Talbot v Boyd Legal (A Firm) - [2023] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION: Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8
PARTIES: AMANDA DIANNE TALBOT
(first plaintiff)
ALEXANDRA CECILE TALBOT
(second plaintiff)
CLAUDIA ELISABETH TALBOT
(third plaintiff)
BLEVIO PTY LTD (AS TRUSTEE)
(fourth plaintiff)
COLLETTE CRAMER PTY LTD (AS TRUSTEE)
(fifth plaintiff)
v
BOYD LEGAL (A FIRM)
(first defendant)
ARNOLD BLOCH LEIBLER (A FIRM)
(second defendant)
PAUL JAMES VINCENT AND WILLIAM FRANCIS
BOYD (AS ADMINISTRATORS AND TRUSTEES OF
THE ESTATE AND WILL TRUST OF KENNETH
TALBOT, DECEASED)
(third defendant)
BRIAN DAVID BARTLEY
(first third party)
PAUL WILLIAM GLEESON
(second third party)
WILLIAM FRANCIS BOYD AS ADMINISTRATOR OF
THE ESTATE OF KENNETH TALBOT
(third third party)
FILE NO: BS 641 of 2019
DIVISION: Trial Division
PROCEEDING: Claim
ORIGINATING Supreme Court of Queensland at Brisbane
COURT:
DELIVERED ON: 3 February 2023
DELIVERED AT: Brisbane
HEARING DATE: 13–29 June 2022, 18–22 July 2022, 8–9 August 2022, 11
August 2022, 24 August 2022.
JUDGE: Boddice J
ORDER: I shall hear the parties as to the form of orders and costs.
CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – DUTIES
AND LIABILITIES – SOLICITOR AND CLIENT –
NEGLIGENCE – GENERALLY – where in December 2000,
Kenneth Talbot (“the deceased”) gave instructions to a

solicitor, William Boyd (“Boyd”) to draft a Will – where Boyd prepared a draft Will – where the deceased held considerable wealth in companies or trusts – where in November 2002, the deceased executed the Will (the “2002 Will”) – where the plaintiff claims the first defendant

breached various professional duties to the deceased, in failing to appropriately advise the deceased as to the terms of

the 2002 Will – whether Boyd gave certain advice to the deceased – whether Boyd prepared the Will to give effect to the deceased’s specific instructions
PROFESSIONS AND TRADES – LAWYERS – DUTIES
AND LIABILITIES – SOLICITOR AND CLIENT –
NEGLIGENCE – GENERALLY – where in September 2006
Boyd contacted the deceased suggesting that the deceased

review his Will – where in September 2007, Boyd sent a reminder to the deceased – where Boyd sent a further reminder to the deceased in November 2007 – where Boyd
had a conference with the deceased on 23 November 2007 to
obtain instructions for a new Will – where the deceased gave
instructions, including a particular percentage allocation to
the beneficiaries – whether Boyd advised the deceased that he
needed to make specific provision for the second and third

plaintiff – where in April 2008, Boyd undertook a review of the corporate structure of the Talbot Group – where in October 2008, Boyd prepared a brief to Counsel – where in March 2009, Boyd asked Counsel to prepare a draft Will –
where Boyd received a draft Will from Counsel in May 2009
– where Boyd and the deceased spoke at the State of Origin

match on 15 July 2009 – where Boyd and the deceased spoke on 17 December 2009 – where Boyd and the deceased spoke on 5 May 2010 – whether, during the discussion on 5 May
2010, the deceased told Boyd that he wished to change his

instructions – where a plane carrying the deceased crashed on 19 June 2010 – where the plaintiff claims the first defendant

breached various professional duties to the deceased, by failing to prepare a codicil, interim Will or new Will between
November 2007 and the date of the deceased’s death –
whether the deceased had any concluded testamentary
intention in respect of a new Will – whether the first
defendant’s conduct was of a reasonably competent solicitor
PROFESSIONS AND TRADES – LAWYERS – DUTIES
AND LIABILITIES – SOLICITOR AND CLIENT –
NEGLIGENCE – GENERALLY – where in August 2010,
Boyd and the first plaintiff met with a retired Judge in
Melbourne – where the retired Judge introduced the first
plaintiff to partners of the second defendant, Arnold Bloch

Leibler (“ABL”) – where on 13 August 2010, the first plaintiff entered into a retainer with ABL – where Boyd and
the first plaintiff entered into a pro-bono retainer on 31
August 2010 – where in March 2011, ABL engaged Gleeson

Lawyers, as town agent, for the purpose of preparing a family provision application on behalf of the second and third

plaintiff – where the family provision application was discontinued in April 2011 – where between 2010 to 2012,
the first plaintiff sought for the executor to be removed and
replaced – where a mediation occurred in June 2012 – where
on 29 June 2012, letters of administration were granted to
Boyd – where the first plaintiff makes claim against the first
defendant for breach of various professional duties in
accepting a pro-bono retainer – where the first plaintiff makes

claim against the first defendant for breach of various professional duties in accepting appointment as administrator
– where the first plaintiff makes claim against ABL for
failing to advise the first plaintiff of a claim against Boyd in
respect of the 2002 Will – where the first plaintiff makes
claim against ABL for failing to advise the first plaintiff of a
claim against Boyd in respect of a proposed new Wil – where

the first, second and third plaintiff make claim against ABL for failing to fully and properly advise against the appointment of Boyd as administrator, with the consequence
that each suffered loss in the administration of that estate –
whether Boyd breached his duty in relation to any conflict of

interest – whether ABL by conduct or otherwise assumed any duty to the second and third plaintiff – whether ABL was instructed to obtain the new Will file – whether ABL had an

obligation to investigate if any new Will file contained documentation which would have supported a revocation or
partial revocation of the 2002 Will – whether ABL breached
its duty to the first plaintiff in not seeking access to the new
Will file – whether ABL breached its duty to the first plaintiff
in failing to commence proceedings to obtain the new Will
file – whether ABL advised the first plaintiff in respect of
suitable candidates for administrator of the estate
COUNSEL: P Dunning KC, P Telford and S M Derrington, for the
plaintiffs
G A Thompson KC and A Nicholas for the first
defendant and third third party
S Doyle KC and S McCarthy for the second defendant
D O’Brien KC and J Otto KC for the third defendant
Cohen (sol) for the first third party
G Beacham KC and T Naylor for the second third party
SOLICITORS: Everingham Lawyers for the plaintiffs
Hall & Wilcox for the first defendant
K&L Gates for the second defendant
HopgoodGanim Lawyers for the third defendant
Bartley Cohen for the first third party
Carter Newell for the second third party
HopgoodGanim Lawyers for the third third party

Contents

Background ......................................................................................................................... 5
The Proceeding ................................................................................................................... 6

Evidence .............................................................................................................................. 7

2002 Will .......................................................................................................................... 7
New Will ......................................................................................................................... 18
Plane crash and its aftermath ....................................................................................... 38
Executorship .................................................................................................................. 42
Administration .............................................................................................................. 94

Expert Evidence .......................................................................................................... 131

Consideration .................................................................................................................. 146

Generally ..................................................................................................................... 146
First Defendant ........................................................................................................... 147
2002 Will ...................................................................................................................... 147

New Will ....................................................................................................................... 150

Conflict .........................................................................................................................

155

Second Defendant ....................................................................................................... 157
Karoon/Non-Karoon shares ........................................................................................ 161

Legal principles ........................................................................................................... 164

Findings ........................................................................................................................... 165

Construction of 2002 Will .......................................................................................... 168

Damages ...................................................................................................................... 168

Conclusions ..................................................................................................................... 169

Annexures ........................................................................................................................

170

Annexure A ..................................................................................................................... 170
Annexure B ..................................................................................................................... 177
Annexure C ..................................................................................................................... 186
Annexure D ..................................................................................................................... 212

Kenneth Talbot (“the deceased”) was a successful mining entrepreneur. An

intensely private man in life, his express wish in death was that his Will remain
confidential and that his estate be administered with the upmost privacy.

This proceeding, which concerns his last testamentary wishes and the administration of his estate, leaves that express wish in tatters. His intentions, family relationships, and estate have been laid bare in the most public of forums, a courtroom.
Background
On 19 June 2010, a plane crashed in a remote region of the Republic of Congo. There were no survivors. The passenger log listed the deceased as a passenger.
The deceased, who had been involved in the resource industry for many years, was very wealthy. Either individually, or through corporate and trust entities he
controlled, the deceased had hundreds of millions of dollars’ worth of assets.
At the time of his death, the deceased was resident in Queensland. He owned real property and other assets in Queensland. His overseas assets included an apartment in Paris (owned personally), an apartment in Shanghai (owned jointly) and a villa on Lake Como in Italy (owned by a corporate trust).
The deceased was survived by his spouse (Amanda) and their two infant children (Alexandra and Claudia) and by two adult children from a former marriage (Liam and Courtney).[1]
[1] For ease of reference, each will be referred to by their Christian name in this judgment.
The deceased left a Will dated 29 November 2002 (“the 2002 Will”). It was
prepared by a solicitor, William Boyd (Boyd).
Boyd has practiced as a solicitor in Queensland for almost 40 years. For the first two decades after his admission in 1983, he was a solicitor at, and then partner of, various firms of solicitors. In May 2007, Boyd commenced practice as a sole practitioner, becoming principal of the first defendant.
The Will appointed a Texas based businessman as executor. That executor realised almost $300 million worth of estate assets, between commencing the executorship and June 2012.
In June 2012, the executor agreed to retire, in exchange for the payment of $10 million. His retirement had been actively sought by Amanda, Liam, and Courtney and was supported by the litigation guardian for Alexandra and Claudia.
The executor’s retirement occurred against a background of dissatisfaction with his
conduct. That dissatisfaction was initially expressed by Amanda, shortly after the
executor began in that role. Amanda’s dissatisfaction led to the retainer of the
second defendant in the latter half of 2010.
On 27 June 2012, Boyd was appointed administrator of the deceased’s estate. His

appointment was supported by Amanda, Liam, Courtney and the litigation guardian
for Alexandra and Claudia.

In or about 2015, Amanda became dissatisfied with Boyd’s conduct as administrator

of the estate. That dissatisfaction culminated in the commencement of the present
proceeding by Amanda, Alexandra, Claudia and their associated entities.

The first and second defendants commenced third party proceedings against two solicitors who acted for Alexandra and Claudia during the relevant time periods, and against Boyd as administrator of the estate, claiming contribution should the defendants (or either of them) be found liable to the plaintiffs (or any of them).
The Proceeding
In summary, the plaintiffs’ claim:

(a) damages for professional negligence, breach of contract, and breach of fiduciary duty against Boyd:
(i)       in drafting the 2002 Will and in failing to appropriately advise the
deceased’s as to its terms.
(ii)      in failing to provide continuing advice to the deceased after execution of the 2002 Will in respect of a further Will.
(iii)    in failing to prepare a codicil, interim Will or new Will between
November 2007 and the date of the deceased’s death.
(iv)     in accepting a pro-bono retainer of him by Amanda in relation to the
deceased’s estate.
(v)      in accepting an appointment as administrator of the deceased’s estate
and trustee of its trusts as and from June 2012.

(b) Damages for losses associated with the appointment of the executor under the
2002 Will and Boyd’s actions as administrator of the deceased’s estate.

(c) Damages for negligence against the second defendant:

(i)

in failing to advise Amanda of a claim against Boyd in respect of the 2002 Will, as a consequence of which that cause of action became statute barred.

(ii)

in failing to advise Amanda of a claim against Boyd in respect of a proposed new Will, and consequence of which that cause of action became statute barred.

(iii)

in failing to fully and properly advise Amanda, Alexandra and Claudia against the appointment of Boyd as administrator, with the consequence that each suffered loss in the administration of that estate.

(d)

Declarations as to the proper construction of the bequests to them in the 2002 Will. The third defendant was joined as an interested party in respect of this aspect of the proceeding.[2]
[2] Paul John Vincent was appointed as an administrator with William Francis Boyd in 2019.
Evidence
2002 Will

On 6 December 2000, Boyd received instructions to prepare a Will for the deceased. By that stage, Boyd had had experience in the preparation of Wills and in obtaining a grant of probate. He also had prior experience of estate administration and litigation. He did not, however, hold any specialist qualifications in those areas.
Boyd had a broad understanding of the financial structure of the deceased’s interests
from work he had previously undertaken for the deceased. Boyd was first retained to undertake legal work for the deceased in 1995. That work related to litigation
concerning a shareholder’s dispute. It was resolved in 1997. Thereafter, Boyd
sporadically undertook legal work for the deceased and his related entities.
Boyd’s legal work had never involved having a detailed look through all of the
relevant entities. The deceased used other solicitors for the majority of his legal work. Boyd described the deceased as forthright; if he disagreed, he told you in terms. He was also generous and loyal. Boyd would also speak frankly to the deceased.

