SUPREME COURT OF QUEENSLAND

CITATION:	Re: BQL [2020] QSC 271	
PARTIES:	RE: BQL	
FILE NO/S:	BS 4752 of 2020	
DIVISION:	Trial Division	
PROCEEDING:	Application	
ORIGINATING COURT:	Supreme Court at Brisbane
	
DELIVERED EX TEMPORE ON:	16 June 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	15 – 16 June 2020	
JUDGE:	Applegarth J	
ORDER:	1.	Pursuant to s 22 of the Succession Act 1981, leave be granted to the applicant to apply for an order authorising a Will to be made on behalf of BQL.
2.	Pursuant to s 21 of the Succession Act 1981, a Will be made for BQL in the terms of the draft Will that is Exhibit MSR-1 to the affidavit of Melinda Sam Ranson filed 16 June 2020.
3.	The costs of these proceedings of the applicant and of the respondents be paid out of the assets of BQL, on the indemnity basis.
4.	Any copy of the Court’s reasons in these proceedings published on the Court’s judgment website or in any other publication made to, or accessible by, the general public or a section of the public, be in an anonymised form.
5.	The parties’ names appearing on the Court’s electronic file of these proceedings be anonymised.	
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF TESTAMENTARY CAPACITY AND STATUTORY WILLS – where BQL made a will in 2005 following his divorce from the applicant, leaving his estate to a friend – where BQL subsequently made various statements that the applicant would be provided for in his will – where no new will providing for the applicant was ever located – where BQL no longer has testamentary capacity – where the parties agreed on a proposed will – whether leave should be granted under s 22 of the Succession Act 1981 (Qld) for an order authorising a will to be made on BPQ’s behalf – whether the agreed proposed will is a will that BPQ probably would have made
Succession Act 1981 (Qld), s 21, s 22	
COUNSEL:	R Whiteford for the applicant
P E Sorensen for the respondents
A G Rae for the current executor	
SOLICITORS:	Merthyr Law for the applicant
Madsen Law for the respondents
Bradshaw Pattison Lawyers for the current executor	

