PL v R[2017] QSC 249

SUPREME COURT OF QUEENSLAND

1. This is an application pursuant to s 22 of the Succession Act 1981 (Qld) (“the Act”) that the applicant be granted leave to apply pursuant to s 21 of the Act for an order authorising a will to be made for Mr L.  The application is made on Mr L’s behalf by his son, Mr PL, who holds Mr L’s power of attorney. The respondent is Mrs R, Mr L’s wife, for whom Ms A has been appointed litigation guardian. 

2. Mr L suffers from dementia. Mrs R also suffers from Alzheimer’s disease and dementia. Mr L and Mrs R were married in May 2001. It was a second marriage for each of them.

3. The evidence demonstrates that their marriage is a happy one. Indeed, despite the impairment that they each suffer, they now reside in the same nursing home and still happily enjoy each other’s company. To the extent that there is tension between Mr L’s children and Ms A, it does not appear to be shared by Mr L and Mrs R, and one hopes that in this late stage of their lives the present dispute is not escalated such that the two of them are drawn into it. 

Matters in issue

4. The parties are in agreement that:

1. There is sufficient evidence for the Court to be satisfied that all five of the requirements for leave stated in s 24 of the Act are met;
2. In particular, as regards s 24(d) of the Act, there is sufficient evidence to support a finding that the will proposed by Mr PL may be one that Mr L would make, if he had testamentary capacity;
3. Leave should be granted pursuant to s 22 of the Act; and
4. As regards the Court’s consideration of the substantive application under s 21 of the Act, the requirement stated in s 21(2)(a) is met because Mr L lacks testamentary capacity. 

5. The principal disputes between the parties which must be resolved by the Court are:

1. What form of will should be authorised, pursuant to s 21(1)(a) and s (21)(2)(c); and

2. What orders as to costs may be appropriate, pursuant to s 21(5). 

6. The applicant contends that a will should be ordered by the Court in the form of exhibit PL-14^[1] which provides for Mr L’s wife of 16 years to be provided with a life interest consisting of 25 per cent of Mr L’s estate to be administered by way of a trust fixed as to income, discretionary as to capital, and thereafter to be divided equally between Mr L’s three sons in addition to each receiving 25 per cent of their father’s estate.  The applicant contends that the proposed will reflects the testamentary wishes of Mr L, particularly in light of orders made by the Federal Circuit Court pursuant to s 79 of the Family Law Act 1975 (Cth).

7. The respondent contends that a will should be ordered by the Court in the form of exhibit KMA-10,^[2] which essentially mirrors the Will that Mr L made in 2004. The respondent contends that there is insufficient evidence of any reliable nature that Mr L would, if he had capacity, adjust his will in the manner proposed by the applicant.

The Legislative Context

8. Section 21 of the Act confers a discretion on the Supreme Court of Queensland to authorise, inter alia, the making of a will in terms stated by the Court on behalf of 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 –

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.
7. In this section – person without testamentary capacity includes a minor.”

9. The leave of the Supreme Court is required for a person to apply for an order under s 21.  This is provided for in s 22:

“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.”

10. The Court may only give leave under s 22 if it is satisfied of the five matters in s 24 of the Act, 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 s 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; and
5. it is or may be appropriate for an order to be made under s 21 in relation to the person.

11. The Court of Appeal in GAU v GAV^[3] stated:

“[47]  It is clear from the structure of subdivision 3 that the discretionary power to grant leave is distinctly separate from the discretionary power conferred under s 21 by which the court may authorise, inter alia, the alteration of a will on behalf of a person without testamentary capacity.  The exercise of that power is constrained by the provisions of s 21(2).

[48]  Both discretionary powers are contained within subdivision 3.  It 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.  As Lindsay J of the New South Wales Court of Appeal observed recently in Secretary, Department of Family & Community Services v K, that jurisdiction is purposive; the purpose being, at its highest level of abstraction, protection of a person in need of protection.  So grounded, the jurisdiction is broad in scope and flexible in nature.  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 interests, of that person.

…

[50]  The court undertakes the enquiry with regard to the information provided to it pursuant to s 23.  As Lindsay J also observed, that information is designed to allow the court to be placed in the position to make broad evaluative judgments about the personal, and family, circumstances of the person alteration of whose will is sought (footnote omitted) …

[52]  Thus, the assessment at the leave stage of appropriateness of making an order under s 21 is made objectively with reference to the matters given to the court pursuant to s 23 and such other matters as the court considers relevant. Importantly, it is undertaken with conscious regard for the fact that making an order under s 21 is an exercise of a jurisdiction which is protective in nature and informed by what is for the benefit, and in the interests, of the person who requires protection.”

12. Section 25 of the Act 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 –

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.”

13. The application for leave and authorisation may be heard together if appropriate. The Court may give authorisation on conditions being satisfied.

Factual background

14. The following facts are uncontroversial. Mr L was born on 29 January 1929 and is currently 88 years of age. He currently resides at an aged care facility on the Sunshine Coast, Queensland. He has resided at that aged care facility since about 7 January 2016.

15. Mr L is currently married to Mrs R. They were married on or about 26 May 2001. Both Mr L and Mrs R were widowed and in their early 70’s at the time of their marriage.

16. Mrs R resides at the same aged care facility as Mr L, on the Sunshine Coast. She has resided at that aged care facility since about mid-December 2015.

17. Mr L and Mrs R met each other in or about 1999, when they both lived in the same townhouse complex situated at The Gap. Later in 1999, they began to cohabit. On or about August 2000, Mrs R sold her townhouse and purchased a house jointly with Mr L at The Gap and they moved into that property. In about December 2002, they sold that house. Mr L subsequently purchased a townhouse at Port Macquarie and Mrs R and Mr L went to live there for approximately 18 months.

18. On 6 November 2002, Mrs R purchased a townhouse at The Gap, a property which she still owns. In or about August 2007, Mr L purchased a property at Banksia Beach. Mr L and Mrs R lived predominantly at the property at The Gap, but would spend time periodically at Banksia Beach.

Decline in Health and Move to Nursing Home

19. It appears that in 2010, Mrs R’s health started to decline. According to Ms A, she observed her mother’s deterioration when she went on a trip with Mr L and Mrs R to Europe. Mrs R’s declining health gave rise to some tension between Ms A and Mr L, both wanting to care for her. In 2011, when Mrs R was in hospital, Ms A states that she was driving Mr L back and forth to the hospital and told him that she was going to get an enduring power of attorney. Shortly thereafter, Ms A received an enduring power of attorney which appointed Mr L as Mrs R’s financial attorney with Ms A as alternative attorney and appointed Mr L and Ms A as her personal health attorneys with Ms A’s daughter, Ms K, as an alternative attorney. In 2011, Mrs R was diagnosed with Alzheimer’s disease and dementia.^[4]

20. Ms A gave evidence that she became concerned about both Mrs R and Mr L in 2011, after an incident where they went on a road trip and became lost. Subsequently, she contacted Mr MJL, one of Mr L’s sons, expressing her concern that Mr L may also have a deterioration in his mental capacity and that he may be placing Mrs R in unfamiliar situations, which makes her Alzheimer’s worse. Mr MJL, according to Ms A, refused to engage on the topic.

