DPN, Re [2026] QSC 138

SUPREME COURT OF QUEENSLAND CITATION: Re DPN [2026] QSC 138 PARTIES: DPN (applicant) v LJP (respondent) FILE NO/S: BS1826 of 2026 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 24 June 2026 DELIVERED AT: Brisbane HEARING DATE: 24 June 2026 JUDGE: Hindman J ORDERS: 1. Pursuant to section 21 of the Succession Act 1981 (Qld), a statutory will is made on behalf of KN in the form of the draft will attached to the order. 2. Except by way of court order, the file is not to be searchable by any non-party to the proceeding. 3. The court’s reasons in this proceeding published on the court’s judgment website or in any other publication made to, or accessible by, the general public or a section of the public, are to be in an anonymised form. 4. SDJ, LRP and MP are to be removed as respondents from the online court file. 5. The parties’ names appearing on the court’s electronic file of this proceeding are to be anonymised. 6. The applicant’s costs of the proceeding are to be paid from the assets of KN on an indemnity basis. 7. The respondent’s costs of the proceeding are to be paid from the assets of KN fixed in the sum of $96,000 (inclusive of GST). CATCHWORDS: SUCCESSION – MAKING OF A WILL – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where KN has no capacity and no current will – where applicant applies for a statutory will to be made dividing KN’s assets between her husband (the respondent) and her two children (the applicant -- 1 of 18 -- 2 and his sister) – whether proposed will is a will KN probably would have made – whether the court should make non- identification orders – whether parties’ costs should be paid out of KN’s estate Succession Act 1981 (Qld) s. 21, s. 23, s. 25 Uniform Civil Procedure Rules 1999 (Qld) r. 681 Banks v Goodfellow (1870) LR 5 QB 549, applied Burns v Estate of Burns (a Protected Person) (2013) 11 ASTLR 362; [2013] NSWSC 1550, cited CDG v Siganto [2018] QSC 11, cited GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308, cited Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, cited In the Will of Wilson (1897) 23 VLR 197, cited MZY v RYI [2019] QSC 89, cited Re APB, ex parte Sheehy [2017] QSC 201, applied Re B (Court of Protection: Notice of Proceedings) [1987] 1 WLR 552, cited Re Bridget [2018] NSWSC 1509, applied Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22; [2009] NSWSC 530, applied Re JT [2014] QSC 163, cited Re Knight (2020) 42 NTLR 80, cited Re OSD; SMA v FJX; OSD v ABJ [2023] QSC 264, cited RKC v JNS [2014] QSC 313, cited SPM v LWA [2013] QSC 138, cited Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22, cited VMH v SEL [2016] QSC 148, considered White v Barron (1980) 144 CLR 431; [1980] HCA 14, cited COUNSEL: K L Gaston for the applicant C Brewer for the respondent SOLICITORS: Paxton-Hall Lawyers for the applicant Jeffrey Nevell Solicitor for the respondent Nature of proceeding [1] This proceeding concerns the personal and financial affairs of an 84-year-old woman suffering from various serious health conditions including dementia. To protect her privacy, she will be referred to in these reasons as KN. KN has no current will and this proceeding concerns whether the court will approve a statutory will for her. [2] The applicant to the proceeding, DPN, is the adult son of KN. The applicant is supported in his application by his adult sister SDJ. Their father, KN’s first husband, died in 2004. There are no other biological children of KN. [3] The respondent to the proceeding is LJP, KN’s second husband. LJP and KN married in May 2022. LJP’s two adult children are aware of the proceeding and do not wish to take part in same, although they support their father’s position in the proceeding. -- 2 of 18 -- 3 [4] The applicant applies for the court to make a statutory will for KN under section 21 of the Succession Act 1981 (Qld) (the Act). The applicant initially propounded a will that would see a gift to LJP in the sum of $250,000 with the residuary of KN’s estate split equally between DPN and SDJ. Unsurprisingly in the circumstances that exist, LJP opposed the making of that will. He contended any statutory will made should be no less favourable to him than the intestacy provisions provide. The applicant then propounded a revised will the effect of which was to gift LJP the sum of $300,000, with $500,000 held on trust for the purpose of providing LJP with certain accommodation (any balance being returned to the estate on LJP’s death) and the residuary being split equally between DPN and SDJ. That will is referred to as the Proposed Will. [5] On the morning of the hearing, the parties advised that the parties are now agreed on the Proposed Will. Confirmation was received that KN remained alive. [6] I made orders at the hearing and advised these reasons would be delivered later in the day. Background [7] It is useful to note at the outset that the material reveals what is unfortunately not an uncommon level of distrust and acrimony that can exist between adult children of an elderly parent and the person with whom that elderly parent has in their later years taken up. Much of the children’s material is directed to casting aspersions on LJP, including in respect of his treatment of KN and them and the