SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND CITATION: Fay Margaret Sadler v Timothy Eggmolesse [3] QSC PARTIES: FILE NO/S: 439 of 2 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED EX TEMPORE ON: DELIVERED AT: FAY MARGARET SADLER (applicant) v TIMOTHY EGGMOLESSE (respondent) Trial Division Application Supreme Court at Brisbane February 3 Brisbane HEARING DATE: February 3 JUDGE: ORDER: Atkinson J. Leave be granted pursuant to s 22 of the Succession Act 98 (the Act) for the applicant to bring an application pursuant to s 2 of the Act for a will to be made for Matthew Scott Eggmolesse. 2. Pursuant to s 2 of the Act a will be authorised to be made for Matthew Scott Eggmolesse in terms of the draft will which is exhibit LC-2 to the affidavit of Loan Thuc Chow. 3. The applicant s costs of and incidental to the application on the indemnity basis be paid out of the assets of Matthew Scott Eggmolesse. 4. The respondent s costs of and incidental to the application be paid from the estate of Matthew Scott Eggmolesse in the sum of $2,000 including GST. CATCHWORDS: SUCCESSION MAKING OF A WILL TESTAMENTARY CAPACITY LOSS OR LACK OF CAPACITY AND STATUTORY WILLS where the applicant s son was paid compensation for injuries suffered at birth which led to significant mental and physical

COUNSEL: SOLICITORS: impairments during his life where the applicant s son has been cared for almost exclusively by the applicant where the applicant seeks a statutory will to be made on behalf of her son whether the applicant s son lacks testamentary capacity whether the proposed statutory will is or may be a will the applicant s son would make if he were to have testamentary capacity Succession Act 98 (Qld), s 2, s 2(2)(a), s 2(2)(b), s 2(2)(c), s 22, s 23, s 24, s 24(d), s 4 Succession Amendment Act 06 (Qld) McKay v McKay [] QSC 2, followed Re D(J) [982] Ch 237, not followed Re Fenwick, application of J R Fenwick and Re Charles [09] NSWSC 5, applied R M Treston for the applicant B V McGowan (sol) for the respondent Walsh Halligan Douglas Lawyers for the applicant Cranston McEachern Lawyers for the respondent

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) This is an application made pursuant to Part 2 Division 4 subdivision 3 of the Succession Act 98 for the making of a will for a person without testamentary capacity. The Succession Act provides for a two stage process, first of all that an application should be made for leave to apply for such an order and then an application for an order. That process may be made in one of two ways. An application for leave may be made first separately, particularly if not all the evidence necessary to support the application itself is then available, or, as has been done here, the application for leave may be made at the same time as the substantive application. That is the appropriate course when all of the evidence that should be put before the Court is available. That was the case here and is a saving of cost and expense to all of the parties involved. The procedure for seeking leave is designed to screen out unmeritorious applications, but this is not an unmeritorious application. The application was filed on 7 November 2, with the return date of 23 November 2. It was lodged with a number of affidavits. Those affidavits included an affidavit of Fay Margaret Sadler. Ms Sadler is the mother of Matthew Scott Eggmolesse. She is the applicant in this case, and she makes the application for a Court ordered will to be made for her son Matthew. -3 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) Also attached to the application was an affidavit of Matthew Eggmolesse's two brothers, who were both over the age of 8, Bill Eggmolesse, who is 2 years old and Hunter Eggmolesse, who is years old. They are Matthew Eggmolesse's younger brothers. In those affidavits they supported the application made by their mother and the will proposed by her for Matthew. There is no reason for me to believe that they were not properly advised when making those affidavits. In addition, there was an affidavit by the solicitor acting for the applicant who practises predominantly in the area of succession and estate litigation and who advised the applicant that in her opinion, the proposed will was or may be a will that Matthew Eggmolesse would make were he to have testamentary capacity, and she sets out her reasons for reaching that opinion. It is necessary to give something of the history of Matthew Eggmolesse to see why it is necessary for this application to be made. He was born on September 987. He is the oldest of three children of Timothy Eggmolesse, who is the ex-husband of Fay Sadler, and Ms Sadler. Unfortunately, he developed severe complications upon his delivery as a baby and in consequence sustained a severe brain injury, which has led to significant mental and physical impairments during his life. He has -4 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) extremely limited physical abilities and limited communication ability. He has some communication ability but it is limited to blinking to signify his wishes and desires. His mother, who cares for him full-time and knows and loves him, can understand his preferences as he expresses them, but, of course, that is very much dependent on her careful knowledge of her son. She has set out in great detail all the difficulties he has with movement, he has no ability to care for himself, he has difficulty eating, and most of his food has to be processed. He is incontinent, and he is unable to care for himself in any way at all. He lives in a house with his mother and two younger brothers and it appears to be a very warm, loving and supportive environment. As a result of the injuries he suffered, proceedings were brought on his behalf against the State of Queensland and a medical practitioner. Those proceedings were settled, and the settlement was sanctioned on 27 November 02. He was awarded a substantial