Sadler v Eggmolesse

[2013] QSC 40

SUPREME COURT OF QUEENSLAND

CITATION:

Fay Margaret Sadler v Timothy Eggmolesse [2013] QSC 40

PARTIES:

FAY MARGARET SADLER
(applicant)
v
TIMOTHY EGGMOLESSE
(respondent)

FILE NO/S:

10439 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

1 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2013

JUDGE:

Atkinson J

ORDER:

1. Leave be granted pursuant to s 22 of the Succession Act 1981 (the Act) for the applicant to bring an application pursuant to s 21 of the Act for a will to be made for Matthew Scott Eggmolesse.

2. Pursuant to s 21 of the Act a will be authorised to be made for Matthew Scott Eggmolesse in terms of the draft will which is exhibit LC-2 to the affidavit of Loan Thuc Chow.

3.   The applicant’s costs of and incidental to the application on the indemnity basis be paid out of the assets of Matthew Scott Eggmolesse.

4.   The respondent’s costs of and incidental to the application be paid from the estate of Matthew Scott Eggmolesse in the sum of $2,000 including GST.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant’s son was paid compensation for injuries suffered at birth which led to significant mental and physical impairments during his life – where the applicant’s son has been cared for almost exclusively by the applicant – where the applicant seeks a statutory will to be made on behalf of her son – whether the applicant’s son lacks testamentary capacity – whether the proposed statutory will is or may be a will the applicant’s son would make if he were to have testamentary capacity

Succession Act 1981 (Qld), s 21, s 21(2)(a), s 21(2)(b), s 21(2)(c), s 22, s 23, s 24, s 24(d), s 41
Succession Amendment Act 2006 (Qld)

McKay v McKay [2011] QSC 230, followed
Re D(J) [1982] Ch 237, not followed
Re Fenwick, application of J R Fenwick and Re Charles [2009] NSWSC 530, applied

COUNSEL:

R M Treston for the applicant

B V McGowan (sol) for the respondent

SOLICITORS:

Walsh Halligan Douglas Lawyers for the applicant

Cranston McEachern Lawyers for the respondent

This is an application made pursuant to Part 2 Division 4 subdivision 3 of the Succession Act 1981 for the making of a will for a person without testamentary capacity.

The Succession Act provides for a two stage process, first of all that an application should be made for leave to apply for such an order and then an application for an order. That process may be made in one of two ways. An application for leave may be made first separately, particularly if not all the evidence necessary to support the application itself is then available, or, as has been done here, the application for leave may be made at the same time as the substantive application.

That is the appropriate course when all…