VMH v SEL[2016] QSC 148

SUPREME COURT OF QUEENSLAND

1. Jackson J: This is an application for an order under the Succession Act 1981 (Qld) authorising a will to be made in the terms as stated by the court on behalf of a person without testamentary capacity.  The questions of substance are whether any order should be made and, if so, what the terms of the will should be.

2. The person in relation to whom the order is sought is a 91 year old lady, CEK. In December 2014, the applicant valued her estate at approximately $2.4 million.

Interested persons

3. The active disputants in the proceeding are siblings who are all the children of one of CEK’s brothers. The applicant is her nephew and the respondents are her nieces.

4. There are other persons who might have an interest in CEK’s estate and who were served. They fall into three groups.

5. First, there are other nieces and nephews of CEK, the children of her sister and other brother. Because she has no closer relative, if CEK were to die intestate, each of them would have an entitlement. However, as will appear later, it is not suggested that CEK will die intestate whether or not this application results in an order authorising a will to be made.

6. Second, there are the named beneficiaries under a will CEK made in February 2014, being her friends Mr and Mrs B and her former carer, RS (“Bobby”). If that is her last existing valid will, they would be directly affected by an order authorising a will to be made either as proposed by the applicant or as proposed by the respondents.

7. Third, there are named beneficiaries of specific pecuniary legacies to charitable institutions and an old friend under both the February 2014 will and the proposed will. The gifts to them are not in contest as between the applicant and the respondents.

8. The interested persons other than the parties were served with the application. Only the applicant and the respondents appeared at the hearing.

9. Both the applicant and the respondents submit that the court should make an order authorising a will to be made. The dispute between them is limited to the terms of the proposed will. Nevertheless, when considering whether any order should be made it is also necessary to have regard to the interests of the other persons who did not appear.

CEK’s circumstances

10. CEK was born on 23 February 1925. She is presently a patient in the Townsville Hospital Sub Acute Ward.

11. Her parents AOH and GH died in 1975 and 1972 respectively. She had three siblings, PH, WHH and VOMH who are all deceased. PH died in 1963. VOMH died in 1998. WHH died in 2006.

12. The applicant and the respondents are VOMH’s children. They had a sister P who died in 2006 with two surviving children.

13. The evidence before the court about CEK’s early life necessarily comes from the applicant and the respondents’ affidavits. CEK had a close and loving relationship with her parents.

14. VOMH’s family, including the applicant and the respondents, often spent time together with his parents and CEK on weekends, birthdays and holidays. Both the applicant and the respondent, JEW (“Lyn”) say they were favourites of CEK.

15. CEK lived in her parents’ house then later in a house next to her parents. VOMH and his family lived on Magnetic Island from when the applicant and Lyn were quite young.

16. The applicant is approximately 13 years younger than Lyn. Her recollection of early life with CEK accordingly extends over a longer period. Growing up, she says that she was “very close” with CEK. CEK was a lover of animals and was involved in showing dogs. CEK took Lyn to dog shows. Lyn’s recollection is that CEK was also close with the second respondent, her sister SEL (“Susanne”). Lyn does not recall her being close to the applicant.

17. CEK was married in 1959. Lyn was her junior bridesmaid and was then aged 14 years. When Lyn was at high school she moved into her grandparents’ house in Townsville from her parents’ home at Magnetic Island. CEK was living next door with her husband. CEK and Lyn spent a lot of time together.

18. After Lyn left high school she started working and boarded at her grandparents’ home. She remained close to CEK who continued to live next door.

19. The applicant attended school on Magnetic Island and came to the mainland where he saw his grandparents and CEK, although the ferry connection then was not as it is now.

20. Lyn married in 1966. She moved with her husband AEW to a grazing property. AEW’s family were graziers. AEW and Lyn carried on business as graziers and built up their holding.

21. Susanne is six years younger than Lyn. She also says she was close with CEK during her childhood. She moved with her parents and family to Magnetic Island until high school. When she stayed at her grandparents’ home CEK lived next door with her husband. CEK would take her on regular excursions and outings.

22. At the age of 15, Susanne moved to Townsville and lived with her grandparents from Monday to Friday. She became closer to CEK during that time. It remained that way until she was about 19 when she moved to live with her sister P and P’s husband.

23. She recalls that on her grandfather’s eightieth birthday, her father and CEK fell out. From that time onwards she did not have any further contact with CEK who became estranged from her family.

24. When AOH died in 1975 there was a dispute between VOMH and CEK over AOH’s will and ownership of the family home. VOMH had built the house for his parents and had been told it would be left to him together with other property. However, the majority of their assets including the house were left to CEK. VOMH and his family appear to have ceased contact with CEK. At some time in the mid-1980s CEK moved away from Townsville.

25. The picture of CEK’s life from approximately 1975 until September 2014 is almost a blank canvas. At some stage it appears that her marriage or marriages broke up but there are no details. She acquired some substantial assets but when or how is not identified. She appears to have lived on the Gold Coast at Miami for a significant period of time but there are no details.

26. There is some information contained in two reports by a geriatrician who CEK saw in May 2015 and September 2015. It must be remembered that this information was provided in the context of assessments by the geriatrician of CEK’s cognitive impairments. CEK described her occupation as a “retired secretary”. She said that she had been a dog judge at three world championships in England and that her role as a dog judge had taken her to more than 42 countries.

