LMG v John Siganto as Litigation Guardian for BJG and Ors

LMG, the wife of CDG, has applied to the court for leave to bring a further application under section 21 of the Succession Act 1981 (Qld) to authorise the making of a statutory will on behalf of her husband. CDG suffered a brain injury in an accident, which has left him with a lack of testamentary capacity. LMG is concerned that the provisions of his existing will, which was made before his injury, are not appropriate given the significant changes in his estate circumstances, including the receipt of a large sum of money from damages. The legal issues before the court were whether the proposed statutory will is or may be a will that CDG would make if he were to have testamentary capacity, and whether leave should be granted for the further application.

The court considered the statutory framework under which it was operating, including the requirement for testamentary capacity under section 8 of the Succession Act 1981 (Qld). It was necessary to determine whether CDG had the requisite testamentary capacity, which includes understanding the nature and effect of making a will. The court found that CDG does not have testamentary capacity, as he is unable to comprehend the effect of disposing of his property by will. The court also considered the evidence of CDG’s medical condition and prognosis, and the appropriateness of the proposed statutory will in light of his changed circumstances. The court was satisfied that the proposed will was one that CDG would make if he had testamentary capacity, taking into account his current wishes and values, as well as the significant changes to his estate.

The court granted leave for the further application under section 22 of the Succession Act 1981 (Qld) and authorised the making of a statutory will for CDG in terms of the draft will provided. The court also made orders regarding costs, confidentiality, and publication of the reasons for the decision. The court ordered that the costs of the originating application be paid out of CDG’s assets on an indemnity basis, and that the affidavits filed in the proceedings be placed in a sealed envelope and marked “not to be opened save by order of a Court or a Judge”. The court further ordered that any publication of these reasons must not identify the various persons involved, and that the electronic file summary for this matter be anonymized. These orders reflect the sensitive nature of the proceedings and the need to protect the privacy of the parties involved.