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Derek Legal Blog

Author: Derek Legal


Derek Legal Blog

Number of blogs returned: 1 to 5 records of 12

How to Make a Will For a Person Who Lacks Testamentary Capacity

To make a valid will a person must have testamentary capacity. To have testamentary capacity the following must be shown:


1.       The Testator must be aware, and appreciate the significance, of the Act in the law upon which he is about to embark;

2.       The Testator must be aware, at least in general terms, of the nature, extent and value of the estate over which he has a disposing power;

3.       The Testator must be aware of those who may reasonably thought to have a claim upon his testamentary bounty, and the basis for, and the nature of, the claims of such persons;

4.       The Testator must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.


A person who had testamentary capacity may lose it in a number of ways, for instance by suffering a head injury or having dementia. A person who lacks testamentary capacity may not have a will, or the will that, that person does have is no longer suitable because of a change of circumstances.

The Succession Act 1981 provides a court may authorise a will to be made, altered or evoked for a person without testamentary capacity.


Subsection 2 provides “the court may make the Order only if”: -

(a)    The person in relation to whom the Order is sought lacks testamentary capacity;

(b)    The person is alive when the Order is made;

(c)     The Court has approved the proposed will alternation or revocation.


Section 22 provides that a person may only apply for an Order under Section 21 with the court’s leave.

Section 23 provides the information required by the court in that application.

Section 24 provides what the court must be satisfied of before granting leave under Section 22 namely:


A court may give leave under section 22 only if the court is satisfied of the following matters—

(a) the applicant for leave is an appropriate person to make the application;

(b) adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought;

(c) there are reasonable grounds for believing that the person does not have testamentary capacity;

(d) the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;

(e) it is or may be appropriate for an order to be made under section 21 in relation to the person.


Before the court gives leave, the court must be satisfied of all the matters in Section 24.

Recently, the Court gave leave in a case where the Testator had made a will and thereafter suffered an acquired brain injury as a result of an accident. At the time the will was made, the Testator had little in his estate. The Testator received a substantial Award of Damages and the court approved a new will which dealt with the vastly enhanced state.

Posted in: Derek Legal Blog at 28 February 18

What Can Be a Will

How a person’s estate is dealt with after their death is governed in Queensland by the Succession Act 1981. The estate will pass either under a will or if a will has not been made as an intestacy. The Succession Act sets out how the estate is distributed on the intestacy.

The important parts of what must be done to have a valid will are found in Section 10 of the Succession Act which provides:


10 How a will must be executed

(1) This section sets out the way a will must be executed.

(2) A will must be—

(a) in writing; and

(b) signed by—

(i) the testator; or

(ii) someone else, in the presence of and at the direction of the testator.

(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.

(5) However, none of the witnesses need to know that the document attested and signed is a will.

(6) The signatures need not be at the foot of the will.

(7) The signature of the testator must be made with the intention of executing the will.

(8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.

(9) A will need not have an attestation clause.

(10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will.

(11) If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.

(12) If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.


However, the Act makes provision for the Court to intervene and ameliorate Section 10. This is found in Section 18 of the Succession Act.


18 Court may dispense with execution requirements for will, alteration or revocation

(1) This section applies to a document, or a part of a document, that—

(a) purports to state the testamentary intentions of a deceased person; and

(b) has not been executed under this part.

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3) In making a decision under subsection (2) , the court may, in addition to the document or part, have regard to—

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2) .

(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.


Importantly, the Acts Interpretation Act has a wide definition of what is a document and this provides:


document includes—

(a)any paper or other material on which there is writing; and

(b)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and

(c)any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).


As can be seen this has the potential for many things to be admitted to probate as a will.

In Queensland, in Nichol v Nichol [2017] QSC 220 it was held than an unsent text message was a will. In Tinker (d’ced) [2016] QSC 217, a handwritten informal will executed by the deceased but not witnessed was held to be a will. In Victoria, which has similar legislation an informal will typed on a computer was held to be a final will.

What the Court has to be satisfied of is that: -

(1)    There must be a document

(2)    The document must express or record the testamentary intentions of the deceased

(3)    The document must have been intended by the deceased to be his or her will

Posted in: Derek Legal Blog at 21 February 18

When Can I Change Parenting Orders

After separation, the arrangements for children of a marriage or a de facto relationship are governed three ways.


1.       By mutual agreement between the parties

2.       By a Consent Order in the Family Court or the Federal Circuit Court of Australia

3.       By an Order made after trial in one of the two Courts.


Where the arrangements are governed by mutual agreement without the need for an Order, then the parties are free to change the arrangement at any time as long as there is agreement. If there is not agreement, then the parties will have to go into the Court system to resolve that difficulty.

