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Stott v Lyons[2006] QSC 135






No BS1709 of 2006










DATE 16/05/2006


HIS HONOUR:  This is an application by the widow of John Patrick Stott (deceased) who died on the 7th of October 2005.  The application is brought pursuant to Rule 640 of the Uniform Civil Procedure Rules and seeks orders, first, that the executors of the last will of the deceased and a codicil thereto bring the grant of probate in common form of that will and codicil issued to them on 5 December 2005 into the Registry.

The application as amended further seeks orders that a Mr Timothy Clifton Whitney be directed to commence a proceeding claiming a grant of probate in solemn form of the will and codicil and certain other consequential orders relating to Mr Whitney.  Mr Whitney has not been made a respondent to the application and although it appears he is willing to act as an administrator that is not the same thing as ordering him to bring proceedings for probate in solemn form.

He is a person with no interest in the estate - indeed, he has been selected by the applicant for that reason - and it seems to me that I have no power to order him to become the plaintiff in such an action when he is not a party to these proceedings.  In saying that I do not mean to suggest that I would have power to do so were he a party, but it seems to me quite clear that I do not have such a power when he is not a party.

I drew that matter to the attention of counsel for the applicant, Mr Mullens, and the submission was that if I were of that view then the relief sought in paragraphs 2 to 6 would not be pressed.  However, the substantive relief required was that sought in paragraph 1, that is, the requirement for the will to be brought in to the Registry. 

As one can observe from reading Rule 640 a consequence of the order being made under subrule (1) is that the personal representative must start a proceeding for a grant in solemn form and that is the result which, as I understand it, the applicant seeks to achieve in the event that I be against the submission in relation to paragraphs 2 to 6 of the application.

Rule 640 provides by the first two subrules:

640 Proof in solemn form

(1)If the court has made a grant in common form of probate or of administration with the will, any person who claims to have a sufficient interest in the administration of the estate may apply to the court for an order for the personal representative to bring the grant into the registry.

(2)However, the court must not make the order unless it is satisfied the applicant has an interest in the administration of the estate, or a reasonable prospect of establishing an interest in the administration of the estate.

In the circumstances advanced in this case the applicant has sought to demonstrate that there are grounds for believing that an action for probate in solemn form of the last Will and codicil would fail.  She seeks to do so under subrule (1) by evidence that there existed at the time of those documents' execution a triable issue as to the capacity of the testator to make them and also a triable issue as to the testator's want of knowledge or approval of the will.

It is submitted that this is all that must be shown for the purposes of this application subject, of course, to subrule (2), and that it is sufficient for the applicant to show a triable issue on these questions.  I am prepared to proceed on the assumption that this submission is correct.

At first I was minded to go into the evidence regarding those matters at the time of the execution of the documents in some detail.  However, given the matters that I have just referred to, together with the provisions of subrule (2), it seems to me that that is unnecessary.  I should say, however, that the evidence regarding the absence of capacity of the testator and absence of knowledge or approval of the will seems to me quite flimsy.  It is true, as Mr Mullens points out, that there is controversy between the parties about those matters and that there is a conflict of word and word to some extent.  However, the mere fact that there is such a conflict does not seem to me to be necessarily the final issue.

My impression of the evidence advanced on behalf of the applicant is that it is flimsy.  If this were a summary judgment application one might use the word "shadowy."  It is a situation where one might consider imposing a condition as to payment into Court were it such an application, or if it were an application by a defendant for summary judgment, a condition as to providing security for costs.

I need not consider those matters, however, as I have come to the conclusion that the application is to be resolved under Rule 640(2).  That requires the applicant to establish an interest in the administration of the estate or a reasonable prospect of establishing an interest in the administration of the estate.

The applicant met the deceased in 2001 and a relationship with him was formed.  It led to the deceased divorcing his wife and to his marrying the applicant in early August 2005.  He had apparently made wills prior to that date but they are not in evidence and were, of course, revoked by his marriage.  The position then at the time of the marriage was that if the applicant had died shortly after the marriage there would have been an intestacy. 

Toward the end of August, I think on the 23rd and 25th of August, the testator made fresh wills.  That on the 23rd of August left his estate substantially to the children of his first marriage.  No provision was made in it for his new wife, although there is evidence that he had, while living, made such provision himself.

The two wills made in August were identical but the second of them was executed before different witnesses because the testator's solicitor, Mr Lyons, had been a witness on the first occasion and formed a view that there might be some problem arising from that.

Subsequently, the testator made a further will in September and again the same thing happened.  It was initially witnessed by Mr Lyons and then re-executed two days later with other witnesses.  There was a change made between the August and September wills in that instead of the property being left to the testator's children, a trust was established of which they were beneficiaries (though it was, I think, a discretionary trust).

Mr Lyons was the trustee.  Shortly afterwards, a codicil was executed by which Mr Gregory Francis Stott, the testator's brother, was added as a trustee apparently because Mr Lyons had a bout of ill health.  The will was reconfirmed, of course, at that time. 

The applicant's position is that she is a person who either has an interest in the administration of the estate or a reasonable prospect of establishing an interest in the administration of the estate because she is the person who would take upon an intestacy.

