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June 2019

In Spink v Russell [2019], the Court considered the difficult task of writing a Will for a person who has lost capacity due to Dementia.
Mag, a wealthy women with an estimate net worth of 99 million dollars lost capacity after her last Will was written in 2014. Since that date, her husband had died and a restructuring of her business affairs had necessitated a new Will. However Mag lost testamentary capacity and her legal guardian brought an application under s21 (1) of the Succession Act (Qld). This section confers on the Supreme Court jurisdiction to make an Order authorising a Will be made in the terms stated by the Court on behalf of the person who has lost testamentary capacity. The issue in this case was that the 2014 Will left 1 million dollars to an overseas step-daughter and this had remained the same in the proposed Statutory Will to be created under s21 (1). However the step-daughter challenged that decision and was awarded 4 million dollars by the trial judge. The trial judge reasoned that had Mag know that the step daughter would make a Family Maintenance Provision application, she would have increased the gift to 4 million dollars to avoid that occuring. The Queensland Court of Appeal found that this may not have been the case. The appellant court considered the evidence did not support this assumption; and accordingly, ruled the gift to the step daughter should be as per the original 2014 Will - namely, 1 million. The case is an example of how Will's are not necessarily the final word in Estate matters.

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