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Blumke v Campbell[2020] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

Blumke v Campbell & Anor [2020] QCA 217

PARTIES:

JANINE MAREE BLUMKE

(appellant)

v

SUZANNE CAMPBELL

(first respondent)

WENDY HOOK

(second respondent)

FILE NO/S:

Appeal No 4014 of 2020

SC No 1470 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 16 March 2020 (Bradley J)

DELIVERED ON:

2 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2020

JUDGES:

Morrison and Philippides JJA and Henry J

ORDERS:

  1. Appeal dismissed.
  2. The appellant will pay the respondents’ costs of the appeal to be assessed on the standard basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the respondents successfully applied for the making of a statutory will on behalf of their aged father, the statutory testator – where the appellant is the sister of the respondents and the daughter of the statutory testator – where, over a number of years, the appellant exercised undue influence over the statutory testator – where a Supreme Court judge, in a separate proceeding, had made findings against the appellant that she had procured transactions related to the statutory testator’s family trust via undue influence and unconscionable conduct towards the statutory testator – where the statutory will proposed by the respondents contained a “hotchpot clause” which had the effect of causing any loss to the statutory testator’s estate occasioned by the appellant’s misconduct to fall on the appellant – where the “hotchpot clause” contained the theoretical possibility of losses suffered by the statutory testator’s estate not caused by the appellant’s misconduct to fall on the appellant – whether the learned primary judge erred by ordering the proposed statutory will be made

Succession Act 1981 (Qld), s 21, s 22, s 24(d)

Campbell & Anor v T.L. Clacher No. 2 Pty Ltd & Ors [2019] QSC 218, considered
GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308, cited
Re APB, ex parte Sheehy [2017] QSC 201, considered
Spink v Russell [2019] QCA 107, applied

COUNSEL:

P Looney QC, with I Klevansky, for the appellant

R M Treston QC, with B A Reading, for the respondents

SOLICITORS:

Mills Oakley Lawyers for the appellant

Thynne & Macartney for the respondents

  1. [1]
    MORRISON JA: I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.
  2. [2]
    PHILIPPIDES JA: I agree with the reasons for judgment of Henry J and the orders proposed by his Honour.
  3. [3]
    HENRY J: The appellant and respondents are sisters. The respondents, Suzanne and Wendy, were granted an order by a Supreme Court judge authorising the making of a statutory will on behalf of their elderly father, Thomas. The appellant, Janine, appeals that decision.[1]

Background

  1. [4]
    It is common ground that Thomas, who has since died, did not have testamentary capacity at the time of the making of the order.
  2. [5]
    Thomas made three wills:
    1. (i)
      The first will, of 11 March 2002, made all three daughters executors, bequeathed $30,000 to each of Thomas’s grandchildren and left the residue of his estate to his daughters in equal shares.[2]
    2. (ii)
      The second will, of 4 December 2014, made Janine executor, bequeathed his residential property at Morningside to Janine and left the residue of his estate to his three daughters in equal shares.
    3. (iii)
      The third will, of 23 December 2016, made Janine executor and left the entirety of his estate on trust for Janine and her two children.
  3. [6]
    These wills exhibited a transition from Thomas favouring his daughters equally, to favouring Janine over Suzanne and Wendy, eventually to their complete exclusion. That transition coincided with an era in which Thomas financially disowned Suzanne and Wendy through a variety of resolutions and dispositions. Some of those actions were invalidated by a decision of Jackson J, Campbell & Anor v T.L. Clacher No. 2 Pty Ltd & Ors,[3] in which his Honour observed of them:

“His actions were brought on by what appears to have been a combination of paranoia and anger based on false accusations that Wendy or Suzanne or Jon [Suzanne’s husband] or some combination of them was attempting to take advantage of or pressure him in some unfair way. In this, I have concluded that Janine and Glenn [Janine’s husband] were both prepared to encourage the third respondent [Thomas] and to take advantage of his irrational fears.”[4]

