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[2026] QSC 48
General information, not legal advice.
Supreme Court of Queensland
2026-03-18
Hindman J
Original judgment source is linked above.
SUCCESSION - MAKING OF A WILL - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS - where WJ is suffering from severe Parkinson's disease and dementia - where parties and other interested persons entered into deed of settlement - whether proposed resolution of a broad range of issues in WJ's interests, such that applicants justified in giving effect to deed of settlement - whether court should make statutory will on behalf of WJ in the terms of a will proposed in deed of settlement - whether court should vary WJ's enduring power of attorney (medical treatment) to remove DJ so that only one attorney remains - whether the court should make non-identification orders
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - COSTS OUT OF FUND OR PROPERTY - FUND, ESTATE OR PROPERTY - where attorneys for WJ applied for court to make statutory will - where parties and other interested persons entered into deed of settlement - where Court makes statutory will - whether applicants' costs of the proceeding should be paid from WJ's assets
Succession Act 1981 (Qld) s. 21, s. 23, s. 25
Uniform Civil Procedure Rules 1999 (Qld) r. 69(1), r. 681
Adamson v Enever (2021) 9 QR 33; [2021] QSC 221, cited
Banks v Goodfellow (1870) LR 5 QB 549, applied
BP v PM (2022) 12 QR 502; [2022] QSC 268, followed
Lambourne v Marrable (2023) 17 QR 198; [2023] QSC 219, followed
MZY v RYI [2019] QSC 89, followed
Re APB, ex parte Sheehy [2017] QSC 201, followed
Re Bridget [2018] NSWSC 1509, followed
Re Fenwick; Application of J R Fenwick; Re 'Charles' (2009) 76 NSWLR 22; [2009] NSWSC 530, followed
Re OSD; SMA v FJX; OSD v ABJ [2023] QSC 264, followed
Secretary, Department of Health and Community Services v JWB & SMB (Marion's Case) (1992) 175 CLR 218; [1992] HCA 15, applied
TJ v Public Trustee of Queensland [2023] QCA 158, applied
The Estate Lawyers for the second, third and fourth respondents
[1] This proceeding concerns the personal and financial affairs of an 85-year-old man suffering from Parkinson's disease in the severe stage with Parkinson's disease dementia. To protect his privacy, he will be referred to in these reasons as WJ.
[2] The proceeding was listed for trial for three days commencing on 7 April 2026 in respect of whether the Court would approve a statutory will for WJ.
[3] The parties (and two other interested persons) reached an agreement to resolve the proceeding, as well as ancillary issues concerning WJ's affairs, in an effort to avoid protracted litigation and to minimise costs - recorded in a Deed of Settlement signed 13 February 2026. The parties comprise:
(a) the Applicants who are the attorneys for WJ;
(b) the First Respondent who is the former de facto of WJ (DF);
(c) the Second, Third and Fourth Respondents who are the adult children of WJ.
[4] The two other interested persons are the adult children of DF.
[5] By the present application, the Applicants seek, in summary:
(a) judicial advice as to whether they are justified in resolving the proceeding, and ancillary issues concerning WJ's affairs, on the terms set out in the Deed of Settlement;
(b) the making of a statutory will in the form provided to the Court by the Applicants (Proposed Will) pursuant to section 21 of the Succession Act 1981 (Qld) (the Act);
(c) orders varying WJ's enduring power of attorney for health matters, to remove DF as WJ's attorney.
[6] There is no opposition by any of the respondents or the other interested persons to the sought relief by the Applicants.
[7] The Applicants have filed a list of material to be read and an outline of submissions. The material read includes affidavits from each of the respondents. No deponent of any affidavit has been required for cross-examination. The respondents do not seek any further material to be read or to put on their own outline of submissions. All parties have agreed that if the Court considers it appropriate to do so, the application and the proceeding can be determined on the papers without an oral hearing (see rules 487 to 498 of the UCPR). I consider it is appropriate to make this decision without an oral hearing and do so.
[8] The relief sought by the Applicants is well supported by the undisputed evidence before the Court and I accept generally the submissions made on behalf of the Applicants in the comprehensive outline of submissions prepared for the Applicants by counsel. I have heavily used same in finalising these reasons in circumstances where, given the age of WJ and his declining health, it is imperative that the Court finalise the proceeding with as much expedition as is possible.
[9] There are five primary questions for the Court's determination:
(a) first, is the proposed resolution in WJ's interests, such that the Applicants are justified in giving effect to the terms of the Deed of Settlement?
(b) second, should a statutory will be made on behalf of WJ in terms of the Proposed Will?
(c) third, should the Court vary WJ's Enduring Power of Attorney (Medical Treatment) to remove DF (so that only one attorney remains)?
(d) fourth, should the Court make non-identification orders?
(e) fifth, should the Applicants' costs of the proceeding be paid from WJ's assets?
[10] For the reasons set out below, each of those questions is answered in the affirmative.
[11] A comprehensive background and chronology has been provided in the Applicants' outline of submissions. What it reveals at a high level is that:
(a) there is a real dispute between DF on the one hand and WJ's Children on the other hand as to what actually occurred in respect of several different events concerning WJ, their views of WJ's genuine wishes, and how the other has acted towards WJ - there now exists a great deal of distrust between those persons;
(b) WJ has from time to time expressed different wishes to different persons: that may be in part due to fluctuating wishes or capacity - but he now lacks capacity to explain his past conduct or express future wishes;
(c) despite a lengthy de facto relationship between WJ and DF of over 19 years, it is now at an end (whatever view is taken as to how that came about);
(d) all parties have expressed genuine care for WJ and are concerned to act in his best interests.
[12] In the circumstances of the case, I am able to finalise the proceeding without deciding many of the factual disputes between the parties. And so below, I highlight some of the key evidence, but note along the way how some of it is contentious.
[13] WJ is 85 years of age and has Parkinson's disease in the severe stage with Parkinson's disease dementia. As a result of his diagnosis, WJ no longer has, and is unlikely to regain, capacity to make a will or to make changes to his powers of attorney.
(a) WJ's long-term financial advisor (Martin) and accountant (Peter) respectively;
(b) two of WJ's three enduring attorneys for financial and personal (but not health) matters;
(c) WJ's litigation guardians in this proceeding;
(d) the named executors in each of WJ's prior six wills, including his current last will, and the Proposed Will;
(e) not beneficiaries under any of WJ's wills, including the Proposed Will.
[15] DF is an educated, retired woman of 72 years of age. DF and WJ were in a de facto relationship from late 2008 until their separation on 18 February 2025. Whether their separation was the free and voluntary act of WJ is a matter in dispute between the parties.
[16] The Second, Third and Fourth Respondents are WJ's adult children from his marriage to his wife who died in 2008:
(a) the first daughter, currently aged 63 years (1D);
(b) the second daughter, currently aged 61 years (2D). 2D is WJ's third enduring attorney for financial and personal (but not health) matters;
(c) the first son, currently aged 57 years (1S),
[17] The two other interested persons to this proceeding, who I am satisfied on the evidence are aware of the proceeding but have not filed notices of address for service, are the adult daughters of DF from a prior relationship (together, DF's Children).
[18] Around 2006, WJ and DF, who had previously been known to each other, reconnected socially.
[19] In late 2008, after WJ's wife's death, DF and WJ's relationship developed romantically and they commenced living together.
[20] In May 2009, DF and WJ purchased a property at Albert Park, Victoria (Albert Park Property). They contributed equally to the purchase price of $2.8 million. The Albert Park Property was initially held as tenants in common in equal shares.
[21] Other than the purchase of the Albert Park Property, DF and WJ generally kept their assets and finances separate throughout their relationship. They were both persons of some significant means, being self-funded retirees.
[22] In June 2011, WJ appointed DF, and alternatively 2D, as his medical agent pursuant to an enduring power of attorney concerning medical matters only (Medical EPA).
