- Unreported Judgment
SUPREME COURT OF QUEENSLAND
In the matter of an application pursuant to Part 2 (sections 21 to 28) of the Succession Act 1981 (Qld) for the authorisation of the making of a Will on behalf of MPL  QSC 61
Brisbane No 1601 of 2016
Supreme Court of Queensland at Brisbane
23 March 2016
8 March 2016
Order as per draft initialled by me and placed with the papers.
SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where testator injured in motor vehicle accident – where testator suffers persistent short term memory loss caused by traumatic brain injury – where significant sum of damages awarded – where Court appointed administrators hold award of damages – where testator has made a will – where testator lacks testamentary capacity – where applicant seeks statutory will on behalf of testator
Succession Act 1978 (Qld) s 21, s 22, s 23, s 24
Banks v Goodfellow (1870) LR 5 QB 549, considered
Frizzo v Frizzo  QSC 107, applied
GAU v GAV  QCA 308, considered
R Williams for the applicant
Masons Solicitors for the applicant
- MPL is 24 years of age. MPL suffered serious injuries, including multiple physical injuries and a traumatic brain injury, in a motor vehicle accident in 2012. A personal injuries claim was made in the Supreme Court of Queensland, which resulted in a significant award of damages. Approximately $7.3 million is now held for MPL by Australian Executor Trustees Limited (“AET”), as Court appointed administrators.
- On 4 February 2016 MPL executed a Will (“the 2016 Will”). There are genuine concerns, primarily arising from MPL’s traumatic brain injury, that he lacks testamentary capacity. In particular, there are concerns that MPL does not understand the extent of the property of which he is disposing.
- The applicant, MDS who is the mother of MPL, therefore applies under section 22 of the Succession Act 1981 (“the Act”) for leave to apply for an order under section 21 authorising that a Will be made for MPL. The proposed Will is in identical terms to the 2016 Will, except for the execution clause (“the proposed Will”).
- The reason for bringing the present application is summarised by the applicant as follows:
“I am making this application for the Court to authorise a Will to be made for (MPL) to resolve the uncertainty as to whether the Will dated 4 February 2016 is a valid Will. It seems to me to be important to ensure that (MPL) has a valid Will because there could otherwise be a dispute, following his death, especially because his estate is more than $7 million.”
- The application is also supported by AET. Geoffrey Worth, a Manager at AET states:
“I am … aware that there are concerns about whether (MPL) has testamentary capacity, therefore (MDS) is making this application to the Supreme Court.
AET supports (MDS’) application for the making of a Will for (MPL). It is important, given the size of (MPL)’s estate, that he has a valid Will in place.”
- The present application therefore raises two issues:
- Does MPL have testamentary capacity? and
- If MPL does lack testamentary capacity should the Court grant leave pursuant to s 22 and if leave is granted, should the Court make an order pursuant to s 21 authorising the proposed Will to be made?
Relevant Legislative Provisions
- The scheme of Pt 2, Div 4, Subdiv 3 of the Act requires a person who seeks an order under s 21 of the Act to first apply for leave under s 22. Section 22 provides:
“22 Leave to apply for s 21 order
(1)A person may apply for an order under section 21 only with the court’s leave.
(2)The court may give leave on the conditions the court considers appropriate.
(3)The court may hear an application for an order under section 21 with or immediately after the application for leave to make the application.”
- By s 21 the court is given a discretion to authorise a Will to be made, altered or revoked for a person without testamentary capacity. Section 21 provides:
“21 Court may authorise a will to be made, altered or revoked
for person without testamentary capacity
(1)The court may, on application, make an order authorising—
(a)a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or
(b) a will or part of a will to be revoked on behalf of a person without testamentary capacity.
(2)The court may make the order only if—
(a)the person in relation to whom the order is sought lacks testamentary capacity; and
(b)the person is alive when the order is made; and
(c)the court has approved the proposed will, alteration or revocation.
(3)For the order, the court may make or give any necessary related orders or directions.
(4)The court may make the order on the conditions the court considers appropriate.
