Re: D

[2014] QSC 164

SUPREME COURT OF QUEENSLAND

CITATION:

Re: D [2014] QSC 164

PARTIES:

In the matter of an application pursuant to s 21 of the Succession Act 1981 on behalf of “D”

JAMES RODERICK BYRNE
(applicant)

FILE NO/S:

5166/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Ex tempore 23 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2014

JUDGE:

Ann Lyons J

ORDER:

The applicant is authorised to make the proposed will

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTRY CAPACITY – LACK OF CAPACITY AND STATUTORY WILLS – where the applicant applied pursuant to ss 21 and 22 of the Succession Act 1981 (Qld) for a statutory will for Miss “D” - where Miss D lacks testamentary capacity due to cerebral palsy

Succession Act 1981 (Qld), s 21, s 22, s 23

Banks v Goodfellow (1870) LR 5 QB 549
Re JT [2014] QSC 163
SPM v LWA [2013] QSC 138
Van der Meulen v Van der Meulen [2014] QSC 33

COUNSEL:

R Williams for the applicant

SOLICITORS:

James Byrne & Company for the applicant

1. On 23 June 2014, I made orders and gave short reasons in relation to this application for declarations in relation to the making of a will for Miss D. I indicated that I would give more detailed reason at a later date. These are those reasons.

1. This is an application pursuant to the Succession Act 1981 (Qld) (“Succession Act”) for a will to be authorised to be made for “Miss D”. She is 63 years of age and she has had cerebral palsy from birth. She is totally debilitated from her condition and is unable to communicate verbally or in writing. She is wheelchair bound and has resided permanently at a nursing home in Brisbane since August 1994.

1. The applicant is Mr James Roderick Byrne, who is a solicitor who acts as D’s legal guardian.  He is one of two guardians who were appointed on the death of D’s father, on 28 August 2008 under his will dated 31 May 2005.  The other appointed legal guardian was Mr Stephen Rudz, who was a former partner in the firm of James Byrne & Rudz Solicitors.  He left the partnership in 2011, and since that time, Mr Byrne has carried out the function of acting as D’s legal guardian solely. 

1. It is clear that D has no will. 

Family background

1. Miss D was born in November 1950 and is an only child.  D’s mother died on 8 August 2001 and D’s father died on 28 August 2008.  D has no spouse and no children and no likelihood of ever marrying. On her mother’s side, she has an aunt AAM who is her mother’s only sibling.  She is 84 years of age, is in poor health and has dementia.  She resides at a nursing home in Pottsville and is in permanent high care.  She has five children, PAS, GJD, KMT, TMM and LMD. 

1. On her father’s side, she has…