[23] On 12 June 2015, WJ transferred his 50% share as tenant in common in the Albert Park Property to a joint tenancy with DF. And on 4 May 2016, WJ transferred his interest in the Albert Park Property to DF, such that DF became the sole owner.
[24] On 5 May 2016, WJ was diagnosed with Parkinson's disease.
[25] In August 2019, WJ was travelling overseas with DF and a friend. One morning, WJ and the friend were speaking alone and WJ told the friend that "he was worried DF did not love him anymore" and "mentioned his will...and that he was worried about the possibility that DF was just in the relationship for the money".
[26] In September 2019, WJ appointed Martin, Peter, and 2D as his attorneys for all financial and personal matters (EPA).
[27] From about 2020 onwards, WJ's health deteriorated. DF assisted him extensively with his care.
[28] Between 2020 and 2024, WJ made six wills by which he (in summary):
(a) appointed Martin and Peter as his executors;
(b) gifted his household contents and superannuation to DF;
(c) gifted 1S 50% of a company, being the corporate trustee of the a trust through which 1S and WJ have conducted business for many years;
(d) gifted his residuary estate to four testamentary trusts, that:
(i) were to be created in the names of each of DF, 1S, 2D and 1D, with each of them to be the primary beneficiaries of their respective testamentary trusts;
(ii) gifted the residuary estate in various shares which, broadly speaking, gifted the most to DF's trust, the same between 1S and 2D's respective trusts, and the least to 1D's trust.
(a) discussions commenced between WJ and DF as to a gift to be made by WJ to DF's Children. DF says this was WJ's idea. That is refuted by WJ's Children and the Applicants. Regardless, these gifts were ultimately given effect by way of a deed of gift in January 2025, but have not been paid;
(b) Martin observed on a number of occasions actions of DF that caused him to have concern for WJ's wellbeing both as a friend and as his financial advisor. These occasions became more frequent when WJ's health started to decline. DF denies any wrongdoing, says she supported WJ with his business and financial affairs at the request of WJ, and otherwise had a fulfilling and loving relationship with WJ.
(a) WJ and DF travelled to Queensland to visit 1S and his wife. During this visit:
(i) 1S states that WJ told him that:
DF has been taking my money for years. I don't know what to do. If I don't say anything and just let it happen, she will let me stay in the house for another year.
(ii) 1S raised his concerns with WJ about DF's involvement in WJ's finances;
(iii) WJ relayed these concerns to DF;
(iv) this caused a significant rift in the relationships;
(v) DF strongly denies the allegation that she has taken money from WJ,
(b) shortly after returning to Victoria from Queensland, WJ was admitted to hospital with aggravated Parkinson's disease symptoms.
(a) DF alleges that WJ hit her hard on her right upper arm, causing bruising;
(b) WJ signed the deed of gift by which he agreed to pay the sum of $200,000 to each of DF's Children.
(a) 1S contends that WJ telephoned him and said that he (being WJ) had "made a huge mistake. I should never have agreed to give DF's Children money", and that "DF blew up this afternoon and hit me";
(b) 1S was concerned about how WJ sounded on the phone and offered to fly down to Melbourne;
(c) Martin travelled to WJ's house to collect him in order to take him to a location where WJ, 1S, 1D and their partners were going to meet to discuss WJ's situation;
(d) DF did not know where WJ was going or when he would come back, causing her great distress.
(a) WJ, 1S and 1D had a discussion about concerns regarding DF's conduct and her involvement in WJ's financial affairs;
(b) 1S contends that, following this conversation, WJ said "I want to come and live in Queensland. I am sick of this. I'm done with DF";
(c) 1S and WJ flew to Queensland together.
[34] On 20 February 2025, DF reported WJ missing. The Queensland Police Service (QPS) attended 1S's address to confirm WJ's whereabouts. On 28 February 2025, DF travelled to Queensland with her friend and attended Broadbeach Police Station to raise her concerns about WJ's situation.
[35] On 3 and 5 March 2025, WJ, 1S and his wife and 2D and her husband attended the offices of Hickey Lawyers on the Gold Coast regarding WJ's rights and interests in respect of his separation from DF. The solicitor was satisfied that WJ did not want to return to DF and that he was capable of giving instructions.
[36] On 13 March 2025, WJ's solicitor sent a letter to DF that, in summary:
(a) informed DF that she had been retained to represent WJ;
(b) stated she had been instructed that the relationship between DF and WJ was at an end;
(c) notified DF that WJ wished to resolve all outstanding matters arising from the breakdown of their relationship;
(d) requested the return of WJ's personal property.
[37] On 21 March 2025, KCL Law on behalf of DF sent a letter to Hickey Lawyers stating, in summary:
(a) DF was of the view that the separation between her and WJ was terminated by the acts of 1S, who "aided and abetted" Martin to remove WJ from his home and relocate him to Queensland;
(b) if Hickey Lawyers had received competent instructions from WJ that the relationship had broken down, then DF "will, reluctantly, accept this position" and that she did not wish to "engage in any protracted litigation";
(c) requested that a report be sought from a geriatrician to confirm that WJ had capacity to provide legal instructions and to understand the nature and effect of the instructions he is providing and the advice he is receiving;
(d) communicated arrangements for the collection of WJ's personal items;
(e) subject to receiving independent advice as to WJ's capacity, invited an offer of settlement to be made by WJ in respect of the parties' property settlement.
[38] On 26 March 2025, WJ attended upon Dr Michael Leihy, geriatrician, for a general capacity assessment. Dr Leihy opined that WJ had "subjective cognitive impairment, potentially inappropriate medication". Dr Leihy planned to obtain records from WJ's previous healthcare providers in Melbourne and review WJ in two weeks to assess his capacity to change his medical enduring power of attorney.
[39] On 2 April 2025, WJ attended a video conference with Mr Simmonds and Ms Sarah Murray of Mast Lawyers (solicitor he had used to prepare earlier wills) during which he provided instructions to make a new will, with the primary focus being to delete any provision for DF, and to exclude her from receiving any benefit from his superannuation. Mast Lawyers subsequently prepared a draft will and draft binding death benefit nomination for WJ.
(a) a draft will prepared by Mast Lawyers, which reflected WJ's instructions provided on 2 April 2025;
(b) a draft binding death benefit nomination in respect of WJ's self-managed superannuation fund;
(c) instructions for the execution of the will.
[41] On 6 May 2025, WJ attended another review by Dr Leihy from which Dr Leihy reported:
(a) he assessed WJ specifically with regard to the family law matters and estate planning matters;
(b) WJ stated that he wanted to separate from DF and wanted to remain on the Gold Coast;
(c) WJ was not able to demonstrate capacity for more complex decisions.
[42] WJ's physical and cognitive health has continued to decline from about May 2025 onwards.
[43] WJ's current health status is described in a letter from the Gold Coast Hospital and Health Service, which states that WJ:
(a) has a history of complex Parkinson's disease and cognitive impairment due to Parkinson's disease dementia;
(b) was determined to have lacked decision-making capacity on 22 September 2025;
(c) has been hospitalised for 8 months;
(d) requires 24/7 observation.
[44] The proceeding was commenced by the Applicants on 8 September 2025. The parties attended a mediation on 28 January 2026 with Mr Lee Nevison of counsel as mediator. The matters for resolution can be summarised as follows:
(a) the separation, whether voluntary or involuntary, of the de facto relationship of WJ and DF pursuant to the Family Law Act 1975 (Cth);
(b) any inter vivos transactions by the Attorneys on behalf of WJ;
(c) any inter vivos transactions by DF and/or WJ's Children on behalf of WJ;
(d) gifts by WJ to DF's Children, including the deed of gift;
(e) WJ's and DF's interests in any trusts, whether as trustee, appointor or beneficiary;
(f) WJ's and DF's interests in any companies, whether as director, secretary or shareholder;
(g) any entitlement DF or WJ may have to a property adjustment as a result of the de facto relationship with each other;
(h) potential family provision applications pursuant to the Act in respect of both WJ's and DF's estates;
(i) any other claims under the Powers of Attorney Act 1998 (Qld) or the Guardianship and Administration Act 2000 (Qld).
