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 500In 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 49Re 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 respondentSOLICITORS:
Schultz Toomey O'Brien Lawyers for the applicant
No appearance for the respondent
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.
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…
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- AGLC
- McKay v McKay [2011] QSC 230
- Case
- [2011] QSC 230
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold: first, whether Cecily had testamentary capacity, and second, if she lacked such capacity, whether the proposed statutory will was one she would have made. The applicant argued that Cecily was unable to comprehend the nature and effect of making a will due to her cognitive impairments. The court had to assess medical evidence and consider Cecily's understanding of her estate and the implications of her proposed bequests.
The court found that Cecily did indeed lack testamentary capacity due to her significant cognitive impairments following the accident. After reviewing the evidence, the court concluded that the proposed statutory will accurately reflected Cecily's wishes. The proposed will was consistent with her past instructions and aligned with her values and intentions, despite her current incapacity. Accordingly, the court authorised the making of the statutory will as set out in the applicant's affidavit.
The final orders of the court were that the applicant be granted leave to apply for a statutory will, that a will be made for Cecily in the terms outlined in the applicant's affidavit, and that the costs of the originating application be assessed on an indemnity basis and paid from Cecily's estate.
Orders
Orders of the court
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
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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