McKay v McKay

[2011] QSC 230

SUPREME COURT OF QUEENSLAND

CITATION:

McKay v McKay & Ors [2011] QSC 230

PARTIES:

IAN RONALD MCKAY
(applicant)
v
CECILY MAUREEN MCKAY
(first respondent)

and
ERIN FRANCES GORLICK
(second respondent)

and
LEE JOHN MCKAY
(third respondent)

and
CLARE MAREE MCKAY
(fourth respondent)

FILE NO/S:

3665/11

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 2011

JUDGE:

Ann Lyons J

ORDER:

1. Pursuant to s 22 of the Succession Act 1981 (Qld) the applicant be granted leave to apply for an order pursuant to s 21 of the Succession Act

2. Pursuant to s 21 of the Succession Act a will is authorised to be made on behalf of Cecily Maureen McKay in the terms set out in Exhibit IRMI of the affidavit of Ian Ronald McKay filed 3 May 2011

3.    The parties’ costs of the originating application be assessed on the indemnity basis and paid out of the estate of the first respondent

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – where the applicant seeks a statutory will to be made on behalf of his wife, the first respondent – where the first respondent suffered serious injuries as a result of a motorcycle accident in 2006 – whether the first respondent lacks testamentary capacity – whether the proposed statutory will is or may be a will the first respondent would make if she were to have testamentary capacity

Succession Act 1981 (Qld), s 21, s 22, s 23, s 24

Banks v Goodfellow (1870) LR 5QB 549,
Deecke v Deecke [2009] QSC 65,
Frizzo v Frizzo [2011] QSC 107
Hickson v Humphrey (unreported BS 384 of 2011, de Jersey CJ, 11 April 2011)
Hoffmann v Waters (2007) 98 SASR 500

In Re D(J) [1982] Ch 237

Payne v Smyth as Litigation Guardian for Welk [2010] QSC 45

Re Bock (unreported BS 8794 of 2010, de Jersey CJ, 23 September 2010),
Re Fenwick [2009] NSWSC 530
Re Keane; Mace v Malone [2011] QSC 49

Re Joachim (unreported, BS 12325 of 2008, Dutney J, 22
December 2008),

Re Weick (unreported BS 7033 of 2009, Applegarth J, 27 August 2009);

Re Winstanley (unreported, BS 11203 of 2007,

Daubney J, 18 January 2008),

COUNSEL:

J I Otto for the applicant
No appearance for the respondent

SOLICITORS:

Schultz Toomey O'Brien Lawyers for the applicant
No appearance for the respondent

1. ANN LYONS J:  The applicant Ian Ronald McKay (“Mr McKay”) and the first respondent Cecily Maureen McKay (“Mrs McKay”) have been married since 1 February 1975. Their marriage has been a happy one and they have three children, the second, third and fourth respondents, namely Erin Gorlick, Lee Mckay and Clare McKay.

1. On 26 November 2006 Mr McKay and Mrs McKay were involved in a motorcycle accident. Mrs McKay suffered serious injuries which left her permanently and severely disabled. She resides with her husband in a home which has been constructed to suit her needs. Mrs McKay requires 24…