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, citedCOUNSEL: 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,…
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- AGLC
- Re Uscinski [2024] QSC 131
- Case
- [2024] QSC 131
- Decision Date
CaseChat Overview and Summary
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
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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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