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<title>Cautious administrator seeks court guidance amid beneficiary discord</title>
<link>https://qldestatelawyers.com.au/cautious-administrator-seeks-court-guidance-amid-beneficiary-discord/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Tue, 30 Apr 2024 01:23:43 +0000</pubDate>
<category><![CDATA[Estate administration]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=14128</guid>
<description><![CDATA[Veronica Hurren died in March 2009 survived by children John, Peter and Lynne. Her last will appointed Toby Jacobs as executor, made some minor gifts and then left the rest and residue of the estate equally between the three adult offspring. Jacobs did nothing to administer the estate for many years. John applied to the […]]]></description>
<content:encoded><![CDATA[Veronica Hurren died in March 2009 survived by children John, Peter and Lynne.
Her last will appointed Toby Jacobs as executor, made some minor gifts and then left the rest and residue of the estate equally between the three adult offspring.
<img fetchpriority="high" decoding="async" class="alignleft wp-image-14156 size-medium" title="Cautious administrator seeks court guidance amid beneficiary discord" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1395675260-300x169.jpg" alt="iStock 1395675260" width="300" height="169" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1395675260-300x169.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1395675260-1024x576.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1395675260-768x432.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1395675260.jpg 1365w" sizes="(max-width: 300px) 100vw, 300px" />Jacobs did nothing to administer the estate for many years. John applied to the Supreme Court of Queensland and in September 2018 obtained orders from Justice Martin Burns removing him as executor.
The judge appointed an independent administrator – solicitor John Fradgley – to administer the estate given what he took to be heightened conflict among the beneficiaries.
The estate consisted of 2 properties at Biggera Waters, in which daughter Lynne and Jacobs occupied from time to time without the estate’s consent.
Fradgley asked them to vacate and when they refused, he started actions in the Magistrates Court and in QCAT eventually selling the properties after achieving vacant possession in October 2019, for a net sum of almost $1.5 mil.
A valuer assessed the rent lost to the estate from the unauthorized occupation of the properties by Lynne and Jacobs over 10 years from 2009 at $266,000.
The administrator decided not to pursue Jacobs as he appeared to have no assets but considered recovering the forgone rent from Lynne by way of an adjustment to her estate share.
Having eventually decided to pursue neither of them, Fradgley sought and obtained advice in August 2021 from the Supreme Court confirming the validity of that approach from Justice Peter Applegarth.
Peter nevertheless pressed the administrator to sue Lynne for the foregone rent or a share of it.
He wanted Fradgley to recover the lost rent, Fradgley did not want to waste time and legal costs on likely futile legal proceedings and Lynne wanted to avoid any payment.
This issue went back and forth between the three protagonists until late 2022.
The dispute was nearly resolved with an in-principle agreement that Lynne would pay half the lost rent, but she changed her mind and refused to formalise that arrangement.
Fradgley – who was ‘between a rock and a hard place’ in estate administration land – faced mounting criticism from Peter for sitting on his hands.
The administrator decided to get advice and directions from the Supreme Court for a second time.
He applied to the court, outlining the background and circumstances and asking for an order that would permit him to deduct $133,000 – half the sum in dispute – from Lynne’s estate share in line with the earlier proposal.
Due to be heard in early-2023 but delayed by Lynne until December 2023, the matter came before Justice Martin Burns who approved administrator Fradgley’s request.
The case demonstrates the caution that is called for in estate administration. It also illustrates the importance of choosing a competent executor to avoid the huge expense by which an estate can be burdened by the appointment of an independent administrator.
The legal costs incurred in the nearly 15 years from Veronica’s death are likely to be enormous.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QSC23-287.pdf" target="_blank" rel="noopener">Re Estate of Hurren [2023] QSC 287 Burns J 23 December 2023</a>
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<title>Wife cut out days before death; was there undue influence?</title>
<link>https://qldestatelawyers.com.au/wife-cut-out-days-before-death-was-there-undue-influence/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Sun, 28 Apr 2024 06:16:36 +0000</pubDate>
<category><![CDATA[Undue Influence]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=13973</guid>
<description><![CDATA[John Baird died 80 years old in January 2022, leaving behind Helen – his wife of 50 years – son Matthew and daughter Kristine. Kristine and husband Richard van Ruiten applied for probate of the will John made only 9 days before his death, in which they feature as executors and Kristine is the sole […]]]></description>
<content:encoded><![CDATA[John Baird died 80 years old in January 2022, leaving behind Helen – his wife of 50 years – son Matthew and daughter Kristine.
