Re Rd - [2021] QSC 65

SUPREME COURT OF QUEENSLAND

CITATION:

Re RD [2021] QSC 65

PARTIES:

In the matter of an application by DD 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 RD

FILE NO:

BS No 12102 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

31 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2021

JUDGE:

Bowskill J

ORDERS:

The Court proposes to make the following orders:

1. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for RD in terms of the draft will that is exhibit 1 in these proceedings.

2. In the event that the applicant is appointed by QCAT as administrator for RD for all financial matters except management of his settlement funds for personal injuries, pursuant to s 33(2) of the Guardianship and Administration Act 2000 (Qld), the applicant may execute on RD’s behalf a non-lapsing nomination pursuant to clause 6.3CA of the Perpetual Super Wrap Trust Deed and Rules of Fund dated 30 September 2011 (as amended) directing the trustee of the Perpetual Super Wrap Trust to pay 100% of RD’s death benefits to his legal personal representative appointed by his last will.

3. A copy of the court’s reasons in these proceedings 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.

4. The parties’ names appearing on the court’s electronic file of these proceedings be anonymised.

5. All parties’ costs of this application be paid out of the assets of RD on the indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant applies for an order authorising a will to be made on behalf of her son, a young man who lacks testamentary capacity as a consequence of suffering a severe traumatic brain injury – whether the proposed will is or may be a will the young man would make if he had testamentary capacity – whether an alternative form of will, as proposed by the litigation guardian for the young man, under which five testamentary discretionary trusts would be created, is or may be a will he would have made

Succession Act 1981 (Qld), ss 21 and 23

COUNSEL:
C Brewer for the applicant
T Grau for the litigation guardian for RD
M Crofton for RD’s father

K Kluss for the litigation guardian for RD’s younger siblings

SOLICITORS:
McInnes Wilson for the applicant
The Will And All for the litigation guardian for RD
Indigo Law for RD’s father

Murdoch Lawyers for the litigation guardian for RD’s younger siblings

RD is a young man, presently aged 21. He suffered a severe traumatic brain injury when he was very young, about five months old, as a result of a traffic accident. He has substantial assets, consequent upon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Rd

Details

AGLC: Re RD [2021] QSC 65
Case: [2021] QSC 65
Decision Date: 31 March 2021

CaseChat Overview and Summary

The case of Re RD involved an application by the applicant, seeking an order that would allow for the creation of a will on behalf of her son, RD, who lacked testamentary capacity due to a severe traumatic brain injury. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues before the court were whether the draft will presented by the applicant, or an alternative form of will proposed by RD's litigation guardian, aligned with what RD would have chosen if he had testamentary capacity. This required the court to consider the provisions of the Succession Act 1981 (Qld) and the Guardianship and Administration Act 2000 (Qld) to determine the appropriate course of action.

The court examined the draft will submitted by the applicant and the alternative proposal made by RD's litigation guardian, which involved the creation of five testamentary discretionary trusts. In making its decision, the court applied a subjective test to ascertain whether either of the proposed wills represented RD's wishes. The court found that the draft will, which was in line with RD's expressed wishes, was the more appropriate option as it was consistent with what RD would have made if he had testamentary capacity. The alternative proposal was deemed to be less likely to reflect RD's wishes.

In light of the court's findings, it proposed to make several orders. Firstly, the court would authorise the creation of a will for RD in accordance with the draft will presented by the applicant. Secondly, if the applicant were appointed as RD's administrator for all financial matters except the management of his settlement funds for personal injuries, she would be permitted to execute a non-lapsing nomination on RD's behalf to ensure that his death benefits would be paid to his legal personal representative appointed by his last will. The court also ordered that any publication of its reasons or the parties' names be anonymised to protect RD's privacy, and that all parties' costs of the application be paid out of RD's assets on the indemnity basis.

Orders

Orders of the court

The Court proposes to make the following orders:

1. Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for RD in terms of the draft will that is exhibit 1 in these proceedings.

2. In the event that the applicant is appointed by QCAT as administrator for RD for all financial matters except management of his settlement funds for personal injuries, pursuant to s 33(2) of the Guardianship and Administration Act 2000 (Qld), the applicant may execute on RD’s behalf a non-lapsing nomination pursuant to clause 6.3CA of the Perpetual Super Wrap Trust Deed and Rules of Fund dated 30 September 2011 (as amended) directing the trustee of the Perpetual Super Wrap Trust to pay 100% of RD’s death benefits to his legal personal representative appointed by his last will.

3. A copy of the court’s reasons in these proceedings 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.

4. The parties’ names appearing on the court’s electronic file of these proceedings be anonymised.

5. All parties’ costs of this application be paid out of the assets of RD on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re RD [2021] QSC 65
PARTIES:	In the matter of an application by DD 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 RD
FILE NO:	BS No 12102 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	31 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	26 March 2021
JUDGE:	Bowskill J
ORDERS:	The Court proposes to make the following orders: 1. Pursuant to s 21 of the *Succession Act* 1981 (Qld) a will be made for RD in terms of the draft will that is exhibit 1 in these proceedings. 2. In the event that the applicant is appointed by QCAT as administrator for RD for all financial matters except management of his settlement funds for personal injuries, pursuant to s 33(2) of the *Guardianship and Administration Act* 2000 (Qld), the applicant may execute on RD’s behalf a non-lapsing nomination pursuant to clause 6.3CA of the Perpetual Super Wrap Trust Deed and Rules of Fund dated 30 September 2011 (as amended) directing the trustee of the Perpetual Super Wrap Trust to pay 100% of RD’s death benefits to his legal personal representative appointed by his last will. 3. A copy of the court’s reasons in these proceedings 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. 4. The parties’ names appearing on the court’s electronic file of these proceedings be anonymised. 5. All parties’ costs of this application be paid out of the assets of RD on the indemnity basis.
CATCHWORDS:	SUCCESSION – MAKING A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant applies for an order authorising a will to be made on behalf of her son, a young man who lacks testamentary capacity as a consequence of suffering a severe traumatic brain injury – whether the proposed will is or may be a will the young man would make if he had testamentary capacity – whether an alternative form of will, as proposed by the litigation guardian for the young man, under which five testamentary discretionary trusts would be created, is or may be a will he would have made Succession Act 1981 (Qld), ss 21 and 23
COUNSEL:	C Brewer for the applicant T Grau for the litigation guardian for RD M Crofton for RD’s father K Kluss for the litigation guardian for RD’s younger siblings
SOLICITORS:	McInnes Wilson for the applicant The Will And All for the litigation guardian for RD Indigo Law for RD’s father Murdoch Lawyers for the litigation guardian for RD’s younger siblings