Spink v Russell

[2019] QCA 107

Queensland Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Making of a will
3. › Testamentary capacity
4. › Loss or lack of capacity
5. › Statutory wills
6. › Whether proposed will is one the person would probably have made
7. › Whether court may increase provision to accommodate potential family provision claim
8. › Succession Act 1981 (Qld), ss 21, 22, 23, 24
1. Succession
2. › Making of a will
3. › Statutory wills
4. › Role of potential family provision claims
5. › Whether evidence of likelihood of family provision application requires court to satisfy such claims in statutory will
6. › Succession Act 1981 (Qld), s 23(h)
1. Appeal
2. › General civil appeal
3. › Appellate review of discretionary decision
4. › Whether discretion miscarried due to factual error
5. › Whether finding was open on the evidence

Quick Take

In statutory will applications under s 21 of the Succession Act 1981 (Qld), the critical question is whether the proposed will is one the person would probably have made if they had testamentary capacity. Evidence of potential family provision claims is relevant but does not require the court to ensure the statutory will satisfies such claims. Where the evidence shows a consistent testamentary intention, the court should not depart from that intention merely to accommodate a potential family provision application.