HYN v KZW

[2024] QSC 331

SUPREME COURT OF QUEENSLAND

CITATION:

HYN v KZW [2024] QSC 331

PARTIES:

HYN

Applicant

v

KZW

Respondent

FILE NO:

BS 5981 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 June 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2024

JUDGE:

Hindman J

ORDER:

1. Pursuant to s 21 of the Succession Act 1981 (Qld), a will be made for KZW in the form of the proposed will appearing at pages 162 to 172 of exhibit “JH1” to the affidavit of HYN filed on 13 May 2024.

2. Pursuant to s 21(5) of the Succession Act 1981 (Qld), the applicants’ costs of the proceeding be paid out of the assets of KZW on the indemnity basis.

3.   A pseudonym be applied to the names of the parties to the proceeding to protect the privacy of KZW.

4.   The applicant’s costs be assessed on the indemnity basis and be paid out of the assets of KZW.

5.   There be no order as to the costs of the respondent or S1.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the applicant seeks an order under section 21 of the Succession Act 1981 (Qld) for a will to be made – where the relevant person has three children who had been included in various wills of the testator – where the relevant person suffers from dementia – whether the relevant person lacks testamentary capacity and is alive – whether the applicant is the appropriate person to make the application – whether adequate steps have been taken to allow representation of other persons with a proper interest in the application – whether the proposed will is or may be one the relevant person would make if she had testamentary capacity – whether the court should make an order authorising the proposed will to be made

Succession Act 1981 (Qld), ss. 21, 23, 25

Banks v Goodfellow (1870) LR 5 QB 549, applied
De Gois v Corp [2005] VSC 326, cited
Frizzo v Frizzo [2011] QSC 107, applied
Laurie v Hwang (2013) 1 ASTLR 58, cited
Re Fenwick (2009) 76 NSWLR 22, cited

Re Kelso [2010] NSWSC 357, cited

COUNSEL:

A H Bratti for the applicant

No appearance for the respondent, or the other children of the respondent

SOLICITORS:

Marino Law for the applicant

No appearance for the respondent, or the other children of the respondent

Introduction

1. This proceeding involves an application for the court to make an order under section 21 of the Succession Act 1981 (Qld) (the Act) authorising a will to be made on behalf of KZW, who is also known as KZW, in terms approved by the court.  The Supreme Court has jurisdiction to authorise the making of a will on behalf of a person who lacks testamentary capacity.  The jurisdiction is protective in nature and is informed by the jurisdiction historically exercised by the court over persons without testamentary capacity.  The applicant is HYN, who is the daughter and the attorney of KZW (Daughter 1 / D1).

2. D1 is KZW’s attorney for all personal, including health and financial matters pursuant to an enduring power of attorney dated 17 December 2018.  KZW has three adult children.  KZW’s other daughter is Daughter 2 / D2 and her son is Son 1 / S1.    She has a former husband from whom she was divorced, and who is now deceased.  She has a number of grandchildren who are the children of one or the other of her daughters. 

3. The will sought to be made and approved is a will that revokes all prior wills.  It appoints D1 as executor and trustee with some alternate executives named and it is generally in these terms.  First, it gives a legacy of $50,000 to S1.  Second, it gives a Victorian property to D1 and D2 as tenants in common in equal shares.  Third, it gives the chattels contained in the Victorian property to D2. 

4. Fourth, it gives all of KZW’s other chattels to D1 and D2 in equal shares.  Finally, it divides the residue of KZW’s estate 30 percent to D2 and the remaining 70 percent to D1.  It further provides that, if S1 does not survive KZW, then the legacy which was left to him shall be shared between D1 and D2.  And it further provides that, if either D1 or D2 do not survive KZW but leave a child or children, then that child or those children shall take the share of KZW’s estate to which their deceased parent would have been entitled.

   Participating parties

5. Notice of the application has been given to D2, who supports the making of the statutory will in the terms proposed by the applicant.  Notice has been given to S1 and I will come back to his position in respect of the application.  A notice has also been given to the solicitor’s firm, Rennick & Gaynor Solicitors, which is a Victorian firm.  The senior partner of that firm is named as the executor in KZW’s current will.  The position of the firm is that it will abide the order of the court.  There are no other interested persons that have been identified in relation to this application. 