27. It seems that in or about 1999 CEK was living on the Gold Coast. Following an illness she was advised to appoint a power of attorney and did so.

28. In June 1999, CEK executed a general power of attorney and an enduring power of attorney appointing Mr B as her attorney. Mr B is described as her real estate agent, but there was clearly more than that to CEK’s relationship with Mr B and his wife.

29. In the reasons for decision of QCAT dated 20 October 2015 it is said that from about 2009 CEK lived in a unit she owned at Miami at the Gold Coast, where Mr B also resided, until CEK left the Gold Coast on or about 11 March 2015.

30. For some time before then, although it is not clear for how long, Bobby was CEK’s carer. She accompanied CEK on her travels at least to some extent, including trips to Prairie and Townsville that she made in 2014 and 2015.

31. CEK has lived in Townsville since March 2015.

Lifestyle changes at age 90

32. Bobby was acting as CEK’s friend and carer. She took care of day to day matters such as shopping and the like.

33. CEK would sign blank withdrawal forms for Bobby to withdraw cash from the bank. Bobby used them to withdraw sums from CEK’s account. Particularly from about March 2015, Bobby withdrew large amounts totalling many tens of thousands of dollars that were ultimately unexplained or misused.

34. In September 2014, CEK and Bobby went on a trip to Prairie in Northern Queensland. Prairie was where CEK had grown up as a very young girl. Her family ran the Prairie Hotel for some years.

35. In September 2014, they stayed in Prairie. While they were there Lyn’s sons were in town and heard that CEK was at the Prairie Hotel. Lyn drove the next day to meet with CEK, which was the beginning of CEK re-establishing her relationships with Lyn and the applicant. When Lyn learned of CEK’s reappearance she was delighted. She stayed with CEK in Prairie overnight. She contacted the applicant but for a reason that was not explained did not contact Susanne.

36. In December 2014, CEK and Bobby returned to Prairie for a family party. The applicant says it was to celebrate CEK’s ninetieth birthday as well as an early Christmas get together. Lyn says it was the latter but the difference does not matter. CEK and Bobby returned to Miami after that.

37. On 5 March 2015, for reasons which are not clear, Dr Cuffe made an assessment of CEK’s mental state and concluded that she was able to make her own legal decisions.

38. On 14 to 20 March 2015, CEK and Bobby stayed with Lyn and her family at Elabe, Lyn’s grazing property home, on their way to Townsville.

39. From March 2015, Lyn was aware that CEK wanted to buy a house in Townsville and that CEK was spending significant time with herself and the applicant. There is no doubt that Lyn, as much as the applicant, was acting to re-establish her relationship with CEK and to assist CEK where she could.

40. After 20 March 2015, CEK reappeared in Townsville. She and Bobby were staying with friends of Bobby’s. She made contact with the applicant. CEK contracted to purchase a house in Douglas at Townsville next door to or near Bobby’s friends’ house. It appears the aim was that CEK and Bobby would move in there.

Opposition from Mr B

41. However, it also appears that Mr B opposed the move. According to things that CEK has said, she viewed that as an attempt to control her affairs. Mr B said it was because he was concerned both about the extent of the withdrawals from CEK’s bank accounts, of which he was aware, and also whether the house purchase proposed would be suitable for CEK’s needs. This was the beginning of a battle over whether CEK was capable of managing her own affairs and, if not, who should manage them.

42. From when CEK and Bobby came to Townsville, the applicant started to visit her regularly. On his account, Bobby raised with him that she had concerns about Mr B because he had taken CEK’s bank card from her. Having regard to what Mr B said in the context of the QCAT hearings that followed, his version was that he was concerned about the cash that was being withdrawn from CEK’s accounts and her ability to look after her own affairs.

43. In any event, CEK told the applicant that Mr B had said she had no money, had cancelled the contract to purchase the house in Douglas without telling her, and he had become upset when she asked for statements of her bank accounts. According to CEK, she was concerned that Mr B was taking over her life. It is from that point that the applicant became heavily involved in CEK’s financial affairs.

44. On 28 April 2015, he took CEK to the Commonwealth Bank where she removed Mr B’s access to her accounts. On or about the same date, he rejected Mr B’s statements that Bobby was spending a lot of CEK’s money and that CEK was “losing it”. The applicant said that CEK was fine.

45. It seems that, from that point on, the applicant became CEK’s ally or champion in removing Mr B from CEK’s affairs.

46. In hindsight, it should be acknowledged that Mr B was right, at least to some extent. Bobby was apparently mishandling CEK’s funds. Further, some months later QCAT did appoint a financial administrator of CEK’s affairs because she lacked capacity to take care of them herself, although it was the applicant rather than Mr B appointed by QCAT.

47. In early May 2015, the applicant arranged for CEK to attend BCK Lawyers.

48. On 1 May 2015, for reasons which are not clear, Dr Cuffe provided a second report which stated that CEK required further review of her mental state and expressed concern that she might have dementia.

49. In early May 2015, CEK went with Bobby to an outback picnic race meet with Lyn’s family and the applicant and his family.

50. On 5 and 6 May 2015, CEK went to BCK Lawyers. She instructed them to prepare the documents to remove Mr B as her power of attorney and to appoint the applicant as her new power of attorney. CEK gave BCK Lawyers an authority to obtain her files from her previous solicitors.