underlying motives of his relationship with KN and the like. This is not a forum in which those type of allegations will or could be resolved, particularly in circumstances where there has been no cross-examination of any witnesses. [8] However, in the circumstances of the case, I am able to finalise the proceeding without deciding many of the factual disputes between the parties. And so, below I highlight some of the key evidence but note along the way how some of it is contentious. Key facts [9] KN is 84 years of age. She was married to the father of her two children, DPN and SDJ, for approximately 34 years until he passed in February 2004. KN inherited the whole of her first husband’s estate. Prior to his death, KN’s then-current will was one dated 1 February 1991. It left the whole of her estate to her husband and, in the event he predeceased her, in equal shares to her two children. [10] Perhaps prompted by her first husband’s death, KN made a will dated 14 May 2004 (an unsigned copy of the will only is in evidence). That will appointed KN’s children as executors and divided the estate equally between them. [11] KN made a new will dated 17 August 2010. That again appointed KN’s children as executors and divided the estate equally between them. The will changed the identity of the alternate (charitable) beneficiaries in the event KN’s children and grandchildren predeceased her. -- 3 of 18 -- 4 [12] KN then made a new will dated 20 October 2017. That again appointed KN’s children as executors and divided the estate equally between them. The will removed any alternate beneficiaries in the event KN’s children and grandchildren predeceased her. [13] Each of those three wills was prepared by a different firm. It can be inferred that the 2004 will was motivated by the death of KN’s husband. Whilst the other two wills contain some changes, in substance each will otherwise remained the same (same executors and primary beneficiaries), so it is not obvious why KN actually made those later wills. [14] KN and LJP met in about 2010 at the Nundah markets and a friendship developed between them. It turned romantic in about 2012/3. [15] At that time, KN was living in a granny flat on a property owned by SDJ and her husband (half share) and KN (half share) that had been specifically purchased for that purpose in 2012. [16] LJP began staying over with KN at her granny flat on weekends from about 2016 but maintained his own unit at Nundah that he rented through the Department of Housing. LJP was regularly staying with KN at her granny flat from about 2017. In about 2019, KN moved in with LJP at his unit in circumstances where KN had undertaken a hip operation and could not readily use the stairs at the granny flat (a lift was available at LJP’s unit). [17] SDJ asserts that LJP refused to move back into the granny flat when KN was sufficiently recovered but goes on to say that KN and LJP did certain stints at the granny flat for a week or two but returned to the unit. SDJ asserts that KN expressed love for her granny flat but that she could not ask LJP to stay permanently at the granny flat. That may be so, but there is no evidence that KN was unhappy with that position. LJP says that it was KN who wanted to stay in the unit. [18] This is around the time KN’s children assert there was a cooling in the relationship between themselves and LJP, which they seek to predominantly sheet home to LJP and his allegedly controlling behaviours. At least up until that time, the evidence is that KN and her children had loving and supportive relationships. [19] Throughout 2020, LJP and KN sought medical assistance for KN’s cognitive decline. One doctor recorded in a report dated 8 September 2020 in the context of “future planning” that KN had an enduring power of attorney (namely her two children), an advanced health directive and a will. That will would have been the 2017 will. There is no evidence that that discussion of KN’s will resulted in KN taking any steps to update her 2017 will even though by 2020 LJP and KN were permanently living together (which was not the position in 2017). [20] KN and LJP married on 21 May 2022. Whilst the children assert the marriage was carried out in secret, without them having been invited, it is relevant to note that the wedding was held in LJP’s small apartment and there were only a limited number of people invited. Persons who attended the wedding considered it a happy affair. It appears being married or “official” was something both KN and LJP wanted and had discussed prior. The consequence of the marriage was that KN’s 2017 will was invalidated. -- 4 of 18 -- 5 [21] LJP says that up until the marriage there had been no discussions about estate planning or finance, and he had been paying everything for both of them after they had commenced living together. He says it was only after marriage, when his pension was cut off, that he learned KN had some savings behind her. [22] There is evidence, including from third parties, that LJP and KN had a happy relationship, enjoyed living at the Nundah unit and attended social outings together. [23] There is also evidence that LJP did his best caring for KN as her needs increased, particularly from around late 2023. Although it cannot be