[45] As a result of the mediation and subsequent negotiations, the parties reached a resolution of the various matters in dispute, the terms of which are reflected in the confidential Deed of Settlement and the confidential Financial Agreement between WJ and DF. The terms of the Deed of Settlement and the Financial Agreement seek to resolve all matters in dispute concerning WJ's affairs, in an effort to protect his interests during his lifetime and upon his death including the division of the property and financial resources of WJ and DF due to their separation.
[46] The effect of the terms of the Deed of Settlement is, in summary:
(a) DF:
(i) will receive a lump sum of $3.7m and WJ's Range Rover vehicle, which are to be paid and transferred from WJ's assets (or from his estate if WJ dies before these transactions can be effected);
(ii) agrees to retire, resign or renounce from her role as attorney under the Medical EPA;
(iii) will sign a binding financial agreement in respect of relinquishing her rights and interests in respect of WJ's assets, including any interests in any trusts, under the family law jurisdiction;
(iv) will bear her own costs of and incidental to the proceeding;
(v) fully, finally and irrevocably disclaims any interest in WJ's assets, superannuation, and any interests in any trust that he may have;
(vi) fully, finally and irrevocably releases WJ (and his attorneys, legal personal representatives and assigns) from any claims she may have on any basis, including:
- (A) under any of WJ's wills;
- (B) against his estate, including a family provision application;
- (C) in respect of any property settlement orders as contemplated by the Family Law Act;
- (D) any distribution as a beneficiary of any trusts in which WJ has an interest,
(vii) fully, finally and irrevocably releases the Applicants from any claims she may have on any basis during WJ's lifetime and upon his death, and indemnifies the Applicants from any claims that may be brought by or on behalf of DF's Children in that regard;
(viii) agrees not to interfere with the exercise of discretion of the trustees in any of the trusts in which WJ has an interest,
(b) the Applicants will proceed with the application for a statutory will (and ancillary relief as contemplated by the present application) and DF will not oppose the relief sought;
(c) the Applicants, WJ's Children and DF's Children each provide mutual releases, discharges, disclaimers and indemnities (where relevant) so as to avoid (as much as is enforceable at law) the commencement or continuation of legal proceedings between the parties in relation to their interests in DF's and WJ's assets, interests and estates;
[47] The Applicants have obtained, and the Court has been provided with, advice in respect of the impact of the Deed of Settlement upon WJ's interests:
(a) a confidential opinion as to WJ's rights and interests in the family law jurisdiction in relation to the (voluntary or involuntary) separation from DF;
(b) a confidential financial analysis, comparison and projection of how the terms of the Deed of Settlement will impact upon WJ's financial security and his ability to meet his ongoing needs.
The Attorneys are justified in resolving the proceeding
[48] For the reasons set out below, I advise and direct the Applicants that they are justified in resolving the proceeding on the terms set out in the Deed of Settlement.
Judicial advice to Attorneys: legal principles
[49] In the parens patriae jurisdiction, the Court is empowered to exercise the delegated power of the Crown in discharge of the Crown's direct responsibility to look after those who cannot look after themselves.[1] It is a jurisdiction of theoretically unlimited scope, save as limited by statute,[2] but must be exercised according to the ordinary principles of a judicial enquiry.[3]
[50] Historically, this involved a form of substituted judgment by which the Court judged what was in the incapacitated person's best interests, including by consideration of what the incapacitated person would likely want done if capable of self-management.[4] Where an incapacitated person has executed an enduring power of attorney, the exercise of the protective jurisdiction involves a decision-making process stipulated by the Powers of Attorney Act 1998 (Qld) (PAA).[5]
[51] Section 109(1) of the PAA preserves the Court's inherent jurisdiction including its parens patriae jurisdiction and the powers it has other than under the PAA.[6]
[52] Pursuant to section 110 of the PAA an application can be made to the Court by a person's attorney for a declaration, order, direction, recommendation or advice about something in, or related to, the PAA.
[53] Section 118 of the PAA relevantly provides:
(1) On an application about a matter, the court may give directions or advice or make a recommendation, order or declaration about the matter or another matter related to this Act, including about -
(a) the interpretation of the terms of, or another issue involving, a power of attorney, enduring power of attorney or advance health directive; or
(b) the exercise of an attorney's power or another issue involving an attorney's power.
(2) Without limiting subsection (1), the court may, by order and subject to the terms the court considers appropriate, authorise an attorney, either generally or in a specific case, to undertake a transaction that the attorney is not otherwise authorised to undertake or may not otherwise be authorised to undertake, if the court is satisfied the transaction would be in accordance with the general principles.
(3) Also, if an attorney undertakes a transaction mentioned in subsection (2) that has not been authorised under that subsection, the court may retrospectively authorise the transaction.
(4) A transaction authorised under subsection (3) is taken to be, and to have always been, as valid as if it had been undertaken under an authorisation given by the court before the attorney undertook the transaction.
[54] The term "matter" reflects the nomenclature of the PAA relating to different categories of matters, including financial matters, personal matters and health matters.[7]
[55] Section 97 of the PAA affords protection to an attorney who acts in compliance with the Court's advice, directions or recommendations:
97 Protection if court advice, directions or recommendations
An attorney who acts in compliance with the court's advice, directions or recommendations is taken to have complied with this Act unless the attorney knowingly gave the court false or misleading information relevant to the court's advice, directions or recommendations.
[56] The issues for determination in an application contemplated by section 118 of the PAA fall for consideration in the exercise of the Court's protective jurisdiction.[8] An application under section 118(2) of the PAA requires the Court to be satisfied that the transaction would be in accordance with the general principles, which are set out in section 6C of the PAA.
[57] That the determination of an application under section 118(2) of the PAA requires consideration of the general principles is contemplated by the express words of that section. No such words feature in section 118(1) of the PAA. Nevertheless, having regard to the protective nature of the jurisdiction invoked by the PAA and the express wording of section 6C of the PAA, it is appropriate to consider and apply the general principles when determining an application under section 118(1) of the PAA.
[58] Section 6C of the PAA sets out the general principles in the following terms:
The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document -
An adult is presumed to have capacity for a matter.
(1) An adult's inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.
(2) The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult's capacity, must be recognised and taken into account.
(3) The principles on which an adult's human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include -
(a) respect for inherent dignity and worth, individual autonomy (including the freedom to make one's own choices) and independence of persons; and
(b) non-discrimination; and
(c) full and effective participation and inclusion in society, including performing roles valued by society; and
(d) respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and
(e) equality of opportunity; and accessibility; and
(f) equality between all persons regardless of gender.
The importance of the following matters must be taken into account -
(a) empowering an adult to exercise the adult's human rights and fundamental freedoms;
(b) encouraging and supporting an adult -
- to perform social roles valued in society; and
- to live a life in the general community and to take part in activities enjoyed by the community; and
- to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable;
(c) an adult's right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.
4 Maintenance of adult's existing supportive relationships
(1) The importance of maintaining an adult's existing supportive relationships must be taken into account.
(2) Maintaining an adult's existing supportive relationships may, for example, involve consultation with -
(a) the adult, to find out who are the members of the adult's support network; and
(b) any persons who have an existing supportive relationship with the adult; and
(c) any members of the adult's support network who are making decisions for the adult on an informal basis.
(3) The role of families, carers and other significant persons in an adult's life to support the adult to make decisions should be acknowledged and respected.
(1) The importance of maintaining an adult's cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.
(2) Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account.
(1) An adult's privacy must be taken into account and respected.
(2) An adult's personal information, including health information, must be protected on the same basis as other people's personal information is protected.
(1) An adult's right to liberty and security on an equal basis with others must be taken into account.
(2) An adult should not be deprived of the adult's liberty except in accordance with the law.
8 Maximising an adult's participation in decision-making
(1) An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life must be recognised and taken into account.
