ISSUES

Whether a statutory will ought be made for CGB, an 83 year old quadriplegic man, who had never made a will and who had a significant estate worth approximately $17m.

FACTS

The proposed Testator, CGB was born on 31 August 1933 and was aged 83 years at the hearing. 

He had suffered a spinal injury in his 40s and following his injury, devoted himself to building a “lucrative empire”.  This was estimated to be worth approximately $17m at the hearing. Notwithstanding this, he was “tight with money” and his modest house resembled an “unkempt housing commission house”.

CGB saw at least 2 lawyers in 2013 and 2014 in relation to the preparation of a will.  One solicitor, who had acted for him for over 15 years, noted that he had been trying to get CGB to do a will since first accepting instructions from him.

He got to the point of signing an incomplete will instruction sheet on 9 October 2013 but later revoked it on 29 November 2013.

It was clear that CGB could identify his assets, but had difficulty in focusing on how they were to be disposed among possible beneficiaries.  He had 2 children, but had no relationship with either of them.  He had even failed to inform one solicitor of their existence.

CGB’s capacity started to decline from 2012, when his close associate and accountant, TJR noticed a change in his abilities.  It was accepted that he had lost capacity by late 2014.

There were a number of different people with an interest in the outcome of the proceedings:

1. His accountant and life-long friend.
2. A live-in carer. She commenced proceedings in the Family Court in 2009, was paid $400,000 and signed an agreement stating she and CGB were not a de facto couple (she subsequently commenced proceedings to set aside that agreement) and her conduct was later the subject of DVO proceedings commenced by CGB’s attorney.
3. A chauffeur/personal carer who stopped by morning and evening to assist the CGB into and out of bed.  CGB had promised him he would look after him.
4. His daughter, whom he did not accept as his daughter, despite having signed the birth certificate and despite having DNA tests to confirm his paternity.
5. His son, with whom he had no relationship and had only met after his capacity was significantly diminished.
6. His elderly and infirm brother.

DECISION

Dealing with the matters in section 24, Brown J found that the first three were made out.  The last matter was whether or not the propose will “is or may be a will” that the person would make if they had capacity.

Brown J felt in this case there was even a “threshold question” of whether CGB would have made a will at all.

She felt the following matters showed CGB in favour of making a will:

• He had a large, diverse estate and most people would expect to want to direct such an estate upon death;
• He took steps to consult several solicitors about preparing a will
• He was aware of his declining health and his own mortality;
• He may have been avoiding making a will because he was concerned his carer would leave if he did so (having gotten what she wanted);
• He signed will instructions and asked the proposed executors to be contacted.

Conversely, the following matters weighed against the desire to make a will:

• His advisors has been trying to get him to make a will for 20 years and he had to date refused to do so
• He only pursued the idea of a will when showing signs of cognitive impairment
• He was under pressure from his carer to make a will and medical reports identified he was vulnerable to suggestion
• After he gave instructions for a will, he resiled from them.
• He was not concerned that his beneficiaries benefit from his estate – rather he was concerned to ensure the longevity of his business operations.
• He did not confide in his long-term advisors about his desire to make a will or who the intended beneficiaries might be.
• He had be told of several occasions prior to the decline in his cognitive abilities of the consequence on dying intestate and that did not prompt him to make or finalise a will
• He toyed with solicitors and other individuals, trying to get them to do what he wanted.

On balance, Brown J decided that he did want to make a will for the following reasons:

• He took positive steps to make a will.
• He told one solicitor several times that he wanted to make a will.
• He revoked his instructions because they were not suitable, not because he did not want to make a will and he immediately began discussing plans for a different will.
• He saw another solicitor after he sought to resile from his earlier signed instructions.

However, she felt that despite this desire he was “ambivalent about whether he did make one or died intestate.  He knew the effect of dying intestate and his conduct in not accelerating or completing the will process demonstrates he was somewhat ambivalent about the importance of a will.^[1]”

Brown J then turned to the draft will and considered each of the gifts in turn.  I won’t consider them all in detail, but I do want to mention 2 of them.

The first is the live-in carer.  She had been provided for in the revoked will instructions, but subsequent to that the following occurred:

• CGB’s attorney needed to commence proceedings for a DVO and QCAT made orders preventing her from seeing him;
• It came to light that a significant amount (approximately $330,000) of jewellery had been purchased by the carer. Her own circumstances were such that she could not have purchased them herself and presumably the funds were taken from CGB;
• She commenced proceedings in the family court, claiming to be a de facto and claiming interim spousal maintenance.
• She also sought to have set aside the earlier orders made declaring that she and CGB were never in a de facto relationship.

In light of these matters, Brown J felt that CGB would not have included a gift to her in his will.

The second, was the position of CGB’s 2 children, being those who would take on intestacy, if the will were not made.   While they had no relationship with CGB, the judgement notes that was not their fault. 

However, given the attitude CGB took to his daughter (who he did not accept), Brown J could not accept that he would have included a provision for her in his will, much less his son, whom he only met after a decline in his cognitive abilities.

This led Brown J to consider the very real likelihood that they would commence a family provision application if the proposed will were to be made.

ORDERS

Brown J:

1. declined to make the will; and
2. made orders that all parties could have their costs from the estate.

Read the full decision here.

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[1] Re CGB [2017] QSC 128, at [246].