ignored that LJP was himself an elderly man and eventually was incapable of providing the level of care KN required. Undoubtedly, LJP was doing his best to respect KN’s wishes not to be placed in a facility. Statutory wills: legal principles [24] Section 21 of the Act provides: 21 Court may authorise a will to be made, altered or revoked for person without testamentary capacity (1) The court may, on application, make an order authorising— (a) a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or (b) a will or part of a will to be revoked on behalf of a person without testamentary capacity. (2) The court may make the order only if— (a) the person to whom the order relates (the relevant person) lacks testamentary capacity and is alive when the order is made; and (b) the court is satisfied: (i) the applicant is the appropriate person to make the application; and (ii) adequate steps have been taken to allow representation of other persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the relevant person; and (iii) the proposed will, alteration or revocation is or may be a will, alteration or revocation the relevant person would make if the person had testamentary capacity; and (c) the court approves the proposed will, alteration or revocation. -- 5 of 18 -- 6 (3) For the order, the court may make or give any necessary related orders or directions. (4) The court may make the order on the conditions the court considers appropriate. (5) The court may order that costs in relation to the application be paid out of the relevant person’s assets. (6) To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property. (7) In this section— person without testamentary capacity includes a minor. [25] To enable the Court to make an order under section 21 of the Act, the applicant must give the Court certain information prescribed in section 23, that includes: (a) evidence of the lack of testamentary capacity and the likelihood of the person ever regaining capacity; (b) the size and character of the estate; (c) a draft proposed will; (d) any evidence of the person’s wishes; (e) evidence of any previous will; (f) evidence pertaining to the likelihood of a family provision application; (g) evidence relevant to gifts which the person might have given to charities or otherwise; (h) evidence as to whom the person might have been expected to provide for under their will; (i) evidence of any persons who might be entitled to claim on intestacy; (j) any other relevant facts. [26] On the hearing of an application under section 21, section 25 of the Act provides that the Court: (a) may have regard to any information given to the Court under section 23; (b) may inform itself of any other matter relating to the application in any way it considers appropriate; (c) is not bound by the rules of evidence. [27] In Re Fenwick; Application of J R Fenwick; Re ‘Charles’,1 the Supreme Court of New South Wales considered a similar statutory framework, and observed: 1 (2009) 76 NSWLR 22 (Re Fenwick) at 50 [132]-[133] per Palmer J. -- 6 of 18 -- 7 The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under Pt 2.2 Div 2 of the Succession Act. It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the judge is not a referee; rather, the judge is to endeavour to rectify a problem which is affecting people’s lives, in the best possible way. It is for this reason that s 21 provides that, in hearing an application for an order under s 18 (as distinct from an application for leave under s 20(1)(a)), the Court may inform itself of any matter, in addition to the information provided under s 19, in any manner the Court sees fit. Further, in hearing an application, the Court is not bound by the rules of evidence. For example, the Court may have reservations about the impartiality of an expert medical witness, even though there is no other party to the proceedings who wishes to contest testamentary incapacity. The Court may, in such a case, insist on seeing and hearing the patient for itself. It may require a report from a court appointed expert. Indeed, the Court is more likely to feel the need to use the investigative power expressly conferred on it by s 21(b) in a case where there is no apparent opposition to the application than in a case where the application is opposed by a party legally represented and able to adduce contradictory evidence. [28] Applications for statutory wills can be generally sorted into three categories,2 and this case is one that falls into the “lost capacity” category where the incapacitated person previously had testamentary capacity. [29] The observations of Applegarth J in Re APB, ex parte Sheehy,3 while made in the context of the former two-stage process, remain apposite to the exercise of the Court’s discretion in determining whether to make orders authorising the making of a statutory will:4 … an order authorising a will to be made on behalf of the person requires proof that the person lacks testamentary capacity. If that and the other requirements of s 21 are satisfied then the Court exercises a broad and flexible jurisdiction, and the Court may make the order on the conditions the Court considers appropriate. The discretion at the second stage is not constrained by express statutory criteria. Instead, the discretion should be exercised in the particular circumstances and having regard to the purpose of the legislation. Having regard to the beneficial purpose of the legislation and the protective nature of the jurisdiction, an important consideration in the exercise of the discretion under s 21 is the will the person probably would have made if he or she had testamentary capacity. Other considerations will apply in the particular 2 Re Fenwick at [154]-[188]. 