List members Rebecca Treston QC, Caite Brewer, and Katrina Kluss appeared in the Court of Appeal on 11 April 2019 in the matter of Spink v Russell [2019] QCA 107, which was only the second statutory will matter ever heard by the Queensland Court of Appeal.
This matter considered how a potential family provision application ought to be dealt with in the context of a statutory will application under sections 21 to 25 of the Succession Act 1981. Ms Treston QC and Ms Kluss appeared for the appellant, and Ms Brewer and Ms Pip Coore appeared for the respondent.
A summary of the matter can be viewed here.
The application at first instance was made pursuant to sections 21 and 22 of the Succession Act 1981 on behalf of MAG, and concerned a complex and very large estate. All parties (being the various beneficiaries under the Proposed Will) agreed with the contents and structure of the Proposed Will, save for the respondent, who contended her gift should be increased from $1 million to $5 million. A relevant consideration for the court to take into account was the likelihood of a family provision application being brought by any eligible person, including the respondent. Ryan J made orders authorising the Proposed Will, but ordered that the gift to the respondent be increased from $1 million to $4 million.
Due to concerns about MAG’s deteriorating health, the Court of Appeal heard the matter urgently on 11 April 2019. The Court immediately allowed the appeal, making orders on the same day as the hearing, by which the gift to the respondent of $4 million was substituted with a gift of $1 million, consistent with MAG’s last will made at a time when she still had capacity, and the Proposed Will, with reasons to follow.
The Court of Appeal delivered reasons this morning, which can be viewed here.
The Court found that it was not open on the evidence before the learned primary judge to conclude that a will which contained a gift to the respondent of $4 million, being $3 million more than the $1 million for which both MAG’s previous will and the Proposed Will provided, was a will the testator would probably have made.