[19] The initial instructions came from the deceased in a cassette tape which accompanied a handwritten note dated 6 December 2000. The note stated:

“ Bill Boyd

Priv. & confid. 6/12/00
Bill,
Can you prepare a will for me please.
My instructions are set out on the following tape.
Once it’s drafted, I have additional instructions before it can be finalised.
Please hold until I contact you in about 1 week.

K Talbot.”

The cassette tape was transcribed by Boyd’s secretary.[3] Boyd made notes on that
[3] The transcript of the cassette tape is Annexure A.
transcript for a later meeting with the deceased.
The notes concerned paragraphs 2.1 (“Probate here”); 2.2 (“? separate Will” and
“…but if there’s a Court challenge…how does a ben. know what they got and what
their rights are?”); 2.3 (“What control over t/tee?” and “? die part way through a
divorce.”); 2.4 (“Country + appointment mechanism. + ?? control mechanism.”);
2.5(c) (“? Fetter on discharge of duties.”); 2.6(a) (after circling “Official Trustee”,
there was a notation “i.e. the trustee?” and at end “? Probate.”); 2.6(b) (“deadlock”);
3.2, category 2 (“- trustee – control; appointment – allocate amongst bens.; if all);
3.1, category 3 (“ditto”); 6.1(b) (“? Identify estate details to all bens.”); 7.2 (“-
from…?”); 7.3 (“- from…?”); and 7.8(b) (“structure”).
Boyd met with the deceased on 19 December 2000. Boyd said he first raised a personal concern that the task may be beyond his expertise. Boyd suggested the deceased use a firm with an established deceased estates specialty. The deceased said he wanted to keep his Will arrangements very confidential and separate from the rest of his legal work. Boyd discussed another option; if Boyd thought other expertise ought to be obtained, they could look to a specialist solicitor or Counsel. The deceased wanted to pursue that course.
Boyd said he discussed with the deceased, that his Will could deal with personal assets, not corporate or trust assets. Those assets belonged to those entities and sat in the control of the directors who had obligations under corporations law and the constitutions of those companies. Similarly, trust assets would be subject to the
trustee’s exercising their discretions and controls. Boyd said the deceased replied he
was unconcerned; he could rely upon the directors of the companies and those controlling the trusts, to act in accordance with his wishes. Boyd said he told the deceased he would be able to map out what those wishes looked like, but he would not be in a position to bind them.
Boyd said he discussed with the deceased the Will being administered outside Australia. Boyd recommended against an offshore administration. There would need to be a significant body of work done to be comfortable that whatever offshore jurisdiction was chosen, that would be appropriate. Boyd said he also advised the deceased that his desire to keep the Will private and confidential was not achievable. The deceased had assets in the jurisdiction; there would have to be a grant of probate here, with a copy of the Will going on the public record. To that extent, the scheme was doomed to fail.

Boyd said the deceased was quite determined to pursue that structure. The deceased
was essentially looking to put into place “a situation where the estate was
administered almost behind a curtain, as it were, so that people got what they got
and, in his view, should have been happy with whatever that was”.[4]
[4] T 7-10/33-36.
Boyd said he also advised the deceased he was “a bit bemused”[5] by the trustee
[5] T 7-11/3.
being a nominee of a particular country. Boyd had never heard of such thing; could not imagine how it was going to work; and believed it unworkable. Boyd advised it
was the deceased’s role, as the maker of the Will, to select who would administer
the estate. The deceased replied he would take that on board and do something about it. Boyd said there was no discussion about who the person might be; the deceased was going to get back to Boyd.
Boyd said he advised the deceased that his concern about appointing a sole trustee was that they were offshore and alone in a foreign jurisdiction. It would be preferable for there to be more than one executor and, ideally, located in Australia. That arrangement had the benefit of a familiar jurisdiction. Further, the administration of the estate was likely to be a substantial task. Additional manpower was a good reason for having more than one executor. Also, people with complimentary skills could be appointed to give better coverage to what would be required during the administration. There was less risk of defalcation if you had
multiple people looking over other’s shoulders.
Boyd said the deceased’s response was that the people appointed to these decision
making roles were people the deceased inherently trusted and who the deceased was comfortable to rely upon to execute his wishes or instructions without undue technicality. The deceased wanted to stick with one executor.
Boyd accepted his notations, made in advance of that meeting or at the meeting itself, did not record those warnings. Boyd regarded them as so obvious as to not require recording.
Boyd said he advised the deceased he had never seen anything akin to the concept
of international friends; and did not know whether that could work. Boyd’s
immediate concern was whether it would act as a fetter on the executor and trustee which, generally, was not a permissible circumstance. There was a genuine risk this
might be a “toothless tiger”.[6] Boyd suggested, as an alternative, the appointment of
[6] T 7-11/33

the international friends as executors. The deceased declined, saying he did not want
them to be actively on the job but sitting there in a supervisory capacity.

Boyd said by the end of the meeting, he had been “singularly unsuccessful”[7] in
[7] T 7-12/41.
persuading the deceased to change; the deceased was wedded to the structure of the Will. That approach was consistent with previous experience. The deceased was a unique client who set his own timelines and had his own set of priorities. As a client, he tested advice at every turn. On occasions, the deceased found legal advice inconvenient. Boyd said there would be one of three outcomes; the deceased would not take the advice at all; the deceased would come back with an alternative scheme designed to avoid the issues identified in the advice; or the deceased would yield and follow what had been recommended.
Boyd made a file note of his meeting on 19 December 2000:
“ Wants to do interim Will while we look @ the longer term structure.
Kt to revert with instructions in Jan. 01.
Concern re F. Ct is protection of wife and family members.
Wants prop. to stay in trust rather than going to individuals.
– Advised re obligation to make adequate provision
– discussing that.”
Boyd said reverting with instructions in January 2001 was a reference to Boyd having given the deceased a copy of his transcription of the tape. The deceased was
going to come back to Boyd in relation to that transcription. The ‘concern re FCt’
related to the Family Court. The deceased had a contentious divorce from his first wife in the early 1990s. It left an indelible impression; he did not want Amanda or
his children to be exposed to that unhappy experience. The deceased’s concern was
that if assets were left to Amanda and their children and they found themselves in a Family Court situation, their wealth might be diminished on a property settlement. The deceased wanted their interests under the estate to sit in trust, not within their direct control. The reference to adequate provision was that as a testator, the deceased had an obligation to make provision for his family. The concept of everything sitting in trust outside their control, was unlikely to discharge that obligation, leaving the Will susceptible to challenge after death.
On 12 January 2001, Boyd received from the deceased handwritten notes on the copy of the transcription. Boyd incorporated those additional notes and hand delivered a revised transcription to the deceased on 16 January 2001. Boyd said
delivery by hand was consistent with the deceased’s desire to keep everything in
relation to the Will confidential.[8]
[8] The revised transcription is Annexure B.
Boyd agreed that in the revised transcription, he had not recorded any warning next to the clauses that related to the assets that would have included corporate or trust assets. Boyd said having received instructions from the deceased that he was set on a particular course, Boyd regarded his role as being to implement, as best he could,
the deceased’s instructions. Boyd accepted there were occasions and iterations of
the document where he made a note to raise something with the deceased for his response, but said the issue as to whether the Will could be efficacious to deal with the bulk of the assets controlled by the deceased was a preliminary point, so obvious as to be unexceptional and not noteworthy.

[36] On 23 February 2001, Boyd received another revision from the deceased. Relevantly, it had these further additions:

“8.3.2 On attaining the age of 30 years it is my wish that the inheritance
payable to Liam, Courtney and Alexandra be applied as follows:

(a)

10% of the inheritance should be made available to them absolutely to do with at they so wish.

(b)

30% of the inheritance should be made available for investment into a business investment.
(c) The remaining 60% should be retained in the family trust.

The above wishes with regard to inheritance should remain in force with regard to my children for a period to be determined according to the formulae given below dependent on their age at the date of my death. Thereafter the inheritance should be made available to the respective child absolutely. Should any child wish to retain additional moneys in the family trust it is my wish that you do so and that you should be guided by the wishes of such child with regard to any funds so held.
Below 30 years – The later of a period of 10 years or until they
reach the age of 36.
30 to 39 – A period of 6 years
40 to 49 – A period of 4 years
50 to 59 – A period of 2 years
60 or above – A period of 1 year

At the time when each child becomes entitled to the income of their inheritance absolutely in accordance with the formula above, it is my wish that they be entitled to receive 1/6 (one-sixth) of the inheritance absolutely. A further 1/6 (one-sixth) should be made available to them after a period of five years and a further 1/6 (one- sixth) after a period of ten years. At all times my children should be able to retain the funds to which they become entitled in the family trust and should they choose to do so you should be guided by their wishes with regard to any funds so held. Again, I would like my Trustees to counsel my children in this regard for their own protection encourage my children to retain these funds in the family trust where possible. In addition my children should be advised that any investments that they may wish to make should, where possible, be retained in the family trust.
…
10. Talbot Foundation

I would like the Foundation to invest a maximum of one (1) million dollars per annum, with each beneficiary having responsibility of allocating $250,000 per annum.

I would request that all beneficiaries meet every six (6) months to discuss and coordinate donations made.

I would also request all beneficiaries to give priority to investing in charities/community projects whereby the maximum moneys are
invested “at the coal face” and not diluted by management fees.
11. Overriding Conditions

With regard to all beneficiaries excluding Amanda Dianne Talbot the following conditions must be met before they are able to receive any distributions other than for their education, maintenance and advancement:

i.

Each beneficiary on attaining 30 years of age should obtain written confirmation from 3 (three) independent doctors that they are not alcoholics or drug users.
ii. Each beneficiary should pass a diploma course for Company
Directors in Australia (to be paid for by the estate).”