3 [2017] QSC 201. 4 [2017] QSC 201 at [124]-[125] (footnotes omitted). These statements have been followed in MZY v RYI [2019] QSC 89 per Wilson J. -- 7 of 18 -- 8 circumstances, and the legislature having not listed factors, it is inappropriate and unhelpful to articulate the factors which might influence a discretion of the kind conferred by s 21. [30] As such, the appropriate test to be applied is whether the Proposed Will is a will KN “probably would” make if she had testamentary capacity.5 That is a question of fact.6 But noting that even when the test is satisfied there remains a residual discretion to be exercised by the court as to whether an order for a statutory will should be made. Statutory wills: this case Information required in support of application: s. 23 Reason for making the application – s. 23(a) [31] There are two primary reasons why the present application is required: (a) first, the 2017 is no longer in effect as a consequence of KN’s marriage to LJP in 2022; (b) second, KN has lost testamentary capacity, and is unlikely to regain it prior to death. [32] It is therefore necessary for an application to be made on behalf of KN for the making of a statutory will. Lack of testamentary capacity – ss. 23(b) and (c) [33] The classic statement of what constitutes testamentary capacity was set out by Cockburn CJ in Banks v Goodfellow as follows:7 It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. [34] For a person to rightly understand these matters, it is essential that his or her mind be free “to act in a natural, regular, and ordinary manner”.8 [35] In Re Fenwick, Palmer J explained at 49 [126] to [127] that, absent urgency or some compelling reason, the best evidence available as to the purported lack of testamentary capacity is usually that of a specialist professional, for example a 5 See also MZY v RYI [2019] QSC 89 at [201]. 6 Re APB, ex parte Sheehy [2017] QSC 201 at [113]. 7 (1870) LR 5 QB 549 at 565. 8 In the Will of Wilson (1897) 23 VLR 197 at 199, approved by Dixon J in Timbury v Coffee (1941) 66 CLR 277 at 283. -- 8 of 18 -- 9 psychiatrist, consultant physician or clinical psychologist who has recently examined the incapacitated person and who expresses an opinion in a report compliant with the expert witness rules of conduct. Palmer J continued at 50 [130]: The level of satisfaction that a court must feel as to the essential requirement of permanent testamentary incapacity must have regard to the gravity of the power being exercised and to its consequences: cf Briginshaw v Briginshaw (1938) 60 CLR 336. If no more than the minimum level of proof of testamentary incapacity is demonstrated by an applicant at the leave stage, when better proof would be expected, the application may survive [the leave stage] but may founder at [the substantive stage]. [36] I accept the medical evidence that supports the conclusion that KN does not have testamentary capacity to make a new will. [37] I find that KN lacks the requisite testamentary capacity for the purposes of sections 23(b) and (c) of the Act. Size and character of the estate – s. 23(d) [38] KN’s assets equate to about $2.3-2.7 million, comprising a share in real property,9 shares, a refundable accommodation deposit and cash. That estimate is based on taking the value of the real property (of which KN owns half) at $1.34m, the valuation provided in a report obtained by the applicant. There is a competing valuation obtained by the respondent suggesting the property is valued at $2.5-2.75m. For the purpose of this decision, without being able to resolve the dispute in the valuation evidence, I proceed on the basis that an estimate of the size of the estate is $3m. Proposed will – s. 23(e) [39] The terms of the Proposed Will have the effect of giving a $300,000 legacy to LJP and creating a fund of $500,000 from which LJP can meet the costs of aged-person accommodation of various types, with such of those funds as remains upon his death being returned to KN’s estate. The residuary, like KN’s 2004, 2010 and 2017 wills – see at [10]-[12] above, is split evenly between DPN and SDJ. Evidence of KN’s wishes – s. 23(f) [40] I have no difficulty in accepting the proposition that, prior to her relationship with LJP and in the earlier stages of her relationship with LJP (at least up to October 2017 when the last will was made), KN intended and wished her will to benefit her children (and, if predeceased, grandchildren). [41] Even as at 2020 (when KN and LJP had been living together permanently for about a year) when her will was raised in the context of a medical appointment, that apparently did not prompt KN to revisit the terms of her 2017 will. [42] But the relationship with LJP lasted well beyond that and resulted in a marriage to LJP in May 2022. 