SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Mr PL v Mrs R [2017] QSC 249 PARTIES: MR PL (applicant) v MRS R (respondent) FILE NO: BS 3863 of 2017 DIVISION: PROCEEDING: Trial Division Application DELIVERED ON: 1 November 2017 DELIVERED AT: Brisbane HEARING DATE: 24 July 2017 JUDGE: ORDERS: Brown J The order of the court is 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.

2 2 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. CATCHWORDS: SUCCESSION MAKING OF A WILL TESTAMENTARY CAPACITY LOSS OR LACK OF CAPACITY AND STATUTORY WILLS where the applicant applied pursuant to s 22 of the Succession Act 1981 (Qld) to be granted leave to apply pursuant to s 21 of the Succession Act 1981 (Qld) for an order authorising a statutory will to be made where the proposed testator had made a Will where the proposed testator lacks testamentary capacity where the parties dispute what form of Will should be authorised Succession Act 1981 (Qld), s 21, s 22, s 23, s 24 Guardianship and Administration Act 2000 (Qld) Banks v Goodfellow (1870) LR 5 QB 549 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 Lawrie v Hwang [2013] QSC 289 Re APB, ex parte Sheehy [2017] QSC 201 Re JT [2014] QSC 163 VMH v SEL [2016] QSC 148 COUNSEL: P E Sorensen for the applicant R D Williams for the respondent SOLICITORS: Cornford-Scott Lawyers for the applicant Springwood Lawyers for the respondent [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.

3 3 [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 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: (a) (b) (c) 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; 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; Leave should be granted pursuant to s 22 of the Act; and (d) 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: (a) What form of will should be authorised, pursuant to s 21(1)(a) and s (21)(2)(c); and (b) 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). 1 Affidavit of Mr PL, CFI5.

4 4 [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 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 (a) a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or (b) a will or part of a will to be revoked on behalf of a person without testamentary capacity. (2) The court may make the order only if (a) the person in relation to whom the order is sought lacks testamentary capacity; and (b) the person is alive when the order is made; and (c) the court has approved the proposed will, alteration or revocation. (3) For the order, the court may make or give any necessary related orders or directions. (4) The court may make the order on the conditions the court considers appropriate. (5) The court may order that costs in relation to either or both of the following be paid out of the person s assets (a) an application for an order under this section; (b) an application for leave under section 22. (6) To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property. 2 Affidavit of Ms A, CFI9.

5 5 (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: (a) (b) (c) (d) (e) the applicant for leave is an appropriate person to make the application; 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; there are reasonable grounds for believing that the person does not have testamentary capacity; 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 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 3 [2016] 1 Qd R 1 at [50] and [52].

6 6 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 (a) (b) (c) may have regard to any information given to the court under section 23; and may inform itself of any other matter relating to the application in any way it considers appropriate; and 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

7 7 Sunshine Coast, Queensland. He has resided at that aged care facility since about 7 January [15] Mr L is currently married to Mrs R. They were married on or about 26 May 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 [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 4 Affidavit of Ms A, CFI 9 at [2], [38].

8 8 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 [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 5 Affidavit of Ms A, CFI9 at [71]. 6 T1-32/20-26.

9 9 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 cooperating 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 He also started to go through his father s documents in January [30] Mr PL also located documents which he believes are all testamentary documents made by Mr L, which consisted of: (a) A Will prepared by the Public Trustee of Queensland on or about 26 August 2004; 10 7 Affidavit of Ms A, CFI9 at [82]. 8 Affidavit of Ms A, CFI 9 at [86]. 9 T1-23/ Exhibit PL-11, affidavit of Mr PL, CFI5.

10 10 (b) A draft, handwritten, testamentary document, which apparently had a date of 11 August 2008 written on the back; 11 and (c) An unsigned will kit document dated 8 November Proceedings under the Family Law Act [31] Ms A considered it unfair that Mrs R s means-tested payment was calculated at $ 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 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. 11 Exhibit PL-12, affidavit of Mr PL, CFI5. 12 Exhibit PL-13, affidavit of Mr PL, CFI5. 13 Affidavit of Mr PL, CFI5 at [26]. 14 Affidavit of Ms A, CFI9 at [102]. 15 Affidavit of Mr PL, CFI5 at [3]. 16 Exhibits PL-5 & PL-6, affidavit of Mr PL, CFI5.

11 11 [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 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, That sum was paid to provide an amount inter alia based on the 17 Affidavit of Mr PL, CFI5 at [38]. 18 T1-42/ Exhibit PL-8 (p 38), affidavit of Mr PL, CFI5.

