Fay Margaret Sadler v Timothy Eggmolesse  QSC 40
In February 2013, the Queensland Supreme Court considered whether to create a Will on behalf of a person who had a significant estate as a consequence of a compensation payment, but lacked the necessary testamentary capacity to create a Will on their own behalf.
Matthew Eggmolesse (Matthew), was born on 1 September 1987, and developed severe medical complications at birth. Consequently, he sustained a severe brain injury and suffered mental and physical impairment during his life. Matthew had no capacity to care for himself and communication was limited to blinking to signify his wishes. Matthew’s mother, Fay Sadler, was his full time carer and the applicant in the proceedings.
On 22 November 2002, Matthew received a compensation settlement of $1,769,684.76 arising from negligence in connection with his injuries. The funds were held by Public Trustee on behalf of Matthew. Public Trustee had applied some of the funds to purchase a property for Matthew and his family to reside in. The property and the remaining funds from the compensation order comprised the whole of Matthew’s estate.
The applicant’s marriage to Matthew’s father broke down and they separated in 1994, however their divorce was not made absolute until 2012. Since their separation, Matthew’s father had minimal contact with Matthew.
Due to his injuries, Matthew was unable to make a Will and it was apparent to Justice Atkinson that he would never have the capacity to make a Will in the future. Without a Will, Matthew would die intestate, his mother and father equally receiving his estate.
In 2006, amendments were made to the Succession Act 1981 (Qld) (Act) allowing the Court the power to make a Will for a person lacking testamentary capacity. In order to make such an order, the Court must, amongst other things, determine whether the proposed Will is, or may be, a Will that the incapacitated person would make if that person had the testamentary capacity to do so.
Justice Atkinson was satisfied that if Matthew was capable of understanding the way in which the applicant had devoted her life to him since birth, he had no doubt that Matthew would want her to benefit from his Will. Further, it was considered reasonable to assume that in light of the close relationship between Matthew and his brothers, if he had capacity, he would also bequeath some of his estate to them.
Comment: While in most circumstances an individual’s lack of testamentary capacity prevents them from preparing a Will, there are some instances in which their personal circumstances do require the Court’s intervention. Similar statutory provisions exist in all Australian states and territories and while the key test for consideration may vary between jurisdictions, the best interests of the individual will always be a paramount consideration for the Court in addition to the motivations of the person seeking the order. This case is unique on its facts but does cause the editors of this publication to consider the ability of such wills to be made, in a broader context.