(5)The court may order that costs in relation to either or both of the following be paid out of the person’s assets—
(a)an application for an order under this section;
(b)an application for leave under section 22.
(6)To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property.
(7)In this section—
person without testamentary capacity includes a minor.”
- Section 23 of the Act specifies certain information which must be given to the court on an application for leave:
“23 Information required by court in support of application
On the hearing of an application for leave under section 22, the applicant must give the court the following information, unless the court directs otherwise—
(a)a written statement of the general nature of the application to be made by the applicant under section 21 and the reasons for making it;
(b)satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 21 is sought;
(c)any evidence available to the applicant, or that can be discovered with reasonable diligence, of the likelihood of the person acquiring or regaining testamentary capacity;
(d)a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the person’s estate;
(e)a draft of the proposed will, alteration or revocation in relation to which the order is sought;
(f)any evidence available to the applicant of the person’s wishes;
(g)any evidence available to the applicant of the terms of any will previously made by the person;
(h)any evidence available to the applicant of the likelihood of an application being made under section 41 in relation to the person;
(i)any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to give by will;
(j)any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of a person for whom provision might reasonably be expected to be made by a will by the person in relation to whom the order is sought;
(k)any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on intestacy;
(l)any other facts of which the applicant is aware that are relevant to the application.”
- On hearing the leave application the court may give leave only if satisfied of the matters specified in s 24:
“24 Matters court must be satisfied of before giving leave
A court may give leave under section 22 only if the court is satisfied of the following matters—
(a)the applicant for leave is an appropriate person to make the application;
(b)adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought;
(c)there are reasonable grounds for believing that the person does not have testamentary capacity;
(d)the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;
(e)it is or may be appropriate for an order to be made under section 21 in relation to the person.”
- Section 25 provides:
“25 Hearing an application for leave or for an order
On the hearing of an application for leave under section 22 or for an order under section 21, the court—
(a)may have regard to any information given to the court under section 23; and
(b)may inform itself of any other matter relating to the application in any way it considers appropriate; and
(c)is not bound by the rules of evidence.
- The Court’s discretion to make a statutory Will may be exercised only if the conditions in s 21(2) are satisfied. One of those conditions is that the person lacks testamentary capacity. Section 23(b) requires the applicant, seeking leave pursuant to s 22, to give the Court satisfactory evidence of the lack of testamentary capacity. Pursuant to s 23(c) the applicant is also required to give to the Court any evidence available to the applicant, or that can be discovered with reasonable diligence, of the likelihood of the person acquiring or regaining testamentary capacity.
- The Court’s task is to ascertain whether MPL lacks testamentary capacity. In accordance with s 24(c) the Court must be satisfied there are reasonable grounds for believing that MPL does not have capacity before it can grant leave under s 22. If leave is granted an order under s 21 may only be made if MPL lacks testamentary capacity. It may therefore be accepted, as submitted by the applicant, that the issue of whether MPL has, or does not have, testamentary capacity is fundamental to the present application.
- In order to determine whether MPL lacks testamentary capacity it is helpful to first consider the nature and effect of his traumatic brain injury. His solicitor, Mr Mason, who acted for MPL both in relation to his personal injuries claim and the making of the 2016 Will, has exhibited three medical reports to his affidavit which were prepared in connection with MPL’s personal injuries claim. In a report dated 24 June 2013 Dr Anderson, Clinical Neuropsychologist, is of the view that MPL has sustained brain impairment causing permanent cognitive dysfunction. Dr Anderson’s formal evaluation estimates MPL’s premorbid level of intellectual function to be within the low average range. Dr Anderson opines that MPL is likely to have quite serious difficulties with behavioural control, as well as cognitive dysfunction in relation to intellectual ability, problem solving and memory. From test results Dr Anderson concludes that MPL demonstrates a clinically significant loss of overall intellectual function. This includes memory dysfunction, particularly on delayed memory and executive dysfunction.