6. In respect of S1, his position initially in respect of the application was that he opposed the application and believed that the current will of KZW should remain in place. He provided an affidavit which, whilst it was not read by the applicant, I do take into account under section 25 of the Succession Act.  It is court document 18 of 17 May 2024, in which he indicated that he denied that his mother would have wanted to exclude or substantially exclude him from her will.

7. The hearing of this matter was delayed upon the application of S1 and directions were made requiring him to file certain material, including, if he considered it necessary to do so, an application for the appointment of a litigation guardian.  S1 did not take those steps.  He did file a notice that he was acting in person, where he had been previously represented – court document 23 of 3 June 2024 – and provided contact details for himself.  Beforehand, on 29 May 2024 at 9.30 am, he had written to the applicant’s solicitors in these terms (and this material is exhibited to the most recent affidavit which I filed by leave today) –

   Hi, this is [S1].

   Please tell the court it is my conscious wish I no longer want to participate in this matter any more.

   My two sisters have kids to take care of, and my mom and that’s more important than an anything else in the world.

   It is my wish that my mother is taken care of by my two sisters, [D1] and [D2] And she is NEVER to be placed in a nursing home – ever –

   Thank you

   Regards

   [S1]

8. The position then in respect of the attitude of S1 to the application is that he no longer wishes to be heard in relation to the application.  I do not think that can be taken to mean that he necessarily consents to the application in its terms, and for that reason I have taken his filed affidavit into account in the determination of this application as part of the relevant material. 

Factual background

1. Turning then to the background facts.  The facts as at 6 June 2024 are set out in the filed and relied upon material, as I have noted, also having reference to S1’s affidavit even though it technically was not read by any party.  I note that the court in exhibit 1, by my Associate, wrote to all parties encouraging them, whether represented or not, to make an appearance today and there was no response from S1 in relation to that correspondence, and there has been no appearance today, despite being called, by any other of the relevant persons I have identified. 

2. The key facts are as follows.  KZW was born on 15 December 1938 and is currently 85 years of age.  She is presently single, having divorced her husband back in 2006, who subsequently died.  She has three adult children; D1, D2 and S1.  She has grandchildren by her daughters D1 and D2.  S1 has no children.  KZW is originally from Lebanon.  She migrated to Australia in the late 1960s and speaks mainly in her native tongue.  She is a Muslim woman but is not a strong adherent to her faith. 

3. She was married to ZD and during their marriage they built a successful business, first in Victoria and later in Queensland.  They owned and operated a series of small stores.  They had a home in Victoria, which is still owned by KZW, and had purchased a home in Queensland, which has subsequently been sold, and I will come back to that.  KZW retired from business shortly after she moved to Queensland in 2001.  As I mentioned, KZW and her husband divorced in 2006, and she has chosen to revert to her maiden name since that time.  It is plain from a previous will, which I will come to, that from at least 2001 KZW was estranged from her daughter, D2.  It seems that that was a consequence of D1’s then husband from whom she is now divorcing or divorced, and influences from that extended family.  They had though, from probably at least around 2007 but likely going back as far as 2004, begun to reconcile.  That reconciliation occurred gradually over time but their relationship is now restored to a point where they speak on the telephone nearly every day. 

4. When KZW retired from business and moved to Queensland it appears that for some significant period of time S1 was living with her and ran the businesses.  It appears that he provided financial support to her, although I have seen reference to the fact that she would have been receiving a pension at the time, and that was probably adequate to meet all of her necessary expenses in any event.  She lived in the Queensland property until January 2018 when there was a significant change in circumstances.  Throughout all of that period KZW had maintained a good relationship with D1. 

5. In January 2018 S1 asked D1 to allow KZW to live with her and her husband and she agreed to that.  It became evident shortly thereafter that there had been fraudulent mortgages registered by S1 over both the Victorian property and the Queensland property owned by KZW.  Upon that discovery being made, the evidence demonstrates that KZW was distressed and angry, and expressed feelings of betrayal at S1’s conduct.  She said that she was disgusted with S1 and did not wish to have anything to do with him and has been estranged from S1 since that time. 

