Payne v Smyth[2010] QSC 45

SUPREME COURT OF QUEENSLAND

[1] Margaret Wilson J:  Kodie Lee Welk, who is 19 years old, sustained permanent brain injury in a motor vehicle accident when he was six years old.  The applicant, who is his mother, seeks leave to apply for an order that a will be made for him pursuant to s 21(1)(a) of the Succession Act 1981 and an order for the making of such a will.

Legislative frame work

[2] Section 21 of the Succession Act provides (so far as presently relevant) -

"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] A person may apply for an order under s 21 only with the Court’s leave (s 22) and in applying for leave must give the Court the information specified in s 23.  Section 24 provides –

"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."

Family relationships

[4] Apart from the time he spent in hospital after his accident, Mr Welk has always lived with his mother, on whom he has been dependent. He has never married or been in a de facto relationship and he has no children.

[5] Mr Welk’s parents’ marriage was unstable before his accident, and they permanently separated in about 2003. Down the ensuing years he had irregular contact with his father until comparatively recently. Now he sometimes stays with his father for several days at a time, and he has a key to his father’s place to allow him to come and go as he pleases.

[6] Mr Welk has two older siblings from this mother’s first marriage – Melanie Rieck (known as "Melody") aged 32 and Hamish Johns aged 30, as well as three younger siblings from his mother’s marriage to his father – Amelia, 16, Kadin, 13, and Zacchaeus-John ("Red") aged 10.  He has a good relationship with all of them. 

[7] His mother lives in rented accommodation with him and his three younger siblings, all of whom are at school. She is in receipt of Centrelink benefits and a small income from casual bus driving and waitressing. His father is a train driver, employed by Queensland Rail. His older siblings both live in very modest circumstances.

Mr Welk’s injuries

[8] In the motor vehicle accident Mr Welk suffered a severe closed head injury with organic brain damage, particularly in the left frontal region, as well as orthopaedic injuries. He has persistent, significant cognitive, behavioural and emotional disturbances, and significant personality changes. He is a dependant invalid who receives a disability support pension. 

[9] A proceeding for damages for personal injuries was brought on his behalf, and compromised with the court’s sanction. The compromise sum (for damages and management fees) was $1.5 million dollars.  From that various statutory refunds had to be met and the sum of $140,000.00 was ordered to be paid to his mother for his past care and assistance. National Australia Trustees was appointed as administrator to receive and manage the balance of the compromised sum.

[10] Of course, those damages are intended to meet Mr Welk’s future needs, and the balance of the compromise sum can be expected to diminish over time. 

Application for leave

[11] I am satisfied that Mr Welk’s mother is the appropriate person to make this application. 

[12] The application has been served on his father and adult siblings, who have provided affidavits but chosen not to appear. The siblings who are minors have not been separately represented, but there is provision for them in the proposed will.

[13] Mr Welk’s litigation guardian is a parental aunt, although she is estranged from his father; she is a solicitor and an accredited specialist in succession law.

Testamentary capacity

[14] The classic exposition of “testamentary capacity” is that of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 –

"It is essential to the exercise of such a power that a testator shall understand the extent of the act and its effects; shall understand and extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind has been sound, would not have been made."

[15] Dr Leigh Atkinson, a neurosurgeon examined Mr Welk and wrote two reports dated 25 May 2008 and 23 June 2009. The second report dealt expressly with the question of testamentary capacity.  Dr Atkinson considered that he did not have testamentary capacity and that he would not acquire or regain it.  He said -

"He has significant difficulties with judgement.  He has impairment of memory and concentration. He has difficulties managing stress due to changes in his mood and behaviour. … “

He also said –

"I have noted the factors which should be considered in determining whether Mr Kodie Welk would satisfy the necessary test for testamentary capacity.  I note that Mr Welk would need to:

a)understand the nature and effect of making a Will;

b)understand the extent of the property of which he is disposing; and

c)be able to comprehend and appreciate the claims to which he ought to give effect.

I confirm that Mr Kodie Welk could not meet those requirements due to his organic brain damage and the subsequent effects that this has had on his cognitive function, his judgement and his understanding."

[16] Dr Michael Leong, a psychiatrist wrote a report dated 1 October 2008 in which he referred to Mr Welk’s having sustained organic brain injury with significant effect on his cognitive functioning and personality functioning.  Dr Pritpal Sandhu, a general practitioner, opined that his understanding of the nature and effect of making a will and his ability to comprehend and appreciate claims made in the will were severely lacking.

[17] In light of this evidence I am satisfied that Mr Welk lacks testamentary capacity and that there is no likelihood of his acquiring it.[1] 

Intestacy provisions

[18] Mr Welk has never made a will.  In the absence of a will, the intestacy provisions would apply to the distribution of his estate.  If he were not survived by a spouse, his issue would be entitled to the whole of his estate in accordance with s 36A of the Succession Act.  If he were survived by neither a spouse nor issue, then his parents or surviving parent would be entitled to the whole of his estate.  If he left no spouse, no issue and no parent, his estate would past to his next of kin in accordance with s. 37 of the Act.  Otherwise it would be bona vacantia.

