Re Briggs (dec'd) - [2023] QSC 226

SUPREME COURT OF QUEENSLAND
CITATION: Re Briggs (dec’d) [2023] QSC 226 PARTIES: IN THE WILL OF FAYE JOY BRIGGS
(deceased)
SHANE MARTIN BRIGGS
(applicant)

FILE NO: BS No 12273 of 2023
DIVISION: Trial Division PROCEEDING: Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:     11 October 2023
DELIVERED AT:     Brisbane HEARING DATE:  On the papers JUDGE:  Davis J
ORDERS:                 1. Pursuant to r 489(1) of the Uniform Civil Procedure
Rules 1999 (Qld) the application is to proceed without an oral hearing.
2.A grant of letters of administration with the will of Faye Joy Briggs (the deceased, also known as Fay Joy Briggs) dated 19 January 2010 be issued to Shane Martin Briggs subject to the formal requirements of the Registrar.
3.The applicant’s costs of and incidental to this application be paid out of the deceased’s estate on the indemnity basis.

CATCHWORDS: SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - TIME AT WHICH
SOUND MIND NECESSARY – where the testator made a will in 2010 – whether the testator made a will in 2016 – where there was no evidence of unsoundness of mind in 2010 – where the testator died in 2022 – where dementia was identified as a cause of death – where the trustee and executor named in both wills renounced administration – where one of two residuary beneficiaries applied for letters of administration – where no direct evidence existed of unsoundness at the date of making the 2016 will – where there was medical opinion of unsoundness about six months after the execution of the 2016 will – where there was other evidence of mental confusion of
the testator more proximate to the time of the execution of the 2016 will – whether a finding of lack of capacity to make the 2016 will ought to be made – where the letters of administration ought to be granted on the 2010 or the 2016 will
Succession Act 1981, s 10
Uniform Civil Procedure Rules 1999, r 489, r 491, r 603
Banks v Goodfellow (1870) LR 5 QB 549; [1870]
UKLawRPKQB 74, cited
Boreham v Prince Henry Hospital (1955) 29 ALJ 179, cited
Frizzo v Frizzo [2011] QSC 107, followed
R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed
Re Gardner (dec’d) [2023] QSC 142, cited
Re MacPherson [2022] QSC 20, cited SOLICITORS: Greenhalgh Pickard Solicitors for the applicant

Application is made for letters of administration of one of two wills made by Faye Joy Briggs (Faye) who also sometimes spelt her name “Fay”. The applicant is Shane Martin Briggs (Shane). Shane is Faye’s eldest son.

Background

Faye was born on Christmas day 1937.

She married Raymond Martin Briggs (Ray) and the couple had two children, Shane born on 10 March 1957 and Keith Raymond Briggs (Keith) born on 19 January 1959.

In the 1980s, Faye and Ray divorced.

On 19 January 2010, Faye made a will (the 2010 will).…

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 Briggs (dec'd)

Details

AGLC: Re Briggs (dec'd) [2023] QSC 226
Case: [2023] QSC 226
Decision Date: 11 October 2023

CaseChat Overview and Summary

In the matter of Re Briggs (dec'd), the primary issue before the court was whether the will executed by Faye Joy Briggs in 2016 was valid and should be recognised, given her documented dementia. The will was contested by one of the beneficiaries, Shane, who sought to have the earlier 2010 will recognised instead. The court needed to determine whether Faye had the requisite testamentary capacity when she executed the 2016 will. This required a careful examination of the evidence of Faye's mental state at the relevant times, including the absence of direct evidence regarding her capacity at the time the 2016 will was executed.

The court considered the principle that a testator must have soundness of mind, memory, and understanding at the time of making a will. Although there was no direct evidence of incapacity when the 2010 will was executed, there was compelling evidence of incapacity in 2016. The court acknowledged that while expert medical evidence is usually required to establish incapacity, in this case, the other evidence was sufficient to demonstrate that Faye lacked the necessary capacity in 2016. The court further reasoned that it was appropriate to decide the matter without an oral hearing, as justice could be achieved through the written submissions and evidence presented.

Ultimately, the court decided that the 2016 will should not be recognised due to Faye's incapacity at the time of its execution. Consequently, letters of administration were granted in respect of the 2010 will, and Shane was appointed as the administrator of Faye's estate. The court also ordered that Shane's costs of the application be paid from the estate on an indemnity basis.

Orders

Orders of the court

1. Pursuant to r 489(1) of the Uniform Civil Procedure

Rules 1999 (Qld) the application is to proceed without an oral hearing.

2. A grant of letters of administration with the will of Faye Joy Briggs (the deceased, also known as Fay Joy Briggs) dated 19 January 2010 be issued to Shane Martin Briggs subject to the formal requirements of the Registrar.

3. The applicant’s costs of and incidental to this application be paid out of the deceased’s estate on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides: “489 Proposal for decision without oral hearing(1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—(a)under rule 491, the court considers it inappropriate to do so; or(b)under rule 494, the respondent requires an oral hearing; or(c)under rule 495, the applicant abandons the request for a decision without an oral hearing; or Uniform Civil Procedure Rules 1999, r 489. The structure of r 489 is that:1.jurisdiction to proceed without oral hearing is granted;2.the jurisdiction is enlivened by a proposal by an applicant;3.the proposal must be accepted, and the application determined without oral hearing, in the absence of the features in r 489(2)(a)-(d).2 Shane has proposed that the application be determined without oral hearing. That enlivens the jurisdiction. The application has been duly advertised. No person has indicated opposition to the application, or opposition to it being decided without oral hearing. Keith, being the only other obvious party, supports the application. Shane continues to press for the application to be determined without oral hearing. The Chief Justice has not suspended the operation of r 489. Therefore, none of the circumstances prescribed by rr 489(2)(b), (c) or (d) apply. Rule 491, referred to in r 489(2)(a), provides: Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”. The meaning of the term “inappropriate” must be taken from the context and purpose of the rule.3 Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business. The primary aim though of the Court in exercise of any of its jurisdiction is to do justice. It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing. The application is uncontentious except in one respect. That is that there is evidence of incapacity in relation to the making of the 2016 will. It is a serious thing to set aside a will on the basis of incapacity. Usually, expert medical evidence would be called and the doctors cross-examined, as would the witnesses to the will. Re Gardner (dec’d) [2023] QSC 142 at [22]. R v A2 (2019) 269 CLR 507 at [31]-[37] and [124]. Here, there is no expert opinion expressed as to Faye’s capacity in January 2016 when the 2016 will was made. There is other medical opinion which is relevant. There is no sworn evidence from any of the witnesses to either the 2010 will or the 2016 will. However, as will be seen, there is no evidence to overcome the presumption of capacity of Faye to make the 2010 will. There is compelling evidence that Faye did not have capacity to make the 2016 will. There are no apparent reasons why any of that evidence need be challenged through cross-examination or oral argument.

Ratio Decidendi

Legal Principle Established

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