Re Glendon

[2023] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION:

Re Glendon [2023] QSC 284

PARTIES:

KEITH DENTON GLENDON

(applicant)

FILE NO/S:

526 of 2023

DIVISION:

Trial division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED EX TEMPORE ON:

25 October 2023

DELIVERED AT:

Cairns

HEARING DATE:

25 October 2023

JUDGE:

Henry J

ORDER:

1.   Subject to the usual requirements of the Registrar, a Grant of Probate of the Will of Ailsa Lillian Glendon dated 9 September 2022 be granted to Keith Denton Glendon as executor.

2.   That the executor’s/applicant’s costs of these proceedings be paid out of the deceased’s estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM PROBATE GRANTED – EXPRESSLY APPOINTED EXECUTORS – where the deceased left the whole of her estate to her husband if he remained living and appointed him sole executor – where an issue as to capacity was raised by another in respect of the sole executor – where the relative complexity of the task at hand can properly be weighed relative to the degree of impairment

Gibbons v Wright (1954) 91 CLR 423, cited

Hamill v Wright [2018] QSC 197, cited

COUNSEL:

C Ryall for the applicant

SOLICITORS:

Gayler Cleland Solicitors for the applicant

1. The late Ailsa Glendon left the whole of her estate to her husband if he remained living, as he does, and appointed him as the sole executor.  On the evidence before me, the material aspects of her estate consist of a 50 per cent interest in two properties, 50 per cent of which are owned by her husband and there is also a bond of 14-odd thousand dollars to retrieve from the aged care centre where she was living. 

2. In simple terms, then, there is not a lot to be done in order to administer this estate.  Making it an even easier prospect is that a reputable local solicitor, Mr Duffy, has already been engaged by Mr Glendon and is poised to tend to the two transfers and retrieval of the bond on instructions from Mr Glendon once probate is granted.  Why then is the matter even before me? 

3. It has been referred because an issue has been apparently raised by another about Mr Glendon’s capacity to serve as an executor.  The initial evidence of that from a Dr Laws is so bereft of any foundational detail that I disregard it.  But the applicant has properly disclosed that a different doctor in recent times has undertaken the task of assessing Mr Glendon’s capacity to be executor. 

4. The doctor, Dr Cuming, opines Mr Glendon does not have the capacity to be executor or deal with complex financial decisions.  I am naturally, as the judge of this matter, rather than Dr Cuming being the judge of the matter, interested in some greater detail.  He considers, I note, that Mr Glendon could participate in conversation around such arrangements though he believes he would need the support of his enduring power of attorney to manage those affairs.  What is not explained is the relativity of that to his earlier observation about Mr Glendon lacking capacity to deal with complex financial decisions such as property sale or bond transfer. 

5. Respectfully, the three transactions which would be necessary in a substantive way to administer this estate in connection with property cannot conceivably be described as complex.  They are entirely straightforward.  They are entirely consistent with the testator’s wishes, which was that all of her property pass to her husband, who is in the unhappy position of simply wanting to achieve his late wife’s wishes, no doubt as expeditiously as possible.  Approached from the black letter law position, the case is a borderline one because of the undoubted substance to the state of the evidence now regarding his moderate cognitive impairment. 

6. In considering the matter, it seems to me the relative complexity of the task at hand can properly be weighed relative to the degree of impairment.  So, for example, in Gibbons v Wright (1954) 91 CLR 423 it was said at 437-438:

   “... the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.”

7. Pursuing a similar theme, Applegarth J observed in Hamill v Wright [2018] QSC 197 at [157]:

   “... it is not a matter of imposing, or recognising, a different standard of mental capacity in the evaluation of different transactions.  The concept of “mental capacity” must be assessed relative to the nature, terms, purpose and context of the particular transaction.” 

8. When I weigh those observations along with the obvious weight that ought be given to the testator’s wishes, the simplicity of the transactions necessary to give effect to the testator’s estate passing to her nominated executor and beneficiary, Mr Glendon, favour the grant of probate, notwithstanding the reservations as to his degree of impairment. 

9. The decision is a borderline one because if this case involved any evidence suggesting there were some greater complexity about the nature of the estate and what ought occur pursuant to the will, then the concerns as to capacity might have triggered either a different decision or at least one which might have confined or limited the relevant grant. 

10. There is no evidence to suggest any such complexity at all so that, in the circumstances, notwithstanding the concerns properly disclosed to the Court regarding capacity, I am confident in all the circumstances that it is appropriate consistently with the deceased’s wishes to appoint Mr Glendon.

11. I propose, accordingly, to sign the draft order granting probate to him.  I order as per that draft order, signed by me, and placed with the papers.