Kristine and husband Richard van Ruiten applied for probate of the will John made only 9 days before his death, in which they feature as executors and Kristine is the sole beneficiary, other than for some specific minor gifts to others.
<img decoding="async" class="alignleft wp-image-14142 size-medium" title="John Baird died 80 years old in January 2022, leaving behind Helen - his wife of 50 years - son Matthew and daughter Kristine." src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1390262209-225x300.jpg" alt="iStock 1390262209" width="225" height="300" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1390262209-225x300.jpg 225w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1390262209-768x1024.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1390262209-1152x1536.jpg 1152w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1390262209.jpg 1499w" sizes="(max-width: 225px) 100vw, 225px" />Helen – who had been left out altogether – filed a caveat against the will claiming John had lacked the legal capacity to make the January 2022 will and did not know and approve of its contents.
It differed markedly from his previous will – made just 2 years earlier – in which he had left everything to Helen, or if she died before him, then to both children equally.
John was hospitalized in the weeks before his death receiving treatment for advanced cancer. Doctors had told Helen his condition was terminal and he was unlikely to leave hospital.
He was though, discharged on Christmas eve into the care of daughter Kristine for a few days.
Consistent with the very poor relationship between the pair, Kristine sent her step-mother a text message that day: “Dad learnt you have been scheming behind his back”, she wrote. “You have spent large sums of money without consulting him. He never wants to see you or Matthew again”.
Kristine also notified by SMS that John had signed a Power of Attorney appointing her as sole attorney and that John was aware Helen had been seeking legal advice regarding family law matters and for a fight over his will.
With husband Richard, Kristine applied for the removal of Helen’s caveat and her challenge to their probate application arguing the new will spoke for itself in that it was made in circumstances where John had decided to separate from Helen and had in fact met with a family law solicitor in early January to discuss his legal position.
Kristine went further. She even commenced family law proceedings against Helen in John’s name as his litigation guardian. Those proceedings have not yet been concluded.
The family law solicitor and his colleague who prepared the will – both of whom knew John well – attested to him having been alert, well oriented and capable of giving detailed instructions.
Despite these persuasive arguments, Justice Peter Gorton concluded – because of John’s precipitous state of health and the potential for undue influence from Kristine – his decision to leave his spouse and radically change his will could not be accepted at face value.
His illness was after all one that potentially compromised his mental function but there was no medical evidence either way as to his capacity – or of lack of it – to make a will.
Helen denied taking funds from John or that either one of them were considering separation. Hospital records confirmed her regular attendance on John there despite Kristine’s attempts to bar her.
Evidence revealed Kristine had in fact approached the solicitor to ask for a new will and Power of Attorney to be prepared.
It was also disclosed that the solicitor only discussed the new will with the deceased very briefly by phone before sending it to Kristine for John to review. It was signed without any further discussion, raising the suggestion that John may not have known and approved of its terms, as is required.
Also of note was that Kristine’s role as John’s role as litigation guardian in the family court proceedings – filed only days after the will was made – was premised on his lack of legal capacity.
Justice Gorton dismissed Richard and Kristine’s attempts to remove Helen’s caveat concluding an expensive court hearing was required to determine all issues notwithstanding the assets in the estate were only in the order of some $200,000.
The matter now proceeds to a full hearing in the Victorian Supreme Court to determine whether John had the capacity to make the will and did so in the terms expressed in the absence of undue influence.
<a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/74.html" target="_blank" rel="noopener">Re Baird [2024] VSC 74 Gorton J, 28 February 2024</a>
]]></content:encoded>
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<item>
<title>Whistleblower gets up over sibling in bitter estate battle</title>
<link>https://qldestatelawyers.com.au/whistleblower-gets-up-over-sibling-in-bitter-estate-battle/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Mon, 29 Apr 2024 07:01:13 +0000</pubDate>
<category><![CDATA[Inadequate provision]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=13972</guid>
<description><![CDATA[Social media is cropping up in the most unlikely of places. And a court has ruled that videos posted publicly can constitute an offer of settlement to a party in litigation. The dispute in which the ruling arose relates to former military lawyer David McBride – who last November pleaded guilty to revealing national defence […]]]></description>
<content:encoded><![CDATA[Social media is cropping up in the most unlikely of places.
And a court has ruled that videos posted publicly can constitute an offer of settlement to a party in litigation.