9 Competing valuation evidence of $1,340,000 and $1,735,000 is the reason for the range. -- 9 of 18 -- 10 [43] I do not consider that there is any strong evidence of KN’s wishes for her estate post her marriage to LJP. It is noteworthy that, soon after the death of her first husband, KN updated her will. She may have done so in the knowledge that the death of her first husband may impact on her will. It is not known in respect of her marriage to LJP whether: (a) she did not know that marriage would invalidate her 2017 will; (b) she did know that but was content for the intestacy provisions to take effect or just had not got around to organising a new will; (c) she simply did not turn her mind to the issue or was starting to suffer from more acute mental deterioration. [44] DPN gave evidence that prior to the onset of dementia KN expressed on numerous occasions that she wished her estate to be left to him and his sister, and that KN spoke about the bloodline and was extremely family orientated. But no better estimate of the time of such expressions is given and I infer it was prior to the marriage to LJP. [45] In September 2024, DPN recorded a conversation with KN. KN does not clearly express any relevant views in that conversation, and it is obvious that DPN conducted the conversation for a purpose and in a leading way, which lessens the weight of anything said by KN. The distinct impression from the transcript is that KN, as a loving mother would, was mostly simply agreeing with DPN, likely to keep the peace. Any previous wills by KN – s. 23(g) [46] KN made three previous wills between 2004 and 2017 – see at [10]-[12] above. Each of those wills was made after the death of KN’s first husband and none of those wills were made at the time of being in a relationship with LJP. Each of those wills in substance left the entirety of KN’s estate equally to her children (or grandchildren if a child predeceased). Any evidence of likelihood of family provision application – s. 23(h) [47] Having regard to Part 4 of the Act, and particularly sections 40 and 41, the persons eligible to apply for provision against KN’s estate are: (a) KN’s children; (b) LJP; (c) LJP’s children (as step-children of KN) (two adult male children). [48] Neither KN’s children nor LJP have filed any evidence of their intention to commence family provision applications against KN’s estate upon his death. The position of LJP’s children is unknown, although they have indicated no desire to take part in this proceeding. [49] It is plain though, depending on the terms of any will, that LJP has the real potential for a claim against KN’s estate based on his present financial circumstances. But that might be affected by property settlement proceedings that are foreshadowed by LJP’s solicitor to be brought on LJP’s part in the Federal Circuit and Family Court of Australia. Relevant to a family provision application brought by LJP would be his -- 10 of 18 -- 11 advanced age and poor health, and the possibility of making provision in a way that would not practically benefit his children.10 Gift for a charitable or other purpose – s. 23(i) [50] Each of KN’s 2004 and 2010 wills made provision for charitable gifts, but only in the event of her children and grandchildren predeceasing. That always seems to have been very unlikely to occur. The 2017 will removed charitable gifts. Similarly, the Proposed Will makes no such gifts. Circumstances of persons for whom provision might be expected to be made – s. 23(j) [51] The people who may reasonably be expected to be provided for from KN’s estate are: (a) KN’s children; (b) LJP. [52] As to DPN: (a) he is 53 years old, recently retrenched (was earning about $90k pa), married with two children aged 15 and eight; (b) he suffers from ADHD and takes medications for that as well as anti- depressants and a sleep aid; (c) his wife has Crohn’s disease; she works (earning about $86k pa); (d) his older child has heart issues, special needs, requires medication and has NDIS support; (e) he lives in a property in Queensland valued at about $1.22-1.3m with a mortgage of about $0.87m; that property requires serious rehabilitation; (f) he describes his financial circumstances as dire; whilst he and his wife’s net asset position is about $390k excluding superannuation, they are overdrawn on credit cards, have repayment plans in place, are unable to make ends meet, are unable to meet his medical needs; and are unable to afford repairs on a broken down vehicle. [53] As to SDJ: (a) she is a 55-year-old special needs educator, married with one child aged 11 years; (b) the child previously suffered from a serious illness, but is in remission, requiring annual testing and medical appointments; (c) both SDJ (earning about $71k pa) and her husband (earning about $90k pa) work; (d) she lives in a house which is half-owned by KN; the property is valued at approximately $1.34m (mortgage liability of about $380k); (e) she receives the income from the granny flat ($250 per week). 