  1. [7]
    His Honour found the impugned resolutions and dispositions resulted from undue influence and unconscionable conduct exercised by Janine and her husband Glenn upon Thomas. The array of undue influence and unconscionability identified in his Honour’s reasons was breathtaking in its scope. His Honour found that conduct encouraged Thomas to believe false accusations against Wendy, Suzanne and Suzanne’s husband and caused Thomas to take the otherwise incomprehensible step of disowning loved ones who had long been in a close relationship with him.
  2. [8]
    Suzanne and Wendy were the applicants before Jackson J. Thomas was the third respondent. The second respondent was Flowon 241 Pty Ltd as Trustee for the Blumke Family Trust, that is, the family trust of Janine and her husband. The first respondent was T. L. Clacher No 2 Pty Ltd as Trustee for the Clacher Family Trust. Thomas and his wife Pauline had been its directors and shareholders. After Pauline’s death on 11 September 2012 Thomas was the sole director, shareholder and secretary. The purpose of the Clacher Family Trust was to assist and make provision for the family of Thomas and Pauline. Their daughters and grandchildren were beneficiaries.
  3. [9]
    As at mid-2014 the Clacher Family Trust’s assets were:
  • shares, securities and other investments worth $2,151,701;
  • real property at West Ipswich and seven apartments at Kangaroo Point; and
  • plant and equipment worth $1,138,790.
  1. [10]
    Its liabilities were:
  • a loan from Thomas of $245,165;
  • an unpaid present entitlement of Thomas as beneficiary of $2,911,275;
  • unpaid present entitlements of the trust as beneficiary of $824,569.
  1. [11]
    The nett effect of a series of resolutions of the Clacher Family Trust from June to December 2014 was to purportedly exclude Suzanne, Wendy and their families as beneficiaries of the Clacher Family Trust. There was also a variation of the definition of the trust’s “principal” so that in the event of Thomas’ death or incapacity, Janine would be the principal.
  2. [12]
    In the wake of the above resolutions, Janine and her husband Glenn settled the Blumke Family Trust. They thereafter proceeded to strip the Clacher Family Trust of its assets, shifting them to the Blumke Family Trust. A purported resolution of the Clacher Family Trust reduced the amount of the unpaid entitlements owed by the trust by the value of shares and assets transferred from the Clacher Family Trust to the Blumke Family Trust. This had the purported effect of diminishing the value of Thomas’ personal assets.
  3. [13]
    In addition to the unpaid entitlement from the trust Thomas’ personal assets included the family home at Melville Terrace, Wynnum, six residential units at Dickson Street, Morningside, land at Burnett Heads owned with Suzanne, and substantial superannuation. During the era of the undue influence and unconscionable conduct of Janine and her husband, Thomas’ family home and the Dickson Street units were transferred to him and Janine as joint tenants.
  4. [14]
    The action before Jackson J was concerned with the assets of the Clacher Family Trust. The orders of Jackson J therefore went only to invalidating and reversing the effect of the resolutions and transactions involving the trust. An argument which featured below, and in this appeal before its abandonment at the start of the hearing, was that because Jackson J’s decision was concerned only with trust property, it could have no bearing on the issue of Thomas’ statutory will.
  5. [15]
    The argument was properly abandoned. If Thomas had capacity and could understand how the undue influence and unconscionable conduct of Janine and her husband, as explained by Jackson J, had turned him against Suzanne and Wendy, he would inevitably wish to at least restore them to the position they had been in as his heirs prior to the misconduct of Janine and her husband.
  6. [16]
    Because the exercise below involved a decision whether to authorise a statutory will, there was no need to make findings as to the legitimacy of Thomas’ past wills. Those wills were potentially evidence of Thomas’ past testamentary intentions and in turn part of a broader body of circumstantial evidence informing the court’s consideration of whether the proposed will was a will Thomas would likely make.[5] However, consideration of the weight to be given to the most recent two wills and the testamentary intentions embodied within them could hardly ignore that they were executed in an era when, as Jackson J’s reasons showed, Thomas’ mind had been poisoned against two of his daughters and their families by undue influence and unconscionable conduct.
  7. [17]
    The learned primary judge rightly observed the second and third wills, having been executed during the era of undue influence and unconscionable conduct, were not free from a concern they were affected by that misconduct. He favoured the first will, which had stood for many years earlier, as a helpful indicator of Thomas’ probable testamentary attitude in the event Thomas had capacity and understood the facts found by Jackson J.
  8. [18]
    His Honour’s preference for the past even-handed approach of Thomas was, on the face of it, a generous outcome for Janine. His Honour observed in that regard:

“It is possible that the testator might have made a will more adverse to the interests of the Respondent, owing to the now proven misconduct of the Respondent, and those associated with her, set out in the reasons of Justice Jackson.”[6]

However, his Honour went on to reason that Thomas would also consider “the need to avoid further disputation about the effect of his will, or the right of each of his children to call upon him and to expect support from his estate”.[7]

  1. [19]
    In authorising a statutory will the learned primary judge concluded from Thomas’ historical preference for favouring his daughters in equal shares that the statutory will should restore that preference but adjust the calculation of Janine’s one-third share. He explained the adjustment was “to account for the diminution in value of the testator’s assets and other interests, and consequential loss of income, arising from factual findings made by Justice Jackson”.[8]
  2. [20]
    The adjustment was effected by the inclusion of a so-called hotchpot clause in the statutory will authorised by the learned primary judge. The appellant complains the hotchpot clause affects adjustments for diminutions in value which may not be attributable to the misconduct found by Jackson J, thus giving the respondents an erroneous degree of priority over the appellant.

Hotchpot clause

  1. [21]
    The statutory will and its hotchpot clause proposed below was drafted by a solicitor, an accredited specialist in succession law, Margaret McNamara. Ms McNamara deposed the draft will reinstated Thomas’ testamentary scheme prior to 2014 “but with one significant difference, being the addition of a hotchpot clause”. Of that clause she deposed:

“7. The purpose of the hotchpot clause is to:

  1. (a)
    use the composition of Mr Clacher’s estate and other interests as they were at 30 June 2014 (that is, before there were any adverse dealings with his assets);
  1. (b)
    revalue the estate and other interests at the date of calculation (that is, after Mr Clacher’s death); and
  1. (c)
    to make various additions and subtractions for Mr Clacher’s income and expenses between 1 July 2014 and his death

to account for the diminution in value of Mr Clacher’s assets and other interests (and consequential loss of income) arising from the factual findings in the [judgment].

  1. This allows a value for Mr Clacher’s “notional estate” to be determined for the purposes of ensuring his estate and other interests at 30 June 2014 (adjusted for value and income) are shared for the benefit of his 3 children equally.
  1. The executor is then to distribute tangible assets, being real estate, cash and shares up to the value of one-third of Mr Clacher’s notional estate to each of the testamentary trusts set up for Wendy and Suzanne. The balance of Mr Clacher’s assets are then to be distributed to the testamentary trust set up for Janine.”[9]
  1. [22]
    In short, the adjustment ensures testamentary trusts for Suzanne and Wendy are first fed one third each of the grossed up “notional” value of the estate before anything is fed to Janine’s testamentary trust. Such an approach is underpinned by reasoning that any diminution of the value of the actual estate compared to the notional estate will have been occasioned by the misconduct of Janine and her husband, as exposed by the factual findings of Jackson J, and should thus be visited upon her inheritance, not Suzanne’s and Wendy’s.
  2. [23]
    This reasoning is reflected, albeit without reference to the decision of Jackson J, in sub-clause 8.1(a) of the hotchpot clause, which provides:

“(a) The purpose of this clause is to ensure, as far as possible, that:

