List member Rebecca Treston QC and Caite Brewer both appeared in a case in which Justice Applegarth today ordered a statutory will be made. It is one of the largest value, and most complex, statutory will cases to have come before the Supreme Court of Queensland.
The elderly gentleman had business interests including a joint venture arrangement over a retail and business centre in South East Queensland. His assets were estimated to be worth approximately $70m, accompanied by a monthly income of over $200,000.
The parties to the case included the man’s litigation guardian, his three adult children, his trusted solicitor of long standing, his joint venture partner, various friends of 50+ years, two charities, an estranged grandson, and various “new friends” including a Gold Coast real estate agent and solicitor.
Justice Applegarth ordered a will which included:
- Certain trust arrangements to protect the joint venture partner during the life of the joint venture;
- Pecuniary legacies to some old friends in varying amounts;
- Pecuniary legacies to the three children of $500,000 each;
- A pecuniary legacy to the estranged grandson of $300,000;
- Division of the residuary estate (upon the winding up of all trusts) as follows:
- Adult child 1 and 2 – 262/3%;
- Adult child 3 and his wife (combined) – 212/3%;
- two charities – 10% each;
- estranged grandchild 5%.
The difference between adult child 1 and 2, and adult child 3, was that his Honour was not satisfied that adult child 3 would provide on death for his ex-nuptial child in the same way as adult children 1 and 2 would provide their children. His Honour therefore made separate provision for that grandchild alone.
His Honour made no gift at all in favour of the 3 out of the 4 “new friends” (who had each sought a legacy of $1.4m) on the basis that their conduct rendered them undeserving. In respect of two of them, his Honour described their conduct as “disgraceful”. That conduct included removing the elderly gentleman from hospital without being discharged and taking him straight to a solicitor’s office to rearrange his legal affairs including the revocation of a power of attorney and subsequently the drafting of two new wills. The fourth “new friend” received a pecuniary legacy of only $20,000.
Whilst not deciding costs, which are reserved for further submissions his Honour observed on a preliminary basis:
“ … There should not be a presumption, even in respect of large estates, that every affected party should have their costs paid out of the person’s assets. …
 … The lack of provision made for (three out of the four “new friends”) and the modest provision made for (the fourth) when compared to what was sought by those parties when they filed their affidavits does not dispose me to make an order that their costs be paid out of the assets of (the incapacitated person).
 The unusually large value of LWA’s assets should not be a reason to adopt the approach that all parties should have their costs paid out of (the incapacitated person’s) assets. …”