(2) An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult's life.
(3) An adult must be given the support necessary to enable the adult to communicate the adult's decisions.
(4) To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult's views, wishes and preferences.
(5) An adult's views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
(6) An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.
9 Performance of functions and exercise of powers
A person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must do so -
(a) in a way that promotes and safeguards the adult's rights, interests and opportunities; and
(b) in the way that is least restrictive of the adult's rights, interests and opportunities.
(1) In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must adopt the approach set out in subsections (2) to (5).
(a) recognise and preserve, to the greatest extent practicable, the adult's right to make the adult's own decision; and
(b) if possible, support the adult to make a decision.
(3) Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.
(4) Third, if the adult's views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult's views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult's views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult's views, wishes and preferences would be.
(5) Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function or exercise the power.
[59] The general principles are to be balanced appropriately according to the particular facts in each case.[9] In BP v PM,[10] Henry J observed that the guidance provided by the general principles is dependent on the incapacity of the adult in question and the nature of the consideration in question:
It is apparent from the general principles' content, set out at s 6C, that they were drafted to meet the full array of potential circumstances in which the Court or an attorney is performing a function or exercising a power. The guidance they provide will be of variable assistance depending upon the nature of the incapacity the relevant adult suffers and the nature of the decision in consideration.
[61] In determining whether the Applicants, in their capacities as attorneys, are justified in resolving the disputes between the parties on the terms contained in the Deed of Settlement, it is convenient for the Court to:[13]
(a) first, consider general principle 1 and the issue of capacity;
(b) second, consider the decision-making process set out in general principles 8 to 10; and
(c) third, return to general principles 2 to 7.
Do the terms of the Deed of Settlement accord with general principle 1?
[62] Pursuant to general principle 1, WJ is presumed to have capacity for matters.
[63] Capacity can involve matters of degree. For example, a principal with minor cognitive impairment may retain capacity for a simple, minor transaction but not for a transaction which is more complex or consequential.[14] As Applegarth J explained in Adamson v Enever & Anor,[15] capacity is therefore "decision specific".
[64] The evidence before the Court supports the conclusion that WJ does not have capacity for any relevant matters, including in respect of the Deed of Settlement. I accept the evidence:
(a) of the independent expert Dr Michael Leihy, geriatrician;
(b) contained in the letter from the Gold Coast University Hospital.
[65] I find that WJ does not have capacity for any matters relevant to the present application, including in respect of the Deed of Settlement.
Do the terms of the Deed of Settlement accord with general principles 8 to 10?
[66] General principle 8 promotes an adult's right to make or participate "to the greatest extent practicable" in decisions affecting the adult's life by providing that "to the greatest extent practicable" a person or other entity in exercising power for a matter for an adult "must seek the adult's views, wishes and preferences".
[67] However, a decision-maker's experience and or knowledge of an adult's degree of cognitive impairment may support the conclusion it is not practicable to seek the adult's views, wishes and preferences.[16] Views, wishes or preferences deriving from deficient or erroneous comprehension are irrelevant.[17]
[68] In this case, WJ's significant cognitive impairment is such that it is not practicable to seek his views, wishes and preferences in respect of the Deed of Settlement.
[69] General principle 8 also requires the provision of the support and access to information necessary for the adult to make, communicate and participate in decisions affecting the adult's life. The premise of such a requirement is that the adult is able to make a decision about a matter. General principle 8(6) precludes treating the adult as "unable" to make a decision about a matter "unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision".
[70] In the present case, WJ's cognitive impairment is so significant that he is beyond the reach of any practicable steps that could provide him with support and access to information necessary for him to make and communicate a decision of the present kind. It follows for the purposes of principle 8 that I treat WJ as unable to make any decision relevant to the Deed of Settlement.
[71] General principle 9 requires that in performing the function or exercising the power the decision-maker must do so in a way that promotes and safeguards and is least restrictive of the adult's rights, interests and opportunities.
[72] Given how significantly WJ's cognitive capacity is impaired, this principle does not relate in any practical sense to the process part of dealing with him prior to arriving at the decision.[18] Rather, it relates to the content of the decision to be reached. In this context, the best treatment of WJ's rights and opportunities aligns with a decision that promotes, safeguards and is least restrictive of WJ's interests.[19] To have that quality, the decision should be in WJ's interests and be more in his interests than the status quo or some other apparently available course. That is, the decision should be in his best interests.[20] Having regard to the content of the Deed of Settlement, the decision whether to give effect to the terms of the Deed of Settlement is largely a decision about a financial matter such that consideration of what is in WJ's best interests requires consideration of what is in his financial best interests.[21]
(a) the matters set out in the confidential opinion of Michael Small provided to the Court, that concludes that the terms of the Deed of Settlement are in WJ's interests from a family law perspective;
(b) the confidential financial analysis, comparison and projection prepared by Peter Whelan, that concludes that the terms of the Deed of Settlement will not adversely impact upon WJ's ability to meet his ongoing needs for the remainder of his prospective lifetime;
(c) the significant costs that would be incurred in continuing to engage in contested litigation in respect of WJ's personal and financial interests, both during his life and potentially upon his death;[22]
(d) the fact that the effect of the Deed of Settlement is to finalise all matters concerning WJ's personal and financial interests during his lifetime and upon his death,
I find that the terms of the Deed of Settlement are in WJ's best financial interests.
[74] Other than WJ's financial interests, the only other consideration with the potential to bear upon whether the proposed transaction is in WJ's best interests is his emotional well-being, having regard to the nature of the allegations exchanged between DF and WJ's Children. It is, however, an inescapably vague consideration because of WJ's significantly impaired cognition. Insofar as WJ might suffer emotional distress as a consequence of his personal and financial matters being litigated in Court, which would necessarily involve a critical analysis of the actions of those closest to him, that is likely to be outweighed by the comfort he would draw from the knowledge that the issues in dispute have been resolved on terms which are in his best financial interests and agreed to by those involved and affected.
[75] For all of these reasons, giving effect to the Deed of Settlement is more in WJ's interests than preserving the status quo or pursuing any other available course. As such, I conclude that the terms of the Deed of Settlement are in WJ's best interests.
[76] General principle 10 provides that a four-stage approach is to be adopted in applying general principle 9. In summary:
(a) first, WJ's right to make his own decisions must be recognised and preserved to the greatest extent practicable, and, where possible, WJ should be supported in making the decision;
(b) second, WJ's views, wishes and preferences (expressed or demonstrated) must be taken into account;
(c) third, if WJ's views, wishes and preferences cannot be determined, the principle of substituted judgment must be used so that if, from WJ's views, wishes and preferences when he had capacity, it is reasonably practicable to work out what his views, wishes and preferences would be now, that should be taken into account;
(d) fourth, having taken into account stages one to three above, the power may be exercised on WJ's behalf.
[77] In BP v PM, Henry J observed that there were two points to be taken into account when applying the second and third stages:[23]
Firstly, their references to the adult's "views, wishes and preferences" do not specify the topic to which the views, wishes and preferences relate. Considering the context in which those references occur, they should not be read narrowly as "views, wishes and preferences as to the decision". The matter to be decided may have some complexity yet that narrow interpretation would require synchronicity between the views, wishes and preferences and the whole of the content of the decision. It would thus exclude regard to views, wishes and preferences that might relate only to some aspect of the decision or a topic of relevance to its subject matter. Such an exclusion would be at odds with the emphasis on inclusivity in the general principles. The correct interpretation is that the words "views, wishes and preferences" mean the "views, wishes and preferences of relevance to the matter to be decided". That interpretation reflects the context in which the words are used. It is also consistent with stage 3's contemplation of regard to views, wishes and preferences held in the past, when the whole of the content of the decision now in contemplation was unknown but views, wishes and preferences about topics of relevance to the matter to now be decided may have been known.