I am satisfied that if the applicant showed unequivocally that she is the person who would take upon an intestacy, that would constitute an interest for the purposes of the rule.  However, because of the multiple wills, the matter is not so simple. 

If the applicant were successful on this application, the executors would be required to prove the September will and codicil in solemn form.  If they failed to do so, the position would be that the August will would stand as the last will and testament of the deceased.

The applicant took no interest under that will.  Consequently, in order to establish any interest, she must demonstrate not only that the executors would fail in proving the September will but also that there is a reasonable prospect of a finding that the August will was invalid. 

To undertake that task, the applicant pointed to evidence in support of the two aspects of incapacity and want of knowledge or approval.  She deposed herself as to the lack of concentration of the testator in his final weeks - headaches, statements which she made about lacking control over his body, depression, crying, nausea, and what she described as delusions. 

She also referred in support of the view that there was a want of knowledge or approval to the testator's omission to read the will, and to the fact that it was not read to him.  Reliance was placed on an opinion by an old friend of the testator that he would never have signed a will containing what is clause N1 of the will which confers a power amongst a long list of powers on the trustee to transfer trust property to himself in his personal capacity. 

Whether that opinion was technically admissible, I do not pause to consider.  It seems to me to carry little weight, for the clause in question appears simply as one of a large number of standard form clauses and does not seem such as to occasion any particular alarm.  As Mr Fraser pointed out, it is similar to a clause which was contained in a trust inter vivos entered into by the testator a couple of years earlier. 

Evidence was given by the applicant that an important aspect of the testator's ill health, his depression, resulted from his being given a drug called Interferon to treat his leukaemia and possibly in relation to his hepatitis.  The evidence seems undisputed that that treatment began with a small dose administered, or at least prescribed, by Dr Durrant on the 19th of August 2005.  That was four days and six days before the two wills of August.

The evidence of the applicant and Mr Butler put together rather suggests that the depression did not have any substantial onset until the 27th of August, which was after the wills were executed.  And that is confirmed by the evidence of Dr Durrant who indeed on the basis of having seen the testator frequently throughout August and September 2005, observed him to present and behave as "astute, lucid and aware of what was going on around him".

Dr Durrant further testified that the deceased comprehended the issues concerning his illness and disease more readily than many patients whom he saw.  He thought that the deceased remained mentally acute and aware until the last two days of his life, that is the 5th and 6th of October.  Dr Durrant never observed any behaviour or any mental state consistent with the deceased being delusional or confused or disorientated.  He never had any complaints of such condition from the deceased.  He did prescribe an anti-depressant for the deceased on the 30th of August and recognised that Interferon may cause or contribute to depression. 

The Rule requires the demonstration of a reasonable prospect of establishing an interest in the administration of the estate.  To establish such an interest, the applicant must show a reasonable prospect of a finding that the August will was invalid on the assumption, of course, that the September one be set aside; or at least of demonstrating that on an application for probate in solemn form of such a will, an opponent of the application would succeed - in other words, that a proponent of the August will would not be able to satisfy the requirements necessary to obtain probate of it, and that the will would be held, in fact, to be invalid.  Only if the will be invalid can the intestacy interest of the applicant take effect.

On all the evidence, I have come to the conclusion that the applicant does not have a reasonable prospect of so doing.  Consequently, it is my opinion that the application should be dismissed. 


HIS HONOUR:  The executors have succeeded and seek an order for their costs on the indemnity basis and the beneficiaries seek an order for their costs.

No foundation has been shown for the making of an order upon the indemnity basis.  I would not make such an order.

As far as the beneficiaries are concerned, it seems to me that the usual rule of one set of costs in a will case, where the executors are in a position to uphold the will and there is no conflict between them and the beneficiaries, ought to apply.  I do not think that the mere fact that the beneficiaries were served is sufficient to warrant a departure from that rule.

The applicant makes no submissions regarding the executors' costs other than the costs thrown away by two adjournments, one on the 8th of March 2006 and the other on the 27th of March. 

As regards to the former, it seems to me on the material and on what I have been told from the Bar Table that neither side was really in a position to proceed and that consequently there should be no order as to the costs thrown away on that occasion.

As regards the costs thrown away on the 27th of March, the applicant submits that they were thrown away because of the late service of an affidavit by Mr Lyons deposing to the existence of the earlier wills.  Although there had been an earlier letter asserting the existence of such wills, no affidavit had been provided regarding that matter.  It seems to me that there is force in that submission and that the adjournment was necessitated by that late affidavit.

Consequently, the orders for costs will be:

  • Order the applicant to pay the executors' costs of the application, excluding reserved costs, to be assessed.
  • Order the executors to pay the applicant's costs thrown away by the adjournment on the 27th of March 2006.

Editorial Notes

  • Published Case Name:

    Stott v Lyons & Stott

  • Shortened Case Name:

    Stott v Lyons

  • MNC:

    [2006] QSC 135

  • Court:


  • Judge(s):

    Fryberg J

  • Date:

    16 May 2006

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