<img decoding="async" class="alignleft wp-image-14140 size-medium" title="Whistleblower gets up over sibling in bitter estate battle" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-471567445-300x200.jpg" alt="iStock 471567445" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-471567445-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-471567445-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-471567445-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-471567445-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-471567445-2048x1365.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />The dispute in which the ruling arose relates to former military lawyer David McBride – who last November pleaded guilty to revealing national defence secrets to journalists – in a challenge to the will of his mother Patricia who died in November 2021.
Patricia was survived by David and his three siblings. Her husband Dr William McBride – the Sydney obstetrician who was the first to warn of the dangers of thalidomide – had died in 2018.
She made a will in 2014 appointing her daughter Louise – a Sydney tax barrister – as executor and beneficiary of the bulk of her estate, its major asset being a harbour-view apartment in Neutral Bay where Louise lives and carries on her legal practice.
David was left some personal items and a legacy of $10,000.
After Louise distributed the estate – but just within the 12 month time limit – David filed court proceedings seeking a larger share.
Louise answered the claim by contending David’s social video posts – saying he needed $10,000 from the estate to fund his whistleblower defence to the charge of leaking Australia’s Afghanistan war secrets and that maybe the estate could pay it – was a settlement offer that she had duly accepted.
Acting Justice Michael Elkaim noted that because David was awaiting trial on those criminal charges when the video was posted, he “was very much in the public eye” and “anxious to amass funds for his defence”.
Louise stumbled when asked to identify the specific words from the video that constituted the offer, arguing his intent was “discernable” from the context and content.
Against this contention, his honour noted – among other things – that the post made no mention of how legal costs were to be resolved as is the usual case for settlement offers.
The judge accepted that an offer can be inferred from conduct and can be made through social media as Louise had argued but rejected the submission that his video post was indeed an offer to settle the estate dispute proceedings.
Louise’s application for orders declaring that the matter had been settled, was dismissed.
The trial of the dispute will come before the NSW Supreme Court in the coming months, if not resolved earlier by a negotiated agreement.
This decision demonstrates once again that care should be taken when posting on social media, especially when a party to court proceedings.
<a href="https://www.caselaw.nsw.gov.au/decision/18d672dc2ff3fc7a6e43d4f8" target="_blank" rel="noopener">McBride v McBride [2024] NSWSC 45 Elkaim AJ, 2 February 2024</a>
]]></content:encoded>
</item>
<item>
<title>“Unmeritorious”: costs ordered against family provision applicant</title>
<link>https://qldestatelawyers.com.au/unmeritorious-costs-ordered-against-family-provision-applicant/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Thu, 14 Dec 2023 00:21:26 +0000</pubDate>
<category><![CDATA[Inadequate provision]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=10837</guid>
<description><![CDATA[Lawsuits motivated by ill-will or emotions often end in tears as is demonstrated in the case of this family provision applicant. Desmond Guy died in July 2020 aged 95 without a will and survived by 6 children, a daughter from his first marriage and five children from his second marriage. His wife and one child […]]]></description>
<content:encoded><![CDATA[Lawsuits motivated by ill-will or emotions often end in tears as is demonstrated in the case of this family provision applicant.
Desmond Guy died in July 2020 aged 95 without a will and survived by 6 children, a daughter from his first marriage and five children from his second marriage.
<img decoding="async" class="alignleft size-medium wp-image-10853" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1434333253-300x200.jpg" alt="iStock 1434333253" width="300" height="200" title=""Unmeritorious": costs ordered against family provision applicant 2" srcset="https://qldestatelawyers.com.au/wp-content/uploads//iStock-1434333253-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1434333253-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1434333253-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1434333253.jpg 1253w" sizes="(max-width: 300px) 100vw, 300px" />His wife and one child had died before him without any children of their own.
His estate was mainly comprised by real estate in Calliope, near Gladstone. Under the laws of intestacy, his assets fell to be distributed equally between the 6 surviving children.
In the absence of anyone else having applied to administer the estate and its assets in limbo for more than a year, Rosemary – Desmond’s daughter from his first marriage – applied for letters of administration which were granted in August 2021.
The significant hostility among the siblings likely influenced Scott – one of Rosemary’s half brothers – to file a family provision application in October, seeking more from the estate than his one sixth share.
His brother Lloyd joined in those proceedings in March 2022.
Their family provision application eventually came before the District Court in Rockhampton in September 2023.
At the start of the first day of the trial, Scott withdrew his claim likely based on some firm advice from his lawyers who were given leave by the court to withdraw as his legal representatives.
As it turned out, Scott had withdrawn $45,000 from his father’s bank account after his death. Such conduct was – more likely than not – to reflect poorly on the court’s assessment of his character.