The second point, flowing from the first, is that despite first blush appearances, the second and third stages are not mutually exclusive alternatives to each other, as if the former applies where the adult's present views, wishes and preferences are known and the latter applies where they are not. In this context it is to be borne in mind that the nature and consequences of a transaction requiring authorisation may involve a broad array of elements. The second stage refers to "any" views, wishes and 16 preferences "expressed or demonstrated by the adult". "Any" views, wishes or preferences so expressed or demonstrated will not necessarily relate comprehensively to the whole of the content of the decision and may only be relevant to some aspect of the decision or a topic of relevance to its subject matter. It may thus remain that the adult's views, wishes and preferences of relevance to other aspects of the transaction's nature or subject matter or indeed to the whole of its nature and consequences "can not be determined", allowing recourse to the substituted judgment process referred to in the third stage. Such an interpretation also rests comfortably with each such stage involving the stipulated process of the decision-maker recognising and taking into account, rather than being bound by, the views, wishes and preferences ascertained in each stage.
(a) as to the first stage, while all parties recognise WJ's right to make his own decisions, the state of his significant cognitive impairment precludes him from making his own decisions, or being supported in such a way that he could do so;
(b) as to the second stage, given WJ's significant incapacity, his current views, wishes and preferences cannot properly be ascertained or taken into account;
(c) as to the third stage:
(i) the evidence before the Court suggests that WJ has previously:
- (A) expressed a desire to generally keep his finances separate from DF's;
- (B) expressed concerns as to DF's intentions and control in respect of his finances;
- (C) expressed his desire to separate from DF;
- (D) provided instructions to make a new will, which excluded DF and DF's Children,
(ii) DF disputes that WJ had capacity in respect of these matters, and otherwise contends that such expressions and instructions were the product of undue influence by WJ's Children;
(iii) the effect of the evidence of Ms Wolff (family law solicitor) and Dr Leihy (expert geriatrician) are that WJ at the relevant time had sufficient capacity to decide to separate from DF;
(iv) the Court has not had the benefit of cross-examination to test the veracity and weight of the parties' evidence in order to determine whether in fact WJ had capacity to express the matters in (i) above;
(v) the only clear view, wish or preference expressed or demonstrated by WJ, at a time when he did have capacity and it is not suggested that he was, or was susceptible to being, unduly influenced was:
- (A) in August 2019, WJ raised concerns with one of DF's friends that "DF did not love him anymore" and "that he was worried about the possibility that DF was just in the relationship for the money";
- (B) in September 2019, DF appointed Martin, Peter and 2D as his enduring powers of attorney for financial and personal matters, and directed that they could act by a majority;
- (C) in each of WJ's wills, he appointed Martin and Peter as his executors,
(vi) in the circumstances, WJ entrusted Martin and Peter (and 2D) to make decisions on his behalf in respect of financial and personal matters, and entrusted Martin and Peter to administer his estate upon his death;
Do the terms of the Deed of Settlement accord with general principles 2 to 7?
[79] In respect of the remaining general principles:
(a) general principle 2 requires that WJ's rights and freedoms, and the principles on which they are based, be recognised and taken into account, with particular regard to considerations such as non-discrimination and equality and, of particular relevance in the present case, respect for "individual autonomy (including the freedom to make one's own choices)".[25] I consider that the Applicants have undertaken comprehensive steps to ascertain and take into account WJ's rights and freedoms, including his individual autonomy. However, WJ's significant cognitive impairment precludes him from having sufficient comprehension of the nature and consequences of the terms of the Deed of Settlement as to be able to make his own choice in the matter;
(b) general principle 3 requires the importance of matters listed in its subsections (a) to (c) to be taken into account. Subsections (b) and (c) are of no relevance to this case. As to subsection (a), its contextual relevance to the present case relates to promoting WJ's autonomous decision-making. However, as stated above, there is nothing which can be done to empower WJ to regain the capacity needed for him to have sufficient comprehension of the nature and consequences of the terms of the Deed of Settlement so as to be able to make his own choice in the matter;
(c) general principle 4 requires account to be taken of the importance of maintaining WJ's existing supportive relationships and, more relevantly at sub-section (3), the "role of families ... to support the adult to make decisions should be acknowledged and respected". The fact that WJ's long-time trusted professional advisors (Martin and Peter) and all members of WJ's immediate family (WJ's Children, DF, and DF's Children) have signed the Deed of Settlement and agree to be bound by its terms evidences the support and involvement of WJ's existing supportive relationships in resolving the various disputes in issue and thus does take into account the importance of WJ's relationship with each of these people;
(d) general principle 5 has no relevance to the terms of the Deed of Settlement;
(e) general principle 6 is taken into account in the orders sought by the Applicants in respect of sealing the Deed of Settlement and the confidential opinions provided to the Court, and of anonymising the eCourts records and any published reasons of the Court. That respects and gives effect to WJ's right to privacy;
[80] In the circumstances, I find that the terms of the Deed of Settlement accord with general principles 2 to 7.
Should the Court exercise its discretion to advise and direct that the Applicants are justified in giving effect to the Deed of Settlement?
[81] For the reasons set out above, I find that the terms of the Deed of Settlement accord with the general principles, thus enlivening the Court's power in the exercise of its discretion, to advise or direct that the Applicants are justified in giving effect to the Deed of Settlement. That power ought be exercised. I will order pursuant to section 118 of the Powers of Attorney Act 1998 (Qld) that the Applicants are advised and directed that they are justified in compromising this proceeding on the terms contained in the Deed of Settlement signed by the parties on 13 February 2026.
[82] Section 21 of the Act provides:
(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.
(a) the person to whom the order relates (the relevant person) lacks testamentary capacity and is alive when the order is made; and
(b) the court is satisfied:
(i) the applicant is the appropriate person to make the application; and
(ii) adequate steps have been taken to allow representation of other persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the relevant person; and
(iii) the proposed will, alteration or revocation is or may be a will, alteration or revocation the relevant person would make if the person had testamentary capacity; and
(c) the court approves 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 the application be paid out of the relevant person's assets.
(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.
person without testamentary capacity includes a minor.
[83] To enable the Court to make an order under section 21 of the Act, the applicant must give the Court certain information prescribed in section 23, that includes:
(a) evidence of the lack of testamentary capacity and the likelihood of the person ever regaining capacity;
(b) the size and character of the estate;
(c) a draft proposed will;
(d) any evidence of the person's wishes;
(e) evidence of any previous will;
(f) evidence pertaining to the likelihood of a family provision application;
(g) evidence relevant to gifts which the person might have given to charities or otherwise;
(h) evidence as to whom the person might have been expected to provide for under their will;
(i) evidence of any persons who might be entitled to claim on intestacy;
(j) any other relevant facts.
[84] On the hearing of an application under section 21, section 25 of the Act provides that the Court:
(a) may have regard to any information given to the Court under section 23;
(b) may inform itself of any other matter relating to the application in any way it considers appropriate;
(c) is not bound by the rules of evidence.
[85] In Re Fenwick; Application of J R Fenwick; Re 'Charles',[26] the Supreme Court of New South Wales considered a similar statutory framework, and observed:
The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under Pt 2.2 Div 2 of the Succession Act. It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the judge is not a referee; rather, the judge is to endeavour to rectify a problem which is affecting people's lives, in the best possible way. It is for this reason that s 21 provides that, in hearing an application for an order under s 18 (as distinct from an application for leave under s 20(1)(a)), the Court may inform itself of any matter, in addition to the information provided under s 19, in any manner the Court sees fit. Further, in hearing an application, the Court is not bound by the rules of evidence.
For example, the Court may have reservations about the impartiality of an expert medical witness, even though there is no other party to the proceedings who wishes to contest testamentary incapacity. The Court may, in such a case, insist on seeing and hearing the patient for itself. It may require a report from a court appointed expert. Indeed, the Court is more likely to feel the need to use the investigative power expressly conferred on it by s 21(b) in a case where there is no apparent opposition to the application than in a case where the application is opposed by a party legally represented and able to adduce contradictory evidence.
