Theophanous v Gillespie - [2002] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

Theophanous & Ors v Gillespie [2002] QCA 117

PARTIES:

MARLISS KAYE THEOPHANOUS
BENJAMIN CYRIL GILLESPIE
NICOLE ANN GILLESPIE
ANNA KAREENA KIVIRANTA
(as executors of the Will of Cyril Bertram Gillespie deceased)
(plaintiffs/respondents)
v
DEREK LEONARD GILLESPIE
(defendant/appellant)

FILE NO/S:

Appeal No 6300 of 2001
SC No 4022 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2002

JUDGES:

Davies and McPherson JJA and Byrne J
Separate reasons of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs to be assessed on an indemnity basis

CATCHWORDS:

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY - where testator was terminally ill - where evidence of independent witnesses - whether the testator lacked testamentary capacity

PROCEDURE - COSTS - APPEALS AS TO COSTS - JURISDICTION TO ENTERTAIN - where no leave obtained from the trial judge - whether the appeal was incompetent

Supreme Court Act 1995 (Qld), s 253

Re Golden Casket Art Union Office [1995] 2 QdR 346, followed

COUNSEL:

P W Hackett for the appellant
W Sofronoff QC, with D R Murphy, for respondents

SOLICITORS:

A B Douglas & Associates for the appellant
McCullough Robertson for respondents

DAVIES JA: This is an appeal against a judgment given in the Supreme Court on 14 June 2001. The action in which judgment was given was one by four of the five executors of the will of Cyril Bertram Gillespie, dated 24 August 1998, to prove that will in solemn form. The testator died on 15 September 1998 aged 57 years. He had been suffering from cancer for some time. The defendant in the action, the present appellant was the other executor of that will. The appellant and three of the four respondents (Marliss, Benjamin and Nicole) are adult children of the testator by his marriage. The other respondent (Anna) is a woman who, at the time of the testator's death and for some years before, had been his de facto wife.

The appellant opposed the grant of probate on the basis that the testator lacked testamentary capacity on 24 August 1998. The appellant propounded an earlier will dated 24 April 1998. The difference between the two wills, unsurprisingly, is that the appellant received substantially less under the second than under the first.

There was no issue between the parties as to the testator's testamentary capacity on 24 April 1998. However the appellant asserted at the trial that his mental condition deteriorated by or in August 1998 such that by 24 August, he was not of testamentary capacity.

In addition to these two wills, the testator also made wills in 1998 on 11 and 17 August. Under these wills also the appellant received substantially less than under the will of 24 August. Consequently the appellant's case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Theophanous v Gillespie

Details

AGLC: Theophanous v Gillespie [2002] QCA 117
Case: [2002] QCA 117
Decision Date: 26 March 2002

CaseChat Overview and Summary

In Theophanous v Gillespie, the deceased's estate was the subject of a dispute concerning the validity of the testator's will. The case was heard in the Queensland Supreme Court. The primary issue was whether the testator, who was terminally ill, had the testamentary capacity to make the will in question. This involved examining the soundness of the testator's mind, memory, and understanding at the time of the will's creation.

The court had to determine if the testator possessed the necessary mental capacity to understand the nature and effect of making a will. It assessed the evidence provided by independent witnesses, who testified about the testator's condition and mental state. The court also needed to decide whether the appeal was competent in light of the absence of leave from the trial judge to appeal the costs. This jurisdictional matter was resolved by referring to relevant sections of the Supreme Court Act 1995 (Qld) and precedents such as Re Golden Casket Art Union Office.

The court concluded that the testator did have the requisite testamentary capacity, and the will was valid. It further held that the appeal regarding the costs was incompetent due to the failure to obtain leave from the trial judge. As a result, the appeal was dismissed, and the respondents were awarded costs to be assessed on an indemnity basis.

Orders

Orders of the court

Appeal dismissed with costs to be assessed on an indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Theophanous & Ors v Gillespie [2002] QCA 117
PARTIES:	MARLISS KAYE THEOPHANOUS BENJAMIN CYRIL GILLESPIE NICOLE ANN GILLESPIE ANNA KAREENA KIVIRANTA (as executors of the Will of Cyril Bertram Gillespie deceased) (plaintiffs/respondents) v DEREK LEONARD GILLESPIE (defendant/appellant)
FILE NO/S:	Appeal No 6300 of 2001 SC No 4022 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2002
JUDGES:	Davies and McPherson JJA and Byrne J Separate reasons of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed with costs to be assessed on an indemnity basis
CATCHWORDS:	SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY - where testator was terminally ill - where evidence of independent witnesses - whether the testator lacked testamentary capacity PROCEDURE - COSTS - APPEALS AS TO COSTS - JURISDICTION TO ENTERTAIN - where no leave obtained from the trial judge - whether the appeal was incompetent Supreme Court Act 1995 (Qld), s 253 Re Golden Casket Art Union Office [1995] 2 QdR 346, followed
COUNSEL:	P W Hackett for the appellant W Sofronoff QC, with D R Murphy, for respondents
SOLICITORS:	A B Douglas & Associates for the appellant McCullough Robertson for respondents