SUPREME COURT OF QUEENSLAND

CITATION:	Re Uscinski [2024] QSC 131	
PARTIES:	SALLY KAI LAWRENCE
(applicant)
v
KATHERINE SCARLETT ROSE MOYNIHAN
AS EXECUTOR OF THE ESTATE OF ILLE USCINSKI
(respondent)	
FILE NO:	BS No 10954 of 2022	
DIVISION:	Trial Division	
PROCEEDING:	Application	
ORIGINATING COURT:
	Supreme Court of Queensland at Brisbane	
DELIVERED ON:	21 June 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	14 June 2024	
JUDGE:	Copley J	
ORDERS:	1.	The respondent shall bring the original grant of probate of the will of Ille Uscinski dated 23 January 2018 in common form issued on 17 October 2022 into the registry within 7 days.
2.	The respondent shall commence a proceeding by way of claim and statement of claim seeking a grant of probate of the will dated 23 January 2018 in solemn form within 28 days.
3.	It is directed that Part 2 of Chapter 7 of the UCPR applies to this proceeding by the applicant being granted leave to issue notices of non-party disclosure to Queensland Family Law Practice and Greenslopes Private Hospital substantially in the form set out in exhibits SDP-1 and SDP-2 to the affidavit of Sean Powell affirmed on 30 May 2024, subject to the periods of disclosure being 1 July 2016 to 18 November 2021 and being in relation to the will dated 23 January 2018.
4.	The applicant is to expeditiously disclose copies of any documents received pursuant to the abovementioned notices to the respondent by way of disclosure in the Contested Proceedings.	
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant seeks orders that the respondent bring into the registry the grant of probate in common form, and start a proceeding for a grant in solemn form, under r 640 of Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the applicant submits that the testatrix did not have testamentary capacity at the time the will was executed in 2018 and that the testatrix did not know or approve of the contents of that will – where the respondent submits that there are no triable issues raised by the applicant and that the Court would not make an order under r 640 UCPR due to the delay by the applicant to bring an application – whether there is a triable issue with respect to the testatrix’s testamentary capacity – whether the applicant’s delay is explained 
Uniform Civil Procedure Rules 1999 (Qld), rr 209, 640
Aronis v Aronis & Ors [2019] QSC 292, cited
Read v Carmody [1998] NSWCA 182, cited
Veall v Veall (2015) 46 VR 123, cited 	
COUNSEL:	A B Fraser KC for the applicant.
R I E Lake for the respondent.	
SOLICITORS:	Robbins Watson Solicitors for the applicant.
John P Bussa & Co Solicitors for the respondent.	
[1]	Pursuant to r 640 of the Uniform Civil Procedure Rules 1999 application is made for an order that the respondent, as the executor of the will of her deceased grandmother, bring into the registry the grant of probate in common form which she obtained on 17 October 2022 and start a proceeding for a grant in solemn form.  Also, pursuant to r 209(1)(c), application is made for a direction that Part 2 of Chapter 7 of the UCPR applies to this proceeding by the applicant being granted leave to issue notices of non‑party disclosure to two entities.
Application pursuant to r 640
[2]	The application pursuant to r 640 is founded on a concern on the applicant’s part that:  her mother did not have testamentary capacity at the time the will was executed (being on 23 January 2018); and, her mother did not know and approve of the contents of the will at the time it was made.
[3]	Rule 640 provides:
“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.
(3)	If the court orders the personal representative to bring the grant into the registry, the court may also give the directions the court considers appropriate, including directions about the persons to be made parties to the proceeding and about service.
(4)	As soon as practicable after the court makes an order under this rule, the personal representative must start a proceeding for a grant in solemn form.”
[4]	It is not in dispute that the applicant has a sufficient interest in the administration of the estate because she was a beneficiary under all of her mother’s wills made prior to January 2018 and she would have had an entitlement had her mother died intestate.  Thus, there is no obstacle to the Court making an order if there is a triable issue.  
[5]	Some of the considerations relevant to the exercise of the discretion under r 640 were considered in Aronis v Aronis & Ors.  There Holmes CJ held that an application under r 640 should be determined according to whether the material established a triable issue, in which circumstance, absent any other discretionary considerations, an order under r 640 should be made.
[6]	The applicant contends that she has a reasonable prospect of establishing that the 2018 will is invalid because the deceased did not have testamentary capacity at the time the will was made and she did not know and approve of its contents at the time it was made.  
