State Reporting Bureau

Transcription

1 [aoe>6]<2>sc410 State Reporting Bureau Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIES ISSUED State Reporting Bureau SUPREME COURT OF QUEENSLAND Date: 5 December, 2006 CIVIL JURISDICTION JONES J No 246 of 2006 MARK FREDERICK LEACH and STEPHEN LEACH (as personal representatives of the estate of Irene Clare Leach) Applicants and JEFFERY FRANCIS LEACH Respondent No 247 of 2006 STEPHEN LEACH (as personal representative of the estate of Alan John Leach) Applicant and JEFFERY FRANCIS LEACH Respondent CAIRNS..DATE 29/11/2006 VARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal iffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 h Floor, The Law Courts, George Street, Brisbane, Q Telephone: (07) Fax: (07)

2 T8/LET(CNS) M/T CNS1/2006 (Jones J) HIS HONOUR: This is an application pursuant to rule 626 of 1 the Uniform Civil Procedure Rules to set aside a caveat lodged against the granting of probate of the will of Irene Clare Leach. Irene Clare Leach died on the 17th of March 2006 survived by 10 four sons, Alan Leach, Kevin Leach, Brian Leach and Mark Leach. She executed a will on 10 January 1999 leaving to her son Alan specified furniture and a quarter share of the residuary estate. The other three sons shared in the residuary estate also. 20 The caveator (respondent) is the son of Alan and thus the grandson of the testatrix. He received a legacy of specified items of furniture. He also subsequently inherited, through the will of his father who died a short time later, part of 30 the legacy which his father received under the will. The caveat was lodged on the 15th of June 2006 but did not specify any grounds upon which it was lodged. A subsequent notice from the Court to do so resulted in the basis of the 40 caveat being detailed as follows: "The interest I claim in the estate is: (contesting the will). I require the alleged will made earlier, which was revoked, propounded by the applicant to be proved in solemn form of law. This is on the ground that I am one of Irene Clare Leach's grandsons who cared and lived with her for a period of 16 years."

3 T8/LET(CNS) M/T CNS1/2006 (Jones J) In the affidavit material filed and relied upon by the caveator to support this he refers particularly to details of the service that he rendered to his grandmother during that period of time. In an earlier hearing I indicated to him that if he wished to make a claim in respect of those matters it would be necessary for him to claim, pursuant to the Succession Act, further and better provision from her estate. But that was not-a ground which would give rise to maintaining a caveat against the administration of the estate. In the most recent affidavit filed on behalf of the caveator, filed on the 27th of November 2006, the deponent again refers to the assistance that he gave to his grandmother, but he adds, in Exhibit JFL-08, his own opinion that his grandmother suffered from a personality disorder, and again in Exhibit JFL-09 that she was a person of unsound mind. The basis for the latter lay opinion was because there was some inconsistency between the will now sought to be propounded and an earlier will which the testatrix made at the Office of the Public Curator. In respect of the opinions about the mental capacity of the testatrix I will have no regard, because it is not supported by any professional opinion, nor supported by any details of behaviour which might enliven the suspicion that the testatrix was of other than sound mind when she executed her will in the presence of two witnesses. 3

4 T8/LET(CNS) M/T CNS1/2006 (Jones J) The further matter which appears to arise in respect of this 1 matter, as well as in relation to the caveat lodged in respect of the administration of the estate of his late father, the deponent seeks some benefit for the twin daughters of his aunt who died in This, again, is a misconceived notion, and it has no bearing on the validity of the will of Irene Leach. 10 It requires no further discussion. 28. *

