Blumke v Campbell - [2020] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

Blumke v Campbell & Anor [2020] QCA 217

PARTIES:

JANINE MAREE BLUMKE
(appellant)
v
SUZANNE CAMPBELL
(first respondent)
WENDY HOOK
(second respondent)

FILE NO/S:

Appeal No 4014 of 2020
SC No 1470 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 16 March 2020 (Bradley J)

DELIVERED ON:

2 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2020

JUDGES:

Morrison and Philippides JJA and Henry J

ORDERS:

1. Appeal dismissed.

2. The appellant will pay the respondents’ costs of the appeal to be assessed on the standard basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the respondents successfully applied for the making of a statutory will on behalf of their aged father, the statutory testator – where the appellant is the sister of the respondents and the daughter of the statutory testator – where, over a number of years, the appellant exercised undue influence over the statutory testator – where a Supreme Court judge, in a separate proceeding, had made findings against the appellant that she had procured transactions related to the statutory testator’s family trust via undue influence and unconscionable conduct towards the statutory testator – where the statutory will proposed by the respondents contained a “hotchpot clause” which had the effect of causing any loss to the statutory testator’s estate occasioned by the appellant’s misconduct to fall on the appellant – where the “hotchpot clause” contained the theoretical possibility of losses suffered by the statutory testator’s estate not caused by the appellant’s misconduct to fall on the appellant – whether the learned primary judge erred by ordering the proposed statutory will be made

Succession Act 1981 (Qld), s 21, s 22, s 24(d)

Campbell & Anor v T.L. Clacher No. 2 Pty Ltd & Ors[2019] QSC 218, considered
GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308, cited
Re APB, ex parte Sheehy[2017] QSC 201, considered
Spink v Russell[2019] QCA 107, applied

COUNSEL:

P Looney QC, with I Klevansky, for the appellant
R M Treston QC, with B A Reading, for the respondents

SOLICITORS:

Mills Oakley Lawyers for the appellant
Thynne & Macartney for the respondents

MORRISON JA: I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.
PHILIPPIDES JA: I agree with the reasons for judgment of Henry J and the orders proposed by his Honour.
HENRY J: The appellant and respondents are sisters. The respondents, Suzanne and Wendy, were granted an order by a Supreme Court judge authorising the making of a statutory will on behalf of their elderly father, Thomas. The appellant, Janine, appeals that decision.[1]
[1]Intending no disrespect, I adopt the first names of the players for simplicity.
Background
It is common ground that Thomas, who has since died, did not have testamentary capacity at the time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blumke v Campbell

Details

AGLC: Blumke v Campbell [2020] QCA 217
Case: [2020] QCA 217
Decision Date: 2 October 2020

CaseChat Overview and Summary

Blumke v Campbell involved a dispute over the making of a statutory will on behalf of Thomas, an elderly man who lacked testamentary capacity. His daughters, the respondents, sought to have a statutory will made in his name, which included a "hotchpot clause." This clause would redistribute any loss to the estate caused by the misconduct of one of the daughters, Janine, who had previously exercised undue influence over Thomas. The appellant, Janine, contested the making of the statutory will, arguing that the court had erred in authorising it. The central legal issue was whether the primary judge had erred in ordering the statutory will to be made, given the potential for the hotchpot clause to unfairly burden Janine with losses not directly caused by her misconduct.

The Queensland Court of Appeal found that the statutory will could be authorised by the court under the Succession Act 1981 (Qld). The court noted that the process of authorising a statutory will requires the court to approve the proposed will. However, the court also acknowledged that the hotchpot clause might theoretically result in Janine being liable for losses not caused by her misconduct. Despite this theoretical possibility, the court held that the primary judge had not erred in authorising the statutory will. The court reasoned that the primary judge had considered all relevant factors, including the undue influence exerted by Janine, and had approved a will that reflected Thomas's likely intentions.