51. On 6 May 2015, Dr Cuffe’s second report was provided to the applicant and CEK by BCK Lawyers and they discussed it with them. Having regard to that report, the solicitor from BCK Lawyers advised CEK and the applicant to obtain a report from a specialist geriatrician as to her mental state. The applicant arranged for CEK to attend upon Dr Otaiku.

52. Both the applicant and Lyn were concerned about Bobby’s use of CEK’s funds as well as CEK’s general care. Lyn and the applicant both wished to ensure that CEK had trustworthy people managing her financial and personal affairs. It was the applicant who had the role of dealing with BCK Lawyers as CEK’s lawyers.

53. On 20 May 2015, the applicant told Lyn on the telephone that BCK Lawyers had advised CEK that Dr Cuffe’s view that CEK was not of sound mind would prevent her being able to make a new power of attorney.

54. On 21 May 2015, the applicant phoned Lyn to communicate his concern about cash withdrawals on CEK’s account by Bobby.

55. On 23 May 2015, Mr B wrote to the applicant that he was in the process of lodging an application for appointment as administrator or guardian for CEK. He asked the applicant to arrange for her to be returned to her residence at Miami.

CEK decides to change her will

56. The applicant says that on 23 May 2015 he asked CEK “what was going on”. CEK told the applicant that she had money, that Mr B was a beneficiary under her will and had confronted her asking if he had been removed from her will, that Mr B had refused to provide her with copies of bank statements, and that she had lost trust in him. CEK said she felt Mr B had taken advantage of her.

57. Of critical current relevance, the applicant says that on this occasion CEK said that she wanted to change her will to leave her estate to the applicant.

58. That is the first occasion on which CEK is said to have expressed a desire to leave her estate to the applicant. As the will she executed in the following weeks (on 25 June 2015) shows, her desire at that stage was to leave her estate to the applicant subject to significant gifts that she intended to make to Bobby and with a gift over to Lyn if the applicant did not survive her by 30 days.

59. But the point of present relevance is that CEK had only been in close or regular contact with the applicant for a month or two at this time, since ceasing any regular contact with him in about 1975 when he was 17 years old. As well, at this stage, CEK was still living or staying with Bobby at the house of Bobby’s friends.

60. It appears that from May 2015 when faced with Mr B’s opposition to the Townsville house purchase, challenge to her mental capacity and also concerns (which proved to be well founded in QCAT) as to Bobby having misused her funds, CEK’s reaction was to cut off Mr B and to install the applicant instead as her favourite.

61. Importantly also, CEK did this without any reference to or discussion with Lyn. Lyn was aware, or was told by CEK or the applicant, that the applicant would assist CEK with her financial affairs in the event that she was no longer able to manage them.

62. Lyn was also aware that CEK was distressed that her will provided significant benefits to Mr B and his wife. As is apparent from the will she made in June 2015, CEK cannot have been too concerned about Bobby at that stage.

63. According to Lyn, CEK told her on many occasions that she wished the applicant and Lyn to benefit from her estate.

64. On 30 May 2015, the applicant took CEK to Dr Otaiku for a report about CEK’s capacity to revoke her powers of attorney and to make a new power of attorney. Dr Otaiku did not give a specific report as to CEK’s capacity to change her powers of attorney. She was not asked to, and did not, express an opinion as to her testamentary capacity. However, the report was in general mildly supportive of CEK’s capacity, although referring to her clear memory loss.

65. On 1 June 2015, the applicant called Lyn to cancel plans for CEK to visit Elabe because she had to attend at BCK Lawyers in Townsville.

66. On 18 June 2015, CEK attended BCK Lawyers and executed documents revoking the enduring power of attorney in favour of Mr B. She also executed an enduring power of attorney in favour of the applicant. Both the revocation and the execution of the new power of attorney were subsequently declared invalid by QCAT because of CEK’s lack of capacity to make them.

June 2015 purported will

67. On the same day, CEK informed the solicitor at BCK Lawyers that she wanted to prepare a new will that would gift the remainder to the applicant with a gift over to Lyn if he did not survive her.

68. It is clear enough that the applicant was involved in the process by which CEK made a new will, although he says that he did not know of its precise contents at that time. Importantly, he did not tell Lyn at all.

69. Also on 18 June 2015, the applicant telephoned Lyn and asked her to spell her name. However, Lyn was unaware that at the time the applicant was assisting CEK and BCK Lawyers with the preparation of CEK’s new will.

70. On 24 June 2015, Mr B, who it may be assumed did not know about CEK’s changed testamentary intention, filed an application in QCAT to appoint him as CEK’s financial administrator or guardian. The applicant and CEK set about defending the application with the assistance of BCK Lawyers.

71. On 25 June 2015, CEK executed a new will. It revoked her February 2014 will that left the residue of her estate to Mr B and his wife. It was the first of two purported wills which left the residue of her estate to the applicant with a gift over to Lyn in the event that he did not survive CEK by 30 days.

72. On 17 July 2015, Lyn had a picnic lunch with CEK and Bobby in Townsville.

73. On 24 July 2015, the applicant called Lyn about his concerns relating to Bobby looking after CEK and to discuss Mr B’s actions as her attorney. The applicant and Lyn continued to discuss those concerns.

September 2015 purported will

74. On 1 September 2015, the applicant and CEK attended at BCK Lawyers. They discussed the applications pending in QCAT. A complaint was made to the police about Bobby’s misuse of CEK’s funds. CEK gave instructions to BCK Lawyers to change her June 2015 will.

