- Unreported Judgment
 QSC 33
SUPREME COURT OF QUEENSLAND
7 March 2014
11 October 2013
The order of the court is that:
1.Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981 (Qld).
2.A will is authorised to be made for Christopher Hugh Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen filed on 3 September 2013.
3.The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of Christopher Hugh Millar.
SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS - where application made under s 21 and 22 of the Succession Act 1981 (Qld) for a court authorised will – where proposed testator had prior wills – where prior wills of doubtful validity – where proposed testator sustained major brain injury as a young man – where proposed testator had investment assets enlarged by mother’s partner – where the proposed will provided for the estate to go to the applicant – where parents then siblings would take on intestacy – where proposed testator’s mother, father and brother express intention not to accept any gift under a will – where proposed testator expressed preference for estate to go to applicant and brother but if the brother did not want a share to the applicant – where proposed testator’s family supported the proposed will except father who wished brother to benefit equally with applicant – whether the proposed will should be authorised
R A King-Scott for the applicant
Cornelis Van der Meulen in person
No appearance for the respondents
Madden & Co for the applicant
 JACKSON J: Christopher Hugh Millar was born Christopher Hugh Van der Meulen on 9 October 1969 to Cornelis John Van der Meulen, who appeared on this application, and the first respondent, Margaret Florence Van der Meulen. Christopher changed his surname to Millar by deed poll filed in May 1988. He has two siblings; an elder brother Joffrey Roy Douglas born a year earlier and a younger sister, the applicant, Annake Lucille Van der Meulen born 13 August 1973. For simplicity, I will refer to family members by their first names.
 Christopher is now 44 years of age. He suffered major brain damage in an accident when he was 21 years. The question before the court is whether it should authorise a will to be made for Christopher.
 Annake is Christopher’s administrator for financial matters and guardian for personal matters appointed under the Guardianship and Administrators Act 2000 (Qld).
 Under s 22 of the Succession Act 1981 (Qld) (“SA”), Annake applies for leave to apply for an order under s 21 of the SA. In broad terms, most of the information an applicant must give to the court under s 23 of the SA is provided in the affidavits which were filed and read in support of the application and evidence which was given by Annake. To the extent that information required under s 23 was not provided, I direct that it is not required.
 The proposed will (“draft will”) leaves Christopher’s estate to Annake. If Annake predeceases Christopher there is a gift over to those of his nieces and nephews who survive him, equally.
 Christopher receives a disability support pension. He lives independently of his family. At present, he is residing in a form of supported accommodation although he has previously lived alone in his own house.
 From the medical evidence filed and tendered, it is clear that Christopher has significant intellectual impairment, notwithstanding that he has been able to live independently in the community. Christopher has had significant and long time support from both Margaret and Annake. Cornelis’ role is relatively recent. For many years before and after his accident, he was not involved in supporting or caring for Christopher. He was not much involved in his upbringing as a child.
 When the children were young, Margaret and Cornelis’s marriage broke down. From Annake’s evidence, it appears that Margaret and Cornelis separated when Christopher was about 4 years old. A little while later, Joffrey went to live with his father. Cornelis also remarried and had several more children. Accordingly, the inference is that Christopher was always closer to Margaret and Annake than Joffrey.
 It was clear on the hearing of the application that there is some animosity between Annake and Cornelis and there are disputes between them over Christopher’s affairs.
 The medical evidence includes opinions as to Christopher’s mental impairment from as long ago as 8 July 2002. Another report is dated 10 November 2006.
 The relevance of those dates is that, notwithstanding his mental impairment, from time to time Christopher has engaged in a number of property and financial transactions. Thus, in 2002 he entered into a contract to buy a house in St George. However the contract was not completed. It appears that Christopher’s lack of capacity was raised by him or others on his behalf at the time. I infer that his close family did not support the purchase. In the following year, with their support, he did buy a house in Toowoomba. The house has now been sold. The extent of Christopher’s estate has been swelled by investments made with the assistance of Margaret’s long-time partner, Jim Anderson.