21. In 2011, Ms A spoke to both Mrs R and Mr L about their going into a retirement village, and had conversations with Mr PL to the same effect. That suggestion was not taken up. Further incidents occurred which suggested to Ms A that Mr L and Mrs R’s ability to care for themselves was deteriorating.  In 2013, Mrs R was diagnosed with breast cancer.  After an accident in November 2015, when Mr L accidently backed his car into Mrs R and knocked her over, Mrs R spent some five weeks in the Royal Brisbane Hospital. That was, according to Ms A, essentially the result of her dementia.  At the time, Ms A contacted Mr PL and suggested he needed to check on his father.  It is evident that there were different views at that time as to what needed to occur in terms of Mr L’s care and Mrs R’s care from their children’s points of view.  Ms A considered that Mrs R needed to go into a nursing home.  Mr PL at that time thought that they could continue to live at their home.  Ms A began looking for a nursing home placement for her mother, although she recognised that ideally Mr L and Mrs R should be placed in the same nursing home because they would want to be together. 

22. Ms A found a nursing home at Deception Bay and contacted Mr PL and arranged for him and Mr L to meet her at the nursing home. Ms A gave evidence that she heard a conversation between Mr L and Mr PL, in which Mr L stated that he did not care what the price was and that he would buy Mrs R’s room as she was his wife and his responsibility and he wanted her to be taken care of and he wanted to be close to her. Mr PL responded to his father that that was not appropriate as it would impact on his children’s inheritances.^[5]  Mr PL did not dispute that he made such a statement.

23. Ms A grew frustrated and considered that her mother needed to be placed into an aged care home quickly. Ms A made an application to QCAT to be made her mother’s guardian and administrator in late 2015.

24. Ultimately, Ms A found that there was a room available at the Sunshine Coast aged care facility. She telephoned Mr PL and told him about the nursing home and that she was impressed with it. Mr PL eventually agreed that he would take Mr L to visit the facility. In or about December 2015, Mr PL informed Ms A that Mr L would not sign the paperwork for Mrs R to go into the aged care facility unless he was guaranteed a room. Subsequently, after Ms A contacted QCAT, QCAT made a decision that Ms A be appointed as Mrs R’s interim guardian and administrator. Ms A took the placement on behalf of her mother.  Mr PL subsequently arranged a placement for his father at the same nursing home.

25. Ms A accepted in cross-examination that she had been very stressed at the time when she was seeking to place her mother in a nursing home and that conversations with Mr PL were not always pleasant about her mother and his father going to the nursing home.^[6]  It appears both parties were adopting defensive positions in relation to their respective parents. 

26. The payments required for the nursing home in respect of Mrs R also proved to be a source of tension between Ms A and Mr PL. According to Ms A, the document called “Permanent Residential Aged Care Request for a Combined Asset and Income Assessment” needed to be completed and provided to the Department of Human Services so that they could work out the means-tested care payment which Mrs R would have to pay upon her being placed in the nursing home. The document needed to state both Mrs R’s and Mr L’s financial information. According to Ms A, Mr PL made it clear to her that he was not going to provide her with Mr L’s financial information.^[7]  Ms A subsequently engaged Morgans Financial Planners to help her liaise with Mr PL to get the relevant financial information and advise her how to best fund her mother’s nursing home placement, including whether it would be best to sell the property at The Gap or rent it out.  In cross-examination she stated that Mr PL did not provide any financial information to Morgans Financial Planners.  According to Ms A, Morgans advised her to retain property at The Gap for capital growth and to rent it out to fund the costs of her mother’s nursing home placement. 

27. In December 2015, according to Ms A, a family meeting was held at the hospital to arrange for her mother’s aged care placement, at which a doctor, a social worker, Mr L and Mr PL were all present, as well as Ms A and other members of Ms A’s family.  According to Ms A, Mr PL stated that he would complete the combined asset and income assessment document and send it in.^[8]  Subsequently, Ms A contacted the Department of Human Services in January 2016, enquiring about the assessment of the means-tested payment. She was informed that they had written to her at Ferny Grove, which was Mr PL’s address.  Ms A was upset that Mr PL had not passed the information onto her and interpreted this as Mr L’s family not co-operating regarding payment for Mrs R.  Ms A subsequently made arrangements to get an assessment. 

28. Mrs R was subsequently assessed as being in a high bracket for payments required for the nursing home on the basis of the combined assets of Mr L and Mrs R. In this regard, Mr L had assets of approximately $3 million and Mrs R had assets of approximately $764,000.

29. Mr PL began to act as his father’s attorney on or about January 2016. He also started to go through his father’s documents in January 2016.^[9]

30. Mr PL also located documents which he believes are all testamentary documents made by Mr L, which consisted of:

1. A Will prepared by the Public Trustee of Queensland on or about 26 August 2004;^[10]
2. A draft, handwritten, testamentary document, which apparently had a date of 11 August 2008 written on the back;^[11] and
3. An unsigned will kit document dated 8 November 2008.^[12]

Proceedings under the Family Law Act

31. Ms A considered it unfair that Mrs R’s means-tested payment was calculated at $792.68 per week, because she was married to Mr L and his assets were taken into account, when Mrs R did not have access to his finances. She subsequently contacted Pippa Colman & Associates to negotiate on her mother’s behalf to reach an agreement whereby Mr L would provide financial assistance to Mrs R to pay for her nursing home accommodation. A letter was written to Mr L and Mr PL on 30 March 2016 seeking, inter alia, to have Mr L pay Mrs R’s means tested care payment, interest on the unpaid refundable deposit and payment of half the expenses for the property at The Gap.  Other payments required to be made to the nursing home were not included.

32. According to Mr PL, Mr L’s reaction when he received a copy of the letter of 30 March 2016 from Pippa Colman & Associates was that he did not think the claim was genuine.^[13]  Ms A confirmed that Mr L would not speak to her when she visited at the nursing home for some weeks.  Despite the fact that he had received the letter from Pippa Colman & Associates dated 30 March 2016, Mr PL did not cause any response to be made to that letter, save to say that he was receiving legal advice.^[14]

33. In May 2016, Mr PL sought medical opinions as to his father’s capacity, notwithstanding he had taken over acting as Mr L’s attorney in January 2016.^[15]  The first of those reports was provided on 25 May 2016 by Dr Duddridge.^[16]  Dr Duddridge was of the view that Mr L lacked testamentary capacity but was able to effectively communicate who he wanted to include in his will and who he wanted to exclude and to make basic financial decisions.  In a further opinion of 26 May 2016, Dr Duddridge considered that Mr L did not have the capacity to enter into a contract and was not able to understand the nature or effect of the contract the subject of his consultation.  He stated that Mr L was unaware of family law matters.  Dr Duddridge was of the opinion that Mr L was making decisions freely and voluntarily.

34. Family law proceedings were subsequently issued in the Federal Circuit Court on 2 June 2016, whereby orders were sought that Mr L pay, on behalf of Mrs R, Mrs R’s means-tested payment and Mrs R’s daily interest on the unpaid refundable deposit. Mr L and Mrs R had and are not separated.

35. The litigation was conducted by Ms A on behalf of Mrs R and Mr PL on behalf of Mr L.  It is evident that those proceedings have resulted in some acrimony between Ms A and Mr PL, but fortunately their parents remain happily married. 

36. According to Mr PL, while the relationship between Mr L and Mrs R has not changed since the family law proceedings were brought, the relationship between Mr L and Ms A has been strained for a number of years. He referred to the fact that, at the telephone hearing on 26 September 2016 at which he and Mr L were present, Mr L objected to Ms A being appointed litigation guardian for Mrs R and Mr PL heard him state words to the effect that Ms A was just after the money.^[17]  Ms A does not dispute that words to that effect were said.^[18]  Her evidence was that notwithstanding that there was sometimes tension in her relationship with Mr L, she still visits them both at the nursing home on a weekly basis and takes them both out regularly.  Mr PL visits on a monthly basis.

