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In the Estate of Marion Johnson[2022] QSC 77

In the Estate of Marion Johnson[2022] QSC 77



In the Estate of Marion Johnson [2022] QSC 77


In the Estate of Marion Johnson, deceased

Carey Ann Parkinson



BS 4097 of 2022


Trial Division


On the papers


Supreme Court at Brisbane


4 May 2022




On the Papers


Martin SJA


Application adjourned to a date to be fixed


Holloway Jenkins Lawyers for the applicant

  1. [1]
    Rule 489 of the Uniform Civil Procedure Rules (UCPR) allows a party to propose that an application be decided without an oral hearing and, except in certain defined circumstances, the court must decide the application without an oral hearing.  One of those circumstances is where the court considers it inappropriate to do so.  This is a case in which I consider it inappropriate to do so.  The application is for a declaration that a “purported will” of the deceased dated 20 June 2013 be “inadmissible for the purposes of probate as a result of want of testamentary capacity of the deceased” on the day the will was executed.  Further, an order is sought that a different will be admitted to probate. 
  2. [2]
    The deceased made two wills.  The first was made on 13 September 2006 and a codicil was made on 18 October 2011.  The second was made on 20 June 2013.  It is the second which the applicant says was made without capacity. 
  3. [3]
    I need not go into great detail at this point.  It is sufficient to say that the concept of “testamentary capacity” is directed to whether the testator had the mental capacity to make a valid will.  Questions of whether or not the testator knew and understood what he or she was doing need to be examined where there is a challenge made to the capacity of the testator.  Ordinarily, evidence is given by people who knew the testator about the testator’s apparent state of mind at the time of execution or there is medical evidence (based upon recent examination at the relevant time) which assists the court in determining whether or not the testator had the necessary capacity. 
  4. [4]
    In this application, none of that evidence is provided.  The applicant relies upon a decision made by a member of the Queensland Civil and Administrative Tribunal to the effect that the deceased did not have the capacity to undertake transactions from as early as 26 February 2013.  It is submitted by the applicant that:

“Whereas by that same timing schema the deceased, so declared by QCAT to have lacked capacity to have given instructions since as early as 26 February 2013, axiomatically would have lacked capacity to have made the putative Will, given its 20 June 2013 date was four months later.”

  1. [5]
    The decision by QCAT is not evidence of anything other than the decision itself.  It is a decision reached by a tribunal exercising a different power and using a different test about the capacity of a person to undertake transactions at a time different from that at which the will was executed. 
  2. [6]
    The applicant relies solely on a series of declarations about capacity made by QCAT on 20 August 2015.  I mean no disrespect to the members who made the decision in the Tribunal.  They applied themselves to the question before them.  But their decision does not bind this Court. 
  3. [7]
    This application exemplifies one of the significant problems when a party seeks to proceed without an oral hearing.  It is not possible to correct misunderstandings or to illuminate other matters which might have been possible in the usual hearing of this type of application.  This case, though, would probably have failed in an oral hearing if there were no evidence available to be led on the points which need to be decided by the court.  An application for a matter to be heard on the papers requires that the applicant take considerable care in preparing material and ensuring that all appropriate and necessary evidence is provided.  That has not happened in this case. 
  4. [8]
    It is not for this Court, when the applicant fails to adequately support its own application, to advise on what further material is needed. 
  5. [9]
    As I have said above, I am satisfied that it is inappropriate to deal with this matter without an oral hearing. 
  6. [10]
    The application is adjourned to a date to be fixed.  If the applicant wishes to proceed with the matter then she will need to file affidavits which contain sufficient evidence to support the orders sought being made.

Editorial Notes

  • Published Case Name:

    In the Estate of Marion Johnson

  • Shortened Case Name:

    In the Estate of Marion Johnson

  • MNC:

    [2022] QSC 77

  • Court:


  • Judge(s):

    Martin SJA

  • Date:

    04 May 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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