Rose v Tomkins

[2016] QSC 216

SUPREME COURT OF QUEENSLAND

CITATION:

Rose v Tomkins & Ors [2016] QSC 216

PARTIES:

JULIA MARY ROSE as executor of the will of CHERYL MARIE JONES (deceased)

(applicant)

v
BEVAN WARREN TOMKINS

(first respondent)
and
PETER JOSEPH JONES and PAUL EDWIN JONES
(second respondents)
and
KAREN LEE SCOTT, NICOLE ANN KILPATRICK and MICHAEL WARREN TOMKINS
(third respondents)

FILE NO/S:

No 7759 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2016

JUDGE:

Dalton J

ORDER:

Application dismissed

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the first respondent and the deceased instructed a solicitor that they both wished their half-share of their home to pass to their respective children – where the solicitor prepared wills for both the first respondent and the deceased – where an application was brought pursuant to s 33(1) of the Succession Act 1981 (Qld) to rectify the deceased’s will – where the executor seeks orders which are in favour of the second respondents and against the interests of the third respondents – whether the will gave effect to the deceased’s instructions

Succession Act 1981 (Qld), s 33

Masci v Masci & Anor [2015] QCA 245, cited
Masci v Masci & Anor [2014] QSC 281, cited

Palethorpe v The Public Trustee of Queensland & Ors [2011] QSC 335, cited

COUNSEL:

C Brewer for the applicant

No appearance for the first, second and third respondents

SOLICITORS:

Cooke & Hutchinson Lawyers for the applicant

1. This is an application to rectify a will pursuant to s 33 of the Succession Act 1981 (Qld) (the Act). The deceased lady Cheryl Jones was in a de facto partnership with Mr Bevan Tomkins. He had three children from a previous marriage and she had two children from a previous marriage. They attended upon a solicitor, Ms Sophie Lever, on 13 February 2015. Ms Lever ran a firm called Inside Out Legal Services at Maroochydore. That solicitor deposes that:

   “6.     To the best of my recollection, the deceased told me that she wanted to ensure that upon the passing of both of them, a ½ share in the house would pass to her children and a ½ share in the house would pass to Mr Tomkins’ children.

   7.     To achieve that end, I told them that they could give each other the right to occupy the home until the surviving partner died or remarried, whereupon the house would be sold and each ½ share of the home property would pass to their respective children.

   8.     The deceased and Mr Tomkins agreed that they would like to ‘quarantine off the home’ and have it protected for the future so that it would eventually pass to their respective children – a ½ share to the deceased’s children and the other ½ share to Mr Tomkins children.

   9.     At the time of receiving their instructions, the deceased and Mr Tomkins were joint…