37. Dr Attoti completed a QCAT form on 21 September 2016, apparently at the request of Mr PL for the family law proceeding. Dr Attoti was not apparently provided with the reports of Dr Duddridge.^[19]  In his opinion of that date, he stated that Mr L could make simple decisions and complex decisions as to his personal health, care, lifestyle and financial affairs. He did not provide any opinion on testamentary matters.  Mr PL was however subsequently appointed as Mr L’s litigation guardian in respect of the family law proceedings.

38. On 24 October 2016, Mr PL arranged for his father to see Dr Mikli to assess his testamentary capacity. She considered that Mr L did not have testamentary capacity and was not fit to make or change a will or an enduring power of attorney but could make basic financial decisions.

39. In November 2016, Mr PL engaged Mr McColm to see his father who subsequently drafted a Will for Mr L which was executed. The fact that a new Will had been made by Mr L was not disclosed to Ms A in the course of the family law proceedings.

40. The family law proceedings were subsequently settled at mediation on or about 6 December 2016. Orders were agreed between the parties and were subsequently made by the Court that Mr L pay the daily interest on the unpaid refundable deposit which Mrs R was assessed to pay of approximately $42.05 per day and a sum of $76,639.70.  That sum was paid to provide an amount inter alia based on the lifetime cap that needed to be paid for the means-tested care payment, being $61,754.00, together with additional monies by way of reimbursement to Mrs R for payments which she had already made on the unpaid refundable deposit.  Those orders related to property and spousal maintenance orders.^[20]  Under s 79 of the Family Law Act, such orders are made when the Court determines it is just and equitable to do so.^[21]

41. In the letter written to the Federal Circuit Court seeking the Court’s approval of the proposed consent orders, the settlement was according to Mrs R’s representatives, approximately 82.73 per cent in Mr L’s favour and 17.22 per cent in Mrs R’s favour, and according to Mr L’s legal advisors, approximately 22.45 per cent in favour of Mrs R and 77.55 per cent in favour of Mr L.

42. Ms A regarded those court proceedings and the obtaining of orders as necessary in order for Mr L to take responsibility for the payment of some of her mother’s nursing home fees.^[22]  Mr PL considered that the proceedings brought in that way were unreasonable, although he ultimately agreed to the settlement at mediation on behalf of his father.^[23] The applicant submits the family law proceedings were effectively brought so that Mrs R and Ms A could retain her family home, not because she did not have adequate funds to pay the accommodation bond.  I accept Ms A’s evidence in this regard for the reasons I outline below.

43. Orders were made by the Federal Circuit Court on 9 March 2017.

Application for Statutory Will

44. The application for a statutory will was filed on 18 April 2017.

Reasons for the Application

45. Mr PL contends that, on his reading of the testamentary documents prepared by his father and on the basis of his discussions with Mr L, he understands that whilst his father still intends to provide for Mrs R during her lifetime, he does not now intend to further enlarge her estate assets for the ultimate benefit of her respective family members.^[24] According to Mr PL, on the basis of his understanding of Mr L’s testamentary wishes and the changed circumstances and changed relationship caused by the Federal Circuit Court proceedings, it is his view that, unless a new will is implemented, Mr L’s wishes and intentions will not be effected.^[25] 

Testamentary Capacity

46. Mr PL obtained several medical opinions in respect of Mr L’s legal capacity. Those reports are:

1. An opinion of Dr Sanmarie Duddridge, consultant physician and geriatrician dated 25 May 2016;^[26]

2. A letter of Dr Sanmarie Duddridge dated 26 May 2016;^[27]
3. A handwritten letter of Jane Mikli, general physician and geriatrician dated 24 October 2016;^[28] and
4. A report by medical & related health professionals under the Guardianship and Administration Act 2000 (Qld), completed by Dr Someswara Attoti dated 21 September 2016.^[29] 

47. Mr L’s present solicitor sought a further opinion from Dr Someswara Attoti which was provided under cover of letter dated 24 January 2017 following a review in December 2016.^[30]  An opinion was also sought and obtained from Dr Helen Siddle in March 2017.^[31]

48. The reports of Dr Attoti and Dr Siddle both state that they do not consider that Mr L has testamentary capacity

49. Dr Attoti, in his opinion of 24 January 2017, states that, inter alia, while Mr L did not comprehend the value of his assets, he was able to understand the broad and basic principles of why he needs to change a will and how to change it but he did not understand how to modify it, nor the value and nature of his current assets.^[32] 

50. Dr Siddle stated that, inter alia:

1. Mr L had no understanding of why he attended the assessment although he was reminded several times;

2. Mr L displayed problems with his short and long term memory;
3. Mr L could not explain coherently what a will was nor provide an accurate assessment of what his assets were worth;
4. Mr L appeared to be easily led stating he would make a financial settlement for his wife if she thought it was a good idea;
5. Mr L identified his three sons and his wife’s daughter as people he should consider when making a will but not his wife;
6. She considers that Mr L lacks testamentary capacity and is unlikely to regain capacity.

51. The weight of the earlier medical opinions suggest that Mr L has lacked testamentary capacity since at least May 2016.^[33] While that has relevance to my assessment of Mr L’s statements of his testamentary wishes, it is not a matter which is required to be determined under the statutory criteria outlined in the Act.

The Size and Character of his Estate

52. Mr L’s estate is approximately $2,975,886, consisting of two properties, shares, cash and a refundable deposit.

53. Mr PL states that Mr L and Mrs R kept their finances strictly separate throughout their relationship. Their respective properties, shares and bank accounts remained held in their individual names throughout their relationship. He stated that they kept their expenses separate and maintained individual responsibility for those, however he indicates that in 2011, after Mr L was appointed as Mrs R’s power of attorney, he commenced paying for the majority of household expenses for the property at The Gap, although Mr L did not pay any form of rent to live in that residence owned by Mrs R. That appears to have always been the case, notwithstanding that Mr L and Mrs R lived the majority of the time there. Thus, while assets and bank accounts may have been kept separate, Mrs R and Mr L obviously had common expenses and shared expenses to some extent and at one stage did own a property at The Gap jointly.^[34]  Mr L also made provision for Mrs R in his 2004 Will, notwithstanding the fact they kept their assets separate.

Previous Wills and Evidence of Testamentary Wishes

54. The 2004 Will executed by Mr L provided that the trustee, who was the Public Trustee, distribute the whole of Mr L’s estate as follows:

“01.  As to a 25 % share to my wife [MRS R] but if [MRS R] dies before me or survives me but fails to take a vested interest then I give this 25 % share to my step-daughter [MS A]. 

02.  As to a 75 % share to my son [MR MML] and my son [MR MJL] and my son [MR PL] to be held equally by such of them who survive me but if any gift to any one of them does not take effect THEN any benefit to which that beneficiary would have been entitled is to be taken by their child or children who survive me and if more than one then equally.

03.  If under this clause any share fails to take effect then such share or trust is to pass to the part of the clause which does not fail and if more than one part does not fail then to those parts which do not fail proportionately.”

55. The handwritten draft which Mr PL located in Mr L’s documents,^[35] proposed that he give:

1. My stepdaughter [Ms A] the sum of $AU10,000 in cash.

2. 25% of the remainder to my wife [Mrs R], but if [Mrs R] dies before me her share will be distributed in equal portions to my three sons, [Mr MML], [Mr MJL] and [Mr PL].

