Re Toulitch (Deceased) - [2016] QSC 219

SUPREME COURT OF QUEENSLAND

CITATION:

Re Toulitch (Deceased) [2016] QSC 219

PARTIES:

NANCY HELEN WATSON
(applicant)

FILE NO/S:

No 34 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers.

JUDGE:

Peter Lyons J

ORDER:

A grant of probate in common form should be made.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where testator executed Will on 1 October 2009 – where hospital clinical record of 29 October 2009 recorded tachycardia/hypotension and possible early dementia – where testator later diagnosed with dehydration, atrial fibrillation and dementia with social issues – where the Queensland Civil and Administrative Tribunal (QCAT) appointed the Adult Guardian as the deceased’s guardian for a number of personal matters, and the Public Trustee of Queensland as the administrator for the deceased for all financial matters, on 15 December 2009 – where the Adult Guardian’s appointment was revoked on 14 December 2011 by QCAT – whether testator had testamentary capacity

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – PRACTICE – QUEENSLAND – PROOF IN SOLEMN FORM – where application for probate was made in solemn form – whether grant of probate should be made in common or solemn form

Probate Act 1867 (Qld) s 8
Succession Act 1981 (Qld) s 6, s 70
Uniform Civil Procedure Rules 1999 (Qld) Parts 7, 8 and 9 of Chapter 15, r 640

Estate Kouvakas; Lucas v Conakas [2014] NSWSC 786
Frizzo & anor v Frizzo & ors [2011] QSC 107
Re Devoy [1943] St R Qd 137
Re Dowling; sub-nom NSW Trustee and Guardian v Crossley [2013] NSWSC 1040
Read v Carmody [1998] NSWCA 182
Tsagouris v Bellaris [2010] SASC 147

Certoma, The Law of Succession in New South Wales (4^th ed, 2010)

SOLICITORS:

Vantage Point Legal for the applicant

On 4 January 2016, the applicant filed an application for a grant in common form of probate of the Will of Mario Toulitch deceased, the Will being dated 1 October 2009. Earlier publication of a notice of intention to make the application had the consequence that a letter addressed to the Public Trustee of Queensland was sent to a number of persons, including the applicant’s solicitor. A copy of the letter was also placed on the Court file.
On the advice of a Deputy Registrar, the applicant made an application for a grant of probate of the Will in solemn form, which is the subject of these reasons. Since then, notice of the application has been published in the New Zealand Herald, a paper circulating throughout New Zealand[1].
[1] CFI 11, para 8.
Background
There is no respondent to the application. Much of the material placed before the Court is hearsay or double hearsay. The affidavit of the applicant’s solicitor[2] shows that such material has been provided to…

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 Toulitch (Deceased)

Details

AGLC: Re Toulitch (Deceased) [2016] QSC 219
Case: [2016] QSC 219
Decision Date: 23 September 2016

CaseChat Overview and Summary

In the matter of Re Toulitch (Deceased), the deceased executed a Will on 1 October 2009, leaving property at Cleveland and Redland Bay. The deceased's niece, the applicant, applied for a grant of probate of the Will in solemn form. The applicant met the deceased in 2003 and became his close friend and dance partner. The deceased had limited means and lived on a Centrelink loan. The deceased's health deteriorated, and he was diagnosed with dehydration, atrial fibrillation, and dementia with social issues. The deceased's testamentary capacity was called into question.

The court had to decide whether the deceased had testamentary capacity when he executed the Will, and whether the grant of probate should be made in common or solemn form. The court found that the evidence did not definitively establish that each person who might be adversely affected by the grant had been identified and given notice of the application. The court also found that the applicant had not opposed the grant of probate in common form.

The court granted a grant of probate in common form to the applicant. The court found that the applicant had provided sufficient evidence to establish the matters required for a grant, but no person had had the opportunity to test it. The court concluded that the grant should be in common form.

The final order of the court was that a grant of probate in common form should be made in favour of the applicant.

Orders

Orders of the court

A grant of probate in common form should be made.

