Statutory will following an acquired brain injury

CDG v John Siganto as Litigation Guardian for BJG & Ors [2018] QSC 11

McMeekin J

The application, by the applicant’s litigation guardian, LMG, concerns whether leave should be granted pursuant to s 22 of the Succession Act 1981 (Qld) (the “Act”) to bring a further application for an order authorising a will to be made on behalf of the applicant.

The applicant had a Will prepared in 2004, however, in October 2011 the applicant acquired a brain injury as a result of an accident. The applicant was subsequently awarded damages in the amount of $3 million.

Relevant law

The power to authorise the making of a Will under section 21 of the Act can only be exercised if leave is granted under s 22 of the Act, which provides, inter alia, that a “person may apply for an order under section 21 only with the court’s leave”.

Before granting leave under s 22, the court must be satisfied of the matters particularised in s 24 of the Act. That section relevantly states:

Information required by court in support of application for leave

 the applicant for leave is an appropriate person to make the application;

  • adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought;
  • there are reasonable grounds for believing that the person does not have testamentary capacity;
  • the proposed will … is or may be a will … that the person would make if the person were to have testamentary capacity;
  • it is or may be appropriate for an order to be made under section 21 in relation to the person.”

 

Appropriate person

Finding that LMG was an appropriate person to make the application, McMeekin J stated that the relevant matters included that:

  1. LMG was in the best position to put the relevant information before the court as she manages the applicant’s day to day existence and is familiar with his affairs; and
  2. The court can have considerable confidence that LMG’s seeking to make the will was motivated by great good will to all those affected

All persons who may have interest represented

As to whether adequate steps had been taken to allow representation of all persons with an interest in the application, his Honour stated:

[18] Apart from those mentioned in the proposed Will, CDG’s only surviving family are a father and sister. His father is aged 80 years, lies in a retirement village and is financially independent. His sister is aged about 52 years and is estranged from CDG and has been since LMG and CDG have been together i.e. for the last 28 years at least. She is not dependent on CDG.

His Honour noted that there was no evidence that any person had an interest in making an application under s 41 of the Act.

Testamentary capacity

Finding that the applicant lacks testamentary capacity and that he will never regain capacity for the purpose of independently creating a Will, McMeekin J had regard to psychiatric evidence and evidence of LMG. His Honour accepted LMG’s evidence that the applicant could not cope with much more than ordinary transactions in daily life.

Approval and “that the person would make”

As to whether the proposed Will would be one that the applicant would make if he had testamentary capacity, McMeekin J stated as follows:

[31] CDG’s wishes as they stood in 2004 are known by reason of the Will he then made. He made provision for his immediate family, namely his wife and offspring. There is no reason to think that the persons that he would wish to provide for have changed since 2004. The proposed Will similarly makes provision for CDG’s immediate family and more or less on similar terms.

[36] … in 2004 CDG considered that his obligations to MJN differed from his obligations to provide for LEG and BJG. The explanation for that no doubt lies in the fact that his relationship with MJN was much more distant than the relationship he enjoyed with the children living in his own home.

His Honour accepted that the applicant’s principal obligation was to provide for his widow and that he would not expect LGM to provide for MJN (a child from another of the applicant’s relationships) as she would for her own children.

In relation to the separate testamentary trusts for the applicant’s two children, his Honour stated:

[39] The imposition of separate testamentary trusts for LEG and BJG has been done on the basis of expert advice. The trusts will ensure that until they reach age 25 they have guidance in the management of what is presently a substantial sum. That is entirely appropriate and there is no reason to think that CDG would not agree with LMG that the course is a wise one.

McMeekin J was satisfied that information required under s 23 of the Act was provided and the requirements of s 24 proved. His Honour granted leave to make an application for an s 21 order and held it appropriate that an order authorising the will to be made on behalf of the applicant be made.

David Cormack – Brisbane Barrister & Mediator

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