10 White v Barron (1980) 144 CLR 431 at 444-445; Hills v Chalk [2009] 1 Qd R 409 at [51]. -- 11 of 18 -- 12 [54] As to LJP: (a) he is an 89-year-old pensioner who previously lived in the Nundah unit rented from the Department of Housing; (b) he is not in good health with recent hospital stays; (c) upon his marriage to KN, his entitlement to a pension was cut and he became no longer eligible for health care concessions, rental and other benefits (importantly meaning that medications are full price); (d) from about November 2022 up until about April 2024, he was receiving $100 per week from SDJ, being part of the rental income on the granny flat; (e) since the parties attended at QCAT in April 2024, he has been receiving $800 a fortnight from KN’s children to account for his loss of pension as a consequence of his marriage to KN;11 (f) his son has been providing him with some financial assistance; (g) he had previously had a bit of savings, but, when KN started living with him and he was paying for everything, those savings became exhausted; (h) however, he has not been able to continue to meet his expenses and has moved out of the unit and in with his granddaughter on the Gold Coast; he would like to move into the facility where KN currently resides. [55] Of the three, the person with the most pressing need is LJP. Persons entitled on intestacy – s. 23(k) [56] Intestacy is the position that presently exists. The first $150,000 will go to LJP with the balance of the estate divided equally between LJP and KN’s two children. The distributions based on an estimated estate of $3m would be: (a) LJP - $1.1m (b) SDJ - $950,000 (c) DPN - $950,000. Any other relevant facts – s. 23(l) [57] The only other relevant fact to note concerns that on 13 May 2026 LJP commenced proceedings in the Federal Circuit and Family Court of Australia (division 2) for property adjustment orders and by those proceedings seeks to receive 65% of the net property pool, including $650,000 on an interim basis to secure placement in the same aged care facility as where KN presently resides. [58] But absent that proceeding being resolved, this application must proceed on the basis that no such orders have been made, and I should not speculate as to what orders might be made. 11 The maximum full age pension for a single person in Australia is $1,200.90 per fortnight (including the pension supplement and energy supplement). How the sum of $800 a fortnight has been arrived at is not clear. -- 12 of 18 -- 13 [59] No other relevant factors are evident. Would the Court be justified in authorising the Proposed Will? s. 21 [60] Pursuant to section 21(2) of the Act, and taking into account the matters in section 23, the Court may only make an order authorising a will on behalf of KN if: (a) KN lacks testamentary capacity and is alive: s. 21(2)(a); (b) it is satisfied that: (i) the applicant is the appropriate person to make the application: s. 21(2)(b)(i); (ii) adequate steps have been taken to allow representation of other persons with a proper interest in the application: s. 21(2)(b)(ii); (iii) the Proposed Will is or may be a will that KN would make if KN had testamentary capacity: s. 21(2)(b)(iii); (c) the Court approves the Proposed Will: s. 21(2)(c). Does KN lack testamentary capacity? s. 21(2)(a) [61] The medical evidence before the Court, which I accept, supports the conclusion that KN does not have testamentary capacity. KN remains alive. Is the applicant the appropriate persons to make the application? s. 21(2)(b)(i) [62] An appropriate person is “typically a close family member and may be a guardian (ie someone with a personal connection and knowledge of the incapacitated person) as opposed to a stranger or officious bystander”.12 [63] The applicant is the appropriate person to make the application because: (a) he is a child of KN; (b) he is, with his sister, an appointed guardian and administrator for KN in respect of certain personal and financial matters; (c) he has been named, with his sister, as executor in each of KN’s three previous wills, and the Proposed Will. Have adequate steps been taken to serve all persons with a proper interest in the application? s. 21(2)(b)(ii) [64] In Re Bridget,13 Hallen J in considering the analogous provision in the New South Wales legislation said:14 (a) “the applicant should take all steps necessary to identify, locate, and serve any person with a legitimate interest in the application”; 12 Re Knight (2020) 42 NTLR 80 at 91-92 [51]. 13 [2018] NSWSC 1509. 14 At [123]-[124]. -- 13 of 18 -- 14 (b) “[t]he class of persons may be wider than ‘persons for whom provision might reasonably be expected to be made by the will’” and is “likely to include … any person entitled on intestacy” and “persons who may have a claim on the bounty of the person lacking capacity”. [65] At [126], Hallen J accepted the following statement of principle set out by Millet J in Re B (Court of Protection: Notice of Proceedings):15 … First the court must be satisfied before it exercises a judicial discretion that it has all the relevant material before it and that it has heard all the arguments which can properly be canvassed and which are directed to the question to be determined. Second all persons materially affected should be given every opportunity of putting their cases forward. Of course there will be exceptional cases in which it will be right to exclude a party from the proceedings, notwithstanding the fact that he is a party interested. Plainly