Hayes v Hayes[2008] QSC 6

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 1137 of 2006

BRISBANE 

..DATE 29/01/2008

ORDER

HER HONOUR:  This is an application for summary judgment by a defendant, pursuant to Rule 293 of the Uniform Civil Procedure Proceedings Rules, UCPR.

Rule 293, like Rule 292, which applies to plaintiffs, sets out the tests that must be applied by the Court in determining whether or not summary judgment should be given.  As the Court of Appeal held in Deputy Commissioner of Taxation v Salcedo  [2005] QCA 227, it is the test propounded in those Rules, rather than the previous procedure of the Court under the Rules of the Supreme Court that must be satisfied.

Accordingly, pursuant to sub-rule 293(2) if the Court is satisfied firstly that the plaintiff has no real prospect of succeeding on all or a part of her claim and secondly, that there is no need for a trial of the claim or part of the claim, then the Court has the discretion to give judgment for the defendant against the plaintiff: see Deputy Commissioner of Taxation v Salcedo at [44].

Those Rules exist to ensure that the goal of expeditious resolution of civil proceedings at a minimum of expense is aptly met.  If there are matters in genuine dispute, of course, the matter should proceed to trial, but if it is apparent on the material that the plaintiff must fail, then it is appropriate to give summary judgment and avoid the worry and expense of litigation which has an inevitable ending.

This case has many sad aspects to it.  It concerns the Will of a man, Colin Herbert Olsen, who died on 19 October 2005 at the age of 60, having taken his own life.  The litigation concerns a Will that was made by him dated 9 June 2005.  The Will appointed his niece, who is the defendant, as his executor and major beneficiary.  The other beneficiary, as to 50 per cent of the estate, was his brother.  The plaintiff is his sister and the mother of the defendant who did not receive any benefit under the Will.  The litigation is therefore unfortunately between mother and daughter.

The plaintiff alleges, in a statement of claim and an amended statement of claim, that the deceased lacked testamentary capacity at the time he made the Will.  The question is whether or not she has any possibility of succeeding on that claim.  Unfortunately for the plaintiff the evidence unequivocally points in the other direction.

The deceased saw an experienced solicitor who had been his solicitor for a very long period of time and who knew the deceased relatively well.  He saw the deceased on 3 June 2005 where he took instructions as to what should be contained in the Will.  The deceased brought with him a small hand-written note detailing the instructions for beneficiaries to be named in the Will.  The solicitor sets out in detail what happened during that consultation.  The solicitor swears there was nothing in the deceased's demeanour that would indicate he was in any way unfit to give instructions for the preparation of the Will and there was nothing to signal to the solicitor that his mental state was anything other than the normal state he had observed over the years that the deceased had been his client.

The solicitor prepared a draft of the Will.  The deceased made minor changes to it at a second appointment and those changes were effected while the deceased remained at the office.  The Will was then properly executed.

In case there should be any doubt as to the testamentary capacity of the deceased, one turns to the medical evidence.  There is an affidavit from the deceased's general practitioner.  He had been his general practitioner for over 30 years.  He swears to various illnesses suffered by the deceased, including depression and anxiety, and the fact that the deceased was drinking quite heavily.

He deposes to the deceased being diagnosed with prostate cancer in April 2005 and the treatment which he received and the medications given to the deceased.  He saw him quite regularly during the time when the Will was made although he was not aware of the making of the Will. 

He swears that he saw him both on the 8th of June, which was the day before the Will was executed, and the 14th of June, shortly after the Will was executed.  He swears that the deceased was extremely anxious and depressed, but appeared rational and fully mentally competent.

He swears that in his opinion the deceased had the capacity to make informed decisions about his health and other matters, that although he was anxious and depressed he appeared completely lucid and rational.

All that the respondent to the application, the plaintiff in the matter, can point to is that she would like to cross-examine both the solicitor and the doctor as to those matters and there is some speculation as to what that cross-examination might prove, but as I said, all of the evidence points to the deceased having testamentary capacity.  There was no evidence before me which suggests to the contrary.

The plaintiff has been unable to put forward any evidence that the deceased lacked testamentary capacity and in those circumstances I am satisfied that the plaintiff has no real prospect of succeeding in proving that the deceased did not have testamentary capacity or that there is therefore no need for a trial of the claim and that in the circumstances.  It is appropriate to put an end to the litigation by giving judgment for the defendant against the plaintiff on the plaintiff's claim and similarly giving judgment for the defendant against the plaintiff on the defendant's counter claim and I so order.