3. As to a 75% share to my son [Mr MML] and my son [Mr MJL] and my son [Mr PL] to be held equally by them who survive me but if any gift to any of them does not take effect then any benefit to which that beneficiary would have been entitled is to be taken by their child or children who survive me and if more than one then equally.”

56. The third document located by Mr PL provides:

“I direct that to share in my estate, a person must survive me for 30 days and the word ‘survive’ is to be read accordingly.

My trustees shall distribute the whole of my estate as follows:

25 % of my estate to my wife [Mrs R]

25 % of my estate to my son [Mr MML]

25 % of my estate to my son [Mr MJL]

25 % of my estate to my son [Mr PL].”

57. There is nothing to suggest that Mr L did not have capacity up until at least 2011, according to Ms A’s evidence, and perhaps as late as 2015 on Mr PL’s evidence. Mr PL considers that in each rewrite of the above documents the provision allocated to Ms A was continuously reduced.  While that is the case, I do not attribute any great significance to the handwritten documents which were located by Mr PL, given that Mr L had chosen not to formalise them or have them executed.  There is a significant gap in the time between when they were written and the present.  Having made a Will in 2004, and having obtained a testamentary will kit, it is evident that Mr L was aware of the process to make a will and its requirements in 2008.  Mr L took no steps to formalise a will in those terms and did not sign the drafts.  Thus, having not executed the draft wills or given further instructions for a new will and given the passing of time, little weight can be attached to those documents in terms of his testamentary intentions.

58. Mr PL organised for Mr Malcolm McColm to meet with his father in November 2016 to discuss changing his Will. He stated that he did so because his father had discussed with him over some months that he wished to change his Will, particularly as a result of the proceedings brought by Mrs R, so that Ms A did not inherit any of his estate.^[36]

59. Mr Malcolm McColm was contacted by Mr PL some time prior to 2 November 2016. He had not met either Mr PL or Mr L previously. He attended the Sunshine Coast aged care facility on 2 November 2016. Mr PL met him in the reception. Mr McColm asked Mr PL if he had a report from the geriatrician. Mr PL indicated that he would give it to him when they went to Mr L’s room. Mr McColm explained to Mr PL that he understood that Mr L was having a bad day the day he attended the geriatrician, but that on Mr PL’s account, his father has days of greater lucidity and mental activity. In cross-examination, Mr McColm accepted that he was subsequently provided with the report of Dr Mikli at Mr L’s room. That brief report stated that Mr L lacked capacity to make or change a will.

60. According to Mr McColm’s file note,^[37] Mr PL attended with Mr McColm initially to see Mr L.  Mr McColm had a general discussion with both of them which included the circumstances by which Mrs R came to reside at the home and the family law proceedings brought on behalf of Mrs R in the Federal Circuit Court. The note records “Superficially the relationship between [Ms A] and [Mr L] remains cordial. They do not speak of the action which [Ms A] has instituted in her mother’s name” and that “[Mr L] expressed to me that he was unhappy with the behaviour of his step-daughter even though he has a pleasant superficial relationship when he sees her”.  Mr McColm subsequently asked Mr PL to leave the room.

61. According to Mr McColm’s file note:

“In [Mr L’s] sole company I read through the provisions of his existing Public Trustee Will made on the 26^th of August, 2004 and also the unsigned homemade draft Will apparently written in 2008.” 

62. He asked Mr L if he wanted to change his Will made in 2004. His file note states:

“He expressed to me that he feels that his step-daughter, [Ms A] does not deserve to inherit through his Will and advised me that these feelings were based on:

●The actions that she had taken to make monetary claims on behalf of her mother, [Mrs R].  He perceives those claims as being simply an attempt by [Ms A] to protect [Mrs R’s] assets with a view to maximising the inheritance which [Ms A] will receive under [Mrs R’s] Will on [Mrs R’s] death.  He advised me that he was aware that [Mrs R’s] Will provided solely for [Ms A] in the event of her death.

●The fact that he and [Mrs R] have always kept their financial affairs separate since they married and this was with the intent that each of them would be free to leave their estate on their death to their natural children.  He feels that given the circumstances [Ms A’s] inheritance should lie from her mother, [Mrs R] rather than through his Will.

●[Mr L] wants his estate to provide sufficient monies for [Mrs R] to meet her needs but that after this he would like the whole of the estate to pass to the [Mr L’s] family – his three sons.”

63. In cross-examination Mr McColm stated that he did not probe Mr L further about his understanding of the family law proceedings. The second matter to which he refers was incorrect, as Mr L had, in his 2004 Will, provided for Mrs R (and Ms A if Mrs R predeceased him). As to the third dot point he did not discuss with Mr L that Mrs R could make a family provision claim against the estate.

64. Mr L identified to Mr McColm each of his three sons and his contact with them. He was able to identify that he had 12 to 14 parcels of shares in companies but could not name the companies other than to say they were all good, solid companies. Mr L advised that he had a house that he had owned for a period of time at Bribie Island.  He could not, however, advise of any other assets. 

65. Mr McColm’s file note states that in terms of his instructions, “he would like to set aside one quarter of his estate to be held on trust for his wife, [Mrs R] and to be paid by his Executor to [Mrs R] so as to meet her future living needs. Upon [Mrs R’s] death, the balance of that fund would form part of the residue of his estate.” However, Mr McColm gave evidence that the idea of the trust was one that he had come up with rather than one that had come from Mr L.  In that regard, Mr PL in cross-examination agreed that his father was unlikely to have understood the concept of a trust.

66. Mr McColm advised Mr PL and Mr L that he considered that Mr L could provide coherent instructions, but that he was concerned that any new Will may be attacked on the basis that Mr L lacked testamentary capacity. He indicated that if they instructed him to do so, he would prepare a Will, and he was to await instructions in that regard. Mr PL subsequently gave those instructions.

67. Mr McColm attended Mr L again on 15 November 2016. At that meeting he notes that while Mr L was able to respond coherently to all his questions, he was unable to put specific names to some people, for instance his step-daughter, and unable to put names to cities where his sons lived. Notwithstanding that, he thought that Mr L had understood the nature and effect of the Will and had comprehended the claims to which he ought give effect. He states that “[Mr L] was able to volunteer that he wished to make changes to his existing Will because while he did want to provide for his wife, [Mrs R] he did want his estate to go to his three boys and did not think that it was appropriate that he provide for [Mrs R’s] daughter as she would inherit the whole of [Mrs R’s] estate under [Mrs R’s] Will which he had sighted.” Although not in his file note, he subsequently recalled that Mr L wanted to provide for his wife in life.

68. Mr McColm’s legal secretary, Jodie Cheesman, also attended that day. She arrived before Mr McColm. Her file note refers to the fact that Mr L asked her to remind him as to why he was seeing Mr McColm.^[38]  He did not seem to recognise Mr McColm and said “He didn’t believe he had met him before and was a little confused.” She stated that her impression was that Mr L understood Mr McColm’s advice and asked questions which seemed to indicate he knew what Mr McColm was referring to while he was reading him the Will. Her evidence in that regard is vague and non-specific.

69. Mr McColm agreed in cross-examination that the focus initially of Mr L’s conversation with him was wanting to change the Will with respect to Ms A, not Mrs R.^[39]  In their discussion, he stated that while Mr L mentioned that he owned shares, he did not indicate that they were worth in the region of $1.5 million.^[40]  Nor did he mention that he had $760,000 cash at the bank or that he would receive a substantial refund from the accommodation bond on his death.^[41]  Mr McColm agreed that these were significant matters.

