McFadden v McFadden, unreported, SC(Qld), Applegarth J, 22 July 2014

This application was brought on behalf of a 21 year old proposed testator, ‘J’, who had suffered significant injuries at the age of 9, as a result of which he required 24 hour care. The applicant, his paternal aunt, had become his sole carer and had been appointed by QCAT as his guardian. A significant damages award had been made in J’s favour, in settlement of a personal injuries claim. A trustee company acted as administrator of those monies.

J had no existing will. If he were to die intestate, his estate would pass to those of his parents who survived him, neither of whom had been involved in his care for a number of years. Both parents had been served with notice of the statutory will application. The trustee company had also been served. It advised that it did not intend to appear on the hearing or to make any submissions, provided that it was brought to the Court’s attention by the applicant that the trustee company did not consider that J’s estate should have to bear the costs of more than one party.

J had a brother and two sisters, all of whom he was close to prior to his accident, and five half brothers and sisters from his mother’s subsequent relationship (following his accident).

It was clear that J lacked testamentary capacity.

The proposed will provided for:

  • the appointment of the trustee company as executor and trustee;
  • pecuniary legacies of $5,000 each to J’s parents;
  • pecuniary legacies totalling $50,000 to various charitable organisations; and
  • the residuary estate to be divided equally between the paternal aunt (with whom J resided) and J’s three siblings.

His Honour determined that the gifts of residue sought by the applicant should be amended, so that the paternal aunt’s share be increased to 55%, with the siblings each to receive 15%. A will was authorised to be made in those terms.

The ‘absent parent’ category of cases is considered in Statutory Will Applications: A Practical Guide, at [3.3]. This decision serves as a reminder that under the statutory wills legislation, part of the Court’s role is to approve the terms of the draft will/codicil, which may entail the Court revising the terms of the draft (see [4.31]). This approval does not entail the Court making an ‘award’, as such, in favour a person who may be a worthy recipient of the testator’s bounty (c.f. family provision). Rather, it involves approval of the terms of the draft in light of the facts that have informed the Court’s consideration of whether the ‘core test’ has been met.