6. KZW, with the assistance of D1, made a complaint in relation to mortgages and there were then proceedings commenced in both Queensland and Victoria in relation to the fraudulent mortgages.  There was extensive long running litigation in Queensland that was ultimately resolved in a decision by Justice Crowley in the matter of Issa v Owens [2023] QSC 4, where, importantly for the purpose of this application, his Honour found that there was clear and compelling evidence that S1 had perpetuated the fraud and forgery in relation to the Queensland property, whether alone or with others. The court rejected S1’s assertions in that proceeding, both contained in his defence to a third party claim and in the evidence that he gave at the trial, that KZW was aware of any of the relevant loans or mortgages or agreed to mortgage her properties. The court found that that was implausible and inherently improbable. Justice Crowley made certain declarations in the proceeding and the consequence was effectively that KZW regained ownership of the Queensland property.

7. By then, which I think was 2003, KZW had been living with D1 for some time and now had health concerns, and there were expenses that needed to be met, which meant that that property had been sold and effectively the net proceeds of the sale, minus expenses, are a cash component of the assets owned by KZW.  She still now retains ownership of the Victorian property and her daughter, D2, is presently living in that property in circumstances where I have indicated she is going through or has recently gone through a divorce.  Undoubtedly the proceedings in both Victoria and Queensland would have been enormously stressful for KZW.  It must have been a devastating circumstance to have a fraud committed on her by her only son, and a son that, up until 2018, seemed to have been of great support to her. 

8. D1 supported and assisted KZW in the litigations, at times even personally contributing to the payment of KZW’s legal costs.  D1’s role increased, it appears, from at least about 2020, when signs of dementia in KZW became evident.  By 2022 KZW had been diagnosed with Alzheimer’s disease and D1 was required to act as her litigation guardian to the completion of the Queensland proceeding. 

9. As I mentioned, KZW is now 85 years old.  A report from April 2022 noted that KZW was suffering then from moderately severe Alzheimer’s dementia.  The natural course of that condition is progressive and her faculties were expected to decline, in terms of cognition, functional and neuropsychiatric abilities.  There have been a number of reports since dealing with that ongoing decline in her mental condition. 

10. She also now has severe aortic stenosis with clinical features of heart failure and her renal function has declined.  Her cardiologist reported in early April of 2024 that she had probably come towards the end stage of her life.  Whilst it cannot be predicted precisely how long KZW has left, she is at a risk of short-term complications like heart failure, stroke and death, and in particular is at risk of sudden death from cardiovascular causes. 

11. KZW continues to live with D1 and D1’s husband as KZW requires 24 hour care and D1 is heavily involved in the provision of that care, to the extent that she has put her own educational studies on hold to be able to provide that care. 

12. In terms of the financial position of D1, she is a married person with adult children.  She presently does not work and except for her caring obligations to her mother would otherwise be studying.  D1 and her husband own their own house but it is subject to a substantial mortgage.  They do not have other large assets or debt.  She does not have superannuation.  The family are dependent on her husband’s income and he is employed as an IT manager. 

13. In terms of the daughter, D2, as I mentioned, she is presently living in KZW’s Victorian property.  She is separated from her husband with whom she has five children.  The major assets of their marriage comprised real property, superannuation, vehicles and a significant sum of money, but they are yet to finalise a property settlement.  She does not have substantial savings herself and works as a customer service agent at Melbourne Airport and she is currently studying for a disability support certificate at TAFE.  It does appear likely that, upon settlement of property matters between her and her husband, she should at least (from those assets) be able to obtain an unencumbered secure property to live in. 

14. In terms of S1’s position, one of the first matters to note is that in the litigation involving KZW and S1, where KZW was substantially successful, a costs order was made against S1 to the benefit of KZW on a joint and several basis with some other persons.  The quantification of the costs is in the order of a touch under $800,000.  Some of the other persons jointly and severally responsible for those costs have been paying those costs down, and it appears likely that those costs will be paid in full by those other parties in the next month or so.  Of course, S1 would have then obligations to those persons who have paid costs to make contribution.  A letter of demand had issued to S1 in respect of those costs demonstrating that KZW was, at least in the first instance, not willing to forego those costs against S1.  As a consequence of that, S1 did submit a statement of financial position showing that he presently has no admitted debts, but in addition to the costs order he does have a disputed debt to the ATO of approximately $20 million.  I note that in exhibit 2, the transcript of the sentencing hearing before the District Court last month, reference was also made in that matter to that outstanding disputed debt to the ATO.  His affidavit discloses that he has longstanding anxiety and depression.  The matters the subject of the civil proceeding brought by his mother, eventually proceeded by way of criminal proceedings to sentence on the 14 May 2024, resulting in a period of probation being imposed on him.  He was at risk, it appeared, of having to spend actual time in custody.  One can understand why, in recent times particularly, his anxiety and depression may have been enhanced. 