75. Also on 1 September 2015, CEK executed the new will. It revoked the gifts to Bobby, consistently with the complaint to police made that day about Bobby’s misuse of funds. Otherwise, the gift of the (now increased) residue of the estate to the applicant with a gift over to Lyn if the applicant did not survive CEK by 30 days was continued.

76. I infer that this was the end of Bobby’s care of CEK.

77. On 2 September 2015, the applicant telephoned Lyn and asked her to travel to Townsville to look after CEK. Lyn did so, checking herself and CEK into a motel until 11 September 2015. Neither the applicant nor CEK told Lyn about the September 2015 will.

78. On 10 September 2015, the applicant and Lyn assisted CEK in the purchase of a retirement unit in Townsville by attending BCK Lawyers with her.

79. On 11 September 2015, Lyn and CEK went to Magnetic Island for three nights. After this they returned to Townsville.

80. On 15 September 2015, the applicant and CEK attended on Dr Otaiku to assess CEK’s capacity to change her will.

81. On 17 September 2015, the applicant, Lyn and CEK flew to Brisbane and travelled to Miami. They helped CEK to pack up her unit and then drove back to Townsville, arriving on 21 September 2015.

82. On 21 September 2015, Lyn and CEK checked into the motel for approximately another two weeks.

QCAT hearing and decision

83. On 7 October 2015, the applicant and CEK attended the QCAT hearing. The applicant discouraged Lyn from attending as “too many people makes it too confusing”. CEK attended and participated.

84. On 9 October 2015, Lyn and the applicant assisted CEK to move into a retirement unit in Townsville.

85. On 20 October 2015, QCAT made orders:

1. revoking the enduring power of attorney in favour of Mr B;

2. declaring the 18 June 2015 power of attorney in favour of the applicant invalid due to CEK’s incapacity; and

3. appointing the applicant as CEK’s administrator for financial matters.

86. The QCAT member made an important finding:

“The Tribunal considers that [CEK] i[s] vulnerable to the influence of any person who might gain her trust and she does not have the capacity to ensure that her interests are adequately protected.”

87. On 20 October 2015, the applicant informed Lyn that he had been appointed “guardian” for CEK. Lyn continued to assist CEK with her care and arrangements.

Response to the cloud cast over the September 2015 will

88. On 19 November 2015, the applicant and CEK met with lawyers from BCK Lawyers to consider options to ensure that the September 2015 will could be upheld, given QCAT’s findings about CEK’s capacity to revoke and make a new power of attorney.

89. On 16 December 2015, CEK had a fall and was hospitalised.

Application to QCAT for funds to bring this application

90. On 18 January 2016, the applicant and a lawyer from BCK Lawyers (who is the lawyer for the applicant in this application) attended on CEK at her home. They obtained instructions, ostensibly from CEK, to bring an application to QCAT to use CEK’s funds to bring an application for a court authorised will. At that time, CEK could not name her nieces and nephews except for the applicant and his sister.

91. On 4 March 2016, the applicant filed an application in QCAT to obtain an order to use CEK’s funds to bring this application.

92. On 14 March 2016, Lyn assisted CEK in relation to repairs to her car and discussed with the applicant CEK’s needs for outings and more company.

Lyn learns of the 2015 wills

93. On 15 March 2016, Lyn opened CEK’s mail for her and read it to her as she had become used to doing. Lyn discovered the September 2015 will among the papers relating to the application to QCAT for an order to use CEK’s funds for this application.

94. From 17 March 2016, conflict occurred between Lyn and the applicant. Lyn considered that the applicant had taken advantage of CEK and betrayed Lyn in relation to the September 2015 will.

95. On 24 March 2016, QCAT ordered that the applicant may use CEK’s funds to bring an application for a court authorised will in the Supreme Court. CEK was present by telephone with an accompanying lawyer assisting her. It seems that no disclosure was made to QCAT of the conflict between the applicant and Lyn.

96. On 6 April 2016, CEK met the lawyer who acted for the applicant in this application and they discussed the outcome of the application to QCAT.

97. On 12 April 2016, the present application was filed.

Susanne is remembered

98. About this time, Susanne became aware that CEK was in Townsville. On 20 April 2016, she visited her for the first time.

99. On 22 April 2016, Lyn was served with the present application and affidavits and became aware of the terms of the proposed court authorised will.

100. On 26 April 2016, Lyn and Susanne visited CEK.

101. On 27 April 2016, Lyn and CEK discussed the proposed court authorised will. Lyn took notes of the discussion and arranged for CEK to attend that day upon the lawyer acting for the applicant who had previously acted for CEK.

102. In April or May 2016, CEK discussed her financial affairs with Susanne. Susanne says that CEK expressed unhappiness with the applicant being in control of her funds.

103. On 4 May 2016, when Lyn called CEK, the applicant answered the phone. The conflict between them continued. He hung up the phone and took it off the hook.

Leave granted to bring this application

104. On 5 May 2016, Atkinson J made orders giving leave to bring this application and also made directions for CEK to be interviewed by a geriatrician as to her testamentary capacity and an Accredited Succession Law Specialist as to the preparation of a proposed will for CEK, her testamentary capacity and her understanding of who might reasonably be thought to have a claim on her testamentary bounty. The material before Atkinson J did not include many of the matters set out above.