The further revised transcription was reviewed by Boyd on 7 June 2001. He made
notes on his copy. Those notes concerned the deceased’s continued theme of keeping the Will confidential and, in the section headed “Overriding Conditions”,
Boyd queried the need for a sub-Will, dealing only with the Australian assets and the need for a default to trustee clause, should a beneficiary fail to satisfy those overriding conditions.
Boyd prepared an outline, dated 14 June 2001. It did not refer to a warning about corporate and trust assets. Boyd said it was an internal document for his use only. Boyd agreed you would expect to see that issue included as a drafting aid but said
he was not going to keep “nagging at [the deceased] with that same point over and
over again”.[9] That was not the way they worked. Boyd accepted there was no record
[9] T 16-67/41.
of this matter being raised with the deceased. Boyd said the documents do not
record his saying that estates was not his area of expertise; “[t]here are some things
which don’t make their way into my notes and often, in the context of my note
taking, it’s more directed towards action items and progressing the file as much as
recording the conversation… or the advice which had been given.”[10]
[10] T 16-68/1-6.
On 19 July 2001, Boyd sent to the deceased a list of questions. Boyd spoke to the deceased that same day, to advise he was forwarding these questions. The questions were random, dealing with matters Boyd wanted the deceased to consider before further preparation of the Will. They concerned the trustees, the international friends, the identification of estate assets and relevant trusts, the distribution of various assets, and the structure and management of the foundation.
Boyd said he had limited insight into the administrative and management structure built around the deceased. He accepted the reference to property undoubtedly included trust property, which was to be disposed of as part of the estate. He accepted nowhere in that document was there even a hint of reservations about the ability for the deceased to dispose of those assets by Will. Boyd said there were many times, when giving advice, where the deceased would not take the advice and continue to pursue a particular course. Boyd was now facilitating preparation of a document rather than continually coming back and readvising on the point.
Boyd said he did not receive a response from the deceased. He did not have any further discussions with the deceased about the Will until May 2002. Boyd did not consider the passage of time unusual. It was consistent with the deceased not regarding the matter as pressing at that time. Boyd said he telephoned the deceased on 2 May 2002, to follow up three outstanding matters, one being instructions in respect of his Will. The deceased said he would come back to Boyd about the Will.
Boyd made a diary note “Will: realises he owes me inst.”.
Boyd did not receive further instructions about the Will. On 5 June 2002, Boyd placed another telephone call to the deceased seeking to follow up the deceased in respect to his instructions concerning the Will. The deceased did not return that call.
On 3 October 2002, Boyd met with the deceased to try and progress the Will. The deceased gave Boyd a copy of the previous revised Will instructions on which the deceased had made handwritten notes in red pen. The handwritten notes recorded: a change of the named trustee (clause 2.4); CPI for monies to the international friends (clause 2.6(b)(v)); an addition to provide similarly for the trustee (a new clause 2.6(b)(vii)); the retention of management for two years, not one year (clause 5.2); the gifting of the Paris apartment to Claudia (who had been born the previous year) with an amendment, in the event she did not survive the deceased, that the nominated beneficiary would first be Alexandra, with Courtney, Liam and Amanda to follow (clause 7.3); an even distribution of the wine collection to Amanda, Liam, Courtney, Alexandra and Claudia (clause 7.5); the reallocation of the 70% of the remaining estate to 18% to Amanda, 24% to each of Liam and Courtney and 17% to each of Alexandra and Claudia with a corresponding amendment to reflect his expectation that Amanda would make provision within her Will for Alexandra and Claudia, being the reason he had allocated a combined 52% to Amanda, Alexandra
and Claudia (clause 7.8); “drip feed conditions” to apply to clause 7.8, as outlined to
clause 8.3.2; amendments to clauses 8.1, 8.2 and 8.3.2 to include Claudia; a condition instructing the chairman of the board of directors of Macarthur Coal (a new clause 8.4); and an addition to clause 12, to include Claudia.
Boyd had also made notes on a copy of the previous revised draft, in preparation for the conference. Those notes were in blue ink. Boyd made further notes on this copy during the conference, in red ink. Boyd said he discussed the matters noted by the deceased and Boyd. Boyd said he told the deceased the Will was particularly complex and required more work; that he was in some way stretching the bounds of
what could be achieved legally. Boyd gave, as an example, the deceased’s intention
that the Paris apartment remain in the family forever. Boyd said he explained to the deceased that in our legal system there was the rule against perpetuities and in order to keep an asset in the family forever, it would need to be in some sort of trust structure which would necessarily have a life of its own. There were also issues with how a property moved through other owners within the family with it being more difficult to administer as the family grew. Boyd told the deceased the best they could do was put something in place which gave expression to his wish and then it would be in the luck of the Gods as to how it ultimately panned out over an extended period of time.
Boyd also discussed with the deceased the issue in relation to corporate assets and personal assets; and that he would need to review the control aspects of the trust and corporate set up to make sure there was no potential leakage with third party interests that they might struggle with after death. The conversation about personal versus corporate assets was quite short. They had had it before and it was essentially just a reminder that the Will could only deal specifically with personal assets and that so far as the assets sitting within the structures were concerned, given that the deceased was taking an approach of dividing the estate up amongst his family in percentages, that would require the cooperation of directors and trustees to achieve a particular outcome.
Boyd said the note he made on the amended instructions document during his
meeting with the deceased on 3 October 2002, “assets specific” was a note of the
fact that he had discussed with the deceased that the Will would need to be asset specific, in the event that there was some specific assets that he wanted dealt with privately, rather than just dealing broadly in the percentages thus far featured in his instructions.
Boyd said the deceased raised preparing a statement so that his thoughts on the
estate generally and parties’ behaviours and reactions to it could be recorded for the

benefit of any mediation or settlement process. Boyd raised whether, having regard
to the need for probate, a sub-Will be prepared, limited to particular assets.

Boyd said they discussed Boyd’s concerns in relation to a Court challenge resulting
in production of the Will and supervision with the Will to be administered overseas. Boyd remained concerned about the administration being done offshore. Boyd said during the meeting, the deceased nominated Paul Bret as executor. There was not a lot of detailed discussion. Bret was someone the deceased spoke about, both fondly and respectfully. Boyd said he repeated his previous urgings to appoint more than one executor and someone local.
Boyd said they discussed the international friend role and succession on death or incapacity. Boyd referred to an appointer type role, explaining to the deceased that one of the typical powers of an appointer was the ability to remove and appoint new trustees. The deceased was happy for the power of appointment of a new trustee to be with the international friends but instructed that because of his concern about the potential for dispute within the family group, he did not want to burden the international friends or anybody else with the role of removal. He preferred the Court determine any removal of a trustee.

[50] Boyd said he also raised with the deceased the relationship between the international friends and the executor and trustee. The international friends were to have the power to basically oversee every decision made by the executor and trustee. Boyd told the deceased the supervision regime may not work and may be ignored. The deceased said he was happy to rely on the people he appointed to discharge their job. Boyd said there was no discussion about who were to be the international friends. They were already part of the instructions.

Boyd said the deceased wanted the property at McConnell Street, Bulimba, held on trust for the use of Amanda and the family. It was to be specified that Liam and
Courtney were to have access to the property because of the deceased’s concerns
about family disharmony. The Paris apartment was to be left to the youngest of his children who was able to hold property. The deceased instructed there were substantial fees payable each time the property passed from one family member to another. The deceased wanted to minimise those fees but wanted the property held
in the family forever, for everyone’s use.
The deceased said he was going to speak further with Georges Sabbagh and he
would let Boyd know whether there was any change needed to that regime. Boyd’s notation, “George should advise re French laws”, was a reference to the
conversation concerning Mr Sabbagh. The notation, “forever”, was a reference to
the deceased’s wish for the Paris apartment to remain in the family. Boyd also
recorded, “query French law on holding as trustee and ability to move the apartment
down the line”, which was a reference to the Paris apartment.
Boyd said they discussed his notation, “Full particulars req’d. Who to act as trustee on death. Means of appointment”. Boyd was aware there were trusts in respect of which, one of the deceased’s former solicitors was appointee and that solicitor’s
company was trustee. There was a risk there were potential third party control issues
in the event of the deceased’s death. At that time, the deceased’s relationship with
that solicitor was “terrible”.[11] Boyd made a notation in the course of the meeting, in
[11] T 7-23/4.

red, to speak to two people who worked for the deceased. There was no discussion
about timeframes in dealing with those issues.

Boyd said they also spoke about his notation, “when does Amanda take on death”. Boyd’s notation, “Ultimately full entitlement but in trust for protection” was a
reference to family law concerns. Boyd also made a notation in respect of the charitable foundation. The deceased wanted to establish the charitable foundation
whilst he was alive. Boyd made a further notation, “and if this doesn’t happen”.
Boyd said there was no resolution on that issue at the meeting.
Boyd made a notation, “intermingling”.[12] That was a reference to the deceased’s
[12] T 7-24/45.
stipulation that the inheritance of the children be staged by reference to their achieving particular ages and percentages. There was a risk that assets could become intermingled between the various trusts. There were different interests that each beneficiary would have because of the different percentages.
Boyd said they discussed the deceased’s wish that beneficiaries have the ability to
nominate assets to be acquired by them. The deceased instructed that the ownership was to remain in trust, with the beneficiaries to have the use and enjoyment of the asset. The value of the asset was to form part of the percentage interest of that particular beneficiary.
Boyd said that by the end of the meeting, the deceased had not changed his mind in relation to the Will being administered overseas; or about having a single executor and trustee overseas; or about the role of international friends. The deceased said,
“Well, let’s see how they go with it”.[13]
[13] T 7-27/17-18.
At the completion of the meeting, Boyd made a file note:
“This is the mother of all wills, structurally very complex, needs much more
work, many areas where it tests the bounds of legal concepts, eg, rule against perpetuities, and satisfying obligations to make adequate provisions. KT accepts this. Wants to get a document signed in the form of his draft as amended by him in the next few days so he at least has something in place. Feels naked with no will at all. We can then take next six months to do the detailed work for a final form document. Accepts shortcomings but says they
are better than no document. See notes of his and mine.”[14]
[14] T 7-26/31-39.
Boyd said the deceased wanted to sign his own document. Boyd advised the
deceased it was quite inappropriate. They should “at least have a crack at putting it in a Will rather than having it essential in a laymen draft document”.[15] Boyd said in
[15] T 7-27/9.
the coming weeks, he prepared a draft Will. On 29 October 2002, Boyd received an
email from the deceased’s assistant enquiring “When can KT sign his Will???”.
Boyd replied by email dated 30 October 2002, asking the assistant pass on the following to the deceased: -

“●

Even on the approach he and I agreed to take, there are still some difficult legal issues I have to work out. I have already put a lot of time into them since he and I met.
● There is no point in signing a document until I have those issues worked
out. Otherwise, it would quite literally be a waste of paper.

●

The resolution of these issues will require him to have a look at a draft which I am a day or two away from finishing. Once I have his instructions on the matters raised in the draft, the document should be ready to go.
● Assuming Ken is available to look at the draft, he should be able to sign
in a matter of days.”

On 4 November 2002, Boyd telephoned the deceased’s office. He was told the
deceased was away all week. The deceased’s assistant later called him back to
advise the deceased was in Melbourne. Boyd told the assistant the deceased should
get back to Boyd “re Will”.
On 15 November 2002, the deceased’s assistant advised Boyd the deceased was
away next week and wanted to sign his Will today. Boyd forwarded by email the

draft Will and a second document, being the deceased’s philosophical thoughts on
the arrangements, which was an attachment to the Will. Boyd’s email stated:-
“If Ken can let me have his instructions on the highlighted points in the Will, I
can finish the document today so it can be signed. I don’t actually need to be
present for the signing but I have a meeting at APC at 1pm, so could be
available before or after that if required.”

On 27 November 2002, Boyd spoke with the deceased about his Will. Boyd made
handwritten notes, recording the deceased’s instructions in respect of matters he had
highlighted on the draft forwarded to the deceased by earlier email. Those instructions related to an inconsistency in ongoing employment contracts for
management; the deceased’s wish that the family home be gifted to Amanda but go
into a trust if Amanda married or took on a de facto (Boyd advised the deceased that if he wanted to protect against that eventuality, it could not go to Amanda in the first place and would have to be held by the trustee for her use); instructions about the family home after the children had left home as well as which part of the estate would be responsible for its upkeep and for transferring the Paris apartment to Claudia; whether the deceased wished to continue to provide for a maximum of $1,000,000 per annum by way of donations by the foundation (Boyd advised that with the arrival of Claudia, the previous allocation of $250,000 each per annum no longer added up); and a lack of understanding of what the deceased wished to do in the distribution of capital in clause 15.7. Boyd re-drafted the Will later that day.
On 29 November 2002, the deceased executed the Will. His signature was
witnessed by Boyd and the deceased’s assistant. Boyd’s file note recorded that the deceased had given instructions for Boyd to talk to his assistant “re structure for full
blown doc”. By that stage, Boyd had not heard back from the deceased in relation to
the enquiries about French law.
On 2 December 2002, Boyd sent the deceased two copies of the executed Will. The accompanying letter stated that the Will was an interim document which broadly reflected the way the deceased wished to distribute his estate. Boyd recorded that there was a considerable amount of extra work to be done at a detailed level and that
he would contact the deceased’s assistant to commence that work.[16]
[16] A copy of the executed Will is Annexure C.
Boyd said he had not had the opportunity to complete a full review of the structure of the various entities to ensure the deceased had control. However, the need to undertake that work became less necessary after one of the senior accounting people
within the deceased’s office confirmed to Boyd, in early 2003, that the various
entities were within the deceased’s control. That person also mentioned there were
other matters under consideration in relation to the corporate structure.
Boyd said when he was working on another matter, in March 2003, he told the
deceased he had spoken to a representative in the deceased’s office who had told
Boyd that in terms of the control of entities in the Talbot structure, there were no third party interests which would be in a position to influence their operations after
the deceased’s death. This representative also made reference to work being
undertake in relation to the corporate structure which was at a fairly preliminary stage. Boyd said he told the deceased that was potentially of interest in the control of the structure, and that if there were any issues arising out of the advice obtained, the deceased should contact Boyd. Boyd said the main thrust of his discussion with the deceased was that he was satisfied now that the structure had been sufficiently confirmed, to park that work for the time being on the basis that if we needed to do anything in relation to the share issue, we could do the whole process again.
Boyd did not accept that his recall of the 2003 discussion was better than his recall of the meeting with the deceased at the end of 2002 in preparing the final draft of the Will. Boyd said the discussion in 2002 was based around a document where they were working through that document. That style of conversation meant he needed to have the document in front of him to be able to recall particularly what was said in respect of particular clauses.
Boyd said this discussion closed out whether the 2002 Will should be treated as an
interim Will. Boyd’s concern about the 2002 Will had been the status of the
structure, in circumstances where the deceased was content to rely on people in positions of authority to act in a particular way. Boyd said his experience of the deceased, from previous work, was that there were times where his understanding of the legal technicalities of his structure were not great. Boyd said what was important was to ensure there were not gaps and the potential of third party control in the
event of the deceased’s death. There was now no need to push that as a high priority
item. Boyd accepted he had no diary note of any of those conversations.
Boyd said his final conversation with the deceased on the point was that the deceased needed to bear in mind that there was this issue about his ability to gift assets out of the corporate and trust structures and if at any stage in the future he wanted to do that, the deceased needed to tell Boyd so that they could look to see what could be done. Otherwise, it was a matter for the deceased to come back to Boyd if and when he wanted to revise his instructions. Boyd considered the signed Will fit for purpose and should no longer be treated as interim.
As far as Boyd was concerned, the retainer in respect of the 2002 Will concluded at that point. Boyd said he was regularly retained to perform other legal work for the deceased and his entities and he had regular contact with the deceased. At no time did the deceased raise the question of a new Will.
New Will
Boyd said he was prompted to raise a new Will in 2006/2007 as it had been a few
years since the Will had been prepared and he was aware the deceased’s asset
position was constantly changing. By 2006, the deceased had acquired and sold half a dozen hotels. He had also acquired and sold his CBD real estate interests. Boyd did not know whether that was going to give rise to a need to revisit the 2002 Will.
Boyd said he wanted to prompt the deceased, in case he thought it was something that needed to be revisited at that time. Boyd said he knew, given how long it had taken to get the 2002 Will prepared, that the deceased would probably give it a low order of priority, versus his commercial interests.
Boyd initially raised a review of the deceased’s Will by email on 1 September 2006. The deceased’s assistant was asked to pass on to the deceased that “we are probably overdue to review his will”. The email said if the deceased wanted to go ahead
“apart from his instructions, I would also need some input from Don[17] on the
[17] Don Nissen, a former director of entities within the Talbot Group.
business operations/setup side of things”. Boyd thought this email was preceded by