- In a report dated 11 September 2013, Dr Mulholland, psychiatrist, states that from a psychiatric aspect MPL has developed a traumatic dementia, that is a major neurocognitive disorder due to traumatic brain injury. Dr Mulholland asked MPL a number of questions to ascertain his ability to give instructions. When questioned as to who was giving his solicitors instructions in relation to the personal injuries action MPL responded with words to the effect “wouldn’t have a clue” and “I really don’t know anything about it”. Dr Mulholland notes that MPL’s short term memory is described by his mother as “shocking”. Dr Mulholland’s general prognosis is that MPL will experience some improvement in his position but it is likely that the end result is going to be that of a moderately severe impairment and disability. Dr Mulholland further concludes that MPL does not have the requisite capacity to give instructions nor to handle any substantial settlement monies.
- In a report dated 8 December 2014, Professor Whiteford, psychiatrist, observes that a mental state examination on Wednesday, 3 December 2014 reveals evidence of significant cognitive impairment consistent with traumatic brain injury. Professor Whiteford generally agreed with other medical assessments of MPL that his impairment from the traumatic brain injury is in the order of 20% to 25%.
- Mr Mason met with MPL on 23 November 2015, to ascertain whether he was capable of making a Will, and to take instructions regarding how he wished his estate to pass. Mr Mason made a file note of this meeting. The questions and answers revealed in this file note shows that MPL has some understanding of the nature of a Will. He also expresses a preference for a testamentary trust and demonstrates understanding of such a structure. MPL is also able to identify the persons he wishes to benefit under his Will which include his mother, his sister, his stepbrother and nieces and nephews. When asked by Mr Mason however, as to the nature, extent and value of the estate MPL responds “I don’t know”. He is only able to identify the extent of his estate by reference to an email from AET. In the course of being interviewed by Mr Mason, MPL makes specific reference to his memory loss caused by the accident.
- Mr Mason again met with MPL on 30 November 2015 and made a file note of this meeting. Even though this meeting was only one week after his initial meeting with Mr Mason in relation to the making of his Will, MPL could not remember the details of the previous meeting. He did however, demonstrate an understanding as to how a testamentary trust operates. He was also able to identify why he wanted certain members of his family to benefit under his Will but not others.
- Because of Mr Mason’s concerns regarding MPL’s testamentary capacity, he arranged for MPL to be examined again by Professor Whiteford specifically as regards MPL’s capacity to make a Will.
- In a letter of instruction to Professor Whiteford from Mr Mason the applicable legal principles were identified as follows:
“The courts have held that the qualities necessary to make a Will can be summarised as having “sound mind, memory and understanding”. The phrase “sound mind” is a good general description. However, various cases have elaborated on the issue and have identified the critical elements of “sound mind” in this context. They are the ability to:
(a)understand the nature of making a Will and its effects;
(b)understand the extent of the property of which the Will-maker is disposing;
(c)comprehend and appreciate the claims to which the Will-maker ought to give effect. For example, a person making their Will must have memory to recall the several persons who may be fitting objects of his or her bounty and an understanding to comprehend their relationship to himself or herself and their claim upon him or her.
There should be no disorder of the mind and no insane delusions in influencing the disposing of the estate. It must also be remembered that a person who generally lacks testamentary capacity may, during lucid intervals, have the requisite capacity to make a Will.”
- Professor Whiteford’s report dated 19 January 2016 is inconclusive. Dr Whiteford is of the opinion that MPL understands the nature and effect of making a Will. MPL understands that this would determine who has access to his estate on his death. Professor Whiteford was also of the opinion that MPL was clear about who should be included as beneficiaries in his Will. As to MPL’s understanding of the extent of the property of which he was disposing, Professor Whiteford states:
“While [MPL] was not aware of the extent of his estate he does have the capacity to learn of the extent of his estate should he desire, for example he would ask his mother for a statement of his assets as she manages them for him. He understands the insurance claim related to his motor vehicle accident has settled but he did not know the financial amount of the settlements.”
- In light of Professor Whiteford’s report, Mr Mason again met with MPL on 4 February 2016. Mr Mason’s file note of this meeting records the following exchange:
“What do you have in your estate?
A house – bought for $715,000
Golf cart, bed, blankets
That’s all I think I’ve got.