  1. (i)
    my three daughters receive an equal share of my estate and my other interests as existed at 30 June 2014, including my personal assets, superannuation entitlements, my shares in T.L. Clacher (No. 2) Pty Ltd ACN 010 253 970, any loans and unpaid beneficiary entitlements from the Clacher Family Trust and the assets of the Clacher Family Trust, but at their value at or near the date of distribution of my estate; and
  1. (ii)
    to the extent that my estate and my other interests have been diminished in value since 30 June 2014, the impact of this loss in value is minimised for Wendy and Suzanne because Janine and/or her family trust were the recipients of and/or had the benefit of some of my assets and the assets of the Clacher Family Trust since 30 June 2014.”[10] (emphasis in original.)
  1. [24]
    In this appeal Janine’s counsel correctly points out the above approach visits all diminution in value on Janine and does not allow for the theoretical possibility that there may, since 30 June 2014, have been a diminution in the value of Thomas’ assets and other interests which did not arise in connection with the misconduct of Janine and her husband. This theoretical possibility was illustrated by reference to the operative parts of the hotchpot clause.
  2. [25]
    For example, clause 8.2(c)(ii), in adjusting the value of Thomas’ notional estate as at 30 June 2014, substituted the value of Thomas’ share portfolio as at 30 June 2014 with an adjustment to that value commensurate to the extent of variation between the S&P ASX 200 index then and at the date of calculation. This, the appellant complains, overlooks the possibility that there may in the interim have been sales of Thomas’ share portfolio holdings which did not result from the conduct of Janine and her husband. The same point applies to the sale or disposition of other types of assets.
  3. [26]
    Another example is that clause 8.2(c)(vi) adds the superannuation pension payments made to Thomas from 1 July 2014 to his death to the value of his notional estate whereas clause 8.2(c)(x) deducts fixed amounts for Thomas’ comfortable living expenses in the meantime. The appellant complains this effectively assumes pension payments in excess of those fixed amounts would have been lost because of the conduct of Janine and her husband and overlooks the possibility Thomas may have been profligate in expending his pension for reasons unconnected with the influence of their conduct.
  4. [27]
    It is correct that the reasoning underlying the hotchpot clause apparently assumes any diminution in the value of Thomas’ personal assets and interests after mid-2014 would have been occasioned by the conduct of Janine and her husband in the era of their undue influence and unconscionable conduct described in the judgment of Jackson J. The complaint thus raised is that assumption does not allow for the theoretical possibility of a diminution being occasioned by other events, with no connection to that conduct, and that Thomas is unlikely to have wanted to visit the potential consequence of such a diminution only upon Janine’s share of the estate. Consideration of that complaint, of a theoretical possibility and its significance, requires consideration of the nature of statutory will making and some factual realities about how the case was litigated below.

Consideration

  1. [28]
    The authorising of a statutory will by a court is allowed by s 21 Succession Act 1981 (Qld) which, at the time of the application, relevantly provided:

21 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity

  1. (1)
    The court may, on application, make an order authorising—
  1. (a)
    a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or
  1. (b)
    a will or part of a will to be revoked on behalf of a person without testamentary capacity.
  1. (2)
    The court may make the order only if––
  1. (a)
    the person in relation to whom the order is sought lacks testamentary capacity; and
  1. (b)
    the person is alive when the order is made; and
  1. (c)
    the court has approved the proposed will, alteration or revocation.”
  1. [29]
    At the time of the application s 22 required that the application for a s 21 order could only be made with leave. Section 23 contained a list of materials to be provided to the court on the hearing of the leave application.[11] Section 24 listed pre-requisites for the granting of leave relevantly as follows:

24 Matters court must be satisfied of before giving leave

A court may give leave under section 22 only if the court is satisfied of the following matters––

