Mr PL v Mrs R - [2017] QSC 249

SUPREME COURT OF QUEENSLAND

CITATION:

Mr PL v Mrs R [2017] QSC 249

PARTIES:

MR PL

(applicant)

v

MRS R

(respondent)

FILE NO:

BS 3863 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2017

JUDGE:

Brown J

ORDERS:

The order of the court is that:

1. Leave is granted to the applicant, Mr PL, pursuant to s 22 of the Succession Act 1981 (Qld) to apply for an order authorising a will to be made on behalf of Mr L.

2. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for Mr L in the terms stated by the Court in a form of will to be submitted by the applicant.

3. The applicant draft a form of will in accordance with these reasons, provide a copy of the draft will to the respondent to the application and submit the same within five days for the purpose of the will being approved by the Court pursuant to s 21(2)(c) and then executed in accordance with s 26 of the Act.

4.    Liberty to apply as to the form of the will submitted in accordance with paragraph 3 prior to the execution of the will.

5.    The issue of costs be the subject of short written or oral submissions on a date to be fixed.

6.    Any copy of these reasons to be published on the judgment website or in any other publication made to, or accessible by, the general public or a section of the public, be in an anonymous form.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL –TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant applied pursuant to s 22 of the Succession Act 1981 (Qld) to be granted leave to apply pursuant to s 21 of the Succession Act 1981 (Qld) for an order authorising a statutory will to be made – where the proposed testator had made a Will – where the proposed testator lacks testamentary capacity – where the parties dispute what form of Will should be authorised

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

Guardianship and Administration Act 2000 (Qld)

Banks v Goodfellow (1870) LR 5 QB 549

GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308

Lawrie v Hwang [2013] QSC 289

Re APB, ex parte Sheehy [2017] QSC 201

Re JT [2014] QSC 163

VMH v SEL [2016] QSC 148

COUNSEL:

P E Sorensen for the applicant

R D Williams for the respondent

SOLICITORS:

Cornford-Scott Lawyers for the applicant

Springwood Lawyers for the respondent

This is an application pursuant to s 22 of the Succession Act 1981 (Qld) (“the Act”) that the applicant be granted leave to apply pursuant to s 21 of the Act for an order authorising a will to be made for Mr L. The application is made on Mr L’s behalf by his son, Mr PL, who holds Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr PL v Mrs R

Details

AGLC: Mr PL v Mrs R [2017] QSC 249
Case: [2017] QSC 249
Decision Date: 1 November 2017

CaseChat Overview and Summary

The matter before the court involved an application by Mr PL, seeking to have a statutory will made on behalf of Mr L. The dispute was primarily between Mr PL and Mrs R, with differing views on the form the will should take. The application was made under sections 21 and 22 of the Succession Act 1981 (Qld), concerning the making of a will for someone who lacks testamentary capacity. The court was tasked with determining whether Mr L lacked the capacity to make his own will, and if so, what form the statutory will should take.

The primary legal issue was whether Mr L had testamentary capacity at the time of drafting his will. The court had to assess the evidence presented by both Mr PL and Mrs R, including medical reports and testimonies, to determine if Mr L was capable of understanding the nature and effect of making a will. Additionally, the court needed to decide on the appropriate content of the statutory will if it was found that Mr L lacked the necessary capacity.

The court found that Mr L did not have testamentary capacity at the time of drafting his will, based on the evidence provided. It was concluded that Mr L did not fully understand the implications of disposing of his estate and the relationships with his beneficiaries. The court granted Mr PL leave to apply for a statutory will and directed that the form of the will be drafted by Mr PL. The court also provided detailed instructions on the content of the will, ensuring it reflected Mr L’s intentions as closely as possible given his incapacity. The court emphasised the importance of protecting Mr L’s interests and ensuring that the will was executed properly.

The court made several orders, including granting Mr PL leave to apply for a statutory will and directing him to draft the will in accordance with the court’s directions. The court also required Mr PL to submit the draft will for approval and execution, with liberty to apply for further directions if necessary. The issue of costs was deferred for written or oral submissions, and any publication of the reasons had to be in an anonymous form to protect the privacy of the parties involved.

Orders

Orders of the court

The order of the court is that:

1. Leave is granted to the applicant, Mr PL, pursuant to s 22 of the Succession Act 1981 (Qld) to apply for an order authorising a will to be made on behalf of Mr L.

2. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for Mr L in the terms stated by the Court in a form of will to be submitted by the applicant.

3. The applicant draft a form of will in accordance with these reasons, provide a copy of the draft will to the respondent to the application and submit the same within five days for the purpose of the will being approved by the Court pursuant to s 21(2)(c) and then executed in accordance with s 26 of the Act.

4. Liberty to apply as to the form of the will submitted in accordance with paragraph 3 prior to the execution of the will.

5. The issue of costs be the subject of short written or oral submissions on a date to be fixed.

6. Any copy of these reasons to be published on the judgment website or in any other publication made to, or accessible by, the general public or a section of the public, be in an anonymous form.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mr PL v Mrs R [2017] QSC 249
PARTIES:	MR PL (applicant) v MRS R (respondent)
FILE NO:	BS 3863 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	1 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2017
JUDGE:	Brown J
ORDERS:	The order of the court is that: 1. Leave is granted to the applicant, Mr PL, pursuant to s 22 of the Succession Act 1981 (Qld) to apply for an order authorising a will to be made on behalf of Mr L. 2. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for Mr L in the terms stated by the Court in a form of will to be submitted by the applicant. 3. The applicant draft a form of will in accordance with these reasons, provide a copy of the draft will to the respondent to the application and submit the same within five days for the purpose of the will being approved by the Court pursuant to s 21(2)(c) and then executed in accordance with s 26 of the Act. 4. Liberty to apply as to the form of the will submitted in accordance with paragraph 3 prior to the execution of the will. 5. The issue of costs be the subject of short written or oral submissions on a date to be fixed. 6. Any copy of these reasons to be published on the judgment website or in any other publication made to, or accessible by, the general public or a section of the public, be in an anonymous form.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL –TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant applied pursuant to s 22 of the Succession Act 1981 (Qld) to be granted leave to apply pursuant to s 21 of the Succession Act 1981 (Qld) for an order authorising a statutory will to be made – where the proposed testator had made a Will – where the proposed testator lacks testamentary capacity – where the parties dispute what form of Will should be authorised Succession Act 1981 (Qld), s 21, s 22, s 23, s 24 Guardianship and Administration Act 2000 (Qld) Banks v Goodfellow (1870) LR 5 QB 549 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 Lawrie v Hwang [2013] QSC 289 Re APB, ex parte Sheehy [2017] QSC 201 Re JT [2014] QSC 163 VMH v SEL [2016] QSC 148
COUNSEL:	P E Sorensen for the applicant R D Williams for the respondent
SOLICITORS:	Cornford-Scott Lawyers for the applicant Springwood Lawyers for the respondent