Lando v Sutton

SUPREME COURT OF QUEENSLAND

CITATION:

Lando v Sutton [2011] QSC 339

PARTIES:

SABINA LANDO
(Plaintiff)

v

SANTA MANI SUTTON
(Defendant)

FILE NO/S:

1607/11

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

3 October 2011 (extemporaneous)

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2011

JUDGE:

Philippides J

ORDER:

Order as per draft.

CATCHWORDS:

APPLICATION – DEFAULT JUDGMENT – PROBATE – Court’s jurisdiction to grant probate per s 6 Succession Act 1981 (Qld) – where deceased had three known Wills – where plaintiff named as executor in 1998 Will and defendant named as executor in 2003 Will – where submitted that the 2003 Will should not be propounded as the testator lacked testamentary capacity due to a series of strokes and dementia – whether a grant of probate for the 2003 or 1998 Will should be granted

Succession Act 1981 (Qld), s 6
Uniform Civil Procedure Rules 1999 (Qld), r 288

In the Estate of Szylowicz (decd) (1978) 19 SASR 263
In the Will of Pearce (decd) (1945) 46 SR (NSW) 71
In the Will of Podger (decd) [1957] VR 275
Mecredy v Brown [1906] 2 IR 437
Queensland Trustees Ltd v Finney [1904] QWN 21
Re King [1917] 2 Ch 420
Re Muirhead [1971] P 263
Ritchie v Malcolm [1902] 2 IR 403
Tiger v Handley [1948] WN 432
Vandeleur v Franich [1991] 1 Qd R 481

Wytcherley v Andrews (1871) LR 2 PD 327

COUNSEL:

D Morgan for the applicant
No appearance for the respondent

SOLICITORS:

Woods Prince Lawyers for the applicant
No appearance for the respondent

HER HONOUR: This is an application for default judgment pursuant to rule 288 Uniform Civil Procedure Rules. I note that section 6 of the Succession Act 1981 is also relevant because, by that section, the Court is granted jurisdiction "in every respect as may be convenient" to grant and revoke probate and letters of administration. As mentioned, the matter proceeds by way of application for default judgment, the applicant having filed an affidavit of service which indicates that the defendant was duly served. I note that, although rule 288 UCPR contemplates relief being granted on the basis of the pleadings, it is accepted that because this is a probate matter, the Court retains a discretion to grant probate. In this case, it is submitted that the discretion should be exercised by analogy with the principles applicable to compromised probate actions and enunciated by Macrossan CJ in Vandeleur v Franich [1991] 1 Qd R 481.

The primary proceedings are a solemn form action concerning the estate of the late James McFarlane, who died on 21 September 2009.  The testator left three Wills which are known.  The last Will was made on 30 July 2003, and the second last was made on 12 November 1998.  The plaintiff is the executor named in the 1998 Will and the defendant is the executrix named in the 2003 Will.  The position taken by the applicant is that the 1998 Will be propounded as the last Will of the…