A Queensland Court has ruled on the terms of a will it declared should be made for a 50-yr-old woman left catastrophically injured by a 2015 motor vehicle accident and awarded $10 million in CTP compensation as a result.

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The woman – whose identity has been suppressed – suffered almost complete paraplegia such that her only bodily control is to move her head slightly from side to side.

Although unable to speak, she has some vocal expression that family members can interpret to a limited extent. She has no effective communication with others.

Trustee company Perpetual was appointed to administer the compensation in April 2018 and her youngest son – who performs the role of her principal carer – is responsible for the administration of all her other financial affairs.

The woman – to whom the court allocated the pseudonym “SB” – resides in a purpose built home with her husband, their youngest children (2 sons, and 1 daughter) and the daughter’s family. Those children are all involved in day-to-day caring for their mother.

Her litigation guardian – with the support of her three youngest children – applied to the Supreme Court for a will to be made on her behalf on the grounds she lacked “testamentary capacity” to make one for herself.

She had no prior wills and had never discussed to whom she would leave her estate on her death.

SB and her husband had in fact met and married in a Bangladeshi refugee camp in 1991. They each had a child before they met – she had a son and the husband a daughter – and three more children together. They family came to Australia in 2009 at which time SB started to learn English.

Her husband has no English language proficiency, doesn’t work and owns no assets.

SB’s eldest son and her stepdaughter live separately with their own families, are not involved in her care, and only have a distant relationship with her and the rest of the family.

The will that Justice Glen Martin in Brisbane’s Supreme Court was asked to approve – prepared by an experienced estate planning practitioner – left $50,000 to each of the five children and the residue to her husband and alternatively, if he was to pre-deceased her, to the three children who reside with them.

A psychiatrist (whose name was also suppressed) provided evidence that that the most she had gained when equiring of SB whom she preferred as the objects of her benevolence, was “some indication of a desire for some provision to be made for her children”.

The estate planning solicitor swore that the terms he proposed in the will were “consistent with what a married woman might be expected to do by way of provision for a long-term spouse and the provision of some benefit to the children of her marriage…”.

He had met with all members of the family and explained the proposed court application and will. None of the 5 children proposed any changes to it.

In those circumstances, Justice Martin was happy to conclude that the proposed will was one the mother would or might have made had she been able to do so.

He noted that the inclusion of the two older children as legatees of relatively small gifts “may have” the intended effect of discouraging a challenge to the will on their part.

Of the issues Justice Martin was required to consider under section 24(c) and (d) of the Succession Act, only whether SB had capacity to make a will herself caused any concern.

There is no legislative standard of “testamentary capacity” but the one most commonly applied is that set out in an English decision, Banks v Goodfellow decided in 1870.

His Honour ruled that such test – concerned as it was with whether or not the person was under an “insane delusion” – should be directed in the context of contemporary medical practice to whether or not the person possessed “not only the mental acuity necessary, but also the ability to convey the [person’s] testamentary intentions”.

Given SB could not communicate in any meaningful way, Justice Martin accepted that the her communication impairment demonstrated she did not have “capacity” to make a will notwithstanding she likely had the requisite “mental acuity”.

The court was also asked to declare that the mother’s youngest son – in his capacity of financial administrator – could execute a non-lapsing binding nomination on behalf of his mother to pay the nearly $9 million which was invested in superannuation, to her estate on her death.

The court accepted that the Superannuation Trust Deed allowed him as administrator to make a nomination provided that it was not a “special personal matter” – ie something akin to the making of a will – that an administrator is not permitted to do.

Justice Martin held that the administrator ought to be allowed to make such nomination.

Such action was not a “revocable disposition of property intended to take effect at death” – ie a will – but rather an exercise of a contractual right under the Superannuation Trust Deed which ended on the member’s death.

Recent Queensland, Victorian and South Australian decisions were noted by His Honour in support of his conclusion. Interestingly, a detailed but lower court 2019 decision from Western Australia that reached the opposite outcome was not referred to.

The authorised nomination would – according to His Honour – “give proper effect to the will” that Justice Martin declared should be made in the principal part of his judgement.

Re SB; Ex parte AC [2020] QSC 139 Martin J, 29 May 2020

Go here for advice on court made wills eg in cases of dementia, coma or a person who is unable to communicate.