[7]	As to testamentary capacity, the applicant referred to Read v Carmody, where Powell JA said testamentary capacity included the following:
(a)	that the testatrix was aware and appreciated the significance of the act in law which she was about to embark on; 
(b)	that the testatrix was aware, at least in general terms, of the nature, extent and value of the estate over which she had a disposing power;
(c)	that the testatrix was aware of those who had or may reasonably be thought to have had a claim upon her testamentary bounty, and the basis for and nature of the claims of each such persons; and
(d)	that the testatrix had the ability to evaluate and to discriminate between the respective strengths of the claims of such persons.
[8]	The applicant also relied upon Veall v Veall, where Santamaria JA considered the distinct but related concept of ‘testamentary capacity’ and ‘knowledge and approval’.  His Honour observed that testamentary capacity is a necessary but not sufficient condition for the establishment of the will representing the testamentary intention. 
[9]	The applicant’s concerns about testamentary capacity and/or knowledge and approval of the contents of the 2018 will are primarily based on the circumstances next set out.
[10]	The deceased, who died aged 102, executed the 2018 will when aged 98.  The death certificate listed the cause of death as “1(a) Aspiration pneumonia (b) Dementia (2) Frailty, hypertension”, and that the duration of the dementia was “years”.  Her signature on the 2018 will was noticeably different when compared with signatures on prior wills.  Under the 2018 will the applicant was not provided for, whereas under the November 2006 will she was gifted a property at Palm Beach, under the 2003 will she was gifted a property at Palm Beach and an equal 25 per cent share of the residue of the estate, and under the 1995 will provision was made for her in the same two respects, as well as provision for her to have the rights to the deceased’s literary works.  The relationship between the applicant and the deceased had not changed in any material way in that, since the early 2000s and until about February 2022, the applicant had had no contact with the deceased or the applicant’s three siblings.  From behaviour which the applicant said she observed in the period 1991 to 1993 she wondered, even as far back as then, whether the deceased had dementia.  
[11]	The applicant relies upon a file note dated 22 December 2017 apparently made by one of the solicitors who subsequently took the deceased’s instructions for the 2018 will.  The file note records a “pre-prepared will” being completed in view of the circumstance that the deceased was then in hospital, that an earlier appointment had not gone ahead as “Apparently the old lady became quite distressed and didn’t want to proceed on that day”.  The applicant contends that this is indicative of a want of cognitive capacity to attend to the making of a will, and that the reference to her being in hospital indicated failing health.  The applicant points to a file note dated 18 January 2018 apparently made by one of the solicitors who subsequently attended on the deceased at her house to take her instructions for the will.  The file note records that the solicitor made contact with a Queensland Law Society ethics counsellor to discuss the significance of a doctor’s letter and its relevance to the solicitors’ assessment of capacity.  The applicant argues that this showed that the solicitor harboured a concern about the deceased’s testamentary capacity in January 2018.  Some of the contents of the solicitor’s file note of 23 January 2018 are also said to provide a basis for doubt about capacity and knowledge.  When asked to explain her understanding of what a will was, the deceased is noted to have responded, “You have the power to do things”.  The applicant says that this did not manifest a proper understanding of the function of a will.  It is said that the note shows that the deceased had to be prompted to remember that the applicant was one of her children.  When asked if she had any bank accounts, the deceased said, “I have a Suncorp account.  Not much money.”  After her death that bank account had over $250,000 in it.  The applicant argues that the instructions were obtained through leading questions, rather than open questions.  
[12]	The respondent contends that there is no triable issue raised and that for this reason the Court would not make an order under r 640.
[13]	The respondent says that a letter from a doctor at a hospital, dated 7 December 2017, is one of three particular factors that allay suspicion about capacity and knowledge.  The letter records “our belief that [the deceased] has retained her mental capacity and is capable of understanding and deciding her own medical care and personal decisions at this time”.  Second, it is obvious from the solicitor’s file note dated 18 January 2018 that at least one of the solicitors gave consideration to the deceased’s capacity and proceeded to take her instructions on 23 January 2018 and, it is said, implicit is that the solicitor ultimately had no concerns about her capacity.  Third, a statutory declaration, made on the same day as the will was executed, contains an explanation about why the deceased made no provision for the applicant.  That explanation included that in the preceding 15 to 20 years the deceased’s attempts to engage with the applicant through correspondence had been “rejected”, that the applicant had shown no interest in her and did not desire a relationship with her, had disowned her and that “any” provision to her would unfairly disadvantage the deceased’s beneficiaries.  The respondent says that reliance upon the deceased’s old age, differences in signatures, dementia and change in testamentary capacity, even considered all together, do not rise above the level of mere suspicion or conjecture.  
