Wood v Trudinger; in the will of

SUPREME COURT OF QUEENSLAND

CITATION:

Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger [2017] QSC 245

PARTIES:

GEOFFREY WOOD

(first applicant)

LOIS MARGARET TRUDINGER

(second applicant)

v

DANIEL ALAN TRUDINGER

(respondent)

FILE NO:

BS10622 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2017

JUDGE:

Brown J

ORDER:

The order of the court is that:

1.    The application be dismissed.

2.    The applicant and respondent be paid their costs out of the estate of Alan Stewart Trudinger on an indemnity basis.

3.    Pursuant to s 6(1) of the Succession Act 1981 (Qld) the Will executed on 15 May 2015 be granted probate subject to the normal requirements of the Registrar.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – dispute that draft will purports to state the testamentary intentions of the deceased – whether Court satisfied that deceased had testamentary capacity when giving instructions for draft will – whether court satisfied that deceased intended draft will to operate as his Will

Succession Act 1981 (Qld)

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow
Briginshaw v Briginshaw (1938) 60 CLR 336
Fast v Rockman [2013] VSC 18
Konui v Tasi & Anor [2015] QSC 74
Le Bon v Lili; will of Klara Lane [2013] VSC 431
Lindsay v McGrath [2015] QCA 249
Parker v Felgate (1883) 8 PD 171

Re Spencer (deceased) [2015] 2 Qd R 435

COUNSEL:

A Stobie for the second applicant

D Skennar for the respondent

SOLICITORS:

Beenleigh Legal Solicitors for the applicant

Quinn & Scattini Lawyers for the respondent

1. This is an application for a declaration pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”) that a document dated 18 February 2016 which is Exhibit GT 2 to the affidavit of Graham Trudinger[1] forms the will of the late Alan Stewart Trudinger (“the testator”) who died on 19 February 2016.  The application is opposed by the second respondent, Daniel Alan Trudinger, the testator’s son. 

   [1]CFI26.

Background

1. The testator was 65 years old when he passed away.  In 2015 he was diagnosed with cancer.  Following his diagnosis he made a will dated 15 May 2015.[2]  That will was properly executed and there is no issue that he had capacity at the time of executing that will.  The will instructions in relation to that will which are undated are also attached to the affidavit of Ms Ceric and were signed by the testator.

   [2]Exhibit A to the affidavit of E Ceric, CFI8.

1. The will of 15 May 2015 appointed Lois Margaret Trudinger (“Lois Trudinger”) to be his executor with Peter William Trudinger (“Peter Trudinger”) to be the alternate executor if Ms Trudinger predeceased him.  The will provided:

(a)      For Peter Trudinger to be given two motor vehicles, a 1974 Citroen DS Special and a 1981 Mercedes Benz 280CE;

(b)     For the sum of $250,000 to be paid to his son,…