70. Mr McColm agreed in cross-examination that there is nothing in the file note recording a discussion with Mr L about how a trust would operate,^[42] nor was there any discussion about the concept of Mr L’s executor having a discretion in making distributions from the trust.^[43]  He agreed that, at the second meeting, Mr L could not remember his step-daughter’s name, and had difficulty providing details of his assets.^[44]  According to Mr McColm, notwithstanding what he stated in his note that “while he did want to provide for his wife, [Mrs R] he did want his estate to go to his three boys and did not think it was appropriate that he provide for [Mrs R’s] daughter…”, he recalled that Mr L stated that the Will was to provide for his wife during her life.^[45] According to Mr McColm, the idea of the discretionary trust was what he believed to be the most appropriate mechanism and he did explain it to Mr L at his second meeting.^[46]

71. While I accept that Mr McColm acted diligently in his meeting with Mr L in 2016 and then drafting the Will and explaining it to Mr L, the instructions he was given by Mr L have limited weight and his assessment of Mr L’s capacity and ability to give instructions is overstated, given that:

1. he had not met Mr L prior to those occasions which would make any assessment of his to give instructions difficult;

2. he was provided only with the handwritten opinion of Dr Mikli. He had been told by Mr PL that Mr L had a bad day the day he attended the geriatrician and was not provided with any other reports by Dr Duddridge or Dr Attoti;
3. he did not probe Mr L in terms of his understanding about the family law proceedings, nor how he gained that understanding;
4. he did not raise the fact that Mrs R could make a family provision application under the Succession Act 1981 as Mr L’s spouse;
5. he had no knowledge of Mr L’s assets, such that he was unaware that Mr L left out significant assets in his discussions with Mr McColm, not informing him of the $750,000 that he had in his bank account, the value of his shares or the bond paid to the nursing home;^[47]
6. it was evident that he had chosen the discretionary trust as the most appropriate mechanism for Mr L to adopt in his Will, rather than being instructed to use a trust.^[48]  On the second occasion, while I accept he explained the Will in detail, Mr L at that meeting could not remember Ms A’s name, had difficulty identifying his sons’ names and also in identifying his assets.^[49]  Mr L also could not remember why they were meeting with Mr McColm, nor did he recognise Mr McColm when he approached in the driveway;^[50]
7. he did not ask whether Mr L had discussed the proposed changes with anyone such as Mr PL. 

72. I consider that, given Mr L was not able to identify the full extent of his assets at the first and second meeting with Mr McColm, his confusion and lack of recall at the second meeting, and in light of the medical evidence, Mr L was unlikely to have had testamentary capacity at the time he executed the Will in November 2016.

73. In Mr L’s meeting with Dr Siddle, she asked why he wanted to change his Will to which he stated:^[51]

“… he said that his wife was wonderful but his wife’s relations were not wonderful.  He said that he believed his wife’s daughter was overbearing.  He reported that he had given 25% of his assets to “that lady” (his wife’s daughter) and reported that ‘I feel I have other people I want to help, I don’t want her to get his thing’.  He reported that he wanted to give more of his assets to his sons.  He stated again, that he did not want to give it to the daughter of his wife.”

74. By the time Mr L saw Dr Siddle, he had executed the Will of 2016 which did not provide for Ms A. Nor indeed had his 2004 Will provided for 25 per cent of his assets to go to Ms A except if her mother did predecease Mr L. His recollection of events was clearly limited and his perception of the state of affairs was distorted from what was in fact the case.

Family Provision Applications

75. People who are eligible to bring family provision applications, pursuant to Part 4 of the Act, are Mr L’s three sons, Mrs R and Ms A.

Position on Intestacy

76. If Mr L died intestate, his estate would be distributed on the basis of:

1. The sum of $150,000, household chattels and a third of the residuary estate to Mrs R; and

2. The balance of the estate divided equally between the three sons of Mr L. 

People Who Might be Expected to Benefit from the Will

77. Mr L’s sons Mr MJL and Mr MML have confirmed that they consent to an order that the Will in the form of PL-14 be made by the Court. Ms A made no submission on her own behalf that she had any expectation of any entitlement to be specifically benefitted under the Will.

Charities

78. There is no evidence of any desire of Mr L to provide for a charitable gift in his Will.

The granting of leave

79. Evidence was provided to me pursuant to s 23 of the Succession Act 1981 (Qld). 

80. I am satisfied that the requirements of s 24 of the Act have been met such that I should grant leave pursuant to s 22 of the Act in respect of this matter.

Applicant

81. Mr PL is the son of the proposed testator and is his attorney. Although he has a personal interest in the outcome of this application, he is his father’s attorney and is an appropriate person to apply for a statutory will.^[52]

Notice of Application

82. There is evidence that all persons with an interest in Mr L’s estate have been served insofar as all named beneficiaries of the 2004 Will have been given notice of this application, as has the Public Trustee.

Testamentary Capacity

83. The medical evidence does provide reasonable grounds for believing that Mr L does not have testamentary capacity.^[53] The question that the Court must consider is whether Mr L lacks testamentary capacity now, rather than determining the date on which he lost testamentary capacity. That said, earlier evidence of declining capacity is relevant in terms of the weight which may be attributed to the evidence of the wishes of the proposed testator.^[54]  Based on the medical opinions as well as the evidence of the observations of Mr PL and Ms A, I am satisfied of the requirement in s 24(c) of the Act and also find that Mr L lacks testamentary capacity for the purposes of s 21(2)(a) of the Act. 

Proposed Will

84. In terms of s 24(d) of the Act, the parties agree that the proposed will of the applicant, PL-14, is one that may be a will that Mr L would make if he were to have testamentary capacity. Although different approaches have been adopted to this requirement in this Court, the most favoured approach is to simply apply the wording of the section.^[55] The proposed will is also consistent with the 2004 Will insofar as it provides for 25 per cent of the estate to be set aside for Mrs R’s benefit, although the nature of that benefit is of a different nature. There is some evidence, although of questionable weight, supporting the requirement. I accept that the will may be one that Mr L would make if he had capacity.

Appropriate to Make an Order

85. The requirement that an order under s 21 may be appropriate, is also, in this instance, satisfied given that:

1. Mr L has executed a Will where there is real doubt that he had the capacity to do so;

2. It is likely that there will be a dispute as to whether the 2004 Will should be the operative Will or the 2016 Will is valid. 
3. There have been orders made by the Federal Circuit Court in the family law proceedings.

Approval of Will under s 21

86. It is not disputed and I am satisfied, having regard to the medical evidence and particularly the report of Dr Siddle, that Mr L lacks testamentary capacity. Section 21(a) and (c) of the Act are therefore satisfied.

87. If leave is granted and the other requirements of s 21 are satisfied, the Court exercises a broad and flexible jurisdiction^[56] and is not constrained by express statutory criteria.  Given the beneficial purpose of the legislation and the protective nature of the jurisdiction, an important consideration in the exercise of the discretion under s 21 is the Will the person probably would have made if he or she had testamentary capacity.^[57]

88. In GAU v GAV, the Court of Appeal determined that the proposed will in that case should be authorised on the basis that the evidence supported a finding that the testatrix may have accepted legal advice as to the proposed change being sensible estate planning in the circumstances. The evidence further justified the Court’s finding that, in seeking and accepting such advice, the testatrix would be acting rationally and free of pressure from others and that it was very likely that the testatrix would give instructions for the implementation of that advice.^[58]

89. The Court stated further:^[59]

“[63] With regard to the application under s 21(1), those same findings also support the making of an order under that section in this case. To them may be added further considerations of significance. First, authorisation of the proposed alteration of the will by codicil would be in the interests of the testatrix because it would facilitate the taking of a step that she herself would most likely take were she able to do so.  Secondly, it is a step that she would be freely able to take herself in organising the testamentary fate of her own property were she able to do so. Thirdly, as senior counsel for the respondent conceded in argument, for her to take such a step would neither offend the policy of the law nor exhibit moral obloquy on her part.

