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Re APB, ex parte Sheehy

Re APB, ex parte Sheehy

Case [2017] QSC 201 15 September 2017

Testamentary Capacity

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SUPREME COURT OF QUEENSLAND

CITATION:

PARTIES:

Re APB, ex parte Sheehy [2017] QSC 201

An application by Peter J Sheehy pursuant to Part 2 (sections 21 to 28) of the Succession Act 1981 (Qld) for the authorisation of the making of a Will on behalf of APB

FILE NO:

1668 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23 and 24 August 2017
Supplementary Written Submissions 6 September 2017

JUDGE:

Applegarth J

ORDERS:

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

2. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for APB 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 respondents 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 general public, be in an anonymised form.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where a 91 year old man lacks testamentary capacity – where it is agreed that leave should be granted under s 22 of the Succession Act 1981 (Qld) for an order authorising a will to be made on his behalf – whether more weight should be given to statements of testamentary intention when he had capacity than after he lost capacity – whether provision should be made for his children, other family members, friends and charities

Succession Act 1981 (Qld) s 21, s 22, s 23, s 24, s 25, s 26

A Limited v J [2017] NSWSC 736, cited
Banks v Goodfellow (1870) LR 5 QB 549, cited
Frizzo v Frizzo [2011] QCA 308, cited
Frizzo v Frizzo [2011] QSC 107, cited
GAU v GAV [2014] QCA 308, followed
Lawrie v Hwang [2013] QSC 289, cited
McKay v McKay [2011] QSC 230, followed
Re D [2014] QSC 164, cited
Re Fenwick; Application of J.R. Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530, cited
Re JT

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 Re APB, ex parte Sheehy

Details

AGLC: Re APB, ex parte Sheehy [2017] QSC 201
Case: [2017] QSC 201
Decision Date: 15 September 2017

CaseChat Overview and Summary

This case involves an application by Peter Sheehy, seeking leave under section 22 of the Succession Act 1981 (Qld) to have a will made on behalf of APB, a 91 year old man who lacks testamentary capacity. The court was required to determine whether more weight should be given to statements of testamentary intention made by APB when he had capacity, compared to those made after he lost capacity. Additionally, the court needed to consider whether provision should be made for APB's children, other family members, friends, and charities in the will.

The court granted leave to the applicant and authorised the making of a will for APB in accordance with the terms stated in a form of will to be submitted by the applicant. The court directed that the applicant draft a form of will in line with the reasons provided, provide a copy of the draft will to the respondents, and submit the draft within five days for the court's approval and subsequent execution. The court also granted liberty to apply as to the form of the will prior to its execution and ordered that the issue of costs be the subject of short written or oral submissions. Furthermore, the court mandated that any copy of these reasons published on the judgment website or in any other publication made to, or accessible by, the general public or a section of the general public, be in an anonymised form.

In summary, the court granted the application and authorised the making of a will for APB, taking into consideration statements of testamentary intention made when he had capacity and provisions for his children, other family members, friends, and charities. The applicant was directed to draft a form of will in accordance with the court's reasons, submit it for approval, and execute the will in accordance with the Act. The court also addressed the issue of costs and mandated that any publication of the reasons be in an anonymised form.

Orders

Orders of the court

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

2. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for APB 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 respondents 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 general 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

Full text does not contain this section.

Citations

AGLC Citation

Re APB, ex parte Sheehy [2017] QSC 201

Most Recent Citation

Blumke v Campbell [2020] QCA 217

Cases citing this decision · 6 of 6 shown

McMahon v Aynsley
[2022] QSC 140 Para 12

…lication brought by Mr Aynsley’s litigation guardian, appointed by QCAT.[2] [2]The reasons for this Order were published as Re APB, ex parte Sheehy [2017] QSC 201.…
Blumke v Campbell
[2020] QCA 217 Para 2

…mendment in the light of evidence which emerges, draft wills proposed by other parties and suggestions by parties and the Court.” [15][2017] QSC 201, [122].…
Re MTX
[2020] QSC 117

…ession Act 1981 (Qld), s 21, s 22, s 23, s 24, s 25 ADT v LRT [2014] QSC 169, cited Re APB; ex parte Sheehy [2017] QSC 201, cited Re Matsis; Charalambous v Charalambous & Ors [2012] QSC 349, cited COUNSEL: L Nevison for the applicant SOLICITORS: Short Punch & Greatorix Lawyers for the applicant…
MZY v RYI
[2019] QSC 89

