Admittedly, it’s not something that one regularly thinks about, but the issue of incapacitated people making Wills is a topic that achieves much discussion nowadays.
Where a person doesn’t have a Will, whether by choice or otherwise, the law provides what I like to call a “back-up plan” or formula, if you will, of how your estate it to be distributed among your family after you pass away. These rules are called the Intestacy Rules. Many people are usually pretty surprised to learn what the rules say about their own situation, and there are many incorrect assumptions made; for example your spouse receiving the whole of your estate to the exclusion of your children. But, as always, the issue only becomes known to people when the topic is open for discussion.
So, naturally, one might wonder about how those that have no capacity to make a Will make their own wishes known or make provision for those that should benefit from their estate. That might be a person who has NEVER had capacity, say they were born with an impairment, OR they suffer incapacity as a result of an accident, tragedy or cognitive decline (e.g. dementia, Alzheimer’s). Perhaps the intestacy rules aren’t appropriate, given all the circumstances of that person’s life and relationships with others.
Thankfully our legislation provides a opportunity for a Court to authorise the making of a Will for someone who does not have capacity. These are called Statutory Wills or Court-Made Wills. Of course, the Court has to be satisfied of quite a few things before making such a Will for a person. Importantly, it is a two-step process; the Court must grant leave [i.e. approval] to apply for the statutory Will before they will then consider authorising the proposed Will to be made.
Interestingly, the Court recently determined a matter where an application for a Statutory Will was made and the Court declined to allow the Will to be made for the adult.
In the case of Re CGB  QSC 128, the Court was asked to allow an application for a statutory will and to make a will for CGB who did not have capacity.
CGB is 83 years old and a quadraplegic. He had become a quadraplegic at age 40 and had amassed quite an empire. His net worth is approximately $17 million. CGB’s estate comprises many complex interests, including businesses, property, mines and quaries. A very complex and private man, CGB was independent and is said to have very few deep personal relationships.
CGB has never married and has two children with whom he had no contact until their adult years; his daughter having reached out 3 years ago and his son who had made contact with him in his nursing home. He had not developed a relationship with his daughter after her contact and with his son, it was unknown if he had sufficient cognitive ability to appreciate that he was his son.
In 2014 and 2016, QCAT had made a orders appointing an administrators for CGB’s affairs and the Public Guardian as CGB’s guardian.
CGB had spoken with lawyers over the years about his Will, but never committed to signing one. After CGB expressed a desire to make a Will in 2014, the process of investigating an opportunity to make such a Will commenced and an application filed with the Court in 2016.
There were various parties to the matter including CGB’s children, his assistant and driver, his accountant and long-term advisor and friend, his mortgage broker who assisted him in a financial venture, his solicitor from years ago, his brother, and his carer and alleged de facto.
The Court may only grant leave where it is satisfied that:
- the applicant who is applying to the Court is an appropriate person to make the application;
- adequate steps have been taken to allow for representation for 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;
- there are reasonable grounds for believing that the person does not have testamentary capacity;
- the proposed will, alternative 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 section 21 in relation to the person. (Section 22, Succession Act 1981 (Qld)).
The applicant commenced proceedings on behalf of CGB to allow a Will to be made. The Will that was proposed to be made for CGB comprised the following elements:
- CGB’s mortgage broker to be executor;
- a legacy of $450,000 to CGB’s carer and alleged de facto;
- A legacy of $350,000 to CGB’s assistant and driver
- A legacy of $100,000 to CGB’s accountant and long-term adviser and friend;
- A legacy of $50,000 to CGB’s mortgage broker
- Education fund created for CGB’s mortgage broker’s son of $100,000
- Residue to go to a Testamentary Trust, the CBG Trust; with the following beneficiaries:
- CGB’s brother (and if his brother did not survive, to his brother’s children)
- A charity, namely the Spinal Research Institute Ltd;
- CGB’s daughter (‘DAJ‘) (and if his daughter did not survive, to his daughter’s children)
- CGB’s son (‘OAM‘) (and if his son did not survive, to his son’s children).
In order to evaluate whether the Court should grant leave, the Court had to specifically consider the circumstances of CGB to date. The Court’s evaluation of the background and the role of each of the interested parties was lengthy. In summary, the Court considered the following:
- did CGB’s prior “instructions” given to his lawyers during the period of Sep-November 2013 embody his testamentary wishes?;
- did CGB’s prior “instructions” given to his [different] lawyers during the period of April-May 2014 embody his testamentary wishes?;
- did CGB have capacity at each of the times he had engaged with lawyers;
- the extent of the legal advice received by CGB in relation to the impact of not making a Will;
- what was the nature of each of the relationships between those of the interested parties in the matter and CGB;
- the terms of the proposed Will and whether it was a Will that CGB would make;
- CGB’s general conduct given over the years with respect to making a Will.
In resolving that granting leave was not appropriate, the Court identified various reasons for refusing leave.
In particular, the Court identified that CGB’s two children (despite CGB being able to acknowledge his son as a result of cognitive decline and his reluctance to accept his daughter as his at all) opposed the application and contended that if an order was made, it would most likely lead to a family provision claim being made by them.
The Court succinctly summarised the reasons, at paragraph , as follows:
(a) in making the proposed will with or without provision for OAM and DAJ there is likely to be a family provision application. Both oppose the making of the proposed will and have indicated that the making of a family provision application by them is likely;
(b) even if a will was made in the terms proposed, the evidence is not adequate to assess whether it would be sufficient to avoid a [sic] defend a family provision application;
(c) even if provision was made for OAM and DAJ on the basis of the testamentary trust, the evidence as to the position of the assets in respect of Red “GCB” Mine and SQ Pty Ltd is such that they could receive substantially less than would otherwise be received under a family provision application and certainly on intestacy;
(d) the court’s role is not to make a statutory will which would almost certainly head to further litigation, as opposed to avoiding them;
(e) his dying intestacy was a matter of indifference to him; and
(f) he was experiencing cognitive decline before the time he began to express any testamentary wishes bringing into question his capacity to give those instructions albeit Mr Marshall tested CGB when obtaining instructions and Mr Ross considered CGB had capacity but neither had been made aware of the reports of Dr Till.
The Court further said:
Throughout his life and when he had unquestionable capacity, he never made a will despite advice to do so, prior to taking steps in 2013. Even then, he was indifferent to the prospect of dying intestate when given advice as to the effect of intestacy. This was even after he had become aware that DAJ was claiming to be his daughter. [para ]
Further qualifying the reason for the Court’s discretion in these matters and referring to the protective jurisdiction of such discretion, the Court said:
The will is not one required to protect his interest or to benefit him, now that he is in a nursing home and provision is being made for his care and there are administrators who are maintaining his estate. [para ].
The Court found it appropriate for the application to have been made on CGB’s behalf and ordered the costs to be paid out of his estate.
Although a lengthy decision, the judgement is well worth the read.
You can read the case here.