[86] Applications for statutory wills can be generally sorted into three categories,[27] and this case is one that falls into the "lost capacity" category where the incapacitated person previously had testamentary capacity.
... an order authorising a will to be made on behalf of the person requires proof that the person lacks testamentary capacity. If that and the other requirements of s 21 are satisfied then the Court exercises a broad and flexible jurisdiction, and the Court may make the order on the conditions the Court considers appropriate.
The discretion at the second stage is not constrained by express statutory criteria. Instead, the discretion should be exercised in the particular circumstances and having regard to the purpose of the legislation. Having regard to 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. Other considerations will apply in the particular circumstances, and the legislature having not listed factors, it is inappropriate and unhelpful to articulate the factors which might influence a discretion of the kind conferred by s 21.
[88] As such, the appropriate test to be applied is whether the Proposed Will is a will WJ "probably would" make if he had testamentary capacity.[30]
Information required in support of application: s. 23
Reason for making the application - s. 23(a)
[89] There are three primary reasons why the present application is required:
(a) first, the 2024 will does not reflect the change in WJ's personal circumstances since that will was made;
(b) second, WJ had expressed to Mr Simmonds an intention to change his will to exclude DF in light of their separation, but was unable to finalise such intention before he lost testamentary capacity;
(c) third, there is no formal process available to WJ (or his guardians) to formalise his separation from DF, as is available to couples who are married and wish to divorce. This impacts upon WJ's succession planning given there is a dispute in the present proceeding as to whether WJ's de facto relationship with DF has ended, and thus her rights in both the family law jurisdiction and under the Act remain the subject of potential litigation. If WJ died while this dispute remains unresolved, litigation involving WJ's estate would be likely to ensue, largely at the cost of WJ's estate, to determine whether DF is WJ's surviving de facto spouse or not.
[90] It is therefore necessary for an application to be made on behalf of WJ for the making of a statutory will.
Lack of testamentary capacity - ss. 23(b) and (c)
[91] The classic statement of what constitutes testamentary capacity was set out by Cockburn CJ in Banks v Goodfellow as follows:[31]
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[92] For a person to rightly understand these matters, it is essential that his or her mind be free "to act in a natural, regular, and ordinary manner".[32]
[93] In Re Fenwick, Palmer J explained at 49 [126] to [127] that, absent urgency or some compelling reason, the best evidence available as to the purported lack of testamentary capacity is usually that of a specialist professional, for example a psychiatrist, consultant physician or clinical psychologist who has recently examined the incapacitated person and who expresses an opinion in a report compliant with the expert witness rules of conduct. Palmer J continued at 50 [130]:
The level of satisfaction that a court must feel as to the essential requirement of permanent testamentary incapacity must have regard to the gravity of the power being exercised and to its consequences: cf Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. If no more than the minimum level of proof of testamentary incapacity is demonstrated by an applicant at the leave stage, when better proof would be expected, the application may survive [the leave stage] but may founder at [the substantive stage].
[94] I accept the evidence of Dr Leihy that supports the conclusion that WJ does not have testamentary capacity to make a new will or revoke or appoint new or alternative attorneys:
While he has been clear and consistent with me in stating that he would like to change his will and Enduring Power of Attorney for medical decisions (which currently sits with DF), he has not been able to adequately demonstrate testamentary capacity or capacity to change his Enduring Power of Attorney. I attempted Addenbrooke's Cognitive Examination on 6 May 2025, but WJ was unable to complete it. He scored 8/21 with significantly impaired attention (7/18) and recall (1/3). WJ can express simple preferences such as wanting to remain in Queensland with family and not wanting to return to his previous living situation or partner, but he has not been able to demonstrate sufficient understanding for more complex decisions. I will continue to work with WJ and his family to optimize his medications and give him the best opportunity to engage in his own decisions. However, given the trajectory, it is unlikely that WJ will be able to regain sufficient mental capacity to make complex health, lifestyle or financial decisions.
[95] The most recent correspondence issued by Dr Dinesh Karunaratne (geriatrician/ general physician) at the Gold Coast Hospital and Health Service stated that WJ was deemed to lack decision-making capacity on 22 September 2025 and that he now requires constant observation because of his behaviour and fall risk. I accept that evidence.
[96] I find that WJ lacks the requisite testamentary capacity for the purposes of sections 23(b) and (c) of the Act.
Size and character of the estate - s. 23(d)
[97] WJ's assets equate to about $9.1 million, comprising one real property, shares in a company, and cash.
Proposed will - s. 23(e)
[98] The terms of the Proposed Will are in similar terms to his 2024 and 2023 wills. The only changes are:
(a) the deletion of:
(i) the trust to which WJ had previously gifted assets for the primary benefit of DF and DF's Children;
(ii) the gift of WJ's superannuation to DF,
(b) the addition of a gift to DF in the sum of $3.7 million unless paid to her by WJ's attorneys during WJ's lifetime.
[99] The simple effect of the Proposed Will is therefore to:
(a) reflect the terms of the Deed of Settlement and ensure that DF receives a payment from WJ's assets, whether inter vivos or on his death (but expressly not both), which has regard to their long relationship and recent separation;
(b) otherwise, divide WJ's estate between his three children.
Evidence of WJ's wishes - s. 23(f)
[100] Mr Simmonds prepared the Proposed Will on WJ's instructions. However, it was not finalised because WJ relocated to Queensland, retained lawyers in Queensland, and was subsequently assessed as lacking testamentary capacity.
[101] DF refutes that WJ had capacity at the time he provided instructions to Mr Simmonds, or otherwise contends that WJ was unduly influenced by WJ's Children (which is denied by WJ's Children).
[102] The instructions provided by WJ to Mr Simmonds did not contemplate a property settlement with DF as a result of any separation. However, that such a settlement would be required (but not the details of same) was discussed with WJ by Ms Wolff, his family law solicitor.
[103] Given WJ's deterioration in cognitive health from about May 2025 onwards, it has not been possible for WJ to make a new will or to otherwise resolve financial separation from DF.
Any previous wills by WJ - s. 23(g)
[104] WJ made six previous wills between 2020 and 2024. Each of those wills:
(a) were made in the course of his relationship with DF;
(b) appoint the Applicants as his executors;
(c) create four testamentary trusts for the primary benefit of DF and DF's Children, and WJ's Children.
Any evidence of likelihood of family provision application - s. 23(h)
[105] Having regard to Part 4 of the Act, and particularly sections 40 and 41, the persons eligible to apply for provision against WJ's estate are:
(a) WJ's Children;
(b) DF, if she satisfies the definition of de facto spouse pursuant to section 5AA of the Act and section 32DA of the Acts Interpretation Act 1954 (Qld);
(c) DF's Children, if DF satisfies the definition of de facto spouse as above.
[106] None of the above parties have filed any evidence of their intention to commence family provision applications against WJ's estate upon his death. Indeed, by the terms of the Deed of Settlement, DF and DF's Children expressly release WJ's estate from such claims.
Gift for a charitable or other purpose - s. 23(i)
[107] None of WJ's previous six wills make any provision for any charitable gifts. Similarly, the Proposed Will makes no such gifts.
Circumstances of persons for whom provision might be expected to be made - s. 23(j)
[108] The people who may reasonably be expected to be provided for from WJ's estate are:
(a) WJ's Children;
(b) DF, if the circumstances at the time of death were that WJ had separated from DF but no property settlement had been finalised following the separation.
[109] There is limited information before the Court as to the personal and financial circumstances of each of those persons. But the information that is available does not indicate that any of them are in need of financial assistance.
Persons entitled on intestacy - s. 23(k)
[110] In the circumstances of WJ's separation from DF, the people who would be entitled to WJ's estate if he died intestate are WJ's Children.
[111] However, if the Proposed Will was not made, the 2024 will would likely be admitted to probate (or another of the five other wills WJ has made) such that it is highly unlikely that WJ would die intestate.