15. He says that he had supported his mother – this is before 2018 – for many years and looked after her financially.  As I mentioned at the outset, he denies that his mother would have wanted to exclude or substantially exclude him from her will because of that.  He refers, in paragraph 11 of his affidavit, to a transcript of evidence in a Victorian proceeding in which she accepted he that had been financially supporting her.  And I can accept all of that as being true up until 2018.  Of course, what happened in 2018 significantly, one would have thought, affected his mother’s moral obligation towards him.  He says in his affidavit, paragraph 12, that KZW had always stated that the Queensland property belonged to him and that the Victorian property was to be shared between the three children.  He says that such a division would be in keeping with the traditions of his mother’s Muslim belief that a son receives the greater share of any estate.  I specifically reject that part of his evidence.

16. The current will, which I will come to, does not provide for the Queensland property to be given to S1 and the Victorian property to be shared between the three children.  In each of the previous wills or indications of testamentary intention that I will come to, there is no indication that KZW had a stated preference to favour S1 over her other children.  And I accept the evidence that has been put forward that, whilst identifying as a Muslim, KZW did not actively practice the faith. 

17. S1 also refers to the fact that, whilst he accepts he has been recently estranged from his mother, that the reason for that was the long running civil and criminal proceedings, and says that he was naturally unable to try to reconcile any issues with his mother whilst on bail.  I do not have the bail conditions to be able to identify whether there were any form of no contact conditions in place which would have prevented him from attempting any reconciliation.  But I do accept that KZW’s attitude, expressed before her dementia would have kicked in significantly, was very against the idea of any reconciliation given the fraud that S1 had perpetuated on her. 

18. I note, still by way of background, that the value of the likely estate, based on the outstanding costs being received by a party in full, seems to be valued at approximately $3.9 million.  So this is a relatively significant estate reflecting undoubtedly the hard work of KZW and her husband during their working lives. 

    Previous wills

19. Turning then to the previous wills, the first will that is available of KZW is one dated 5 December 1984.   It is now almost 40 years old.  It was written at a time when KZW was married to her husband and her children were young.  It is the type of will one would expect to see in those circumstances, where her husband was appointed executor and the whole of her estate was given to him, and if not him, if he is deceased, then a gift over provision to any child or grandchildren. 

20. The last known will of KZW, and the current will, is dated 17 September 2001.  The practical effect of that will, in light of the subsequent divorce from her husband, is that the executor would be the senior partner in age of the firm Rennick & Gaynor Solicitors.  The whole of the estate was then to be divided between S1 and D1.  There is in the will a reason given for that.  I have already explained that, at the date of that will in 2001, KZW had a poor relationship with D2.  It is plain from the material before me that KZW and her husband made wills at the same time and provided instructions to solicitors at the same time.  There is some drafting in clause 6 of the 2001 will which indicates a bit of poor drafting by the solicitors, but I am satisfied that the reasons there expressed are reasons that were common to KZW and her husband about why they were excluding D2 from their wills.  As I stated before, they were effectively estranged.  The will identifies that they were not in regular contact with D2, that she behaved poorly towards them, and was being influenced by her husband’s family. 

1. It is no small matter, of course, that any parent would entirely remove a child, even an estranged child, from a will, but that is an important consideration when I turn in due course to consider the type of will that KZW would make now if she had testamentary capacity. 

2. Whilst that was and is the current will there does appear that there was an attempt by both KZW and her husband to update their wills in November 2004.  File notes indicate that she and her husband consulted with solicitors and in fact signed a file note indicating that they wished to change their wills, such that they would divide the estate between all of their children.  And one can take it that means, absent something being said to the contrary, divide equally. 

