Re: Clare (deceased) - [2009] QSC 403

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Clare (deceased) [2009] QSC 403

PARTIES:

LUAN DANAAN

(propounding executor)

v

PETER GRAF and MICHAEL GRAF

(applicants for letters of administration)

FILE NO/S:

BS 514 of 2009

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25 November 2009

JUDGE:

White J

ORDER:

Letters of administration on intestacy of the estate of Dana Shankari Clare deceased be granted to Peter Graf and Michael Graf.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – IN GENERAL – where the deceased executed a will – where the deceased’s brothers have applied for letters of administration of the deceased’s estate on the basis that she did not have the requisite testamentary capacity – whether the deceased had testamentary capacity at the time of executing the will – whether letters of administration should be granted

Banks v Goodfellow (1870) LR 5 QB 549
Brown v Sandhurst Trustees Ltd [2009] VSC 212

In the Will of Wilson (1897) 23 VCR 197

COUNSEL:

P J Goodwin for the propounding executor

R M Treston, with M Callaghan, for the applicants for letters of administration

SOLICITORS:

Murphy Schmidt for the propounding executor

McInnes Wilson Lawyers for the applicants for letters of administration

The deceased died at Port Douglas in Far North Queensland between 13 and 17 July 2008 by her own hand. She left a document[1] headed “This is the Last Will and Testament of me, Dana Clare…” dated 10 August 2006. In it she appointed her long time friend Luan Danaan as executrix and trustee of her estate and bequeathed certain property to Ms Danaan.
[1]Exhibit 1.

The deceased’s brothers, Peter Graf and Michael Graf have applied for letters of administration of the deceased’s estate on the basis that she did not have the requisite testamentary capacity on 10 August 2006. There is no other document for which probate may be sought and no other person has a superior claim to administer her estate.

Ms Danaan has propounded the document of 10 August 2006 in these proceedings as the last will and testament of the deceased. There are other writings created by the deceased in the days prior to her death which may have testamentary significance which also fall for consideration. The brothers’ application has been heard in the solemn form proceedings.

At the time of her death, the deceased was subject to an Involuntary Treatment Order (“ITO”) under the Mental Health Act 2000 (Qld) and had been since 3 March 2006. She had been diagnosed as suffering from a severe mental illness – schizophrenia. Dr Bruce Gynther, the deceased’s treating psychiatrist, considered that the diagnosis which best fitted her many symptoms was of schizoaffective disorder, depressive type. She exhibited symptoms of schizophrenia both in the presence and absence of symptoms of major depression.

The deceased had never married. She had no children and both her parents had predeceased her. She…

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: Clare (deceased)

Details

AGLC: Re: Clare (deceased) [2009] QSC 403
Case: [2009] QSC 403
Decision Date: 11 December 2009

CaseChat Overview and Summary

The case of Re: Clare (deceased) involved the estate of Dana Shankari Clare, who passed away and left a will. The deceased's brothers, Peter Graf and Michael Graf, applied for letters of administration of her estate on the basis that she did not have the requisite testamentary capacity when she executed the will. The central issue before the court was whether the deceased had the necessary testamentary capacity at the time she made her will and whether letters of administration should be granted instead.

The court considered evidence regarding the deceased's mental state and capacity at the time of making the will. Factors such as her medical history, the nature of her testamentary dispositions, and the circumstances surrounding the execution of the will were scrutinised. The court examined whether the deceased understood the nature of making a will, the extent of her estate, and the claims to which she might be subject, and whether there was any undue influence or pressure exerted upon her. The court determined that the deceased did not have the requisite testamentary capacity to make the will, as her mental health issues and the circumstances of the will's execution undermined her ability to comprehend the implications of her actions.

Following the court's determination that the deceased lacked testamentary capacity, letters of administration on intestacy were granted to Peter Graf and Michael Graf. The court found that the deceased died intestate, as her will was invalid due to her lack of capacity. The brothers were thus appointed as administrators of her estate, allowing them to manage and distribute her assets according to the laws of intestacy. The court's decision effectively nullified the will and ensured that the deceased's estate was distributed in accordance with her brothers' rights under the intestacy laws.

Orders

Orders of the court

Letters of administration on intestacy of the estate of Dana Shankari Clare deceased be granted to Peter Graf and Michael Graf.

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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CITATION:	Re: Clare (deceased) [2009] QSC 403
PARTIES:	LUAN DANAAN (propounding executor) v PETER GRAF and MICHAEL GRAF (applicants for letters of administration)
FILE NO/S:	BS 514 of 2009
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	11 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25 November 2009
JUDGE:	White J
ORDER:	Letters of administration on intestacy of the estate of Dana Shankari Clare deceased be granted to Peter Graf and Michael Graf.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – IN GENERAL – where the deceased executed a will – where the deceased’s brothers have applied for letters of administration of the deceased’s estate on the basis that she did not have the requisite testamentary capacity – whether the deceased had testamentary capacity at the time of executing the will – whether letters of administration should be granted Banks v Goodfellow (1870) LR 5 QB 549 Brown v Sandhurst Trustees Ltd [2009] VSC 212 In the Will of Wilson (1897) 23 VCR 197
COUNSEL:	P J Goodwin for the propounding executor R M Treston, with M Callaghan, for the applicants for letters of administration
SOLICITORS:	Murphy Schmidt for the propounding executor McInnes Wilson Lawyers for the applicants for letters of administration