September 27, 2017 |

The Court makes a will for a 93 year old man who did not have mental capacity.


APB, ex parte Sheehy, Re [2017] QSC 201 

About the Case:

The applicant is now aged 91 and lacks testamentary capacity. He has very substantial assets, including a shopping centre which is operated under a joint venture agreement. The applicants litigation guardian makes an application for an order authorising a will to be made on his behalf and considering whether more weight should be given to statements of testamentary intention when he had capacity than after he lost capacity and whether provision should be made for his children, other family members, friends and charities.


  • The court was required to resolve submissions as follows:
  • Should provision be made for several friends of the applicant? 
  • What provision should be made for each of three long-term friends, either as a secondary beneficiary under the testamentary trust or as the recipient of a pecuniary gift?
  • What provision should be made for each of the applicants children, by way of a pecuniary gift; distribution of income as a primary beneficiary under the testamentary trust; and distribution of capital on the winding up of the trust?
  • What provision should be made for a particular grandson, including the extent to which adjustments are made to the interests which would otherwise be enjoyed by his father? 
  • What provision should be made for the spouses of applicants children?

The applicant was born in early 1926 and has three adult children: ENB born in 1963, SPB born in 1965 and CRB born in 1970. The children have had to make their way in the world, with hardly any financial assistance from their father.

The applicant separated from his then wife in 1974. She raised their children as a single parent. He did not pay child maintenance. The children saw him regularly when he would visit them on the Gold Coast or they would visit him in Brisbane. The applicant was devoted to his work. When his children visited him in Brisbane they would go to his place of business, a motel, and would help him with tasks around the motel such as cleaning rooms and sweeping. When they stayed over his daughter was set to work early in the mornings to prepare guests’ breakfasts.

The applicant always has been frugal. He did not shower presents on his young children or even take them out to eat. Birthday gifts were modest. When each son turned 21 he was given about $1,500 or $1,800. The daughter did not receive any such gift when she turned 21. 

The applicant justified his lack of spending on his children by often telling them that he was working hard for them and that eventually he wanted to develop certain land. In many conversations over the decades, his children were told that the land was for them.

The applicant and the mother of his children divorced, she received very little. This again was because, as he told his children, the land was for them. The property settlement with his former wife took until 1985 to conclude.

Over the years the applicants children, particularly his sons, were called upon by him to help with work required to maintain the land, which comprised about 50 acres. They built or fixed fences, and sprayed or pulled out noxious weeds. The applicant owned horses and the boys looked after the horses and the stables.

The applicant instilled into his children a work ethic. Their work ethic has continued into later life. They are hard-working individuals of modest wealth, who earn average incomes. They have to service mortgages and have limited equity in their homes. 

By contrast the applicant has assets of approximately $70,000,000 and monthly income of between $210,000 and $225,000.

There was a history of events heard in court about old friends of the applicant, his hospitalisation in 2013 and various powers of attorney documents signed. There were QCAT Tribunal hearings in 2013 and the Public Trustee appointed as administrator of the affairs of the applicant and a solicitor appointed for certain financial affairs concerning a complex joint venture.

For the case to be approved it must be ascertained by the court that the applicant lacked testamentary capacity.

The medical evidence that the applicant lacked capacity include an expert report directed to the Court by a Consultant Geriatrician. He was briefed with substantial materials and asked to give an opinion about the applicants testamentary capacity. The consultant concluded that the applicant did not have capacity to change his will. 

The next steps involved was a process not unlike a family provision claim. The court then had to decide what the contents of the will should be. Voluminous amounts of evidence was submitted by interested parties as well s evidence of the applicants earlier intentions regarding his will.

Legal Costs:

Yet to be determined. 

Summary of Court Order:

Leave is granted to the applicant's litigation guardian to apply for an order authorising a will to be made.

Pursuant to s 21 of the Succession Act 1981 (Qld) a will be made for the applicant in the terms stated by the Court in a form of will to be submitted by the applicant.

The applicant draft a form of will in accordance with these reasons, provide a copy of the draft will to the respondents to the application, and submit the same within five days for the purpose of the will being approved by the Court pursuant to s 21(2)(c) and then executed in accordance with s 26 of the Act.

Liberty to apply as to the form of the will submitted in accordance with paragraph 3 prior to the execution of the will.

The issue of costs be the subject of short written or oral submissions on a date to be fixed.

6. Any copy of these reasons to be published on the judgment website or in any other publication made to, or accessible by, the general public or a section of the general public, be in an anonymised form.


doyles STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria


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