Any other relevant facts - s. 23(l)
(a) DF's will, made in 2012, leaves her entire estate to DF's Children, save for a conditional portable right to reside which was gifted to WJ in respect of the Albert Park Property;
(b) since DF made her will:
(i) WJ transferred his 50% interest in the Albert Park Property to DF;
(ii) WJ has signed a deed of gift in respect of gifts to DF's Children in the sum of $200,000 each;
(iii) DF has since sold the Albert Park Property and retained the entire proceeds of sale,
(c) DF's evidence is that she and WJ generally always kept their assets and finances separate, other than the Albert Park Property.
[113] Those matters further supports the conclusion that the Proposed Will is a will WJ probably would make if he had capacity, irrespective of the formal or legal status of his relationship with DF, because:
(a) it has the same effect as DF's will, whereby each of DF and WJ largely leave their estates to their respective children;
(b) the specific gift to DF is reflective of WJ's historical testamentary intentions to gift DF something from his estate bearing in mind the length of their relationship;
(c) it is otherwise consistent with the history of DF and WJ generally keeping their assets and finances separate.
The Court would be justified in authorising the Proposed Will: s. 21
[114] Pursuant to section 21(2) of the Act, and taking into account the matters in section 23, the Court may only make an order authorising a will on behalf of WJ if:
(a) WJ lacks testamentary capacity and is alive: s. 21(2)(a);
(b) it is satisfied that:
(i) the Applicants are the appropriate persons to make the application: s. 21(2)(b)(i);
(ii) adequate steps have been taken to allow representation of other persons with a proper interest in the application: s. 21(2)(b)(ii);
(iii) the Proposed Will is or may be a will that WJ would make if WJ had testamentary capacity: s. 21(2)(b)(iii);
(c) the Court approves the Proposed Will: s. 21(2)(c).
Does WJ lack testamentary capacity? s. 21(2)(a)
[115] The medical evidence before the Court, which I accept, supports the conclusion that WJ does not have testamentary capacity. WJ remains alive.
Are the Applicants the appropriate persons to make the application? s. 21(2)(b)(i)
[116] An appropriate person is typically a close family member and may be a guardian (i.e. someone with a personal connection and knowledge of the incapacitated person) as opposed to a stranger or officious bystander.[33]
[117] The Applicants are appropriate persons to make the application because:
(a) they have both known WJ personally and professionally for many years;
(b) they have both been involved in and advised WJ regarding his financial affairs and estate planning;
(c) they are both appointed under the EPA as his financial and personal attorneys;
(d) they have been named as executors in each of WJ's six previous wills, and the Proposed Will;
(e) they do not benefit under any of the previous wills, or the Proposed Will (save that they are entitled to charge remuneration as professional executors/trustees).
Have adequate steps been taken to serve all persons with a proper interest in the application? s. 21(2)(b)(ii)
(a) "the applicant should take all steps necessary to identify, locate, and serve any person with a legitimate interest in the application";
(b) "the class of persons may be wider than 'persons for whom provision might reasonably be expected to be made by the will'" and is "likely to include ... any person entitled on intestacy" and "persons who may have a claim on the bounty of the person lacking capacity".
[119] At [126], Hallen J accepted the following statement of principle set out by Millet J in Re B (Court of Protection: Notice of Proceedings):[36]
... First the court must be satisfied before it exercises a judicial discretion that it has all the relevant material before it and that it has heard all the arguments which can properly be canvassed and which are directed to the question to be determined. Second all persons materially affected should be given every opportunity of putting their cases forward. Of course there will be exceptional cases in which it will be right to exclude a party from the proceedings, notwithstanding the fact that he is a party interested. Plainly delay, cost, embarrassment and the exacerbation of family dissensions are all relevant matters. But only in the most exceptional circumstances should the consideration to which I have referred be overridden ... I approach this matter on the basis that the court has a general discretion concerning notification, but that it is one which must be exercised in relation to the facts of each particular case. In the ordinary case, and in the absence of emergency or need to act with great speed or of some other compelling reason, all persons who may be materially and adversely affected should be notified.
[120] The people with a proper interest in the application are WJ's Children, DF and DF's Children. WJ's Children and DF have been served and have taken an active part in the proceeding. There is evidence, that I accept, that each of DF's Children are aware of the proceeding and each has signed the Deed of Settlement.
[121] WJ's Children consent to the relief sought. DF and DF's Children do not oppose the relief sought.
Is the Proposed Will a will WJ probably would make if he had testamentary capacity? s. 21(2)(b)(iii)
[122] The appropriate test is whether the Proposed Will is a will that WJ probably would have made if he had testamentary capacity. It is an objective test as to whether a reasonable person in WJ's circumstances probably would make the Proposed Will if he had capacity.
...if [the incapacitated person] came to make a will in the hypothetical circumstances, that her physical life were largely as it is and has been in the past, but she had testamentary capacity, and was aware of the surrounding circumstances, she would likely consider the will to be appropriate.
[124] I am satisfied that if WJ's life was largely as it is and had been, but he had testamentary capacity, he probably would make a will in the terms of the Proposed Will.
Should the Court approve the Proposed Will? s. 21(2)(c)
[125] In the above circumstances, I approve the Proposed Will.
The Court would be justified in changing the Medical EPA
Changing enduring documents: legal principles
[126] In Lambourne v Marrable,[39] Martin SJA comprehensively summarised the principles relevant to whether a person has capacity to make and revoke enduring documents.
(a) remove an attorney and appoint a new attorney to replace the removed attorney; or
The court is not limited to appointing an eligible attorney (defined in section 29).
(b) remove a power from an attorney and give the removed power to another attorney or to a new attorney; or
(c) change the terms of a power of attorney, enduring power of attorney or advance health directive; or
(d) revoke all or part of a document mentioned in paragraph (c).
[128] In considering whether to make an order pursuant to section 116 of the PAA, the Court can have regard to a change in the adult's circumstances pursuant to section 117 of the PAA that provides:
Without limiting the grounds on which the court may make an order changing the terms of a power of attorney, enduring power of attorney or advance health directive, or revoking all or part of 1 of these documents, the court may make the order if the court considers the principal's circumstances or other circumstances (including, for a health power, advances in medical science) have changed to the extent that 1 or more terms of the document are inappropriate.
[129] Although they were both made in Victoria, the EPA and Medical EPA are recognised as valid documents under Queensland law.[40]
[130] The Medical EPA appoints DF as the primary agent charged with making decisions as to WJ's medical treatment. 2D is the alternate agent. As the alternate agent, 2D can only act under the Medical EPA if DF is "dead, incompetent or cannot be contacted or [her] whereabouts are unknown".[41]
[131] DF remaining as WJ's agent for medical decisions is not consistent with or reflective of his change in personal circumstances, not only because of his separation from DF but also because he now resides in Queensland and is in geographical proximity to 2D rather than DF.
[132] Although the PAA provides that divorce and termination of a civil partnership revoke an enduring document to the extent it gives power to the principal's divorced spouse or previous civil partner,[42] there is no provision dealing with the cessation of a de facto relationship.
[133] As such, notwithstanding WJ's separation from DF, she remains empowered to make decisions in relation to WJ's medical treatment under the Medical EPA.
[134] I find that WJ does not have capacity to either revoke the existing enduring documents or make new enduring documents. In particular, I accept the evidence of Dr Leihy that WJ "is not capable of making EPA freely and voluntarily and cannot understand the nature and effect of EPA".
[135] Although WJ's Attorneys have been appointed in respect of personal and health matters, they are not permitted to make decisions on WJ's behalf in respect of "special personal matters", which include "making or revoking an enduring power of attorney or advance health directive".
[136] Pursuant to section 116 of the PAA, the Supreme Court may remove an attorney, appoint a new attorney, or change the terms of an enduring power of attorney. The Supreme Court also has inherent power, in its parens patriae jurisdiction, to supervise and protect the interests of persons with impaired capacity, such as WJ.