a conversation or two with the deceased about having another look at his Will. Boyd
did not receive a response to his email.

In October 2006, the deceased became the subject of an investigation into making corrupt payments to a Minister of the Queensland Government. That investigation culminated in the deceased being charged, in January 2007, with criminal offences. Whilst the deceased engaged other solicitors to act in the criminal proceedings, Boyd assisted in obtaining documentation and other information.
In May 2007, Boyd commenced practice in the name of the first defendant. The deceased was happy to back the new firm. Thereafter, Boyd undertook extensive legal work for the deceased and his entities. By the time of death, more than half of
his firm’s work involved acting for the deceased and his entities.
On 25 September 2007, Boyd sent a further email, via the deceased’s assistant:-
“Ken
As I read through “My Word is My Bond” I was prompted to remind you that
we really need to revise your will. The current one is well and truly dated, particularly in the context of your altered circumstances since it was made.
Can we put this on the agenda for discussion when you are back in Brisbane?”
Boyd said he was referring to a document the deceased had prepared in the defence of his criminal prosecution. The altered circumstances was a reference to the deceased having stepped down as Chief Executive Officer of Macarthur Coal. The deceased had commenced and operated Macarthur Coal since 2001. His equity was
later transferred into shares in a listed company. Boyd agreed that the deceased’s

wealth structure remained constant, with the majority in Talbot Group entities and
associated trusts. Boyd received no response to that email.

On 12 November 2007, Boyd sent another email to the deceased, via his assistant,
reminding the deceased about the need to update his Will “because the more you are
doing with overseas property and recent investment acquisitions, the further you are
moving away from the regime in your current will.” Boyd said the deceased had

acquired an apartment in Shanghai in 2006, owned the Paris apartment and was
acquiring a villa in Italy.

On 23 November 2007, Boyd met the deceased to discuss his instructions for a new
Will. There were notes on a whiteboard in the deceased’s office. The deceased’s
assistant later emailed a copy to Boyd. It contained the following:-

“1. Pre-amble

● KT’s wishes to be respected
● Category of assets
● Obj; conversion to cash, support education and self
development
● Drip feed
● Protection
● Charities

2. Dependents

● Who
● Split (56,22,22)

3. Share Portfolio

● Trustee’s control
● Orderly sale over 2 year period

4. Immediate Arrangements

● Amanda -95/99 McConnell Street
● Liam
● Courtney
● Alex
● Claudia

5. Other Assets

● Paris apartment
● Shanghai apartment
● Italy villa
Plus
● Real estate, Australia
● Cash investments
● Aeroplane (including hangar)
● Cars

6. Education/Self Development

● AICD courses
● 3x AIM courses

7. Drip Feed Provisions

● Drug test
● Scheme, age 40 (threshold)
● Investment of interim funds

8. Protection

● Off-shore will
● Trustees
● Loan provisions

9. Charities

● Talbot foundation (decision)
● Responsibilities (decision)
● Discretionary investments (decision)”

Boyd said the discussion opened with a reminder about expertise and the distinction between personal, corporate and trust assets. The deceased was relaxed about that distinction and confident in the way it had been previously dealt with, such that it would not be an issue when the time came to administer his estate.
Boyd said he and the deceased discussed the Talbot estate trust, to be split between Amanda, Liam and Courtney, with Amanda receiving 56% (on the expectation Amanda would provide for Alexandra and Claudia in her Will) and Liam and Courtney each receiving 22%. Boyd said he advised the deceased he did not think
that would discharge the deceased’s obligation to make adequate provision for
Alexandra and Claudia. Boyd said in an estate of his size, there should be direct provision for them, in the way he had in the 2002 Will. The deceased replied that if that was the case, he would probably have to revert to something along the lines of the 2002 Will, in order to treat the children fairly. Boyd said it was agreed that topic
would be “parked” for further discussion, as the process rolled out.
Boyd did not agree that it was made apparent to him that the deceased was no
longer instructing him that it should be 56% for Amanda. Boyd said, “he gave the
initial instruction about the 56 per cent. I gave him the advice and then he said if
that’s the case he would look at reverting to something along the lines of the current
will. And I then said to him “Well, look, let’s leave that and we’ll develop that as
the process goes on”. So, in a sense, it’s kind of left up in the air.”[18] Boyd said he
[18] T 16-75/40.
received no further instructions in relation to it at the time.
Boyd said when he later delivered a brief to Counsel, he was still working on that
having been the deceased’s initial instruction, with the understanding between them
that they would keep it under review. That is why it came to be repeated in the brief to Counsel. Boyd said he understood it was agreed between them because when Boyd said they would keep it under review as the process progressed, the deceased agreed. Boyd did not accept that they had even reached the point that there would be
agreement as to separate figures. Boyd said “I don’t even know that it actually went that far. It was simply, as I’ve described, that I’d told Mr Talbot he would need to
change that but in terms of him totally resiling from that or – I don’t know how you
would describe it”.[19] Boyd said it was left as an open item.
[19] T 16-76/17-19.
Boyd said he next discussed the trustee. Boyd reminded the deceased of his concern about offshore executors. Boyd also reminded the deceased the Will could only deal with personal assets, and he would be reliant on the people with control of corporate and trust assets to administer them in accordance with his wishes.
Boyd agreed there was a discussion about particular assets. The deceased wanted Amanda to have a first option on the plane. It was owned by a corporation. There was a discussion about a villa in Italy. The deceased had already purchased the Shanghai apartment. Boyd was enquiring as to the registered ownership. Boyd
accepted the deceased’s instructions, as listed on the whiteboard, were that the Will
deal with assets owned by corporations. Boyd said he was seeking an organisational
structure so he knew what corporations and trusts were under the deceased’s
control, to see how the Will instructions would ultimately sit with those structures.
Boyd said apart from the villa and the aircraft, there was nothing in the deceased’s
instructions as to assets specifically coming out of a trust or corporate structure.
Boyd said they discussed housing for Amanda, Alexandra, Claudia, and Courtney. Liam already had his own house. They discussed the apartments in Paris and
Shanghai and a property in Italy. The deceased’s instructions were that although
each property was to be accessible to all, especially Liam and Courtney, the properties were to be left to Amanda. It was not a matter, as in the 2002 Will, for selection by Amanda.
Boyd said the inclusion of those pieces of real estate reduced the amount of cash or
other assets available to Amanda as the deceased’s instructions were that those pieces of real estate were to form part of Amanda’s percentage. Boyd said if there
was to be a variation of the percentages as between Amanda and Alexandra and Claudia, that might give rise to issues as to the ability for Amanda to take all of the
real estate. There was a need for sufficient cash and other assets in Amanda’s

inheritance to be able to afford to own and run those properties. Boyd said that topic
was also left for discussion, as the new Will progressed.

Boyd agreed those properties were not likely to have a large upkeep costs for
somebody of the deceased’s wealth but said Amanda was not going to be a billionaire. Boyd said Amanda’s interest under the current Will was 12.6% of the
estate. Percentages were, therefore, a critical thing.

Boyd accepted his diary note of the meeting recorded the percentages but did not record any reference about a discussion about a family provision application, or
about the percentages being put on hold, or as to Amanda’s capacity to receive the
assets contemplated by the deceased. Boyd said the only reference in his notes was that the real estate formed part of the percentage. Boyd accepted that as at that date,

he had no idea of the cost of their upkeep but said “my expectation is that expensive
real estate in foreign jurisdictions is likely to be expensive to maintain”.[20]
[20] T 16-79/9-10.

Boyd said they discussed liquidating the local real estate over two years, with the beneficiaries having the ability to nominate, oldest to youngest, a property as part of their percentage. There were to be separate trusts for each of the children beneficiaries. Each was to receive their entitlements by drip feed to age 40, with full access thereafter. Amanda was to receive full advances against loans as ultimate entitlements, with the protection of assets against another marriage and the same
protection for children. This related to the deceased’s previous concerns about their
inheritance being held in trust so they did not have access to and control over it.
Boyd said they discussed 30% being left to a charitable trust. The deceased wanted
the children’s’ trusts to contribute to the charitable foundation, to the extent of 10%
of their income. The children were to decide where the foundations money would go, in proportion of their interest in the 70% and their own income, with the trustee to make the final decision.
Boyd made a diary note of the meeting.[21] Relevantly, when setting out the
[21] The diary note is Annexure D.

percentage allocation under the Will, Boyd wrote “22, 22, 56”. Next to 56, lines are
drawn to the names “Alex, Claudia”.

Boyd accepted that the risk of a family provision application putting on hold the
56% division did not find expression in the email the deceased’s assistant sent to
Boyd after the meeting. Boyd said that email was sending a transcript of the whiteboard. The whiteboard had not been amended during the meeting in light of their discussions. Boyd agreed he did not write back to the deceased, expressing any concerns about the instructions that had been given as reflected in that document.
Boyd said, “Two things about that: one is the issue which I raised in evidence
earlier about the confidentiality of emails sent to Mr Talbot at work and the fact that they became common knowledge around the Talbot Group office. I was particularly
mindful of that in relation to the will; and the second thing is that, generally, that’s not how we tended to deal with one another.”[22] Boyd said the deceased was a bit of
[22] T 16-80/43-47.

a split personality; he was intensely private with his personal affairs but when
Macarthur Coal came along, he had a far higher public profile.

On 10 January 2008, the deceased advised Boyd, by telephone, that he had spoken with Amanda about custody of Alexandra and Claudia, in the event they both died. They wanted to appoint two specified people to care for the children in that event. The deceased told Boyd he would provide their details in due course. Boyd said there was no discussion in this telephone call about the allocation of percentages.
In April 2008, Boyd decided he needed to review the structure of the Talbot Group. He had never undertaken an audit of the control and asset structure, including checking shareholdings, directors and beneficiaries of all the companies and trusts.
Boyd requested further information. On 21 April 2008, the deceased’s employee
emailed an organisational chart. Boyd replied by email that day, stating he still required company registers, trust documents and financial statements in order to understand the structure, and to progress preparation of the new Will.
On 26 May 2008, the deceased sold his shares in Macarthur Coal. On the same day, the deceased emailed Boyd inquiring, among other things, as to progress of the
Will. The deceased said he would like to “tidy it up before the end of June”. Boyd replied the same day, by email. Boyd stated, “regarding the will, I too would like to
see it done and dusted before June. I'm currently awaiting a full set of the structural/trust documents because of the need to mesh it all together with the will.
Lynne has that in hand. So I should hopefully be back to you shortly about this.”[23]
[23] Lynne is a reference to the deceased’s employee who had provided the organisational chart.
The deceased’s assistant sent Boyd an email, late on the afternoon of 26 May 2008,
advising she had boxed up the company files for various entities for delivery to Boyd the next day. Boyd made further requests for company information by email on 22 July 2008 and 5 August 2008. The latter request related to C and D class shares issued by Talbot Group Investments to the deceased as trustee for Courtney and Liam respectively. Those shareholdings had the potential to give Courtney and Liam significant entitlements to assets and funds.
On 7 August 2008, Boyd received an email attaching financial statements for various Talbot Group entities. On the same date, the deceased gave Boyd instructions to brief Counsel in relation to the preparation of a new Will. Boyd spoke to Counsel about the proposed brief. However, a brief was not sent until 8 October 2008. Boyd said there was a considerable amount of other work being

undertaken for the Talbot Group during 2008, including assisting in the deceased’s
defence to the criminal prosecution. Boyd’s wife also died in September 2008.