[64]  The factors addressed by these findings and considerations combine forcefully in favour of exercising the discretionary power in favour of the application. (footnotes omitted)”

90. In VMH v SEL & Anor,^[60] in the context of ascertaining what the terms of the will should be pursuant to s 21 of the Act, Jackson J stated that:

“[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.”

91. The applicant submits that:

1. The family law proceeding and the orders made is a significant family event, which would not uncommonly give rise to parties revisiting their estate planning and testamentary wishes. The orders made constitute a significant change of financial circumstances because they have the effect of finalising the parties’ financial relationship, and they should be given full effect;

2. It is not uncommon for partners in a second marriage to make some provision for a second spouse but safeguard their assets for their natural children;
3. The 2008 draft wills and the 2016 Will have changed the treatment of Mrs R’s share on each rewrite and the provision to Ms A has reduced;
4. Mr PL, based on his reading of the testamentary documents and based on his discussions with Mr L considers that Mr L intends to provide for Mrs R during her lifetime but does not now intend to enlarge her estate assets.
5. There is no issue that the proposed will is immoral or against public policy.

92. In particular, the applicant contends that a party who has entered into a financial settlement that has divided assets between the parties would usually wish to make a will to exclude the other party. In that regard, the applicant relies on Re Gillam, and submits the orders pursuant to the family law proceedings must be given full force and effect.

93. Conversely the position that is urged upon me by Ms A is that a statutory will ought not be made in the form of PL-14 because it will likely provoke a family law provision application. It is contended that that would be the case because of the fact that Mrs R has no certainty of capital benefit in the context of a 16 year marriage under the proposed Will. Counsel, on behalf of Ms A, also contends that the family law settlement was not typical of a property settlement and that if a full property settlement had been pursued, Mrs R may have been entitled to an increased sum, given the size of Mr L’s estate and the fact that he and Mrs R have been married for 16 years. Counsel for the respondent submits that given Mr L’s lack of capacity the best evidence of the Will he would have made is the 2004 Will and proposes a will be made in the form of KMA-10.

94. The proposed will in the present case is largely the same as that drawn by Mr McColm, save that it provides for 25 per cent of the estate to comprise a discretionary trust for Mrs R’s benefit.  It is however more generous as it is a fixed trust as to the income but discretionary as to the capital that may be applied for Mrs R’s benefit.  Mr PL is to be the trustee.

95. I do not accept on the evidence that Mr L would have or would probably have made a will in the form of PL-14 if he was aware of the family law proceedings and their outcome, because:

1. While the family law proceedings and the orders has some significance, the orders provide for Mrs R during Mr L’s lifetime and, unlike the case in White v Gillam, do not provide for a generous settlement which would, in the circumstances, be likely to cause Mr L to change the share of the estate he had provided to Mrs R in any significant way;

2. Mr L made provision for Mrs R to have a 25 per cent share of his estate in his 2004 Will notwithstanding it was the second marriage for both of them;
3. The 2008 drafts were never formalised or acted upon, nor is there any extraneous evidence that Mr L intended them to be anything other than thoughts he was having at that time.  Mr L is unlikely to have had testamentary capacity at the time he had made the 2016 Will and the provision for a trust for Mrs R to operate during her lifetime was not instigated by him.  I do not find that he had the capacity to understand what a trust was nor the effect of its operation on the share of his estate to be provided Mrs R. Insofar as it is evidence of his testamentary wishes not to enlarge Mrs R’s estate, I do not consider those wishes can be given significant weight, given his lack of understanding of the family law proceedings and;
4. I consider that Mr L was influenced in his views by his discussions with his son, Mr PL and Mr PL’s strongly held views.  I also consider that Mr PL’s understanding of his father’s intentions are coloured by his own views of the family law proceedings and who he considers should benefit from his father’s Will and how they should benefit.  I also find that Mr PL did not consider that his father should have had to contribute to Mrs R’s nursing home costs and believed Ms A brought the family law proceedings for her own benefit. He conveyed that understanding to his father when Mr L’s cognitive capacity was deteriorating and medical evidence did not support his having testamentary capacity.

96. Insofar as Mr L has made expressions of his testamentary wishes, the weight to be attached to such wishes has to be considered carefully, given that the wishes of a person who does not have capacity do not carry the same weight as those of someone who does.^[61]

97. A statement of intention by a party who lacks capacity may warrant very little weight if the incapacity leads the person to be mistaken about the truth or if they are vulnerable to suggestion, improper influence or bad advice, being a vulnerability which the person would not have experienced if he or she had testamentary capacity.

98. I do not consider that if Mr L had properly understood the family law proceedings and the orders made he would have caused his 2004 Will to be changed to provide for a will in the form of PL-14. The settlement of the family law proceedings were reached in the context of he and Mrs R continuing to share a happy marriage and had arisen out of a dispute as to whether Mr L should contribute to Mrs R’s nursing home care when their children were acting on their behalf. Prior to his affairs being taken over by Mr PL, Mr L had stated that he was prepared to buy Mrs R’s room. Ms A’s evidence, which was not challenged in cross-examination, was that Mr L, when walking around a nursing home at Deception Bay with Mr PL and Ms A, had stated “I don’t care what the price is. I will buy [Mrs R’s] room. She is my wife and she is my responsibility. I want her taken care of and I want to be close to her”, to which Mr PL responded “No dad, that’s not appropriate, that would impact on our inheritances”.^[62] 

99. Counsel on behalf of Mr PL places reliance on the case of White v Gillam,^[63] where in the context of Victorian legislation, McMillan J considered a financial settlement was significant in determining whether the proposed will reflected what Mrs Gillam’s intentions would likely be or might reasonably be expected to be if she had testamentary capacity.^[64] The evidence of what her testamentary intentions were was derived from what was contained in her three Wills, executed prior to her dementia becoming evident in 2012.  Under each of those three Wills, she did not leave the defendant, her second husband, a substantial part of her estate, nor did she leave the defendant anything close to the sum he received under the financial settlement made pursuant to the Family Law Act, which was approximately 53/47 per cent in favour of Mrs Gillam.^[65] In the circumstances of that case, her Honour found that, if Mrs Gillam had testamentary capacity after the financial settlement with the defendant, her intentions would likely have been for her to continue to provide for the legacies to her grandchildren, stepdaughter and step-grandchildren and to leave the residue of her estate to her two sons equally but not the defendant. 

100. In that regard, White v Gillam is different from this case.  The settlement effected between Mr L, by his son acting as litigation guardian, and Mrs R, by her litigation guardian Ms A, did not provide a more generous settlement than that contained in Mr L’s 2004 Will, nor, to the extent that they are of any evidential weight, that contained in the handwritten wills of approximately 2008.  In fact, the settlement under the family law orders is significantly more limited and less than what Mrs R would otherwise have received. That is so, even taking into account the terms of the proposed will in the form of PL-14 given it only provides for a discretionary trust as to capital.

101. The proposed Will provides for Mrs R to receive an income based upon a one quarter share of Mr L’s estate being invested, and in the event that the net annual income is insufficient to properly provide for the accommodation, maintenance and living expenses of Mrs R or for any other purposes beneficial to her comfort and wellbeing, the executor has a discretion to raise money out of the capital and apply such sum or sums of money as the executor may deem appropriate. Under the 2004 Will if one assumes that Mr L’s estate is $3,000,000, as has been estimated by Mr PL, 25 per cent of that sum is $750,000.

