Case Notes > Re Toulitch (deceased) [2016] QSC 219, Peter Lyons J

Re Toulitch (deceased) [2016] QSC 219, Peter Lyons J

By Karen Gaston
Posted February 24, 2022


Whether probate should be granted of a will made close in time to hospital admissions noting dementia as a possible condition and QCAT findings about capacity.

Whether the Grant should be in solemn or common form.


The Testator died on 12 November 2015, aged 88 years.  He was born in Bosnia.

He had no children and had divorced his wife in New Zealand, some years earlier.

He left a will dated 1 October 2009, under which the Applicant took a substantial benefit and was appointed the executor. The Applicant was a friend of over 10 years standing.

The Testator brought a completed will kit form to the Applicant’s home and then signed it in the presence of the Applicant’s grandson and his partner, both of whom provided affidavits of due execution.

The Testator had made a mistake on the form, corrected it, and he and both witnesses initialled it.

The Testator owned 2 blocks of land and at about the same time, he advertised one for sale (by placing a sign and his phone number on it) and entered into a contract with the buyers to sell it to them.

However, on 29 October 20009, he was admitted to hospital where the records noted “dementia ?”.  There was a further admission on 3 November 2009 and upon discharge a month later the diagnosis was “dementia with social issues”.

On 15 December 2009, QCAT made orders appointing the Public Trustee to managed the Testator’s affairs and the Adult Guardian for personal affairs.  There was a medical report of Dr Roan stating the Testator had dementia and did not have capacity.

However, during the course of the hearing, the Testator was able to advise QCAT:

  1. He did not receive a pension because of the value of his assets;
  2. A Centrelink loan provided him with $200 per fortnight;
  3. He had signed a contract to sell his land for $1.25m.  He said the land could not be subdivided although the zoning had recently changed.  He based the price on the sale of the property next door.

There was also concern that he was vulnerable to influence.

In 2011, the Adult Guardian reported that the Testator had largely managed his own affairs.  Despite a medical report that recommended both appointments continue, QCAT revoked the Adult Guardian’s appointment.

In 2013, the Public Trustee arranged for a home to be built on the remaining block of land using the sale proceeds of the other block of land.  When he moved into the new home, he gave the original Will to the Applicant for safekeeping.


After setting out the test for testamentary capacity, Justice Peter Lyons identified the following factors which were in support of a positive finding of such capacity.  They included:

  1. He obtained the will kit himself from the Post Office;
  2. He completed the will kit himself;
  3. He knew that the will needed to be witnessed;
  4. He appreciated that an error (which he had made) needed to be initialled and witnessed;
  5. There was nothing about his health, conduct or demeanour on the day of signing his will which suggested he did not have capacity;
  6. The Testator’s conduct in relation to the sale of one of his blocks of land.

Against testamentary capacity were the following factors:

  1. The hospital admission on 29 October 2009, (4 weeks after the will was signed) which noted “dementia ?”;
  2. The diagnosis of “dementia with social issues” in early December 2009, after a month long hospital stay;
  3. The QCAT findings and evidence referred to in the Tribunal’s reasons.

However, Peter Lyons J found that there was no admissible evidence that the Testator lacked capacity at the date he signed his will.  He felt that the usual position, that a will rational on its face should be presumed to be executed by a competent testator, had not been displaced.

Probate of the will was ordered.

The next question that arose was whether the grant should be in common form or solemn form.

Justice Peter Lyons drew heavily on the judgement of Ellison J in Estate of Kouvakas; Lucas v Conakas[1] and observed:

“It seems to me to emerge from the judgment of Lindsay J that a defining feature of a grant in solemn form may be identified from the nature of the application which results in the grant.  His Honour said in Kouvakas:

“However, it is implicit in the consideration of any application for a grant in solemn form (including an application heard on an ex parte basis) when the Court routinely insists that the applicant prove: (a) the identity of each person adversely affected by the application; (b) that each person adversely affected has notice of the application; and (c) that any will or codicil sought to be proved was duly executed.

As a matter of practice those are, generally, regarded as the elements necessary to be provide for a grant in solemn form.”

Another feature is that a grant in solemn form is generally made only after the Court has received evidence tending to satisfy it that such a form of order “binding the whole world” should be made; and accordingly, such an order is not usually made as a result of a bargain between the parties.

In the present case, Peter Lyons J noted that not every person who might be adversely affected had been identified and served and although the evidence was sufficient to justify the making of a grant, no-one had had an opportunity to test it.

Accordingly, the grant was made in common form. Read the full decision here.

[1] [2014] NSWSC 786.

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