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

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…

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 HYN v KZW

Details

AGLC: HYN v KZW [2024] QSC 331
Case: [2024] QSC 331
Decision Date: 7 June 2024 (ex tempore)

CaseChat Overview and Summary

In the case of HYN v KZW, the applicant, HYN, sought an order for a will to be made on behalf of KZW, who had been diagnosed with moderately severe Alzheimer's dementia. The application was made under section 21 of the Succession Act 1981 (Qld). KZW had three children: D1, D2, and S1. The legal issues before the court were whether KZW lacked testamentary capacity, whether HYN was the appropriate person to make the application, whether adequate steps had been taken to allow representation of other interested parties, and whether the proposed will was one KZW would make if she had testamentary capacity.

The court found that KZW lacked testamentary capacity due to her severe dementia, a finding supported by medical reports and observations. KZW was alive, fulfilling the second requirement of section 21. HYN was deemed an appropriate applicant as she was KZW’s daughter, acting as her attorney, and caring for her full-time. Adequate steps had been taken to allow representation by other interested parties, as notice had been given to all relevant parties, and an open invitation was extended for any further interested parties to be heard. The court was satisfied that the proposed will was one KZW would likely have made, considering her previous wills, her relationships with her children, and the significant conduct of S1 that had disentitled them from any significant benefit in the estate. The court approved the proposed will, finding it to be consistent with KZW’s testamentary intentions.

The final orders made by the court were that a will be made for KZW in the form of the proposed will, the applicants’ costs be paid out of KZW's assets on the indemnity basis, a pseudonym be applied to the parties' names to protect KZW’s privacy, and that there be no order as to the costs of the respondent or S1.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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 Turning then to the substantive requirements of section 21 of the Act. The first requirement is that the court must be satisfied that KZW lacks testamentary capacity. 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. 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. The second requirement is that KZW is alive. I have had that confirmed in the time shortly before delivering these reasons. 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. 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.

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