Re: Grindrod (deceased) - [2014] QSC 158

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Grindrod (deceased) [2014] QSC 158

PARTIES:

In the Will of DELL JUDITH CORNISH GRINDROD (deceased)

PHILIP KESTELL CORNISH
(First Applicant)
JON KESTELL CORNISH
(Second Applicant)
NICHOLAS KESTELL CORNISH
(Third Applicant)

FILE NO:

5437/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 June 2014 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2014

JUDGE:

Ann Lyons J

ORDER:

1.     It is declared that the hand written document which is dated 4 January 2010, a copy of which is Exhibit AEA2 to the affidavit of Anthony Elkington Allen filed on 13 June 2014 and which purports to be the last Will of Dell Judith Cornish Grindrod who died on 23 February 2014 is the last valid Will of the deceased and of effect.

2.     Subject to the formal requirements of the Registrar, a grant of probate of the hand written Will of Dell Judith Cornish Grindrod executed on 4 January 2010 be made to the Applicants with the name of the Applicant Jon Kestell Cornish being shown as "Jonathan Kestell Cornish also known as Jon Kestell Cornish".

3.     The Applicants' costs of and incidental to this Application be paid out of the Estate of the late Dell Judith Cornish Grindrod on the indemnity basis.

CATCHWORDS:

SUCCESSION LAW – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the applicants sought a determination that the informal will of the deceased made on 4 January 2010 is a valid will

Succession Act 1981 (Qld), s 10, s 18
Hatsatouris v Hatsatouris [2001] NSWCA 408, cited
Proctor v Klauke [2011] QSC 425, cited

Re Yu [2013] QSC 322, cited

The Estate of Masters; Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, cited

SOLICITORS:

Anderssen Lawyers Pty Ltd for the applicants

The current application

Dell Judith Cornish Grindrod died on 23 February 2014 and her three sons seek a declaration that the handwritten document dated 4 January 2010, which purports to be her last will is the last valid will of the deceased.

On 26 June 2014 I made orders and gave short reasons in relation to this application for declarations in relation to an informal will, I indicated that I would give more detailed reason at a later date. These are those reasons.

The Legislation

The hand written 4 January 2010 document does not meet the requirements of s 10(3) and (4) of the Succession Act 1981 (Qld) (the Act) which is in the following terms.

The three sons of the deceased, as the executors named in the 2010 informal will, seek a determination pursuant to s 18 of the Act that that document is, in fact, a valid will.

Section 18, subsections (1) and (2) of the Act empowers the Court to dispense with the formal requirements of s 10 if the Court is satisfied that the person intended the document to form the person’s will where the document purports to state…

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: Grindrod (deceased)

Details

AGLC: Re: Grindrod (deceased) [2014] QSC 158
Case: [2014] QSC 158
Decision Date: 26 June 2014 (ex tempore)

CaseChat Overview and Summary

The applicants in this case sought a determination that the informal will of the deceased, dated 4 January 2010, is a valid will. The deceased, Dell Judith Cornish Grindrod, passed away on 23 February 2014, and the applicants are contesting the validity of the will in question. The matter was heard in the Supreme Court of Queensland. The primary legal issue the court had to address was whether the hand-written document dated 4 January 2010 is indeed the last valid will of the deceased. Additionally, the court had to consider the statutory power of rectification and whether the formal requirements of the will had been met.

The court considered the evidence provided by the applicants and examined the hand-written document in question. The applicants argued that the document in question was the last valid will of the deceased, and they sought a declaration to this effect. The court found that the document was the last valid will of the deceased and granted the declaration sought by the applicants. The court also noted that the Applicants' costs of and incidental to this Application would be paid out of the Estate of the late Dell Judith Cornish Grindrod on the indemnity basis.

In summary, the court found in favour of the applicants and declared that the hand-written document dated 4 January 2010 is the last valid will of the deceased. The court also granted a grant of probate to the applicants, subject to the formal requirements of the Registrar. The applicants' costs were ordered to be paid out of the deceased's estate on an indemnity basis.

Orders

Orders of the court

1. It is declared that the hand written document which is dated 4 January 2010, a copy of which is Exhibit AEA2 to the affidavit of Anthony Elkington Allen filed on 13 June 2014 and which purports to be the last Will of Dell Judith Cornish Grindrod who died on 23 February 2014 is the last valid Will of the deceased and of effect.

2. Subject to the formal requirements of the Registrar, a grant of probate of the hand written Will of Dell Judith Cornish Grindrod executed on 4 January 2010 be made to the Applicants with the name of the Applicant Jon Kestell Cornish being shown as "Jonathan Kestell Cornish also known as Jon Kestell Cornish".

3. The Applicants' costs of and incidental to this Application be paid out of the Estate of the late Dell Judith Cornish Grindrod on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

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: Grindrod (deceased) [2014] QSC 158
PARTIES:	In the Will of DELL JUDITH CORNISH GRINDROD (deceased) PHILIP KESTELL CORNISH (First Applicant) JON KESTELL CORNISH (Second Applicant) NICHOLAS KESTELL CORNISH (Third Applicant)
FILE NO:	5437/14
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	26 June 2014 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	26 June 2014
JUDGE:	Ann Lyons J
ORDER:	1. It is declared that the hand written document which is dated 4 January 2010, a copy of which is Exhibit AEA2 to the affidavit of Anthony Elkington Allen filed on 13 June 2014 and which purports to be the last Will of Dell Judith Cornish Grindrod who died on 23 February 2014 is the last valid Will of the deceased and of effect. 2. Subject to the formal requirements of the Registrar, a grant of probate of the hand written Will of Dell Judith Cornish Grindrod executed on 4 January 2010 be made to the Applicants with the name of the Applicant Jon Kestell Cornish being shown as "Jonathan Kestell Cornish also known as Jon Kestell Cornish". 3. The Applicants' costs of and incidental to this Application be paid out of the Estate of the late Dell Judith Cornish Grindrod on the indemnity basis.
CATCHWORDS:	SUCCESSION LAW – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the applicants sought a determination that the informal will of the deceased made on 4 January 2010 is a valid will Succession Act 1981 (Qld), s 10, s 18 Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Proctor v Klauke [2011] QSC 425, cited Re Yu [2013] QSC 322, cited The Estate of Masters; Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, cited
SOLICITORS:	Anderssen Lawyers Pty Ltd for the applicants