5 D.l T9-10/MNH(CNS) M/T CNS1/2006 (Jones J) Rule 626 provides that a Court may set aside a caveat if the Court considers that the evidence does not: (a) Show that the caveator has an interest in the estate or a reasonable prospect of establishing an I interest; or (b) raise doubt as to whether the grant ought to be made. There is nothing in the material lodged by the caveator which suggests that there was any impediment in the execution of the will, nor that there was any concern about the capacity of the applicant when she executed the will on the 10th of January The comments about unsoundness of mind or personality disorder appear, on their face, to have related to a period of time shortly before the testatrix's death but in any event it is not a matter, given the manner in which it is raised, to which I would pay any regard. That being the case, I am satisfied that no grounds have been made out for the lodging of the caveat and I propose therefore to order that it be removed. HIS HONOUR: Having found that the basis for lodging the caveat is entirely misconceived, and being aware also that the caveator is likely to receive some benefits from the estate of his late father, I see no reason why the estate of Irene Leach 5

6 D.l T9-10/MNH(CNS) M/T CNS1/2006 (Jones J) should be burdened with the costs that have been occasioned by 1 the lodging of the caveat. My orders will be: 1. that the caveat lodged on the 15th of June 2006 be 10 removed. 2. that the caveator pay the applicant's costs of and incidental to the application to be assessed on a standard basis. 20 In relation to application number 247 of 2006, here too is an application pursuant to rule 626 of the Uniform Civil Procedure law for the removal of a caveat lodged on the 15th 30 of June The grounds upon which the caveator (respondent) sought to uphold the caveat are stated to be: "The interest I claim in the estate is 'contesting the will'. I require the will made 40 earlier, which was revoked, of Mr Alan John Leach propounded by the applicant to be proved in solemn form of law. This is on the ground that I am one of Alan Leach's sons". Alan Leach died on the 4th of May He was previously 50 married to Shirley Leach whom he divorced in There were four children of their union, two sons, the present applicant and the respondent Jeffery Francis Leach, who lodged the 6 60

7 D.l T9-10/MNH(CNS) M/T CNS1/2006 (Jones J) caveat. There were two daughters also, one daughter Suzette died in infancy aged five months; the other daughter Michelle, who was born on the 20th of June 1964, died on the 5th of March 2000 leaving twin daughters Hayley Taylor and Nardina Taylor, who were aged 18 years at her death. They are now 24 years of age. The affidavit filed in support of maintaining the lodging of the caveat filed by the caveator on the 24th of November 2006 does not challenge the execution of the will, which occurred on the 15th of November, 1995, nor is there any suggestion of lack of capacity in the testator or any other conduct which might affect the validity of the will. The concern raised by the caveator stems largely about some unfairness which might be occasioned to the twin daughters if they did not take, through the will, the interest of their deceased mother. However noble that cause may seem to the mind of the respondent, it is not the basis for lodging a caveat requiring the proof of the will in solemn form. There has been an alteration to the will and a serious question arises as to whether that alteration did take effect since it may not have been made in accordance with sections 10 and 16 of the Succession Act as it is currently compiled - reprint 6C. Mr Morzone, who appears on behalf of the executor, has indicated a likelihood, and indeed an expectation, that the Registrar, before granting probate of the will, will inquire 7

8 D.l T9-10/MNH(CNS) M/T CNS1/2006 (Jones J) into the validity of that amendment. Should that happen and the amendment be disallowed, then the twin daughters of Michelle will most probably take under the will. Regardless of the outcome of any such consideration, that problem as being a basis for testing the formality of the will and its validity is clearly misconceived. These matters were drawn to the attention of the respondent caveator when the matter first came before the Court on the 17th of November I am satisfied that the respondent has not shown that he has a caveatable interest, nor a reasonable prospect of establishing an interest, nor has he raised any doubt in my mind as to whether the grant order be made. For these reasons I will order that the caveat be removed. HIS HONOUR: I propose to order costs against the respondent for the reasons that he has been properly informed by solicitors in their correspondence with him, and again by myself in the matter when before the Court on the 17th of November 2006, but has elected to pursue the attempt to maintain the validity of the caveat. My orders will therefore be: 1. that the caveat lodged on the 15th of June 2006 be removed; 2. that the respondent caveator pay the applicant's costs of and incidental to this application to be assessed on a standard basis.----