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RECENT DEVELOPMENTS IN SUCCESSION LAW

Richard Williams1

Overview

1. The developments examined in this paper are:

(a) Informal wills: Re Nichol; Nichol v Nichol & Anor [2017] QSC 220; Wood &

Anor v Trudinger; in the will of Alan Stewart Trudinger [2017] QSC 245.

(b) Rectification: Rose v Tomkins [2017] QCA 157.

(c) Family provision: Sweaney & Anor v Bailie [2017] QDC 295 (costs); Burgess v

Abbott [2017] QDC 323 (application for final orders).

(d) Construction of wills: Floyd v Floyd & Ors [2017] QDC 198.

(e) Resignation/removal and appointment of SMSF trustees: Perry v Nicholson

[2017] QSC 163.

(f) Statutory will applications: Mr PL v Mrs R [2017] QSC 249 (application in

context of family law property settlement); A Limited v J [2017] NSWSC 736

(urgent application, superannuation outside estate, and discretionary trusts);

Re K’s Statutory Will [2017] NSWSC 1711 (testamentary discretionary trusts, the

Court’s function in approving the terms of a statutory will, and costs).

Informal wills

Re Nichol; Nichol v Nichol & Anor

2. The case of Re Nichol; Nichol v Nichol & Anor [2017] QSC 220, in which a copy of an

unsent text message was found to constitute a valid last will of the deceased, attracted

considerable interest in the media. It concerned the question of whether the Court

should apply the ‘dispensing power’ in s 18 of the Succession Act 1981 (Qld), in order

to admit to probate a copy of an unsent text message.

1 Richard Williams is Barrister at the Queensland Bar: www.rdwilliams.com.au

Liability limited by a scheme approved under professional standards legislation.

He is co-author of Statutory Will Applications: A Practical Guide, R Williams and S McCullough,

LexisNexis Butterworths Australia 2014.

© Richard Williams, 2018.

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3. In Queensland, the formal requirements for a valid will (as distinct from the mental

elements required for a testator to make a valid will) are prescribed by s 10 of the

Succession Act. These include the requirements that a will must be in writing, signed

by the testator (or by some other person in the testator’s presence and at the testator’s

direction), and that the signature must be witnessed.

4. The need for strict compliance with the formal requirements has, however, been

lessened to some extent by the introduction of a judicial ‘dispensing power’, which

enables the Court to admit to probate a document which has not been executed in

compliance with those requirements. Section s 18(2) provides as follows:

“(2) The document or the part forms a will, an alteration of a will, or a full or

partial revocation of a will, of the deceased person if the court is satisfied

that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s

will.”

The key issue is whether the person intended the particular document to form his or her

will. That is a factual question.

5. ‘Document’ is widely defined by s 36 of the Acts Interpretation Act 1954 (Qld). The

Supreme Court has, some in previous cases, considered testamentary wishes recorded

in the form of digital media:

(a) In Re Yu,2 notes left on an iPhone were found to constitute a valid will. However,

a construction application was subsequently required, to determine the meaning

and effect of that ‘document’.3

(b) A video recording contained on a DVD was found to constitute a will, in

Mellino v Wnuk,4 and similarly in Re Estate of Wai Fun Chan, Deceased.5

6. In Re Nichol, the deceased, Mark Nichol, committed suicide, by hanging, in a shed at

his house property. An unsent text message was found on his mobile phone. It read:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone

back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank

Cash card pin 3636

2 [2012] QSC 322.

3 Yu v Yu & Ors [2015] QSC 373.

4 [2013] QSC 336.

5 [2015] NSWSC 1107.

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MRN190162Q

10/10/2016

My will”

The abbreviation “MRN190162Q” matched the deceased’s initials and date of birth.

7. The deceased was survived by:

(a) his wife Julie, with whom he had been in a relationship for 3 years and 7 months

in total, and married for one year;

(b) his son Anthony, from a previous relationship;

(c) his mother;

(d) his brother Bradley;

(e) his brother David; and

(f) David’s son, Jack (the deceased’s nephew).

8. It was not disputed that:

(a) The text message was made by the deceased.

(b) The reference to “Dave Nic” was to the deceased’s brother David, whose details

were stored in the deceased’s mobile phone under the abbreviated name “Dave

Nic”.

(c) “Trish” was a reference to the deceased’s first wife, Patricia, who had died from

cancer.

9. The deceased’s body was discovered by Julie on 10 October 2016. His mobile phone

was found on a work bench in the shed, next to him. The following day, a friend of

Julie accessed the mobile phone to look through the contact list, to identify who should

be informed of the deceased’s death. She informed Julie that she had found the unsent

text message. Julie, in turn, informed Bradley and Jack of it.

10. The deceased had made an earlier suicide attempt in June 2016, by driving into a pole.

11. There was no evidence of any other will made by the deceased. He had told his mother

in January 2015 that he had written something out and put it behind the china cabinet.

No such document was found after his death.

12. The deceased’s estate was not large. It consisted of:

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(a) his house property, which was unencumbered;

(b) household effects; and

(c) possible membership of a class action relating to the Queensland floods.

It was unclear whether superannuation death benefits would be paid to the estate.

13. If the deceased died intestate, his estate would be divided between Julie and Anthony.

14. David provided evidence that at or around Easter 2016, the deceased had told him that

if anything was to happen, he wanted all his possessions, including his house and

superannuation to go to David and Jack, and that “Julie is to have nothing”.

15. Evidence was given by a close friend of the deceased, as to the ups and downs of the

relationship between the deceased and Julie.

16. Julie did not dispute that there had been some difficulties in her relationship with the

deceased, and that she had left him on at least three occasions, the final time being two

days prior to his death. Even though she moved out on that last occasion, she still made

arrangements to take him to his mental health appointments, and they spent the

weekend prior to his death together, cleaning garden clippings and boxing books for

Lifeline.

17. The evidence suggested that Anthony and the deceased had had a difficult relationship

and that they did not communicate.

18. An application was made by Julie for a grant of letters of administration on intestacy.

A cross-application was filed by David and Jack, seeking a declaration that the unsent

text message constituted a will of the deceased. The application was heard by Justice

Brown in the Civil Applications list. There was no cross-examination.

19. Her Honour outlined the relevant principles applicable to an application under the

dispensing power in s 18:

(a) In Lindsay v McGrath,6 the Queensland Court of Appeal adopted the three

conditions outlined by Powell JA in Hatsatouris v Hatsatouris:7

(i) was there a document?

6 [2016] 2 Qd R 160 at [55]; [2015] QCA 206. This is the only appellate decision in Queensland,

regarding s 18. 7 [2001] NSWCA 408 at [56].

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(ii) did that document purport to embody the testamentary intentions of the

relevant deceased?

(iii) did the evidence satisfy the Court that, either at the time of the subject

document being brought into being, or, at some later time, the relevant

deceased, by some act or words, demonstrated that it was her, or his, then

intention that the subject document should, without more on her, or his,

part, operate as her, or his, Will?8

(b) As regards evidence, Boddice J said in Lindsay v McGrath:9

“Great care is to be taken in the evaluation of the relevant evidence. To

satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is

consistent with other statements the deceased made about what he or she

wanted to happen to the property upon death. The evidence must establish on the balance of probabilities that the deceased wanted the particular

document to be his or her final Will, and did not want to make any changes

to that document.

…

Documents which contain only preliminary, tentative or incomplete

expressions of a deceased’s testamentary intentions, or which on the

evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible revision, will not suffice for the purposes

of s 18 as the evidence will not establish the document in question embodied

the settled testamentary intentions of the deceased.”

(c) The evidence must be scrutinised carefully and the Court must be satisfied that,

on the balance of probabilities, the deceased wanted the particular document to be

his final Will and did not wish to make any changes to it.10 The Court must

evaluate the evidence in accordance with the principle in Briginshaw.11 As

8 As regards the words “without more” in the third condition, Habersberger J in Fast v Rockman

[2013] VSC 18 observed, at [114], as follows: “Like Murray J in Dolan v Dolan, I consider that the words ‘without more’ have been mentioned by way of emphasising that the court must be satisfied

that the deceased really did intend the terms of the document – ‘without any alteration or reservation’

– to be the manner in which his or her property was to be disposed of upon his or her death. Or as

EM Heenan J put it in Mitchell v Mitchell, the words ‘without more’ were used in Oreski v Ikac: ‘… to emphasise the need for the document being propounded for proof as an informal will to express the

concluded testamentary intentions and decision of the deceased rather than being some provisional,

preliminary or tentative proposal which had not by then received the deceased’s full assent.’ ” (citations omitted) 9 At [60], [62].

10 Lindsay v McGrath [2016] 2 Qd R 160 at [60]; Fast v Rockman [2013] VSC 18 at [48].

11 Briginshaw v Briginshaw (1938) 60 CLR 336, 342.

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observed by McMillan J in Re Kelsall,12 when an informal document is to be

admitted to probate, Briginshaw dictates that reasonable satisfaction should not

be obtained by “inexact proofs, indefinite testament, or indirect references”.

(d) The Court must also be satisfied that the deceased had testamentary capacity

(according to the test in Banks v Goodfellow13) at the time of creating the

document. As Boddice J said in Konui v Tasi:14

“A presumption of testamentary capacity does not exist in the absence of a

formally executed Will. The onus of proving testamentary capacity where

there is an informal Will lies on the party seeking to convince the court the

deceased intended the document to constitute his or her Will.”

(e) In the present case, given that no presumption of validity arose because there was

no duly executed will that was rational on its face, the onus was on the persons

propounding the informal document to prove that the deceased had testamentary

capacity at the time he made the document.15

20. An expert report obtained by David and Jack, in respect of a forensic examination of

the mobile phone, confirmed that:

(a) the text message had not been sent;

(b) its content indicated that it was created on 10 October 2016, but the time could

not be pinpointed;

(c) the message was likely saved by someone pressing the back arrow in the message

editing view; and

(d) there was no other document on the mobile phone that might be relevant to the

deceased’s testamentary intention in the days immediately prior to 10 October

2016.

21. It was clear that the text message constituted a ‘document’, and that it was testamentary

in nature.16 The dispute therefore centred on the third of the Hatsatouris requirements,

and on testamentary capacity.

12

[2016] VSC 724 at [19]-[21]. 13

(1870) LR 5 B 549 at 565, confirmed by the Court of Appeal in Frizzo v Frizzo [2011] QCA 308. 14

[2015] QSC 74 at [43]. 15

See Veall v Veall [2016] VSCA 60 at [168]-[171] and ff, regarding the operation of the relevant presumptions. 16

At [40]-[46].

