Re: CGB

Case [2017] QSC 128

SUPREME COURT OF QUEENSLAND

CITATION:

Re: CGB [2017] QSC 128
PARTIES:

AAM AS LITIGATION GUARDIAN FOR CGB
(applicant)
v
CJW
(first respondent)
and
OAM
(second respondent)
and
TJR
(third respondent)
and
PAS
(fourth respondent)
and
DAJ
(fifth respondent)
and
ANNETTE CHILDS AS LITIGATION GUARDIAN FOR DAR
(sixth respondent)

FILE NO/S:

BS 5050/16

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

Orders 1-3 delivered on 14 July 2017; Order 4 delivered on 21 July 2017; reasons published 21 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24 February 2017

JUDGE:

Brown J

ORDERS:

Orders delivered 14 July 2017

The order of the court is that:

1. The application for leave under s 22 of the Succession Act 1981 (Qld) to apply for an order under s 21 of the Succession Act is refused.

2.    These reasons are to be published in a de-identified form.

3.    The Costs of this proceeding are to be assessed on an indemnity basis and paid out of the assets of CGB.

Further order delivered 21 July 2017

The Court further orders that:

4.   The file in this matter is to be sealed, and is not to be opened without an order of the Supreme Court of Queensland.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where CGB is an 83 year old man – where CGB does not currently have a will – where CGB gave will instructions but then stated he did not wish to pursue them – where he spoke to two solicitors about a will – where an application is brought pursuant to s 22 of the Succession Act 1981 (Qld) and an order is sought pursuant to s 21 of the Act authorising a statutory will to be made – where there are various interested parties with varying opinions on whether a statutory will should be made for CGB, and what terms would be in that will – whether the court should make an order authorising a will to be made, and, if so, in what terms

Succession Act 1981 (Qld), s 21, s 22, s 22(3), s23, s 24, s 24(d)

A Limited v J [2017] NSWSC 736, cited
Banks v Goodfellow (1870) LR 5 QB 594, cited
Deecke v Deecke [2009] QSC 65, cited
GAU v GAV [2016] 1 Qd R 1, considered
JW v John Siganto as Litigation Guardian for AW and CW [2015] QSC 300, cited
McKay v McKay [2011] QSC 230, cited
Mace v Malone [2011] QSC 49, cited
Re: D(J) [1982] Ch 237, considered
Re Fenwick [2009] NSWSC 530, followed
Re Keane: Mace v Malone (2012) 1 Qd R 319, cited
Re: Will of Jane [2011] NSWSC 624, cited
R v J [2017] WASC 53, cited
Re JT [2014] QSC 163, cited
RKC v JNS [2014] QSC 313, cited
Sadler v Eggmolesse [2013] QSC 40, cited
Van der Meulen v Van de Meulen

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Details
AGLC
Re: CGB [2017] QSC 128
Case
[2017] QSC 128
Decision Date

CaseChat Overview and Summary

The case of Re: CGB involved an 83-year-old man who had never made a will and was now in a facility for the aged. The court was required to determine whether a statutory will should be made for him, and if so, what the terms should be. The application for an order under s 21 of the Succession Act 1981 (Qld) was heard with the application for leave pursuant to s 22(3) of the Act. Various interested parties had differing opinions on whether a statutory will should be made for CGB, and, if so, what terms should be included in that will.

The legal issues before the court were whether the court should make an order authorising a will to be made, and if so, in what terms. The court had to consider the evidence of CGB's capacity to make a will, as well as the opinions of various interested parties on what the terms of the will should be. The court also had to consider the potential impact of the order on CGB's assets and the costs of the proceeding.

The court found that CGB had not demonstrated testamentary capacity, and that it was not in his best interests to make a statutory will. The court also found that the application for leave should be refused and that the costs of the proceeding were to be assessed on an indemnity basis and paid out of CGB's assets. The court further ordered that the file in this matter is to be sealed, and is not to be opened without an order of the Supreme Court of Queensland.

Orders

Orders of the court

Orders delivered 14 July 2017

The order of the court is that:

1. The application for leave under s 22 of the Succession Act 1981 (Qld) to apply for an order under s 21 of the Succession Act is refused.

2. These reasons are to be published in a de-identified form.

3. The Costs of this proceeding are to be assessed on an indemnity basis and paid out of the assets of CGB.

Further order delivered 21 July 2017

The Court further orders that:

4. The file in this matter is to be sealed, and is not to be opened without an order of the Supreme Court of Queensland.

Background

Background to the litigation

The application for an order under s 21 was heard with the application for leave pursuant to s 22(3) of the Act. Background The present application relates to CGB. CGB was born on 31 August 1933 and is now aged 83. He is a quadriplegic and has been since he was 40 years of age.[1] He originally resided at M Street, on the Gold Coast (M St). On 29 July 2014, he moved into VS Aged Care Facility at Robina. He has never been married. His health is apparently stable but that could change quickly.[1]This is how he has been described but it appears he could walk with assistance initially. CGB is clearly a complex man. He established a lucrative empire after he became a quadriplegic. He conducted his business out of his house at M St, Broadbeach. In order to live at home, he had a live-in carer, PAS, and a personal carer, DAR, to get him out of bed and bathed in the morning and put him back in bed in the evening. Notwithstanding his accrued wealth, he was tight with money, the house at M St being described by one witness as looking like an “unkempt housing commission house”.[2] He conducted his business from the lounge and was described as:“This is a man that spends his life sitting in a chair, looking with his back or head against a view, against a window, looking at a blank wall upon which was a series of paper writings, being the leases and exploration permits for his mining endeavours et cetera et cetera in big writing – in big writing. He did wear glasses but he was able to read. He never wrote himself. He could pick up a telephone, he was able to manage that, with one hand and sign his name but never write.”[3][2]T1-85/28.[3]T1-69/18-24. He has two children with whom he had no contact with until their adult years. His daughter made initial contact with him some three years ago and his son made contact with him in the nursing home. He did not develop a relationship with his daughter as a result of her contact. In the case of his son, it is unknown whether CGB had sufficient cognitive ability to appreciate that he was his son. The evidence indicates that he was a very private man who trusted very few people and did not develop any deep personal relationships. He was strongly independent and not an easy man to deal with on any level. He appeared to enjoy showing off his wealth and knowledge and particularly playing with solicitors. He thought that he was going to live forever or at least said that was the case. Despite numerous attempts by his advisors to get him to make a will for some 15-20 years, he did not make one and the present application has been brought about by the fact that he has still not made a will. In terms of his affairs, they are presently managed as follows, pursuant to an order of QCAT dated 7 April 2016:(a)TJR has been appointed by QCAT as CGB’s administrator with respect to:(i) CGB’s property at R Parade, Burleigh Heads (he was also appointed as administrator for the other R Parade, but that property has been sold);(ii) CGB’s property: the Red “CGB” Mine at Redland Bay;(iii) a quarry owned by CGB at M Creek;(iv) Plant and equipment on CGB’s property;(v) CGB’s business entity for his quarries; and(vi) CGB’s account at the Bank of Queensland which contains a significant cash amount of $800,000.(b)The Public Trustee is CGB’s administrator for all other financial matters.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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