Deecke v Deecke

[1] MULLINS J: The applicant is the mother of the first respondent. The applicant applies under s 22 of the Succession Act 1981 (the Act) for leave to apply for an order under s 21 of the Act authorising the will be made for the first respondent.

[2] The first respondent was born in 1978 and is 31 years old. She has had life-long cystic fibrosis, developed insulin dependent diabetes at age 13 years and has a history of epilepsy. She sustained a major brain injury which has affected her condition and functioning since October 1998. The injury was likely to be from prolonged epileptic seizures she experienced in October 1998 and, possibly, hypoglycaemia. That injury has left the first respondent with a severe impairment in cognitive function and concentration, severe behavioural problems, urinary incontinence and left hemiparesis. She requires total care in all activities of daily living and will do so for her the rest of her life. In 2006 her life expectancy was estimated at 15 years.

[3] The first respondent has three brothers. Their parents separated and divorced in the late 1990's. The first respondent lives with the applicant, who is her full time carer, and her youngest brother.

[4] The first respondent has no children and no spouse.

[5] The first respondent has total assets of significant value because of the receipt of a settlement sum in 2006 in respect of her claim for medical negligence against the State of Queensland. That settlement sum is administered by ANZ Executors and Trustee Company Limited (ANZ Trustees) as the administrator appointed for that purpose under the Guardianship and Administration Act 2000. From those funds ANZ Trustees has purchased the house in which the first respondent resides with the applicant and her youngest brother. ANZ Trustees pays a weekly allowance to the applicant to care for the first respondent.

[7] The scheme of subdivision 3 of division 4 of part 2 of the Act requires a person who seeks an order under 21 to apply first for leave under s 22. Section 23 of the Act sets out the information which must be given to the Court on an application for leave. Section 24 sets out the matters of which the Court must be satisfied in order to grant leave.

[8] These provisions were inserted in the Act by the Succession Amendment Act 2006 which implemented the recommendations of the National Committee for Uniform Succession Laws regarding the laws of wills.

[9] The will that is proposed for the first respondent provides for a bequest of $5,000 to Cystic Fibrosis Queensland Limited with the residue given to the applicant. If the applicant fails to survive the first respondent, it is proposed to divide the residue among the first respondent's three brothers. The proposed will appoints the applicant as executor and trustee, but if she does not survive the first respondent, appoints the first respondent's elder brother as executor and trustee.

[10] What has prompted this application is that if the first respondent were to die and both her parents survived her, under s 35 of the Act her parents would be entitled to the whole of the first respondent's residuary estate in equal shares. The applicant believes that does not reflect what the first respondent would want, if she had the capacity to make a will.

[11] The applicant as the first respondent's mother and carer is an appropriate person to make the application, as required by s 24(a) of the Act.

[12] The first respondent's brothers and parents fall within the description in s 24(b) of the Act of "persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought". Each of the first respondent's brothers has sworn an affidavit for the purpose of supporting the application.

[13] As the second respondent's potential interest in the first respondent's estate, if she were to die intestate, would be displaced by the proposed will, it was important that the second respondent be given an opportunity to be represented on this application. The second respondent lives in China and works as a teacher. He remarried in 2005. The second respondent was given copies of the application and supporting affidavits by email. The second respondent has communicated by email with the applicant's solicitor, Ms Hanson. Those emails have been exhibited to the affidavit of Ms Hanson that was filed by leave on 9 March 2009. Those emails show that the second respondent has considered the application and the supporting affidavits and disputes many of the factual matters asserted by and on behalf of the applicant concerning the history of family relationships and events. The second respondent did not consent to the application, but advised that he did not intend to appear on the application, provided his emails were drawn to the attention of the court.

[14] Strictly speaking, personal service of the application on the second respondent was required. As he lives overseas and his emails show that he has been fully apprised of the nature of the application and the supporting affidavits, and he has indicated that he would not actively oppose the application, it is appropriate to deal with the application, despite the lack of personal service on the second respondent. I have carefully read the second respondent's emails and taken them into account when evaluating the affidavits relied on by the applicant.

[15] Ms Hanson interviewed the first respondent on 21 August 2008. Ms Hanson made a lengthy note of her questions to the first respondent and the first respondent's answers. Ms Hanson was endeavouring to ascertain whether the first respondent had testamentary capacity. The first respondent's answers to Ms Hanson's questions show that the first respondent does not appreciate the extent or value of her assets. Ms Hanson concluded that the first respondent did not have capacity to make a will. Thoracic physician, Dr Philip Masel, who has been treating the first respondent on a regular basis in 2008 at the Adult Cystic Fibrosis Centre, has expressed in his letter dated 19 December 2008 that it is unlikely that the first respondent has, or would ever acquire or regain, testamentary capacity. There are therefore reasonable grounds for believing that the first respondent does not have testamentary capacity.

[16] What can be gleaned from the affidavits relied on by the applicant is that the relationship between the applicant and the second respondent, until the second respondent left for overseas in 2000, was volatile. There is evidence of many aspects of a strained relationship between the applicant and the second respondent whilst the first respondent was growing up which affected the first respondent's attitude to each of her parents. Not all of the matters that are deposed to in the applicant's affidavits are relevant, however, for the purpose of dealing with the first respondent's relationship with her parents.

[17] After the first respondent sustained the brain injury, she was in a coma for about three months and then remained hospitalised until December 2000. It was the applicant who constantly visited the first respondent and into whose care the first respondent was released from hospital. The second respondent has lived overseas for most of the time since 2000 and has had infrequent contact with the first respondent.