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22. Julie accepted that the text message was testamentary in nature, but contended that the

Court not be satisfied on the balance of probabilities, applying Briginshaw, that:

(a) the deceased, by some act or words, had demonstrated that it was is his then

intention that the text message should, without more on his part, operate as his

will; or that

(b) he had testamentary capacity at the time he created the text message, on the basis

that no positive evidence of testamentary capacity had been adduced. There was

no medical evidence before the Court regarding his mental state, and particularly

the effect of his apparent depression. It was, though, clear that he had attended

counselling after his apparent suicide attempt in June 2016.

As regards (a) above, the following matters were said to be of particular relevance:

(i) He did not send the text message, which was consistent with him not having

made up his mind. If he had intended it to take effect, he could have sent it to

indicate his adoption or authentication of the message as representing his settled

testamentary intentions.

(ii) He and Julie had had a difficult relationship and on various occasions she had

moved out of their home and then returned.

(iii) The deceased had for some time been depressed and apparently attempted to

commit suicide four months before his death and was engaged in counselling, yet

despite that had not made a formal will.

23. David and Jack, on the other hand, contended as follows:

(a) The document contained the words “my will”, and details reflecting that it was to

operate as a will.

(b) Given that the message was created when the deceased was contemplating his

death, the circumstances were such that he was aware of the significance of the

unsent text message when creating it. The fact that the text message was not sent

did not indicate that it was not intended to have effect.

(c) The message, on its face, showed it was intended to have effect upon the

deceased’s death. It contained directions as to where the deceased’s wallet was

located and his PIN for his bank account.

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(d) The deceased and Julie had had a short marriage punctuated by at least three

occasions of separation.

(e) The deceased was estranged from his son Anthony.

(f) David and Jack were close to the deceased.

(g) There was no medical evidence to indicate that the deceased lacked testamentary

capacity.

(h) It was likely on the balance of probabilities that the deceased would have known

the nature, extent and value of his estate, given it was a small one with a house

and superannuation policies being the main assets.

(i) The deceased was level-headed enough on 9 October 2016 to ask Julie to attend

his house the following day to feed the dogs.

24. Her Honour found, on the evidence, that the deceased and Julie had had difficulties in

their relationship and had separated on a number of occasions for short periods of time,

the most recent such occasion being days before the deceased’s death.17

25. As regards testamentary capacity, it was common ground that the fact that a person has

committed suicide does not raise a presumption against testamentary capacity:

Re Estate of Hodges; Shorter v Hodges.18 Her Honour was satisfied that, despite the

lack of any medical evidence, David and Jack had established that the deceased had

testamentary capacity at the time of creating the message.19

26. On the question of whether the third of the Hatsatouris requirements was satisfied, the

following findings were made:20

“The following circumstances satisfy me to the requisite standard that the

deceased did intend the text message, without more, to operate as his final will on

his death at the time he completed it on or about 10 October 2016:

(a) The fact that the text message was created on or about the time that the

deceased was contemplating death such that he even indicated where he

wanted his ashes to be placed;

(b) That the deceased’s mobile phone was with him in the shed where he died;

(c) That the deceased addressed how he wished to dispose of his assets and

expressly provided that he did not wish to leave the applicant anything;

17

At [33]. 18

(1988) 14 NSWLR 698 at 707. 19

At [53]-[55]. 20

At [59].

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(d) The level of detail in the message including the direction as to where there

was cash to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending

the document with the words “my will”; and

(e) He had not expressed any contrary wishes or intentions in relation to his

estate and its disposition from that contained in the text message.”

27. Crucially, her Honour found as follows:21

“I do not consider the fact that the message was saved as a draft message and that

he did not send it, is evidence that he did not wish the text message to be operative

as his will. Rather, I find that having the mobile phone with him at the place he

took his life so it was found with him and not sending the message, is consistent with the fact that he did not want to alert his brother to the fact that he was about

to commit suicide, but did intend the text message to be discovered when he was

found.”

28. On this basis, orders were made that provided for the text message to be admitted to

probate, with letters of administration granted to David and Jack.

Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger

29. In Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger [2017] QSC 245,

Brown J considered another informal will application. The document in question in

that case was a draft will prepared by the deceased’s solicitor, on instructions given the

day before his death, at his hospital bedside. The solicitor had prepared the will the

same day, and sent a draft of it through to a family member by email. That family

member had read the draft through to the testator at his bedside. According to that

witness, the testator nodded agreement with various terms, as the will was read out to

him. When the solicitor arrived at the hospital shortly thereafter, the testator was

unable to hold the pen properly to sign the will. A nurse informed the solicitor that the

testator had earlier been given morphine. The solicitor concluded that the testator

lacked testamentary capacity and that there was nothing further that could be done to

execute the new will. Her Honour found that there was a lack of evidence that the

second of the three requirements adopted in Lindsay v McGrath was met: it was unclear

whether the document reflected the testator’s testamentary intentions. In any event,

Her Honour was not satisfied, on the evidence, that the deceased had testamentary

capacity when instructions were given to the solicitor, or when the will was read to him

later that day at his bedside, by a family member. The application was dismissed, with

an order that both parties’ costs be paid out of the deceased’s estate.

21

At [61].

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Rectification

30. Rose v Tomkins [2017] QCA 157 is the first appellate decision in Queensland regarding

the statutory power of rectification of a will, s 33 of the Succession Act:22

31. Section 33 provides as follows:

“33. Court may rectify a will

(1) The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the

testator’s intentions because –

(a) a clerical error was made; or

(b) the will does not give effect to the testator’s instructions.

(2) An application for an order to rectify a will may only be made within 6

months after the date of death of the testator.

(3) However, the court may, at any time, extend the time for making an application under subsection (2) if –

(a) the court considers it appropriate; and

(b) the final distribution of the estate has not been made.

(4) If the court makes an order to rectify a will, the court may direct that a

certified copy of the order be attached to the will.

(5) If the court gives a direction under subsection (4), the court must hold the

will until the certified copy is attached to it.”

32. Section 33A provides certain protection for a personal representative: where a will is

rectified under s 33, they are not liable for having made a distribution as if the will had

not been rectified, if:

(a) the distribution is made under s 49A (which relates to certain distributions made

for a person’s maintenance, support or education, where the person was

dependent on the deceased and will be entitled to all or part of the deceased’s

estate if the person survives the deceased for 30 days); or

(b) the distribution is made at least 6 months after the testator’s death, and the

personal representative does not have notice of an application (or intended

application) for:

(i) rectification of the will; or

(ii) family provision; or

22

Section 33 was introduced as part of the 2006 changes to the Succession Act, and follows the model provision recommended by the National Committee for Uniform Succession Laws in their 1997

report, which in turn has its origins in s 20 of the Administration of Justice Act 1982 (UK).

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(c) the distribution is made at least 9 months after the testator’s death, and the

personal representative has not received notice that an application for rectification

or family provision has been started, and has not been served with a copy of such

an application.

It should be borne in mind therefore, that if a person other than the executor is

considering making an application for rectification, notice of that should be given

promptly to the executor.

33. In Rose v Tomkins:

(a) Ms Jones and her de facto partner Mr Tomkins attended upon a solicitor, to make

their wills.

(b) Ms Jones instructed the solicitor that she wanted to ensure that upon the passing

of both her and Mr Tomkins, a one half share in their house property, which they

held as joint tenants, would pass to her children and the other half share would

pass to Mr Tomkins’ children. The solicitor advised that they could give each

other the right to occupy the home until the surviving partner remarried, and that

the joint tenancy would need to be severed.

(c) In the will that Ms Jones made, she appointed her sister (Ms Rose) as her

executor and:

(i) gifted her half share in the house property to Mr Tomkins, under what was

described by the Judge at first instance as “a clumsy right to reside”,

provided he paid the rates and an insurance policy on the house and kept it

in repair, and provided he did not marry or enter into a de facto relationship

(clause 6): and

(ii) gifted the residue of her estate as to 50% to her two children and 50% to the

children of Mr Tomkins (clauses 7(a) and (b)), with a substitutionary

provision to the effect that if any child of Ms Jones or Mr Tomkins

predeceased or failed to survive for 30 days, then that child’s own child or

children would take the share which their parent would have taken

(clause 7(c)).

(d) An application was made by the executor to rectify the will, by replacing clauses

7(a) and (b) with gifts of one half share of residue each to Ms Jones’ two

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children, Peter and Paul. The application also sought to remove from clause 7(c)

the reference to Mr Tomkins.

(e) At the hearing of the application, however, the order sought related to clause 6(d).

That clause, in the will, read:

“(d) when my said partner [Mr Tomkins] shall cease to live permanently

in the house or enters into a de facto married living arrangement lasting for a period of 6 months or more of a marriage, then it shall

form part of my residuary estate”

The amendment sought was that, in clause 6(d), the words highlighted in bold

above be rectified to read:

“then my interest in the property shall be transferred absolutely to those of

my sons [Peter and Paul] who survive me and if more than one in equal

shares as tenants in common.”

(f) Dalton J dismissed the application to rectify the will.23 The reasoning rested, in

part, on her Honour drawing an inference that Mr Tomkins’ will was in the same

terms as Ms Jones’s will, and making findings that they each wished to leave

their half share in the house property to their respective children, and that it was

necessary for the wills to be mutual to achieve that. Her Honour was not satisfied

that either of the pre-requisites for rectification was met, i.e. that there was any

clerical error or that the will failed to give effect to the testator’s instructions.

34. On appeal, Philippides JA, with whom Morrison JA and Flanagan J agreed,

summarised the relevant principles that apply in respect of s 33:24

“(a) The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what

would probably have been the intention in the circumstances that

eventuated.

(b) The Court must construe the provision of the will sought to be rectified.

(c) The Court is required to compare the relevant provision of the will properly

construed with the testator’s intention as ascertained.

(d) The Court must be satisfied the relevant provision of the will does not carry

out the testator’s intentions because it does not give effect to the testator’s

instructions and that rectification in the terms sought would give effect to

those instructions.

(e) The Court must be so satisfied on the balance of probabilities, on clear and

convincing proof.”

23

Rose v Tomkins [2016] QSC 216. 24

At [38].