Boyd said the deceased was also regularly overseas or absent from Brisbane. That absence became particularly frequent in 2009 and early 2010. Boyd said throughout this time it was difficult to see the deceased about the new Will.
The instructions to Counsel were in the following terms:
“INSTRUCTIONS TO COUNSEL
We act for Kenneth Talbot.
You are briefed to advise in relation to Mr Talbot’s succession planning and to
assist with the preparation of a will (or wills) to give effect to his instructions.
The material briefed details the property which currently belongs to Mr Talbot or is under his control. It also details the various entities in which the controlled property is held.
The following instructions have been provided without consideration for the
constraints imposed by way Mr Talbot’s affairs are structured.
Estate Instructions
Mr Talbot’s instructions are as follows:
1.       He wishes to appoint George Sabbagh (of Paris) and Banque Nationale de Paris (including any successor) as executors and trustees of his will/s.
2.       He wishes to appoint their family friends, John and Margaret Simpson, as guardians for his infant daughters, Alexandra and Claudia, if his wife predeceases him.
3.       The beneficiaries under his will are to be

(a) his wife, Amanda Dianne Talbot;
(b) his adult son, Liam Anthony Talbot;
(c) his adult daughter, Courtney Erin Talbot;
(d) his infant daughter, Alexandra Cecile Talbot;
(e) his infant daughter, Claudia Elisabeth Talbot.
Liam and Courtney are the children of his first marriage. Alexandra and
Claudia are the children of his marriage to Amanda.
There are no other individuals who would be in a position to make a
claim for provision from Mr Talbot’s estate.
Broadly speaking, Mr Talbot wishes to leave 56% of his estate to Amanda (on the footing that it then her responsibility to provide for Alexandra and Claudia) and 22% each to Courtney and Liam.
Where specific property is left to a specific beneficiary, that property is
to be valued and taken into account as part of the beneficiary’s overall
entitlement.
4. Regarding the real estate:

(a)

the Brisbane residence (95/99 McConnell Street, Bulimba) is to be left to Amanda in the expectation that she will continue to provide a home for Alexandra and Claudia at least until they turn 21.

(b)

Liam Talbot already has a house (purchased with some assistance from Mr Talbot), so he does not feature in the provisions which follow.

(c)

The estate is to pay for rental accommodation for Courtney, Alexandra and Claudia (if they elect to live in rental premises) until they reach the age of 30. After that, the estate is to buy a house for them but with the proviso that they are to be encouraged by the trustees to make a reasonable contribution towards the purchase price (depending upon their circumstances at the time).
(d) Regarding the Paris apartment (38 Avenue Hoche, Paris), Mr
Talbot’s understanding is that is can only be left to one family
member. He wishes the property to remain in the family permanently for its use and enjoyment. His understanding is that whenever there is a transfer of the title within the family, an amount of 10% of the asset value is paid in notary fees. For this reason, his suggestion is that the apartment should be left to his youngest child, Claudia, on the proviso that it is to remain in the family. If she does not survive him, or is not old enough to hold the property at the date of his death, he would nominate the youngest of his children who is then old enough to hold the property.
The costs of transferring the property into her name (and any subsequent family member) should be paid from the estate, as well as the costs of owning and maintaining the apartment and renewing the car parking lease.
Unless you are in a position to advise on the relevant French law, this will require further consideration before concluding anything.

(e) Regarding the Shanghai apartment, his one-half interest is to be
left to Amanda Talbot – again, subject to checking the impact of
Chinese property and succession law.

(f) Regarding the Italian real estate, it is to be left to Amanda Talbot with all family members to have the use and enjoyment of it.
(g) All other real estate is to be liquidated over a period of two years. Any beneficiary who wishes to take a particular piece of property under the will is to nominate it for inclusion in their share of the estate. In the event of dispute, the oldest interested beneficiary is to prevail.
(h) Talbot Group Administration Pty Ltd is about to settle the purchase of a LearJet and is shortly due to take delivery of a larger aircraft, a Bombardier Global 5000. It has also entered into a lease with Brisbane Airport Corporation for the lease of land at the Brisbane Airport and is currently constructing a hangar on that land. Amanda Talbot is to have first option to take any of the aircraft and the hangar (on condition she becomes responsible for all relevant expenses from her share of the estate). If she does not wish to take any of this property, it is to be sold.
(i) Regarding the motor vehicle, the beneficiaries are to be entitled to nominate which cars they wish to take (with priority to the oldest). Any of the cars that are not wanted are to be sold.

5. Other Property

(a)

The equities are to be sold over a period of two years. As with the real estate, if any beneficiary wishes to take all or part of a particular shareholding, the nomination process will apply.

(b)

If any other investments (eg. joint venture interests) are unable to be realised over a period of two years on reasonable terms, the trustees are to exercise their discretion regarding the terms and timing of the ultimate disposable with a view to effecting the
disposal within a reasonable time after Mr Talbot’s death.

6.       Mr Talbot wishes to establish separate trusts for each beneficiary which provides maximum protection from creditors and in the event of divorce.
Amanda Talbot is to be immediately entitled to her share of the estate.
The children are to be entitled to their shares on turning 40. Provision is to be made for their maintenance until then. The trustees are to manage their respective trusts in the meanwhile and are to consult with the beneficiaries to give them some experience and understanding in the management of significant wealth. Mr Talbot also wishes his children to be involved in education and self development which will equip them to deal with these circumstances. He has it in mind that they should be encouraged to complete courses conducted by the Australian Institute of Company Directors and by the Australian Institute of Management.
7.       Mr Talbot wishes to leave 30% of his total estate to charity. The vehicle is to be a charitable trust currently being established. The trustee of that trust is Talbot Family Foundation Pty Ltd. He also wishes 10% of the
annual income of the beneficiaries’ personal trusts to be paid into the
foundation.
8.       Mr Talbot is concerned to ensure that his testamentary arrangements remain as confidential as possible and, to this end, has requested that consideration be given to the preparation of separate wills dealing with any property that will necessarily involve documents going onto the
public record in the form of probate and/or transmission applications.”

Boyd said he deliberately drafted the instructions in general terms as he wished to
obtain Counsel’s advice. This particularly related to leaving 56% of the estate trust
to Amanda, with Amanda having responsibility to provide for Alexandra and Claudia. Boyd wished to see whether Counsel had a similar concern about providing specifically for Alexandra and Claudia.

[102] Boyd said he prepared a document for inclusion in the brief, to describe assets controlled by the deceased but not in his name. This was to assist Counsel to better
understand the deceased’s financial affairs. Boyd said in his instructions to Counsel,
he specifically referred to the fact that the instructions had been given without
consideration for the constraints imposed by the structure of the deceased’s affairs.
He was looking for Counsel’s advice in relation to the Will and steps the deceased
needed to take so that assets he controlled could be gifted at his direction in the event of death. Boyd said he did not brief Counsel with all of the documents related to the various changes of trustees and names as his review has established that the trusts were efficacious, with one exception. Boyd queried whether one of the
deceased’s former solicitors had been effectively removed as principal, in his
instructions to Counsel.

Boyd agreed that nowhere in those instructions did Boyd identify any concern he had in relation to a family provision application. His preference, when briefing Counsel, was to put it there for Counsel to see and deal with it with fresh eyes rather than for Boyd to potentially take Counsel off on a particular tangent or influencing
Counsel’s views. Boyd also accepted that nowhere in those instructions did he
express his concerns around a smaller percentage not being able to accommodate
the deceased’s wishes regarding the real property going to Amanda, or about the
value of the properties or their upkeep.
On 20 October 2008, Counsel advised Boyd, by telephone, that having a foreign bank as executor was less than desirable. Counsel said names of international people could be chosen in lieu of a bank. Counsel was also thinking about having different Wills in different jurisdictions and queried whether something should be prepared in the interim to cover the essentials. It was arranged to meet with Boyd on 13 November 2008. Counsel did not request Boyd do anything.

[105] On 13 November 2008, Boyd met with Counsel. They discussed a number of
matters, including whether the deceased’s former solicitor had been effectively
removed. Counsel suggested a Court application may be necessary. Counsel was to undertake further work on that aspect. Counsel also discussed the trustee nominated by the deceased. He asked whether there should be someone legal or somebody else, perhaps in Australia and overseas. Counsel spoke about an Australian Will and separate Wills for foreign properties. There was a need to look at succession duties overseas and possible capital gains and residency requirements.

Boyd said Counsel suggested they look at life insurances and superannuation, for both the deceased and Amanda. Boyd said he did not think life insurances and
superannuation were in the frame, given the deceased’s wealth, but Counsel said he
generally gave advice to do a financial plan as part of any estate planning. Counsel also suggested guidelines for the children as a schedule to the Will and making sure there was enough cash for Amanda to live on for life. Counsel wanted Boyd to review the trust minutes for all transactions and to review the companies.
Boyd said Counsel also advised there should be a direct percentage to Alexandra and Claudia, not 56% to Amanda. There would be a family provision claim if there was no specific provision. Counsel suggested there be a trust for each of the children with specific percentages assigned to them. This was in the expectation of more formalised Will or Wills.

[108] Boyd accepted that the instructions he listed to Counsel, whereby the deceased wished to leave 56% of the estate to his wife on the footing it was her responsibility to provide for their two children, was a common method, even among very wealthy people, of providing for infant children in their Will. Boyd said he adopted the
language “broadly speaking” to provide a quiet caveat on the instructions he was
communicating to Counsel. If Counsel had not picked up on the point, Boyd would have asked Counsel about it. Boyd accepted that his diary note was consistent with
Counsel having expressed reservations about that approach. Boyd said Counsel’s view was the same as Boyd’s but accepted that Boyd’s own view was not expressed
in his instructions to Counsel or in Boyd’s diary note or in any of the written
notations Boyd made regarding his earlier conference with the deceased.

Boyd accepted that a trade off in the preparation of a Will is, on the one hand, the risk of a family provision application by infant children, not provided for separately, and on the other hand, the logistics around infants having somebody else having to manage their wealth. He agreed reasonable minds and family circumstances might differ about the relevant merits and demerits of that trade off.
Boyd said his note of his meeting with Counsel recorded relevant considerations
raised in respect of the deceased’s instructions in respect of the new Will, as well as
other matters raised by Counsel. The reference to an interim Will was a reference to
Counsel’s view that there should be something to reflect the deceased’s instructions.
Boyd agreed that the preparation of an interim Will was referred to by him in his correspondence with the deceased on 10 December 2009. Boyd made no reference to any concerns previously expressed about a family provision application and there was no reference to the deceased coming back to him in relation to that issue. Boyd said it was partly a matter of not going into matters which are too personal in email communications to the office. The deceased did not have a private email account. Boyd denied the lack of references was consistent with the fact that he had not had

this discussion with the deceased. Boyd said “whatever may be the apparent
consistency, it’s not the fact”.[24]
[24] T 16-84/26-27.
[112] On 13 November 2008, Boyd received from Counsel, by email, an estate instructions table. Counsel had advised Boyd this was a standard document he prepared, recording instructions, not advices or issues. Boyd did not identify from it any further enquiries he needed to make at that time. The chief item of homework for Boyd was the resolutions for transactions in the companies and the trust.

I also would have accepted that Samuel’s calculations contained an in-built bias as a
consequence of the use of the closing price on each day. Samuel’s calculations are

on the basis of shares being sold into the market. Regard ought to have been had to
the average daily share price, rather than the closing share price.

