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In the Will of Kenneth Andrew McIntyre[2022] QSC 156

In the Will of Kenneth Andrew McIntyre[2022] QSC 156

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Kenneth Andrew McIntyre [2022] QSC 156

PARTIES:

In the Will of Kenneth Andrew McIntyre, deceased

The Public Trustee of Queensland

(Applicant)

FILE NO/S:

S 1092/21

DIVISION:

Trial Division

PROCEEDING:

On the papers

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

25 July 2022

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers

JUDGE:

Crow J

ORDER:

  1. The court pronounces against the force and validity of the will of Kenneth Andrew McIntyre, deceased, dated 26 July 2020.
  2. The court pronounces for the force and validity of the will of Kenneth Andrew McIntyre, deceased, dated 10 April 2018.
  3. Subject to the formal requirements of the Registrar, an order to administer the estate of Kenneth Andrew McIntyre, deceased, according to the will dated 10 April 2018 be granted to the Public Trustee of Queensland.
  4. The Public Trustee of Queensland’s costs of these proceedings be paid from the estate of Kenneth Andrew McIntyre, deceased, on an indemnity basis.

CATCHWORDS

Walsh v Wallace [2005] VSC 124 at [34], cited.

SOLICITORS:

Official Solicitor to the Public Trustee

  1. [1]
    By a proposed application with oral hearing filed 1 June 2022, the Public Trustee of Queensland, as the executor of the estate of Kenneth Andrew McIntyre (deceased) seeks orders pronouncing against the force and validity of the will of Kenneth Andrew McIntyre dated 26 July 2020 and for an order pronouncing for the force and validity of the will of the deceased of 10 April 2018 with consequential orders.
  2. [2]
    I consider it appropriate for the application to proceed without oral hearing.
  3. [3]
    The deceased, Mr McIntyre, was born on 18 December 1937. The deceased has three adult children. The deceased divorced his spouse and commenced living in a de facto relationship with Ms Adrienne Guttridge in or about 2004. The deceased made wills on 7 July 2014, 10 April 2018 and 26 July 2020. Dr Bandara acted as Mr McIntyre’s general practitioner since January 2019. Dr Bandara observed, from June 2019, Mr McIntyre suffered from Lewy body dementia, such that by 21 January 2020, Mr McIntyre did not have capacity to make legal or financial decisions. In his report to QCAT dated 1 April 2020, Dr Bandara certified that Mr McIntyre did not have any capacity to make complex decisions for personal healthcare, lifestyle, accommodation, financial affairs and did not have capacity to understand the powers that might be exercised in his enduring power of attorney.
  4. [4]
    On 5 March 2020, Dr Morgan, geriatrician, after reviewing Mr McIntyre in the presence of his two carers, concluded that Mr McIntyre lacked testamentary capacity when he presented on 5 March 2020. On 1 June 2020 QCAT made the decision to appoint the Public Trustee as the deceased’s administrator for all financial matters. Almost two months later, on 26 June 2020, Mr McIntyre purported to execute his last will and testament.
  5. [5]
    Mr McIntyre passed away on 23 September 2020, leaving a modest estate. The executor of the last will has not come forward to propound the last will, and for obvious reasons. All the medical evidence points to the conclusion that Mr McIntyre did not have capacity when he executed his last will of 26 July 2020. There is therefore a well-founded suspicion that the latter will is invalid.[1] The penultimate will was executed on 10 April 2018 and on its face it is duly executed, contains an attestation clause and was executed in circumstances where there is confidence in its validity, namely it was executed at the Public Trustee’s Maryborough offices with independent witnesses being two Public Trustee employees. Dr Bandara’s evidence is sufficient to infer that Mr McIntyre had capacity when he executed the penultimate will on 10 April 2018 and the Public Trustee’s file indicates the officers who took the will were satisfied that Mr McIntyre had capacity on 10 April 2018.
  6. [6]
    All persons who may have had interest in the estate have been served with the application and there is no challenge to the orders which are proposed pronouncing for the force and validity of the will of 10 April 2018. The orders that are made are in terms of the draft:
    1. The court pronounces against the force and validity of the will of Kenneth Andrew McIntyre, deceased, dated 26 July 2020.
    2. The court pronounces for the force and validity of the will of Kenneth Andrew McIntyre, deceased, dated 10 April 2018.
    3. Subject to the formal requirements of the Registrar, an order to administer the estate of Kenneth Andrew McIntyre, deceased, according to the will dated 10 April 2018 be granted to the Public Trustee of Queensland.
    4. The Public Trustee of Queensland’s costs of these proceedings be paid from the estate of Kenneth Andrew McIntyre, deceased, on an indemnity basis.

Footnotes

[1]Walsh v Wallace [2005] VSC 124 at [34].

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Editorial Notes

  • Published Case Name:

    In the Will of Kenneth Andrew McIntyre

  • Shortened Case Name:

    In the Will of Kenneth Andrew McIntyre

  • MNC:

    [2022] QSC 156

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    25 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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