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35. Reference was also made to the following well-settled principles:

(a) The Court must make findings about the intentions of the testator because, until it

does, it cannot be satisfied that the will does not carry out those intentions.25

(b) The testator’s intentions must be examined as at the date of the will, not the date

of death.26

(c) The statutory rectification power does not remove the need for proper

construction of a will, and is not an optional alternative for the proper

construction of the terms of a will. This does not mean, though, that a party

seeking rectification is always obliged to seek orders for the construction of the

will.27

(d) The Court’s task is to give effect to the language of the section without paying

over much regard to the principles evolved by equity as part of the doctrine of

rectification.28

36. It was also observed that the rectification provision in Queensland differs from the very

broad provision found in s 12A of the Wills Act 1968 (ACT), which enables the Court

to rectify a will to give effect to the testator’s probable intention.29

37. Philippides JA found that:30

“Importantly, the fact that both Ms Jones and Mr Tomkins wished their respective

children to inherit their half interest does not lead to the conclusion that each

intended by their will to protect and guarantee the inheritance of the other’s children. They were primarily concerned with ensuring that their interest went to

their respective children. The implicit intention from the instructions given by Ms

Jones was that she was concerned that her own children did not face uncertainty. There is nothing to indicate she was concerned by her will to ensure that the

25

Lockrey v Ferris [2011] NSWSC 179 at [67], Hallen AsJ, adopting what was said in Trimmer v

Lax; Estate M A Fresen (NSWSC, Hodgson J, 9 May 1997). 26

Re Estate of Spinks; Application of Mortensen and Eassie (NSWSC, Needham J, 22 August 1990,

unreported); and in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v

State of New South Wales (NSWCA, 12 December 1991, unreported) at 5; Rawack v Spicer at [27]–

[28]; Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 at [5]. 27

ANZ Trustees Ltd v Hamlet [2010] VSC 207 at [3], Pagone J, cited with approval in Palethorpe v

The Public Trustee of Queensland [2011] QSC 335 at [16]. 28

Mortenesen v State of New South Wales (NSWCA, 12 December 1991, unreported); BC9101347 at

6, Sheller JA. 29

The only published decision concerning the part of s 12A that relates to rectification to give effect

to the testator’s probable intention is In the Estate of Rummer [2017] ACTSC 277, McWilliam AsJ. 30

At [41]–[42].

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children of her partner also did not face uncertainty. Ms Jones’ instructions were

not that she wanted by her will to provide for the children of Mr Tomkins.

It cannot be disputed that, by clauses 6 and 7, Ms Jones’ children did not receive

the entirety of her half-share of the house after both she and her partner died (or

the earlier expiration of the right to reside), but only a one quarter interest in the

remainder of the house with the other quarter interest being gifting to Mr Tomkins’ children. In my view, the appellant’s submission that the will as drawn

did not give effect to, nor was it capable of giving effect to, Ms Jones’ instructions

is correct, in that Ms Jones’ children did not receive her half-share of the house but only a one quarter interest in the remainder of the house.”

38. In the circumstances, the will did not carry out Ms Jones’ intentions because it did not

give effect to her instructions that her half interest in the property was to go to her

children. It was ordered that the will be rectified, in the manner that the execuotr had

sought at the hearing at first instance.

Family provision

Sweaney & Anor v Bailie

39. Sweaney & Anor v Bailie [2017] QDC 295 is a further reminder that parties to family

provision proceedings should not assume that their costs will necessarily be paid in full

out of the estate, and that costs may in some circumstances be capped.

40. The deceased’s will provided for his estate to be ‘divided among any worthy charities’.

No provision was made for his son (aged 55) or his daughter (aged 57). They applied

for provision, but the daughter did not proceed with her application, as she had

significant assets and was in a good position, financially, compared to the position of

her brother.

41. The estate was not large, approximately $225,000. A compromise was reached at

mediation, to the effect that the son would receive the entire residuary estate. That

compromise was, however, reached without the involvement of the Attorney-General,

who had not been notified of the mediation.

42. An application was made by the son for final orders. The application was served on the

Attorney-General. A cross-application was filed by the executor, seeking that the terms

of settlement be set aside, and that the matter be remitted to a mediation.

43. At the hearing, the Attorney-General did not oppose an order being made that the son

receive the whole of the residue. Judge Rosengren, after reviewing the son’s

circumstances, found that it was appropriate to give considerable weight to the terms of

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settlement, applying the approach set out by Jones J in Watts v The Public Trustee of

Queensland.31

44. However, as regards costs, her Honour found as follows:32

“The outstanding liabilities which must be brought into account in order to assess the net assets of the estate are the applicants’ and the respondent’s costs. The

applicants’ costs are $66,759. The respondent’s costs are estimated to be in the

order of $70,000. This is a total of some $136,759. The net value of the estate is

approximately $213,000. Therefore, the parties’ costs are 64% of the estate. The respondent has had his costs assessed at $56,000 and claims this amount. This

together with the applicant’s costs, totals some $122,759 and equates to some 58%

of the estate.

The concerning aspect of this is that it was a relatively straightforward matter in

relation to a modest estate. There was no doubt about the eligibility of either of

the applicants to the claim. The principal question was limited to a consideration of the adequate and appropriate provision for the applicants.”

45. The judgment refers to the relevant rules of the UCPR, and some of the authorities, that

are relevant to the Court’s consideration of the exercise of its discretion in respect of

ordering costs in family provision proceedings,33 and other recent cases in which costs

were capped.34 Her Honour concluded:35

“In all of the circumstances, including the size of the estate, I consider this is a

case where the costs to be paid out of the estate should be capped at $45,000 for

each party. In my view, this is still a generous sum to reflect the work and difficulty associated with this matter. The total costs would then be $90,000,

leaving an estate of approximately $120,000. I consider this reflects the justice of

the case.”

Burgess v Abbott

46. Burgess v Abbott [2017] QDC 323 also concerned an application for final orders, made

in circumstances where the parties to a family provision dispute had reached a

31

[2010] QSC 410 at [15], where Jones J said: “Once the court is of the view that the jurisdictional

question has been satisfied then the issue arises as to the effect of the parties’ agreement. Obviously considerable weight must be given to the agreement of the parties. The inquiry thereafter is limited.

The circumstances would be unusual indeed for the court to override the agreement of the parties who

are of full age and where there is no evidence of undue influence at work in the reaching of the agreement.” 32

At [26]–[27]. 33

UCPR rr 681(1), 687 and 700A; Manly v The Public Trustee of Queensland [2008] QCA 198;

Underwood v Sheppard [2010] QCA 76; Collet v Knox [2010] QSC 132. 34

DW v RW (No 2) [2013] QDC 189; Cerneaz v Cerneaz (No 2) [2015] QDC 73. 35

At [51].

16

compromise, which had been documented in a deed of settlement and release. The

application came before Judge Muir, who made the following observations:36

“Unfortunately, when the application came before me, I was not provided with any

assistance by way of written or oral submissions. The applicant’s solicitor, when I

asked her, could not and did not assist me in any way regarding the relevant

considerations. In the future, parties who appear in this court on such applications are to be prepared to address the relevant considerations and be prepared to assist

the court in identifying the matters relevant to the court’s discretion, in particular

jurisdictional issues.

Parties should not assume the jurisdictional issue is a rubberstamp matter. If, in

the future, parties have a genuine concern about that issue, then, of course,

settlement agreements can be reached without final orders being sought from the

Court. Whilst I accept that this course may pose some discomfort to executors who are placed in such a position, I do not wish, in the future, by having acceded

to the orders sought in this case, to be taken to, in any way, encouraging ill-

considered or unmeritorious applications for family provision.”

47. After stating the relevant legal principles that apply to the Court’s consideration of the

exercise of discretion on an application for final orders, her Honour expressed the

following concerns:37

“In this case, the executors do not accept that inadequate provision has been made

for the applicant, but instead, appear to have settled the matter, given the size of the estate and the legal costs involved moving forward. This practical approach,

of course, does not satisfy the jurisdictional question that I need to turn my mind

to. On the material before me, the applicant’s case appears to be that, given his

unpaid contribution to the family farm, adequate provision has not been made. At first blush, I certainly have some concern about the merits of this application.

The Court cannot rubberstamp a settlement between the parties. It must be

satisfied that its jurisdiction is invoked, that is the applicant has been left

without adequate provision. However, I accept the Court is not to hear the

matter as if it were a contested application and then to give or withhold orders by

comparing the settlement with the judgment it would have given. The proper

approach is to give consideration to the evidence before it, but to be aware of the risks of litigation in an area in which reasonable people can reasonably reach

different conclusions and give proper weight to the fact that the parties wish to

effect the settlement.” [emphasis added]

48. Nevertheless, upon a consideration of the evidence, it was found that the first stage of

Singer v Berghouse was met. Orders were made giving effect to the terms of

settlement.

36

At [2]–[3]. 37

At [25]–[26].

17

Construction of wills

49. In Floyd v Floyd & Ors [2017] QDC 198, the testator’s will took the form of a pre-

printed ‘will kit’ document, with various blank spaces which she had completed by

hand. Probate of the document was granted to her brother, Brian Floyd. However,

ambiguities were apparent. The dispositive provisions were contained in two clauses:

(a) a clause headed ‘Gifts’ which provided for gifts of various chattels; and

(b) a clause headed ‘Residuary estate’, which commenced:

“I give the residue of my estate to: 1/3 HOUSE & CASH ASSETS – Brian F.W. Floyd 2/3 HOUSE & CASH ASSETS –”

and then named eight beneficiaries.

50. The ambiguities that arose were:

(a) in the clause headed ‘Gifts’, a gift of ‘FURNITURE – CAR – INCIDENTALS”

to “B. Floyd” could refer to any of three Floyds named in the will who had the

first initial “B”; and

(b) whether, in the clause ‘Residuary estate’, the gift of “CASH ASSETS” included

the deceased’s shareholdings, or only cash at bank.

51. Judge Andrews referred to the general principles governing the construction of wills,

including the following:38

(a) if the meaning of the words used is clear, they will be given that construction;

(b) if not, the Court may have regard to extrinsic evidence, as allowed by the rules of

construction applied by the Court and s 33C of the Succession Act 1981 (Qld);

(c) the will must be construed as a whole;

(d) it should not be construed in a strictly technical and legalistic sense;

(e) by the ‘armchair’ rule’, the Court may consider all material facts and

circumstances known to the testator with reference to which he or she is taken to

have used words in the will;

38

At [14]–[18].

18

(f) the testator’s language is to be read in the sense the testator appears to have

attached to the expressions used, unless a rule of law gives them some fixed

operation;

(g) the Court must, in construing a will, give effect to the intention of the testator,

which is gathered from reading the will as a whole and gathering the words the

meaning of which, having regard to the terms of the will, the testator intended:

Perrin v Morgan;39

(h) there is a presumption against intestacy; the will should if possible, on a fair and

reasonable construction, be construed so as to lead to a testacy rather than an

intestacy or partial intestacy: Fell v Fell;40 and

(i) where a testator has made a will without professional assistance, the expressions

used in the will should not be construed literally and technically: Re Taylor;

Taylor v Tweedie.41

52. In this case, it was also relevant, in determining the proper construction of the gift of

“CASH ASSETS” to refer to the manner in which the phrase “cash and investments”

had previously been construed in another case: in Parnell v Hinckley,42 the word “cash”

had been given a flexible meaning, in circumstances where there was no residuary

disposition in the will.

