Bolton v Draper & Ors [1992] QSC 89

t80t TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, Tne Law Cour't.S, George Street, BRISBANE. 0. 4000 Tel. {07} 227.4360 (Copyright in this transcript is vc.:·~=d in the Crown. Copies thereof must not be ·made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME' COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No 1200 of 1990 NORMAN BOLTON (as Executor of the Estate of Cicely Harrap (Deceased)) and MOYA DRAPER and MYRTLE ALICE CRUICKSHANK and UNITING CHURCH IN AUSTRALIA QUEENSLANDSYNOD and MEALS ON WHEELS IPSWICH INC BRISBJ1,NE .. DATE 21/2/92 JUDGMENT 1 Plaintiff First Defendants· Second Defendants -- 1 of 4 -- 210292 JUDGMENT HIS HONOUR: Cicely Harrap died~ on 20 August 1989 aged 88 years. This is an action brought by her brother seeking probate incsolemn form of what appears on its face to be her last will and testament bearing date 18 July 1988. The plaintiff is named therein as sole executor and beneficiary. The action is brought primarily because the plaintiff's solicitors were also in possession of apro forma medical certificate signed by a Dr Daniels which indicated that she did not have testamentary capacity. That document is dated 10 20 14 July 1988. Dr Daniel's opinion expressed in that document was that she did not have the necessary capacity to understand the nature and extent of her property, she had the necessary capacity to understand the persons to whose claims she should have regard when making a will, she did not have the necessary 30 capacity to understand the nature and effect of a document signed as a will, and finally, she was free of any delusions which might affect her judgment. However, other material placed before me from the plaintiff, who had contact with his 40 sister, the deceased, at about the time in question, from the solicitor, Mr Flannery, who took instructions with respect to the will and was present when it was signed, and from Dr Ng who was the plaintiff's general practitioner throughout the relevant period, strongly suggested that as at the material date the plaintiff had the requisite capacity. 50 Dr Ng, in an affidavit, has sworn that he treated the deceased between April 1986 and August 1989 and that during the majority of that period she was mentally aware and alert. He said her 60 2 -- 2 of 4 -- 210292 JUDGMENT mental capacity deteriorated after her cardiovascular accident in July 1989 which was well after the date of the subject wilJ If probate was not granted of the will bearing date 18 July 1988, then the deceased's last will and testament would be the document bearing date 10 December 1984. It appointed the first defendants, Moya Draper and Myrtle Alice Cruickshank, to be executors and trustees thereof and all the property was distributed to those persons and also to the Blue Nursing Service Ipswich and Meals On Wheels Ipswich. The plaintiff's solicitors have caused all relevant material t, be served on each of the four persons and organisations made defendants to the proceedings, and each of those persons has failed to enter an appearance and has, in correspondence, indicated that no submissions would be made at the trial of thE action. In those circumstances, bearing in mind what was said by the High Court in Bailey v. Bailey (1924) 34 CLR 558, I am satisfied that prima facie a case of testamentary capacity as defined in Banks and Goodfellow (1870) LR 5 QB 549 at 565 has been made out. There is nothing in the~material to displace that prima facie caseand no one has come forward today to make any submissions to the contrary. 51 In those circumstances it seems to me that it is appropriate to grant the relief sought, namely a pronouncement in solemn form of the Will of Cicely Harrap, dated 18 July 1988, be made, and 6 c 3 -- 3 of 4 -- ' 211092 JUDGMENT that there be, in consequence, an order that a grant of probate issue subject to the formal requirements of the Registrar. 10 20 30 40 50 60 4 -- 4 of 4 --