Proctor v Klauke

[2011] QSC 425

SUPREME COURT OF QUEENSLAND

CITATION:

Proctor v Klauke & Ors [2011] QSC 425

PARTIES:

JANICE MARLENE PROCTOR (AS EXECUTOR NAMED IN THE UNDATED WILL OF BETTY VIVIAN ALLOM, DECEASED)
(applicant)

v

ROBERT KLAUKE AND VALERIE KLAUKE
(first respondents)

and
BARBARA CASTIGLIONE
(second respondent)

and
QUEENSLAND BRAILLE WRITING ASSOCIATION, QUEENSLAND BLIND ASSOCIATION, ROYAL BRISBANE AND WOMENS HOSPITAL FOUNDATION, THE CORPORATION OF THE DIOCESES OF BRISBANE, THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) AND VISION AUSTRALIA
(third respondent)

and
SHEENA LYN FERGUSON
(fourth respondent)

and
GWENDA MARGARET SPENCER AND DIANNE MARGARET SPENCER
(fifth respondents)

and
LAUREN HUTCHISON
(sixth respondent)

FILE NO/S:

10945 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore on 12 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2011

JUDGE:

Ann Lyons J

ORDER:

1.   Pursuant to s 18 Succession Act 1981, the handwritten document dated 10 October 2009, a copy of which is Exhibit VK1 to the affidavit of Valerie Klauke filed on 25 November 2011 is an alteration to the undated will of Betty Vivian Allom executed on 21 November 2000, a copy of which is Exhibit JP2 to the affidavit of Janice Marlene Proctor filed on 25 November 2011.

2.   Subject to the formal requirements of the Registrar, a grant of probate of:

(a)     The said undated will executed on 21 November 2000; and

(b)     the said unwritten document dated 10 October 2009 as a codicil to the undated will;

be made to the Applicant

3.   Costs of all parties of and incidental to this Application be paid out of the deceased’s estate on an indemnity basis.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – where the deceased wrote a document in the form of a will prior to her death – where the applicant seeks to determine whether the informal will is a valid codicil to the deceased’s last will – whether the deceased intended the document to form her will

Succession Act 1981, s 18

Estate of Masters, Hills v Plummer (1994) 33 NSWLR 446

Macey v Finch [2002] NSWSC 933

Oreski v Ikac [2008] WASC 220

COUNSEL:

R Whiteford for the applicant
J Otto for the second respondent
Fifth respondent appeared on own behalf

SOLICITORS:

McCarthy Durie Lawyers for the applicant
SS Lawyers for the second respondent
J Schloffer of Quinlan Miller & Treston for the third respondent (Queensland Blind Association) and the fourth respondent

This application

1. This is an application by the executor for;

(a) a determination whether, pursuant to section 18 of the Succession Act 1981, an informal document dated 10 October 2009 is a valid codicil to the deceased's undated will which was executed on 21 November 2000;

(b)        a grant of probate of that will, and if appropriate, that codicil dated 10 October 2009.

Background

1. Ms Betty Allom, who is the deceased, was born on 1 December 1931.  She had impaired…