53. It was determined that:

(a) The gift to “B. Floyd” was unlikely to have been intended to be to the one of the

three persons of that name who was a minor, since it was unlikely that the

deceased intended that minor to receive her motor car. It was more probable that

she intended that gift to be to her executor, as she had told him that he would be

receiving the relevant items.

(b) A broad construction of “CASH ASSETS” was warranted, so as to include the

deceased’s shareholdings, in circumstances where there would otherwise be a

partial intestacy.

39

[1943] AC 399 at 406 and 420. 40

(1922) 31 CLR 268 at 275-276, 284. 41

[1923] 1 Ch 99 ay 105, 109-11. 42

[2007] WASC 102.

19

An order was made that the applicant’s costs be paid from the estate on the indemnity

basis.

Resignation/removal and appointment of SMSF trustees

54. Perry v Nicholson [2017] QSC 163 concerned a self-managed superannuation fund, and

the question of the formalities required for a change of trustees.

55. Colin Maurice (‘Mr Maurice’) died on 7 January 2017. He was survived by:

(a) his two adult children: Sonia and Ramon; and

(b) his de facto spouse, Jennifer.

56. The relevant events, in chronological order, were as follows:

17 September 2009: Colin Maurice Superannuation Fund (‘the Fund’)

established by trust deed. Original trustees: Mr Maurice

and Sonia. Both signed consents to act as trustee. Mr

Maurice was the sole member of the Fund. Ramon

assisted Mr Maurice in establishing the Fund, and

prepared the accounts and looked after the administration.

October 2010: Mr Maurice and Jennifer began living together.

Late 2014/early 2015: Ramon indicated that he no longer wished to assist with

the administration of the Fund.

3 February 2015: Mr Maurice engaged accountants to administer the Fund.

23 April 2015: The accountants, at the request of Mr Maurice, prepared

various documents:

• Minutes of a meeting of the trustees, which read:

“The trustees of the fund refer to the deed of the

fund dated 17 September 2009.

It is decided to remove Sonia May Perry as a trustee of the fund.

It is decided to appoint Jennifer May Nicholson as

a trustee of the fund.”

• A confirmation of resignation of trustee:

“I confirm my resignation as a trustee of the Colin Maurice Superannuation Fund.”

• A consent to appointment as trustee:

20

“I consent to being appointed as a trustee of the

Colin Maurice Superannuation Fund.”

Those documents were returned to the accountants, duly

signed. A member of the accountants’ staff inserted the

date “23 April 2015” on the minutes and the resignation.

Thereafter, the Fund was administered by Mr Maurice

and Jennifer as trustees, and from time to time Jennifer

signed documents, in that capacity.

September/October 2015: Mr Maurice and Jennifer ceased cohabitation, when she

left their residence.

Late 2016: Mr Maurice was diagnosed with melanoma.

10 December 2016: Mr Maurice moved in with Jennifer.

28 December 2016: Mr Maurice met with his solicitor, to provide instructions

for the preparation of a will, and for the appointment of

Jennifer as his attorney. The instructions were that

Jennifer was to act as executor, and the two children were

each to receive 15% of the estate, with the remainder to

Jennifer. The solicitor advised as to the potential of a

family provision application by the children. A file note

recorded that Mr Maurice intended that Jennifer should

receive the whole of his superannuation fund benefits, as

he wanted her to be well looked after. The solicitor

advised that the superannuation fund was most likely

outside the terms of the will, but Mr Maurice should

check with his accountant to ensure that any binding

nomination was up to date.

4 January 2017: Mr Maurice signed a binding death benefit nomination,

directing the trustees to pay 100% of the death benefit to

Jennifer. The form was signed at the accountants’

officers, in the presence of two of its staff members.

5 January 2017: The will was executed.

6 January 2017: He underwent surgery for brain cancer. Subsequent to

that surgery, he was paralysed and unable to speak or

communicate.

February 2017: A document entitled “Change of Trustee Deed for Self-

Managed Superannuation Fund” was prepared by the

21

accountants, as they had noticed that a change of trustee

deed had not been supplied to them in respect of the

resignation of Sonia and the appointment of Jennifer as a

trustee. The accountants advised that such a document

was necessary before they could prepare an updated trust

deed, in light of recent budget changes concerning

SMSFs. The document was signed by Mr Maurice, Sonia

and Jennifer, but the date 23 April 2015 was inserted. It

was unclear, on the evidence, whether that date had been

inserted by the accountants or by Jennifer.

7 March 2017: Mr Maurice died, in hospital.

57. Sonia applied to the Supreme Court for declarations to the effect that she remained a

trustee of the Fund, and that the binding nomination was invalid. The Originating

Application named Jennifer as Respondent.

58. Jennifer contended that Sonia had been removed as a trustee, and that the binding

nomination was valid.

59. The relevant clause of the Fund deed, clause 183, provided:

“The trustee will determine who acts as trustee in accordance with this deed and

superannuation law for the fund to continue as a self managed superannuation

fund and will take the necessary steps to appoint or remove the persons or body

from the office of trustee. The trustee may accept the trustee’s resignation in

writing for this purpose.

• The appointment or removal of a trustee must be in writing and must

immediately be advised to any other trustee.

• Where the trustee is unable or unwilling to determine who will act as trustee

then the majority of members of the fund will determine who will act as trustee. If there are no members in the fund, the former members of the

fund (or their legal representatives) will determine who acts as trustee of the

fund.” [emphasis added]

60. Justice Boddice accepted the submissions made on behalf of Jennifer43 that, at law,

there is a distinction between the removal of a trustee and a retirement of a trustee. A

trustee may only be removed from office pursuant to:

(a) an express power contained in the trust instrument; or

(b) the statutory powers for the appointment of new trustees under the Trusts Act

1973 (Qld) (or other relevant statutory powers); or

43

At [27]–[29].

22

(c) the Court’s inherent jurisdiction.

A trustee may retire:

(a) where the trust instrument expressly or impliedly authorises the trustee to do so;

or

(b) as a consequence of the appointment of new trustees under the relevant statutory

power (where the trustee exercises a statutory right to retire or is permitted to

retire by the Court).

61. Clause 183 expressly:

(a) authorised the retirement of a trustee, by way of “a resignation in writing”; and

(b) provided for the appointment or removal of a trustee (in writing, with any other

trustee being advised immediately).

62. His Honour concluded that Jennifer was validly appointed as a trustee of the Fund on

23 April 2015 because:

(a) she signed a confirmation of her consent to be appointed as a trustee of the Fund

on 23 April 2015;

(b) whilst there was no formal document entitled “Appointment of Trustee”, the

minutes of the meeting, properly read, constituted an appointment of Jennifer as

trustee, and satisfied the requirements of clause 183; and

(c) since Mr Maurice signed those minutes, he was advised at that time of Jennifer’s

appointment as trustee immediately, which satisfied the remaining requirements

of clause 183.

Statutory will applications

Mr PL v Mrs R

63. In Mr PL v Mrs R [2017] QSC 249, an application was made seeking the authorisation

of the making of a will for Mr L, who was 88 years of age and suffered from dementia.

64. Mr L was a resident of a nursing home. His wife, Mrs R, was also resident there.

65. They had married late in life, in 2001. At that time, they had been in their early 70’s,

and were both widowed. They each had children from their first marriage:

(a) Mr PL had three sons: Mr MML, Mr MJL and Mr PL; and

23

(b) Mrs R had one daughter: Ms A.

66. Mr L and Mrs R had commenced living together in about 1999. In 2000, Mrs R sold

her townhouse, and they purchased a house jointly and moved in there together. In

about December 2002, they sold that house. Mr L then purchased a townhouse at Port

Macquarie, and they lived there together for approximately 19 months. In November

2002, Mrs R purchased a townhouse at The Gap. In 2007, Mr L purchased a property

at Banksia Beach. From that point, they together lived primarily at The Gap property,

but spent time periodically at Banksia Beach.

67. In 2010, Mrs R’s health started to decline. She made an enduring power of attorney,

appointing Mr L as attorney for financial matters (with Ms A as alternative attorney),

and Mr L and Ms A jointly for personal and health matters.

68. In 2011, Mrs R was diagnosed with Alzheimer’s disease and dementia.

69. At around that time, Ms A became concerned that Mr L’s mental capacity was also

deteriorating. There had been an incident where they had gone on a road trip and

become lost.

70. Ms A spoke to both her mother and Mr L about them going into a retirement village,

and also discussed the same matter with Mr PL, but that suggestion was not taken up.

71. In 2015, Mr L accidentally backed his car into Mrs R and knocked her over. She spent

five weeks in hospital.

72. There were different views, between the respective children, as to what should be done

regarding Mr L’s care and Mrs R’s care. Ms A thought that her mother needed to be in

a nursing home. Mr PL thought they should continue to live at home.

73. Ms A found a nursing home, and arranged for Mr PL and Mr L to meet here there, to

take a look. The judgment notes:44

“Ms A gave evidence that she heard a conversation between Mr L and Mr PL, in

which Mr L stated that he did not care what the price was and that he would buy Mrs R’s room as she was his wife and his responsibility and he wanted her to be

taken care of and he wanted to be close to her. Mr PL responded to his father that

that was not appropriate as it would impact on his children’s inheritances. Mr PL did not dispute that he made such a statement.” [emphasis added]

44

At [22].

24

74. Ms A was concerned at the delay. She made an application to QCAT to be appointed

as her mother’s guardian and administrator.

75. Ultimately, Ms A found a room for her mother at a Sunshine Coast aged care facility.

Mr PL took Mr L to visit the facility. But in December 2015, Mr PL told Ms A that

Mr L would not sign the paperwork for Mrs R to go into the facility unless he was

guaranteed a room.

76. Ms A was subsequently appointed by QCAT as her mother’s interim guardian and

administrator, and placed her mother into the Sunshine Coast nursing home. Mr PL

arranged for his father to be placed in the same home.

77. Thereafter, tensions arose between Ms A and Mr PL regarding the nursing home

payments required for Mrs R. A particular form needed to be completed and provided

to the Department of Human Services, containing details of the financial circumstances

of both Mrs R and Mr L, so that they could calculate the means-tested care payment

which Mrs R would have to pay. There was some delay in Mr PL attending to that.

78. Mrs R was subsequently assessed as being in a high bracket for payments required for

the nursing home, on the basis of the combined assets of herself (approximately

$764,000) and her husband (approximately $3 million).