Lloyd – who had in the lead up to the hearing abused and threatened Rosemary and texted a message ‘1 shot 1 kill. I was a cadet’ – decided to proceed notwithstanding his lawyers had also withdrawn, leaving him to represent himself.
After a one day trial in which he was accorded the customary accommodation to account for the unfamiliarity of DIY litigants with court procedures and rules, Judge Jeffrey Clarke ruled Lloyd to have been an unreliable witness.
Noting that much of his evidence was contradicted by independent accounts of the family circumstances, Lloyd’s claim was dismissed on multiple grounds.
First, it had not been started within the specified 9 months of the date Desmond’s death.
Second, Lloyd failed to establish he had any superior need to that of his siblings that might justify further provision from the estate.
The judge also granted the estate’s application that Lloyd pay some of its costs of the dispute.
He did so because Lloyd’s prospects of success were – in his view – to have been “very poor, to the point of being futile” and because he had “obstructed [Rosemary’s]’s duty to administer the estate” including by thwarting her attempts to enter the properties to conduct an inventory of estate chattels, even with police assistance.
After allowing for written submissions from the parties as to liability for the estate’s legal costs, Judge Clarke ruled Lloyd’s claim to have been “completely unmeritorious”.
He ordered that part thereof – the sum of $42,000 – be deducted from Lloyd’s entitlements in the estate to go towards its legal costs of defending the doomed-from-the-start claim.
Although not mentioned in the judgment, the estate will also likely deduct the $45,000 removed by Scott from his father’s bank account, from his share of the estate.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QDC23-178.pdf" target="_blank" rel="noopener">Day v Peake [2023] QDC 178 Clarke DCJ 256 September 2023</a>
<a href="https://archive.sclqld.org.au/qjudgment/2023/QDC23-200.pdf" target="_blank" rel="noopener">Day v Peake [No 2] [2023] QDC 200 Clarke DCJ, 3 November 2023</a>
]]></content:encoded>
</item>
<item>
<title>Residuary beneficiary caught out by estate admin convenience steps</title>
<link>https://qldestatelawyers.com.au/residuary-beneficiary-caught-out-by-estate-admin-convenience-steps/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Mon, 11 Dec 2023 21:24:34 +0000</pubDate>
<category><![CDATA[Estate administration]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=10760</guid>
<description><![CDATA[Informal agreements regarding the administration of a deceased’s estate can lead to a residuary beneficiary inadvertently relinquishing their estate entitlements. Consider the case of Ellen McKean who died in April 1992. By an unusual turn of events, issues concerning her estate came before the Supreme Court of Queensland some 30 years later, in November 2023. […]]]></description>
<content:encoded><![CDATA[Informal agreements regarding the administration of a deceased’s estate can lead to a residuary beneficiary inadvertently relinquishing their estate entitlements.
Consider the case of Ellen McKean who died in April 1992. By an unusual turn of events, issues concerning her estate came before the Supreme Court of Queensland some 30 years later, in November 2023.
<img decoding="async" class="alignleft size-medium wp-image-10852" src="https://qldestatelawyers.com.au/wp-content/uploads/shutterstock_329724344-300x178.jpg" alt="shutterstock 329724344" width="300" height="178" title="Residuary beneficiary caught out by estate admin convenience steps 4" srcset="https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_329724344-300x178.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_329724344-768x455.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_329724344.jpg 1000w" sizes="(max-width: 300px) 100vw, 300px" />By her last will made in November 1981, Ellen had gifted $5,000 to her brother; $40,000 to her only son, Peter; and the residue of her estate in equal shares to her grandchildren.
In the years following Ellen’s death, all grandchildren agreed with Peter that all estate assets – which consisted of properties at Prosperpine and Dingo Beach – should be transferred from the executors to Peter.
Peter then treated – as from 1995 – all of the assets owned by the estate as his own. He died in November 2020.
It appears that Peter’s will gifted his entire estate – including the assets of Ellen’s estate – to his surviving wife, Trudy.
Recognising that such bequest might defeat her rights to receive her share of Ellen’s estate, Julia Shaw – one of Ellen’s grandchildren – filed a lawsuit for a declaration that she was still entitled to a share of the residue of her grandmother’s estate.
The proceedings – to which Ellen’s estate was the respondent – turned on whether Julia had ‘disclaimed’ her interests therein.
Although uncommon in practice, a beneficiary has the right to disclaim their interest, ie they can refuse to accept a gift given to them by a will.
