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

A statutory will was authorised to be made by Jackson J in this contested application.  The proposed testator, Christopher, was 44 years old and had suffered major brain damage in an accident at the age of 21.  The application was brought by his younger sister, Annake, who acted as his administrator for financial matters and guardian for personal matters under the Guardianship and Administration Act 2000 (Qld).   The application was opposed by Christopher’s father, who contended that a will should be authorised in substantially similar terms to a previous 2002 will made by Christopher (which his Honour was not satisfied was a valid will).

The will that was authorised to be made provided for Christopher’s estate to pass to Annake, or if she predeceased him, then to those of his nieces and nephews who survive him, equally.

Para. [29] appears to signal that the Court might not in all cases necessarily require complete and fullsome supporting information to be provided in accordance with s 23 of the Succession Act 1981 (Qld).  His Honour indicated that, while the requirements of the statute must be met, he approached the question whether leave should be granted ‘on the footing that it should not be refused because of the inadequacy or paucity of the evidence on some matters’.  It was relevant that this was not a large estate (approximate value $550,000) and his Honour was anxious that it not be dissipated by unnecessary legal costs.

His Honour also said as follows, concerning the application of the ‘core test’ (s 24(d) of the Succession Act): “In my view, there is no definitive principle to be applied here.  In the application of a general discretion of this kind, against the background of the statutory qualifying factors, it is of no assistance to articulate factors which influence or decide this particular case as though they have a legal significance beyond the exercise of the discretion in the particular circumstances.”    The reasoning applied (see in particular paras. [48]-[49], where various views are attributed to Christopher) has echoes of the approach taken in Re D(J) [1982] Ch 287, which has been criticised in various decisions as somewhat artificial and counter-factual.   Various recent Qld decisions, prior to Van der Meulen, have followed the approach taken by Ann Lyons J in McKay v McKay [2011] QSC 230, of instead focusing on the wording of s 24(d).

The decision is available here: Van der Meulen v Van der Meulen [2014] QSC 33.