SUPREME COURT OF QUEENSLAND
CITATION:
Lindsay v McGrath [2015] QCA 206
PARTIES:
GEOFFREY DAVID LINDSAY
(appellant)v
HEATHER DAWN McGRATH
(respondent)FILE NO/S:
Appeal No 9012 of 2014
SC No 5011 of 2013DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – Unreported, 4 September 2014DELIVERED ON:
27 October 2015
DELIVERED AT:
Brisbane
HEARING DATE:
28 April 2015
JUDGES:
Gotterson and Philippides JJA and Boddice J
Separate reasons for judgment of each member of the Court, Gotterson JA and Boddice J concurring as to the orders made, Philippides JA dissentingORDERS:
1. The appeal be dismissed.
2. The parties have leave to file written submissions as to costs within seven days.
CATCHWORDS:
SUCCESSION – MAKING OF A WILL – TESTAMENTARY CHARACTER – where the deceased made a Will with the Public Trustee in December 1986 but subsequently revoked that Will – where the appellant believed the deceased died without a last Will, the appellant applied for, and was granted, the Letters of Administration on the basis of an intestacy – where the appellant later located a five page hand-written document in a storage box containing items removed from the deceased’s family home – where the document was inside an envelope which was marked “The envelope contains the Will of”, and contained other personal and financial documents – where the appellant, in his role as administrator of the deceased’s estate, brought an application, seeking an order that the Court pronounce that document in solemn form as the deceased’s last Will – whether that document should be pronounced as the deceased’s last Will
Succession Act 1981 (Qld), s 10, s 18
Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, cited
Oreski v Ikac [2008] WASCA 220, citedCOUNSEL:
A B Fraser for the appellant
R D Williams for the respondentSOLICITORS:
Hall Payne Lawyers for the appellant
Weldon, Zande & Reddy for the respondent
GOTTERSON JA: I agree with the order proposed by Boddice J and with the reasons given by his Honour.
PHILIPPIDES JA: I have had the advantage of reading the reasons of and orders proposed by Boddice J, with which Gotterson JA concurs. However, for the following reasons, I take a different view and consider that the appeal should be allowed.
Background
The appeal concerns the estate of Nora Priscilla Lindsay, who died on 16 October 2012 aged 90. The estate is comprised of her family home, which was sold for about $630,000, a small amount in a passbook at the Commonwealth Bank of Australia (CBA) and 15 CBA shares.
The deceased had divorced her husband in about 1971 and was survived by her son, Geoffrey Lindsay (the appellant), and her daughter, Heather McGrath (the respondent). The appellant was granted letters of administration on intestacy on 17 June 2013. Soon after, the appellant located a document (a copy of which is annexed to the reasons). It was…
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- AGLC
- Lindsay v McGrath [2015] QCA 206
- Case
- [2015] QCA 206
- Decision Date
CaseChat Overview and Summary
The Court examined the nature of the document, its content, and the circumstances of its discovery. The document was handwritten, undated, and contained numerous corrections and deletions. It was found in an envelope marked with the words "The envelope contains the Will of" and was accompanied by personal and financial documents. The document itself stated it was "for the purpose of making the will" and contained a bequest of the deceased's real property to the appellant but did not cover all the deceased's property. The primary judge found that while the document did contain a bequest to the appellant, it was insufficient to satisfy the requirements of section 18(2) of the Act, considering the whole document. The Court held that the document was not the deceased's last Will as it was not complete or final in form and did not adequately express the deceased's testamentary intentions.
The appeal was dismissed. The Court concluded that the document, despite containing a bequest to the appellant, did not meet the criteria for being declared the deceased's last Will. The parties were granted leave to file written submissions regarding costs within seven days.
Orders
Orders of the court
1. The appeal be dismissed.
2. The parties have leave to file written submissions as to costs within seven days.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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