Moylan v Rickard

The case of Moylan v Rickard involved the application of Moylan (the applicant) for a determination regarding the construction and effect of testamentary dispositions in the will of the deceased, as well as the authority of the respondents in relation to an Enduring Power of Attorney. The dispute centred around the sale of the deceased's house by the respondents, who were acting under an Enduring Power of Attorney while the deceased was suffering from Alzheimer’s Disease. The applicants sought a declaration that the sale of the house did not adeem the legacy granted to them in the deceased's will, and also challenged the authority of the respondents to gift portions of the sale proceeds to themselves.

The primary legal issues before the court were whether the sale of the deceased's house by the respondents resulted in the adeeming of the legacy granted to the applicant in the deceased's will, and whether the respondents had breached the Powers of Attorney Act 1998 (Qld) by selling the house and gifting portions of the proceeds to themselves. Additionally, the court considered whether the respondents were entitled to relief under section 105 of the Powers of Attorney Act 1998 (Qld), and whether they were required to account for the moneys received from the sale of the house under sections 106 and 107 of the same Act.

The court determined that the sale of the house did not adeem the legacy granted to the applicant in the deceased's will. It held that the respondents had acted within the scope of their authority under the Enduring Power of Attorney, and that they had not breached the Powers of Attorney Act 1998 (Qld). However, the court found that the respondents were not entitled to relief under section 105 of the Powers of Attorney Act 1998 (Qld). They were, however, required to account for the moneys received from the sale of the house under sections 106 and 107 of the Powers of Attorney Act 1998 (Qld). The court also extended the time for making applications pursuant to sections 106 and 107 of the Powers of Attorney Act 1998 (Qld) to 8 February 2010.

In its orders, the court extended the time for making applications pursuant to sections 106 and 107 of the Powers of Attorney Act 1998 (Qld) to 8 February 2010. It gave judgment for the applicant against the respondent for $195,369.65 inclusive of interest. The court also ordered the respondent to pay the applicant’s costs on a standard basis until the date of the offer on 22 April 2010, and thereafter on an indemnity basis. Finally, the court adjourned the further hearing of the applications in paragraphs 6 and 7 of the originating application filed on 8 February 2010 to a date to be fixed.