Ruskey-Fleming v Cook

[2013] QSC 142

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, considered

COUNSEL:

D J Morgan for the plaintiff
L J Nevison for the defendant

SOLICITORS:

Gleeson Lawyers for the plaintiff
The Estate Lawyers for the defendant

1. 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.

1. 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).

1. 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…