…e if she were to have testamentary capacity. Succession Act 1981 (Qld) s 21, s 22, s 23, s 24, s 25, s 26 Re APB, ex parte Sheehy [2017] QSC 201, followed Van der Meulen v Van der Meulen & Anor [2014] QSC 33, applied GAU v GAV [2014] QCA 308, applied CDG v John Siganto as Litigation Guardian for BJG & Ors [2018]…
Re the Will of Bridget
[2018] NSWSC 1509 Para 66

…In Re APB, Ex parte Sheehy [2017] QSC 201, Applegarth J stated at [104]:…
Mr PL v Mrs R
[2017] QSC 249 Para 1

…ionable weight, supporting the requirement. I accept that the will may be one that Mr L would make if he had capacity. [55] Re APB, ex parte Sheehy [2017] QSC 201 at [120].…

View all 6 citing cases →

Cases cited in this decision · 16 of 16 shown

A Limited v J
[2017] NSWSC 736 Para 6

…ndment in the light of evidence which emerges, draft wills proposed by other parties and suggestions by parties and the Court. [32] See A Limited v J [2017] NSWSC 736 at [82] in relation to the comparable provision of the New South Wales legislation.…
R v J
[2017] WASC 53

…[2009] NSWSC 530, cited Re JT [2014] QSC 163, cited Re Matsis [2012] QSC 349, cited Re Keane ; Mace v Malone [2011] QSC 49, cited R v J [2017] WASC 53, cited Sadler v Eggmolesse [2013] QSC 40, cited VMH v SEL [2016] QSC 148, cited COUNSEL: R T Whiteford for the applicant R M Treston QC for the respondents SPB, EN…
VMH v SEL
[2016] QSC 148 Para 4

…fluence or bad advice, being a vulnerability which the person would not have experienced if he or she had testamentary capacity. [12] VMH v SEL [2016] QSC 148 at [132]. [13] Re Fenwick; Application of J.R. Fenwick & Re Charles (2009) 76 NSWLR 22 at 55 [157]; [2009] NSWSC 530 (“ Re Fenwick ”). [14] Ibid.…
GAU v GAV
[2014] QCA 308 Para 8

…cretionary power to grant leave. Unless so satisfied as to each of the five matters listed in s 24, the Court may not grant leave.[20] [20] GAU v GAV [2014] QCA 308 at [46].…
Re: D
[2014] QSC 164 Para 4

…[2012] QSC 349 at [24]; Sadler v Eggmolesse [2013] QSC 40 at p 13; Lawrie v Hwang [2013] QSC 289 at [47]; Re JT [2014] QSC 163 at [32]; Re D [2014] QSC 164 at [24]. [31] [2011] QSC 230 at [79].…
Re JT
[2014] QSC 163 Para 4

…; Charalambous v Charalambous [2012] QSC 349 at [24]; Sadler v Eggmolesse [2013] QSC 40 at p 13; Lawrie v Hwang [2013] QSC 289 at [47]; Re JT [2014] QSC 163 at [32]; Re D [2014] QSC 164 at [24]. [31] [2011] QSC 230 at [79].…
Lawrie v Hwang
[2013] QSC 289 Para 4

…11] QSC 230 at [79]; Re Matsis; Charalambous v Charalambous [2012] QSC 349 at [24]; Sadler v Eggmolesse [2013] QSC 40 at p 13; Lawrie v Hwang [2013] QSC 289 at [47]; Re JT [2014] QSC 163 at [32]; Re D [2014] QSC 164 at [24]. [31] [2011] QSC 230 at [79].…
Sadler v Eggmolesse
[2013] QSC 40 Para 7

…he will “is or may be” a will the person “would make”.[19] That is a question of fact. [19] McKay v McKay [2011] QSC 230; Sadler v Eggmolesse [2013] QSC 40.…
Re Matsis; Charalambous v Charalambous
[2012] QSC 349 Para 4

…h 237. [29] Re Keane ; Mace v Malone [2011] QSC 49 at [73]. [30] McKay v McKay [2011] QSC 230 at [79]; Re Matsis; Charalambous v Charalambous [2012] QSC 349 at [24]; Sadler v Eggmolesse [2013] QSC 40 at p 13; Lawrie v Hwang [2013] QSC 289 at [47]; Re JT [2014] QSC 163 at [32]; Re D [2014] QSC 164 at [24]. [31] [2…
Frizzo v Frizzo
[2011] QCA 308 Para 4

