Re Uscinski - [2024] QSC 131

SUPREME COURT OF QUEENSLAND

CITATION:

Re Uscinski [2024] QSC 131

PARTIES:

SALLY KAI LAWRENCE

(applicant)

v

KATHERINE SCARLETT ROSE MOYNIHAN

AS EXECUTOR OF THE ESTATE OF ILLE USCINSKI

(respondent)

FILE NO:

BS No 10954 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2024

JUDGE:

Copley J

ORDERS:

1.    The respondent shall bring the original grant of probate of the will of Ille Uscinski dated 23 January 2018 in common form issued on 17 October 2022 into the registry within 7 days.

2.    The respondent shall commence a proceeding by way of claim and statement of claim seeking a grant of probate of the will dated 23 January 2018 in solemn form within 28 days.

3. It is directed that Part 2 of Chapter 7 of the UCPR applies to this proceeding by the applicant being granted leave to issue notices of non-party disclosure to Queensland Family Law Practice and Greenslopes Private Hospital substantially in the form set out in exhibits SDP-1 and SDP-2 to the affidavit of Sean Powell affirmed on 30 May 2024, subject to the periods of disclosure being 1 July 2016 to 18 November 2021 and being in relation to the will dated 23 January 2018.

4.    The applicant is to expeditiously disclose copies of any documents received pursuant to the abovementioned notices to the respondent by way of disclosure in the Contested Proceedings.

CATCHWORDS:
SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant seeks orders that the respondent bring into the registry the grant of probate in common form, and start a proceeding for a grant in solemn form, under r 640 of Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the applicant submits that the testatrix did not have testamentary capacity at the time the will was executed in 2018 and that the testatrix did not know or approve of the contents of that will – where the respondent submits that there are no triable issues raised by the applicant and that the Court would not make an order under r 640 UCPR due to the delay by the applicant to bring an application – whether there is a triable issue with respect to the testatrix’s testamentary capacity – whether the applicant’s delay is explained

Uniform Civil Procedure Rules 1999 (Qld), rr 209, 640

Aronis v Aronis & Ors [2019] QSC 292, cited
Read v Carmody [1998] NSWCA 182, cited

Veall v Veall (2015) 46 VR 123, cited

COUNSEL:
A B Fraser KC for the applicant.

R I E Lake for the respondent.

SOLICITORS:
Robbins Watson Solicitors for the applicant.

John P Bussa & Co Solicitors for the respondent.

Pursuant to r 640 of the Uniform Civil Procedure Rules 1999 application is made for an order that the respondent, as the executor of the will of her deceased grandmother,…

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 Uscinski

Details

AGLC: Re Uscinski [2024] QSC 131
Case: [2024] QSC 131
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of Re Uscinski involved an application to the Queensland Supreme Court concerning the validity of a will executed by Ille Uscinski in 2018. The applicant, who is not explicitly named in the text, sought orders for the respondent to bring the grant of probate into the registry and initiate a proceeding for a grant in solemn form. The basis of the application was the contention that Uscinski lacked testamentary capacity at the time of executing the will and did not know or approve of its contents. The respondent opposed the application, arguing that the applicant's delay in bringing the application precluded the Court from making an order under rule 640 of the Uniform Civil Procedure Rules 1999 (Qld).

The legal issues that arose for determination by the Court included whether there was a triable issue regarding the testatrix’s testamentary capacity and whether the applicant's delay in bringing the application was justified. The Court had to assess the merits of the applicant's claims in light of the procedural delays and consider whether the application could proceed despite the passage of time since the will was executed. The respondent contended that the delay was significant and that no triable issues were raised by the applicant's submission.

The Court found that there were triable issues concerning the testatrix’s testamentary capacity and that the delay by the applicant did not preclude the Court from considering the application. Consequently, the Court ordered the respondent to bring the original grant of probate into the registry and to commence a proceeding for a grant of probate in solemn form. Additionally, the Court granted leave for the applicant to issue notices of non-party disclosure to relevant parties and directed that the applicant expeditiously disclose any documents received in response to those notices. These orders facilitated the continuation of the proceedings to determine the validity of the will and the testatrix’s testamentary capacity at the time of its execution.

Orders

Orders of the court

1. The respondent shall bring the original grant of probate of the will of Ille Uscinski dated 23 January 2018 in common form issued on 17 October 2022 into the registry within 7 days.

2. The respondent shall commence a proceeding by way of claim and statement of claim seeking a grant of probate of the will dated 23 January 2018 in solemn form within 28 days.

3. It is directed that Part 2 of Chapter 7 of the UCPR applies to this proceeding by the applicant being granted leave to issue notices of non-party disclosure to Queensland Family Law Practice and Greenslopes Private Hospital substantially in the form set out in exhibits SDP-1 and SDP-2 to the affidavit of Sean Powell affirmed on 30 May 2024, subject to the periods of disclosure being 1 July 2016 to 18 November 2021 and being in relation to the will dated 23 January 2018.

4. The applicant is to expeditiously disclose copies of any documents received pursuant to the abovementioned notices to the respondent by way of disclosure in the Contested Proceedings.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Uscinski [2024] QSC 131
PARTIES:	SALLY KAI LAWRENCE (applicant) v KATHERINE SCARLETT ROSE MOYNIHAN AS EXECUTOR OF THE ESTATE OF ILLE USCINSKI (respondent)
FILE NO:	BS No 10954 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2024
JUDGE:	Copley J
ORDERS:	1. The respondent shall bring the original grant of probate of the will of Ille Uscinski dated 23 January 2018 in common form issued on 17 October 2022 into the registry within 7 days. 2. The respondent shall commence a proceeding by way of claim and statement of claim seeking a grant of probate of the will dated 23 January 2018 in solemn form within 28 days. 3. It is directed that Part 2 of Chapter 7 of the UCPR applies to this proceeding by the applicant being granted leave to issue notices of non-party disclosure to Queensland Family Law Practice and Greenslopes Private Hospital substantially in the form set out in exhibits SDP-1 and SDP-2 to the affidavit of Sean Powell affirmed on 30 May 2024, subject to the periods of disclosure being 1 July 2016 to 18 November 2021 and being in relation to the will dated 23 January 2018. 4. The applicant is to expeditiously disclose copies of any documents received pursuant to the abovementioned notices to the respondent by way of disclosure in the Contested Proceedings.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant seeks orders that the respondent bring into the registry the grant of probate in common form, and start a proceeding for a grant in solemn form, under r 640 of Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the applicant submits that the testatrix did not have testamentary capacity at the time the will was executed in 2018 and that the testatrix did not know or approve of the contents of that will – where the respondent submits that there are no triable issues raised by the applicant and that the Court would not make an order under r 640 UCPR due to the delay by the applicant to bring an application – whether there is a triable issue with respect to the testatrix’s testamentary capacity – whether the applicant’s delay is explained Uniform Civil Procedure Rules 1999 (Qld), rr 209, 640 Aronis v Aronis & Ors [2019] QSC 292, cited Read v Carmody [1998] NSWCA 182, cited Veall v Veall (2015) 46 VR 123, cited
COUNSEL:	A B Fraser KC for the applicant. R I E Lake for the respondent.
SOLICITORS:	Robbins Watson Solicitors for the applicant. John P Bussa & Co Solicitors for the respondent.