Re SB

Case [2020] QSC 139

SUPREME COURT OF QUEENSLAND

CITATION:

Re SB; Ex parte AC [2020] QSC 139

PARTIES:

RE SB; EX PARTE AC

FILE NO/S:

BS No 4753 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2020

JUDGE:

Martin J

ORDER:

1. Pursuant to s 22 of the Succession Act 1981 (Qld) (the Act), leave be granted to the applicant to apply for an order authorising a will to be made on behalf of SB.

2. Pursuant to s 21 of the Act, a will be made for SB in terms of the draft will that is exhibit “ACS-01” to the affidavit of AC filed in this proceeding.

3.      It is declared that upon the proper construction of:

(a)     the Perpetual Super Wrap Trust Deed dated 30 September 2011; and

(b) s 33(1) of the Guardianship and Administration Act 2000,

         NK, as administrator of SB for all financial matters except management of her settlement funds for personal injuries, may execute on her behalf a non-lapsing nomination pursuant to cl 6 of the said trust deed directing the trustee of the Perpetual Super Wrap Trust to pay 100% of SB’s death benefits to her legal personal representative appointed by her last will.

4.       

(a)     Any 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;

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

5.      The applicant’s costs of the proceeding be paid out of the assets of SB on the indemnity basis.

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where SB was seriously injured in a motor vehicle accident in which she was left almost totally paralysed – where SB’s litigation guardian seeks leave under s 22 of the Succession Act 1981 to apply for an order authorising the making of a will on her behalf – whether there are reasonable grounds for believing that SB does not have testamentary capacity

SUCCESSION – MAKING OF A WILL –TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant seeks an order under s 21 of the Succession Act 1981 that the court authorise the making of a statutory will on behalf of SB in the terms of a draft will – whether the proposed will is, or may be, one which SB would make if she had testamentary capacity

EQUITY – TRUSTS AND TRUSTEES – EXPRESS TRUSTS CONSTITUTED INTER VIVOS – CONTRACTS AND COVENANTS – where SB was awarded damages for her injuries – where part of the damages was invested in a superannuation fund – where rule 6.2 of the trust deed provides that if a non-lapsing nomination is not made, the death benefit will be…

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Details
AGLC
Re SB [2020] QSC 139
Case
[2020] QSC 139
Decision Date

CaseChat Overview and Summary

In the matter of Re SB, the court was asked to decide whether SB, a severely disabled woman, lacked testamentary capacity under the Succession Act 1981, and if so, whether it was appropriate to make a statutory will for her. The applicant, who was SB's son and her financial administrator, sought leave to apply for such a will and also a declaration that he could execute a death benefit nomination on her behalf. The applicant argued that SB, who was almost totally paralysed due to a severe spinal injury, did not have testamentary capacity and that it was appropriate to create a statutory will for her. The court had to determine whether there were reasonable grounds to believe that SB lacked testamentary capacity, whether the proposed will was one she would make if she had testamentary capacity, and whether it was appropriate to make a statutory will for her.

The court found that the applicant had demonstrated that leave should be granted and that a will in the terms of the exhibit to the affidavit should be made. The court considered the Guardianship and Administration Act 2000 and the Perpetual Private Person Wrap superannuation fund trust deed to determine whether SB's financial administrator could execute a death benefit nomination on her behalf. The court concluded that the term "financial matter" did not include making or revoking the adult's will, but that the common law provided that a will includes a revocable disposition of property intended to take effect at death. The court granted leave to the applicant to apply for an order authorising a will to be made on behalf of SB and made a will for SB in terms of the draft will that was exhibit to the affidavit. The court also declared that upon the proper construction of the Perpetual Super Wrap Trust Deed and the Guardianship and Administration Act 2000, SB's financial administrator could execute a non-lapsing nomination on her behalf directing the trustee of the Perpetual Super Wrap Trust to pay 100% of SB's death benefits to her legal personal representative appointed by her last will.

The court ordered that any copy of the court's reasons published on the court's judgment website or in any other publication be in an anonymised form, and that the parties' names appearing on the court's electronic file of these proceedings be anonymised. The applicant's costs of the proceeding were to be paid out of the assets of SB on the indemnity basis.

Orders

Orders of the court

1. Pursuant to s 22 of the Succession Act 1981 (Qld) (the Act), leave be granted to the applicant to apply for an order authorising a will to be made on behalf of SB.

2. Pursuant to s 21 of the Act, a will be made for SB in terms of the draft will that is exhibit “ACS-01” to the affidavit of AC filed in this proceeding.

3. It is declared that upon the proper construction of:

(a) the Perpetual Super Wrap Trust Deed dated 30 September 2011; and

(b) s 33(1) of the Guardianship and Administration Act 2000,

NK, as administrator of SB for all financial matters except management of her settlement funds for personal injuries, may execute on her behalf a non-lapsing nomination pursuant to cl 6 of the said trust deed directing the trustee of the Perpetual Super Wrap Trust to pay 100% of SB’s death benefits to her legal personal representative appointed by her last will.

4.