compensation sum for the injuries which he suffered and ultimately the sum of $,769,684.76 was paid to the Public Trustee on trust for him. Shortly thereafter, the Public Trustee arranged the purchase of suitable accommodation for him and the property in which he lives with his mother and two brothers is the property which was bought on trust for him. Unfortunately, the marriage between Ms Sadler and Timothy Eggmolesse broke down and they separated on 8 April 994. -5 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) The divorce was not made absolute until August 2. Since Matthew's release from hospital, he has been cared for almost exclusively by his mother. She was able to maintain some brief period of part-time employment, but has not had employment for many, many years, and now as a woman of 55, with that history of not being in paid employment and of having full-time care of such a disabled son as well as the care of her other two sons, would be unlikely to obtain any paid employment. Matthew's father has had some extensive degree of contact with his other two sons, but it is apparent from Ms Sadler's affidavit that he does not have much contact with his son Matthew. Of course there may be difficulties in Matthew being cared for in another environment. I do not intend any criticism of any party involved. These situations are extremely difficult but the fact is that Matthew has been and is cared for more or less completely by his mother. He also apparently has a good and loving relationship with his younger brothers. Matthew does not have a will, and it is obvious that he is not and would never be capable of making a will, and yet, of course, he has a substantial estate caused by the payment of compensation for negligence. If no will is made for him, then he will, of necessity, die intestate. The effect of his dying intestate would be that his mother and father would receive per cent of his estate each. Given that the home owned on his -6 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) behalf is his mother s residence, and given the close relationship between her and Matthew, this would appear to be an inappropriate result. Before the application was filed, the solicitor for the applicant sent a letter to each of Matthew's brothers and his father, explaining what was proposed, explaining why it was proposed, and giving them the opportunity to provide them with their "thoughts and opinions" in relation to it. The thoughts and opinions of the brothers were apparently known in the affidavits which they filed. Unfortunately, however, after the filing of the material, a solicitor acting on behalf of the father wrote to the applicant's solicitor, informing them that his client did not support the terms of the will and proposing a different will. The different will would have taken him out of the estate, but would have been a grave disadvantage to Matthew's mother. I doubt that the will which he proposed would have received Court approval. Unfortunately, as is often the case in succession matters, some family disharmony appears to have been caused by the various to-ings and fro-ings, but eventually, a good outcome was reached, where everyone decided for the benefit of the family and Matthew that they could agree to a will which provided that the first payment would be of his debts, funeral and testamentary expenses, then there would be a payment of $5,000 to the Disabled Surfers' Association of Queensland, which was an organisation which had given him some benefit, -7 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) that he would then bequeath the interest in his land to his mother absolutely and that the residue of the estate would be given per cent to his mother, 25 per cent to his brother Bill and 25 per cent to his brother Hunter. The law regarding succession and its many aspects, including the making of wills, was the subject of national review under the leading auspices of the Queensland Law Reform Commission over many years. One of the areas which was seen as a deficiency in the law in Australia, was that there was no provision for a Court to make, alter or revoke a will on behalf of a person who lacked testamentary capacity. Provisions were drafted for the wills Act of Victoria which are in similar terms to present Queensland legislation. It was broadly modelled on earlier English legislation, although there are important differences. Provision for the Court to make a Will for a person without testamentary capacity has now been introduced in all Australian jurisdictions: in Tasmania in 995; South Australia in 996; Victoria in 997; the Northern Territory in 00; Queensland, New South Wales and Western Australia in 06; and the Australian Capital Territory in. Only in Tasmania does the Guardianship and Administration Board have a role in its jurisdiction. It is clearly an important reform to the law, and was In particular, in similar terms to s 24(d) of the Succession Act 98 (Qld), clause 6(5)(b) of the draft Wills Act 994 (Vic) provided: the proposed will is or might be one which would have been made by the person if he or she had testamentary capacity. -8 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) introduced in Queensland by the Succession Amendment Act No of 06, pursuant to the Queensland Law Reform Commission Report 52. The explanatory memorandum which accompanied the Succession Amendment Bill 05, which became the Succession Amendment Act of 06, refers to the Bill amending the Succession Act 98 to implement the recommendations of the National Committee for Uniform Succession Laws regarding the law of wills. The explanatory memorandum refers to the importation of succession laws into the Australian colonies from English law, and the ways in which, over time, the succession laws applying in each jurisdiction changed and diverged, with the result that there is little consistency between succession laws across the States and Territories. The practical