3. Consistent with a memo dated 8 November 2004, a draft will was prepared to that effect.  There is then nothing on the file indicating what happened except some years later, in November 2007, where there is a note indicating that the matter did not proceed.  But there is no explanation provided for why the wills did not proceed to be changed at that time.  KZW did have other things going on in her life, noting that she in fact divorced from her husband in 2006. 

4. The circumstances now are very different from what they were, both in 2001 and in 2004.  Since 2001 KZW has divorced her husband, who has since died.  She has reconciled with D2, at least it seems enough by 2004 to be prepared to give her an equal share of her estate with her other children.  The reconciliation has cemented such that KZW and D2 now speak nearly every day.  There has been a complete breakdown of KZW’s relationship with S1 following the fraudulent mortgages placed on her property, which were the subject of litigation both in Queensland and in Victoria.  She has endured years of stressful and expensive litigation to ensure that she could keep both of her hard worked for properties following the discovery of those fraudulent mortgages, and she has now been living with dementia and the ongoing effects of that, and living with D1 who has been providing support to her since 2018. 

5. The evidence discloses that KZW has not expressly discussed her testamentary intentions with her daughters at any time, but particularly looking at the period of time post 2018.  But I have explained how she has had expressed criticism and disgust about how S1 had treated her and was sufficiently motivated to make a complaint to police which resolved in a guilty plea before the District Court to certain charges last month.  I think even that would be important if KZW was sitting here today thinking about it, that she went through years of litigation where S1, both in written court documents and in giving evidence, denied allegations made and forced her to continue with these very expensive litigations, to have come to the point that only last month, as a part of some plea deal with the prosecution, he pleaded guilty to certain charges, albeit less serious charges than the fraud charges that he might have originally been facing.  It is a long time to wait for someone to admit some wrongdoing when they have for years denied any wrongdoing at all. 

6. Both of the daughters suggest that, if KZW had capacity as at today’s date, she would not wish to leave provision for S1 in her will, would wish to provide for D2 in light of the improvement in their relationship, but would leave a larger share of her estate to D1 given the substantial role D1 has played in her care and in the litigation since 2018.  Whilst that is not dispositive of the application and it is actually for me to decide what KZW would have wanted, I do pay that evidence some regard.  They are her daughters and would know her well.  And it does seem consistent with her past behaviour in being willing to delete D2 out of the 2001 will where KZW was not satisfied with her conduct and the relationship with her at that time. 

7. The position now is that KZW is completely estranged from S1, who under the current will is entitled to receive one half of the estate.  That seems to be a very unlikely position that KZW would find acceptable were she of testamentary capacity at the moment. 

   Legal framework

8. The relevant power is set out in section 21 of the Succession Act, that identifies when a court may make an order authorising a will to be made in the terms stated by the court.  There is a series of requirements that must be met before the court can make an order, and then, even once those criteria are met, there remains a discretion in the court to make a will. 

9. As I mentioned at the outset, the power is ultimately underpinned and informed by the court’s protective jurisdiction. The focus is on the person in need of protection and her interests, which in this case is KZW, and not the interests of others. Section 23 of the Act requires an application for the making of an order under section 21 to be accompanied by a long list of material, and I am satisfied that the material before the court does satisfy the requirements of section 23. I have also mentioned how there is material technically not filed or read by the applicant, which I am having regard to for the purposes of section 25.

   Preliminary matters

10. One of the things at the outset I think I should mention is the likelihood of a family provision application.  As the will presently stands, and given the size of the estate, if the current will was to remain in place there would seem a strong likelihood that D2 could bring a successful application for family provision against KZW’s estate in due course.  But in the circumstances where she has indicated she consents to the court authorising the making of the proposed will on KZW’s behalf, it seems unlikely that, if a statutory will was made, an application for family provision would be made by her.  S1, as the will presently stands, is to inherit half of KZW’s estate.  The proposed will reduces his entitlement to a cash legacy of only $50,000. 

11. As I have described in the background facts, he is in the most perilous financial position, and in the ordinary case one might expect that an application for family provision by him might have some prospect of success.  But that needs to, in this case, be caveated by very big caveats.  First, he has indicated that he no longer wishes to participate in this matter anymore.  Second, his conduct about the fraudulent mortgages on KZW’s property seem to suggest a strong case of disentitling conduct.  Third, if he is in fact indebted to other creditors, even if successful in a family provision application, the prospects of him keeping the fruits of any such litigation seem to be rather remote. 