The Law mandates that all decisions in relation to children must be in their best interests. It follows therefore, that if the arrangements are governed by either a Consent Order or an Order after trial, those Orders reflect what is in the best interests of the children.

Section 60CC of the Family Law Act 1975 provides for how Court determines what is in the child’s best interests. Of particular importance, when considering trying to change a current Order is Section 66CC (3)(D) which provides. “The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:


(i)                  Either of his or her parents; or

(ii)                Any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living”


Section 60CC (3)(L) which provides “whether it will be preferable to make an Order that would be least likely to lead to the institution of further proceedings in relation to the child.”

Since 1978, Courts exercising the Family Law Act jurisdiction in relation to children when asked to vary an existing Order invariably apply what is called ‘The Rule in Rice v Asplund’. Fundamentally, what that case says is the Court should not change Orders unless there exists a substantial change in circumstances.

What is a substantial change in circumstances is of course a question of fact and will vary in a case by case basis. For instance, if the custodial parent wishes to take the child out of the country that would be a substantial change in circumstances. Similarly, if the Orders were made at a time when the age of the children was such that their wishes were not taken into account and now their age is, that would be a substantial change as is allegations of sexual abuse. A decision on the Rice v Asplund point can be done on the first return date on the material filed or after a full hearing. But the test remains the same and is not for the Judge hearing the application to decide whether he or she would’ve made the decision that the first Judge made of the Orders under challenge, but rather have the circumstances so changed that, that Order would not have been made and should be changed.

The test remains what is in the best interests of the child.

Posted in: Derek Legal Blog at 19 February 18

Best Interests of the Child

Part 7 of the Family Law Act 1975 deals with how a Court must approach deciding with whom a child shall live following the separation and how the child will spend time with the other parent.

Parties who separate, amicably and agree who their children are going to reside with and how they are going to spend time with the other party without the need of an Order, are free to do so even though the arrangement may not pass the test of what’s in the best interests of the child.


Section 60B provides:


60B Objects of Part and principles underlying it

(1)  The objects of this Part are to ensure that the best interests of children are met by:

(a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)  parents should agree about the future parenting of their children; and

(e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).


As can be seen, Section 60B (1) and (2) focuses on the child and litigants in person are often told by a Judge that their proposals are not child focused and are not in the best interests of the child. It is an easy trap for couples who have re-partnered to fall into, focusing on how to make the new relationship work, rather than focusing on what is in the best interests of the child given the fact of the new relationship. What needs to be focused on is stability and safety, while recognising the child’s right to have a meaningful relationship with each parent.

Posted in: Derek Legal Blog at 13 February 18

Good Fences Make Good Neighbours

The law in relation to dividing fences is found in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. A dividing fence is a fence on a common boundary of adjoining land. The Act specifically does not affect the common law, which states that a dividing fence on a common boundary is owned equally by the adjoining owners.

The adjoining owners are each liable to contribute equally to carry out fencing work for a sufficient dividing fence. But if one of the owners wants a fence of a greater standard, that owner has to pay the difference between the cost of a sufficient dividing fence and the greater standard fence.

To build a dividing fence and have the adjoining owner contribute to it, it is necessary for the owner who wishes to build the fence to give a notice requiring the adjoining owner to contribute to the cost. That notice must give a description of the land upon the fencing work that is proposed to be carried out, the type of fencing work proposed to be carried out and the estimated costs and must be accompanied by at least one working quotation. The owner requiring the work to be carried out may by notice suggest that the cost can be other than equal proportions. If there is not an agreement within one month, either owners may apply within two months to the Queensland Civil Administrable Tribunal. That tribunal has jurisdiction to adjudicate these matters.

The Act specifically provides that a retaining wall is not a fence, so disputes about retaining walls are dealt with by the common law.

At common law, the lower property owner has an obligation to support the land of the higher property owner. In other words, if the lower property owner cuts the block so as to flatten it leaving a cliff edge for the upper block, the owner of the lower block is required to support that land and that of course is usually done or would almost inevitably be done by a retaining wall. At common law, the land owner in occupation of land has a duty when the land owner is aware or ought to be aware of the hazardous conditions of land, which puts the neighbour’s land at risk to take such steps as that are reasonable in all the circumstances to prevent or minimize the risk of injury or damage to the neighbour’s property. It is not the duty of the land owner to replace the retaining wall or otherwise retain its land at its own expense, but it is a duty to do what is reasonably necessary in all the circumstances. What is reasonable as circumstances is a question of fact and the age of the retaining wall will be one of the relevant facts.

If the retaining wall however is of recent origin and it fails, then it will be the builder of the wall who will ultimately be liable.

Posted in: Derek Legal Blog at 07 February 18

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