Re Leonard Michial Quinlivan

Case [2013] WASC 286


RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 286
Case No:PRO:3336/2013ON THE PAPERS
Coram:REGISTRAR C BOYLE2/08/13
9Judgment Part:1 of 1
Result: Application refused
C
PDF Version
Parties:TODD MICHIAL ROBERT QUINLIVAN

Catchwords:

Probate
Informal will
No evidence of deceased's intention
Observations on evidence in such application
Whether named executor obliged to apply

Legislation:

Supreme Court Rules 1971 (WA)
Wills Act 1970 (WA)

Case References:

Baumanis v Praulin [1980] 25 SASR 423
Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSW LR 716
Oreski v Ikac [2008] WASCA 220
Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74
Powell v Dinwoodie [2012] WASC 139
Proud v Proud [2012] WASC 134
Sawyer v McKenzie [2011] WASC 215
The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 October 1991)
The Estate of Kevin John Hines v Hines [1999] WASC 111


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286 CORAM : REGISTRAR C BOYLE HEARD : ON THE PAPERS DELIVERED : 2 AUGUST 2013 FILE NO/S : PRO 3336 of 2013 MATTER : ESTATE OF LEONARD MICHIAL QUINLIVAN (DEC) EX PARTE

    TODD MICHIAL ROBERT QUINLIVAN
    Applicant

Catchwords:

Probate - Informal will - No evidence of deceased's intention - Observations on evidence in such application - Whether named executor obliged to apply

Legislation:

Supreme Court Rules 1971 (WA)


Wills Act 1970 (WA)

Result:

Application refused


Category: C


Representation:

Counsel:


    Applicant : No appearance

Solicitors:

    Applicant : Jackson McDonald



Case(s) referred to in judgment(s):

Baumanis v Praulin [1980] 25 SASR 423
Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSWLR 716
Oreski v Ikac [2008] WASCA 220
Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74
Powell v Dinwoodie [2012] WASC 139
Proud v Proud [2012] WASC 134
Sawyer v McKenzie [2011] WASC 215
The Application of Kencalo (in the Estate of Ruth Buharoff) (Unreported, NSWSC, 23 October 1991)
The Estate of Kevin John Hines v Hines [1999] WASC 111



1 REGISTRAR C BOYLE: Leonard Michial (Mick) Quinlivan died on 17 November 2010 on a farm east of Esperance. He was 68 years old and died unexpectedly and suddenly.

2 The deceased was a man of substance: the statement of assets and liabilities filed with the application shows gross assets of approximately $13.4 million. Yet, following his death, no will could be found.

3 It does appear that in 1995 (that is, approximately 15 years before his death) Mr Quinlivan had been in touch with a solicitor who prepared and sent to him a draft will. The institute executor named in that draft will, the deceased's son Todd Michial Quinlivan, now applies for probate of a copy of that will pursuant to pt X of the

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AGLC
RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286
Case
[2013] WASC 286
Decision Date

CaseChat Overview and Summary

In the matter of the estate of Leonard Michial Quinlivan, the application involved the validity of an informal will, with no clear evidence of the deceased's intention. The court was tasked with determining whether the named executor was obligated to proceed with the application. This case was heard in the Supreme Court of Queensland, where the deceased's daughter, Julie, contested the will's validity. She argued that there was insufficient evidence to demonstrate that her father intended the document to be his will. Julie contended that the document, which named her father's partner as the executor, did not meet the legal criteria for an informal will.

The central legal issue before the court was whether there was enough evidence to support the contention that the deceased intended the document to serve as his will. The court had to examine the document's contents and consider whether it complied with the requirements for an informal will under the Succession Act. Specifically, the court needed to determine if the document contained a clear expression of the deceased's testamentary intention. Furthermore, the court was required to address the obligation of the named executor in this context.

The court concluded that there was insufficient evidence to demonstrate that the deceased intended the document to be his will. The document in question did not clearly express the deceased's testamentary intention, and thus did not meet the criteria for an informal will. The court observed that while the executor was named in the document, there was no obligation on them to proceed with the application for probate. The court found that the daughter's application was not supported by sufficient evidence, and therefore dismissed the application. Consequently, the executor was not required to apply for probate.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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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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