Draft wills

[19] A draft will is exhibited to the affidavit of Amanda Jane Weier, the applicant’s solicitor, filed on 17 December 2009 (“the first draft will”).  It provides for the appointment of Mr Welk’s mother as his executor, or if she fails to survive him, renounces or otherwise does not act, his aunt, Christine Ann Smyth (the litigation guardian). It goes on to provide that after payment of debts, funeral and testamentary expenses –

1.Mr Welk’s golf clubs be given to his brother Hamish;

2.if he has a child or children who survive him – 50% of his estate pass to the children who survive him, if more than one as tenants in common in equal shares upon attaining the age of 18 (with provision for the children of any child who fails to survive him to take that child’s share), 20% to his mother and if she fails to survive him that share to pass to his siblings, 12.5% to his father and if he fails to survive him that share to his siblings, 16.5% to his siblings and 1% to a charity Teen Challenge; 

3.if he does not have children who survive him, 40% to his mother, 25% to his father, 33% to his siblings and 2% percent to Teen Challenge.

[20] There is evidence from Mr Welk’s mother, her solicitor, and his adult siblings which satisfies me that he wishes to share what he has with all of his family.  Further the charity Teen Challenge assisted him during his adolescence, and I am satisfied that he might well wish to make some small bequest in his favour if he had testamentary capacity. 

[21] Mr Welk’s mother and adult siblings have all expressed the opinion that the first draft will was one that he would make if he had capacity to do so himself.  

[22] His father expressed some disagreement with the proposed dispositions although he did not appear to contest the application.  In his affidavit he described the ongoing tensions between him and his former wife from his perspective. He sought to explain his own limited contact with his son down the years and to describe what financial and other support he has in fact provided.  Of course, I cannot resolve any factual conflicts between Mr Welk’s parents on this application. His father considers that the older siblings should not take under the will.  He has been critical of Hamish’s lifestyle. Perhaps more significantly, he has explained that the demands of caring for his disabled son as he grew up resulted in diminution in the quality and time that each parent could spend with the three younger children. By contrast the older children were not as adversely affected, because of their greater maturity and their moving out of home to live their own lives. He concluded his affidavit in these terms –

"Both Hamish and Melanie had moved out of home and/or were much older and following their own adult lives at the time of the accident and were not and are not, badly affected as were Amelia, Kadin and Red who live with Kodie.

Amelia, Kadin and Red should be the major beneficiaries in any Will made for Kodie.

I have no objection to a small gift to Teen Challenge.

I have no interest in benefiting out of Kodie’s death, however if all of the estate were not to be left to Amelia, Kadin an Red, then I would propose that I receive a share equal to that be received by Kodie’s mother, Maxine.

I believe that Kodie should be involved as much as possible in relation to ascertaining his wishes.

Despite my objection to the proposed Will, I do not intend to formally oppose this application but merely wish my opposition be placed on the court file in the form of this affidavit."

[23] I was concerned that the first draft will did not provide for the possibility of Mr Welk having children, none of whom survived him, but one or more grandchildren who survived him. To address that concern, the solicitors for the applicant (with the concurrence of Mr Welk’s litigation guardian) prepared a further draft will which is exhibited to the affidavit of Amanda Jane Weier filed on 17 February 2010 (“the second draft will”). The dispositions in the second draft will are to similar effect as those in the first except that those I have summarised in sub-paragraph 2 of para 19 herein begin with the words “IN THE EVENT I do not have a child, children, grandchild or grandchildren who survive me …” That change satisfies my concern.

[24] I cannot foresee any likelihood of an application for family provision being made if Mr Welk died leaving a will in terms of the present draft.  That he might form a de facto relationship and that the de facto partner might make such an application is purely speculative.  And of course, in the unlikely event that he married, the will would be revoked by the marriage:  Succession Act 1981 s 14.

[25] In all the circumstances I am satisfied that the second draft will is or may be one which Mr Welk would make if he had testamentary capacity.[2] It is appropriate that an order be made authorising the making of a will on his behalf.[3] I approve the second draft will.[4]

Orders

[26] The following orders should be made:

(1) that the applicant have leave to apply for an order under s 21 of the Succession Act 1981 that a will be made for Kodie Lee Welk;

(2) that a will be authorised to be made for Kodie Lee Welk in terms of the draft will which is exhibit AJW-2 to the affidavit of Amanda Jane Weier filed on 17 February 2010.

[27] The applicant seeks an order that the costs of the application for leave and the application to authorise the making of the will be paid out of Mr Welk’s assets.  The application has been successful. There should be an order that the applicant’s costs of and incidental to the originating application be assessed on the indemnity basis and paid out of the assets of Kodie Lee Welk.