SUPREME COURT OF QUEENSLAND
CITATION:
Ruskey-Fleming v Cook [2013] QSC 142
PARTIES:
SHARYN MAUREEN RUSKEY-FLEMING
(plaintiff)
v
DONALD RADFORD COOK
(defendant)FILE NO:
BS1647 of 2012
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
3 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
11 April 2013
JUDGE:
Mullins J
ORDER:
1. The plaintiff’s claim is dismissed.
2. The court pronounces against the force and validity of the alleged will of the late Harold Radford Cook dated 8 June 2007.
3. The court pronounces in solemn form of law for the force and validity of the last will of the late Harold Radford Cook dated 6 March 2000.4. The proceeding is adjourned to a date to be fixed for further submissions on consequential orders and the costs of the proceeding.
CATCHWORDS:
SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where the testator executed wills in 2000 and 2007 – where the testator’s daughter seeks to propound the 2007 will – where the testator made the 2007 will at age 91 years when suffering from numerous illnesses and cognitive decline – where the testator experienced episodes of restlessness, confusion, wandering and disorientation – where the testator understood that the 2007 will was what his daughter wanted – where it was not apparent the testator could explain why changes were being made to the 2000 will by adjusting the proportions in which two real properties were given to his son and daughter – whether the testator’s cognitive decline prevented his understanding how he was disposing of his estate by the 2007 will – whether the testator had testamentary capacity
Bailey v Bailey (1924) 34 CLR 558, followed
Banks v Goodfellow (1870) LR 5 QB 549, followed
Frizzo v Frizzo [2011] QCA 308, considered
Kerr v Badran [2004] NSWSC 735, considered
Pates v Craig [1995] NSWSC 87, consideredCOUNSEL:
D J Morgan for the plaintiff
L J Nevison for the defendantSOLICITORS:
Gleeson Lawyers for the plaintiff
The Estate Lawyers for the defendant
Mr Harold Cook (the testator) who was known as Bill died on 13 October 2007 aged 91 years. The death certificate shows that the cause of death was acute respiratory failure, but that the testator had long term chronic obstructive airways disease (COAD). He is survived by his daughter who is the plaintiff (Sharyn) and his son who is the defendant (Don). Sharyn has three children, but Don has no children.
The testator made a will on 8 June 2007 (the 2007 will) which the plaintiff seeks to propound. The defendant puts in issue whether the testator had testamentary capacity or knew and approved the contents of the 2007 will. The defendant seeks to propound the will made by the testator on 6 March 2000 (the 2000 will).
The parties prepared a trial bundle of three volumes of documents (exhibit 1). This comprised the death certificate, the 2000 will, two draft wills prepared in 2006, the…
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- AGLC
- Ruskey-Fleming v Cook [2013] QSC 142
- Case
- [2013] QSC 142
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances surrounding the making of the 2007 will, including Mr Cook's health and mental state. It noted that Mr Cook had executed a will in 2000 and that the 2007 will altered the proportions in which two real properties were given to his son and daughter. The court was particularly concerned with whether Mr Cook understood the changes he was making and why they were being made. While it was clear that Mr Cook understood the 2007 will was what his daughter wanted, it was not evident that he could explain the changes to the 2000 will. The court also highlighted episodes of restlessness, confusion, wandering, and disorientation experienced by Mr Cook. Ultimately, the court concluded that Mr Cook's cognitive decline prevented him from understanding how he was disposing of his estate by the 2007 will, and therefore, he lacked testamentary capacity.
Based on its findings, the court dismissed the plaintiff's claim and declared the 2007 will invalid. It confirmed the validity of Mr Cook's 2000 will and directed that further submissions on consequential orders and the costs of the proceeding be made at a later date. The court's decision underscores the importance of testamentary capacity and soundness of mind, memory, and understanding when making a will.
Orders
Orders of the court
1. The plaintiff’s claim is dismissed.
2. The court pronounces against the force and validity of the alleged will of the late Harold Radford Cook dated 8 June 2007.
3. The court pronounces in solemn form of law for the force and validity of the last will of the late Harold Radford Cook dated 6 March 2000.
4. The proceeding is adjourned to a date to be fixed for further submissions on consequential orders and the costs of the proceeding.
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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