MZY v RYI

Case [2019] QSC 89

SUPREME COURT OF QUEENSLAND

CITATION:

MZY v RYI [2019] QSC 89
PARTIES:

MZY

(applicant)

v

RYI

(respondent)

FILE NO:

SC No 10357 of 2018

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

10 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2019
Supplementary written submissions 21 March 2019 

JUDGE:

Wilson J
ORDER:

The orders of the Court are:

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

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

3. Perpetual Trustee Company Limited ACN 000 001 008 be appointed as the executor of the estate in the will which is made for SGA in accordance with s 21 of the Succession Act 1981 (Qld).

4. 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 of the date of this order 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 Succession Act 1981 (Qld).

5.   Liberty to apply as to the form of the will submitted in accordance with paragraph 2 prior to the execution of the will.

6.   The applicant has authority to sign a binding death benefit nomination in favour of SGA’s estate, for any superannuation fund that is held by SGA.

7.   The trustee of any such superannuation fund is to accept the binding death benefit nomination signed by the applicant on behalf of SGA, provided it is otherwise valid.

8.   The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of SGA.

9.   The respondent’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of SGA.

10.  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 anonymised 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 lacks testamentary capacity due to cerebral palsy – whether a statutory will should be made – whether the proposed statutory will is or may be a will the proposed testator would make if she were to have testamentary capacity.

Succession Act 1981 (Qld) s 21,…

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AGLC
MZY v RYI [2019] QSC 89
Case
[2019] QSC 89
Decision Date

CaseChat Overview and Summary

The applicant in this case, MZY, sought leave to apply for a statutory will to be made on behalf of the deceased, SGA, who suffered from cerebral palsy and lacked testamentary capacity. The application was brought under section 22 of the Succession Act 1981 (Qld). The court had to determine whether a statutory will should be made for SGA and if the proposed will aligned with what SGA would have made if she had testamentary capacity. The respondent, RYI, contested the application on the grounds that SGA would not have made the proposed will.

The court considered the evidence and submissions presented regarding SGA's testamentary capacity and the content of the proposed statutory will. It assessed whether SGA had the mental capacity to make a will at the time of her death and whether the proposed will reflected her wishes if she had the capacity. The court also examined the evidence on SGA's mental state and whether she understood the nature and effect of making a will.

The court granted leave for the applicant to apply for a statutory will to be made for SGA. It determined that SGA lacked the capacity to make a will due to her cerebral palsy and that the proposed will was consistent with what SGA would have made if she had testamentary capacity. The court outlined specific terms for the will, including the appointment of Perpetual Trustee Company Limited as executor, and directed the applicant to draft the will and submit it for approval. The court also addressed the costs and publication of the reasons, ensuring anonymity for the parties involved. The court's decision provided clear directives for the drafting, approval, and execution of the statutory will in accordance with the Succession Act 1981 (Qld).

Orders

Orders of the court

The orders of the Court are:

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

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

3. Perpetual Trustee Company Limited ACN 000 001 008 be appointed as the executor of the estate in the will which is made for SGA in accordance with s 21 of the Succession Act 1981 (Qld).

4. 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 of the date of this order 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 Succession Act 1981 (Qld).

5. Liberty to apply as to the form of the will submitted in accordance with paragraph 2 prior to the execution of the will.

6. The applicant has authority to sign a binding death benefit nomination in favour of SGA’s estate, for any superannuation fund that is held by SGA.

7. The trustee of any such superannuation fund is to accept the binding death benefit nomination signed by the applicant on behalf of SGA, provided it is otherwise valid.

8. The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of SGA.

9. The respondent’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of SGA.

10. 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 anonymised form.

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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