 On 6 December 2002, Christopher purportedly made a will (“2002 will”). A solicitor and law clerk from a Toowoomba law firm witnessed the execution. No evidence was called from them as to the circumstances under which the will was executed. Annake, Margaret and Joffrey all express or accept the view that Christopher did not have the capacity to do so when the will was executed.
 Annake also tendered an unexecuted copy of another earlier purported will which it appears may have been executed on 20 October 1997 (“1997 will”). It was apparently prepared in the offices of the Public Trustee. There was no evidence called as to the circumstances under which that will was prepared or whether it was in fact executed.
 Both the 2002 will and the 1997 will left Christopher’s estate to Joffrey and Annake equally. There was a gift over to the children of Joffrey or Annake if either should predecease Christopher.
 On 26 October 2012, Christopher wrote down his wishes as follows:
“I Christopher Hugh Millar declare my final wish to leave my share portfolio to my sister Annake Lucille Pragai and for my mother Margaret Florence Van der Meulen to have my house and contents. Should she pass away the value to go to my nieces and nephews named Annaliesee Pragai, Isabelle Pragai, Samantha Douglas and Robert Darcey Douglas.”
 At the hearing of the application Christopher’s wishes were expressed through Annake’s counsel and confirmed to me by Cornelis, namely that he wished his estate to go to Annake and Joffrey but that if Joffrey did not want his share that it should go to Annake.
 On the hearing of the leave application under s 22 of the SA, the information required to be given under s 23 should be considered. In that light, leave may only be given if the court is satisfied of the matters specified in paragraphs (a) to (e) of s 24.
 Although the discretion to authorise a will under s 21(1)(a) of the SA is not directly surrounded by the express identification of relevant factors which must or must not be taken into account, the context provides some guide. An order may only be made if the court “has approved the proposed will”. Under s 23(e) of the SA there must be a draft of the proposed will. Under s 24(d) of the SA, it must be a proposed will that “is or may be a will…that the person would make if the person were to have testamentary capacity”.
 Also as context, on the application for leave under s 22 of the SA, the factors about which the applicant must give the court information include the reasons for making the application, the likelihood of the person acquiring or a gaining testamentary capacity, the size and character of the person’s estate, the person’s wishes (if available), any will previously made by the person, the likelihood of an application being made under s 41 of the SA in relation to the person, any gift for a charitable or other purpose that the person might reasonably be expected to make by a will, the circumstances of any person for whom provision might reasonably be expected to have been made by a will, any persons who might be entitled to claim on intestacy and any other relevant facts.
 Against that background in the statute, the relevant factors and facts will vary from case to case.
 Annake is an appropriate person to bring the application, notwithstanding she is the principal beneficiary under the draft will. She has principal responsibility for managing Christopher’s affairs.
 Adequate steps have been taken to allow representation of all persons with a proper interest. Margaret and Joffrey did not appear but have given affidavits in support of the application. Cornelis appeared and made submissions. Christopher was present in court. His nieces and nephews were not represented but are discussed further below.
 On the medical evidence, as well as the evidence of Annake and Margaret, I am well satisfied that Christopher lacks testamentary capacity. There is no likelihood of Christopher acquiring or gaining testamentary capacity in the future.
 There is no one who might apply under s 41 of the SA as Christopher’s spouse, child or dependant.
 The estate is worth about $550,000. It is held in marketable securities, a bank account and modest personal property.
 The prior purported wills have been described above.
 There is no charitable or other purpose for which Christopher might reasonably have been expected to make a gift indicated by the evidence.
 I was informed that Joffrey is a successful grazier. No other relevant financial circumstances about Annake or Margaret (or Cornelis) were identified.
 I am conscious that this is not a large estate. It most likely will become smaller because of Christopher’s needs in life from time to time. I am anxious that it not be dissipated by unnecessary costs incurred in legal proceedings. For that reason, and because the parties concerned in general supported that a will should be made, I have approached the question whether leave should be granted on the footing that it should not be refused because of the inadequacy or paucity of the evidence on some matters. In those circumstances, it is convenient to analyse matters as globally as possible while conforming to the requirements of the statute.
