Statutory Wills in cases of estrangement and disentitling conduct: HYN v KZW [2024] QSC 331
Marino Law acted for an applicant in obtaining relief pursuant to section 21 of the Succession Act 1981 (Qld) (the “Act”), which allows the Supreme Court of Queensland to authorise the making of a will for a person lacking testamentary capacity.
Justice Hindman delivered a decision in the Supreme Court of Queensland HYN v KZW [2024] QSC 331 and authorised the making of a statutory will for an elderly woman, KZW, who lacked testamentary capacity due to advanced dementia.
This was a successful application for KZW, as a person who previously had testamentary capacity during her lifetime (as opposed to a case in which a person never had testamentary capacity), to make a will reflecting what her intentions would have been had she had testamentary capacity
Factual background
KZW, born in 1938, was at the time an 85-year-old woman suffering from moderately severe Alzheimer’s dementia and other serious health issues.
KZW has three adult children: D1 (the applicant), D2, and S1. D1 has been her primary carer since 2018 and holds an enduring power of attorney. KZW’s estate is valued at approximately $3.9 million, comprising proceeds from the sale of her Queensland property and ownership of a Victorian property.
At the time of the making of the application, KZW had severe aortic stenosis with clinical features of heart failure and other serious health issues. Her cardiologist reported in early April of 2024 that she had probably come towards the end stage of her life. There was urgency in the application as she was at a risk of short-term complications like heart failure, stroke and death, and in particular was at risk of sudden death from cardiovascular causes.
Historically, KZW was estranged from D2 but reconciled over time. In contrast, her relationship with S1 deteriorated after he fraudulently mortgaged her properties, leading to extensive litigation and a criminal conviction.
The court in Issa v Owens [2023] QSC 4 found that S1 had committed fraud against KZW, which significantly influenced the courts in this decision. It was also determined that KZW was a victim of a forgery in C & F Nominees Mortgage Securities Ltd v Karbotli & Ors [2020] VCC 987 (upheld on appeal in C & F Nominees Mortgage Securities Ltd v Karbotli & Ors (2020) 64 VR 218), in respect of transactions which involved S1.
Without the application being made for the court to order the making of a will, the last known will of KZW, being dated 17 September 2001, appointed a solicitor of a previous firm of solicitors who acted for KZW as executor, and gave the whole of the estate to be divided between S1 and D1. This would have been an unacceptable result due to KZW having reconciled with D2, and the potentially disentitling conduct of S1, in recent times.
Section 21 of the Succession Act 1981 (Qld)
The application was made pursuant to section 21 of the Act, which allows the court to authorise a will be made for a person lacking testamentary capacity. The court must be satisfied of several criteria:
- The relevant person lacks testamentary capacity and is alive when the order is made (section 21(2)(a));
- The applicant is the appropriate person to make the application (section 21(2)(b)(i));
- Adequate steps have been taken to give notice to interested parties (section 21(2)(b)(ii));
- The proposed will is or may be one the person would make if they had testamentary capacity (section 21(2)(b)(iii); and
- Ultimately, the court approves the proposed will (section 21(2)(c)).
The court’s power under section 21 is ultimately underpinned and informed by the court’s protective jurisdiction. The approach of the court is, therefore, necessarily focused on the person in need of protection (in this case, KZW), and their interests, not the interests of others.
Consideration and determination of statutory test
In considering the first requirement, that KZW lacked testamentary capacity, Justice Hindman applied the test from Banks v Goodfellow (1870) LR 5 QB 549, as summarised by Justice Applegarth in Frizzo v Frizzo [2011] QSC 107. Justice Hindman determined that there was already a plethora of material from which she could be and was satisfied that KZW, in suffering Alzheimer’s dementia, which in 2022 was described as “moderately severe” and which the evidence demonstrates, by way of observations of KZW, has only deteriorated further, that she does not have testamentary capacity.
The second requirement, that KZW was alive, was confirmed shortly before Justice Hindman delivered her ex tempore reasons.
The third requirement was determined by Justice Hindman to be satisfied, and D1 was found to be an appropriate applicant. Relevantly, it was found that she was KZW’s daughter, attorney, and primary carer. Her role in supporting KZW through litigation spanning several years and providing daily care demonstrated her suitability to represent KZW’s interests.