What about money from your personal injuries claim?
I have enough money to last me for the rest of my life.
Do you know how much money you have?
Six million, and however many hundreds of thousands. I’m trying to forget the money so if someone asks me I don’t tell them.
Why don’t you want to tell anyone about the money.
Because its none of their business. It has to last me the rest of my life and no one is ripping me off.
Do you know what six million dollars would buy?
Yeah – me own golf shop and buy me the rest of my life because I won’t work ever work again.
Do you remember seeing Professor Whiteford on 18th January 2016?
Yes I remember seeing him in January, but I can’t remember what he looks like.
Do you remember Professor Whiteford asking you about how much is in your estate?
I can’t remember him asking me that.
Do you remember talking to Professor Whiteford about what you have?
What did you tell Professor Whiteford?
I told him I don’t know what is in my estate.
Why did you tell him that you don’t know when you have told me about the house and the six million plus hundreds of thousands of dollars?
I do remember I told him I had bought a house and I told him about the stuff I have in my room.
Why didn’t you tell him about the six million plus dollars?
I’m having so much trouble remembering that conversation about the money.
Why is that?
Because I have that short term memory loss thing. I can remember some things, but the others I have trouble remembering.
Did you remember the six million plus today because we went through the diary note of 23rd November 2015 before I asked you the above questions?
Yes, that’s it, because I saw and you read it out to me.
If I was to ask you in a week’s time how much was in your estate, and I did not show you any prior notes then, what would you say?
I would have trouble with the question. I’d probably say – nearly six or seven million – something like that. I do have trouble remembering amounts and details like that.”
- As was outlined in the letter of instruction to Professor Whiteford an aspect of testamentary capacity is a person’s understanding of the property of which he or she is disposing. The person must be aware of the nature, extent and value of the estate over which he or she has a disposing power. This does not require the person to know precisely the value of his or her individual assets or even of certain classes of assets. This is particularly so where the estate is sizeable and complex.
- I am of the view that MPL lacks testamentary capacity. A proper analysis of the evidence quoted above, including the contents of the file notes, shows that MPL does not actually know the extent of the property of which he is disposing. His initial response to Mr Mason on 23 November 2015 is that he does not know what he has in his estate. Any capacity he has to state actual amounts is only after being shown a document containing those amounts. His short term memory is poor. This is particularly evident from the contents of Mr Mason’s file note of 4 February 2016. The file note records that MPL informed Mr Mason that he had told Professor Whiteford that he did not know what was in his estate. He further informed Mr Mason that he was having difficulty remembering any conversation he had with Professor Whiteford about money. MPL further stated that he has trouble remembering and that the reason he recalls certain amounts constituting his estate is because he either saw the amount written down that day or the amount was read out to him. Such statements by MPL are consistent with persistent short term memory loss caused by his traumatic brain injury and show that he does not actually understand the property of which he is disposing.
If MPL does lack testamentary capacity should the Court grant leave pursuant to s 22 of the Act and if leave is granted should the Court make an order authorising the proposed Will to be made?
- The Court of Appeal in GAU v GAV  QCA 308 recently observed that Part 2, Division 4, Subdivision 3 of the Act confers a jurisdiction which is protective in nature and is informed by the protective jurisdiction historically exercised by the Court over persons without testamentary capacity. The Court stated:
“Its guiding principle is that whatever is done, or not done, for or on behalf of the person in need of protection must be for the benefit, and in the interest, of that person.”
- Counsel for the applicant brought to the Court’s attention that in a number of cases, in various states, a statutory will has been authorised to be made in order to resolve concerns that a Will that has been signed may not be valid by reason of the proposed testator’s lack of testamentary capacity.
- I am satisfied, pursuant to s 24(a), that the applicant is the appropriate person to make the application not only because she is MPL’s mother she is also his principal carer. I am also satisfied that adequate steps have been taken to allow representation of all persons with a proper interest in the application. There are affidavits of service in respect of MPL, his father, his sister, his half-brother and his half-sister.