I found Lonigan’s criticisms of Samuel’s methodology highly persuasive. I would
have accepted and preferred his evidence.
That said, there was merit in the plaintiffs’ contention that it is ultimately a matter
for the Court to assess the loss as best it can in all the circumstances.
Allowing for those relevant factors, I would have accepted Lonigan’s evidence that
the methodology adopted by Samuel for disposal of the Karoon shares would have resulted in a 20% blockage discount. Whilst that was higher than what Lonigan accepted to be the more usual discount of 10%, I would have accepted that the
unusual premise contained within Samuel’s calculations, warrants an assessment of
damages on the basis of an acceptance of Samuel’s calculations, less 20% for a

blockage discount. That assessment would have been on the basis there was an
assumed progressive sell down of the Karoon shares over a 24 month period.

I would also have accepted the agreed transaction and other costs and the agreed taxation implications of such sales.
Whilst those losses would be losses to the estate I would have found that Boyd, as administrator, would more likely than not have distributed the additional proceeds to the beneficiaries, as he did with the actual proceeds realised from the sale of the Karoon shareholding.
Finally, I would have accepted that the non-Karoon holdings were largely illiquid shares with a practical impossibility of being traded successfully on the share market. There was no market and no viable opportunity to sell prior to September 2014. I would have assessed the loss in respect of the non-Karoon assets as nil.
Conclusions
The plaintiffs’ claims are dismissed. The third party proceedings are also dismissed.
I shall hear the parties as to the form of orders and costs.

Annexures

Annexure A
“TRANSCRIPT OF TAPE SUPPLIED BY KEN TALBOT
(TO BE TYPED AS A DRAFT)
TO WHOM IT MAY CONCERN
WILL OF KENNETH TALBOT

1. Preamble

1.1 This Will supersedes any previous Will etc. etc.
1.2 Kenneth Talbot wishes to advise all beneficiaries of what he considers to be the important elements of life so that all beneficiaries can have a better understanding of his wishes with the foregoing Will as follows:
1.3 It is important to be, healthy wealthy and wise.
1.4 Kenneth Talbot has spoken to many people that have created wealth and have
managed wealth.
1.5 Kenneth Talbot has dealt with people directly that have managed wealth on behalf of wealthy people who have advised that misery is directly proportional to the amount wealth created.
1.6 Whether you are healthy or poor it is not the important criteria. Kenneth Talbot is about making basic provision for all beneficiaries.

1.7 Above that basic requirement he encourages all beneficiaries to undertake the
following initiatives during their lifetime:

(a) The need to do good things;

(b) The need to do interesting things;
(c) The need to achieve and have a sense of purpose and satisfaction.

1.8 Regarding health, Kenneth Talbot advises everybody that it is the number one
priority and he had made provision in his Will for such requirements.
1.9 Without good health then most aspects of life are superfluous.
1.10 Regarding wealth, Kenneth Talbot advises the following points:

(a) On paper, each of the beneficiaries are wealthy;
(b) The Will will provide adequate provision for education because of its importance to achieving good and interesting things during your lifetime as well as providing for your family.
(c) Kenneth Talbot considers that the worst thing he could do is to give any beneficiary, for example a $1m payout at age 21.
(d) As a consequence, beneficiaries will be kept on the drip feed until maturity;
(e) Be careful; families and friends will note your perceived wealth and seek a share;
(f) You will have many new friends of a temporary nature;
(g) Kenneth Talbot has built in protection within the Will against opportunists;
(h) My advice is to play down wealth and advise that the major beneficiaries of my Will are charities;
(i) Above all, do not be distracted from life, be yourself and people respect you for you.
2. Administration of Will

My requirements are as follows:

2.1 No copy of the Will is to be available in Australia.
2.2 No copy of the Will is to be available in writing or in electronic form to any
beneficiary.

2.3

The Will is to be administered overseas by people not a party to Australian Family Law (Bill, can you research what countries are not party to Australian Family Law).
2.4 The trustee is to be a nominee of that particular country (Kenneth Talbot to
advise).
2.5 Assistants are to be appointed in Australia to advise the Trustee on an “as
required” basis and are as follows:

(a)

Managing Director KPMG Accountants, Brisbane or his nominee (a partner of KPMG and preferably familiar, but not essential, with
Kenneth Talbot’s business interests);

(b)

Managing Partner, McCullough Robertson, Solicitors or his nominee (a partner of McCullough Robertson preferably familiar, but not essential,
with Kenneth Talbot’s business interests);

(c)

The Trustee is appointed to administer the Will subject to the complete directions of international friends as follows:

(i) George Sebac, (check spelling) Paris;
(ii) Managing Director of BNP Banks, Paris who will nominate a
division within his firm familiar will Kenneth Talbot’s business
interests;

2.6 My instructions concerning the decision making of the Trustee and its advisers
and friends are as follows:

(a) Re: Australian Law and Administration. Only the Official Trustee have a copy of the Will. He has no authority to provide a copy of the Will to any person, corporation or Government in Australia;
(b) The Trustee will take instructions solely from George Sebac and BNP Bank jointly subject to and taking account of advice provided by the Australian advisers, subject to the following:
(i)       The Australian advisers are appointed as advisers only and the Trustee is not bound by that advice, however, the Trustee must have a serious reason to disregard the advice of the Australian colleagues of the Australian advisers;
(ii)      If George Sebac does not survive Kenneth Talbot or is unable to provide meaningful advice to the Trustee then the Trustee will be solely directed by BNP Bank, Paris with its relevant subsidiary;
(iii)    The Will is to be read in Paris;
(iv)     Moneys are to be provided to all beneficiaries to travel to Paris with business class air fares, accommodation at the apartment and hotels as required for beneficiaries.
(v)      Similar moneys also to be provided for international friends such as George Sebac and the PNB Representative;
(vi)    Provision to be made for appropriate spending money for each beneficiary at the rate of $5,000.00 for each adult over 18 years, $1,000.00 for each child between the ages of 10 to 18 years and
$200.00 for each child between the ages of 0 – 10 years.

3. Description of Assets

3.1 Ownership: Kenneth Talbot had subdivided his assets according to the
following categories of ownership:

Category 1: In the name of Kenneth Talbot
Category 2: In family trusts existing.
Category 3: In company name with Kenneth Talbot as the sole
shareholder and sole director.
Category 4: Cash.

3.2 Type of Holding: Kenneth Talbot has also subdivided his assets according to
categories of holding as follows:

Category 1: Personal, for example family home, jewellery, furniture.
Category 2: Public shares that don’t require any administration

essentially. In this category the value of shares are driven by an independent board of directors. The value of assets can be realised but should be managed to maximise the value of the asset and to have a minimal impact on the viability of that particular public company.

Category 3: This category comprises residential real estate assets that
require minimal supervision. An example is a residential house that is rented.

Category 4: This category comprises commercial real estate that require management and without management the value of the asset can be diminished substantially;

Category 5: This category comprises cash and therefore does not require
administration.
4. Report on Assets

4.1

Prior to the meeting in Paris the international friends, George Sebac and BNP Bank, through the Trustee as appointed, will request the Australian assistants to the Trustee, that is KPNG Accountants and McCullough Robertson, Solicitors, to compile a report on all assets within 14 days.
4.2 If the management are employed at this time then they can materially prepare
such report with a description of each asset, financial performance of same.
4.3 The assets will be grouped according to categories 1, 2, 3 and 4 (in clause 3.1
– Ownership) and categories 1, 2, 3, 4 and 5 (in clause 3.2 – Type of Holding).
5. Retention of Management
5.1 Management have an important role in protecting the value of commercial
assets.

5.2 The Trustee to immediately advise management that all management is retained on full salary and entitlements for a period of 1 year. (How can management be advised within 24 hours of such an outcome?)
6. Choice for Beneficiaries

Kenneth Talbot wants all beneficiaries to consider a range of choices as
follows:
6.1 The choice can only be made from adherence to the following procedure:

(a) Entitlement of each beneficiary to be defined by Kenneth Talbot in the subsequent section in this Will;
(b) If a beneficiary has any interest in an asset he should make that known to the Trustee within 3 months of the reading of the Will;
(c) The Trustee, the advisers to the Trustee and management are requested to co-operate fully with any beneficiary in determining any interest in the above;
(d) All fees regarding the above are to be taken from the estate.
7. Allocation of Wealth

7.1 Property at 95 McConnell Street, Bulimba: For Amanda Dianne Talbot, with
conditions.
7.2 Property at 63 Byron Street, Bulimba: For Amanda Dianne Talbot, no conditions. The estate to discharge the mortgage.

7.3 Apartment in Paris – 38 Avenue Hoche: For Amanda Dianne Talbot, with
conditions.

The transfer of the property to the name of Amanda Dianne Talbot to be paid from the estate together with provisions for the renewal of the car parking lease in (I think) 15 years time.
7.4 Personal Effects: I leave my personal effects as per any interest shown by the
beneficiaries.

I request sincerely that all beneficiaries are sensible and do not argue. I particularly ask all beneficiaries to demonstrate some give and take. However, in the event of any dispute, I would request McCullough Robertson to decide.
7.5 Wine collection: My wishes are that the wine collection be distributed evenly
and fairly as follows:

Amanda Dianne Talbot: 25%

Liam Anthony Talbot 25%
Courtney Erin Talbot 25%
Alexandra Cecile Talbot 25%

7.6

Boats: The 3m punt(?) currently owned by Courtney Erin Talbot remains as her asset; In relation to all other boats including jet skis and associated trailers, I leave entirely to Liam Anthony Talbot.

7.7

Motor cars: Motor cars used predominately and consistently by Amanda Dianne Talbot, Liam Anthony Talbot and Courtney Erin Talbot are to remain the property of the above beneficiaries with any mortgages on the assets discharged through the estate.
The motor cars that Kenneth Talbot is driving should either be sold or if a
beneficiary has an interest then they can advise the trustee accordingly.
7.8 Remaining estate: I advise that I wish the remainder of my estate to be
subdivided into two portions as follows:

(a) 70% to be allocated as follows:

Amanda Dianne Talbot 20%
Liam Anthony Talbot 30%
Courtney Erin Talbot 30%
Alexandra Cecile Talbot 20%

I am allocating the above portions with conditions. I would expect Amanda Dianne Talbot as mother of Alexandra Cecile Talbot to make provision within her Will for Alexandra and that is why I have allocated a combined 40% to Amanda and Alexandra.
Again, I do not wish any of the participants to fight over the percentages allocated and as far as I am concerned there is more than enough for everybody and I want everyone to be happy and satisfied.

(b) 30% remainder of my estate to be used to establish the Talbot Foundation as a vehicle for donations to community projects and charities.
8. Conditions pursuant to the distribution of wealth.

8.1 Property at 95 McConnell Street, Bulimba.
…………………………………………………………………………………
8.2 Apartment in Paris:
…………………………………………………………………………………
8.3 70% portion of assets after allowance of specific items:
…………………………………………………………………………………
9. Additional Items:
9.1 Cash Advances as follows:

(a) Education to include fees, board and lodgings;
(b) Weddings;
(c) Visits to apartment in Paris

(d)

Attendance at the Australian Institute of Company Directors Course or its equivalent providing the beneficiary has achieved a minimum age of 30 years and also provided that he is attending prior to age 35;
Remainder of Will to be drafted by Kenneth Talbot after Bill has prepared the
above draft Will.”
Annexure B
“TRANSCRIPT OF TAPE SUPPLIED BY KEN TALBOT
(TO BE TYPED AS A DRAFT)
TO WHOM IT MAY CONCERN
WILL OF KENNETH TALBOT

1. Preamble

1.1 This Will supersedes any previous Will etc. etc.
1.2 Kenneth Talbot wishes to advise all beneficiaries of what he considers to be the important elements of life so that all beneficiaries can have a better understanding of his wishes with the foregoing Will as follows:
1.3 It is important to be, healthy wealthy and wise.
1.4 Kenneth Talbot has dealt with people directly that have managed wealth on behalf of wealthy people who have advised that misery is directly proportional to the amount wealth created.
1.5 Whether you are healthy or poor it is not the important criteria. Kenneth Talbot is about making basic provision for all beneficiaries.

1.6 Above that basic requirement he encourages all beneficiaries to undertake the
following initiatives during their lifetime:

(a) The need to do good things;

(b) The need to do interesting things;
(c) The need to achieve and have a sense of purpose and satisfaction.

1.7 Regarding health, Kenneth Talbot advises everybody that it is the number one
priority and he has made provision in his Will for such requirements.
1.8 Without good health then most aspects of life are superfluous.
1.9 Regarding wealth, Kenneth Talbot advises the following points:

(a) On paper, each of the beneficiaries are wealthy;

(b)

The Will will provide adequate provision for education because of its importance to achieving good and interesting things during your lifetime as well as providing for your family.

