Re Massey (deceased) - [2021] QSC 205

SUPREME COURT OF QUEENSLAND

CITATION:

Re Massey (deceased) [2021] QSC 205

PARTIES:

Applicant:  THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the Estate of WINIFRED MADGE MASSEY, deceased

  AND

First Respondent:                   TERRENCE WILLIAM
  MASSEY

  AND

Second Respondents:             THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the Estate of DOROTHY FRANCES STANLEY, GLORIA ROBERTA VOLGER, MADGE THORA PATTERSON AND SUSAN MONICA ROSS-KELLY

  AND

Third Respondents:               DARRYL DANTON MURGHA, MATTHEW WILLIAM MURGHA, ERWIN GARTH MURGHA, GLENNYS PATRICIA ANNE MURGHA AND IAN FREDERICK MURGHA

  AND

Fourth Respondents:              CHERIE FAY NOBLE, GEORGE GREGORY NOBLE AND CHERYL ANN NOBLE

FILE NO/S:

TS 1234/20

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Townsville

DELIVERED ON:

10 August 2021

DELIVERED AT:

Townsville

HEARING DATE:

16-17 June 2021.

JUDGE:

North J

ORDER:

1. Pursuant to rule 642(1)(b) of the Uniform Civil Procedure Rules 1999, the Order to Administer the estate of Winifred Madge Massey, deceased, according to her Will dated 14 May 1990, granted to the Applicant on 3 December 1992 is revoked.

2. Pursuant to section 6 of the Succession Act 1981, the court pronounces for the force and validity of the Will of Winifred Massey, deceased, dated 14 May 1990.

3. Pursuant to section 6 of the Succession Act 1981, subject to the formal requirements of the Registrar, probate of the Will of Winifred Madge Massey, deceased, dated 14 May 1990, be granted to KEVIN CORNELIUS STANLEY.

4. Pursuant to section 82(2)(a) of the Trusts Act 1973, all assets of Winifred Madge Massey, deceased, be vested in KEVIN CORNELIUS STANLEY as her personal representative.

5. Pursuant to section 114 of the Land Title Act 1994, KEVIN CORNELIUS STANLEY, as personal representative of Winifred Madge Massey, deceased, be registered as the proprietor of the property situated at Lot 2 Nelson Road, Babinda, more particularly described as Lot 2 on RP 712190, title reference 20495203.

CATCHWORDS:

SUCCESSION – MAKING A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF TESTAMENTARY CAPACITY AND STATUTORY WILLS – where the deceased made a Will in 1986 leaving the whole of her estate to her oldest daughter – where the deceased subsequently made a Will in 1990 leaving her estate to three of her children in equal shares – whether the deceased had testamentary capacity at the time of the 1990 Will – whether the 1990 Will should be admitted to probate

Succession Act 1981, s 6.

Boreham v Prince Henry Hospital (1955) 29 ALJ 179, cited

Frizzo & Anor v Frizzo & Ors [2011] QSC 107, cited.

Banks v Goodfellow (1870) LR 5 QB 549, cited.

COUNSEL:

R Whiteford for the Applicant

K Kluss for the First Named Second Respondent

SOLICITORS:

Official Solicitor for the Public Trustee of Queensland for the Applicant

Official Solicitor for the Public Trustee of Queensland for the First Named Second Respondent

Introduction

NORTH J: This an application brought before the Court by The Public Trustee as executor of the estate of the late Winifred Massey (‘the Deceased’) (‘the Applicant’), for…

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 Massey (deceased)

Details

AGLC: Re Massey (deceased) [2021] QSC 205
Case: [2021] QSC 205
Decision Date: 10 August 2021

CaseChat Overview and Summary

The case of Re Massey (deceased) involved the validity of a will made by the deceased, Winifred Madge Massey, in 1990. The dispute centred around whether the deceased had testamentary capacity when she made the 1990 will, as opposed to an earlier will from 1986. The court was asked to determine whether the 1990 will should be admitted to probate, given concerns over the deceased's mental state at the time of its creation.

The central legal issue before the court was whether Winifred Massey had the necessary testamentary capacity when she executed the 1990 will. The court was required to examine the circumstances surrounding the creation of the 1990 will and assess whether the deceased understood the nature and effect of making a will, including the extent of her estate and the claims to which her beneficiaries were entitled. The court also had to consider the statutory provisions regarding testamentary capacity and the principles established in relevant case law.