It was argued by Trudy – Peter’s widow, who also was acting on behalf of Ellen’s estate – that by agreeing to the transfer of estate assets to her father, Julia had disclaimed her entitlements in Ellen’s will.
This argument was supported by Peter and Trudy’s other children, being Julia’s siblings and the other residuary beneficiaries named in Ellen’s will.
On the other hand, Julia contended that the agreements regarding the transfer of estate assets to Peter could not be construed as a disclaimer of her entitlements.
Justice Catherine Muir observed there could be no disclaimer absent an unequivocal rejection of the gift in the will.
In her view, by agreeing to allow estate assets to be transferred to Peter, Julia had not rejected the gift.
On the contrary – Justice Muir noted – Julia had given directions for dealing with her gift in that she had indicated she intended to transfer her inheritance to Peter subject to certain conditions being met.
Interestingly however, the judge did not make any final conclusions or orders regarding Julia’s ownership of any assets of Ellen’s estate.
That was because all parties to the application requested Justice Muir not to determine those additional factors that might – of themselves – have defeated Julia’s claims.
These included whether Julia’s claim was time barred and whether the transfer of her interest in the assets of her grandmother’s estate to Peter in 1995 vested indefeasible title in him so as to prevent Julia claiming an interest by that means.
Those issues will come before the court on another occasion unless the parties agree on a resolution.
The case demonstrates that arrangements between family members need to be properly documented to avoid unintended consequences and expensive legal disputes further down the line.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QSC23-261.pdf" target="_blank" rel="noopener">Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261</a>
]]></content:encoded>
</item>
<item>
<title>Death benefit nominees disentitled by deceased’s attorney</title>
<link>https://qldestatelawyers.com.au/death-benefit-nominees-disentitled-by-deceaseds-attorney/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Sun, 10 Dec 2023 21:23:48 +0000</pubDate>
<category><![CDATA[Attorney's actions]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=10718</guid>
<description><![CDATA[How can a super fund member empower someone else to alter the terms of the member’s binding nomination to specify different death benefit nominees to receive the member’s fund entitlements? Robert Stannett was the sole member of a self-managed super fund, the Robert Stannett Superannuation Fund. The trustee of the fund was Rentis Pty Ltd […]]]></description>
<content:encoded><![CDATA[How can a super fund member empower someone else to alter the terms of the member’s binding nomination to specify different death benefit nominees to receive the member’s fund entitlements?
Robert Stannett was the sole member of a self-managed super fund, the Robert Stannett Superannuation Fund.
<img decoding="async" class="alignleft size-medium wp-image-10855" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-637662426-300x200.jpg" alt="iStock 637662426" width="300" height="200" title="Death benefit nominees disentitled by deceased's attorney 6" srcset="https://qldestatelawyers.com.au/wp-content/uploads//iStock-637662426-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-637662426-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-637662426-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-637662426.jpg 1254w" sizes="(max-width: 300px) 100vw, 300px" />The trustee of the fund was Rentis Pty Ltd of which Robert was the sole director as is required for a tax law compliant fund.
In December 2020 Robert fell from a ladder. His resulting brain injury rendered him incapable of managing his own affairs including the fund.
Fortunately he had – prior to that accident – made a will and an enduring power of attorney appointing wife Valerie and brother Peter as his attorneys.
He also had made two binding nominations specifying who would receive his entitlements in the fund and the proceeds of insurance arising as a result of his death.
A valid binding death benefit nomination requires the trustee of a super fund to pay the member’s entitlements and death benefits precisely as directed.
It removes any discretion the fund trustee might otherwise have to consider which of the member’s dependents should receive the death benefits and in what portions, for example according to their financial resources and needs.
The rules of Robert’s fund had been updated in May 2019, a week prior to him making his EPA and prior to making the binding nominations, which update allowed binding nominations to be non-lapsing, ie they did not require regular renewal as is often the case.
The first binding nomination made by Robert in June 2019 directed 100% of his super benefits to Valerie, but if she did not survive him then $200,000 to each of his two children and each of Valerie’s two children with any balance to his estate.
Importantly, his second (and last) binding nomination directed 50% of his super benefits to Valerie, and 25% to each of his children Kylie and Blair.
After Robert had lost capacity in the fall, Valerie died in February 2021 and his brother Peter became his sole attorney.
No doubt to address the death of Valerie, Peter in his capacity as attorney made two new binding nominations on 9 May and 17 May 2022.
In the first, 40% of Robert’s super benefits were allocated to his children Kylie and Blair, and 10% to each of his stepchildren Sharyn and Ross.