- As discussed above in  to , I am satisfied in terms of s 24(c) that there are reasonable grounds for believing that MPL does not have testamentary capacity. I have reached this conclusion primarily by reference to the report of Professor Whiteford and the evidence of Mr Mason.
- Pursuant to s 24(d) I am also satisfied that the proposed Will is or may be one which MPL would make if he were to have testamentary capacity. The proposed Will is in identical terms to the 2016 Will except for the execution clause. By reference to Mr Mason’s three file notes of his meetings with MPL, I accept that the 2016 Will represents MPL’s true wishes.
- I accept that the information specified in s 23 in support of the application for leave has been provided.
- As to s 24(e), I accept the applicant’s submission that it is appropriate for an order to be made under s 21 in relation to MPL. The proposed Will reflects MPL’s testamentary wishes. The estate is a large estate which should be protected by a statutory will. If MPL was to die without a valid will his estate would pass to his parents in equal shares. This result would not be in accordance with MPL’s testamentary wishes. An order for a statutory will resolves the properly held concerns as to MPL’s testamentary capacity and accords with the protective nature of such orders.
- Leave should be granted pursuant to s 22 of the Act and an order made pursuant to s 21 of the Act authorising a Will to be made for MPL in terms of the proposed Will. I will therefore make orders in terms of the draft initialled by me and placed with the papers. These orders include that these reasons for judgment to be de-identified to recognise and respect MPL’s dignity, privacy and vulnerability. The draft orders also provide for the applicant’s cost of and incidental to this application to be assessed on an indemnity basis and paid out of the assets of MPL. Given the size of MPL’s assets such a costs order would not have any detrimental impact on his wellbeing. I further note that AET has no objection to such a costs order.
 Affidavit of MDS filed 15 February 2016, paras. 11 and 12.
 A copy of the 2016 Will is exhibit CMM-10 to the affidavit of C Mason filed 15 February 2016.
 A draft of the proposed Will is exhibit “SM-5” to affidavit of MDS filed 15 February 2016.
 Affidavit of MDS filed 15 February 2016, para. 51.
 Affidavit of G Worth filed 18 February 2016, paras. 4 and 5.
 Submissions on behalf of the applicant, para 31.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-2, p.12, para. 10.4.3.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-2, p.12, para. 10.4.1.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-2, p.12, para. 10.3.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-3, p.22, para. 1.2.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-3, p.28, para. 11.2.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-3, p.31, para. 18.2.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-3, p.36, para. 25.2.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-3, p.37, para. 26.14.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-4, p.50.
 Affidavit of C Mason filed 15 February 2016, para. 6.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-5, pp.51-54.
 Affidavit of C Mason filed 15 February 2016, para. 7 and CMM-6, pp.55-57.
 Affidavit of C Mason filed 15 February 2016, para. 8.
 This letter was settled by Counsel.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-7, pp.58-59.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-8, p.62.
 Affidavit of C Mason filed 15 February 2016, exhibit CMM-9, pp.64-66.
 Banks v Goodfellow (1870) LR 5 QB 549 at 565.
Frizzo v Frizzo  QSC 107 per Applegarth J at - citing with approval Read v Carmody (NSWCA 23 July 1998, unreported; BC9803374,  NSWCA 182 per Powell JA. See also Kerr v Badran  NSWSC 734 at  per Windeyer J.
 GAU v GAV  QCA 308 at .
 Submissions on behalf of the applicant, para 30 citing Re Palmer  VSC 21; Re Winstanley (unreported, Supreme Court of Queensland, No 11203 of 2007, Daubney J, 18 January 2009); Re Levy Estate – Application of Samuels  NSWSC 1014; Bielby v Denny (unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009); Re Grace Geraldine Brown  SASC 345.
 Submissions on behalf of the applicant, paras.  to .
 Submissions on behalf of the applicant, paras.  and .
 Affidavit of G Worth filed 18 February 2016, para 7.
- Published Case Name:
In the matter of an application pursuant to Part 2 (sections 21 to 28) of the Succession Act 1981 (Qld) for the authorisation of the making of a Will on behalf of MPL
- Shortened Case Name:
 QSC 61
23 Mar 2016
No Litigation History