Spink v Russell - [2019] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

Spink v Russell [2019] QCA 107

PARTIES:

CRAIG ANTHONY SPINK
(appellant)
v
MICHELLE RUSSELL
(respondent)

FILE NO/S:

Appeal No 1986 of 2019
SC No 9009 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 4 February 2019 (Ryan J)

DELIVERED ON:

Date of Orders: 11 April 2019
Date of Publication of Reasons: 31 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2019

JUDGES:

Gotterson and Morrison JJA and Bowskill J

ORDERS:

Date of Orders: 11 April 2019

1.   Allow the appeal.

2.   Set aside Order 2 made on 4 February 2019.

3.   Substitute for that order the following order:

“2. Pursuant to s 21 Succession Act 1981 (Qld), a statutory will be made on behalf of MAG in the form of the draft will attached to these orders.”

4.   Otherwise confirm the orders made on 4 February 2019.

5.   The parties’ costs of the appeal are to be assessed on the indemnity basis and paid from the assets of MAG.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where MAG had last made a will in May 2014 at the same time as her late husband – where, since the making of her will, there had been changes in MAG’s family arrangements and MAG did not have testamentary capacity to make another will – where the appellant, as MAG’s litigation guardian and appointed attorney, made an application for leave to apply for an order for the making of a statutory will on behalf of MAG pursuant to s 21 of the Succession Act 1981 (Qld) – where the learned primary judge granted leave to make the application and directed that a statutory will be made on behalf of MAG – where the will that was made was in the form of a draft provided by the appellant subject to one change which was to increase the provision for the respondent from a gift of $1 million to $4 million – where the learned primary judge concluded that, on the available evidence, it was probable that MAG would have increased the provision for the respondent in her will if she knew that the respondent was likely to bring a family provision application if her provision in the will was only for $1 million – where the appellant appealed against the statutory will made by the learned primary judge on the basis that the learned primary judge erred in finding that MAG “probably would have made” a will in which the respondent received a gift of $4 million – whether it was open on the evidence to conclude that a will which contained a gift of $4 million to the respondent was a will that MAG would probably have made – whether the appeal should be allowed

Succession Act 1981 (Qld), s 21, s 23

GAU v GAV [2016] 1 Qd R 1; [2014] QCA…

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 Spink v Russell

Details

AGLC: Spink v Russell [2019] QCA 107
Case: [2019] QCA 107
Decision Date: 31 May 2019

CaseChat Overview and Summary

Spink v Russell was an appeal concerning the making of a statutory will for the benefit of Margaret Ann Green (MAG). The case involved the application of the Succession Act 1981 (Qld) to determine whether a statutory will should be made for MAG, who lacked testamentary capacity. The primary judge had granted leave for an application for a statutory will and directed that a statutory will be made on behalf of MAG. The appellant, as MAG’s litigation guardian and appointed attorney, sought to appeal the primary judge’s decision, arguing that the statutory will made should reflect a gift of $1 million to the respondent instead of the $4 million provided by the primary judge. The central legal issues before the court were whether the evidence supported the conclusion that MAG would have made a will containing a gift of $4 million to the respondent, and whether the appeal should be allowed.

The court considered the evidence and concluded that the primary judge’s finding that MAG would have made a will in which the respondent received a gift of $4 million was open to challenge based on the evidence presented. The court found that the primary judge’s reasoning was flawed as it relied on an incorrect premise that MAG was aware of the respondent’s potential family provision application. The court noted that there was no evidence to suggest that MAG had knowledge of the respondent's intentions, and thus, the primary judge's conclusion was not supported by the evidence. The court also highlighted that the primary judge had not considered the possibility that MAG might not have altered her will in light of the respondent's potential application.

The court allowed the appeal and set aside the order made by the primary judge. It substituted the order with a new one, directing that a statutory will be made on behalf of MAG in the form of the draft will attached to the orders. The court also confirmed the other orders made by the primary judge and directed that the costs of the appeal be paid from the assets of MAG on an indemnity basis. The final orders ensured that the statutory will made on behalf of MAG would be in the form of the draft will provided by the appellant, subject to the specified changes and confirmation of other orders.

Orders

Orders of the court

Date of Orders: 11 April 2019

1. Allow the appeal.

2. Set aside Order 2 made on 4 February 2019.

3. Substitute for that order the following order:

“2. Pursuant to s 21 Succession Act 1981 (Qld), a statutory will be made on behalf of MAG in the form of the draft will attached to these orders.”