It was determined by Justice Hindman that the fourth requirement was satisfied as notice was given to D2, S1, and the law firm named in KZW’s (then) current will. D2 supported the application. S1 initially opposed the application but later withdrew his objection, and the material he had provided to the court was considered, ensuring his views were taken into account.
The fifth requirement, and perhaps most controversial, was determined by Justice Hindman to be satisfied based on the will proposed by D1. Justice Hindman examined KZW’s previous will, the relevant factual background, and the relationships with her children.
KZW’s previous will excluded D2 due to the estrangement. By 2004, KZW had reconciled with D2 and intended to include all children equally, and it was found that there was an attempt by both KZW and her then husband to update their wills in November 2004 to that effect. There was clearly sufficient evidence and reason to determine that KZW would have wanted to provide for D2 if she had testamentary capacity.
Insofar as the proposed will reflected a non-even distribution between D1 and D2, submissions were accepted that that whilst the starting position, if one had looked at it in 2018, might have been an even split reflective of the way that she had dealt with her estate in 2001, and as proposed in 2004, if KZW was sitting making a will on the day of the hearing, knowing and understanding the level of assistance that D1 had provided both personally and through the extensive litigation, and was likely to continue to provide, she would be likely to favour D1 with a larger percentage of her estate.
It was found that there could be no doubt, given the previous court rulings, that there was more than sufficient reason for a wise and just testatrix in KZW’s position to exclude S1 from the benefit of her estate, and it was proposed that he be disentitled bar a sum of $50,000.00. The proposed will was drafted on that basis that, in the circumstances of estrangement, it is not uncommon that solicitors advising a testatrix will recommend that a nominal sum be left to the estranged person, because it can have the benefit of demonstrating that the testatrix’s mind has turned to the claim that the person has on the estate, and has allowed something for that person. That might be relevant to and potentially discourage a family provision application. Justice Hindman determined that in circumstances where there is no evidence that KZW would not have acted, or is a person who would not have acted, on her solicitor’s advice, the legacy of $50,000 to S1 would be consistent with her testamentary intentions, had she been able to express them.
Justice Hindman found that the proposed will was one which KZW probably would have made if she had testamentary capacity on the day of the hearing. The court authorised a will with the following material provisions:
- Executor: D1 appointed as executor and trustee;
- Legacy to S1: $50,000;
- Victorian Property: Gifted to D1 and D2 as tenants in common in equal shares;
- Chattels in Victorian Property: Gifted to D2;
- Other Chattels: Divided equally between D1 and D2;
- Residue of Estate: 70% to D1 and 30% to D2; and
- Gift Over Provisions:
- If S1 predeceases KZW, his legacy is shared between D1 and D2; and
- If D1 or D2 predecease KZW, their children inherit their respective shares.
The proposed will reflected a will KZW would likely have made if she had the requisite testamentary capacity. It recognised her reconciliation with D2 and the significant support from D1, while acknowledging the estrangement and misconduct of S1.
Conclusion
The decision in HYN v KZW [2024] QSC 331 provides an example of an effective use of the statutory powers provided by section 21 of the Act and illustrates the detailed and cautious approach courts take when considering authorising a will.
The case may serve as valuable precedent in statutory will applications, especially where estrangement and disentitling conduct are involved.
Marino Law is proud to have successfully represented the applicant in this matter, ensuring her wishes were properly reflected in her will.
If you need assistance with any of the above, please don’t hesitate to give our office a call on 07 5526 0167 to speak with one of our highly qualified and experienced estate litigation lawyers or email [email protected].
The author of this article, and the solicitor with carriage of the proceeding the subject of the judgement, Nicholas Rossi, is a solicitor in Marino Law’s commercial litigation and dispute resolution team. Nicholas adopts a solution-focused strategic approach across commercial litigation, insolvency, and deceased estate disputes, grounded in deep technical expertise and commercial acumen. Nicholas has extensive experience in litigious deceased estate matters and was a finalist in the 2025 Australian Law Awards (Senior Associate) and two categories of the 2025 Lawyers Weekly 30 Under 30 Law Awards (Insolvency) and (Wills and Estates).
