Re Lean, unreported, Supreme Court of Qld, 14 February 2014

In Re Lean, Boddice J authorised the making of a statutory will in circumstances where the elderly proposed testator’s previous will had been revoked by marriage in 2005.  This was an unopposed application.  The applicant was the nephew of the proposed testator, who did not stand to receive any benefit under the proposed will.
An interesting aspect of the case is that the proposed testator’s wife was unable to swear an affidavit in support of the application because she had recently suffered a stroke.  His Honour, in determining whether the ‘core test’ was met (in Queensland, s.24(d) Succession Act 1981 (Qld): the proposed will is or may be one that the proposed testator would make if he were to have testamentary capacity), had regard to affidavit evidence which indicated that the proposed testator wished to benefit not only his children but also his current wife.  The will that was authorised to be made provided for the estate to be distributed in equal shares between the proposed testator’s wife and his two adult children (with the wife’s share to pass to her children in equal shares if she predeceased).