12. The other matter I want to mention before turning to the requirements of section 21 of the Act is something I have previously mentioned, the Muslim faith of KZW. The evidence is that, under Islamic law, S1 would be entitled to some larger proportion of KZW’s estate than D1 and D2. But I do accept, as I have indicated, the evidence put forward from D1 and D2 that KZW is not a strict adherent to her faith and would not be guided by Islamic law in her testamentary intention. That is supported by the fact that KZW’s previous wills do not distribute her estate according to that understanding of Islamic law.

    Legal consideration

13. Turning then to the substantive requirements of section 21 of the Act.

14. The first requirement is that the court must be satisfied that KZW lacks testamentary capacity. 

15. The test for testamentary capacity is well known.  It is set out in the case of Banks v Goodfellow (1870) LR 5 QB 549. Its elements were summarised by Justice Applegarth in the case of Frizzo v Frizzo [2011] QSC 107.

16. Before the latest affidavit filed by leave today, the affidavit of Rossi, there was already a plethora of material from which I could be and was satisfied that KZW, in her suffering of Alzheimer’s dementia, which in 2022 was described as “moderately severe” and which the evidence demonstrates, by way of observations of KZW, has only deteriorated further, that she does not have testamentary capacity.  That is supported further though by a report from Dr Khateeb dated 27 May 2024, that specifically addresses that doctor’s view on the mental capacity of KZW as at that date.  Testing undertaken then, along with historical capacity assessments that have been undertaken, and the doctor’s interaction with the patient, strongly supports, and I accept, the doctor’s opinion that KZW does not have testamentary capacity.  So that requirement is satisfied. 

17. The second requirement is that KZW is alive.  I have had that confirmed in the time shortly before delivering these reasons. 

18. The third requirement is to consider whether D1 is an appropriate applicant to make this application.  It is not fatal to her being an applicant that she is a beneficiary of KZW’s estate, as her will currently stands, or that she will stand to gain more under the proposed statutory will.  She is KZW’s daughter.  She has been entrusted by KZW to act as her attorney.  She has KZW live with her and cares for KZW 24 hours a day.  She is a person well able to represent KZW’s interests in making the application.

19. The fourth requirement is that adequate steps have been taken to allow representation by any other interested parties.  Notice of the application has been given to both D1, S1 and the firm Rennick & Gaynor.  I have indicated what each of those persons’ positions are in relation to the application, and the invitation from the court two days ago made it quite clear that anyone who wished to be heard was more than welcome to attend today to be heard, so that requirement is satisfied.

20. The fifth requirement is that the proposed will is or may be a will which KZW would make if she had testamentary capacity.  This involves looking at all of the evidence before the court and deciding whether the test is met.  I think it is perfectly plain in this case that this proposed will is a will that KZW would make if she had testamentary capacity.  It reflects her past willingness to exclude from the benefit of her estate a child with whom she was estranged.  In this case, whatever the merits which might had underlaid the estrangement that she had with D2, there can be no doubt, given the court rulings, that there is more than sufficient reason for a wise and just testatrix in KZW’s position to exclude S1 from the benefit of her estate.

21. Insofar as the will reflects a non-even distribution between the remaining children D1 and D2, I accept the submission made on the applicant’s behalf that whilst the starting position, if one had looked at it in 2018, might have been an even split reflective of the way that she had dealt with her estate in 2001, and as proposed in 2004, if she was sitting here today knowing and understanding the level of assistance that D1 has provided both personally and through the litigation, and is likely to continue to provide, she would be likely to favour D1 with a larger percentage of her estate.

22. I think she would also bear in mind that, had the 2004 will come to pass, D2 would have received a third of the estate, and if that will had been made D2 would not be disadvantaged by this proposed will, which in fact increases her share to beyond the one third proportion.

23. Insofar as this will provides that D1 be the executor rather than an independent solicitor’s firm, I note that the previous 2001 will, in the first case, did provide for KZW’s husband to be the executor.  It was only as a consequence of the divorce that the executor then would have been the independent law firm.  I think that demonstrates that KZW does have a preference to have the primary beneficiary of the will be her executor in order to save the costs, but appreciating that there might be circumstances in which it would be appropriate for someone independent to act.

