Background
KN is an 84-year-old woman suffering from dementia who lacks testamentary capacity and is unlikely to recover it before death. Her most recent will, dated 17 October 2017, appointed her two adult children — DPN and SDJ — as executors and left her entire estate equally to them. That will was automatically revoked by operation of law when KN married LJP, her long-term partner, in May 2022. KN therefore died intestate in a practical sense, with no valid will in place. Under Queensland intestacy rules applied to an estimated estate of approximately $3 million, LJP would receive roughly $1.1 million and each child approximately $950,000.
DPN, KN’s adult son and co-appointed guardian and administrator, applied to the Supreme Court under section 21 of the Succession Act 1981 (Qld) for authorisation of a statutory will on KN’s behalf. LJP, KN’s second husband — an 89-year-old pensioner in poor health — opposed the application initially, arguing any statutory will should be no less favourable to him than intestacy. After negotiation, the parties reached agreement on a Proposed Will giving LJP a $300,000 legacy, a $500,000 trust fund to meet aged-care accommodation costs (with any balance reverting to KN’s estate on LJP’s death), and the residue split equally between DPN and SDJ.
The proceeding was conducted with the benefit of medical evidence confirming KN’s incapacity, valuations of the estate (including competing real property valuations of $1.34 million and $1.735 million), and evidence about KN’s prior testamentary intentions, her wishes as expressed to family members, and the financial circumstances of all interested parties. LJP’s situation was particularly acute: his pension was cut on marriage, he has exhausted his savings, and he has been relying on contributions from KN’s children and his own family since 2022.
The Court’s Holding
Hindman J authorised the making of the statutory will in the terms of the Proposed Will. Applying the test from Re APB, ex parte Sheehy [2017] QSC 201, the court was satisfied that the Proposed Will was one KN probably would have made had she retained testamentary capacity. While KN’s three wills between 2004 and 2017 consistently left her entire estate to her children, none were made during or after her relationship with LJP had fully developed, and her marriage to him in 2022 marked a significant change in circumstances. The court found no strong direct evidence of KN’s testamentary wishes post-marriage, noting that a recorded conversation produced by DPN appeared to show KN largely agreeing with her son to keep the peace rather than expressing genuine independent views.
The court balanced several competing considerations: KN’s long-standing pattern of benefiting her children; LJP’s pressing financial need as her current husband (described as “the person with the most pressing need” of the three interested parties); the real possibility of a family provision claim by LJP if the will did not adequately provide for him; and LJP’s parallel proceedings in the Federal Circuit and Family Court of Australia seeking property adjustment orders. The Proposed Will, having been agreed by all parties, was found to represent an appropriate and probable expression of what KN would have wished.
The court also made non-identification orders anonymising all parties in the public judgment and on the court file, reflecting the settled practice of protecting the privacy of incapacitated persons in statutory will proceedings. Costs of both parties were ordered to be paid from KN’s estate — the applicant’s on an indemnity basis, and the respondent’s fixed at $96,000 inclusive of GST — pursuant to section 21(5) of the Act.
Key Takeaways
- A statutory will may be authorised under section 21 of the Succession Act 1981 (Qld) where an incapacitated person has no valid will; the central question is whether the proposed will is one the person “probably would have made” if capable — a question of fact assessed against the full circumstances, not merely prior testamentary history.
- Marriage after the making of a will automatically revokes that will under Queensland law, creating particular risk for elderly persons with cognitive decline who may lack capacity to execute a new one before death.
- A court weighing what a person “probably would have made” must consider post-incapacity changes in life circumstances — including a new marriage and a spouse’s financial dependency — even where prior wills consistently favoured different beneficiaries.
- Evidence of a person’s alleged wishes obtained through leading questioning by an interested party will be given reduced weight; courts in this jurisdiction scrutinise such evidence carefully.
- Costs of all parties in a statutory will application may be ordered paid from the incapacitated person’s estate, reflecting the protective and non-adversarial nature of the jurisdiction.
Why It Matters
This decision illustrates the complexity that arises when an elderly person with diminishing capacity enters a late-life marriage without updating their estate plan. The automatic revocation of a will upon marriage — combined with the rapid onset of incapacity — can leave an estate in a state of intestacy that does not reflect the person’s likely wishes toward either their new spouse or their adult children from a prior relationship. Statutory will applications in these circumstances inevitably surface deep family tensions that courts cannot fully resolve, yet must work around to achieve a just outcome.
For practitioners advising older clients in new relationships, the case is a strong reminder of the urgency of post-marriage estate planning. It also reaffirms that Queensland courts will look beyond historical testamentary patterns when assessing what a person “probably would have made,” taking into account changed family structures, a spouse’s financial vulnerability, and the risk of family provision litigation — all of which may justify departing substantially from how a person last expressed their testamentary intentions.