4. Otherwise confirm the orders made on 4 February 2019.

5. The parties’ costs of the appeal are to be assessed on the indemnity basis and paid from the assets of MAG.

Background

Background to the litigation

Background: MAG is now 68 years old. She is the widow of Tony to whom she was married for many years. Tony died on 22 June 2014. There are two adult sons of that union, Shaun and Christopher, now 44 and 42 years of age respectively. Tony was also the father to Kevin and Michelle, now aged 53 and 52 years respectively, who are children of his first marriage. Both were born in the United Kingdom prior to Tony’s departure for Australia. Kevin and Michelle are MAG’s adult step-children. Michelle has remained a life-long resident of the United Kingdom. MAG has not remarried after Tony’s death. Nor has she entered into a defacto relationship in the period.[1][1]Affidavit CA Spink sworn 22 August 2018 (‘Spink 1”) paragraphs 13-18: AB 2 72-73. Tony and MAG were very successful in business. Over a 40 year period, they developed two principal businesses through a number of private companies known collectively as The Green Group. One of the businesses consists of two lifestyle estate communities in regional Australia for those over 50 years of age. The other is a commercial property development business.[2][2]Spink 1 paragraphs 26, 27: AB 2 75. As The Green Group is currently structured, a number of the companies within it are trading companies. However, there are five group companies, each of which acts solely as a trustee for a family trust. The beneficiaries of the family trusts are principally MAG and family members including Kevin, Shaun and Christopher, but not Michelle. MAG is the sole shareholder in many of the companies within the group. However, for reasons which I shall explain, she is not a director of any of them.[3][3]Spink 1 paragraphs 28-35: AB 2 75-79. MAG is personally very wealthy. The value of her net assets at 15 November 2018 was estimated to be $99,992,015.[4] To a significant extent, the assets consist of debts owed to MAG by entities within the group arising out of documented loans made by her to the entities.[5][4]Affidavit CA Spink sworn 15 November 2018 (“Spink 3”) paragraph 8: AB 2 895-897.[5]Spink 1 paragraphs 41, 42: AB 2 80. MAG’s wills: MAG made a number of wills during her married life. Significantly, she and Tony both made wills on 16 May 2014. Tony’s will[6] was the subject of a grant of probate made by the Supreme Court of Queensland on 19 November 2014. MAG’s will[7] was in similar terms. She has not herself made a later will.[6]Spink 1 Exhibit CAS-14: AB 2 662-708.[7]Spink 1 Exhibit CAS-3: AB 2 98-120. Each of the wills made on 16 May 2014 gave the surviving spouse the whole of the estate provided that the spouse survived the deceased by 30 days.[8] Since MAG did survive Tony by 30 days, she received the whole of his estate. No proceeding by way of a family provision application has been brought in respect of Tony’s estate.[9][8]Clause 6.1.[9]Spink 1 paragraph 79: AB 2 89. Relevantly for present purposes, each will contained reciprocal provisions with respect to a gift to Michelle. It was the sole benefit that she was to receive under the wills. MAG’s will contained the following provisions with respect to Michelle’s gift which were to apply in the event that Tony did not survive her by 30 days:“(a)I GIVE the sum of ONE MILLION DOLLARS ($1,000,000.00) free of all duties and charges to MICHELLE absolutely and if she predeceases me leaving children who survive me, I GIVE that sum to those children in equal shares upon attaining the age of eighteen (18) years absolutely.(b)FOR THE AVOIDANCE OF DOUBT the gift of cash in clause 7.1.1(a) of this will is not to take effect if MICHELLE has received a similar amount under ANTHONY's will, my intention being that MICHELLE receive the total cash gift mentioned in clause 7.1.1(a) from the combined estates of ANTHONY and myself.”[10][10]Clause 7.1.1: AB 2 99-100.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Spink v Russell [2019] QCA 107
PARTIES:	CRAIG ANTHONY SPINK (appellant) v MICHELLE RUSSELL (respondent)
FILE NO/S:	Appeal No 1986 of 2019 SC No 9009 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 4 February 2019 (Ryan J)
DELIVERED ON:	Date of Orders: 11 April 2019 Date of Publication of Reasons: 31 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2019
JUDGES:	Gotterson and Morrison JJA and Bowskill J
ORDERS:	Date of Orders: 11 April 2019 1. Allow the appeal. 2. Set aside Order 2 made on 4 February 2019. 3. Substitute for that order the following order: *“2. Pursuant to s 21 Succession Act* 1981 (Qld), a statutory will be made on behalf of MAG in the form of the draft will attached to these orders.” 4. Otherwise confirm the orders made on 4 February 2019. 5. The parties’ costs of the appeal are to be assessed on the indemnity basis and paid from the assets of MAG.**
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where MAG had last made a will in May 2014 at the same time as her late husband – where, since the making of her will, there had been changes in MAG’s family arrangements and MAG did not have testamentary capacity to make another will – where the appellant, as MAG’s litigation guardian and appointed attorney, made an application for leave to apply for an order for the making of a statutory will on behalf of MAG pursuant to s 21 of the Succession Act 1981 (Qld) – where the learned primary judge granted leave to make the application and directed that a statutory will be made on behalf of MAG – where the will that was made was in the form of a draft provided by the appellant subject to one change which was to increase the provision for the respondent from a gift of $1 million to $4 million – where the learned primary judge concluded that, on the available evidence, it was probable that MAG would have increased the provision for the respondent in her will if she knew that the respondent was likely to bring a family provision application if her provision in the will was only for $1 million – where the appellant appealed against the statutory will made by the learned primary judge on the basis that the learned primary judge erred in finding that MAG “probably would have made” a will in which the respondent received a gift of $4 million – whether it was open on the evidence to conclude that a will which contained a gift of $4 million to the respondent was a will that MAG would probably have made – whether the appeal should be allowed Succession Act 1981 (Qld), s 21, s 23 GAU v GAV [2016] 1 Qd R 1; [2014] QCA…