105. On 6 May 2016, CEK did not attend the picnic races with Lyn’s family as previously arranged. The conflict between the applicant and Lyn appears to have contributed to that outcome.

106. On 9 May 2016, CEK, Lyn and Susanne discussed making an appointment for CEK to see officers of the Public Trustee of Queensland to discuss the applicant’s handling of CEK’s affairs.

107. On 17 May 2016, CEK saw Dr Martinez who reported that CEK was able to make informed decisions and had no significant cognitive impairment.

108. On 19 May 2016, CEK consulted a lawyer from the office of the Public Trustee of Queensland who made a note as to the attendance, including that CEK said that “she wanted to get [the applicant’s] signature off her stuff”. The lawyer was not satisfied that CEK had capacity and advised that she could not help.

109. On 26 May 2016, CEK had another fall at her home. She injured her elbow and was admitted to hospital where she remains.

110. On 6 June 2016, Ms Arthur, an Accredited Specialist in Succession Law, interviewed CEK in hospital. I do not set out her opinions and observations in detail, but have looked at them closely.

111. On 8 June 2016, CEK was again seen by Dr Otaiku. Dr Otaiku’s third report is in evidence. She opines that CEK did not have testamentary capacity. She says that the applicant “has expressed the same consistent view of [the applicant] to be the main beneficiary of her assets with [the] intention of benefitting the grandchildren.” I reject as erroneous the statement that CEK has had a consistent view or intention of benefitting the grandchildren.

112. Dr Otaiku interviewed CEK for the purposes of her two previous reports on 30 May 2015 and 15 September 2015. Dr Otaiku’s first report was not related to CEK’s intention to make a new will. It was solely concerned with her capacity to revoke her existing powers of attorney and to make a new one in favour of the applicant. There is no reference in it to CEK’s intention to make a new will and no suggestion that it was a subject matter of discussion.

113. Dr Otaiku’s second report was concerned with CEK’s intention to change her will. However, the interview in fact occurred after the changes were made. CEK made her June 2015 will after Dr Otaiku’s first report and she made the September 2015 will almost two weeks before the interview for the second report. On both occasions she saw CEK with the applicant.

114. The point for present purposes is that both CEK’s June 2015 and September 2015 wills left the residue of her estate to the applicant but with a gift over in favour of Lyn if the applicant did not survive CEK for 30 days. Neither made any provision for the applicant’s children. In any event, they are not CEK’s “grandchildren”. Ms Arthur’s evidence revealed that CEK was not even able to identify with clarity that the applicant has a son and two daughters and did not know their names.

115. There is no suggestion that when CEK made her June 2015 or September 2015 wills her then intention was to benefit the applicant’s children to the exclusion of Lyn’s children. There is also no evidence of any such intention in Dr Otaiku’s first or second reports. Nothing supports the suggestion that Dr Otaiku was informed about the applicant’s children by CEK at the time of her first or second reports. It does not even appear that Dr Otaiku was informed of the contents of the September 2015 will when she saw CEK on 15 September 2015.

The discretionary power under section 21

116. Section 21 of the Succession Act 1981 (Qld) was added in 2006 in the following terms:

(1)The court may, on application, make an order authorising—

1. a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or

2. 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—

1. the person in relation to whom the order is sought lacks testamentary capacity; and

2. the person is alive when the order is made; and

3. 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—

1. an application for an order under this section;

2. 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…

117. An applicant for an order under s 21 must first obtain leave to bring the application under ss 22 and 23. Section 23 provides that on the hearing of an application for leave the applicant must, unless the court directs otherwise, give the court the following information:

1. 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;

2. satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 21 is sought;

3. 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;

4. a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the person’s estate;

5. a draft of the proposed will, alteration or revocation in relation to which the order is sought;

6. any evidence available to the applicant of the person’s wishes;

7. any evidence available to the applicant of the terms of any will previously made by the person;

8. any evidence available to the applicant of the likelihood of an application being made under section 41 in relation to the person;

1. 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;

10. 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;

11. 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

12. any other facts of which the applicant is aware that are relevant to the application

118. Also, s 24 provides that leave to bring an application may only be given under s 22 if the court is satisfied of certain matters, namely that:

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

2. 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;

3. there are reasonable grounds for believing that the person does not have testamentary capacity;

4. 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;

5. it is or may be appropriate for an order to be made under section 21 in relation to the person.

119. Section 25 provides that on an application for leave under s 22 or for an order under s 21, the court:

1. may have regard to any information given to the court under section 23; and

2. may inform itself of any other matter relating to the application in any way it considers appropriate; and

3. is not bound by the rules of evidence.

120. The court’s powers on an application under s 21 are to make an order authorising “a will to be made or altered, in the terms stated by the court” or authorising “a will or part of a will to be revoked”.

121. The wide discretionary power thereby conferred applies over many different kinds of case. In the context of similar New South Wales statutory provisions, Palmer J classified different kinds of incapacity cases.^[1]   The present case falls into the “lost capacity” category, about which his Honour said:

“The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.

The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?

The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and s 21(c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.

If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person ‘if he or she had testamentary capacity’? This question may pose little difficulty if the person’s testamentary capacity is borderline, that is, the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty – a not infrequent symptom of testamentary incapacity.