[18] Although each of the applicant, her sons and family friend Ms Black refer in their affidavits to the first respondent expressing "hate" or "dislike" for the second respondent, that has to be considered in the context of the first respondent's limited cognitive functioning since 1998 and that the second respondent is not involved in any way in the care of the first respondent.

[19] I accept that there is evidence that the first respondent's relationship with the applicant, before her injury, was much stronger and closer (and with less friction) than her relationship with the second respondent. If the first respondent did have testamentary capacity, it would be relevant to her consideration of how to dispose of her assets that her primary carer since sustaining the brain injury has been her mother.

[20] The affidavits show that the first respondent had a close relationship with her elder brother as they were growing up. Her two younger brother are significantly younger, but her brother John assists the applicant in caring for the first respondent.

[21] The first respondent received support from social workers through the Cystic Fibrosis Foundation from the time she was 11 or 12 years old. At one stage the first respondent expressed a wish to her mother that if she were to come into money, she would like to give some to the Cystic Fibrosis Foundation, because of the assistance provided to her.

[22] The only person who presently would have grounds to apply under s 41 of the Act for maintenance and support from the estate of the first respondent after she died would be the applicant.

[23] There are two decisions that are unreported where a will has been authorised by this court for a person without testamentary capacity. In Winstanley v Winstanley (unreported, BS 11203 of 2007, Daubney J, 18 January 2008), the person for whom the will was authorised was 76 years old and intellectually impaired. His assets were administered pursuant to the Guardianship and Administration Act 2000. He owned a house in which he lived with his intellectually impaired sister. A brother was the fulltime carer of both siblings and had done so for 26 years. All family members supported the making of a will which benefited the brother who was the carer and that was authorised by the court.

[24] In Re Joachim (unreported, BS 12325 of 2008, Dutney J, 22 December 2008), the proposed testator was 35 years old and had suffered hypoxia at birth. She had been looked after by either her grandparents or the Endeavour Foundation and derived benefit over the years from Riding for the Disabled Inc (Qld). Her grandfather had died and her immediate family (apart from her grandmother) had little involvement in her life. She had accumulated over $30,000 in savings. A cousin of the proposed testator thought that the proposed testator ought not to die intestate, but should leave her savings to the charities that had given her great support and therefore made the application for an order under s 21 of the Act. The court authorised a will in the proposed terms.

[25] Those two decisions were relatively straightforward applications of the relevant provisions. The subject application involves a potential estate that is currently worth in excess of $1m (although it will progressively reduce as funds are used for the care of the first respondent) and the exclusion of a parent who was involved in the first respondent's upbringing.

[26] In considering authorities from other jurisdictions, it is necessary to be aware of the differences in legislation. Under s 24(d) of the Act the proposed will must be one which "is or may be a will ... that the person would make if the person were to have testamentary capacity". In South Australia and Victoria the legislation requires that the proposed will "reflects the likely intentions of the person if he or she had testamentary capacity": cf Boulton v Sanders [2004] VSCA 112; (2004) 9 VR 495, 515-516 [1110] - 112].

[27] There are instances where a court has authorised a will to be made for an adult who has been cared for primarily by one parent, because the proposed testator has had little or no contact with the other parent: Bryant v Blake [2004] SASC 369 and Hoffman v Waters [2007] SASC 273.

[28] In the circumstances that currently prevail, the proposed will exhibited to the affidavit of Ms Hanson is a will that the first respondent would make, if the first respondent had testamentary capacity. It benefits her primary carer and makes a small gift to a charity that it has been of assistance to the first respondent. The gifts in substitution to the first respondent's brothers, if her mother did not survive her, is also appropriate in the first respondent's circumstances.

[29] I have therefore concluded that it is appropriate for an order to be made under s 21 of the Act in relation to the first respondent which satisfied s 24(e) of the Act. Leave should be granted pursuant to s 22 of the Act for the application for an order under s 21 of the Act. This was an appropriate application for the substantive application under s 21 of the Act to be heard at the same time as the application for leave.

Whether it is appropriate to authorise a will for the first respondent

[30] Under s 21(2) of the Act, the court may make an order authorising a will to be made for the first respondent only if:

(a) the first respondent lacks testamentary capacity; and

(b) the first respondent is alive when the order is made; and

[31] Because of the effects of the first respondent's brain injury on her cognitive functioning, the evidence overwhelmingly supports a finding that the first respondent lacks testamentary capacity and that lack of testamentary capacity is permanent.

[32] At the time of hearing the application the first respondent was alive. I have requested confirmation from the applicant's solicitors that this remains the position, before pronouncing the orders.

[33] It is relevant to consider that the application has been brought by the applicant who may benefit by the proposed will. The applicant was in the best position, however, to put the relevant information before the court in support of the application. The application could have been brought in the first respondent's name by a litigation guardian. The problem with that course was that the persons who would best qualify for the role of litigation guardian, namely the applicant and the first respondent's brothers who are of age, have an interest in the making of the orders.

[34] I am satisfied that the proposed will should be authorised to be made on behalf of the first respondent, having regard to the first respondent's present circumstances and existing relationships and to the very limited extent that her wishes can be ascertained.

[35] The applicant seeks an order pursuant to s 21(5) of the Act that the costs of the application for the order and application for leave be paid out of the assets of the first respondent. The application has been successful and it is appropriate to make the order for costs on an indemnity basis.

1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981.

2. A will is authorised to be made on behalf of Lynelle Tanya Deecke in the terms set out in Exhibit AJH4 to the affidavit of AJ Hanson filed on 5 February 2009 (document 7).

3. The applicant's costs of the originating application filed on 5 February 2009 must be assessed on an indemnity basis and paid out of the assets of the first respondent.