[137] In the circumstances I will remove DF from the Medical EPA such that 2D is the sole remaining attorney.
[138] In the events that have occurred since the commencement of the proceeding, and having regard to the broad nature of the relief sought in the present application, it is appropriate to change the Applicants and the corresponding court heading:
"MARTIN RICHARD WHITEHEAD and PETER JOHN WHELAN pursuant to Part 2 (sections 21 to 28) of the Succession Act 1981 (Qld) for the authorisation of the making of a Will on behalf of WJ"
"MARTIN RICHARD WHITEHEAD and PETER JOHN WHELAN as attorneys for WJ"
[139] That is appropriate and necessary to avoid any inconsistency with, or challenge to, the nature of the relief sought and the capacity in which the Applicants seek such relief.[43]
[140] In addition to the relief addressed above, the Applicants also seek orders that:
(a) any copy of the Court's reasons in this proceeding published on the Court's judgment website or in any other publication made to, or accessible by, the general public or a section of the public, be in an anonymised form;[44]
(b) the parties' names appearing on the Court's electronic file of this proceeding be anonymised.[45]
[141] Non-identification orders are commonly made in cases concerning a person's testamentary and personal financial affairs.[46]
[142] In SPM v LWA,[47] Henry J held that such orders ensure public access and open justice whilst also protecting the "truly private affairs" of an individual.
[143] In Re OSD (which involved various competing interests concerning the affairs of an incapacitated person, including relief sought under the PAA, the Act and the Trusts Act 1978 (Qld)), Muir J cited SPM v LWA with approval and made orders anonymising the parties to "protect the dignity and privacy of [the incapacitated person], as a person under a legal disability, in relation to her personal testamentary and financial affairs".[48]
[144] The orders sought are appropriate in the present case in order to protect the dignity and privacy of WJ, as a person under a legal disability, in relation to his personal testamentary affairs, and accord with general principle 6.
[145] As litigation guardians, the Applicants have a right of indemnity to WJ's assets for all costs reasonably and properly incurred in this proceeding.[49] Section 21(5) of the Act also empowers the Court to order that the costs in relation to the application for a statutory will to be paid out of WJ's assets.
[146] Pursuant to section 125 of the PAA, the costs of a proceeding under the PAA are within the Court's discretion but follow the event unless ordered otherwise. Rule 681 of the UCPR is in similar terms.
[147] The present application was required in circumstances where:
(a) the 2024 will does not reflect the recent, and significant, changes in WJ's personal circumstances. A distribution under the 2024 will is unlikely to be consistent with WJ's wishes if he had testamentary capacity to properly and legally express those wishes, having regard to the evidence before the Court;
(b) the Medical EPA does not reflect WJ's change in circumstances;
(c) WJ and DF have not commenced proceedings in the family law jurisdiction in respect of their separation.
[148] Neither of the Applicants stand to personally benefit from the relief sought, whether granted or dismissed. The Applicants have at all times acted reasonably and properly for the benefit of WJ, such that it is reasonable for the Applicants' costs of the proceeding, and all interlocutory applications and reserved costs, to be paid from WJ's assets. Such a conclusion was reached by Muir J in Re OSD.[50]
[149] It is appropriate that DF, WJ's Children and DF's Children bear their own costs of the proceeding including all interlocutory applications and reserved costs to avoid an additional burden on WJ's resources, in circumstances where each of their participation in the proceeding was largely in respect of their own interests.
[150] In the exercise of the Court's discretion in respect of costs, it is particularly relevant that the burden of the parties' costs of and incidental to this proceeding is a matter agreed pursuant to the Deed of Settlement.
[1] Secretary, Department of Health and Community Services v JWB & SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 at 259.
[2] Wellesley v Wellesley (1828) 4 ER 1078 at 1085; Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627 at 637.
[4] Ex Parte Whitbread in the Matter of Hinde, a Lunatic [1816] EngR 868; (1816) 2 Mer 99; 35 ER 878, cited with approval in BP v PM [2022] QSC 268; (2022) 12 QR 502 at 519 [23] per Henry J.
[5] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 519 [23] per Henry J.
[6] Re: OSD; SMA v FJX; OSD v ABJ (Re OSD) [2023] QSC 264 at [53] per Muir J.
[7] See PAA Schedule 2 "Types of Matters"; BP v PM [2022] QSC 268; (2022) 12 QR 502 at 520 [31].
[9] Re HG [2006] QGAAT 26 at [67].
[10] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 520 [29].
[13] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 520 [29].
[14] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 520 [31].
[15] [2021] QSC 221; (2021) 9 QR 33 at 38 [6].
[16] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 522-523 [40].
[17] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 522-523 [40].
[18] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 523 [43].
[19] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 523 [43].
[20] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 523 [43].
[21] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 524 [44].
[22] For example, disputes as to the validity of the deed of gift by reason of capacity or undue influence, disputes as to whether DF is WJ's surviving de facto spouse for the purposes of her rights under the Succession Act 1981 (Qld) (i.e. s. 15B and s. 41), disputes as to the eligibility of DF's Children under the Succession Act 1981 (Qld) (s. 41).
[23] BP v PM [2022] QSC 268; (2022) 12 QR 502 at 528-529 [68]- [69].
[24] Other than, of course, avoiding significant, protracted disputes against and on behalf of WJ if the matters in dispute are not resolved.
[25] BP v PM [2022] QSC 268; (2022) 12 QR 502 at [85].
[26] [2009] NSWSC 530; (2009) 76 NSWLR 22 (Re Fenwick) at 50 [132]-[133] per Palmer J.
[29] [2017] QSC 201 at [124]- [125] (footnotes omitted).
[30] See also MZY v RYI [2019] QSC 89 at [201].
[31] (1870) LR 5 QB 549 at 565.
[32] In the Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197 at 199, approved by Dixon J in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283.
[33] Re Application by Knight (2020) 42 NTLR 80 at 92-92 [51].
[36] [1987] 1 WLR 552 at 556-557.
[39] [2023] QSC 219; (2023) 17 QR 198 at 215-219 [42]- [57].
[41] Medical Treatment Act 1988 (Vic) s. 5AA.
[43] For example, to avoid an argument that the Applicants do not have standing to seek the relief under the PAA because they have not expressly commenced the proceeding as WJ's attorneys, but rather in the statutory will jurisdiction.
[44] Consistent with the order made by Wilson J in MZY v RYI [2019] QSC 89.
[45] Consistent with the order made by McMeekin J in CDG v Siganto [2018] QSC 11.
[46] Re OSD at [103] per Muir J. See also MZY v RYI [2019] QSC 89 at [257] per Wilson J; SPM v LWA [2013] QSC 138 per Henry J; Re JT [2014] QSC 163 at [41] per A Lyons J; RKC v JNS [2014] QSC 313 per Philippides J.
[48] Re OSD at [104]-[105] per Muir J.
[49] NSW Insurance Ministerial Corp v Abualfoul [1999] FCA 433; (1999) 94 FCR 247 at [28]. See also Steeden v Walden [1910] 2 Ch 393 at 398-400.
(2009) 76 NSWLR 22
(1992) 175 CLR 218
(1938) 60 CLR 336
(1941) 66 CLR 277
(2020) 42 NTLR 80
(1999) 94 FCR 247
(d) WJ's Children and DF's Children will bear their own costs of and incidental to the proceeding;
(e) the Applicants' costs of and incidental to the proceeding are to be paid from WJ's assets.
(vii) the views and judgments of Martin and Peter, as WJ's long-term professional advisors, should therefore be afforded significant weight in the Court's consideration and determination of this application. This is particularly so given they do not stand to personally benefit from the terms of the Deed of Settlement,[24]
(d) as to the fourth stage, having recognised and taken into account the matters contemplated by stages one to three, I conclude that the Applicants would be justified in giving effect to the terms of the Deed of Settlement, subject to the application of the remaining general principles, addressed below.
(f) general principle 7 has no relevance to the terms of the Deed of Settlement.