In short, the Court should be conscious that there are two questions involved in a case of alleged actual intention under s 22(b): has the incapacitated person actually expressed the intention attributed; would the person have held that intention if possessed of testamentary capacity?”^[2]

122. Section 23(a) requires that on the application for leave under s 22 a draft of the proposed will must be given to the court and s 24(d) requires that before granting leave the court must be satisfied that the proposed will “is or may be” a will that the person would make if they had testamentary capacity.

123. However, s 21 is not conditioned on that question. The section does not expressly provide, and in my view should not be construed to mean, that if the answer to Palmer J’s first question is unclear the court may not make an order.

124. A simple example relevant to this case will suffice. A testator may have provided generously for a long term friend in the will, but after they lose capacity it may become apparent that the intended beneficiary has been stealing from the testator. The testator who has lost capacity is no longer able to change the will. However, there is little doubt that if they still had capacity they would have done so. The absence of actual intent is not a bar to making an order.

125. This case is one step removed from that example.

126. CEK made a will in February 2014 that is presumed valid, which included a substantial gift to Bobby who it transpires was in effect stealing from her. If CEK had capacity, there is little doubt that she would change the will. She has a new preferred beneficiary. That is an actual intention formed by a person without the capacity to manage their own affairs or at least to make their own will or power of attorney. If the court cannot be satisfied that CEK would have made a new will in favour of the new preferred beneficiary if she had the requisite capacity, that does not mean that the court cannot authorise a will on appropriate terms.

Why some order should be made in this case

127. Because CEK is 91 years of age and not in the best of health, I have decided this application promptly and give reasons that only deal with the most important points.

128. The information given to the court on the leave application may be considered.^[3]  The width of the discretion granted to the court under s 21 is supported by s 25.

129. I am mindful that a primary purpose of the applicant and the respondents is to obtain an order authorising the making of a will to supersede the February 2014 will and thereby undo the testamentary gifts to Mr B and his wife and to Bobby.

130. Apart from the unchanged minor pecuniary legacies, either the applicant or both the applicant and the respondents would take under the wills they propound.

131. The threshold question on this application is not whether CEK lacked testamentary capacity in September 2015 (or June 2015). It is whether she lacks it now. That factual and legal conclusion is not in contest between the parties. It is supported by the recent reports of both Dr Otaiku and Ms Arthur as well as by many other statements in the evidence. She is unable to identify what property she owns. She is unable to identify the applicant’s lawyer, a person she has met several times over the last six months. She is unable to identify a number of her living relatives and has difficulty even in bringing Lyn’s name to mind.

132. Under s 23(f), CEK’s wishes are relevant even though the starting point is that she does not have capacity. It is an obvious point that the wishes of a person who does not have capacity do not carry the same weight as those of someone who does.

133. Under s 23(g) the terms of any will previously made by the person now without capacity is a relevant factor. That factor is relevant because it displays the person’s wishes at an earlier time when they are presumed to have had capacity.

134. Such a presumption should not be made about CEK’s September 2015 will for two reasons. First, as QCAT concluded in October 2015, by June 2015 CEK did not have the capacity to revoke her existing powers of attorney or to appoint a new power of attorney. The QCAT member made findings that cast doubt on CEK’s capacity to make a will in September 2015. There was evidence to support those views.

135. Second, the extraordinary circumstances in June 2015 under which CEK came to revoke her February 2014 will raise real questions about CEK’s faculties even then. The affidavits of the applicant and Lyn suggest they had concerns that Bobby was misusing CEK’s money or stealing from her before June 2015. Nonetheless, CEK re-made her will in June 2015 to disinherit Mr B and his wife but in substance left undisturbed the gifts to Bobby from the February 2014 will. The substantial change brought about by the June 2015 will was that the residue of CEK’s estate was directed away from Mr B and his wife in favour of the applicant. The context in which this change happened was that in May 2015 Mr B had said he was to start an application that he be appointed CEK’s financial administrator or guardian, which she opposed with the applicant’s assistance.

136. If CEK had decided to leave her bounty to her family, rather than to Mr B and his wife, on any view it was a remarkable change that in substance she directed it only in favour of the applicant (although then with a gift over to Lyn if the applicant did not survive her for 30 days). By June 2015, her connection with the applicant was relatively short-lived as the chronology of circumstances previously set out shows. She consulted and informed no-one else about her intentions, except the lawyers who the applicant was dealing with on her behalf in relation to Mr B’s application and the powers of attorney.

137. Notwithstanding those facts, if CEK’s September 2015 will was made when she did not have testamentary capacity it is still appropriate to authorise a new will irrespective of whether CEK had capacity at the time of making the February 2014 or June 2015 wills. This is because both of those wills made substantial gifts to Bobby that it is now inappropriate to leave in place having discovered Bobby’s misuse of CEK’s funds.

138. Therefore, the court can conclude it is appropriate to authorise a new will for CEK.

Relevant considerations in deciding the terms of the will

139. From that point, however, there are real difficulties presented in considering the relevant factors to ascertain what the terms of the will should be.

140. Bobby’s abuse of CEK’s trust does not reflect on Mr B or his wife who were beneficiaries under the February 2014 will.

141. However, they do not propound, and have not appeared to argue, that provision should be made for them now. There is also no evidence that they have maintained contact with CEK since Mr B’s application for appointment as her financial administrator or attorney was dismissed, apart from an appearance by Mr B before QCAT on the application to authorise the use of CEK’s funds to bring this application.