79. In January 2016, Mr PL began to act as his father’s attorney. He went through his

father’s documents, and located some testamentary documents:

(a) a will prepared by the Public Trustee, on or about 26 August 2004, which

provided for the Public Trustee to act as executor, and for Mr L’s estate to be

distributed:

(i) 25% to Mrs R, with a default gift to Ms A; and

(ii) 75% to Mr L’s three sons, with a default gift in favour of their respective

children;

(b) a draft, handwritten testamentary document, which apparently had a date of

11 August 2008 written on the back of it, which provided for:

(i) a gift of $10,000 to Ms A;

(ii) 25% of the remainder to Mrs R, with a default gift in favour of Mr L’s three

sons; and

25

(iii) 75% to the three sons, with a default gift in favour of their respective

children; and

(c) an unsigned ‘will kit’ document dated 8 November 2009, which provided for:

(i) 25% to Mrs R; and

(ii) 25% to each of the three sons.

80. Ms A was concerned that her mother’s means-tested payment was calculated at a

significantly higher rate because she was married to Mr L and his assets were taken into

account. She sought legal advice, to try to negotiate an agreement whereby Mr L

would provide some financial assistance to Mrs R in respect of those accommodation

costs. A letter was written to Mr L, seeking that he pay Mrs R’s means-tested care

payment, interest on the unpaid refundable deposit and half of the expenses for the

property at The Gap.

81. In May 2016, Mr PL sought medical opinions as to his father’s capacity. Two reports

were provided by Dr Dudderidge. The first stated that Mr L lacked testamentary

capacity but was able to communicate effectively who he wanted to include in his will

and who he wanted to exclude, and to make basic financial decisions. The second

stated that Mr L did not have capacity to enter in a contract.

82. In June 2016, Ms A (as litigation guardian for her mother) commenced family law

proceedings, seeking orders that Mr L pay Mrs R’s means-tested payment and the daily

interest on her unpaid refundable deposit. Mr PL acted as litigation guardian for his

father in that proceeding. The proceeding resulted in some acrimony between Mr PL

and Ms A.

83. In those proceedings, a form was completed by another doctor, Dr Attoti (who had not

been provided with copies of the previous reports of Dr Dudderidge), stating that Mr L

could make simple decisions and complex decisions as to personal, health care, lifestyle

and financial affairs. No opinion was expressed as to testamentary capacity.

84. In October 2016, Mr PL arranged for his father to see another doctor, Dr Mikli, for an

assessment of his testamentary capacity. Dr Milki considered that Mr L did not have

testamentary capacity but could make basic financial decisions.

85. Notwithstanding the doubts as to capacity expressed in the medical reports, Mr PL

organised for his father to see a solicitor, to discuss changing his will. He said he did

26

so because his father had discussed with him, over some months, that he wished to

change his will, particularly as a result of the proceedings brought by Mrs R, so that Ms

A did not inherit any of his estate.

86. Mr PL considered that, as regards the testamentary documents that he had found (see

paragraph 79 above), in each ‘rewrite’, the provision allocated to Ms A was reduced.

In the judgment, her Honour made the following finding, in respect of those

documents:45

“… I do not attribute any great significance to the handwritten documents which were located by Mr PL, given that Mr L had chosen not to formalise them or have

them executed. There is a significant gap in the time between when they were

written and the present. Having made a Will in 2004, and having obtained a

testamentary will kit, it is evident that Mr L was aware of the process to make a will and its requirements in 2008. Mr L took no steps to formalise a will in those

terms and did not sign the drafts. Thus, having not executed the draft wills or

given further instructions for a new will and given the passing of time, little weight can be attached to those documents in terms of his testamentary intentions.”

87. The solicitor attended on Mr L at the nursing home on 2 November 2016. Mr PL was

there, and handed the solicitor a copy of Dr Mikli’s (brief) report. A file note of the

meeting recorded that the solicitor initially met Mr PL and Mr L together, and Mr PL

provided details of the circumstances by which Mrs R came to reside at the home and

the family law proceedings. The solicitor then asked Mr PL to leave the room. The file

note recorded:46

“He expressed to me that he feels that his step-daughter, [Ms A] does not deserve

to inherit through his Will and advised me that these feelings were based on:

• The actions that she had taken to make monetary claims on behalf of her

mother, [Mrs R]. He perceives those claims as being simply an attempt by

[Ms A] to protect [Mrs R’s] assets with a view to maximising the inheritance which [Ms A] will receive under [Mrs R’s] Will on [Mrs R’s]

death. He advised me that he was aware that [Mrs R’s] Will provided

solely for [Ms A] in the event of her death.

• The fact that he and [Mrs R] have always kept their financial affairs

separate since they married and this was with the intent that each of them

would be free to leave their estate on their death to their natural children.

He feels that given the circumstances [Ms A’s] inheritance should lie from

her mother, [Mrs R] rather than through his Will.

• [Mr L] wants his estate to provide sufficient monies for [Mrs R] to meet

her needs but that after this he would like the whole of the estate to pass to

the [Mr L’s] family – his three sons.”

45

At [57]. 46

At [62].

27

88. The solicitor told Mr PL that he considered Mr L could provide coherent instructions,

but that he was concerned that any new will may be attacked on the basis that Mr L

lacked testamentary capacity. Mr PL gave instructions to proceed with preparing the

will.

89. The solicitor attended on Mr L again on 15 November 2016. Mr L had some difficulty

recalling names (for example, the name of his step-daughter), but the solicitor thought

he understood the nature and effect of the will. The will was signed.

90. On 6 December 2016, a mediation was held in the family law proceedings. A

compromise was reached, to the effect that Mr L pay the daily interest on the unpaid

amount of Mrs R’s refundable accommodation deposit, and a sum of $76,639.70

calculated with respect to the lifetime cap that needed to be paid, and some additional

monies by way of reimbursement for payments already made by Mrs R. Orders were

made by the Federal Circuit Court, by consent, on 9 March 2017.

91. However,47

“The agreement in the family law proceedings was not reached on the basis of

Ms A, acting on behalf of Mrs R, being aware of the terms of the November 2016

Will, such that there was any acceptance of that position at the time the settlement

was reached.”

92. A statutory will application was subsequently made by Mr PL, seeking that a will be

authorised to be made for his father, which would provide for:

(a) a trust of 25% of the estate, under which Mrs R would be entitled to income, and

the trustee would have discretion to distribute capital in her favour, with any

remainder to pass to Mr L’s three sons; and

(b) 75% of the estate to the three sons.

Mr PL contended that such a will would reflect his father’s testamentary wishes,

particularly in light of the orders made in the family law proceedings.

93. Ms A acted as litigation guardian for her mother in respect of the statutory will

application. She agreed that a will should be made, but was of the view that such will

should essentially follow the terms of the 2004 will that Mr L had made with the Public

Trustee, because there was insufficient evidence of any reliable nature that Mr L would,

if he had capacity, adjust his will in the manner proposed by Mr PL.

47

At [102].

28

94. Both parties were in agreement that there was sufficient evidence for the Court to

conclude that requirements for the Court to grant leave (s 24 of the Succession Act)

were met, and the essential dispute was as to what form of will it may be appropriate

for the Court to authorise be made.

95. At the hearing, Mr PL, Ms A and the solicitor who prepared the 2016 will were cross-

examined.

96. Justice Brown found that the solicitor had acted diligently in his meeting with Mr L and

in drafting the will and explaining it to Mr L. However:48

“… the instructions he was given by Mr L have limited weight and his assessment

of Mr L’s capacity and ability to give instructions is overstated, given that:

(a) he had not met Mr L prior to those occasions which would make any

assessment of his to give instructions difficult;

(b) he was provided only with the handwritten opinion of Dr Mikli. He had been told by Mr PL that Mr L had a bad day the day he attended the

geriatrician and was not provided with any other reports by Dr Duddridge or

Dr Attoti;

(c) he did not probe Mr L in terms of his understanding about the family law proceedings, nor how he gained that understanding;

(d) he did not raise the fact that Mrs R could make a family provision

application under the Succession Act 1981 as Mr L’s spouse;

(e) he had no knowledge of Mr L’s assets, such that he was unaware that Mr L

left out significant assets in his discussions with [the solicitor], not

informing him of the $750,000 that he had in his bank account, the value of his shares or the bond paid to the nursing home;

(f) it was evident that he had chosen the discretionary trust as the most

appropriate mechanism for Mr L to adopt in his Will, rather than being

instructed to use a trust. On the second occasion, while I accept he explained the Will in detail, Mr L at that meeting could not remember Ms

A’s name, had difficulty identifying his sons’ names and also in identifying

his assets. Mr L also could not remember why they were meeting with Mr McColm, nor did he recognise [the solicitor] when he approached in the

driveway;

(g) he did not ask whether Mr L had discussed the proposed changes with

anyone such as Mr PL.”

97. Her Honour found that Mr L was unlikely to have had testamentary capacity at the time

he executed the will in November 2016.

98. The requirements for leave (s 24 of the Succession Act) were found to be met. In

particular, as regards s 24(e) (whether ‘it is or may be appropriate for an order to be

48

At [71].

29

made’), one of the relevant factors was that, as matters stood, it was likely that there

would be a dispute as to whether Mr L’s last valid will was the 2004 will or the 2016

will.

99. The arguments advanced by Mr PL in support of his proposed draft will were, in

essence, that:

(a) the family law proceeding, and the orders made in that proceeding, were a

significant event which would not uncommonly give rise to the parties revisiting

their estate planning;

(b) the orders had the effect of finalising the parties’ financial relationship, and

should be given full effect;

(c) a party who has entered into a financial settlement that has divided the parties’

assets would usually wish to make a will to exclude the other party;

(d) it is not uncommon for partners in a second marriage to make some provision for

second spouse but safeguard their assets for their natural children;

(e) the 2008 draft wills and the 2016 will changed the treatment of Mrs R’s share on

each re-write, and reduced the provision to Ms A; and

(f) Mr PL, based on his reading of the testamentary documents and his discussions

with his father, considered that Mr L intended to provide for Mrs R during her

lifetime but did not intend to enlarge her estate assets.

100. Ms A argued that:

(a) the form of will proposed by Mr PL would likely provoke a family provision

application, given that Mrs R, a wife of 16 years, had no certainty of receiving

any capital benefit under such will;

(b) the family law settlement was not a typical property settlement; if a full property

settlement had been pursued, Mrs R may have been entitled to an increased sum,

in light of the size of Mr L’s estate and the length of their marriage; and

(c) given Mr L’s lack of capacity, the best evidence of the will he would now have

made was the 2004 will.

30

101. Her Honour found that, on the evidence, it was not clear that Mr L would probably

have made a will in the form proposed by Mr PL, if he was aware of the family law

proceedings and their outcome. It was relevant, in this regard, that:

(a) the property settlement orders did not provide for a generous settlement which

would, in the circumstances, be likely to cause Mr L to change the share of the

estate he had provided for Mrs R;

(b) he had made provision of a 25% share for Mrs R in his 2004 will,

notwithstanding that this was a second marriage for both of them;

(c) the 2008 drafts were never formalised or acted upon;

(d) the provision, in the 2016 will, for a trust was not something that was instigated

by Mr L, who lacked the capacity to understand what a trust was and its operation

on the share of the estate to be provided to Mrs R; and

(e) Mr L was strongly influenced in his views by his discussions with his son Mr PL,

and his son’s strongly held views.