  1. (d)
    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;
  1. (e)
    it is or may be appropriate for an order to be made under section 21 in relation to the person.”
  1. [30]
    The order of the court pursuant to s 21 is one authorising the making of a statutory will. The will so authorised is not actually “made” until properly executed by the Registrar pursuant to s 26. However, the content of the will is nonetheless a product of the authorisation process in that “a draft of the proposed will” is to accompany the application for leave, pursuant to s 23(e), and if leave is granted, it is a pre-requisite to the court’s authorisation that it has “approved the proposed will”, pursuant to s 21(2)(c).
  2. [31]
    The jurisdiction exercised by the court in deciding, having given leave, whether to approve the proposed will has been described as being protective in nature and informed by what is for the benefit of and in the interests of the person who requires protection.[12] In Spink v Russell,[13] Gotterson JA, with whom Morrison JA and Bowskill J agreed, observed:

“It is uncontroversial to propose that it will be in the interests of such a person that the court authorise a will that the person would likely have made had he or she had testamentary capacity. A corollary of that proposition is that it will not be in the interests of such a person for the court to authorise a will which is not one that the person would, or probably would, have made. The validity of the corollary is supported by the provision in [s 24(d)] of the Act which conditions a grant of leave upon the court being satisfied that the proposed will is or may be one that the person would make.”[14] (emphasis in original).

  1. [32]
    The statute does not require that the “proposed will”, which s 21(2)(c) requires the court to have “approved” of before authorising it to be made, is the same as the “draft of the proposed will” which must be given to the court on the hearing of the leave application. It is conceivable, as was explained by Applegarth J in Re APB, ex parte Sheehy,[15] that:

“The will proposed by the applicant in seeking leave may require amendment in the light of evidence which emerges, draft wills proposed by other parties and suggestions by parties and the Court.”

