Re JT

[2014] QSC 163

SUPREME COURT OF QUEENSLAND

CITATION:

Re: JT [2014] QSC 163

PARTIES:

In the matter of an application pursuant to s 21 of the Succession Act 1981 on behalf of JT

FILE NO/S:

3646/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

23 June 2014 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2014

JUDGE:

Ann Lyons J

ORDER:

Order in terms of the draft provided

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LACK OF CAPACITY AND STATUTORY WILLS – where, due to advanced Alzheimer’s disease JT lacks testamentary capacity – where the applicant applied pursuant to s 21 of the Succession Act 1981 (Qld) for an order authorising a will to be made for JT

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

Banksv Goodfellow (1870) LR 5 QB 549
Van der Meulen v Van der Meulen [2014] QSC 33
Sadler v Eggmolesse [2013] QSC 40
SPM v LWA [2013] QSC 138

COUNSEL:

R Williams for the applicant

SOLICITORS:

CRH Law for the applicant

1. This is an application pursuant to s 21 of the Succession Act 1981 (Qld) (“Succession Act”) for an order authorising a will to be made for JT. JT is currently 65 years old, has advanced Alzheimer’s disease and no longer has testamentary capacity.

1. On 23 June 2014 I made orders and gave short reasons in relation to this application for a statutory will and I indicated that to protect the privacy of JT I would de-identify the reasons prior to the publication.  These are those reasons.

Factual Background

1. The applicant GT was appointed as JT’s administrator and co-guardian on 14 May 2012 by the Queensland Civil and Administrative Tribunal. He is JT’s former husband.  The couple met in 1979 and married in 1999.  Whilst they separated in 2004 and divorced in 2009, I am satisfied on the basis of the affidavit material, that despite their separation and divorce they have remained close friends.  The application is supported by JT’s brother and co-guardian IDH.  There are also affidavits from SR and KJ who have been friends of JT for some 28 years and they clearly support the application.

1. The affidavit of Margaret Arthur sworn 30 April 2014 sets out the extensive investigations which have been conducted and which reveal that JT has no will. If a will is not authorised to be made for her she will therefore die intestate.  If she dies intestate, under the rules of intestacy, her estate will pass to not only to her brother IDH with whom she has had a close relationship but also to other family members with whom she has never had a close relationship.

1. JT was born on 24 September 1948. She has no current spouse and no children.  The family tree has been exhibited to the affidavit of IDH and that indicates that JT is one of the six children of FH. Throughout her life she has had a close bond with her brother…