102. As regards Mr L’s appreciation of the family law proceedings, her Honour found:49

“Mr PL accepted that his father had a poor understanding of the family law proceedings. He also agreed that it was doubtful whether his father understood the

family law proceeding but considered that he understood the overall reason

behind it.

I consider that Mr L’s understanding and his statements to Mr McColm and

Dr Siddle were influenced by the beliefs of Mr PL in their discussions. Mr PL was

responsible for explaining the family law proceedings to his father. I also consider

that Mr PL’s evidence as to Mr L’s obvious intention as to his will was influenced by his own views. While I do not find that Mr PL was acting in an improper way,

it is plain that he was discussing his father’s Will and the family law proceedings

with his father while his father was declining in cognitive capacity. I consider that Mr PL would have expressed his strongly expressed views to his father. I find in

those circumstances it is impossible to find Mr L formed his own views freely

from the influence of his son.”

103. Similarly, as regards the testamentary wishes apparently expressed by Mr L:50

“Insofar as Mr L has made expressions of his testamentary wishes, the weight to be attached to such wishes has to be considered carefully, given that the wishes of

a person who does not have capacity do not carry the same weight as those of

someone who does.51

49

At [107]–[108]. 50

At [96]–[97]. 51

VMH v SEL [2016] QSC 148 at [132].

31

A statement of intention by a party who lacks capacity may warrant very

little weight if the incapacity leads the person to be mistaken about the truth

or if they are vulnerable to suggestion, improper influence or bad advice,

being a vulnerability which the person would not have experienced if he or

she had testamentary capacity.” [emphasis added]

104. The following findings were made:52

“Counsel on behalf of Mr PL places reliance on the case of White v Gillam,53

where in the context of Victorian legislation, McMillan J considered a financial

settlement was significant in determining whether the proposed will reflected what

Mrs Gillam’s intentions would likely be or might reasonably be expected to be if

she had testamentary capacity.54

The evidence of what her testamentary intentions were was derived from what was contained in her three Wills, executed prior to

her dementia becoming evident in 2012. Under each of those three Wills, she did

not leave the defendant, her second husband, a substantial part of her estate, nor did she leave the defendant anything close to the sum he received under the

financial settlement made pursuant to the Family Law Act, which was

approximately 53/47 per cent in favour of Mrs Gillam. In the circumstances of

that case, her Honour found that, if Mrs Gillam had testamentary capacity after the financial settlement with the defendant, her intentions would likely have been for

her to continue to provide for the legacies to her grandchildren, stepdaughter and

step-grandchildren and to leave the residue of her estate to her two sons equally but not the defendant.

In that regard, White v Gillam is different from this case. The settlement effected

between Mr L, by his son acting as litigation guardian, and Mrs R, by her litigation guardian Ms A, did not provide a more generous settlement than that contained in

Mr L’s 2004 Will, nor, to the extent that they are of any evidential weight, that

contained in the handwritten wills of approximately 2008. In fact, the settlement

under the family law orders is significantly more limited and less than what Mrs R would otherwise have received. That is so, even taking into account the terms of

the proposed will in the form of PL-14 given it only provides for a discretionary

trust as to capital.”

105. As regards the family law proceedings, her Honour found as follows:55

“I accept that Ms A’s actions in instigating the family law proceedings on behalf of her mother were taken not to ensure her own inheritance was protected but on

the basis that she considered it necessary to be in a position to sustain Mrs R’s care

for a period of time. Mr L had previously stated that he would support her mother in the nursing home. Her mother’s fees were much higher in the nursing home as

a result of the fact that the means-tested payment was calculated on the basis of the

assets of both Mr L and her mother, with Mr L’s assets far exceeding her mother’s.

That is supported by her seeking financial advice as to how to fund her mother’s time at the nursing home. In relation to the unpaid refundable deposit, she had

also proposed that rather than Mr L paying her mother’s daily interest, she was

willing to enter into a loan agreement whereby her mother’s estate would repay the $249,000 paid by Mr L.”

52

At [99]–[100]. 53

[2016] VSC 5. 54

Wills Act 1997, s 21B(b). 55

At [104].

32

106. A will was ordered to be made in the terms proposed by Ms A, with three adjustments:

(a) the appointment of Mr PL as executor;

(b) the distribution of 25% to Mrs R was to be reduced by $76,639.70 (being the

amount referred to in the property settlement orders); and

(c) in the event that Mrs R predeceased Mr L, her share was to pass to his three sons,

equally.

107. As regards costs, an order was made that the parties’ costs be assessed on an indemnity

basis and paid out of the estate of Mr L, on the basis that the application was partially

successful and Mrs R’s litigation guardian was properly a party.56

A Limited v J

108. In A Limited v J [2017] NSWSC 736, an application was made in urgent circumstances,

seeking the authorisation of the making of a will on behalf of N, a 13 year old child. N

suffered from a significant number of extreme physical disabilities caused by his brain

being deprived of oxygen at birth. A personal injuries claim against the owner of the

hospital had been settled in 2008. A Limited had, since 2009, acted as manager of N’s

estate, pursuant to an order of the Court.

109. A Limited had been preparing to make a statutory will application, and an affidavit had

been sworn by N’s mother on 18 May 2017. The summons was filed on 31 May 2017,

in circumstances where N had suffered bleeding in his lungs and was to undergo a

medical procedure the following day. A letter from a paediatrician at the hospital

stated that there was a risk of death resulting from the procedure, but that it was

considered necessary. There was also evidence that, whilst N’s condition was

relatively stable, he had had to be revieved with some frequency, and was at a relatively

constant risk of death.

110. The matter came before Robb J, sitting as duty judge. His Honour was satisfied, on the

evidence, that there was a real risk that N might die the following day.

111. N was the youngest of seven children. His assets managed by A Limited had a value of

around $3.2 million, including a house property valued at approximately $1.5 million,

in which N, his mother and the youngest two of his siblings lived. In addition, a

56

Mr PL v Mrs R [2017] QSC 311.

33

substantial amount of money from the settlement of his personal injuries claim had

been invested in superannuation.

112. On intestacy, N’s estate would pass to his parents in equal shares, and the trustee of

superannuation fund would determine how the superannuation benefits were to be paid.

113. The factual background of N’s family circumstances was set out in the mother’s

affidavit. Robb J noted that, in short, the mother said that:57

“… the father had never taken any real interest in N’s welfare, the mother and

father separated and the father essentially left the mother with the entire

responsibility for providing for the extreme care needs of N, which was as is now

commonly said, on a ‘24/7’ basis. The mother said that the father had rarely seen N over the years, and had not provided for his needs in any real way.”

114. The proposed will provided for A Limited to act as executor and trustee, for the house

and certain other property to pass to N’s mother, and for the residue to be divided as to

one half to the mother and the other half between the six siblings equally. The mother

proposed that a will be made in those terms, or alternatively in terms of a draft prepared

by her solicitors, which provided for the residue to be held on testamentary

discretionary trusts.

115. The urgent circumstances in which the application was brought posed a practical

difficulty, in that the father had only the previous afternoon been notified of the

application and provided with copies of the documents that were to be relied upon.

Notwithstanding the short notice, he had engaged a solicitor and was represented by

Counsel at the hearing. Robb J observed:58

“While the plaintiff could possibly have commenced the proceedings by filing the summons earlier, there has been no suggestion that the plaintiff was at fault in

failing to do so, as N’s recent life-threatening episode was not expected. If the

Court were to dither and not act upon the application, and N were to die during or as a result of the procedure intended to be implemented on 1 June 2017, then in

reality N would have been denied his entitlement under the Act, and the Court

would have failed to accord him the protection to which he is entitled. On the

other hand, the Court must always strive to give all parties to proceedings a proper opportunity to be heard, and to put evidence before the Court. If the Court had

made the orders sought by the plaintiff and the mother, the practical effect would

have been that the father would have lost a potential right to receive $1.6 million, when he had been notified of the application on the day before, and his solicitor

had been retained on the morning of the hearing.”

57

At [21]. 58

At [35].

34

116. The father had not had the opportunity to serve any affidavit material but, pursuant to

s 21(b) of the Succession Act 2006 (NSW) (which relaxes the rules of evidence in

respect of the hearing of an application for an order under s 18), Robb J permitted his

Counsel to inform the Court of the evidence that he would have given, the essence of

which was as follows:59

“It is sufficient to record that the father’s counsel did not say that the father

contested the general thrust of the mother’s evidence. The father, had he been

given the opportunity, would have said that he provided more material and emotional support to N than the mother described, and further that his capacity to

support N had been substantially restricted by the consequences of the marital

breakdown and the collapse of the relationship between him and the mother. In essence, counsel for the father put to the Court that the father would have given

evidence that the mother had overstated to some degree the reality of the father’s

alleged abandonment of N.”

117. The hearing was adjourned briefly, in order to enable the parties to confer, to see

whether a compromise could be reached. The parties were unable to reach an

agreement, but an amended draft of the will was put forward for the Court’s

consideration. The amended draft retained the gift of property (including the home) to

the mother, but added the father as a party to receive a share of the residue, although

there were three blank spaces for the identification of the percentages to be received by

the mother, father and six siblings. In relation to that draft:

(a) A Limited and the father proposed that the blanks should be completed as to 1/3

for the mother, 1/3 for the father, and 1/3 to be shared between the siblings. A

Limited submitted that, given the urgency of the application, an even-handed

approach was warranted.

(b) The mother submitted that the father should receive 5%, and that the balance

should be shared between the mother and the siblings equally.

The draft also included an adjustment clause, in respect of which all of the parties were

in agreement, which provided a discretion to the executor, in the event that assets from

the superannuation fund were paid directly to the mother or father, to reduce the share

of the estate to be received by the mother and father, as fully as was possible, to ensure

that they received the amounts that they would receive by operation of the will.

59

At [23].

35

118. Robb J indicated that the Court was faced, in these circumstances, with the need to deal

with three questions:60

“(1) What was the appropriate course for the Court to take given the urgency of

the application, the short notice given to the father, the contentious nature of

the application, and the insufficiency of time for the Court to consider its

judgment?

(2) How was the Court required by the Act to proceed in a case where the

plaintiff and the mother initially contended for one proposed will, but the

form of the proposed will was amended by the parties in a way that the parties contended for different terms, and the determination of the content of

crucial terms was left to the Court?

(3) On what basis should the Court determine the terms that ought to be

approved and be made the subject of an order authorising the making of a will for N on those terms?”