impact of this, as the explanatory notes say, is that costs may be higher and administration of deceased estates more complex, where a person dies in one jurisdiction and has assets in another. The notes refer to the fact that in 99, the Standing Committee of Attorneys-General initiated the Uniform Succession Laws project, and in 992, the Queensland Law Reform Commission was asked to coordinate the project. In 995, the National Committee for Uniform Succession Laws, chaired by the Queensland Law Reform Commission, was established to examine four discrete areas of succession law: the law of wills, family provision, intestacy and estate administration. -9 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) In December 997, the National Committee presented the final report to SCAG on the Law of Wills, Queensland Law Reform Commission MP29, which contained a Model Wills Bill for introduction in each jurisdiction. It was based on the draft Victorian Wills Act 994, which drew on Queensland's Succession Act. Consequently many of the amendments contained in the model legislation were either identical to or substantially the same as corresponding provisions of the Succession Act. However the model legislation modernised the language used and introduced some significant changes to the law of wills. The example it gives of the significant reform is the concept of Court authorised wills for minors and people who lack testamentary capacity, so these provisions are an important reform to the law. Unfortunately, the desire for uniformity has not been met, and while overall the procedure is similar in each State, there are slight differences in the wording between each State, and particularly, in the question of whether the proposed will, as the Queensland Act says, is or may be a will that a person would make if the person were to have testamentary capacity. As the cases from other jurisdictions in Australia show, there is a difference in the wording of that test in different States and Territories: see the useful discussion in chapter 3 of Dal Pont and Mackie The Law of Succession (3) LexisNexis Butterworths. Each of the Acts in each State has in common, however, a very - ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) detailed set of legislative provisions setting out precisely what should be done in support of such an application, what the Court must be satisfied of in order to give leave, and what orders the Court may make and the circumstances in which the Court may make them. That is necessary because making a will is an intensely personal decision, not normally done by one person on behalf of another. However, it is desirable that the Court should have this jurisdiction because of circumstances which might arise which make the determination of an estate on intestacy unsuitable. Various examples can be seen from the cases. One of the cases is of a child who had a considerable estate due to criminal compensation received from injuries which it was reasonably believed had been inflicted on the child by the child's parents. If the estate of that child were to go on intestacy, it would be those very parents who had inflicted the injury who would then benefit from the compensation awarded to their child for the injuries suffered. A person may have had capacity, made a will, but the circumstances may have changed drastically, so that the will is no longer appropriate in the circumstances. For example, a married couple may have made wills leaving their estate to each other. One of the couple is then seriously injured with a brain injury, and the other member of the couple deserts their injured spouse. In such a case, if the Court did not have the capacity to alter or revoke a will, notwithstanding - ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) that the behaviour of the person who would benefit on intestacy was such as they may not be a person to whom the person without capacity would then want to leave their estate, they would nevertheless be the beneficiary of it under the existing will. I am much assisted by a very learned judgment written by Justice Palmer in the Supreme Court of New South Wales in Re Fenwick, application of J R Fenwick and Re Charles [09] NSWSC 5. His Honour very helpfully goes through the earlier English authorities and the basis of the jurisdiction in England. He refers to the change in the view that a testator's wishes were sacrosanct by the development of Testator's Family Maintenance legislation, first passed in New Zealand - which was often a crucible for law reform, and I should say, still is - which was followed in the various Australian States. His Honour discusses in some detail the various categories of cases in which lack of testamentary capacity may arise. There are those people who may have had capacity but lost it. He calls those the lost capacity cases. The second category is those persons who have never had capacity. He calls that category of cases the nil capacity cases. A third category is those persons who, though still a minor and therefore lacking testamentary capacity, were old enough to form relationships and express reasonable wishes about property before losing testamentary capacity. He refers to those as pre-empted capacity cases. -2 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) This is a case in the second category, as Matthew has never had testamentary capacity. In such a circumstance, it would be extremely artificial to adopt a test used in England, under different legislation, by Megarry V-C in Re D(J) [982] Ch 237, of attempting to pretend that Matthew had a lucid interval and what would he do during that lucid interval, and I expressly do not follow that approach. I agree with all the criticisms made of that approach by Justice Palmer in Re Fenwick and by Justice Ann Lyons in McKay v. McKay [] QSC 2. I agree with Justice Palmer s observation at [48] that what this Court should do is to start with a clean slate and