12 12 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 per cent in Mr L s favour and per cent in Mrs R s favour, and according to Mr L s legal advisors, approximately per cent in favour of Mrs R and 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 Application for Statutory Will [44] The application for a statutory will was filed on 18 April 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 Exhibit PL-4, affidavit of Mr PL CFI5. 21 See Stanford v Stanford (2012) 247 CLR 108 at [35]-[36] 22 Affidavit of Ms A, CFI 9 at [109]. 23 T1-23/ Affidavit of Mr PL, CFI5 at [50]. 25 Affidavit of Mr PL, CFI5 at [51].

13 13 Testamentary Capacity [46] Mr PL obtained several medical opinions in respect of Mr L s legal capacity. Those reports are: (a) An opinion of Dr Sanmarie Duddridge, consultant physician and geriatrician dated 25 May 2016; 26 (b) A letter of Dr Sanmarie Duddridge dated 26 May 2016; 27 (c) (d) A handwritten letter of Jane Mikli, general physician and geriatrician dated 24 October 2016; 28 and A report by medical & related health professionals under the Guardianship and Administration Act 2000 (Qld), completed by Dr Someswara Attoti dated 21 September [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 An opinion was also sought and obtained from Dr Helen Siddle in March [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: (a) (b) (c) Mr L had no understanding of why he attended the assessment although he was reminded several times; Mr L displayed problems with his short and long term memory; Mr L could not explain coherently what a will was nor provide an accurate assessment of what his assets were worth; 26 Exhibit PL-5, affidavit of Mr PL, CFI5. 27 Exhibit PL-6, affidavit of Mr PL, CFI5. 28 Exhibit PL-7, affidavit of Mr PL, CFI5. 29 Exhibit PL-8, affidavit of Mr PL, CFI5. 30 Exhibit PL-9, affidavit of Mr PL, CFI5. 31 Exhibit ACS-3, affidavit of A Cornford-Scott, CFI2. 32 Exhibit PL-9, affidavit of Mr PL, CFI5.

14 14 (d) (e) (f) 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; Mr L identified his three sons and his wife s daughter as people he should consider when making a will but not his wife; 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 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]. 33 Dr Attoti s report of 21 September 2016 suggested that Mr L could make simple and complex financial decisions but did not address testamentary capacity. Mr PL was subsequently appointed as Mr L s litigation guardian for the Family Court proceedings. 34 Affidavit of Mr PL, CFI5 at [14]-[15].

15 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 % 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, 35 Exhibit PL-12, affidavit of Mr PL, CFI5.

16 16 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 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 He had not met either Mr PL or Mr L previously. He attended the Sunshine Coast aged care facility on 2 November 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 [62] He asked Mr L if he wanted to change his Will made in His file note states: 36 Affidavit of Mr PL, CFI5 at [44]-[45]. 37 Which Mr McColm accepted in cross-examination was comprehensive: T1-5/26.

17 17 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 crossexamination 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

18 18 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 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 38 Exhibit JC-1, affidavit of J Cheesman, CFI T1-7/ T1-8/ T1-8/47-48 and T1-9/ T1-9/ T1-10/1-4.

19 19 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: (a) (b) (c) (d) (e) (f) he had not met Mr L prior to those occasions which would make any assessment of his to give instructions difficult; 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; he did not probe Mr L in terms of his understanding about the family law proceedings, nor how he gained that understanding; 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; 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 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; T1-11/ T1-11/ T1-12/ T1-8/36-48; T1-9/ T1-12/ T1-11/18-19; see also exhibit JC-1, affidavit of J Cheesman, CFI Exhibit JC-1, affidavit of J Cheesman, CFI22.

20 20 (g) 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 [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: (a) The sum of $150,000, household chattels and a third of the residuary estate to Mrs R; and (b) 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 51 Exhibit HS-1 (p 6-7), affidavit of H Siddle, CFI3.

21 21 [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.

22 22 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: 52 Lawrie v Hwang [2013] QSC 289 at [24]. 53 The test is well established: Banks v Goodfellow (1870) LR 5 QB 549 at VMH v SEL & Anor [2016] QSC 148 at [131]. 55 Re APB, ex parte Sheehy [2017] QSC 201 at [120].

23 23 (a) (b) (c) Mr L has executed a Will where there is real doubt that he had the capacity to do so; 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. 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 56 GAU v GAV [2016] 1 Qd R 1 at [48]. 57 Re APB, ex parte Sheehy [2017] QSC 201 at [125]. 58 At [61]. 59 At [63].