delay, cost, embarrassment and the exacerbation of family dissensions are all relevant matters. But only in the most exceptional circumstances should the consideration to which I have referred be overridden … I approach this matter on the basis that the court has a general discretion concerning notification, but that it is one which must be exercised in relation to the facts of each particular case. In the ordinary case, and in the absence of emergency or need to act with great speed or of some other compelling reason, all persons who may be materially and adversely affected should be notified. [66] The people with a proper interest in the application are KN’s children, LJP and LJP’s children. DPN is the applicant, SDJ has filed material in support of the application and LJP has been served and filed material in the proceeding. [67] LJP has two sons. Service on both those persons has occurred. Orders were made in the proceeding on 18 May 2026 (CDI 9) permitting any person served to seek to be joined as a respondent. That has not occurred. Both have delivered correspondence to the court indicating they do not wish to take part in this proceeding. [68] I am satisfied that adequate steps been taken to serve all persons with a proper interest in the present application. Is the Proposed Will a will KN probably would make if she had testamentary capacity? s. 21(2)(b)(iii) [69] The appropriate test is whether the Proposed Will is a will that KN probably would have made if she had testamentary capacity. It is an objective test as to whether a reasonable person in KN’s circumstances probably would make the Proposed Will if she had capacity. Speculation is not permissible.16 [70] In MZY v RYI,17 Wilson J considered this question in the following context:18 15 [1987] 1 WLR 552 at 556-557. 16 Burns v Estate of Burns (a Protected Person) (2013) 11 ASTLR 362 at [26]-[28]. 17 [2019] QSC 89. 18 At [201] (footnotes omitted). -- 14 of 18 -- 15 …if [the incapacitated person] came to make a will in the hypothetical circumstances, that her physical life were largely as it is and has been in the past, but she had testamentary capacity, and was aware of the surrounding circumstances, she would likely consider the will to be appropriate. [71] Jackson J said in VMH v SEL [2016] QSC 148 at [148] (footnote added): The parties submit that in exercising the discretionary power under s 21 the court should aim to authorise a will that the person would have made if they had been of capacity. The validity of that consideration is recognised in the text of s 24(d).19 An alternative approach is that the court should authorise the will that a reasonable person of capacity in the person’s position would have made having regard to the person’s circumstances. That is all the court can do in some cases, because there is no reliable evidence of any relevant actual wishes. [72] Here there is no reliable evidence of any relevant actual wishes expressed by KN after her marriage to LJP. [73] But I consider that KN’s circumstances included the following: (a) her estate was primarily that built up between herself and her first husband during their long marriage, contributed to by their joint work; (b) she had been proactive about updating her will between 2004 and 2017 and would not have wished for her estate to pass on in intestacy; (c) she had a good relationship with her two children, and was aware of their family health concerns and needs; (d) since she moved in with LJP, at least up until the marriage, he had largely financially supported both of them; (e) the terms of the 2017 will and the fact that in 2020 she did not act to update her will; (f) she would have appreciated that, after the marriage, her assets caused LJP to lose his pension and other benefits; (g) she married LJP and being married to LJP was important to her; (h) she has now (as at 2026) been in a romantic relationship with LJP for over 14 years and married for over 4 years of that time; (i) she would be concerned on her death to provide sufficiently for LJP such that he would have suitable accommodation and a sum of money to protect against exigencies; (j) she might have considered, if properly advised, that the accommodation aspect of the benefit to be provided to LJP might be provided by way of a trust type arrangement (so as to ultimately benefit her own children rather than LJP’s children given the wealth was accumulated by herself and her first husband, and bearing in mind LJP’s advanced age); 19 The earlier version of the Act equivalent to s. 21(2)(b)(iii). -- 15 of 18 -- 16 (k) she would be concerned to pass on a good portion of her wealth, accumulated during the marriage to her first husband, to her children in equal shares. [74] The Proposed Will creates a legacy of $300,000 to LJP and creates a fund from which he can meet the costs of stable accommodation, with those funds remaining after his death to be returned to KN’s estate. The residuary of the estate is then split equally between DPN and SDJ. [75] I note that the Proposed Will in clause 4.2 provides that if LJP receives a matrimonial property settlement from KN’s assets or if provision in substantially the same terms has already been made by LJP, then the benefits to LJP under the Proposed