In the second, Peter changed the allocation to 25% of the benefits to each of Kylie and Blair, with the remaining 50% to go to Robert’s estate to be distributed in accordance with his will, where it would go to a charity.
Both differed to what Robert had specified before he lost capacity.
Robert died in December 2022, and questions were raised as to whether the binding nominations made by Peter on Robert’s behalf were valid.
Justice Peter Applegarth noted that – at least in Queensland – it is settled law that the making of a binding nomination is the exercise of a financial power that an attorney can lawfully perform for their principal.
But had the EPOA been sufficiently drafted so as to include such a power?
There was an express term in Robert’s EPOA authorised Peter as his attorney to “renew any binding death benefit nomination made by me for any superannuation benefits or entitlement.”
In deciding whether the term “renew” included “making on different terms”, Justice Applegarth had to consider whether to adopt a narrow interpretation that excluded the latter meaning or one which appeared to suit the grantor’s intentions.
Given that the recently updated super fund rules meant binding nominations did not lapse at all, it was held that a narrow interpretation – which would result in the power being of no effect – should be avoided.
His honour preferred a more sensible interpretation of “renew” being the dictionary definition which is “restore to freshness” or “make like new”. That interpretation permitted Peter as attorney to make a new binding nomination that addressed fresh or changed circumstances.
It was further argued that Peter’s second binding nomination – of which gifted 50% of Robert’s super to charity – did not properly reflect Robert’s testamentary intentions.
His honour noted the matter before him only concerned whether Peter as attorney had the power to make the last binding nomination, not with whether Peter should have exercised his power in the way that he did. That dispute was left for another day.
In accordance with what was found to be the more sensible interpretation, Justice Applegarth held that the last binding nomination was within Peter’s authority and was validly made.
This case demonstrates the importance of considering estate planning holistically and not making wills, powers of attorney and super fund nominations independently of each other.
<a href="https://www.queenslandjudgments.com.au/caselaw/qsc/2023/252/pdf-view" target="_blank" rel="noopener">Re Rentis Pty Ltd [2023] QSC 252 Applegarth J, 23 Oct 2023</a>
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<title>Unconventionally signed DIY will declared valid at great expense</title>
<link>https://qldestatelawyers.com.au/unconventionally-signed-diy-will-declared-valid-at-considerable-expense/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Mon, 06 Nov 2023 21:18:34 +0000</pubDate>
<category><![CDATA[validity of will]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=9876</guid>
<description><![CDATA[Regrettably DIY wills almost invariably lead to the will-maker’s estate being put to unnecessary expense to overcome validity or interpretation issues and other legal problems. Kevin Chambers died on 17 March 2023 at the age of 91. His wife and son died before him and he was survived by his daughter Cherie. He made his will […]]]></description>
<content:encoded><![CDATA[Regrettably DIY wills almost invariably lead to the will-maker’s estate being put to unnecessary expense to overcome validity or interpretation issues and other legal problems.
Kevin Chambers died on 17 March 2023 at the age of 91. His wife and son died before him and he was survived by his daughter Cherie.
<img decoding="async" class="alignleft wp-image-9961 size-medium" title="Unconventionally signed DIY will declared valid at considerable expense" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-638637534-300x207.jpg" alt="iStock 638637534" width="300" height="207" srcset="https://qldestatelawyers.com.au/wp-content/uploads//iStock-638637534-300x207.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-638637534-1024x707.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-638637534-768x530.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-638637534-1536x1061.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-638637534-2048x1414.jpg 2048w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-638637534-350x240.jpg 350w" sizes="(max-width: 300px) 100vw, 300px" />He made his will in October 2017 – after the death of his son – leaving everything to Cherie and appointing his friend Daniel to be the executor.
Kevin used a pre-printed will kit will, which he likely purchased at the local newsagent or post office.
Kevin filled in the DIY forms. The will was comprised by two pages, and on page 1 – after naming his grandson Daniel as executor – he specified in clause 3 that he gave Cherie “my entire estate”.
He then signed the will adjacent to clause 3 and at the bottom of page 1 but not in the usual place at the end of the will.
Despite there being further sections that could be completed on page 2, Kevin added nothing further on that page.
He failed to sign the attestation clause on that page, despite directions on the pre-printed form to do so.
Kevin’s will was witnessed by two friends. They did not sign on page 1 at either of the two places where Kevin had signed. They signed at the attestation clause at the bottom of page 2 where directed where Kevin had failed to do so.
Daniel did not take up his role as executor and instead Cherie applied for a Grant of Letters of Administration as the sole beneficiary, claiming that the will was validly made.