 Leave is only granted if the court is satisfied that it is or may be appropriate for an order to be made under s 21. In this case, a particular reason why it is or may be appropriate that an order be made is that there is a real question whether either of Christopher’s purported wills is valid. It is reasonably likely that he lacked testamentary capacity at the time when he made either of them. If so, in the absence of a will authorised under s 21, Christopher’s estate will go on intestacy under s 35, Schedule 2 and s 37 of the SA.
 In my view, the draft will is or may be a will that Christopher would make if he were to have testamentary capacity. I discuss this question in greater detail in considering whether the draft will should be approved and authorised, below.
 Margaret does not wish to receive a part of Christopher’s estate. She wants the draft will to be authorised.
 Cornelis expresses no desire to take personally from Christopher’s estate. In any event, there would be a real question whether Cornelis should receive any portion of Christopher’s estate. Cornelis’ position is that he wants a will in substance in the terms of the 2002 will to be authorised. He urges that the 2002 is valid but I am not satisfied that it is.
 Joffrey does not wish to receive a part of Christopher’s estate. He wants the draft will to be authorised.
 In my view, it is or may be appropriate that an order be made under s 21 of the SA, so that Christopher’s estate does not pass on intestacy.
 Therefore, there should be leave to bring the application.
Nieces and nephews
 None of Annake’s or Joffrey’s children was represented at the hearing.
 If Christopher dies intestate, none of them would take unless, first, Margaret and Cornelis predecease him; and secondly, they would only take if their respective parent, either Annake or Joffrey, predeceased Christopher. All have better prospects under an authorised will in terms of either the draft will or in terms of the 1997 will or the 2002 will.
 Under the draft will, if Annake predeceases Christopher, all his surviving nephews and nieces will take his estate equally. Putting Joffrey to one side, as between the 1997 will and the 2002 will, on the one hand, and the draft will, on the other, the only people who may do worse are Joffrey’s children. They would have been contingently interested under the 1997 and 2002 wills, in the event that Joffrey predeceased Christopher. They would be contingently interested under the draft will in the event that Annake predeceases Christopher. Also, under the 1997 and 2002 wills, they would have shared Joffery’s moiety equally among themselves. Under the draft will, they would each have an equal interest with Annake’s children to the whole of the estate. Looked at broadly, the differences are not great.
 Cornelis’ opposition to the draft will was based on Joffrey’s position. Cornelis submitted that any will authorised by the court should in substance be in the same form as the 2002 will or 1997 will, leaving Christopher’s estate to Annake and Joffrey in equal shares. His point was that although Joffrey has a present intention to renounce on Christopher’s death if he is a beneficiary under Christopher’s will, that is an intention which may change. In other words, he wishes for Joffrey something which Joffrey does not presently care for.
 The risk that Joffrey may change his mind exists. It is a relevant factor to consider.
Capacity and life
 A jurisdictional fact for the making of an order under s 21 is that the person who is the proposed testator be without testamentary capacity. As stated above, I am satisfied that this is so. A second jurisdictional fact is that Christopher is alive. Also as stated above, he was present in court during the hearing of the application.
Approval and “that the person would make”
 The question of approval and any other question going to whether the will should be authorised under s 21 of the SA remain for consideration.
 The facts in this case raise an unusual set of circumstances against which the question of the will that Christopher would make if he had testamentary capacity is to be answered.
 As previously noted, Joffrey swore an affidavit saying that he does not want a share. He says that he accepts the provisions of the draft will which do not include him as a beneficiary. He also says that if the 2002 will were valid he would renounce the benefit bequeathed to him and also would renounce his appointment as executor and trustee under the will.
