List members Rebecca Treston QC, Caite Brewer, and Katrina Kluss appeared in the matter of Spink v Russell, 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.
The application at first instance was made pursuant to sections 21 and 22 of the Succession Act 1981 and concerned a complex and very large estate. The testatrix, MAG, had made a will in 2014 in which she relevantly provided a gift of $1 million to her stepdaughter, the respondent (the 2014 Will). This gift was substantially less than that provided for MAG’s three other children, on the basis MAG did not share a close relationship with the respondent.
Some time after 2014, there were significant changes to family arrangements which affected the distribution of MAG’s estate under the 2014 Will. By this time, however, MAG had lost testamentary capacity, such that it was necessary for her litigation guardian to apply to the court to authorise the making of a new will to accommodate these changes on behalf of MAG (the Proposed Will). Relevantly, the Proposed Will maintained the same gift to the respondent in the amount of $1 million.
At first instance, 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.
On appeal, the Court was required to consider the extent to which the court should weigh the prospects and value of a family provision application as part of a statutory will application against the views and wishes of the testator. In allowing the appeal, the Court set aside the order which increased the respondent’s gift and approved the Proposed Will without alteration.
Given concerns about MAG’s deteriorating health, the Court made orders on the same day as the hearing, with reasons to follow.