…testator must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.[7] [6] Frizzo v Frizzo [2011] QCA 308 at [24] adopting Frizzo v Frizzo [2011] QSC 107 at [21] – [25]. [7] Frizzo v Frizzo [2011] QSC 107 at [21] and the cases cited therein.…
McKay v McKay
[2011] QSC 230 Para 7

…of the section, regarding whether the will “is or may be” a will the person “would make”.[19] That is a question of fact. [19] McKay v McKay [2011] QSC 230; Sadler v Eggmolesse [2013] QSC 40.…
Frizzo v Frizzo
[2011] QSC 107 Para 4

…discriminate between, the respective strengths of the claims of such persons.[7] [6] Frizzo v Frizzo [2011] QCA 308 at [24] adopting Frizzo v Frizzo [2011] QSC 107 at [21] – [25]. [7] Frizzo v Frizzo [2011] QSC 107 at [21] and the cases cited therein.…
Mace v Malone
[2011] QSC 49 Para 4

…or revocation that the person would make if the person were to have testamentary capacity”. [28] [1982] Ch 237. [29] Re Keane ; Mace v Malone [2011] QSC 49 at [73]. [30] McKay v McKay [2011] QSC 230 at [79]; Re Matsis; Charalambous v Charalambous [2012] QSC 349 at [24]; Sadler v Eggmolesse [2013] QSC 40 at p 13;…
Re Fenwick
[2009] NSWSC 530 Para 4

…ary capacity. [12] VMH v SEL [2016] QSC 148 at [132]. [13] Re Fenwick; Application of J.R. Fenwick & Re Charles (2009) 76 NSWLR 22 at 55 [157]; [2009] NSWSC 530 (“ Re Fenwick ”). [14] Ibid.…
Shorter v Hodges
5 QB 549 Para 5

…ive function required to make a will. In general, the more complex the testator’s affairs, the more cognitive function is required. [8] (1870) LR 5 QB 549. [9] Frizzo v Frizzo [2011] QSC 107 at [22]. [10] Ibid.…
Banks v Goodfellow
(1870) 5 QB 549

…amily members, friends and charities Succession Act 1981 (Qld) s 21, s 22, s 23, s 24, s 25, s 26 A Limited v J [2017] NSWSC 736, cited Banks v Goodfellow (1870) LR 5 QB 549, cited Frizzo v Frizzo [2011] QCA 308, cited Frizzo v Frizzo [2011] QSC 107, cited GAU v GAV [2014] QCA 308, followed Lawrie v Hwang [2013] QSC 289, ci…

Legislation cited in this decision · 4

Succession Act 1981 (Qld)
21, 24(a) 3 mentions (from Para 1)
Property Law Act 1974 (Qld)
1 mention (from Para 1)
Succession Amendment Act 2006 (Qld)
1 mention (from Para 2)
Trusts Act 1973 (Qld)
1 mention (from Para 1)

CITATION: PARTIES:	Re APB, ex parte Sheehy [2017] QSC 201 An application by Peter J Sheehy pursuant to Part 2 (sections 21 to 28) of the Succession Act 1981 (Qld) for the authorisation of the making of a Will on behalf of APB
FILE NO:	1668 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	15 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23 and 24 August 2017 Supplementary Written Submissions 6 September 2017
JUDGE:	Applegarth J
ORDERS:	1. Leave is granted to the applicant, Peter Sheehy, pursuant under s 22 of the *Succession Act* 1981 (Qld) to apply for an order authorising a will to be made on behalf of APB. 2. Pursuant to s 21 of the *Succession Act* 1981 (Qld) a will be made for APB 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 respondents 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 general public, be in an anonymised form.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where a 91 year old man lacks testamentary capacity – where it is agreed that leave should be granted under s 22 of the Succession Act 1981 (Qld) for an order authorising a will to be made on his behalf – whether more weight should be given to statements of testamentary intention when he had capacity than after he lost capacity – whether provision should be made for his children, other family members, friends and charities Succession Act 1981 (Qld) s 21, s 22, s 23, s 24, s 25, s 26 A Limited v J [2017] NSWSC 736, cited Banks v Goodfellow (1870) LR 5 QB 549, cited Frizzo v Frizzo [2011] QCA 308, cited Frizzo v Frizzo [2011] QSC 107, cited GAU v GAV [2014] QCA 308, followed Lawrie v Hwang [2013] QSC 289, cited McKay v McKay [2011] QSC 230, followed Re D [2014] QSC 164, cited Re Fenwick; Application of J.R. Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530, cited Re JT