119. It was clear that the circumstances would, in almost all other situations, be appropriate

for the making of interlocutory orders, followed by final orders at some later time on a

fully contested basis. However, the provisions of the Succession Act do not confer

power to authorise the making of a will on an interlocutory basis.61 His Honour

therefore approached the matter as follows:

(a) The Court has power, under s 20(2) of the Act, to “revise the terms of any draft of

the proposed will”. His Honour observed62 that this is a remedial provision,

which is not limited to the Court accepting revisions offered by the applicant or

any other party. It permits the Court to initiate or decide upon a revision of the

draft that is to be the subject of leave under s 19.

(b) The Court also has power, under s 18(5) of the Act, in making an order under

s 18, to “give any necessary related orders or directions”. This enables the Court,

in appropriate circumstances, to order that the making of a will does not exhaust

the claim for relief in the summons, and to give directions for the service of

further evidence and the fixing of a hearing for a further application for the

exercise of the Court’s discretion under s 18.

60

At [44]. 61

At [45]. 62

At [48]-[52], noting that in Secretary, Department of Family & Community Services v K [2014] NSWSC 1065, Lindsay J had prepared an alternative form of draft will, for consideration by the

parties.

36

120. The reasons why this approach was warranted were as follows:63

“Where the Court must deal with a profound need for expedition, there is plainly

the risk that the Court will authorise the making of a will that is not the most

appropriate one, but also a risk that if it declines to act the Court will deny the incapacitated person the benefit of the rights created by the statute. In a real way it

was necessary for the Court to exercise its jurisdiction urgently, and in my view it

was equally necessary for the Court to ensure that the exercise of its discretion was revisited to ensure that ultimately its jurisdiction to authorise a will to be made for

N was properly exercised after due consideration.”

121. Orders were made that authorised the making of a will in the form of the amended

draft, with the blank percentages completed to provide 15% of residue to the father,

42.5% to the mother, and 42.5% to be shared between the siblings. The basis for this

appears in the reasons:64

“It is sufficient to say that I made an evaluative and intuitive judgment as to what I

thought objectively N would reasonably have decided, had he been capable of doing so, as to the appropriate shares in his estate to be received by the members

of his family. In doing that I balanced the considerations that led Palmer J in

AB v CB [2009] NSWSC 680 to exclude the teenager’s estranged father from participation in the estate, against those that led the same judge in

Re Elayoubi [2010] NSWSC 1004 to include a provision for the estranged father.

I also recognised the force of the observation made by Lindsay J in Secretary,

Department of Family & Community Services v K (above), at [81], where he said

that the “Court must be careful not to be overly judgmental about personal faults

within a family, and how such faults may impact on family relationships”. I

acknowledged, however, that I did so having made allowance for the fact that the father had not had an opportunity to put any evidence before the Court, and that

there is always a danger in the Court acting solely upon the evidence of one party

to a failed marriage concerning the conduct of the other party.”

122. The following notation was included:

“6. Note that these orders are made on the basis that they do not exhaust the claim by the plaintiff in the summons for the authorisation of a will to be

made on behalf of [N] with the intent that as soon as the directions of the

Court and the availability of the Court permit the plaintiff and the other parties will have an opportunity to seek or to defend the relief sought in the

summons filed 31 May 2017 as if the orders made today were of an

interlocutory nature.”

123. The reasons contain some significant observations in relation to the ‘core test’ (s 22(b)

of the Act: “the proposed will ... is, or is reasonably likely to be, one that would have

been made by the person if he or she had testamentary capacity”), and the inter-

relationship between that provision and the Court’s discretion under s 18. His Honour

63

At [54]. 64

At [57].

37

considered the three categories of case where the Court may be asked to authorise the

making of a will, as identified by Palmer J in Re Fenwick:65 ‘lost capacity’, ‘nil

capacity’ and ‘pre-empted capacity’, and agreed with the observation made by

Lindsay J in Secretary, Department of Family & Community Services v K,66 that “those

categories may provide useful insights into the operation of the Court’s will-making

power, but they should not be taken as a substitute for the text of the legislation itself”.

Robb J, after considering Re Fenwick and two other decisions of Palmer J,67 found as

follows:68

“When these decisions are considered carefully, however, in my view it becomes

clear that Palmer J did not approach the question of whether the Court should authorise the making of a statutory will on the basis that there was a rule that the

Court should do so if the proposed will was one that it was reasonably likely, in an

objective sense, that the incapacitated person would have made if that person had testamentary capacity. The better explanation of the approach adopted by

Palmer J is that the cases that he decided were relatively uncontroversial, and a

consideration of whether or not it was reasonably likely that the incapacitated

person would have made a will in terms of the proposed will was a satisfactory proxy for all the considerations that in theory may arise when the Court exercises

its power in s 18 of the Act to authorise the making of a statutory will.”

It was also clear, from Palmer J’s analysis of circumstances in which it might be

appropriate for the Court to consider a “putative family provision claim” at the time of

hearing the statutory will application, that there would be cases where the Court would

be required to go far beyond being satisfied that the proposed will was reasonably

likely to be one that would have been made by the incapacitated person.69

124. As regards the ‘core test’, a further observation was made, concerning the possibility

that a number of draft wills might meet the requirement:70

“Under par (b), if the Court is not satisfied that it is reasonably likely that the

incapacitated person would have made the proposed will, the Court must refuse

leave under s 19. It does not follow that if par (b) is satisfied, the Court must grant leave, or authorise a will in terms of the proposed will. This is unsurprising, as

there may be a number of people who could satisfy the Court that they are

appropriate applicants for the purposes of s 22(b), and those persons may have

different interests, and may propose different wills. If the issue in s 22(b) is

whether it is objectively reasonably likely that the proposed will is “one” that

65

Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530. 66

[2014] NSWSC 1065 at [76]. 67

Re Estate of Crawley [2010] NSWSC 618 and Re Sultana [2010] NSWSC 915. 68

At [77]. 69

At [79]-[80]. 70

At [82].

38

would have been made by the incapacitated person, that test may be satisfied

if the proposed will is one of many that the incapacitated person could

reasonably have made. Section 22(b) does not require that the proposed will

be the one that it is most likely that the incapacitated person would have

made.” [emphasis added]

125. The fact that meeting the ‘core test’ does not necessarily lead to the making of an order

was also stressed:71

“It would have been entirely unsatisfactory if the Court had been required to

authorise the making of a will simply because it was within the range of what the incapacitated person could reasonably have made, and was proposed by one of a

number of appropriate applicants who had different interests in the terms of the

statutory will.

Section 18 of the Act is the primary source of the Court’s power to authorise the making of a will for an incapacitated person. The use of the word “may” in

sub-s (1) clearly shows that the power is discretionary.”

126. In accordance with directions made for the conduct of the proceeding, further evidence

was served by the mother and the father. An amended summons was filed by the

plaintiff, A Limited, seeking the authorisation of the making of a will in the same form

as the will that had been authorised by Robb J, save that the adjustment clause had been

revised, in order for that clause to achieve its intended purpose. The amended

summons was heard on an expedited basis by Ward CJ in Eq, on 30 June 2017.

127. At that second hearing, there was cross-examination of the mother and four of the

siblings. Her Honour summarised the factual dispute as follows:72

“It is fair to say that there were significant factual disputes revealed by the affidavit evidence, largely as to the role the Father has played in the Child’s life

and that of his other children including as to: whether the Father had taken an

interest in the Child’s welfare; whether he was involved or the extent to which he was involved in caring for the Child during the Child’s early years; whether he had

provided emotional support for the Child; the extent to which he had seen the

Child over the years; and whether he could be regarded as having abandoned the

Child. The factual disputes as to the Father’s relationship with the siblings included matters such as the extent to which he was involved in caring for them

while the Mother was (as she was from time to time) spending time with the Child

during periods of hospitalisation; and as to the interest/support shown by the Father in or for various of the siblings over the years.

The nub of the factual dispute in this regard is that the Father maintains that the

Mother has understated his contribution to the Child’s welfare over the years and, in essence, attributes blame for the lack of time spent by him with the Child at

least in part to the Mother; the Mother, on the other hand, believes that her ex-

husband effectively abandoned the Child and the family as a whole. …”

71

At [82]-[83]. 72

A Ltd v J (No 2) [2017] NSWSC 896 at [24]-[25].

39

128. Her Honour found that the siblings’ evidence indicated that there was a lack of any

close relationship for at least the last couple of years between the father and any of the

siblings, let alone with N. At most, on the siblings’ evidence, the father had had only

sporadic contact with N in the last few years. Apart from making that observation

about the siblings’ evidence, her Honour indicated:73

“… it is not necessary, nor is it appropriate, to make any finding as to where the

truth lies in relation to why there was a break-down in the relationship between the

Father and his children. Understandably, the perception of members of the family as to historical family events is likely to be coloured by their emotions. Counsel

for the Father emphasised in this regard the siblings’ support for their mother,

which it was submitted meant that their evidence should be approached with care. Nevertheless, as I have indicated above, I considered the siblings’ evidence on the

whole to have been given in a balanced way. Similarly, although the Mother was

clearly reluctant to make any concession that might shed a positive light on the

Father’s conduct over the years (such as her dismissal of his financial or other contribution to the family in the early years of the Child’s life), and there may well

have been an element of understatement in her account of the time the Father spent

with the Child in the early years, her account of the significant amount that she had done for the Child over the years was compelling.”

129. Her Honour concluded that, on the evidence, the mother had had the most significant

role in N’s life, and the closest and most significant relationship with N for the whole

of his life. Each of the siblings had also established a close relationship with N, and

given assistance to the mother and N over the years.

130. As regards the superannuation, the parties accepted that, on the evidence, the mother

and the two youngest siblings of N may be a “dependant”, for the purposes of the

relevant clause of the superannuation fund trust deed that provided for the payment of

death benefits. Her Honour noted, however, that there might be changes in the family

circumstances which would have the effect that the class of persons who could receive

a benefit would vary.74

131. Her Honour considered the various information provided to the Court pursuant to s 19

of the Act, and the five requirements for leave stated in s 22. As regards s 22(c) (“it is

or may be appropriate for the order to be made”), the fact that the class of “dependants”

for the purposes of the superannuation fund trust deed might change was found to be a

sufficient basis for s 22(c) to be satisfied. Leave was granted.

73

At [27]. 74

At [18].

40

132. In considering the substantive application under s 18, her Honour identified that, having

found that N lacked testamentary capacity, there were two questions to be considered:75

(a) whether a (new) will should be made for N; and

(b) what is the appropriate will to be made.