102. The agreement in the family law proceedings was not reached on the basis of Ms A, acting on behalf of Mrs R, being aware of the terms of the November 2016 Will, such that there was any acceptance of that position at the time the settlement was reached.

103. The applicant submitted that the family law proceedings were brought to ensure that Mrs R (and therefore Ms A under Mrs R’s will) retained Mrs R’s home. While I have found that that was not the motivation, there was no evidence that Mrs R and Mr L had reached an agreement that she would use those assets to pay for any nursing home costs, even though they had kept their assets separate in the manner described. Other than providing for the daily payment and the lump sum, the orders maintained the position that Mr L and Mrs R maintained in their lives in terms of their assets prior to being in a nursing home.

104. I accept that Ms A’s actions in instigating the family law proceedings on behalf of her mother were taken not to ensure her own inheritance was protected but on the basis that she considered it necessary to be in a position to sustain Mrs R’s care for a period of time. Mr L had previously stated that he would support her mother in the nursing home. Her mother’s fees were much higher in the nursing home as a result of the fact that the means-tested payment was calculated on the basis of the assets of both Mr L and her mother, with Mr L’s assets far exceeding her mother’s. That is supported by her seeking financial advice as to how to fund her mother’s time at the nursing home.^[66] In relation to the unpaid refundable deposit, she had also proposed that rather than Mr L paying her mother’s daily interest, she was willing to enter into a loan agreement whereby her mother’s estate would repay the $249,000 paid by Mr L.^[67] 

105. I do not consider that the making of the orders would have constituted a “significant event” that would have led Mr L to change his Will to the extent of reducing Mrs R’s share under the 2004 Will to a life interest. I do however consider that given the fact that Mr L and Mrs R had kept their assets separate in the way they did would have caused him to adjust Mrs R’s share to reduce it by the amount of the capital sum paid under the family law settlement to maintain the parity between her share and his son’s shares.

106. In the present case, to the extent I find that Mr L expressed the view that he only wished to benefit Mrs R during her lifetime, that can be given little weight and is insufficient to satisfy me that the proposed will accords with a will he would have made or likely made if he had capacity. I find that his view was influenced by his belief that Ms A was trying to gain a benefit for herself in the family law proceedings and did not understand the effect of his assets being combined with Mrs R’s assets on the payments that had to be made to the nursing home. It is evident that even when Mr L saw Dr Duddridge in May 2016, he had no comprehension of the family law matter. His encounters with Mr McColm and Dr Siddle similarly indicated a distorted understanding of the proceedings and Ms A’s actions.

107. Mr PL accepted that his father had a poor understanding of the family law proceedings.^[68]  He also agreed that it was doubtful whether his father understood the family law proceeding but considered that he understood the overall reason behind it.^[69] 

108. I consider that Mr L’s understanding and his statements to Mr McColm and Dr Siddle were influenced by the beliefs of Mr PL in their discussions. Mr PL was responsible for explaining the family law proceedings to his father. I also consider that Mr PL’s evidence as to Mr L’s obvious intention as to his will was influenced by his own views. While I do not find that Mr PL was acting in an improper way, it is plain that he was discussing his father’s Will and the family law proceedings with his father while his father was declining in cognitive capacity. I consider that Mr PL would have expressed his strongly expressed views to his father. I find in those circumstances it is impossible to find Mr L formed his own views freely from the influence of his son.

109. Mr PL was conscious of the impact of Mr L leaving assets to Mrs R and utilising his income and assets to support Mrs R financially at the nursing home on his and his brothers’ inheritances. This is borne out by with his comment that the “No dad, that’s not appropriate, that would impact on our inheritances”.^[70] 

110. The fact Mr PL did not consider that Ms A should know anything about his father’s assets to assist her mother is supported by the fact that he was conscious of keeping his father’s assets and the details of them from Ms A during the time when the documents required to be completed for the nursing home were being arranged. In this regard, I accept Ms A’s evidence that Mr PL refused to give her financial details of Mr L to complete the financial assessment for Mrs R’s placement in the nursing home.

111. I find that Mr PL was also resistant to his father paying anything towards Mrs R’s fees for the nursing home. He was resistant when his father suggested that he would make such payments. Despite the fact that he had received the letter from Pippa Colman & Associates dated 30 March 2016, he did not cause any response to be made to that letter, save to say that he was receiving legal advice.^[71]  Given his absence of a response, the proceedings were initiated in the Federal Circuit Court by way of an initiating application on 2 June 2016, some two months later.

112. He gave evidence that he did not consider that Ms A’s actions were reasonable at least in terms of her issuing the letter and initiating the proceedings. He did state that he considered that it was reasonable to ask for the means-tested amount, but that Ms A had asked for significantly more than that.^[72] 

113. I consider that Ms A was a more candid witness than Mr PL, particularly given her willingness to accept failings in her own conduct. Ms A accepted that Mr L had stated in a directions hearing that she was after money;^[73] she also agreed that after she had sent the letter of 30 March 2016 through Pippa Colman & Associates to Mr L he was upset with her and would not speak to her for some six weeks after.^[74]  She accepted she was stressed when dealing with Mr PL.

114. On 24 January 2017, following a review of Mr L in December 2016, Dr Attoti stated that he did not think that Mr L had testamentary capacity and that he lacked the ability to manage complex and financial decisions, although he may have had capacity to make simple financial decisions.^[75]  His letter also commented that:

“The complicating thing with [Mr L’s] family situation is that his estate is quite big and there is a dispute on which his biological children and his second wife’s daughter are contesting each other.  On this background it is safe for him to have as much of a legal safe guard as possible.  His son [Mr PL] usually accompanies [Mr L] to appointments and I have spoken to [Mr L] on his own and in his son’s presence.”

115. According to Mr PL, he had spoken to Dr Attoti and described the dispute.^[76]  Notably, Dr Attoti understood that dispute to be between Mr L and Mrs R’s children over Mr L’s estate. That description is in my view an accurate statement of how Mr PL viewed the dispute. To the extent he sought to assert that Dr Attoti may have misunderstood his explanation, because he and Ms A were acting for his parents, his evidence was unconvincing.

116. The view that Ms A was fighting over Mr L’s estate was also reflected in what Mr L told Ms Cornford-Scott in February 2017, when he stated that Ms A was making a fuss over his Will. In his discussions with Ms Cornford-Scott, when asked whether he was aware that Mr PL had asked her to help him put in place a will, he stated, “I wrote a Will with solicitors, someone is making a lot of fuss about it, I think it is [Ms A], I had an amount for her in my will and I’ve changed it”.^[77] Ms A gave evidence, and I accept, that at that time, she was not aware of the terms of the Will until she saw the Wills attached to Mr PL’s affidavit.

117. Mr L’s deterioration and his focus on the position of Ms A rather than his wife, Mrs R, supports the fact that his expression of his testamentary intention was affected by his lack of capacity and distorted in terms of his understanding.  

118. Mr PL was clearly conscious of his father’s estate and how it would be disposed of on his death. He was concerned to raise with his father the terms of his Will after he had taken over as his power of attorney in January 2016 and had found the 2004 Will and the handwritten 2008 drafts.