Whilst it was quite clear Kevin had intended to make a will, the fact he had signed it only on page 1 and not the attestation clause at it end where the witnesses had signed, caused the Probate Registrar to have concerns.
In her opinion the will was not validly executed in accordance with the requirements of s 10 of the Succession Act. She directed that the validity issue be heard and determined by a judge of the Supreme Court.
When the matter came before him, Justice Peter Davis declared the will to have been validly made despite the irregularities in how Kevin and the witnesses had signed it.
In his view, the irregularities did not mean the formal requirements of s 10 had not been met.
“Neither the positioning of Kevin’s signature on the first page, nor his failure to sign the second page, constitute a breach of the requirements,” he observed.
“There is nothing in s 10 which suggests that the witnesses must sign on the same page or place as the testator,” he ruled.
Given it was beyond dispute that Kevin signed the will with two witnesses who were present to see him do so and the witnesses each attested and signed the will in front of Kevin, all required formalities had been met.
That Kevin and the witnesses did not sign the will at all the required places unnecessarily complicated what otherwise was a straightforward probate application and added significant expense.
Attempts to save expense by completing a DIY will – rather than one prepared by an experienced solicitor – almost invariably add such expense to estate administration and regrettably, delay the process by many months.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QSC23-230.pdf" target="_blank" rel="noopener">Re Chambers (dec’d) [2023] QSC 230 Davis J, 13 October 2023</a>
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<title>Capacity fight over will-maker’s delusion daughter is a witch</title>
<link>https://qldestatelawyers.com.au/capacity-fight-over-will-makers-delusion-daughter-is-a-witch/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Mon, 06 Nov 2023 10:05:30 +0000</pubDate>
<category><![CDATA[Testamentary capacity]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=9869</guid>
<description><![CDATA[Issues concerning a will-maker’s “capacity” usually relate to dementia and the like. Sometimes though, they traverse broader aberrations of the mind such as a will-maker’s delusion, fantasy and superstition. Jan Grzeczny was born in Poland in 1920 and migrated to Australia in 1949. He married Maria in 1951. They had a daughter, Teresa – born […]]]></description>
<content:encoded><![CDATA[Issues concerning a will-maker’s “capacity” usually relate to dementia and the like. Sometimes though, they traverse broader aberrations of the mind such as a will-maker’s delusion, fantasy and superstition.
Jan Grzeczny was born in Poland in 1920 and migrated to Australia in 1949.
<img decoding="async" class="alignleft wp-image-9972 size-medium" title="Issues concerning "capacity" to make a will usually relate to dementia but this capacity fight is over a will-maker's delusion his daughter is a witch" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1272978074-300x200.jpg" alt="iStock 1272978074" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads//iStock-1272978074-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1272978074-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1272978074-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1272978074-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1272978074-2048x1365.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />He married Maria in 1951. They had a daughter, Teresa – born in 1952 – the same year in which Jan adopted Maria’s son Richard from a former relationship as his son.
Teresa and Richard became estranged from both Jan and Maria in the 1970s and thereafter had minimal contact. Teresa became somewhat closer to them from 2015.
Jan died in December 2018, at the age of 97. He was until then living independently in a Perth suburb and was still driving and managing his own finances.
Richard and Teresa were not named as beneficiaries in any of the wills he had made in 1981, 2014, 2017 or 2018.
In the 1981 will, Maria was appointed the executor and sole residuary beneficiary. Maria had though predeceased Jan which thereby granting to Richard and Teresa standing under the rules of intestacy to claim the entire estate if the 1981 will was propounded.
To prove their entitlement in intestacy, they had to clear off all the subsequent wills including that of 2018 where Jan had appointed Joachim and Maria‑Luise Diedler – whom he had known since 1989 – as residuary beneficiaries.
In September 2019 Teresa applied to the Western Australian Supreme Court for a Grant of Letters of Administration of the 1981 will arguing that the later wills were all invalid due to delusions she claimed had plagued her father.
The Public Trustee of WA, who had assisted Jan in the preparation of the 2018 will was named as executor but renounced its appointment.
Joachim and Marie-Luise themselves applied for a grant which led to a contest before Justice Natalie Whitby in a July 2023 trial.
The well known prerequisites for establishing legal capacity include a comprehension on the part of the will-maker of all those persons who have a reasonable claim to receive part of their estate.
He or she must also be absent of any disorder of the mind or delusion that “poisons their affections” or influences the contents of the will.
