Re Dohle - [2022] QSC 4

SUPREME COURT OF QUEENSLAND

CITATION:

Re Dohle [2022] QSC 4

PARTIES:

CORIN MICHAEL SANKEY
(applicant)
RE: IN THE WILL OF ROBIN ANN DOHLE DECEASED

FILE NO/S:

BS No 12903 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application for probate of a will and rectification of a will

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

3 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Williams J

ORDER:

1.    Subject to the formal requirements of the Registrar, a grant of probate of the Will of Robin Ann Dohle (the Deceased) dated 18 June 2020 be made to Corin Michael Sankey, as Executor.

2.    Pursuant to section 33 of the Succession Act 1981, clause 3.3 of the Will of the Deceased is rectified to replace the words “Nereo’s children” with the words “Nereo’s grandchildren”.

3.    The time for the applicant to make an application under section 33 of the Succession Act 1981 is extended to the date of this order pursuant to section 33(3) of the Succession Act 1981.

4.    The Applicant’s costs of this Application in respect of the application for a grant of probate be paid from the estate of the Deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the deceased was thought to be incapable of making decisions in relation to financial matters – where further enquiries were made in respect of the deceased’s testamentary capacity – whether the deceased had testamentary capacity at the time the 2020 Will was made

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – where the application seeks to rectify an error in the description of Nereo’s grandchildren as his children – whether the 2020 Will did not reflect the testator’s intentions because it did not give effect to the testator’s instructions

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the application for rectification of the 2020 Will was filed out of time – whether the court should allow the applicant an extension of time to make an application for rectification

Succession Act 1981 (Qld), s 33

Banks v Goodfellow (1870) LR 5 QB 549, considered
Frizzo & Anor v Frizzo & Ors [2011] QCA 308, considered
Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339, considered
Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22, cited
Read v Carmody [1998] NSWCA 182, considered
Rose v Tomkins [2018] 1 Qd R 549; [2017] QCA 157, considered
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, cited

COUNSEL:

N J Shaw for the applicant

SOLICITORS:

Clo Lawyers for the applicant

This is an application for a grant of probate of a will which raises several issues including:
(a)whether the deceased had testamentary capacity at the time the 2020 Will was made;
(b)an application for rectification of the 2020 Will to…

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 Dohle

Details

AGLC: Re Dohle [2022] QSC 4
Case: [2022] QSC 4
Decision Date: 3 February 2022

CaseChat Overview and Summary

The case of Re Dohle involved Corin Michael Sankey, as the executor of the estate of Robin Ann Dohle, who sought a grant of probate for the deceased’s will dated 18 June 2020. The application also sought to rectify a perceived error in the will regarding the description of the beneficiaries, specifically the grandchildren of Nereo, who were incorrectly referred to as his children. Additionally, the applicant requested an extension of time to apply for the rectification of the will, as the application was filed outside the statutory period.

The court was tasked with determining whether the deceased had testamentary capacity when she executed the will in 2020, given concerns about her decision-making ability regarding financial matters. Another issue was whether the will accurately reflected the deceased's intentions, particularly in relation to the description of the beneficiaries. Finally, the court had to decide whether to grant an extension of time to the applicant to rectify the will.

The court found that the deceased had testamentary capacity at the time of making the will. It was determined that the will did not accurately reflect the deceased's intentions, as it incorrectly referred to Nereo’s grandchildren as his children. Consequently, the court rectified clause 3.3 of the will to accurately reflect the intended beneficiaries. The court also granted an extension of time to the applicant to make the application for rectification, as permitted under the relevant legislation. The court ordered that the applicant’s costs be paid from the estate on an indemnity basis.

In summary, the court granted a probate of the will to the executor, rectified the description of beneficiaries, extended the time for making the rectification application, and ordered that the applicant's costs be paid from the estate.

Orders

Orders of the court

1. Subject to the formal requirements of the Registrar, a grant of probate of the Will of Robin Ann Dohle (the Deceased) dated 18 June 2020 be made to Corin Michael Sankey, as Executor.

2. Pursuant to section 33 of the Succession Act 1981, clause 3.3 of the Will of the Deceased is rectified to replace the words “Nereo’s children” with the words “Nereo’s grandchildren”.

3. The time for the applicant to make an application under section 33 of the Succession Act 1981 is extended to the date of this order pursuant to section 33(3) of the Succession Act 1981.

4. The Applicant’s costs of this Application in respect of the application for a grant of probate be paid from the estate of the Deceased on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Dohle [2022] QSC 4
PARTIES:	CORIN MICHAEL SANKEY (applicant) RE: IN THE WILL OF ROBIN ANN DOHLE DECEASED
FILE NO/S:	BS No 12903 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application for probate of a will and rectification of a will
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	3 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	Application on the papers
JUDGE:	Williams J
ORDER:	1. Subject to the formal requirements of the Registrar, a grant of probate of the Will of Robin Ann Dohle (the Deceased) dated 18 June 2020 be made to Corin Michael Sankey, as Executor. 2. *Pursuant to section 33 of the Succession Act* 1981, clause 3.3 of the Will of the Deceased is rectified to replace the words “Nereo’s children” with the words “Nereo’s grandchildren”. 3. The time for the applicant to make an application under section 33 of the Succession Act 1981 is extended to the date of this order pursuant to section 33(3) of the Succession Act 1981. 4. The Applicant’s costs of this Application in respect of the application for a grant of probate be paid from the estate of the Deceased on an indemnity basis.**
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the deceased was thought to be incapable of making decisions in relation to financial matters – where further enquiries were made in respect of the deceased’s testamentary capacity – whether the deceased had testamentary capacity at the time the 2020 Will was made SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – where the application seeks to rectify an error in the description of Nereo’s grandchildren as his children – whether the 2020 Will did not reflect the testator’s intentions because it did not give effect to the testator’s instructions PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the application for rectification of the 2020 Will was filed out of time – whether the court should allow the applicant an extension of time to make an application for rectification *Succession Act* 1981 (Qld), s 33 *Banks v Goodfellow* (1870) LR 5 QB 549, considered Frizzo & Anor v Frizzo & Ors [2011] QCA 308, considered *Public Trustee of Queensland v Smith* [2009] 1 Qd R 26; [2008] QSC 339, considered Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22, cited Read v Carmody [1998] NSWCA 182, considered Rose v Tomkins [2018] 1 Qd R 549; [2017] QCA 157, considered Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, cited
COUNSEL:	N J Shaw for the applicant
SOLICITORS:	Clo Lawyers for the applicant