(c)

Kenneth Talbot considers that the worst thing he could do is to give any beneficiary, for example a $1million payout at age 21.

(d)

As a consequence, beneficiaries will be kept on the drip feed until maturity;

(e)

Be careful; families and friends will note your perceived wealth and seek a share;
(f) You will have many new friends of a temporary nature;

(g)

Kenneth Talbot has built in protection within the Will against opportunists;

(h)

My advice is to play down wealth and advise that the major beneficiaries of my Will are charities;

(i)

Above all, do not be distracted from life, be yourself and people respect you for you.
2. Administration of Will
My requirements are as follows:

2.1 No copy of the Will is to be available in Australia.
2.2 No copy of the Will is to be available in writing or in electronic form to any
beneficiary.
2.3 The Will is to be administered overseas.
2.4 The trustee is to be appointed as:
Ignacio Riveras
Gestimcoal
Alberto Aguilera, 8
28015 Madrid

phone 91 448 8397
fax 91 445 3780
2.5 Assistants are to be appointed in Australia to advise the Trustee on an “as
required” basis and are as follows:

(a)

Managing Director KPMG Accountants, Brisbane or his nominee (a partner of KPMG and preferably familiar, but not essential, with
Kenneth Talbot’s business interests);

(b) Managing Partner, McCullough Robertson, Solicitors or his nominee (a partner of McCullough Robertson preferably familiar, but not essential,
with Kenneth Talbot’s business interests);

(c)

The Trustee is appointed to administer the Will subject to the complete directions of international friends as follows:

(i) George Sabbagh, Paris;
(ii) Managing Director of BNP Banks, Paris who will nominate a
division within his firm familiar will Kenneth Talbot’s business
interests;

2.6 My instructions concerning the decision making of the Trustee, its advisers
and friends are as follows:

(a) Re: Australian Law and Administration. Only the Official Trustee have a copy of the Will. He has no authority to provide a copy of the Will to any person, corporation or Government in Australia;
(b) The Trustee will take instructions solely from George Sabbagh and BNP Bank jointly subject to and taking account of advice provided by the Australian advisers, subject to the following:
(i)       The Australian advisers are appointed as advisers only and the Trustee is not bound by that advice, however, the Trustee must have a serious reason to disregard the advice of the Australian colleagues of the Australian advisers;
(ii)      If George Sabbagh does not survive Kenneth Talbot or is unable to provide meaningful advice to the Trustee due to ill health then the Trustee will be solely directed by BNP Bank, Paris with its relevant subsidiary;
(iii)    The Will is to be read in Paris;
(iv)     Moneys are to be provided to all beneficiaries to travel to Paris with business class air fares, accommodation at the apartment and hotels as required for beneficiaries.
(v)     Moneys also to be provided for international friends such as George Sabbagh and the BNP Representative to cover business class air fares and accommodation at hotels;
(vi)    Provision to be made for appropriate spending money for each beneficiary at the rate of AUD$5,000.00 for each adult over 18 years, AUD$1,000.00 for each child between the ages of 10 to 18
years and AUD$200.00 for each child between the ages of 0 – 10
years.

3. Description of Assets

3.1

Ownership: Kenneth Talbot has subdivided his assets according to
the following categories of ownership:

Category 1: In the name of Kenneth Talbot
Category 2: In family trusts existing.
Category 3: In company name with Kenneth Talbot as the sole
shareholder and sole director.
Category 4: Cash.
3.2 Type of Holding: Kenneth Talbot has also subdivided his assets according to
categories of holding as follows:

Category 1: Personal, for example family home, jewellery, furniture.
Category 2: Public shares that don’t require any administration

essentially. In this category the value of shares are driven by an independent board of directors. The value of assets can be realised but should be managed to maximise the value of the asset and to have a minimal impact on the viability of that particular public company.

Category 3: This category comprises residential real estate assets that require minimal supervision. An example is a residential house that is rented.
Category 4: This category comprises commercial real estate that require management and without management the value of the asset can be diminished substantially;
Category 5: This category comprises cash and therefore does not require
administration.
4. Report on Assets

4.1

Prior to the meeting in Paris the international friends, George Sabbagh and BNP Bank, through the Trustee as appointed, will request the Australian assistants to the Trustee, that is KPMG Accountants and McCullough Robertson, Solicitors, to compile a report on all assets within 14 days.

4.2

If management is employed at this time then they can materially prepare such report with a description of each asset, financial performance of same and order of magnitude estimate of asset value (note: where valuations can be obtained within 14 days, then such independent valuations should be obtained).
4.3 The report of assets will be grouped according to categories 1, 2, 3 and 4 (in
clause 3.1 – Ownership) and categories 1, 2, 3, 4 and 5 (in clause 3.2 – Type
of Holding).
5. Retention of Management
5.1 Management have an important role in protecting the value of commercial
assets.

5.2 The Trustee to immediately advise management that all management is retained on full salary and entitlements for a period of 1 year. (How can management be advised within 24 hours of such an outcome?)
6. Choice for Beneficiaries

Kenneth Talbot wants all beneficiaries to consider a range of choices as follows:

6.1 The choice can only be made from adherence to the following procedure:

(a) Entitlement of each beneficiary to be defined by Kenneth Talbot in the subsequent section in this Will;
(b) If a beneficiary has any interest in an asset he should make that known to the Trustee within 3 months of the reading of the Will;
(c) The Trustee, the advisers to the Trustee and management are requested to co-operate fully with any beneficiary in determining any interest in the above;
(d) All fees regarding the above are to be taken from the estate.
7. Allocation of Wealth
7.1 Property at 95 McConnell Street, Bulimba: For Amanda Dianne Talbot, with
conditions.
7.2 Property at 63 Byron Street, Bulimba: For Amanda Dianne Talbot, no conditions. The estate to discharge the mortgage.

7.3 Apartment in Paris – 38 Avenue Hoche: For Alexandra Cecile Talbot, with
conditions.

The transfer of the property to the name of Alexandra Cecile Talbot to be paid from the estate together with provisions for the renewal of the car parking lease in (I think) 15 years time.

Beneficiaries should note that the reason I have nominated Alexandra Cecile is that I wish to asset to remain in the Talbot family forever, for the use and enjoyment of the Talbot family.
By French Law, it means that every time we need to transfer title within the
family, the estate has to pay 10pc of the asset value for notary fees.
As a result, the nominated beneficiary is the youngest member of the Talbot
family to minimise such costs.
If Alexandra Cecile Talbot does not survive me, then the nominated
beneficiaries would be in order as follows:

• Cortney Erin Talbot
• Liam Anthony Talbot
• Amanda Dianne Talbot

7.4 Personal Effects: I leave my personal effects as per any interest shown by the
beneficiaries.
I request sincerely that all beneficiaries are sensible and do not argue. I particularly ask all beneficiaries to demonstrate some give and take. However, in the event of any dispute, I would request McCullough Robertson to decide.
7.5 Wine collection: My wishes are that the wine collection be distributed evenly and fairly as follows:

Amanda Dianne Talbot: 25%

Liam Anthony Talbot 25%
Courtney Erin Talbot 25%
Alexandra Cecile Talbot 25%

7.6

Boats: The 3m punt currently owned by Courtney Erin Talbot remains as her assets; In relation to all other boats including jet skis and associated trailers, I leave entirely to Liam Anthony Talbot.

7.7

Motor cars: Motor cars used predominately and consistently by Amanda Dianne Talbot, Liam Anthony Talbot and Courtney Erin Talbot are to remain the property of the above beneficiaries with any mortgages on the assets discharged through the estate.
The motor cars that Kenneth Talbot is driving should either be sold or if a
beneficiary has an interest then they can advise the trustee accordingly.
7.8

Remaining estate: I advise that I wish the remainder of my estate to be
subdivided into two portions as follows:

(a) 70% to be allocated as follows:

Amanda Dianne Talbot 20%
Liam Anthony Talbot 30%
Courtney Erin Talbot 30%
Alexandra Cecile Talbot 20%

I am allocating the above portions with conditions. I would expect Amanda Dianne Talbot as mother of Alexandra Cecile Talbot to make provision within her Will for Alexandra and that is why I have allocated a combined 40% to Amanda and Alexandra.
Again, I do not wish any of the participants to fight over the percentages allocated and as far as I am concerned there is more than enough for everybody and I want everyone to be happy and satisfied.

(b) To cover health all beneficiaries and their dependents to be enrolled in the top scale of MBF or its equivalent in addition once beneficiaries achieve 30 years of age then the estate will provide for each beneficiary to have an annual check up at the Toby Ford Corporate Health Facility at the Wesley Hospital or its equivalent.
(c)

(b) 30% remainder of my estate to be used to establish the Talbot Foundation as a vehicle for donations to community projects and charities.
8. Conditions pursuant to the distribution of wealth.

8.1 Property at 95 McConnell Street, Bulimba.

• to be considered as the family home

•

if Amanda Dianne Talbot marries or takes on a de facto, then the asset to be transferred to a family trust
• reasonable access to be provided to Liam and Courtney Talbot

8.2 Apartment in Paris:

• to remain in family forever
• all children including Liam, Courtney and Alexandra, as well as Amanda, to share access
• Amanda to have prime responsibility for administration of the
apartment; in the event of Amanda’s death, then the prime
responsibility passes to Liam, Courtney and Alexandra in order

•

Business class air fares to be provided to each of the above beneficiaries and their dependents every three (3) years for the purpose of visiting and enjoying the apartment

8.3 70% portion of assets after allowance of specific items:
Allowance to be made from the estate for a number of items as follows:

(a) Education to include fees, board and lodging
The above provisions are to be made for each beneficiary whether they are singled or married.
Weddings estate for the wedding ceremony and a three week honeymoon anywhere in the world with first class air tickets provided, full accommodation to be paid from the estate and AUD$20,000 spending money indexed for CPI.

(d)

Business class air tickets to the apartment in Paris as previously stipulated.

(e)

Attendance at the Australian Institute of Company Directors Course or its equivalent providing the beneficiary has achieved a minimum age of 30 years and also it is my wish that the beneficiary attend the course prior to the beneficiary attaining the age of 35 years
9.       Additional notes for beneficiaries wishing to acquire a family business
It is my wish that the assets can be allocated to the beneficiary but ownership to remain with the family trust. If the business is a going concern business like eg hotel, my wish is that management is retained and management to answer to the advisers of the trustee for the first two years following the beneficiary acquiring the assets.
Further, it is my wish that during that two year period the beneficiary works within the business.
A further condition of the assets being available to the beneficiary is that during the two year period the beneficiary must attend a number of courses as follows:

● Australian Institute of Company Directors course
● Four other management courses approved by the advisers in the areas as
follows:
(i)       Finance for non-financial people;
(ii)      Supervisors course;

(iii) General management aimed at providing general exposure;
and
(iv) Project management course dealing with critical path techniques.

I would request the advisers to work closely with management during the first year and confirm appropriate ongoing management of the asset for the second year.
It should be noted that management will get nervous re the assets being sold and understandably will seek to confirm a future for themselves.
Management should be advised about beneficiaries being offered a 90 day listed for sale at a time that their practical value can be obtained and proceeds retained in the family estate.
period to confirm interest and then the instructions to sell.
I would expect that the advisers would play a leading role together with management in the orderly disposal of these assets in the ordinary course of business.
In any event the advisers are to be retained by the family estate to audit management and confirm that management is acting in the best interest of beneficiaries and not a new potential owner.
10. Contingency
The situation may arise where myself and Amanda pass on simultaneously.
I need to make provision for the ongoing custody of Alexandra Cecile Talbot.
My instructions re that until Alexandra Cecile Talbot reaches 18 years of age
she will be in the custody of Susan and Clive Wills (Amanda Dianne’s
parents) providing they are surviving and in reasonable health at that time and therefore can accept the custodial responsibility. I hereby advise that they be paid an allowance of AUD$30,000 per annum from the estate indexed each year for CPI.
In the event Susan and Clive Wills cannot undertake the above obligations then custody together with the above allowance will be given to Lisa and Angus McGiver.
In the event that Lisa and Angus are not surviving then the responsibility for
custody to be vested with Courtney Erin Talbot.”

Annexure C

Annexure D

director until the end of May 2014.

