Wool v Marino - [2024] QSC 89

SUPREME COURT OF QUEENSLAND

CITATION:

Wool v Marino [2024] QSC 89

PARTIES:

JULIANA BARBARA WOOL

(Applicant)

v

CHARLES ANTHONY MARINO

(Respondent)

FILE NO/S:

249 of 2023

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland

DELIVERED ON:

14 May 2024

DELIVERED AT:

Cairns

HEARING DATE:

11 March 2024

JUDGE:

Henry J

ORDER:

1.   Ms Wool’s application for Erika Kaegi-Fluri’s note to her dated 6 June 2022 to be admitted to probate is dismissed.

2.   Erika Kaegi-Fluri’s will of 22 May 2020 be admitted to probate, subject to the formal requirements of the Registrar.

3.   Ms Wool’s application for maintenance and support is listed for directions to be given as to its future conduct at 9.15 am 17 May 2024.

4.   Costs reserved.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where the testator bequeathed her estate in one third shares to the RSPCA and her two friends – where the testator purposefully did not bequeath any of her estate to her daughter, the applicant – where after the death of the testator, the applicant found a note addressed from the testator, in the testator’s possessions, which left the residue of her estate to the applicant – where s 18 Succession Act 1981 (Qld) allows the court to admit a document that forms a will if it is satisfied it forms the will of the testator, despite non-compliance with legislative requirements – whether the letter written by the testator embodies the deceased testamentary intention – whether the note found was intended to form a new will of the testator and revoke the old will

SUCCESSION – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERTAKING – GENERALLY – where the testator was in cognitive decline and was emotionally volatile at the date of the note – whether the testator lacked testamentary capacity when writing the note

Banks v Goodfellow (1870) LR 5 QB 549, followed

Hatsatouris v Hatsatouris [2001] NSWCA 408, cited

Lindsay v McGrath [2016] 2 Qd R 160, cited

Re Griffith; Easter v Griffith (1995) 217 ALR 284, cited

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

Tobin v Ezekiel (2012) 83 NSWLR 757, cited

Succession Act 1981 (Qld) ss 10, 18

COUNSEL:
C Ryall for applicant

J Sheridan for respondent

SOLICITORS:
Murray & Lyons Solicitors for applicant

Marino Lawyers for respondent

Erika Kaegi-Fluri is survived by her only child, Juliana.
In her first will, made in December 2013, Erika left Juliana everything. However, Erika and Juliana fell out over the financial arrangements Juliana and her husband made for Erika to reside in Cairns with them. The ensuing litigation eventually settled, but not the estrangement it created between them. Erika moved back to Mackay and lived in a retirement village. She died in hospital in Mackay on 16 July 2022.
Erika made further formal wills in 2018 and 2020. Each excluded Juliana from any inheritance. Each explained it made no provision for…

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 Wool v Marino

Details

AGLC: Wool v Marino [2024] QSC 89
Case: [2024] QSC 89
Decision Date: 14 May 2024

CaseChat Overview and Summary

The case of Wool v Marino involved the deceased, Erika Kaegi-Fluri, who had executed a will in 2020 that excluded her daughter, Juliana Wool, from her estate. After Erika's death, Juliana discovered a note from Erika dated 6 June 2022, which appeared to be a last testamentary document, leaving the residue of Erika's estate to Juliana. Juliana applied for the note to be admitted to probate, while Erika's executor, Mr. Merino, applied for the 2020 will to be admitted. The central issues in the case were whether the note constituted a valid will, whether it revoked the 2020 will, and whether Erika had the testamentary capacity to write the note.

The court considered whether the note embodied Erika's testamentary intention, taking into account Section 18 of the Succession Act 1981, which allows the court to admit a document as a will if it is satisfied it forms the will of the deceased despite non-compliance with legislative requirements. The court examined the content of the note and other evidence, such as Erika's emotional volatility and cognitive decline at the time of writing the note. The court found that the note alone did not satisfy the requirement for Erika to intend it to form her will or alter or revoke her existing will. Additionally, the court considered Erika's mental state at the time of writing the note, finding that her emotional volatility and cognitive decline did not necessarily indicate a lack of testamentary capacity.

Based on the evidence, the court concluded that it was not satisfied that Erika intended the note to form her will or alter or revoke her 2020 will. Therefore, Juliana's application for the note to be admitted to probate was dismissed, and Mr. Merino's application for the 2020 will to be admitted to probate was granted. The court also listed Juliana's application for maintenance and support for further directions.

The court's orders were that Juliana's application for Erika's note dated 6 June 2022 to be admitted to probate was dismissed, Erika's will of 22 May 2020 be admitted to probate, subject to the formal requirements of the Registrar, and Juliana's application for maintenance and support was listed for directions to be given as to its future conduct. Costs were reserved.

Orders

Orders of the court

1. Ms Wool’s application for Erika Kaegi-Fluri’s note to her dated 6 June 2022 to be admitted to probate is dismissed.

2. Erika Kaegi-Fluri’s will of 22 May 2020 be admitted to probate, subject to the formal requirements of the Registrar.

3. Ms Wool’s application for maintenance and support is listed for directions to be given as to its future conduct at 9.15 am 17 May 2024.

4. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows the content of the note alone does not satisfy me Erika intended the note to of itself form her will or alter or revoke her existing will. Other evidence of Erika’s stated intention does not show Erika intended the note to operate without more as her will Consideration of this issue is of course not confined solely to the document’s content. Section 18(3) permits the court to have regard to any evidence relating to the way in which the document was executed and any evidence of the person’s testamentary intentions, including evidence of statements made by the person. The evidence shows that after Erika’s second husband died in 2014 she developed a significant depressive grief reaction, consumed alcohol to excess and became emotionally volatile, including to those close to her. Her tendency to emotional volatility continued thereafter. She endured loneliness, major depressive disorder and occasional suicidal ideation during a gradual cognitive decline prior to her death from heart failure, pulmonary embolism and moderate COVID-19. There was considerable variability in Erika’s comments made to others about her daughter in the closing months of her life. On the one hand she had repeated contact with medical staff, including of the Mackay Mental Health Service. In such contacts she continued to speak of the falling out and perceived betrayal by her daughter. This occurred as recently as 4 May 2022. Indeed, on that occasion she mentioned having a will and that she would not leave money behind for “any human”. Yet, on the other hand, Nelly Frey and Karl Kaegi each depose Erica was contemplating changing her will to favour Juliana after all. Ms Frey was an old friend of Erica’s who had endured a long period of rejection by Erika after an objectively inconsequential argument. She was eventually befriended again by Erika. On 13 March 2022, over lunch, Erika told Ms Frey she did not feel right about what she had done with her will and wanted to make things right with her daughter. Of her existing beneficiaries she perceived Adam Anderson and his wife abandoned her after a recent dispute over the wisdom of her continuing to drive a car. She mentioned Micael Johannsson had not contacted her in a quite a long time and she was unhappy with the RSPCA. In a later conversation between them by telephone on 16 March 2022, Erika spoke about the same topic, saying she needed to change her will and make things right. She asked if Ms Frey would accompany or assist her to go and see a solicitor to change her will. Erika mentioned to Ms Frey on two or three subsequent occasions that she needed to visit a solicitor to change her will. However, Ms Frey deposes that even though she was taking Erika to many appointments and taking her shopping they did not end up visiting a solicitor. Mr Kaegi was Erica’s first husband. He was unaware of the 2020 will’s content. Nonetheless, in a telephone conversation between him and Erika she told him Mr Johannsson did not ask after her, Mr Anderson was not her friend anymore and she was angry at the RSPCA for not looking after her dog during her hospital visits. In another telephone conversation she suggested she and Mr Kaegi must visit a solicitor in Mackay “to set things right”. That did not happen.

Decision

Reasons for decision

As with the other surrounding evidence, the evidence of Erika’s mental state, does not support the inference she intended her note to form her will. It remains an equal if not stronger inference that Erika intended the note to inform her daughter of her regret and change of heart and of her plan to reflect that by in due course making a new will. Conclusion and Orders For all of these reasons the evidence does not satisfy me, as s 18 requires, that Erika intended her note to form her will or alter or revoke her 2020 will. Juliana’s application for the note to be admitted to probate must fail. Mr Merino’s application for the 2020 will to be admitted to probate should succeed. It remains to list and hear that component of Juliana’s application by which she seeks provision for her maintenance and support. In the circumstances I will reserve costs. My orders are:1.Ms Wool’s application for Erika Kaegi-Fluri’s note to her dated 6 June 2022 to be admitted to probate is dismissed.2.Erika Kaegi-Fluri’s will of 22 May 2020 be admitted to probate, subject to the formal requirements of the Registrar. 3.Ms Wool’s application for maintenance and support is listed for directions to be given as to its future conduct at 9.15 am 17 May 2024.4.Costs reserved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wool v Marino [2024] QSC 89
PARTIES:	JULIANA BARBARA WOOL (Applicant) v CHARLES ANTHONY MARINO (Respondent)
FILE NO/S:	249 of 2023
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	14 May 2024
DELIVERED AT:	Cairns
HEARING DATE:	11 March 2024
JUDGE:	Henry J
ORDER:	1. Ms Wool’s application for Erika Kaegi-Fluri’s note to her dated 6 June 2022 to be admitted to probate is dismissed. 2. Erika Kaegi-Fluri’s will of 22 May 2020 be admitted to probate, subject to the formal requirements of the Registrar. 3. Ms Wool’s application for maintenance and support is listed for directions to be given as to its future conduct at 9.15 am 17 May 2024. 4. Costs reserved.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – where the testator bequeathed her estate in one third shares to the RSPCA and her two friends – where the testator purposefully did not bequeath any of her estate to her daughter, the applicant – where after the death of the testator, the applicant found a note addressed from the testator, in the testator’s possessions, which left the residue of her estate to the applicant – where s 18 Succession Act 1981 (Qld) allows the court to admit a document that forms a will if it is satisfied it forms the will of the testator, despite non-compliance with legislative requirements – whether the letter written by the testator embodies the deceased testamentary intention – whether the note found was intended to form a new will of the testator and revoke the old will SUCCESSION – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERTAKING – GENERALLY – where the testator was in cognitive decline and was emotionally volatile at the date of the note – whether the testator lacked testamentary capacity when writing the note Banks v Goodfellow (1870) LR 5 QB 549, followed Hatsatouris v Hatsatouris [2001] NSWCA 408, cited Lindsay v McGrath [2016] 2 Qd R 160, cited Re Griffith; Easter v Griffith (1995) 217 ALR 284, cited Re Spencer (deceased) [2015] 2 Qd R 435, cited Tobin v Ezekiel (2012) 83 NSWLR 757, cited Succession Act 1981 (Qld) ss 10, 18
COUNSEL:	C Ryall for applicant J Sheridan for respondent
SOLICITORS:	Murray & Lyons Solicitors for applicant Marino Lawyers for respondent