The recent Queensland Court of Appeal decision of Spink v Russell  QCA 107 (“Spink”) provides valuable guidance regarding the relevance of a potential family provision application in a statutory will proceeding. Spink is only the second statutory will matter to have been heard by the Queensland Court of Appeal.
In order to make a valid will, a person needs to possess testamentary capacity. A person may lack testamentary capacity where, for example, the person is a minor, the person is incapacitated due to illness or injury or the person suffers from a mental disability. In these circumstances, the Court has power to make an order authorising a will to be made on that person’s behalf. The Court also has power to make orders authorising the alteration or revocation of an existing will.
A statutory will may be needed in order to adjust beneficial entitlements under an existing will or under the intestacy rules. The intestacy rules operate where a person dies intestate (without a valid will) and provide for a person’s estate to be distributed amongst the person’s next of kin in a set manner depending upon the person’s family circumstances.
Where a person lacks testamentary capacity, it may be necessary or desirable to have a statutory will made on their behalf to resolve problems that could or will arise under an existing will or the intestacy rules, to deal with various changes in the circumstances of the person and/or their family over time or simply for estate planning purposes.
Statutory will applications are often made on an urgent basis where, for example, an incapacitated person’s health is deteriorating rapidly. Importantly, the Court only has power to make an order authorising the making, alteration or revocation of a will (authorisation order) if the person is alive at the time of the order.
The Court must be satisfied that the applicant is an “appropriate person”. Generally, this will be a relative or a substitute decision-maker of the person without testamentary capacity.
The applicant first needs to obtain the Court’s leave (permission) to apply for an authorisation order however the Court may, and often does, hear the substantive application with or immediately after the leave application is heard. The applicant is required to give the Court a wide array of information including the reasons why an authorisation order is being sought, evidence that the person lacks testamentary capacity and a draft of the proposed will, alteration or revocation. Ultimately, the court may grant leave only if satisfied that, among other things, “the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity”.
Separately to its power to make an authorisation order for a living person, the Court also has power to order that provision (or further provision) be made from the estate of a deceased person for the proper maintenance and support of certain eligible persons. The fact that the Court has made (or has not made) an authorisation order does not preclude a later family provision application being commenced.
In a statutory will application, the applicant is required to inform the Court of any available evidence of the likelihood that a family provision application will be brought against the person’s estate after their death.
The approach of the Court in a statutory will application and the approach of the Court in a family provision application are almost completely opposite. In a statutory will application, the Court must aim to do what the person would have done if they were able to. In a family provision application, the Court must aim to effect the provision that ought to have been made for the applicant for provision.
The difference in the above approaches was highlighted in Spink. Briefly, the background facts are as follows:
In allowing the appeal, the Court of Appeal accepted the submission of MAG’s attorney that it was not open on the evidence available to the primary Judge to conclude that a will containing a gift of $4 million for Michelle was a will that MAG probably would have made. Support for this conclusion was found in the contemporaneous file notes made by the solicitor who prepared the 2014 wills, in a further contemporaneous letter of advice from the same solicitor warning of the risk of a family provision application by Michelle as well as in the absence of any evidence of a change in MAG’s intention thereafter. MAG’s instructions and subsequent conduct instead provided a reliable basis to infer that her testamentary intentions with respect to Michelle were firmly held. The authorisation order made at first instance was set aside and substituted with an order authorising a will in the form proposed by MAG’s attorney.
It seems almost inevitable that Michelle will ultimately bring a family provision application against MAG’s estate (assuming Michelle survives MAG). However, as was observed by the Court of Appeal in its reasons, the requirement to inform the Court of the likelihood of a family provision application does not mean that the Court must then evaluate potential family provision applications for the purposes of ensuring the will the Court authorises satisfies such claims. The making of an authorisation order is an exercise of jurisdiction which is protective in nature and which is informed by what is for the benefit, and in the interests, of the person who lacks testamentary capacity. While there may be instances where it is open to the Court to find that the person probably would make a will which satisfies or avoids a family provision application, where the evidence clearly precludes such a finding as in Spink, it will not be in the person’s interest for the Court to authorise a will which provides for such a contingency.
 The first was GAU v GAV  QCA 308
 Succession Act 1981 (Qld), s 21(1). In Queensland, the Court has had these powers since 2006 when the Succession Act 1981 (Qld) was amended to introduce provisions dealing with statutory wills. Although all Australian States and Territories have legislation concerning the making of statutory wills, this article is concerned only with the provisions applicable in Queensland.
 Succession Act 1981 (Qld), s 21(2)(b)
 Succession Act 1981 (Qld), s 24(a)
 Succession Act 1981 (Qld), s 22(1)
 Succession Act 1981 (Qld), s 23
 Succession Act 1981 (Qld), s 24(d)
 Succession Act 1981 (Qld), s 41(1)
 Succession Act 1981 (Qld), s 23(h)
 Spink v Russell  QCA 107 at 
 Spink v Russell  QCA 107 at ; GAU v GAV  QCA 308 at 
 Spink v Russell  QCA 107 at 
Article by Michael Klatt (Partner) and Krystal Bellamy (Senior Associate).
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