142. CEK’s present desire to leave nearly all of her bounty to the applicant, and if he does not survive her to his immediate family to the exclusion of other family members is clear enough. But two factors stand in the way of giving those wishes determinative weight.

143. In my view, CEK has plainly become dependent on the applicant. The applicant injected himself into her affairs in a way that showed no concern to ensure that she did not become so dependent. He did not counsel her against favouring him to the exclusion of his siblings or cousins, including Lyn, even though he must have been aware that as a frail old woman with declining faculties her reliance on him might have caused her to favour him unduly.

144. This is illustrated by him not even telling Lyn of CEK’s decision to leave the substance or residue of her estate to him and to make no provision for Lyn unless he did not survive. CEK told him as early as May 2015 that she was to change her will in his favour. Having regard to that statement I think it is unlikely that he did not know of the contents of CEK’s June 2015 will at the time.

145. In any event, it is clear that he knew of the contents of CEK’s September 2015 will at the time and I infer that he knew of the change that it made to the June 2015 will. Some might characterise his actions as avaricious. It is not necessary for me to do so. For present purposes it is enough to say that his position of dominance or influence over CEK is such that I give CEK’s statement of wishes less weight than I might have done in other circumstances.

146. Second, the succession of wills made by CEK supports the existence of that increasing reliance and dependence. The February 2014 will is the earliest one put before the court. There is no detailed evidence as to CEK’s capacity at that particular time, although in March 2015 Dr Cuffe opined that she had legal capacity. That the February 2014 will did not leave any property to any of CEK’s family is significant. CEK had shown no real interest in her family for about 39 years. In saying that, I have not overlooked the applicant’s evidence of their meetings in or about 1999 and of very occasional contact by telephone or by cards after that.

147. That did not change until the end of 2014, after which CEK made an effort to seek Lyn and the applicant out. I take this into account as tempering the assertions by the applicant and Lyn that each was her “favourite”. In truth, their view of CEK’s affection for them when they were younger meant nothing to CEK in terms of any effort to maintain any relationships with them or to provide for them before early 2015.

148. The parties submit that in exercising the discretionary power under s 21 the court should aim to authorise a will that the person would have made if they had been of capacity. The validity of that consideration is recognised in the text of s 24(d). An alternative approach is that the court should authorise the will that a reasonable person of capacity in the person’s position would have made having regard to the person’s circumstances. That is all the court can do in some cases, because there is no reliable evidence of any relevant actual wishes.

149. There are formidable difficulties that the court faces in attempting to gauge what CEK might have done in her will if she had actual capacity. On the evidence, CEK did not have a long-standing or deeply held affection for her family. If her actions over the prior 39 years (including the February 2014 will) are any guide, it seems that the reverse was true.

150. Second, it is not possible to assess when CEK’s mental acuity or faculties began to be affected by her now advancing or advanced dementia. In my view, there is no evidence that satisfies me as to what her mental state was when making either the June 2015 or September 2015 wills. There is reason to think that she believed herself to be perfectly capable. Even at the hearing of the application in March 2016 to authorise the use of CEK’s funds to make this application, CEK bristled at the suggestion that she did not have capacity in an exchange with the member of QCAT. Her lack of insight as to the basis of this application could not have been more clearly demonstrated.

151. Notwithstanding that, in April 2016 she made an affidavit for this proceeding that sets out her views. I have no confidence that her views reflect what she would have done before her decline and loss of capacity. It is almost a self-contradiction for the applicant to urge on the one hand that I should make a will for CEK because of her loss of capacity but on the other hand that I should simply pay attention to what CEK says now as to what she wants done.

152. This point is illustrated by CEK’s treatment of Lyn. On the one hand, she sought to put herself in Lyn’s good offices including by making promises that she would provide for Lyn in the will. On the other hand, guided by the applicant and the lawyers he found for her, after only a couple of months in Townsville she left all of her bounty to the applicant (on whom she depended the most), in substance without leaving anything for Lyn.

153. The reasons CEK gave for doing so are worthy of comment. The first is that she considered that the applicant “needs” the money more than Lyn does. There is some truth in the statement. But CEK has never had a conversation with Lyn about Lyn’s means and there is nothing in the evidence to suggest that CEK had any real insight into those means. There is a suggestion that her sources of information have included statements made by the applicant, but it is not necessary to pursue this.

154. On the other hand, it is not as though the applicant is destitute or in urgent or long term need. The capricious nature of CEK’s views on this point is shown by her reliance on her belief that the applicant has daughters for whose weddings he will have to pay (but forgetting that he also has a son) whereas Lyn has sons. This was stated to be a further basis for distinguishing between their needs.

155. CEK’s second reason for now disfavouring Lyn is also significant, in my view. It is that after Lyn raised with CEK that the September 2015 will was contrary to what she had told Lyn as to her intentions, CEK now views Lyn as a “grabber” and does not wish her to receive any benefit in any circumstances. This is consistent with the application for the court to authorise a will removing the provision made in the June 2015 and September 2015 wills in favour of Lyn if the applicant does not survive CEK for 30 days. The application is now made with CEK’s support to authorise a will under which the applicant’s family takes the residue of the estate in any event.

156. Although Lyn has seen CEK regularly, it does not appear that CEK has expressed to Lyn these views about her behaviour, or requested that she not interfere further in the will.