 There are no less than four statements by Christopher expressing his actual intention over the years from 1997 to 2012, as follows:
(a) the 1997 will evidences his intention that Annake and Joffrey take equally or if either of them predeceases Christopher their children take their moiety equally as among the relevant children;
(b) the 2002 will evidences his intention that Annake and Joffrey take equally or if either of them predeceases Christopher their children take their moiety equally as among the relevant children;
(c) the written statement dated 26 October 2012 evidences his intention that specific property be divided between Annake and Margaret but, if Margaret predeceased Christopher, Annake and Joffrey’s children take her share equally among them; and
(d) on the date of the hearing his view was that Annake and Joffrey take equally but if Joffrey did not wish to take a share then his share should go to Annake.
 Given the fact and extent of Christopher’s intellectual impairment, the actual intention he holds cannot alone answer the question as to the proposed will he would make if he were to have testamentary capacity. By definition, he lacks the capacity to directly answer that question. However, it is significant, in my view, that Christopher has expressed broadly similar wishes on several occasions over a period in excess of 15 years. Not only that, his wishes are to benefit those closest to him by family (Cornelis excepted), which is easily understood.
 If Christopher were of capacity and making a will, he would be aware that until now his relationship with Joffrey has been comparatively distant. They do not speak regularly on the phone. Their paths do not cross, in the sense that Joffrey does not regularly see Christopher. Joffrey lives in Mitchell and runs a cattle property.
 Against that, Christopher would be aware of the great contributions made to his well-being by others, particularly Margaret, Jim Anderson and, in an increasing way, Annake. Since 2009, she has both managed his affairs and been his greatest advocate in day to day matters. Her contact is regular, physically and personally supportive, and would be most highly valued by any fair minded recipient. Better still, it is the love and support of his closest sibling. And it comes further gift wrapped in the ongoing relationships Christopher has with her children. That has been his reality for some years, since Annake’s involvement in his day to day life increased. It is a state of affairs he would hope would continue. And he would acknowledge that if it did, he would have even more reason to see that Annake benefited from what bounty he might be able to leave by way of his estate.
 In the search for answers in the application of the generally expressed discretionary power under s 21 to these circumstances, I have considered relevant cases under the Queensland legislation. There are some differences in the cases as to the approach to be followed in the application of the legislation that I need not consider.
 In my view, there is no definitive principle to be applied here. In the application of a general discretion of this kind, against the background of the statutory qualifying factors, it is of no assistance to articulate factors which influence or decide this particular case as though they have a legal significance beyond the exercise of the discretion in the particular circumstances.
 In my view, if Christopher came to make a will in the hypothetical circumstances, that his physical life were largely as it is and has been in the past, but he had testamentary capacity, and he was aware of the circumstances as I have set them out above, including that Joffrey does not wish to receive any benefit under his estate, he would quite likely consider the draft will appropriate, even considering Cornelis’ suggestion that he be cautious about Joffrey’s future position.
 There are no other countervailing circumstances arising from the facts as I have been shown them.
 In the circumstances, the draft will should be approved as a proposed will under s 21(2)(c) of the SA and an order authorising a will in the terms of the draft will should be made.
 The orders to be made are that:
1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981 (Qld).
2. A will is authorised to be made for Christopher Hugh Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen filed on 3 September 2013.
3. The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of Christopher Hugh Millar.
 Banks v Goodfellow (1870) 5 QB 549, 565. See also Hoffman v Walters (2007) 98 SASR 500, 504 .
 Winstanley v Winstanley (unreported, BS 11203 of 2007, Daubney J, 18 January 2008); re Joachim (unreported, BS 12325 of 2008, Dutney J, 22 December 2008); Deecke v Deecke  QSC 65; re Keane; Mace v Malone  1 Qd R 319; McKay v McKay (2011) 4 ASTLR 429; and Sadler v Eggmolesse  QSC 40.
- Published Case Name:
Van der Meulen v Van der Meulen & Anor
- Shortened Case Name:
Van der Meulen v Van der Meulen
- Reported Citation:
 QSC 33
07 Mar 2014
|Event||Citation or File||Date||Notes|
|Primary Judgment|| 2 Qd R 278||07 Mar 2014||-|