Re Oliver (deceased)

[2016] QSC 264

SUPREME COURT OF QUEENSLAND

CITATION:

Re Oliver (deceased) [2016] QSC 264

PARTIES:

IN THE WILL OF STEELE WILLIAM OLIVER (deceased)

FILE NO/S:

No 2196 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2016

JUDGE:

Dalton J

ORDER:

1.    It is declared that the document dated 11 October 2011 signed by Steele William Oliver, deceased, does not constitute a valid will.

2.    Subject to the formal requirements of the Registrar, the Public Trustee of Queensland is to administer the estate of Steele William Oliver, deceased.

3.    The application filed by Daniel Frederick Oliver on 18 October 2016 is otherwise dismissed.

4.    The application filed by the Public Trustee on 26 October 2016 is otherwise dismissed.

COUNSEL:

R D Williams for the Official Solicitor to the Public Trustee of Queensland
D F Oliver appeared on his own behalf

SOLICITORS:

The Official Solicitor to the Public Trustee of Queensland
D F Oliver appeared on his own behalf

1. The Public Trustee applies for probate of the last will of Steele William Oliver.  The deceased’s brother, Daniel Frederick Oliver, has lodged a caveat in the probate proceedings and appeared in person to argue against a grant of probate.  He asks that an administrator be appointed, and that he be the administrator.

2. The deceased man suffered from severe and chronic schizophrenia most of his adult life.  He never married and had no children.  He had four siblings: two sisters and two brothers.  His affairs were managed by the Public Trustee from 28 May 1990 because he was incapable of managing them himself.  He was confined in hospital from the time he was 19 until his death aged 61.

3. The Public Trustee took instructions from the deceased man and prepared a will for him which he executed on 11 October 2011.  The will was prepared in accordance with instructions, to benefit one sister, and in default one brother.  It was submitted by the Public Trustee that on its face the will was rational and that the prima facie presumption of validity arose.[1]

   [1]     Frizzo & Anor v Frizzo & Ors [2011] QCA 308, [24].

4. The affidavit material is to the effect that the solicitor involved was experienced in preparing wills.  She took instructions for the will at the hospital where the deceased man had been detained for many years.  She swears that she does not recall the testator.  She swears that it is her usual practice to satisfy herself as to testamentary capacity and therefore she “would have been satisfied” that the deceased man had testamentary capacity. 

5. The solicitor made a note:

   “Saw Mr Oliver at the [Prince Charles] hospital to make his will.  His social worker Rosslyn was present at the interview as well.  Mr Oliver was able to give basic details about his assets – the fact that [the Public Trustee] manages them all – he was able to advise his date of birth, his parents’ names, and…