[1]	This is an application under section 22 of the Succession Act 1981 (Qld) for leave to apply for an order for the making of a statutory will for BQL.  I have heard evidence over two days and have been greatly assisted by thoughtful and comprehensive written and oral submissions.  It is in the interests of everyone that the matter is resolved because of BQL’s indifferent health.  And I think little would be gained by my reserving a judgment to more comprehensively set out matters of law which are really not in contest and a factual narrative which is largely not in contest either.  The Court’s approach to leave applications has been stated in the authorities.  I have had regard to the submissions, including the helpful submissions of Ms Rae this afternoon, whose oral submissions directed me to a number of authorities.  
[2]	In terms of the background facts, they are stated in the written submissions.  Shortly stated, BQL was born in late 1948.  He has two siblings.   He has had little contact with his sister.   He was on reasonable terms with his brother but they had a falling out.  I have had regard to his brother’s submissions but I do not consider that it is likely that BQL would have made provision for his brother in a will.  He did not do so in 2005 and, as matters transpired, I think the decline in their relationship makes it unlikely that he would have made provision for either his brother or his sister.  
[3]	BQL was married to the applicant.  She had three children by a prior marriage.  They married in 1987.  They ran a business together.  BQL treated the applicant’s children as if they were his own.  The children had and have continued to have a close relationship with BQL.  They call him their dad, for example.  He was the father of the bride a few years ago.  That is sufficient to capture the nature of the relationship.  
[4]	Unfortunately, as matters happen, the relationship between husband and wife came under some stress.  The applicant and BQL had different interests in life and they separated in 2002.  They completed a matrimonial property settlement in October 2002.  They divorced on 9 April 2005.  The applicant received $500,000 which was used to purchase and renovate her current home.  BQL kept the former matrimonial home and other properties.  Shortly after the divorce, BQL made a will.  He made that will on 17 June 2005.  It left his estate to CZN, and, if CZN predeceased BQL, to MPZ who has cared for CZN. 
[5]	The evidence concerning CZN is in the submissions.  I will not repeat it in the interests of saving time.  CZN and BQL became friends.  BQL admired CZN as everyone would.  CZN had suffered a disability and had overcome that disability in a commendable way.  As matters transpired, BQL’s interests in their shared recreation diminished and they did not see as much of each other in more recent years and they had little contact in the last few years.  After the divorce, BQL’s relationship with his former wife was re-established, although it may never have been altogether restored.  They were close enough to go on holidays together and each cared for the other.  The applicant had thyroid cancer.  BQL cared for her.  I will not go into all of the details.  He was close with each of his children, if I can call them that, which I will, and expressed support, and also gave them some gifts and financial support.  
[6]	BQL made various statements of testamentary intention.  I will not go into each of them in enormous detail.  The problem is that statements of testamentary intention  made back in 2005 when he had a bitterness to the results of the divorce could not be said to represent his current attitude to his family or the attitude he has displayed in recent years, some 15 or so years after the 2005 will.  By the same token, evidence about recent testamentary intentions has to be treated with considerable reserve because of his diminishing testamentary capacity.  That particularly applies to testamentary statements in 2008 where, for example, it is said that he said to the applicant’s son that the applicant was his sole beneficiary.  
[7]	It is possible that a new will was created that made the applicant the sole beneficiary.  None has been found.  If it was found, one would have to have doubts about BQL’s testamentary capacity and whether, in making any such will, he had remembered why he left all of his estate to CZN so many years earlier.  Instead, I think there is a substantial body of evidence concerning statements to be made back in 2016 about his intention to make provision for the applicant.  For example, it is said, and I accept that, at the wedding in October 2016, he said to his son-in-law words to the effect that, “You’re part of the family now and you’ll be looked after if anything happens to me.”  Then he had a nickname for the applicant, “She and the kids will be fine.”  And that was not to say that she would be the sole beneficiary, but it is consistent with a testamentary intent to provide for her.  The reason why he did not implement that is somewhat complicated.  
[8]	It seems clear enough that BQL wanted to make a new will and there is a body of evidence to suggest that any new will would be to simply change the executor.  That somewhat depended upon DXP’s recollection and I did not find DXP’s recollection of matters particularly reliable.  It is possible that his recollection has been coloured by more recent events.  Suffice to say that if BQL had an expressed intention to change his will, then he would not be the first person to have said that he was going to change his will and then never did so.
[9]	So although the statements of testamentary intention are, in some respects, conflicting and imprecise, I think there is a substantial body of evidence, which I accept, that BQL did have an intention to benefit his family.  Statements to the effect that he did not trust them to look after his financial affairs are to be seen, I think, as a statement as to whether he wanted them to, for example, be a director of a corporate trustee of his self-managed superannuation fund.   It was based on the opinion, which he no doubt held, that they, by reason of experience or competence, were not up to conducting that fund.  But, unfortunately, other people he approached in that regard did not want to take on that role and his inability to obtain someone who would agree to be a new executor might explain the lack of progress in him implementing a new will.
[10]	I have had regard to RPM’s evidence about what was said.  It is hard to tell whether that was a jocular remark or whether it reflected some settled view that his family were not to get anything.  Given the circumstances, I think I should place very little, if any, weight upon it.  It showed some recognition that, in ordinary circumstances, they would be the next in line if he did not spend all the money first.  But, as I say, the statement made to RPM in around 2017 is rather ambiguous.  I would not regard it as being particularly weighty in terms of what BQL’s testamentary intention was.  
[11]	So ultimately one has, on the one hand, in considering what will BQL would make today if he had testamentary capacity, the tie of friendship and admiration to CZN as against the familial ties and the appreciation which he had of the companionship and support of the applicant and her children.  Ultimately, I think that the proposed will is one which BQL may have made.  It is possible that he may have made a will in slightly different percentages.  The applicant and the active respondent have reached what I will loosely describe as a compromise whereby they advance a certain will.  It is not my role to simply rubber-stamp a compromise in this jurisdiction any more than it is to rubber stamp a compromise in any other jurisdiction.  I have to be satisfied not only that the proposed will is a will that BQL may have made for the purpose of granting leave, but also that I should make an order that the proposed will is a will that should be the subject of an order for a statutory will.  
[12]	It would have been possible for the applicant to argue that CZN would receive a much smaller percentage than provided for in this will and it would have been open to CZN to argue that he would have been provided with more.  It seems to me that, in this case, I ought make an order in terms of the proposed draft will.  I think there would be some degree of artificiality in making some minor adjustment from 42.5 per cent down to 40 or up to 45 or even 50 per cent.  
[13]	Ultimately, if BQL was making a will today, he would have regard to the needs of CZN and his legitimate desire to own a home, have it renovated, obtain a vehicle and he would provide a little bit more.  BQL may have miscalculated those things and come in at a figure of 40 per cent.  He may have overestimated those things and come in at a figure of 50 per cent.  My point is that, although it is possible that BQL would have made a will that split matters 40 per cent to CZN and 60 per cent to the applicant, in this protective jurisdiction, I ultimately reached the conclusion that this is a will that he may have made and it is in everyone’s interests, particularly BQL’s interest, that matters be resolved in accordance with what was said during what was apparently a recent lucid interval.  BQL said that he did not want people fighting.  And I take that into account.  
[14]	If I was to tinker by a few per cent with the percentages that are proposed here, that is all I would be doing:  tinkering.  And, in circumstances where BQL himself clearly did not want people fighting, that is an additional reason why I ought to conclude that this is a will that should be made. Although it reflects a compromise, it is the kind of will that BQL probably would have made.  Therefore, I propose to make an order as per the draft to be submitted.