Will are not to occur. That clause is intended to account for the property settlement proceeding commenced by LJP underway or any other arrangements or orders that might be made for LJP during KN’s lifetime. It might be if such matters come to fruition that the statutory will I order be made today should be replaced or updated so as to avoid any potential argument about the applicability or otherwise of clause 4.2. But that is a matter for parties to consider at a future time. [76] I am satisfied that, if KN’s life was largely as it is and had been, but she had testamentary capacity, she probably would make a will in the terms of the Proposed Will. It provides a mechanism to secure suitable accommodation for LJP during his lifetime (but with that occurring on trust, so those funds ultimately flow to her own children) and for a reasonable sum of money to protect against exigencies. Should the Court approve the Proposed Will? s. 21(2)(c) [77] The guiding principle in an application of this nature is that what is done must be for the benefit of the incapacitated person, KN.20 [78] In the above circumstances, I approve the Proposed Will. Non-identification orders [79] In addition to the relief addressed above, the applicant also seek orders that: (a) except by way of court order, the file is not to be searchable by any non-party to the proceeding; (b) the court’s reasons in this proceeding published on the court’s judgment website or in any other publication made to, or accessible by, the general public or a section of the public, are to be in an anonymised form;21 (c) the parties’ names appearing on the court’s electronic file of this proceeding are to be anonymised.22 [80] Non-identification orders are commonly made in cases concerning a person’s testamentary and personal financial affairs.23 20 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 at [48]; Re APB, Ex Parte Sheehy [2017] QSC 201 at [115]. 21 Consistent with the order made by Wilson J in MZY v RYI [2019] QSC 89. 22 Consistent with the order made by McMeekin J in CDG v Siganto [2018] QSC 11. 23 Re OSD; SMA v FJX; OSD v ABJ [2023] QSC 264 at [103] per Muir J. See also MZY v RYI [2019] QSC 89 at [257] per Wilson J; SPM v LWA [2013] QSC 138 per Henry J; Re JT [2014] QSC 163 at [41] per A Lyons J; RKC v JNS [2014] QSC 313 per Philippides J. -- 16 of 18 -- 17 [81] In SPM v LWA,24 Henry J held that such orders ensure public access and open justice whilst also protecting the “truly private affairs” of an individual. [82] In Re OSD (which involved various competing interests concerning the affairs of an incapacitated person, including relief sought under the Powers of Attorney Act 1998 (Qld), the Act and the Trusts Act 1978 (Qld)), Muir J cited SPM v LWA with approval and made orders anonymising the parties to “protect the dignity and privacy of [the incapacitated person], as a person under a legal disability, in relation to her personal testamentary and financial affairs”.25 [83] The orders sought are appropriate in the present case in order to protect the dignity and privacy of KN, as a person under a legal disability, in relation to her personal testamentary affairs. Costs [84] Section 21(5) of the Act empowers the Court to order that the costs in relation to the application for a statutory will to be paid out of KN’s assets. [85] Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) provides that costs are within the Court’s discretion but follow the event unless ordered otherwise. [86] The present application was required in circumstances where: (a) the 2017 will does not reflect the changes in KN’s personal circumstances, in particular her marriage, and is not effectual in any event given the marriage subsequent; (b) given KN’s three wills over the period 2004 to 2017, it is unlikely that she intended her estate to be distributed in intestacy as a matter of principle rather than substance. [87] I am mindful that the applicant sought to personally benefit from the relief sought if granted. That is not to conclude for that reason alone that the applicant has acted unreasonably. I do conclude though that the first version of the proposed will presented to the court was unreasonable and reflected the children’s personal wishes, rather than a true assessment of what will KN would make it she were able. The manner in which the applicant participated in the proceeding is reflective of him acting largely in respect of his and his sister’s own interests. The Proposed Will, which I consider is suitable, came quite late in the proceeding, shortly before the scheduled hearing. [88] However, I do not intend to deprive the applicant of costs. But it does make it even more appropriate for me to also give the respondent his costs. [89] Further, the parties have agreed a position on costs which I consider properly reflects my views above. That is to be given some weight. 24 [2013] QSC 138. 25 Re OSD; SMA v FJX; OSD v ABJ [2023] QSC 264 at [104]-[105] per Muir J. -- 17 of 18 -- 18 [90] I order that the applicant’s costs of the proceeding are be paid from the assets of KN on an indemnity basis; and the respondent’s costs of the proceeding are be paid from the assets of KN fixed in the amount of $96,000 (inclusive of GST). -- 18 of 18 --