui, as the sole beneficiary. The validity and authenticity of this will were contested by the deceased’s son, Konui, who argued that his father lacked testamentary capacity and that the document was not a formal will. The matter was brought before the court to determine the legitimacy of the will and the distribution of the estate.

The primary legal issues revolved around the deceased’s testamentary capacity at the time of making the will and whether the document in question was intended to serve as a formal will. The court was tasked with evaluating the evidence presented on the deceased’s mental state and understanding at the time of signing the will, as well as assessing the circumstances surrounding the creation and execution of the document.

In examining the evidence, the court found that Mita Michael Konui demonstrated a clear understanding of his estate and the implications of his actions when he executed the will. The court was satisfied that the document was intended to be his formal will. The judge dismissed the claim that the deceased lacked testamentary capacity, concluding that he had a sound mind and understanding when he made the will. Therefore, the court granted probate of the will to Molly Rapia Konui, subject to the formal requirement of the Registrar.

The final orders of the court included dismissing the application by Konui, declaring the validity of the will dated 5 March 2012, granting probate to Molly Rapia Konui, and allowing the applicant to receive remuneration of $9,210.00.

Orders

Orders of the court

1. The application filed by the first respondent be dismissed;

2. I declare the force and validity of the last Will and Testament of Mita Michael Konui Deceased dated 5 March 2012;

3. Probate of the last Will and Testament of the Deceased dated 5 March 2012 in whole be granted to Molly Rapia Konui, subject to the formal requirement of the Registrar;

4. The applicant receive remuneration in the sum of $9,210.00

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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