[14]	However, the doctor’s letter of 7 December 2017 was not directed to the issue of testamentary capacity.  The circumstance that the solicitors proceeded with taking instructions is not determinative and may, in fact, be regarded as neutral.  No file note has been put into evidence recording satisfaction that the deceased had testamentary capacity.  At the same time, the solicitors were obliged to act on coherent instructions.  The applicant disputed the assertion in the statutory declaration that she had rejected any attempts by the deceased to contact her. 
[15]	Having regard in particular to:  
(a)	the medical practitioner’s notation on the death certificate that the deceased had suffered from dementia for years; 
(b)	the time when the decision was made to so markedly change the extent of a previous provision for the applicant; and 
(c)	to what appears to have been a solicitor’s concern, proximate to obtaining the instructions for the 2018 will, about capacity, 
the facts in relation to capacity and knowledge are inconclusive.  It is arguable that the deceased did not have capacity and/or knowledge.  There is a triable issue.   
[16]	The respondent also submitted that the Court should decline to make an order under r 640 due to the issue of delay.  It was said that the delay between when the applicant obtained copies of all the earlier wills (July 2023) and when she filed this application (May 2024) is not explained and that the Court might infer the application is brought for an ulterior purpose in view of the applicant having commenced a family provision application in March 2023, though the suggestion of ulterior purpose was ultimately not maintained in oral submissions. 
[17]	Relief should not be refused on the basis of delay as any delay has been explained.  On 19 July 2023 the applicant’s solicitors put the respondent’s solicitors on notice that there was a concern about an absence of testamentary capacity and sought the provision of numerous documents that were considered to have some bearing on this issue on the basis that the respondent as executor had the power to obtain them.  That letter said that should the respondent not provide them an application under r 640 would be brought.  No material was forthcoming.  On 14 November 2023 the applicant’s solicitors wrote to the respondent’s solicitors again seeking the same material.  On 7 February 2024 the respondent’s solicitors wrote to the applicant’s solicitors and said that the process of obtaining the material requested was underway.  No further meaningful response to the applicant’s request was received by 15 May 2024 when the applicant’s solicitors informed the respondent’s solicitors that the present application would be brought absent the provision of records by 17 May 2024.
[18]	I have concluded that the applicant has discharged her evidential onus.  I consider that an order should be made pursuant to r 640.  I note that counsel for the respondent said he had instructions to give an undertaking that the respondent would not distribute the estate prior to the determination of the present issue.
Application for non-party disclosure  
[19]	The application pursuant to r 209(1)(c) for leave to issue notices of non-party disclosure was amended by the applicant during the course of the hearing.  The amendment narrowed the range of dates in relation to the range of documents sought from two entities to the period between 1 July 2016 and 18 November 2021.  In the event that an order was to be made under r 640 the respondent had no objection to the Court making a direction pursuant to r 209(1)(c) consistent with the terms of the amended application.  The material sought from previous solicitors and the hospital under the notices will have relevance to the issues at a final hearing, so it is appropriate that leave be given to issue the notices in the amended form.
[20]	The applicant seeks an order that the costs of this application be paid from the estate of the deceased on an indemnity basis.
Orders
[21]	I make the following orders:
1.	The respondent shall bring the original grant of probate of the will of Ille Uscinski dated 23 January 2018 in common form issued on 17 October 2022 into the registry within 7 days.
2.	The respondent shall commence a proceeding by way of claim and statement of claim seeking a grant of probate of the will dated 23 January 2018 in solemn form within 28 days.
3.	It is directed that Part 2 of Chapter 7 of the UCPR applies to this proceeding by the applicant being granted leave to issue notices of non-party disclosure to Queensland Family Law Practice and Greenslopes Private Hospital substantially in the form set out in exhibits SDP-1 and SDP-2 to the affidavit of Sean Powell affirmed on 30 May 2024, subject to the periods of disclosure being 1 July 2016 to 18 November 2021 and being in relation to the will dated 23 January 2018.
4.	The applicant is to expeditiously disclose copies of any documents received pursuant to the abovementioned notices to the respondent by way of disclosure in the Contested Proceedings.
[22]	I will hear the parties as to costs.