  1. [33]
    Thus the draft of the “proposed will”, which must be approved as a pre-requisite to authorisation pursuant to s 21, may evolve after the filing of the application and during the leave phase before the court decides, pursuant to s 24(d), whether it is satisfied the draft “is or may be a will … that the person would make”. In practice this evolution may occur at the same hearing at which the decision whether to approve the draft is made, for s 22(3) permits the application for authorisation to be heard “with or immediately after the application for leave” to make that application.
  2. [34]
    In the present matter the application for leave was heard with the application for authorisation. It was clearly open to Janine to advance suggested amendments to the proposed draft. The Public Trustee, who had assumed responsibility for Thomas’ financial affairs, certainly did so. Those suggested amendments were adopted by the applicant sisters via an amended draft proposed will. Janine’s lawyers were repeatedly invited to do so in advance of the hearing by her sisters’ lawyers, but no amendments were suggested on her behalf prior to or during the hearing.[16]
  3. [35]
    This is a point of some importance in an appeal like the present, where, in the upshot, Janine does not complain there was a failure to meet the pre-requisite at s 24(e) that it “may be appropriate for an order to be made under section 21”. Her complaint is that the terms of the authorised will – specifically, the hotchpot clause – are so potentially unfavourable to her that it is not a will Thomas may have made even allowing for the findings of Jackson J.
  4. [36]
    This is a narrower approach than was taken below, where it was contended four of the five pre-requisites for granting leave had not been met. Admittedly Janine’s legal representatives below were also critical of the terms of the draft proposed will. However, they did not take the opportunity to propose an amended or different draft. Janine is therefore not in the position of being able to complain the primary judge erred in not favouring an amended draft, proposed by her, which was more likely to avoid potential disadvantage to Janine.
  5. [37]
    Testators may satisfactorily implement their testamentary intention through the language of a will in a variety of possible ways. Reasonable minds may differ on the minutiae of how best to implement that intention. Some may opt for verbosity and complexity to cater for remote future possibilities, others may strive for brevity and simplicity to avoid future confusion. One could readily conjure up arguable drafting flaws in many satisfactory wills, including a failure to anticipate and adjust for all diminutions in the likely inheritance of one heir occasioned by inter vivos transactions. However, that an existing draft might arguably be improved upon does not of itself render that draft inadequate for its purpose.
  6. [38]
    It is in the nature of an application for a statutory will that more than one potential draft will could meet the pre-requisites of a successful application.[17] Doubtless that is why the substantive test espoused in Spink v Russell[18] spoke not of “the” will and rather “a” will that the person would likely have made.
  7. [39]
    It is not enough to now complain the order below should not have been made because the authorised will was not as well drafted as it might have been. In the circumstances of this appeal it falls to Janine to show the drafting issue complained of was so concerning that it was not reasonably open to the learned primary judge to conclude a will so drafted was a will which Thomas would likely have made if he had testamentary capacity and understood the findings of Jackson J.
  8. [40]
    A significant obstacle to the appeal is that Janine led no evidence below to reveal there was any material risk of the disadvantage, theorised as potentially arising from the drafting issue, actually manifesting itself in reality. That disadvantage is theorised as being a diminution in Thomas’ assets through causes unrelated to the misconduct of Janine and her husband exposed in the judgment of Jackson J. Janine led no evidence to show there had been a diminution of that kind.
  9. [41]
    It is inherently unlikely that, in the period between mid-2014 and the hearing below, Thomas, who was aged between about 88 and 93, would have engaged at all in any material dissipation of his assets beyond the moderate living expenses contemplated within the hotchpot clause. He was not a wastrel living an expensive lifestyle. He was a frail old man, living with his daughter, fearful of being put in a nursing home.
  10. [42]
    In the unlikely event he did materially diminish his assets for reasons unconnected with the influence of Janine and her husband, it is inconceivable Janine would not have known about it. She is the daughter with whom Thomas had been residing since 29 November 2014.[19] She was given Thomas’ sole power of attorney on about 29 September 2014.[20] She had evidently exercised influence over his personal affairs for years prior to the appointment of the Public Trustee as Thomas’ financial administrator by interim order of QCAT on 17 October 2019 and QCAT’s further order on 10 December 2019. It is reasonable to infer there was and would be no material dissipation of Thomas’ assets after the point when the Public Trustee was appointed.
  11. [43]
    The theoretical disadvantage occasioned by the hotchpot clause was raised in argument below. Indeed, the applicants below were critical, in light of that argument, of the Janine’s failure to request Ms McNamara be called to be challenged under cross-examination. I would not conclude such a request was necessary in order to argue for the existence of a theoretical disadvantage arising from the terms of a clause. Indeed, I have accepted the applicant is correct about the existence of that theoretical disadvantage.
  12. [44]
    The point though is that while the theoretical disadvantage was raised in argument below, no evidence was proffered below to show the clause was in reality likely to work any disadvantage at all. Janine would well have known whether the reality matched the theory and no explanation was proffered for an absence of evidence from her of any diminution in Thomas’ assets for reasons unconnected with the poisonous influence of Janine and her husband exposed in the judgment of Jackson J. Given the absence of such evidence, it may be more safely inferred there was no material risk of the disadvantage, correctly theorised as potentially arising from the drafting issue, actually manifesting itself in reality.
  13. [45]
    It is true, as the appellant emphasised, that the learned primary judge did not specifically deal in his reasons with the argument about the theoretical disadvantage occasioned by the hotchpot clause. Three points ought be made about that.
  14. [46]
    Firstly, if the exercise below had involved the precision required in the carrying out of an account then there might be a higher expectation that the financial methodology used to make the adjustment regarding the notional estate would have received more express attention in the reasons. Parties to the taking of an account are entitled to expect precision of methodology to ensure they obtain or do not lose their correct share. As earlier discussed, the process of will drafting is not an inherently precise exercise and more than one potential draft will could meet the pre-requisites of a successful application. This case is no exception. Indeed, it will be recalled that in making the statutory will the learned primary judge noted it could have been more adverse to the interests of Janine.
  15. [47]
    Secondly, these were ex tempore reasons delivered immediately after argument on the day of hearing to accommodate a concern, encouraged by Janine’s withholding of information about Thomas’ medical state, that a decision was needed urgently. The issue raised in this appeal was but one of various issues raised below in written submissions, which the presiding judge stood down to read,[21] making it unlikely that it was overlooked before the ensuing decision later that day.[22] The issue did not attract material attention in oral submissions by Janine’s counsel, who dwelt upon other issues, which do appear to have been specifically alluded to in the reasons. But that those other issues received attention in ex tempore reasons, while the present issue did not, tends to reflect nothing more than the manner of argument below.
  16. [48]
    Thirdly, it could hardly have escaped his Honour’s attention that Janine had not provided evidence of unintended actual disadvantage manifesting or being likely to manifest in consequence of the clause. He was well aware Janine had been unhelpful in shedding evidentiary light upon the issues before him. Indeed his Honour commented on Janine’s failure to co-operate with the Public Trustee’s attempts to meet with Thomas and her wilful withholding of current information from the Court about the hospitalisation and medical condition of Thomas.[23] It emerged that not even her own legal representatives were made aware Thomas was in hospital and had been there since the middle of the week preceding the hearing,[24] until that fact belatedly emerged during the hearing.[25]
  17. [49]
    Given those considerations I would not infer from the absence of express reference to the issue complained of in his Honour’s reasons that his Honour did not take it into account in deciding whether the draft will before him was a will Thomas would likely have made. In the circumstances of the case it was well open to his Honour to conclude it was. He did not err in so concluding.
  18. [50]
    It follows the appeal must fail.
  19. [51]
    I would order:
  1. Appeal dismissed.
  2. The appellant will pay the respondents’ costs of the appeal to be assessed on the standard basis.

