Van der Meulen v Van der Meulen - [2014] QSC 33

SUPREME COURT OF QUEENSLAND

CITATION:

Van der Meulen v Van der Meulen & Anor [2014] QSC 33

PARTIES:

ANNAKE LUCILE VAN DER MEULEN

(applicant)

v

MARGARET FLORENCE VAN DER MEULEN

(first respondent)

and

JOFFERY ROY DOUGLAS

(second respondent)

FILE NO/S:

BS8201/13

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2013

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981 (Qld).

2. A will is authorised to be made for Christopher Hugh Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen filed on 3 September 2013.

3. The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of Christopher Hugh Millar.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS - where application made under s 21 and 22 of the Succession Act 1981 (Qld) for a court authorised will – where proposed testator had prior wills – where prior wills of doubtful validity – where proposed testator sustained major brain injury as a young man – where proposed testator had investment assets enlarged by mother’s partner – where the proposed will provided for the estate to go to the applicant – where parents then siblings would take on intestacy – where proposed testator’s mother, father and brother express intention not to accept any gift under a will – where proposed testator expressed preference for estate to go to applicant and brother but if the brother did not want a share to the applicant – where proposed testator’s family supported the proposed will except father who wished brother to benefit equally with applicant – whether the proposed will should be authorised

COUNSEL:

R A King-Scott for the applicant

Cornelis Van der Meulen in person

No appearance for the respondents

SOLICITORS:

Madden & Co for the applicant

JACKSON J: Christopher Hugh Millar was born Christopher Hugh Van der Meulen on 9 October 1969 to Cornelis John Van der Meulen, who appeared on this application, and the first respondent, Margaret Florence Van der Meulen. Christopher changed his surname to Millar by deed poll filed in May 1988. He has two siblings; an elder brother Joffrey Roy Douglas born a year earlier and a younger sister, the applicant, Annake Lucille Van der Meulen born 13 August 1973. For simplicity, I will refer to family members by their first names.

Christopher is now 44 years of age. He suffered major brain damage in an accident when he was 21 years. The question before the court is whether it should authorise a will to be made for Christopher.

Annake is Christopher’s administrator for financial matters and guardian for personal matters appointed under the Guardianship and Administrators Act 2000 (Qld).

Under s 22 of the Succession Act 1981 (Qld) (“SA

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.

Keep reading for free

Create a free CaseChat account to read Van der Meulen v Van der Meulen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QSC 33
Decision Date: 7 March 2014

CaseChat Overview and Summary

Van der Meulen v Van der Meulen involved a legal dispute regarding the authorisation of a will under the Succession Act 1981 (Qld). The applicant, Margaret Florence Van der Meulen, sought authorisation for a will on behalf of her son, Christopher Hugh Millar, who had previously sustained a major brain injury and lacked testamentary capacity. The will, if authorised, would see the majority of Millar’s estate go to the applicant, with the remainder to be divided between his siblings in case of intestacy. Millar's mother, father, and brother indicated they did not wish to accept any gifts under the will, although Millar had expressed a preference for the estate to go to the applicant and his brother. However, Millar's father wanted his brother to benefit equally with the applicant. The court had to decide whether the proposed will should be authorised given the circumstances of Millar's prior incapacity, the lack of clarity regarding his previous wills, and the familial dynamics surrounding the estate distribution.

The court was tasked with determining whether Millar had testamentary capacity at the time of making the will and if the will was made in accordance with the statutory requirements. It also had to consider the statutory provisions for statutory wills and whether the proposed will aligned with Millar’s expressed wishes, given his previous injuries and the family's conflicting interests. The court needed to weigh the applicant's evidence supporting the validity of the will against the testimonies of Millar's family members and the legal requirements for testamentary capacity and the validity of statutory wills under the Succession Act.

The court found that the proposed will was in line with Millar's expressed wishes, despite his prior incapacity. The court was satisfied that the will was made in a manner that reflected Millar's intentions and that the applicant had acted in good faith. The court authorised the will to be made for Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen. The court also ruled that the applicant could apply for an order under s 21 of the Succession Act 1981 (Qld) and ordered that the applicant’s costs be assessed on the indemnity basis and paid out of Millar’s assets.

The court's final orders were that leave was granted to the applicant to apply for an order under s 21 of the Succession Act 1981 (Qld). A will was authorised to be made for Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen. The applicant’s costs of the proceeding were to be assessed on the indemnity basis and paid out of Millar's assets.

Orders

Orders of the court

The order of the court is that:

1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act 1981 (Qld).

2. A will is authorised to be made for Christopher Hugh Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen filed on 3 September 2013.

3. The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of Christopher Hugh Millar.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Van der Meulen v Van der Meulen & Anor [2014] QSC 33
PARTIES:	ANNAKE LUCILE VAN DER MEULEN (applicant) v MARGARET FLORENCE VAN DER MEULEN (first respondent) and JOFFERY ROY DOUGLAS (second respondent)
FILE NO/S:	BS8201/13
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	7 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2013
JUDGE:	Jackson J
ORDER:	The order of the court is that: *1. Leave is given to the applicant to apply for an order under s 21 of the Succession Act* 1981 (Qld). 2. A will is authorised to be made for Christopher Hugh Millar in the terms of Exhibit “MFVDM4” to the affidavit of Margaret Florence Van der Meulen filed on 3 September 2013. 3. The applicant’s costs of the proceeding be assessed on the indemnity basis and be paid out of the assets of Christopher Hugh Millar.**
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS - where application made under s 21 and 22 of the Succession Act 1981 (Qld) for a court authorised will – where proposed testator had prior wills – where prior wills of doubtful validity – where proposed testator sustained major brain injury as a young man – where proposed testator had investment assets enlarged by mother’s partner – where the proposed will provided for the estate to go to the applicant – where parents then siblings would take on intestacy – where proposed testator’s mother, father and brother express intention not to accept any gift under a will – where proposed testator expressed preference for estate to go to applicant and brother but if the brother did not want a share to the applicant – where proposed testator’s family supported the proposed will except father who wished brother to benefit equally with applicant – whether the proposed will should be authorised
COUNSEL:	R A King-Scott for the applicant Cornelis Van der Meulen in person No appearance for the respondents
SOLICITORS:	Madden & Co for the applicant