Lawrie v Hwang

Case [2013] QSC 289

SUPREME COURT OF QUEENSLAND

CITATION:

Lawrie v Hwang [2013] QSC 289

PARTIES:

MITCHELL ANDREW LAWRIE
(applicant)

v

KUMOK HWANG
(respondent)

FILE NO/S:

BS No 8967 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2013

JUDGE:

Ann Lyons J

ORDERS:

1.   Pursuant to s 22 of the Succession Act 1981 (Qld) (“the Act”), the applicant has leave to apply for an order pursuant to s 21 of the Act authorising a Will to be made for Keith John Lawrie.

2.   Pursuant to s 21 of the Act, a Will is authorised to be made for Keith John Lawrie in terms of the draft Will which is exhibit ‘MAL-4’ to the affidavit of Mitchell Andrew Lawrie filed on 30 September 2013.

3.   The applicant’s costs of and incidental to this application are to be assessed on the indemnity basis and paid out of the assets of Keith John Lawrie.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where applicant sought leave under s 22 Succession Act 1981 (Qld) to apply for an order under s 21 Succession Act 1981 (Qld) authorising a statutory will to be made for his father – where the applicant’s father suffered from dementia – where the Public Trustee and Adult Guardian had been appointed to act for the applicant’s father in all his financial and personal matters – where the respondent had recently married the applicant’s father – where the father’s most recent will was revoked by the marriage under s 14 Succession Act 1981 (Qld) leaving him with no valid will – where the applicant argued that if his father was able to instruct on the making of a will, he would not want any part of his estate to pass to the respondent given her allegedly dishonest conduct in transferring away his assets – where there respondent sought an adjournment of the proceedings – whether the proceedings should be adjourned – whether the applicant’s father lacks testamentary capacity – whether the proposed statutory will is or may be a will the applicant’s father would make if he were to have testamentary capacity

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON THE INDEMNITY BASIS – whether costs should be paid out of the estate on an indemnity basis

Banks v Goodfellow(1870) LR 5 QB 594
Lawrie & Anor v Hwang & Ors [2012] QSC 422
McKay v McKay & Ors [2011] QSC 230
Re Keane; Mace v Malone [2011] QSC 49
Sadler v Eggmolesse [2013] QSC 40

Succession Act 1981 (Qld), s 14, s 21, s 22, s 23, s 24, s 25, s 33N, s 41

COUNSEL:

R D Williams for the applicant
The respondent appeared on her own behalf
J Walden for the Public Trustee

SOLICITORS:

Mitchells Solicitors for the applicant
The respondent appeared on her own…

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AGLC
Lawrie v Hwang [2013] QSC 289
Case
[2013] QSC 289
Decision Date

CaseChat Overview and Summary

In the case of Lawrie v Hwang, the applicant sought leave under the Succession Act 1981 (Qld) to apply for an order authorising the creation of a statutory will for his father, Keith John Lawrie, who suffered from dementia. The applicant's father had recently married the respondent, which resulted in the revocation of his previous will under section 14 of the Act, leaving him without a valid will. The applicant argued that if his father had testamentary capacity, he would not want any part of his estate to pass to the respondent due to her allegedly dishonest conduct in transferring his assets. The respondent sought an adjournment of the proceedings.

The court had to determine whether the proceedings should be adjourned, whether Keith John Lawrie lacked testamentary capacity, and whether the proposed statutory will was or might be one that Keith John Lawrie would make if he had testamentary capacity. The court also had to decide on the issue of costs, specifically whether they should be paid out of the estate on an indemnity basis.

The court granted the applicant leave to apply for an order under section 22 of the Act and authorised the making of a will in terms of the draft will provided. The court held that the proceedings should not be adjourned as the application was made in the best interests of the applicant’s father. The court found that Keith John Lawrie lacked testamentary capacity and that the proposed statutory will was one he would make if he had testamentary capacity. Lastly, the court ordered that the applicant's costs of and incidental to the application be assessed on the indemnity basis and paid out of the assets of Keith John Lawrie.

Orders

Orders of the court

1. Pursuant to s 22 of the Succession Act 1981 (Qld) (“the Act”), the applicant has leave to apply for an order pursuant to s 21 of the Act authorising a Will to be made for Keith John Lawrie.

2. Pursuant to s 21 of the Act, a Will is authorised to be made for Keith John Lawrie in terms of the draft Will which is exhibit ‘MAL-4’ to the affidavit of Mitchell Andrew Lawrie filed on 30 September 2013.

3. The applicant’s costs of and incidental to this application are to be assessed on the indemnity basis and paid out of the assets of Keith John Lawrie.

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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