119. Mr PL attributed great weight to those draft wills, stating in re-examination “And then later on I found a couple of drafts – draft wills, and I noticed that his intent changed with those wills, from the 2004 wills, but unfortunately, they hadn’t been signed so they weren’t valid contracts or wills.  So based on that, I brought it up with him and explained that his – the wills he did afterwards were not valid.”^[78] (emphasis added)

120. He agreed that he had engaged Dr Duddridge to provide an assessment of his father’s capacity to make a will, and that he may have had discussions with his father about changing his Will.^[79]  He had discussions with his father about his will when engaging Dr Mikli.

121. While Mr PL also engaged Mr McColm, which he said was at the request of his father so he could change his will, the only document that he appeared to provide to Mr McColm was the handwritten note of Dr Mikli.^[80]  He did not provide the reports of Dr Duddridge, nor, it appears, the handwritten report for QCAT of Dr Attoti. 

122. Mr PL did not concede in cross-examination that what his father said about his testamentary intentions should be treated with caution, even though he agreed that his father may be vulnerable to suggestion.^[81]  This was despite his agreeing that it was doubtful his father could have understood a trust or the family law proceedings.^[82]

123. His evidence was that his father’s cognitive ability varied day by day.^[83]  While that may have been so, notwithstanding the reports of Dr Duddridge and Dr Mikli, he facilitated his father making a new Will in November 2016. He considered that regardless of the medical opinions he had received, his father’s intention was “obvious” and not affected by his cognitive impairment.

124. While Mr L did express the view that he thought Ms A was seeking to get her hands on the money and that she had initiated the family law proceedings on behalf of her mother to protect her mother’s assets with a view to maximising her own inheritance, I find that that view was influenced by what he was told by Mr PL and Mr PL’s views and his deteriorating cognitive ability to comprehend such proceedings. In those circumstances I do not consider the life interest provided to Mrs R accords with a will he would make if he had capacity.

125. While I accept that Mr L’s relationship with Ms A was sometimes strained I do not consider the relationship was such that he would seek to change his Will in respect of Mrs R’s share of estate. Ms A still visits both Mr L and Mrs R on a regular basis. Mr PL’s evidence as to the strained relationship was on the basis of what he was told by Mr L not what he observed.

126. I do however consider that some weight must be given to the fact that Mr L stated that he did not want to provide for Ms A in his Will, a matter in respect of which Dr Duddridge stated he was capable and as a result would have changed his 2004 Will to provide for his sons to benefit from Mrs R’s share if she predeceases him.

127. I find that Mr L’s statements, that he wished his sons to take his estate if his wife predeceased him, is likely to accord with his wishes if he had testamentary capacity and that he would have made a Will whereby his estate would be shared by his sons equally in the event that his wife’s gift did not vest in her or she predeceased him. That is because if he had capacity he would be conscious of the fact that Ms A was to inherit under her mother’s Will and he would have taken account of the family law orders to the extent they preserved his wife’s assets for Ms A’s benefit. He would not however have sought to change his Will so that if Mrs R did receive the benefit of her share of the estate she could not thereafter dispose of it as she wanted and to prevent her estate being potentially enlarged.

128. As discussed above, the Court of Appeal in GAU v GAV emphasised that the jurisdiction is protective in nature and “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 interests, of that person”.^[84]  It is an objective assessment to be carried out on the basis of the evidence.^[85]  It is to be undertaken with conscious regard for the fact that the making of an order under s 21 is an exercise of a jurisdiction which is protective in nature and informed by what is for the benefit, and in the interests, of the person who requires protection.

129. I do not accept that Mr L would, if he had testamentary capacity, intend to have changed his will so that Mrs R only receives a life interest in order to ensure Ms A did not under any circumstances ever receive any part of his estate even if it was as a result of Mrs R’s will. I find that, to the extent that he expressed those intentions, he was only focused on Ms A and not on her mother. Further, I consider that he would have acted otherwise if advised of Mrs R’s ability to bring a family provision application and understood the family law proceedings.

130. I note Ms Cornford-Scott’s views in relation to the provision of a testamentary trust to provide a flexible life interest as being quite commonly used, however, in the present circumstance it does not accord with what I consider to be Mr L’s likely intention were he to have testamentary capacity. The notion of the testamentary trust to provide a life interest of a 25 per cent share of the estate to Mrs R was not a matter which Mr L proposed, but one which I find emanated from Mr McColm’s views. I find it is not appropriate to authorise the will in the form of PL-14.

131. Given that there has been a subsequent Will been made by Mr L in November 2016 which is of uncertain effect given the position as to Mr L’s testamentary capacity, it is appropriate that the Court order a Will be made.

132. I find on the evidence that Mr L would not, if he had testamentary capacity, wish that his estate vest in his step-daughter in the event that his wife’s share did not vest in her or she predeceased him. As such, the proposed Will put forward by Ms A in KMA-10 is not one which I consider is an appropriate Will which reflects Mr L’s intention or likely intention if he had testamentary capacity. I also consider that, in order to maintain the intention that he previously had for his wife to receive 25 per cent of his estate and his sons to receive 75 per cent of his estate, he would, if he had testamentary capacity, have reduced his wife’s 25 per cent share by the sum of $76,639.70, which was paid to her pursuant to the family law settlement as a sum towards the lifetime cap.  That is consistent with the fact that Mrs R and Mr L kept their capital assets separate. I consider that, on the evidence, he would want to maintain that position, and as such I consider that he would want the payment to be accounted for in any gift provided to Mrs R.  I do not consider the same position holds in relation to the payment of approximately $42 per day as interest on the refundable accommodation deposit, which I consider Mr L would have agreed to pay without it affecting the distribution of his estate.

133. I therefore determine that a Will be made reflecting the terms of Exhibit KMA-10 to the affidavit of Ms A, save that Mr PL should be appointed to be the executor and trustee of the Will, that the distribution of 25 per cent to Mrs R should be reduced by the amount of $76,639.70 and that the Will provide, in the event that Mrs R predeceases Mr L, that her share will vest in Mr L’s three sons, Mr MML, Mr MJL and Mr PL in equal measure.

134. I consider that it is appropriate to order a Will under s 21 of the Act be made, given that:

1. The Will executed by Mr L on 11 November 2016 is of doubtful validity, given there is real doubt as to his testamentary capacity at that time;

2. The orders made by the Federal Circuit Court in respect of spousal maintenance and a property settlement were made subsequent to the 2004 Will; and

3. It takes account of Mr L’s wishes and serves to protect his estate from further disputes.

135. Given that Mr L is in a nursing home and this judgment deals with his personal and medical details, I consider that it is appropriate that reasons be published in de-identified form so as to protect his privacy, dignity and vulnerability.^[86]

136. Pursuant to s 21 of the Act the Court may make or give any necessary related orders or directions and may make an order on the conditions the Court considers appropriate.

Orders to be made

137. I therefore order that:

1. Leave is granted to the applicant, Mr PL, pursuant to s 22 of the Succession Act 1981 (Qld) to apply for an order authorising a will to be made on behalf of Mr L. 

2. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for Mr L in the terms stated by the Court in a form of will to be submitted by the applicant.

3. The applicant draft a form of will in accordance with these reasons, provide a copy of the draft will to the respondent to the application and submit the same within five days for the purpose of the will being approved by the Court pursuant to s 21(2)(c) and then executed in accordance with s 26 of the Act.

4. Liberty to apply as to the form of the will submitted in accordance with paragraph 3 prior to the execution of the will.

5. The issue of costs be the subject of short written or oral submissions on a date to be fixed.

6. Any copy of these reasons to be published on the judgment website or in any other publication made to, or accessible by, the general public or a section of the public, be in an anonymous form.