24. In this proposed will, the consequence of the alternates is that they are D2 and then D1’s husband, so they are not in truth independent.  But should the circumstances proceed such that there is eventually a family provision application, and it was thought that somebody independent ought be appointed as executor, there is power within the Succession Act for any of those persons to approach the court and seek for the court to appoint an independent executor, which may, without prejudging, be appropriate if there was a contested family provision application.

25. Insofar as the structure of the proposed will in this case is concerned, it is a little bit different.  Rather than dealing with the estate as a whole, it deals individually with the Victorian property and then the residue of the estate.  I think that KZW likely, if her children had expressed some preference for the will to be structured in that way, would have had no difficulty in implementing that.

26. The important aspect of it is the split between the daughters after S1 is effectively disentitled bar a sum of $50,000, which sees about 67 per cent going to D1, and the balance to D2.

27. I should say something about that legacy to S1.  I have discussed with counsel whether KZW would have been likely to leave a legacy of $50,000 to S1.  The will is drafted on that basis that, in the circumstances of this estrangement, it is not uncommon that solicitors advising a testatrix will recommend that a nominal sum be left to the estranged person, because it can have the benefit of demonstrating that the testatrix’s mind has turned to the claim that that person has on the estate, and has allowed something for that person.  That might be relevant to and potentially discourage a family provision application.

28. In this case, I think that has to be balanced against the fact that if KZW was sitting here today with the knowledge of the financial position of S1, that she would be concerned that any gift to him would not ultimately benefit him, but would go to his creditors, whether that be her in respect of any remaining costs outstanding, or others in respect of the costs order to which he might be required to contribute, or the disputed debt to the ATO. 

29. In circumstances where there is no evidence that KZW would not have acted, or is a person who would not have acted, on her solicitor’s advice, I am content that the legacy of $50,000 to S1 would be consistent with her testamentary wishes, had she been able to express them.

30. I do note, for the sake of completeness, that there are examples of statutory wills that have been made where there is alleged gross ill treatment of the proposed testator by those who would benefit from his estate.  They include the decisions of De Gois v Corp [2005] VSC 326, Re Fenwick (2009) 76 NSWLR 22, Laurie v Hwang (2013) 1 ASTLR 58 and Re Kelso [2010] NSWSC 357.

31. For those reasons, I am satisfied that the proposed will is one which is or may be a will which KZW would make if she has testamentary capacity. 

32. The next requirement then for a statutory will to be made is the general discretion. Having been satisfied that the requirements of section 21(2) of the Act are made out, section 21(2)(c) gives the court a discretionary power to approve the proposed will. It is a more exacting requirement in the sense that it requires the court not only to conclude, as I have for the purpose of section 21(2), that the proposed will is or may be one that KZW would make if she were to have testamentary capacity, but to be satisfied that it is more probable.

33. For the reasons I have already given, I am satisfied that the proposed will is one which KZW probably would have made if she had testamentary capacity here today.  I have noted her prior wills and the way in which she structured them.  I have noted the terrible conduct which effectively disentitles S1 to any significant benefit from KZW’s estate.  I bear in mind that KZW probably would accept advice to leave some provision to S1 in her will, that appointing D1 the executor is consistent with KZW’s previous wills in appointing a major beneficiary of the estate to be the executor, that the evidence about the reconciliation with D2 seems to have been ongoing from at least 2004 and would see KZW wish her current will not to be less favourable to D2 than one third to her, and that KZW, if she was sitting here today with testamentary capacity, I think almost certainly would take significant account of the fact that D1 has been the person most involved in her life as carer, and attorney, that she has been in D1’s home now for some six years at no cost, and D1 has provided support through the litigation which was obviously time-consuming.  It seems to me that in those circumstances it is more probable that D1 would be preferred financially in the structure of the will, if KZW was able to make it today.  And then as is consistent with KZW’s prior wills, the statutory will establishes a gift over to children of D1 and D2 in the event of any unexpected deaths.

    Conclusion

34. In terms of the jurisdiction to be exercised under section 21(2)(c) of the Act, I am satisfied that the court should exercise its approval of the proposed will.