The Court of Appeal dismissed the appeal, holding that the primary judge had not erred in authorising the statutory will. The court ordered that the appellant would pay the respondents' costs of the appeal. This decision underscores the importance of considering the broader context and factual realities of each case when authorising statutory wills, even when theoretical possibilities of unfairness exist.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant will pay the respondents’ costs of the appeal to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is correct that the reasoning underlying the hotchpot clause apparently assumes any diminution in the value of Thomas’ personal assets and interests after mid-2014 would have been occasioned by the conduct of Janine and her husband in the era of their undue influence and unconscionable conduct described in the judgment of Jackson J. The complaint thus raised is that assumption does not allow for the theoretical possibility of a diminution being occasioned by other events, with no connection to that conduct, and that Thomas is unlikely to have wanted to visit the potential consequence of such a diminution only upon Janine’s share of the estate. Consideration of that complaint, of a theoretical possibility and its significance, requires consideration of the nature of statutory will making and some factual realities about how the case was litigated below.Consideration The authorising of a statutory will by a court is allowed by s 21 Succession Act 1981 (Qld) which, at the time of the application, relevantly provided:“21 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity(1)The court may, on application, make an order authorising—(a) a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or(b) a will or part of a will to be revoked on behalf of a person without testamentary capacity.(2)The court may make the order only if––(a) the person in relation to whom the order is sought lacks testamentary capacity; and(b) the person is alive when the order is made; and(c) the court has approved the proposed will, alteration or revocation.” At the time of the application s 22 required that the application for a s 21 order could only be made with leave. Section 23 contained a list of materials to be provided to the court on the hearing of the leave application.[11] Section 24 listed pre-requisites for the granting of leave relevantly as follows:“24 Matters court must be satisfied of before giving leaveA court may give leave under section 22 only if the court is satisfied of the following matters––…(d)the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;(e)it is or may be appropriate for an order to be made under section 21 in relation to the person.”[11]The need for leave was removed by amendments contained in part 36 Justice and Other Legislation Amendment Act 2020 (Qld), which took effect on 25 May 2020. The amendments deleted ss 22 and 24 and amended s 23, to require the materials it lists as being for the hearing of the application as distinct from for the leave application. They also imported some of s 24’s pre-requisites for leave, including s 24(d), into the requisites in s 21 for the making of the order authorising the statutory will. The order of the court pursuant to s 21 is one authorising the making of a statutory will. The will so authorised is not actually “made” until properly executed by the Registrar pursuant to s 26. However, the content of the will is nonetheless a product of the authorisation process in that “a draft of the proposed will” is to accompany the application for leave, pursuant to s 23(e), and if leave is granted, it is a pre-requisite to the court’s authorisation that it has “approved the proposed will”, pursuant to s 21(2)(c).

CITATION:	Blumke v Campbell & Anor [2020] QCA 217
PARTIES:	JANINE MAREE BLUMKE (appellant) v SUZANNE CAMPBELL (first respondent) WENDY HOOK (second respondent)
FILE NO/S:	Appeal No 4014 of 2020 SC No 1470 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 16 March 2020 (Bradley J)
DELIVERED ON:	2 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2020
JUDGES:	Morrison and Philippides JJA and Henry J
ORDERS:	1. Appeal dismissed. 2. The appellant will pay the respondents’ costs of the appeal to be assessed on the standard basis.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the respondents successfully applied for the making of a statutory will on behalf of their aged father, the statutory testator – where the appellant is the sister of the respondents and the daughter of the statutory testator – where, over a number of years, the appellant exercised undue influence over the statutory testator – where a Supreme Court judge, in a separate proceeding, had made findings against the appellant that she had procured transactions related to the statutory testator’s family trust via undue influence and unconscionable conduct towards the statutory testator – where the statutory will proposed by the respondents contained a “hotchpot clause” which had the effect of causing any loss to the statutory testator’s estate occasioned by the appellant’s misconduct to fall on the appellant – where the “hotchpot clause” contained the theoretical possibility of losses suffered by the statutory testator’s estate not caused by the appellant’s misconduct to fall on the appellant – whether the learned primary judge erred by ordering the proposed statutory will be made Succession Act 1981 (Qld), s 21, s 22, s 24(d) Campbell & Anor v T.L. Clacher No. 2 Pty Ltd & Ors[2019] QSC 218, considered GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308, cited Re APB, ex parte Sheehy[2017] QSC 201, considered Spink v Russell[2019] QCA 107, applied
COUNSEL:	P Looney QC, with I Klevansky, for the appellant R M Treston QC, with B A Reading, for the respondents
SOLICITORS:	Mills Oakley Lawyers for the appellant Thynne & Macartney for the respondents