(a) Any 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;

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

5. The applicant’s costs of the proceeding be paid out of the assets of SB on the indemnity basis.

Background

Background to the litigation

The main issue is whether SB is a “person without testamentary capacity” within the meaning of s 21 of the Succession Act 1981 (the Act).The statutory background Power is given to the court to make a statutory will by s 21 of the Act. Leave is required before an application for such an order can be made (see s 22). Section 23 requires that certain identified information be given to the court. Section 24 provides:“24 Matters court must be satisfied of before giving leaveA court may give leave under section 22 only if the court is satisfied of the following matters—(a)the applicant for leave is an appropriate person to make the application;(b)adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought;(c)there are reasonable grounds for believing that the person does not have testamentary capacity;(d)the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;(e)it is or may be appropriate for an order to be made under section 21 in relation to the person.” I deal in more detail with the requirements of ss 23 and 24(a) and (b) later in these reasons. The issues that need consideration are:(a)are there reasonable grounds for believing that SB does not have testamentary capacity,(b)is the proposed will one which SB would, or might, make if she had testamentary capacity, and(c)is it appropriate for an order to be made under s 21?SB’s condition The motor vehicle accident in which she was injured in July 2015 left her almost totally paralysed as a consequence of a severe spinal injury. She can move her head very slightly from side to side. She cannot move her trunk and limbs. She is dependent on a ventilator via a tracheostomy. She is fed via a gastric stoma. She is dependent on carers for activities of daily living. She is unable to speak but she can mouth words and make some noises. Non-family members are unable to communicate effectively with her. It appears that some family members, especially one of her sons, is able to communicate to a limited extent with her. SB brought a claim for damages for her injuries. It was compromised for $10 million and costs. On 17 April 2018, the Queensland Civil and Administrative Tribunal appointed:(a)Perpetual Trustee Company Limited as the administrator to manage SB’s damages award, and(b)NK, her son, as her administrator for all of her other financial matters. Perpetual Trustee used part of the damages to:(a)buy land and have a purpose-built dwelling constructed on it, (b)invest about $6.75 million in a superannuation fund for her, and(c)hold the balance in cash on her behalf.Her family SB married her husband, NH, in a Bangladesh refugee camp in 1991. She had a son, ZH, from an earlier relationship and he had a daughter, NS, also from an earlier relationship. SB and NH had three children:(a)a son, NM,(b)a son, NK, and(c)a daughter, SN.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I am satisfied that the applicant has demonstrated that leave should be granted and that a will in the terms of the exhibit to AC’s affidavit should be made.The death benefit declaration Most of the settlement monies paid to SB (about $6 million) was invested in the Perpetual Private Person Wrap superannuation fund (PPPW). Perpetual Superannuation Ltd is the trustee of that trust. A person becomes a member of the fund by an application approved by the trustee. Upon admission, a member “is deemed to have approved of and is bound by the Rules” of the trust deed. Rule 6.2 of the trust deed provides: “6.2 Death BenefitsA Member’s interest in the Fund ceases immediately on his or her death and the Trustee must pay the Death Benefit as follows:(a)if the Trustee holds for the Member a Non-lapsing Nomination, in accordance with the terms of the Non-lapsing Nomination; or(b)if the Trustee does not hold a Non-lapsing Nomination for the Member, to one or more of the Member’s Dependants and Personal Representative in the proportions determined by the Trustee in its absolute discretion, but having regard to any nominations made by the Member.(c)If, to the Trustee’s knowledge, there is no Dependant or Personal Representative and the Trustee has a reasonable belief that there will not be a Personal Representative appointed, the Death Benefit may be paid to any other person as determined by the Trustee.” It follows that, if a non-lapsing nomination is not made, then the death benefit (as defined in the trust deed) is paid to the member’s dependants and personal representative in the proportions determined by the trustee. No nomination has been made by SB and, in her circumstances, none could be. The applicant seeks a declaration that, upon the proper construction of the Guardianship and Administration Act 2000 (GAA) and the PPPW, SB’s financial administrator can execute a death benefit nomination on her behalf. NK is SB’s administrator for all financial matters apart from managing the damages award. The superannuation is not part of that award. Section 33(2) of the GAA affords NK the following power:“Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.” Thus, NK could execute a non-lapsing nomination on his mother’s behalf if that act comes within the term “financial matter”. That term is defined in the GAA to include a “legal matter relating to the adult’s financial and property matters”.[5] At first sight, that would appear to be sufficient to include the making of a non-lapsing nomination. But “financial matter” does not include a “special personal matter” and a “special personal matter” is defined to include “making or revoking the adult’s will”.[6] The GAA does not define “will” and the Acts Interpretation Act 1954 only defines “will” to include a codicil.[7] The applicant argues that it is unlikely that Parliament would have intended the word “will” to have any meaning other than that in s 5 Succession Act 1981 which defines the word to include a codicil or “any other testamentary disposition”. That may be so, but it is not necessary to determine that as the common law provides that, at its most basic, a will includes a revocable disposition of property intended to take effect at death. [5]Guardianship and Administration Act 2000, sch 2, pt 1, s 1(o).[6]Guardianship and Administration Act 2000, sch 2, pt 2, s 3(a).[7]Acts Interpretation Act 1954, sch 1 (definition of “will”).