The court found that the deceased did possess testamentary capacity when she executed the 1990 will. The evidence demonstrated that Winifred Massey understood the contents of the will, the nature of her estate, and the claims of her beneficiaries. The court was satisfied that the 1990 will was made freely and voluntarily, without any undue influence or coercion. Based on this finding, the court revoked the earlier order granting administration of the estate according to the 1990 will and instead pronounced for its force and validity. The court granted probate of the 1990 will to the named executor, Kevin Cornelius Stanley, and ordered that all assets of the deceased be vested in him as her personal representative. Additionally, the court ordered the registration of Stanley as the proprietor of the deceased's property in Babinda.

Orders

Orders of the court

1. Pursuant to rule 642(1)(b) of the Uniform Civil Procedure Rules 1999, the Order to Administer the estate of Winifred Madge Massey, deceased, according to her Will dated 14 May 1990, granted to the Applicant on 3 December 1992 is revoked.

2. Pursuant to section 6 of the Succession Act 1981, the court pronounces for the force and validity of the Will of Winifred Massey, deceased, dated 14 May 1990.

3. Pursuant to section 6 of the Succession Act 1981, subject to the formal requirements of the Registrar, probate of the Will of Winifred Madge Massey, deceased, dated 14 May 1990, be granted to KEVIN CORNELIUS STANLEY.

4. Pursuant to section 82(2)(a) of the Trusts Act 1973, all assets of Winifred Madge Massey, deceased, be vested in KEVIN CORNELIUS STANLEY as her personal representative.

5. Pursuant to section 114 of the Land Title Act 1994, KEVIN CORNELIUS STANLEY, as personal representative of Winifred Madge Massey, deceased, be registered as the proprietor of the property situated at Lot 2 Nelson Road, Babinda, more particularly described as Lot 2 on RP 712190, title reference 20495203.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Massey (deceased) [2021] QSC 205
PARTIES:	Applicant: THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the Estate of WINIFRED MADGE MASSEY, deceased AND First Respondent: TERRENCE WILLIAM MASSEY AND Second Respondents: THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the Estate of DOROTHY FRANCES STANLEY, GLORIA ROBERTA VOLGER, MADGE THORA PATTERSON AND SUSAN MONICA ROSS-KELLY AND Third Respondents: DARRYL DANTON MURGHA, MATTHEW WILLIAM MURGHA, ERWIN GARTH MURGHA, GLENNYS PATRICIA ANNE MURGHA AND IAN FREDERICK MURGHA AND Fourth Respondents: CHERIE FAY NOBLE, GEORGE GREGORY NOBLE AND CHERYL ANN NOBLE
FILE NO/S:	TS 1234/20
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Townsville
DELIVERED ON:	10 August 2021
DELIVERED AT:	Townsville
HEARING DATE:	16-17 June 2021.
JUDGE:	North J
ORDER:	1. Pursuant to rule 642(1)(b) of the Uniform Civil Procedure Rules 1999, the Order to Administer the estate of Winifred Madge Massey, deceased, according to her Will dated 14 May 1990, granted to the Applicant on 3 December 1992 is revoked. 2. Pursuant to section 6 of the Succession Act 1981, the court pronounces for the force and validity of the Will of Winifred Massey, deceased, dated 14 May 1990. 3. Pursuant to section 6 of the Succession Act 1981, subject to the formal requirements of the Registrar, probate of the Will of Winifred Madge Massey, deceased, dated 14 May 1990, be granted to KEVIN CORNELIUS STANLEY. 4. Pursuant to section 82(2)(a) of the Trusts Act 1973, all assets of Winifred Madge Massey, deceased, be vested in KEVIN CORNELIUS STANLEY as her personal representative. 5. Pursuant to section 114 of the Land Title Act 1994, KEVIN CORNELIUS STANLEY, as personal representative of Winifred Madge Massey, deceased, be registered as the proprietor of the property situated at Lot 2 Nelson Road, Babinda, more particularly described as Lot 2 on RP 712190, title reference 20495203.
CATCHWORDS:	SUCCESSION – MAKING A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF TESTAMENTARY CAPACITY AND STATUTORY WILLS – where the deceased made a Will in 1986 leaving the whole of her estate to her oldest daughter – where the deceased subsequently made a Will in 1990 leaving her estate to three of her children in equal shares – whether the deceased had testamentary capacity at the time of the 1990 Will – whether the 1990 Will should be admitted to probate Succession Act 1981, s 6. Boreham v Prince Henry Hospital (1955) 29 ALJ 179, cited Frizzo & Anor v Frizzo & Ors [2011] QSC 107, cited. Banks v Goodfellow (1870) LR 5 QB 549, cited.
COUNSEL:	R Whiteford for the Applicant K Kluss for the First Named Second Respondent
SOLICITORS:	Official Solicitor for the Public Trustee of Queensland for the Applicant Official Solicitor for the Public Trustee of Queensland for the First Named Second Respondent