Footnotes

[1] Intending no disrespect, I adopt the first names of the players for simplicity.

[2] He and his wife had made mutual wills, each having this effect in the event one had pre-deceased the other. His wife died in 2012.

[3] [2019] QSC 218. The costs decision appears at Campbell & Anor v T.L. Clacher No. 2 Pty Ltd & Ors (No 2) [2020] QSC 35.

[4] [2019] QSC 218, [55].

[5] Re Fenwick (2009) 76 NSWLR 22, [160]–[162]; Cf. Boulton v Saunders (2004) 9 VR 495, [126]–[133].

[6] AR Book, vol II, p 437.

[7] AR Book, vol II, p 437.

[8] AR Book, vol II, p 436 L33.

[9] AR Book, vol II, pp 115-116.

[10] AR Book, vol II, p 358.

[11] The need for leave was removed by amendments contained in part 36 Justice and Other Legislation Amendment Act 2020 (Qld), which took effect on 25 May 2020. The amendments deleted ss 22 and 24 and amended s 23, to require the materials it lists as being for the hearing of the application as distinct from for the leave application. They also imported some of s 24’s pre-requisites for leave, including s 24(d), into the requisites in s 21 for the making of the order authorising the statutory will.

[12] GAU v GAV [2016] 1 Qd R 1, 25.

[13] [2019] QCA 107.

[14] [2019] QCA 107, [46].

[15] [2017] QSC 201, [122].

[16] AR Book, vol II, pp 303, 306.

[17] Re APB, ex parte Sheehy [2017] QSC 20, [121]. See also Applegarth J’s reasons in Re: BQL [2020] QSC 271, [11].

[18] [2019] QCA 107, [46].

[19] AR Book, vol II, p 144 [16].

[20] [2019] QSC 218, [229].

[21] AR Book, vol II, p 382 L22.

[22] Rochford and Fitzhugh [2019] FamCAFC 218, [80]–[81].

[23] AR Book, vol II, p 436 L 12.

[24] AR Book, vol II, p 416 L 22.

[25] AR Book, vol II, p 422 L 9.

Close

Editorial Notes

  • Published Case Name:

    Blumke v Campbell & Anor

  • Shortened Case Name:

    Blumke v Campbell

  • MNC:

    [2020] QCA 217

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Henry J

  • Date:

    02 Oct 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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