Background

Background to the litigation

On the advice of a Deputy Registrar, the applicant made an application for a grant of probate of the Will in solemn form, which is the subject of these reasons. Since then, notice of the application has been published in the New Zealand Herald, a paper circulating throughout New Zealand[1].[1] CFI 11, para 8.Background There is no respondent to the application. Much of the material placed before the Court is hearsay or double hearsay. The affidavit of the applicant’s solicitor[2] shows that such material has been provided to the Court after she took ethical advice. For that she is to be commended. However, it is apparent that such material has been provided, not because the applicant relies on it, or even accepts its truth (at least in some respects), but to ensure that the Court is made aware of its existence and content. I propose to include some reference to that material in my identification of background matters without necessarily accepting the truth of all that is so recorded.[2] CFI 10. The deceased was born in Bosnia on 12 November 1927[3]. He left that country in the 1960s, living in France and in New Zealand for several years, before migrating to Australia[4]. In Australia, the deceased acquired property at Cleveland, where he lived (alone), and at Redland Bay, where he owned a block of land. [3] CFI 7, exs NW2 and NW6.[4] CFI 7, ex NW6 The deceased had a brother whom, in 2009, the deceased said was in New Zealand, and with whom he had no contact[5]. On the same occasion the deceased said he had divorced his wife when he lived in New Zealand; and that he had no children. The applicant’s evidence is that the deceased said he had no living relatives[6].[5] CFI 7, ex NW6.[6] CFI 7, para 11. The applicant met the deceased in 2003. They became dance partners; and subsequently, close friends. The applicant helped the deceased with cooking and with washing, and at times drove him to places where he wanted to go. The deceased’s will is dated 1 October 2009. The applicant deposed that the deceased arrived at her home on that day, with a completed Will form which he then signed in the presence of the applicant, and the applicant’s grandson and his partner. The applicant deposed that, on that occasion, there was nothing that would lead her to believe that the deceased was suffering from any illness or condition that would affect his thinking or understanding of what he was doing. The deceased at that time owned the two properties, but was otherwise a man of limited means and did not have any income. He lived on a loan from Centrelink. According to the applicant[7], at about the time he signed the Will, the deceased had decided to sell the block of land at Redland Bay, apparently to get funds to build a better house on the property at Cleveland. He took advice from real estate agents about the value of the block of land at Redland Bay. He then put a “for sale” sign on the block, and subsequently negotiated with buyers about the sale. After a little time, he executed a contract with people described as “some Asian buyers”.[7] CFI 7, para 14.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the present case, the evidence does not definitively establish that each person who might be adversely affected by the grant has been identified, and given notice of the application. Although I have found the evidence before me to be sufficient to establish those matters which must be established for a grant, no person has had the opportunity to test it. In those circumstances, it seems to me that the grant should be in common form. Having been given notice of my tentative view, the solicitor for the applicant does not oppose that course.Conclusion A grant of probate in common form should be made in favour of the applicant.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Toulitch (Deceased) [2016] QSC 219
PARTIES:	NANCY HELEN WATSON (applicant)
FILE NO/S:	No 34 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers.
JUDGE:	Peter Lyons J
ORDER:	A grant of probate in common form should be made.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where testator executed Will on 1 October 2009 – where hospital clinical record of 29 October 2009 recorded tachycardia/hypotension and possible early dementia – where testator later diagnosed with dehydration, atrial fibrillation and dementia with social issues – where the Queensland Civil and Administrative Tribunal (QCAT) appointed the Adult Guardian as the deceased’s guardian for a number of personal matters, and the Public Trustee of Queensland as the administrator for the deceased for all financial matters, on 15 December 2009 – where the Adult Guardian’s appointment was revoked on 14 December 2011 by QCAT – whether testator had testamentary capacity SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – PRACTICE – QUEENSLAND – PROOF IN SOLEMN FORM – where application for probate was made in solemn form – whether grant of probate should be made in common or solemn form Probate Act 1867 (Qld) s 8 Succession Act 1981 (Qld) s 6, s 70 Uniform Civil Procedure Rules 1999 (Qld) Parts 7, 8 and 9 of Chapter 15, r 640 Estate Kouvakas; Lucas v Conakas [2014] NSWSC 786 Frizzo & anor v Frizzo & ors [2011] QSC 107 Re Devoy [1943] St R Qd 137 Re Dowling; sub-nom NSW Trustee and Guardian v Crossley [2013] NSWSC 1040 Read v Carmody [1998] NSWCA 182 Tsagouris v Bellaris [2010] SASC 147 Certoma, The Law of Succession in New South Wales (4^th ed, 2010)
SOLICITORS:	Vantage Point Legal for the applicant