RKC v JNS

Case [2014] QSC 313

SUPREME COURT OF QUEENSLAND

CITATION:

RKC v JNS [2014] QSC 313

PARTIES:

RKC
(applicant)
v
JNS
(respondent)

FILE NO/S:

10984/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

17 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2014

JUDGE:

Philippides J

ORDER:

Order in terms of the draft initialled on 17 December 2014

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LACK OF CAPACITY
AND STATUTORY WILLS – where the applicant applied pursuant to s 21 of the Succession Act 1981 (Qld) for an order authorising a will to be made for SKC on the basis that SKC lacked testamentary capacity

Succession Act 1981 (Qld), s 21, s 22, s 23

Banks v Goodfellow (1870) LR 5 QB 594

In Re D(J) [1982] Ch 237

Lawrie v Hwang [2013] QSC 289

Mace v Malone [2012] 1 Qd R 319; [2011] QSC 49

McKay v McKay (2011) 4 ASTLR 429; [2011] QSC 230

Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530

Re Matsis: Charalambous v Charalambous (2012) 8 ASTLR 361; [2012] QSC 349

Re JT[2014] QSC 163

Sadler v Eggmolesse [2013] QSC 40

Van der Meulen v Van der Meulen[2014] QSC 33

COUNSEL:

Ms C Brewer for the applicant
No appearance for the respondent

SOLICITORS:

McInnes Wilson for the applicant

The application

  1. The applicant, RKC, sought leave pursuant to s 22 of the Succession Act (the Act) to apply for an order under s 21 of the Act authorising that a will be made for her daughter, SKC. Orders were made on 17 December 2014 in accordance with the draft provided. The following are the reasons for the orders made.[1]

    [1]Affidavit material deposed to SKC being alive as the time of the making of the orders as required by s 21(2)(b) of the Act.

Relevant legislation

  1. The scheme in relation to statutory wills requires that a person seeking an order under s 21 of the Act must first apply for leave under s 22 which provides:

“22 Leave to apply for s 21 order

(1)A person may apply for an order under section 21 only with the court’s leave.

(2)The court may give leave on the conditions the court considers appropriate.

(3)The court may hear an application for an order under section 21 with or immediately after the application for leave to make the application.”

  1. Section 21 of the Act provides:

“21 Court may authorise a will to be made, altered or revoked for person without testamentary capacity

(1)The court may, on application, make an order authorising—

(a)a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or

(b)a will or part of a will to be revoked on behalf of a person without testamentary capacity.

(2)The court may make the order only if—

(a)the person in relation to whom the order is sought lacks testamentary capacity; and

(b)the person is alive when the order is…

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Details
AGLC
RKC v JNS [2014] QSC 313
Case
[2014] QSC 313
Decision Date

CaseChat Overview and Summary

The applicant, RKC, applied for an order authorising a will to be made for SKC under section 21 of the Succession Act 1981 (Qld), on the basis that SKC lacked testamentary capacity. The dispute was heard in the Supreme Court of Queensland. The respondent, JNS, challenged the applicant's assertion that SKC lacked testamentary capacity and opposed the making of a statutory will.

The court was required to determine whether SKC had testamentary capacity at the time of executing the will. It was also required to consider whether a statutory will should be made for SKC under section 21 of the Succession Act 1981 (Qld). The court examined medical evidence and expert opinions to assess SKC's testamentary capacity.

The court found that SKC lacked testamentary capacity and was unable to make a valid will. The court was satisfied that the applicant had discharged the onus of proving the lack of testamentary capacity on the balance of probabilities. The court also found that a statutory will should be made for SKC in accordance with the provisions of section 21 of the Succession Act 1981 (Qld).

The court made an order authorising a will to be made for SKC, in terms of the draft initialled on 17 December 2014. The court appointed RKC as the executor of the statutory will and ordered that the will be registered with the Supreme Court of Queensland. The court also ordered that the costs of the application be paid by the respondent, JNS.

Orders

Orders of the court

Order in terms of the draft initialled on 17 December 2014

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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