interpret the words of the section in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction. So I turn to the wording of the statute. The wording of the statute in New South Wales is different, and therefore I cannot apply the cases on that statute to an interpretation of this statute, but it is an unnecessary complication to do so in any event, since the words of this statute in the Queensland Act are quite clear and quite capable of being given effect to by the Court without reference to cases determined under different statutory provisions and without introducing hypothetical or artificial counter-factual arguments or those involving mental -3 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) gymnastics, as referred to by Justice Ann Lyons in McKay v. McKay at [79]. I shall now refer to each of the matters to which I am required to have regard under the statute. Section 24 of the Succession Act provides that the Court may give leave under s 22 to apply for an order to make a will, only if the Court is satisfied of the following matters. The first is that the applicant for leave is an appropriate person to make the application. As the applicant is the mother and the closest relative and carer for Matthew, I am satisfied she is an appropriate person to make the application. This is so notwithstanding that she will be a beneficiary under the will, although that fact does cause me to exercise care in considering whether or not she is an appropriate applicant for leave. However in cases of this kind, it is almost inevitable that the applicant will be someone who will benefit from the proposed will, and that is certainly not a disqualifying factor. The second matter of which I have to be satisfied is that adequate steps have been taken to allow representation of all persons with a proper interest in the application. I am satisfied of that. In fact, all persons who have a proper interest in the application who have capacity have been represented before me. -4 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) The third factor is that there are reasonable grounds for believing that the person does not have testamentary capacity. There is ample evidence that Matthew does not have testamentary capacity. That is not a question of any doubt in this case. This is not a case in which there might be some room to doubt that he has testamentary capacity. If that were a matter of doubt, of course, the Court would not make the order. The fourth matter is that the proposed will is or may be a will that the person would make if the person were to have testamentary capacity. Looking at Matthew's position, if he were able to understand the way in which his mother has cared for him and devoted her life to him since his birth, it is without doubt that he would want to benefit her in the way in which he has in the will. Further, in view of the affection shown to him by his brothers and their close relationship with him, I have no doubt that the proposed will which disposes of some of Matthew's property to them is one that he would want to make if he had testamentary capacity. The same is true of the gift to the charity which has been chosen in view of its relationship with Matthew and the work it has done for Matthew. The next factor is that it is or may be appropriate for an order to be made under s 2 in relation to the person. It is appropriate in this case where the alternative is, as I said earlier, an intestacy, where the mother, who has had more or -5 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) less sole care of Matthew all of his life, and the father who has not lived in the same household since Matthew was not quite seven, would benefit equally under the will. That makes it appropriate for a will to be made in this case. Section 23 sets out all of the information which is required by the Court in support of an application for leave. All of those matters have been covered. There is a written statement of the general nature of the application under s 2 and the reasons for making it. There is satisfactory evidence of the lack of testamentary capacity and there is evidence that there is no likelihood of his acquiring testamentary capacity. There is a reasonable estimate of the size and character of the estate and there is a draft of the proposed will. Some of the matters, as Justice Palmer remarked, with regard to nil capacity cases, have less relevance. That means that there is unable to be any evidence of Matthew's wishes, or of the terms of any will previously made by him. The next factor which has to be covered is any evidence available to the applicant of the likelihood of an application being made under s 4 in relation to Matthew. The only person who would have the capacity to make such an application is the applicant herself. There is evidence, which has been produced, of a gift for a charitable purpose that the person might reasonably be expected to give by will, and I have already referred to that. -6 ORDER

023 T(5)2-6/LBP(BNE) BRIS2 (Atkinson J) There is evidence, which has been put before me, of the circumstances of the persons for whom provision might reasonably be expected to be made by the will. Those are circumstances of Matthew's mother and brothers. There has been evidence put before me of the persons who might be entitled to claim on intestacy. The application was thoroughly well prepared and has left none of those things out, so the Court has before it all the information that it might need in order to make the order. It is therefore appropriate to grant leave to make the application for a s 2 order and having granted leave, to make the order. I am satisfied that the person in relation to whom the order is sought lacks testamentary capacity, (see s 2(2)(a)). I am satisfied that Matthew Eggmolesse is alive (see s 2(2)(b) and I have approved the proposed will (see s 2(2)(c). I therefore make the order in terms of the draft order as amended. ----- -7 ORDER