CITATION:	Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8
PARTIES:	AMANDA DIANNE TALBOT
(first plaintiff)
ALEXANDRA CECILE TALBOT
(second plaintiff)
CLAUDIA ELISABETH TALBOT
(third plaintiff)
BLEVIO PTY LTD (AS TRUSTEE)
(fourth plaintiff)
COLLETTE CRAMER PTY LTD (AS TRUSTEE)
(fifth plaintiff)
v BOYD LEGAL (A FIRM)
(first defendant)
ARNOLD BLOCH LEIBLER (A FIRM)
(second defendant)
PAUL JAMES VINCENT AND WILLIAM FRANCIS BOYD (AS ADMINISTRATORS AND TRUSTEES OF THE ESTATE AND WILL TRUST OF KENNETH TALBOT, DECEASED)
(third defendant)
BRIAN DAVID BARTLEY
(first third party)
PAUL WILLIAM GLEESON
(second third party)
WILLIAM FRANCIS BOYD AS ADMINISTRATOR OF THE ESTATE OF KENNETH TALBOT
(third third party)
FILE NO:	BS 641 of 2019
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING	Supreme Court of Queensland at Brisbane
COURT:
DELIVERED ON:	3 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	13–29 June 2022, 18–22 July 2022, 8–9 August 2022, 11
August 2022, 24 August 2022.
JUDGE:	Boddice J
ORDER:	I shall hear the parties as to the form of orders and costs.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – GENERALLY – where in December 2000, Kenneth Talbot (“the deceased”) gave instructions to a
solicitor, William Boyd (“Boyd”) to draft a Will – where Boyd prepared a draft Will – where the deceased held considerable wealth in companies or trusts – where in November 2002, the deceased executed the Will (the “2002 Will”) – where the plaintiff claims the first defendant
breached various professional duties to the deceased, in failing to appropriately advise the deceased as to the terms of
the 2002 Will – whether Boyd gave certain advice to the deceased – whether Boyd prepared the Will to give effect to the deceased’s specific instructions
PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – GENERALLY – where in September 2006
Boyd contacted the deceased suggesting that the deceased
review his Will – where in September 2007, Boyd sent a reminder to the deceased – where Boyd sent a further reminder to the deceased in November 2007 – where Boyd
had a conference with the deceased on 23 November 2007 to
obtain instructions for a new Will – where the deceased gave
instructions, including a particular percentage allocation to
the beneficiaries – whether Boyd advised the deceased that he
needed to make specific provision for the second and third
plaintiff – where in April 2008, Boyd undertook a review of the corporate structure of the Talbot Group – where in October 2008, Boyd prepared a brief to Counsel – where in March 2009, Boyd asked Counsel to prepare a draft Will –
where Boyd received a draft Will from Counsel in May 2009
– where Boyd and the deceased spoke at the State of Origin
match on 15 July 2009 – where Boyd and the deceased spoke on 17 December 2009 – where Boyd and the deceased spoke on 5 May 2010 – whether, during the discussion on 5 May
2010, the deceased told Boyd that he wished to change his
instructions – where a plane carrying the deceased crashed on 19 June 2010 – where the plaintiff claims the first defendant
breached various professional duties to the deceased, by failing to prepare a codicil, interim Will or new Will between
November 2007 and the date of the deceased’s death –
whether the deceased had any concluded testamentary
intention in respect of a new Will – whether the first defendant’s conduct was of a reasonably competent solicitor
PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – GENERALLY – where in August 2010,
Boyd and the first plaintiff met with a retired Judge in
Melbourne – where the retired Judge introduced the first
plaintiff to partners of the second defendant, Arnold Bloch
Leibler (“ABL”) – where on 13 August 2010, the first plaintiff entered into a retainer with ABL – where Boyd and
the first plaintiff entered into a pro-bono retainer on 31
August 2010 – where in March 2011, ABL engaged Gleeson
Lawyers, as town agent, for the purpose of preparing a family provision application on behalf of the second and third
plaintiff – where the family provision application was discontinued in April 2011 – where between 2010 to 2012,
the first plaintiff sought for the executor to be removed and
replaced – where a mediation occurred in June 2012 – where
on 29 June 2012, letters of administration were granted to
Boyd – where the first plaintiff makes claim against the first
defendant for breach of various professional duties in
accepting a pro-bono retainer – where the first plaintiff makes
claim against the first defendant for breach of various professional duties in accepting appointment as administrator
– where the first plaintiff makes claim against ABL for
failing to advise the first plaintiff of a claim against Boyd in
respect of the 2002 Will – where the first plaintiff makes
claim against ABL for failing to advise the first plaintiff of a
claim against Boyd in respect of a proposed new Wil – where
the first, second and third plaintiff make claim against ABL for failing to fully and properly advise against the appointment of Boyd as administrator, with the consequence
that each suffered loss in the administration of that estate –
whether Boyd breached his duty in relation to any conflict of
interest – whether ABL by conduct or otherwise assumed any duty to the second and third plaintiff – whether ABL was instructed to obtain the new Will file – whether ABL had an
obligation to investigate if any new Will file contained documentation which would have supported a revocation or
partial revocation of the 2002 Will – whether ABL breached
its duty to the first plaintiff in not seeking access to the new
Will file – whether ABL breached its duty to the first plaintiff
in failing to commence proceedings to obtain the new Will
file – whether ABL advised the first plaintiff in respect of
suitable candidates for administrator of the estate
COUNSEL:	P Dunning KC, P Telford and S M Derrington, for the plaintiffs G A Thompson KC and A Nicholas for the first defendant and third third party S Doyle KC and S McCarthy for the second defendant
D O’Brien KC and J Otto KC for the third defendant
Cohen (sol) for the first third party G Beacham KC and T Naylor for the second third party
SOLICITORS:	Everingham Lawyers for the plaintiffs Hall & Wilcox for the first defendant K&L Gates for the second defendant
HopgoodGanim Lawyers for the third defendant
Bartley Cohen for the first third party Carter Newell for the second third party HopgoodGanim Lawyers for the third third party

“●	Even on the approach he and I agreed to take, there are still some difficult legal issues I have to work out. I have already put a lot of time into them since he and I met.
●	There is no point in signing a document until I have those issues worked out. Otherwise, it would quite literally be a waste of paper.
●	The resolution of these issues will require him to have a look at a draft which I am a day or two away from finishing. Once I have his instructions on the matters raised in the draft, the document should be ready to go.
●	Assuming Ken is available to look at the draft, he should be able to sign
in a matter of days.”

●	KT’s wishes to be respected
●	Category of assets
●	Obj; conversion to cash, support education and self development
●	Drip feed
●	Protection
●	Charities

●	Amanda -95/99 McConnell Street
●	Liam
●	Courtney
●	Alex
●	Claudia

●	Paris apartment
●	Shanghai apartment
●	Italy villa
Plus
●	Real estate, Australia
●	Cash investments
●	Aeroplane (including hangar)
●	Cars

●	Drug test
●	Scheme, age 40 (threshold)
●	Investment of interim funds

●	Talbot foundation (decision)
●	Responsibilities (decision)
●	Discretionary investments (decision)”

(f)	Regarding the Italian real estate, it is to be left to Amanda Talbot with all family members to have the use and enjoyment of it.
(g)	All other real estate is to be liquidated over a period of two years. Any beneficiary who wishes to take a particular piece of property under the will is to nominate it for inclusion in their share of the estate. In the event of dispute, the oldest interested beneficiary is to prevail.
(h)	Talbot Group Administration Pty Ltd is about to settle the purchase of a LearJet and is shortly due to take delivery of a larger aircraft, a Bombardier Global 5000. It has also entered into a lease with Brisbane Airport Corporation for the lease of land at the Brisbane Airport and is currently constructing a hangar on that land. Amanda Talbot is to have first option to take any of the aircraft and the hangar (on condition she becomes responsible for all relevant expenses from her share of the estate). If she does not wish to take any of this property, it is to be sold.

1.1	This Will supersedes any previous Will etc. etc.
1.2	Kenneth Talbot wishes to advise all beneficiaries of what he considers to be the important elements of life so that all beneficiaries can have a better understanding of his wishes with the foregoing Will as follows:
1.3	It is important to be, healthy wealthy and wise.
1.4	Kenneth Talbot has spoken to many people that have created wealth and have managed wealth.
1.5	Kenneth Talbot has dealt with people directly that have managed wealth on behalf of wealthy people who have advised that misery is directly proportional to the amount wealth created.

(a)	The need to do good things;
(b)	The need to do interesting things;
(c)	The need to achieve and have a sense of purpose and satisfaction.

1.8	Regarding health, Kenneth Talbot advises everybody that it is the number one priority and he had made provision in his Will for such requirements.
1.9	Without good health then most aspects of life are superfluous.

(a)	On paper, each of the beneficiaries are wealthy;
(b)	The Will will provide adequate provision for education because of its importance to achieving good and interesting things during your lifetime as well as providing for your family.
(c)	Kenneth Talbot considers that the worst thing he could do is to give any beneficiary, for example a $1m payout at age 21.
(d)	As a consequence, beneficiaries will be kept on the drip feed until maturity;
(e)	Be careful; families and friends will note your perceived wealth and seek a share;
(f)	You will have many new friends of a temporary nature;
(g)	Kenneth Talbot has built in protection within the Will against opportunists;
(h)	My advice is to play down wealth and advise that the major beneficiaries of my Will are charities;

Category 1:	In the name of Kenneth Talbot
Category 2:	In family trusts existing.
Category 3:	In company name with Kenneth Talbot as the sole shareholder and sole director.
Category 4:	Cash.

7.3	Apartment in Paris – 38 Avenue Hoche: For Amanda Dianne Talbot, with
conditions.
The transfer of the property to the name of Amanda Dianne Talbot to be paid from the estate together with provisions for the renewal of the car parking lease in (I think) 15 years time.
7.4	Personal Effects: I leave my personal effects as per any interest shown by the beneficiaries.
I request sincerely that all beneficiaries are sensible and do not argue. I particularly ask all beneficiaries to demonstrate some give and take. However, in the event of any dispute, I would request McCullough Robertson to decide.
7.5	Wine collection: My wishes are that the wine collection be distributed evenly and fairly as follows:

Amanda Dianne Talbot:	25%
Liam Anthony Talbot	25%
Courtney Erin Talbot	25%
Alexandra Cecile Talbot	25%

Amanda Dianne Talbot	20%
Liam Anthony Talbot	30%
Courtney Erin Talbot	30%
Alexandra Cecile Talbot	20%

Category 3:	This category comprises residential real estate assets that require minimal supervision. An example is a residential house that is rented.
Category 4:	This category comprises commercial real estate that require management and without management the value of the asset can be diminished substantially;
Category 5:	This category comprises cash and therefore does not require administration.

4.1	Prior to the meeting in Paris the international friends, George Sabbagh and BNP Bank, through the Trustee as appointed, will request the Australian assistants to the Trustee, that is KPMG Accountants and McCullough Robertson, Solicitors, to compile a report on all assets within 14 days.
4.2	If management is employed at this time then they can materially prepare such report with a description of each asset, financial performance of same and order of magnitude estimate of asset value (note: where valuations can be obtained within 14 days, then such independent valuations should be obtained).
4.3	The report of assets will be grouped according to categories 1, 2, 3 and 4 (in
clause 3.1 – Ownership) and categories 1, 2, 3, 4 and 5 (in clause 3.2 – Type
of Holding).
5.	Retention of Management

•	Cortney Erin Talbot
•	Liam Anthony Talbot
•	Amanda Dianne Talbot

(b)	To cover health all beneficiaries and their dependents to be enrolled in the top scale of MBF or its equivalent in addition once beneficiaries achieve 30 years of age then the estate will provide for each beneficiary to have an annual check up at the Toby Ford Corporate Health Facility at the Wesley Hospital or its equivalent.
(c)
(b)	30% remainder of my estate to be used to establish the Talbot Foundation as a vehicle for donations to community projects and charities.

•	to be considered as the family home
•	if Amanda Dianne Talbot marries or takes on a de facto, then the asset to be transferred to a family trust
•	reasonable access to be provided to Liam and Courtney Talbot

•	to remain in family forever
•	all children including Liam, Courtney and Alexandra, as well as Amanda, to share access
•	Amanda to have prime responsibility for administration of the

(d)	Business class air tickets to the apartment in Paris as previously stipulated.
(e)	Attendance at the Australian Institute of Company Directors Course or its equivalent providing the beneficiary has achieved a minimum age of 30 years and also it is my wish that the beneficiary attend the course prior to the beneficiary attaining the age of 35 years