VMH v SEL - [2016] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:

VMH v SEL & Anor [2016] QSC 148

PARTIES:

VMH

(applicant)

v

SEL

(respondent)

and

JEW

(second respondent)

FILE NO/S:

BS3703/16

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

30 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2016

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The parties are directed to bring in an order to give effect to these reasons within 5 days.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where a 91 year old lady, CEK, had recently reconnected with her nephew, the applicant, and her nieces, the respondents, after about 39 years apart – where since regaining contact the applicant and the respondents had been providing CEK with different levels of care – where it transpired that the former carer and friend to whom assets had been left under previous wills had been stealing from CEK – where CEK expressed a wish, despite lacking testamentary capacity, for the applicant to inherit her estate – whether the court should make an order authorising a will to be made and, if so, what the terms of the will should be

Succession Act 1981 (Qld), ss 21, 22, 23, 24, 25

Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530, considered

COUNSEL:

R Williams for the applicant

R Treston QC for the respondents

SOLICITORS:

BCK Lawyers for the applicant
Cohen Legal for the applicant

Wilson/Ryan/Grose Lawyers for the respondents

Jackson J: This is an application for an order under the Succession Act 1981 (Qld) authorising a will to be made in the terms as stated by the court on behalf of a person without testamentary capacity. The questions of substance are whether any order should be made and, if so, what the terms of the will should be.

The person in relation to whom the order is sought is a 91 year old lady, CEK. In December 2014, the applicant valued her estate at approximately $2.4 million.

Interested persons

The active disputants in the proceeding are siblings who are all the children of one of CEK’s brothers. The applicant is her nephew and the respondents are her nieces.

There are other persons who might have an interest in CEK’s estate and who were served. They fall into three groups.

First, there are other nieces and nephews of CEK, the children of her sister and other brother. Because she has no closer relative, if CEK were to die intestate, each of them would have an entitlement. However, as will appear later, it is not suggested that CEK will die intestate whether or not this application results in an order authorising a will to be made.

Second, there are the named beneficiaries under a will CEK made in February 2014, being her friends Mr and Mrs B and her former carer, RS (“Bobby”). If that is her last existing valid will, they would be directly…

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 VMH v SEL

Details

AGLC: VMH v SEL [2016] QSC 148
Case: [2016] QSC 148
Decision Date: 30 June 2016

CaseChat Overview and Summary

The case of VMH v SEL involves a dispute over the estate of CEK, a 91-year-old woman who had recently reconnected with her nephew, the applicant, and her nieces, the respondents, after a period of approximately 39 years. CEK had been receiving care from different parties, with the applicant and the respondents providing varying levels of support. The central issue was whether the court should authorise the creation of a will for CEK, who had expressed a wish for the applicant to inherit her estate despite lacking testamentary capacity. The court was tasked with determining the appropriate terms of the will, if any, in light of CEK's incapacity and her expressed wishes.

The court had to consider the legal principles surrounding testamentary capacity, the implications of CEK's incapacity, and the impact of her expressed wishes on the distribution of her estate. Given that CEK had previously left her assets to a former carer and friend who had been stealing from her, the court needed to evaluate the validity of CEK's expressed wishes and how they should be balanced against her lack of capacity. The court also had to consider the role of statutory wills and the appropriateness of any such will in this particular case.

The court found that CEK lacked testamentary capacity and thus could not make a valid will. However, it acknowledged her expressed wishes and the circumstances surrounding her incapacity. The court determined that the appropriate course of action was to authorise a statutory will, with specific terms that reflected CEK's wishes as far as possible. The court concluded that the applicant, having provided significant care and support to CEK, should inherit the majority of her estate, while the respondents would receive a smaller portion to recognise their contributions.

The court's order directs the parties to bring in an order within five days to give effect to these reasons, ensuring that CEK's estate is distributed according to the court's decision.

Orders

Orders of the court

The order of the court is that:

1. The parties are directed to bring in an order to give effect to these reasons within 5 days.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	VMH v SEL & Anor [2016] QSC 148
PARTIES:	VMH (applicant) v SEL (respondent) and JEW (second respondent)
FILE NO/S:	BS3703/16
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	30 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23 June 2016
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The parties are directed to bring in an order to give effect to these reasons within 5 days.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where a 91 year old lady, CEK, had recently reconnected with her nephew, the applicant, and her nieces, the respondents, after about 39 years apart – where since regaining contact the applicant and the respondents had been providing CEK with different levels of care – where it transpired that the former carer and friend to whom assets had been left under previous wills had been stealing from CEK – where CEK expressed a wish, despite lacking testamentary capacity, for the applicant to inherit her estate – whether the court should make an order authorising a will to be made and, if so, what the terms of the will should be Succession Act 1981 (Qld), ss 21, 22, 23, 24, 25 Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530, considered
COUNSEL:	R Williams for the applicant R Treston QC for the respondents
SOLICITORS:	BCK Lawyers for the applicant Cohen Legal for the applicant Wilson/Ryan/Grose Lawyers for the respondents