Mace v Malone

Case [2011] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:

Re Keane; Mace v Malone [2011] QSC 49

PARTIES:

JOSEPHINE ANGELA MACE
(applicant)
v
KIERAN MALONE
(respondent)

FILE NO:

13088 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

25 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 January and 2 February 2011

JUDGE:

Daubney J

ORDER:

1.The application is dismissed.
2.I will hear the parties as to costs.   

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – IN GENERAL – where an application made under s 22 Succession Act 1981 (Qld) for leave to apply for an order under s 21 Succession Act 1981 (Qld) – where an application made for an order under the Succession Act 1981 (Qld) authorising a will in certain terms be made – where the testator does not have testamentary capacity – where the testator has an existing will.

Succession Act 1981 (Qld), ss 21, 22, 23, 24, 25
Mental Capacity Act 2005 (UK)
Mental Health Act 1959 (UK), s 102(1)(c)
Succession Act 2006 (NSW), s 22
Wills Act 1936 (SA), s 7(3)(b)
Wills Act 1997 (Vic), s 26

Boulton v Sanders (2004) 9 VR 495, considered
Deecke v Deecke [2009] QSC 65, considered
Hoffmann v Waters (2007) 98 SASR 500, considered
C (a patient), Re [1991] 3 All ER 866, considered
D(J), Re [1982] Ch 237, considered
Re Fenwick [2009] 76 NSWLR 22, considered

COUNSEL:

R Peterson for the applicant
R Treston for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant
Gleeson Lawyers for the respondent

  1. Josephine Angela Mace has applied for:

(a)leave, pursuant to s 22 of the Succession Act 1981, to apply for an order under s 21, and

(b)an order under s 21 authorising a will in certain terms be made on behalf of Patrick Milo Keane.

  1. During the hearing, the convention was adopted of referring to family members by their given names, for ease of identification, it is convenient for me to do the same in this judgment.

  1. Josephine is one of Patrick’s sisters.  It was not in issue before me, and indeed it was clear on the evidence, that Patrick is a person without testamentary capacity.  Patrick is 91 years old, is physically and mentally infirm, and is cared for in a nursing home.

  1. Patrick has an existing will, dated 19 September 2000 (“the 2000 will”).  Josephine, however, seeks the making of a new will which will completely change Patrick’s testamentary dispositions.  She says, in effect, that this is what Patrick would do if he were capable, in light of events which have occurred within his wider family since he made the 2000 will. 

  1. The application is opposed by those family members who would lose an interest in Patrick’s estate if the proposed new will is made. 

Patrick’s family history

  1. Patrick, who was born in 1919, is the eldest in a sibship of eight.  Josephine is his youngest sister.

  1. Josephine has three children –…

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Details
AGLC
Mace v Malone [2011] QSC 49
Case
[2011] QSC 49
Decision Date

CaseChat Overview and Summary

The case of Mace v Malone involved an application made under section 22 of the Succession Act 1981 (Qld) for leave to apply for an order under section 21 of the same Act. The applicant sought an order authorising a will in certain terms to be made on behalf of the testator, who was believed to lack testamentary capacity. The testator had already executed a will, but the applicant argued that the testator did not have the capacity to make that will and that a different will should be authorised instead. The matter was heard in the Queensland Supreme Court.

The primary legal issue before the court was whether the applicant had demonstrated sufficient grounds to warrant the court granting leave to apply for an order under section 21 of the Succession Act. The court needed to assess whether the applicant had established that the testator did not have testamentary capacity and whether the applicant's proposed will was in the best interests of the testator. The court also needed to consider whether the application was made in accordance with the provisions of section 22 of the Act.

The court found that the applicant had not provided sufficient evidence to demonstrate that the testator lacked testamentary capacity. The court noted that the testator had executed a valid will and that there was no evidence to suggest that the testator was unable to understand the nature and effect of making a will. The court held that the applicant had not met the threshold required to grant leave under section 22 of the Act, and therefore dismissed the application. The court also noted that the application was not made in accordance with the requirements of section 22, as the applicant had not provided all the necessary information and documentation.

The court ordered that the application be dismissed and that the parties would be heard regarding costs. This decision highlights the importance of providing sufficient evidence to establish testamentary incapacity and the need to adhere to the statutory requirements when making an application under the Succession Act.

Orders

Orders of the court

1.The application is dismissed.

2.I will hear the parties as to costs.

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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