157. Lyn’s account of what happened in this respect is not contradicted except by some things said by CEK to others that I reject as untrue. In my view, CEK’s changes her tune about her testamentary intentions depending on who is the listener and what she thinks they want to hear, at least until backed into a corner. She is quite prepared to make criticisms of those who are helping her, and to do so behind their backs.

158. Two examples of that kind arose out of Lyn discovering on 15 March 2016 that CEK had made the September 2015 will in the applicant’s favour.

159. The first occurred when Lyn raised her dismay with CEK about its terms. CEK responded that she was not happy with her new will and to the effect that she believed that she had left all of her estate for Lyn and the applicant “to share”. Lyn immediately raised her concerns with the applicant.

160. On 27 April 2016, (perhaps with prompting from Lyn) CEK asked Lyn to arrange to see the lawyer who acted then for CEK in relation to the will. Lyn made a note in that conversation that CEK said she wished for Lyn and the applicant to share her assets equally. The note is in evidence.

161. The lawyer acting for the applicant in this application refused to see Lyn with CEK or to see Lyn at all on the basis that she was not their client. But CEK was not then the client. The starting point in this application is that she does not have capacity. In any event, the lawyer saw CEK alone but there is no evidence about what passed between them.

162. By that time, the same lawyer on instructions from the applicant had interviewed and taken an affidavit from CEK in which she stated that not only was the residue of her estate to go to the applicant but that the previous gift over to Lyn was to be removed. However the context was that the affidavit was taken from CEK as a person who did not have capacity.

163. In my view, CEK’s statement that Lyn is a “grabber” was retaliation by CEK for her embarrassment generally that Lyn raised CEK’s inconsistent statements.

164. The second incident reinforces why I take the view I have expressed about the first incident. At Lyn and Susanne’s urging, on 19 May 2016 CEK consulted the independent lawyer from the office of the Public Trustee of Queensland. The file note of that lawyer discloses that CEK complained that she was concerned that the applicant had control of her affairs and that she wanted that to cease.

165. In my view, the applicant’s position has been hopelessly compromised since June 2015. He and Lyn had jointly discussed and acted in what they thought were CEK’s best interests and as her closest family, in taking over responsibility for her care and living arrangements, and to the exclusion of those who had been doing so up to that time. Therefore it was improvident for the applicant to accept and assist CEK in making her June 2015 and September 2015 wills in his exclusive personal favour without so much as a word to Lyn about it.

166. There is just no escaping that at the relevant time both the applicant and Lyn were dealing with CEK’s care on the basis that she was being taken advantage of by Bobby and possibly Mr B. The applicant’s failure to appreciate that it was potentially improper for him to secretly proceed to take an exclusive advantage for himself is remarkable. If there was a “grabber” in these events, in my view, it was not Lyn.

167. This is supported by the applicant’s original affidavit in this proceeding. It emphasised the close relationship of CEK and her parents and the applicant’s position as CEK’s favourite. Neither of his sisters, Lyn and Susanne, was mentioned in this description of CEK’s early life and connection with family members. That each of them had a longer and probably closer relationship with CEK when they were children and young adults appears from their affidavits. As well, in his initial affidavit in this proceeding the applicant minimised Lyn’s significant role in CEK reconnecting with them and gave no account of her continuing involvement in CEK’s care. To do so would not have been in the applicant’s interests. He made his affidavit in these terms knowing of Lyn’s dissatisfaction with his conduct.

168. In reaching that conclusion, I am influenced by the fact that this is not a case where in making the provisions in either the June 2015 or September 2015 wills or the will now proposed by the applicant, CEK was or is recognising a long held affection or recognising a rightful entitlement based on years of devoted support and care. Quite the reverse. The applicant’s influence over CEK as well as his place in her affections after such a short period of regular contact (mid to late March 2015 to late May 2015) to the exclusion of his sister who was being just as supportive and was significantly involved in assisting CEK, is unsettling and, in my view, unseemly.

169. The result is that I conclude I should discount CEK’s wishes as they are presently expressed, to a significant degree.

170. If CEK were to die intestate, her estate would be divided among the applicant and the respondents as to one third, the child of CEK’s sister as to one third, and the three children of CEK’s brother as to one third.

171. None of those persons who would benefit in that way has expressed any interest in CEK’s estate. Except for the child of CEK’s sister, who CEK may have assisted or lent money to more than eight years ago, there is no evidence that she knows any of them or has had any contact with any of them. Accordingly, I am satisfied that the will to be authorised ought not to make provision for relatives other than the applicant and the respondents.

172. If CEK’s wishes were ignored, and no difference applied for the extent of their respective contributions to CEK’s care since she returned to Townsville in March 2015, it would be appropriate that the applicant and respondents share the residue of CEK’s estate equally. Although Susanne’s role has only recently begun, that was not her doing. She had no reason to know of CEK’s reappearance in her siblings’ lives.

173. However, in my view, some recognition should be made of the differences in care and responsibility assumed by the applicant on the one hand and the respondents on the other. And CEK’s wishes, misguided or not, should be taken into account.

174. My conclusion is that the applicant should receive 40% and the respondents should each receive 30% of the residue of the estate.

175. I also conclude that the applicant’s and respondents’ costs of the proceeding should be paid from CEK’s estate.

176. I direct the parties to bring in an order giving effect to these reasons.