133. As to the first of those questions, her Honour found as follows:76

“…The Child’s estate is substantial. I was and am satisfied that it was reasonably

likely, in the sense that there was a fairly good chance, that – just as Robb J was

satisfied that the Child would have preferred to leave the estate to selected

beneficiaries rather than to have the estate distributed on an intestacy – had

the Child had testamentary capacity the Child would have taken into account

advice given as to the nature of the estate including the possibility that one or

more residuary beneficiaries would receive a distribution out of the

superannuation fund and hence that this should be taken into account in

determining how to meet the competing claims on the Child’s testamentary

bounty. For that reason I was and am satisfied that it was reasonably likely that the Child would have made a new will had the Child had testamentary capacity.”

[emphasis added]

134. As to the second question, there were three main differences between the wills

proposed by A Limited and the mother, respectively:

(a) The will authorised by Robb J provided for a 15% share of residue for the father.

The mother proposed that the will should provide a 42.5% share of residue for

her, with the remainder to be shared equally between the father and the six

siblings (one seventh each). The father proposed that the laws of intestacy

already provided a satisfactory answer, and that the mother and father should

benefit equally.77

(b) As regards the adjustment clause, the relevant clause in the will proposed by

A Limited conferred a discretion on the executor in respect of making that

adjustment. The mother proposed that there be no adjustment clause. The father

proposed that the clause should confer a duty, rather than a power.

(c) The mother proposed a will that provided for testamentary discretionary trusts, in

respect of the shares of residue. This was supported by an affidavit by the

75

At [55]. 76

At [55]. 77

At [59]. The Father initially filed written submissions opposing the grant of leave under s 19 of the

Act and opposing, if leave be granted, the making of a further will for N, but ultimately did not oppose either the grant of leave or the making of a new will but, instead, made submissions as to the

content of the alternative proposed wills: [22].

41

mother’s solicitor, who had particular experience in estate planning. The will

proposed by A Limited did not include such trusts.

135. Her Honour determined that:

(a) The shares of residue proposed by the mother were appropriate. The basis of this

was that her Honour considered that:78

“… there was a fairly good chance that the proposed apportionment of

residue put forward by the Mother’s proposed will reflects what a

reasonable person, in the position of the Child, would do to recognise

the respective claims on the Child’s testamentary bounty of the Father

on the one hand and the siblings on the other. In other words, I was of

the view that a reasonable person would not attach a greater significance to the Father’s claim for a share of the Child’s testamentary bounty (by

reference to his contribution to the Child’s welfare in the early years of the

Child’s life) than that of the respective siblings (by reference to their on-

going emotional support for the Child and the physical care and assistance they have rendered during the Child’s life). Indeed, as I expressed in the

course of the hearing, a reasonable person in the position of the Child

but having testamentary capacity might well have formed the view that the whole of the estate should be left to the Mother, who has provided such

all-encompassing care and support for the Child in circumstances which

have no doubt involved an enormous emotional and physical toll on her own well-being.” [emphasis added]

(b) The adjustment clause should require the trustees of the will to make an

adjustment but only to the extent that that is arithmetically possible, having

regard to whatever the determination of the superannuation trustee might

ultimately be. Part of her Honour’s reasoning was as follows:79

“I considered that a reasonable person, considering the exercise of his or her

testamentary bounty in the Child’s circumstances, would have regard to the

possibility that a large portion of his or her estate might be paid otherwise than under the terms of his or her will and would adjust the testamentary

provisions to take that possibility into account.”

(c) It was appropriate to include, in the terms of the will, provision for testamentary

trusts, since there was evidence of the vulnerability of two of the siblings, and

two of the siblings were minors.

A direction was made that the plaintiff was to liaise with the mother’s solicitors to

prepare a revised will for execution.

78

At [63]. 79

At [69].

42

136. As to costs, an order was made that the plaintiff’s costs be paid out of N’s assets on the

indemnity basis. The costs of each of the mother and father were ordered to be paid on

the solicitor/client basis out of N’s estate.80

Re K’s Statutory Will

137. Re K’s Statutory Will [2017] NSWSC 1711 concerned a 7 year old boy, K. As a result

of an award of compensation for personal injuries, made in a previous proceeding

against a health authority, K possessed a large estate, which was managed on his behalf

by a trustee company, as a protected estate. The trustee company, with the

authorisation of the NSW Trustee, applied for a statutory will to be made for K.

138. The rationale for the application was that K’s parents were estranged from one another.

K had been actively cared for by his mother and his maternal grandparents; his father

had had virtually nothing to do with him and had not shown any interest in his welfare.

K’s life expectancy was normal for a person of his age, but he was not expected ever to

have capacity to manage his own affairs or make a will for himself. Without a will, his

estate would pass on intestacy to his parents, in equal shares.

139. The father was served with notice of the proceedings and, with the benefit of legal

advice, chose not to enter an appearance.

140. Justice Lindsay found that the evidence was ‘clear and convincing’ as to the five

matters of which the Court must be satisfied under s 22 of the Succession Act 2006

(NSW), in order to grant leave. The dispute between the parties focused on the proper

operation of s 18, being the Court’s substantive power to authorise the making of a will.

141. A relatively straightforward form of will was proposed by the trustee corporation,

which provided for K’s mother to act as executor (with the trustee company as

substitute executor, if required), and for benefits to be conferred on K’s mother, his

maternal grandparents and people within his immediate social orbit. The draft will

contained standard powers of management, authorisation of remuneration, and ancillary

provisions.

142. The mother proposed a different form of will, which provided for the establishment of

various testamentary trusts for the benefit of a range of people, and institutions, beyond

those presently engaged in K’s everyday life.

80

A Ltd v J (No 3) [2017] NSWSC 931.

43

143. His Honour expressed a concern that, should a practice develop of using a statutory will

application as a vehicle for the establishment of unnecessarily complex estate

management structures, the estates of incapacitated persons might be burdened by costs

and schemes foreign to the protective purpose of the Succession Act.81

144. Orders were made, authorising the making of a will for K in the form of the draft

proposed by the trustee corporation.

145. The judgment is important in a number of respects:

(a) His Honour outlined,82 by reference to the judgment of the Queensland Court of

Appeal in GAU v GAV,83 the operation of the relevant sections of the Succession

Act in New South Wales, the distinction between the two stages (the leave

application, and the substantive application for an order authorising the making of

a will), and the protective nature of the Court’s jurisdiction in respect of statutory

will applications.

(b) Specific consideration was given to the nature of the Court’s discretion under

s 18(1)(a) of the Act, which provides that “the Court … may … make an order

authorising a will to be made … in specific terms approved by the Court, on

behalf of a person who lacks testamentary capacity”. His Honour found that:

(i) The Court’s discretion is not at large. It is, at least, confined by the subject

matter, scope and purpose of the protective jurisdiction, as broad as that

jurisdiction undoubtedly is.

(ii) The “specific terms” of a will “approved by the Court” should ordinarily be

approved by reference to the guiding principle that whatever is done, or not

done, for or on behalf of an incapacitated person must be for the benefit,

and in the interests, of that person. There may be an exceptional case (e.g.

where an incapacitated person has expressed a strong preference, albeit not

altogether wisely so), but this was not such a case.

81

At [27]. 82

At [19]–[21]. 83

[2016] 1 Qd R 1; [2014] QCA 308.

44

(iii) This was a ‘nil capacity’ case (K had never had testamentary capacity).

Accordingly:84

“One should not lose sight of the fact that, whatever artificiality there

may be in attribution of a testamentary intention to a person lacking

capacity to form any such intention, a will approved by the Court

takes effect as a will and must be able to be justified (perhaps, more accurately, rationalised) as an expression of an intention reasonably

and appropriately attributed to a real live person in need of protection.

A will providing for the establishment of one or more testamentary trusts for the benefit of an object beyond the immediate

comprehension, or orbit, of an incapacitated person by its nature

might be thought to look primarily to the conferral of future benefits

upon, and the future enjoyment of property by, persons other than the incapacitated person.

If such a will is to be approved (particularly on behalf of an

incapacitated person in a “nil capacity case”) there needs to be some basis upon which it can reasonably be said that the terms of the will

are for the benefit, and in the interests, of the incapacitated person

during his or her lifetime.

The more remote a proposed will is from the personal circumstances

of an incapacitated person, the less likely it is to be able to be justified

as an exercise of jurisdiction protective of that person.

The degree of complexity of a proposed will is not, of itself, a determinative factor in whether or not it should be approved by the

Court. However, complexity unrelated to the present or prospective,

personal circumstances of an incapacitated person (or complexity designed, primarily, to benefit others after the death of the

incapacitated person) renders more difficult the task of the Court in

approving a statutory will.”

(c) In framing the orders, provision was made for the future review of K’s statutory

will. An order was made that, subject to further order, the manager of K’s

protected estate provide to the Court, no later than six months after K attains the

age of 18 years or the death of his mother, whichever first occurs, a report as to

consideration, if any, given to whether the will should be revised. The basis for

this was explained as follows:85

“That order has a parallel in orders made, at the time of appointment of the

plaintiff as K’s protected estate manager, requiring the pendency of the protected estate management orders affecting K to be reviewed at about the

time he attains his majority …

… there may be a need, even in the short-term, to make provision for a statutory will to be reviewed.

84

At [32] –[36]. 85

At [40]–[43].

45

In the longer term, a mechanism for review is likely to assume greater

importance. Allowance needs to be made for potential changes in the personal circumstances of the incapacitated person for whom a will is made

if a court-approved will is to serve a protective purpose and to accommodate

such, if any, expression of the particular person’s state of mind as may

reasonably be discernible.

It is just as important for the will of an incapacitated person to be reviewed

as it is for the will of a fully capable person to be reviewed in light of

changing circumstances. Lest such a necessity is overlooked, it is appropriate in a case such as the present for the Court to build into its orders

a mechanism for a timely review of any will authorised to be made.”

(d) An order was made for both parties’ costs to be paid out of the estate of K, in the

case of the plaintiff on the indemnity basis, and the mother on the ordinary basis.

The reason for this was as follows:86

“The novelty of the question in dispute between the plaintiff and K’s

mother, if not the size of K’s estate and the intimacy of the relationship

between mother and child, justifies some leniency in allowing her more than

nominal costs out of K’s estate. However, in my assessment it would not be appropriate to burden K’s estate with two sets of costs assessed on the

indemnity basis. K’s mother could, and did, contribute evidence in support

of the statutory will application through provision of an affidavit to the plaintiff. Beyond that, in large measure, her advocacy of a will more

complex than necessary went beyond what, in my opinion, could reasonably

be justified as being in the interests, and for the benefit, of K.”

146. Two further recent cases to be aware of are Re CGB [2017] QSC 128, which highlights

particular issues that can arise where a proposed testator has complex personality traits,

and where the application is contested by various persons with differing interests; and

Re APB, ex parte Sheehy [2017] QSC 201, a further heavily-contested matter.

Richard Williams

Barrister-at-Law, TEP

22 February 2018

86

At [45]; the Court’s approach to costs in protective cases was also summarised, at [14]–[18].