Will Application Dismissed – Re CGB [2017] QSC 128

Last week the Supreme Court of Queensland gave its reasons for dismissing an application for a Statutory Will in a $17.3 million dollar estate. The judgement can be found here.

The proposed testator (referred to in the judgement as “CGB”) was based in the Gold Coast area. To preserve the privacy of those involved in the case, the judgement was handed down in de-identified form.

CGB was aged 83 and had been a quadriplegic since he was 40. He had conducted business from his home in Broadbeach before he was moved into an aged care facility in Robina. He had never been married, had two children and an estate worth $17.3 million. Interestingly, he had only recently made contact with his two children in the last 4 years.

The Courts dismissal of the application means that unless an appeal is brought, or a new application is made (and held to be successful), the proposed testator’s two children are set to inherit their father’s estate on intestacy.

The Application

The application for the Statutory Will was initially bought by the proposed testator’s accountant, who later discontinued proceedings due to a potential conflict of interest. A litigation guardian was subsequently appointed.

The draft Will was proposed included a number of legacies to certain persons (including his children and a charity, namely, the Spinal Research Institution Ltd).

During the trial, the Court heard evidence from a number of persons including:

  • his children;
  • carers;
  • his solicitor from some years ago;
  • his brother;
  • his accountant;
  • his assistant and driver; and
  • his mortgage broker

The reasons for the Court’s judgement

The Court was required to examine whether the proposed Will “…is or may be a Will….that the person would make if the person were to have testamentary capacity” (s 24(d) of Succession Act 1981).

The Court distinguished the Queensland Succession Act 1984 from the NSW Succession Act 2006 which requires that the proposed Will “is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity” (s22(b) Succession Act 2006).

The Court stated that in the Queensland legislation, the use of the word “may” “suggests a lower evidential base to satisfy the test”(at 105).

The Court was influenced by the fact that in the proposed testator had twice instructed lawyers about drafting a Will. In both instances, his lawyers stated that it was difficult for the proposed testator to commit to instructions.

Ultimately, the Court was not convinced the proposed Will was one that the proposed testator would have made had he had testamentary capacity. The Court referred to the case of Re Fenwick (which is the leading case in NSW on Statutory Wills) stating that that Court should not simply presume that the proposed testator did not wish to die intestate. If the Court believes that the testator didn’t propose to make a Will at all, then the provisions of clause 24 (d) are not satisfied.

The Court held that the proposed testator was indifferent to dying intestate. The Court commented that he intended to make a Will at some point, and took steps to consult a solicitor, but that he was “ambivalent about whether he did make one or died intestate” (at 141).

The Court also looked at the fact that eligible applicants would be entitled to bring Family Provision Applications if they were left without adequate provision on the proposed testator’s death.

The judgement is a lengthy one, and the application was possibly prejudiced by the terms of the proposed Will (specifically, the number of legacies contained in the proposed Will). Even though the application failed, the Court ultimately ordered that all parties’ costs in the proceedings be paid out of the proposed testators on an indemnity basis, which was quite a generous order.