Justice Whitby was satisfied that Jan comprehended his children’s rightful claims but that for various reasons he chose not to provide for them.
She further concluded that Jan was indeed affected by delusions that had poisoned his mind in arriving at those decisions.
Against the contentions advanced by Joachim and Marie-Luise, the evidence clearly demonstrated he thought Teresa was a “witch” who was trying to poison him and had flown through his window to steal from him.
As to Richard, Jan harbored a delusion that he had tried to poison his coffee in 2014.
Her honour ruled those delusions influenced the will-maker to not provide for his children in his 2018 will and that in the absence of those delusions, they would likely have been included as beneficiaries.
The evidence “overwhelmingly supports a conclusion that the deceased did not have testamentary capacity when he made the 2018 will,” Justice Whitby concluded. “The 2018 will is not valid.”
Her honour went on to say that because the evidence supported a finding that Jan was suffering from the delusions from at least 2012, the validity of the 2014 and 2017 wills was also called into question.
It was in her view inappropriate to make any final determination of their validity until all of the beneficiaries under those wills had been given an opportunity to be heard.
A further contest may ensue if any beneficiary decides to argue that either of the 2014 or 2017 wills are valid.
<a href="https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?returnUrl=%2feCourtsPortal%2fDecisions%2fFilter%2fSC%2fRecentDecisions&id=4d7ad2a7-6985-4ba1-bd3d-b7c0bd9fa3be" target="_blank" rel="noopener">Diedler -v- Borowiec [No 2] [2023] WASC 396 Whitby J, 18 October 2023</a>
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<title>Court denies provision to disabled child: needs “fully covered” by NDIS</title>
<link>https://qldestatelawyers.com.au/disabled-child-already-has-proper-maintenance-and-support-from-ndis/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Fri, 03 Nov 2023 07:21:10 +0000</pubDate>
<category><![CDATA[Inadequate provision]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=9804</guid>
<description><![CDATA[Family provision applications enable an eligible person to seek “adequate provision” for their “proper maintenance and support” from the estate of a deceased person when something less or nothing at all has been provided for them. There is no mathematical formula and in practice, the courts can consider practically anything that they deem relevant to […]]]></description>
<content:encoded><![CDATA[Family provision applications enable an eligible person to seek “adequate provision” for their “proper maintenance and support” from the estate of a deceased person when something less or nothing at all has been provided for them.
There is no mathematical formula and in practice, the courts can consider practically anything that they deem relevant to determine and order “such provision as the court thinks fit”.
<img decoding="async" class="alignleft wp-image-9973 size-medium" title="disabled child "already has" proper maintenance and support from NDIS: further provision denied" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1466727570-300x200.jpg" alt="iStock 1466727570" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads//iStock-1466727570-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1466727570-1024x684.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1466727570-768x513.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1466727570-1536x1026.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-1466727570-2048x1368.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />At a minimum, a prospective applicant must be able to show they are an eligible person, ie a dependent or a family member; that they need a better provision from the deceased’s estate than has been provided; and in all the circumstances it is just and reasonable that the estate of the deceased person ought to provide a greater benefit.
What about dependents who have a disability?
That the needs of a disabled dependent might ordinarily be met from social security and welfare entitlements – eg NDIS or a disability pension – does not disentitle them from a proper and just provision from a deceased estate.
Disability sometimes leads to a legal tension in the context of what provision ought to be made for a person who is in receipt of such assistance and entitlements.
Consider the case of Luis Oliveira who died in 2019. He was survived by his wife, Felicidade, to whom he had been married for more than 50 years, and their 7 children.
Luis’ will left the entirety of his $550,000 estate to his wife who had recently been diagnosed with Alzheimer’s Disease and was in assisted-care living. Felicidade also gained sole entitlement to $730,000 held in a joint bank account. No benefits were provided to any of the children who were all adults.
Maria – who has a particularly severe form of Down’s Syndrome as well as other medical conditions and is non-verbal – filed proceedings in the NSW Supreme Court for a share of her deceased father’s estate.
In considering the claim, Justice Francois Kunc was mindful of her disability and needs but noted that her ongoing medical and personal needs were fully covered by her NDIS package and social security entitlements.
Her brother acting as her advocate claimed that – regardless of her medical and personal needs being covered by existing arrangements – she was in need of provision of a significant lump sum to cover ‘contingencies’ that might occur.
Rather than presenting expert or other evidence as to her additional needs – or the likelihood of medical and other expenses that should be budgeted for – Maria’s advocate could only speculate on what those future needs might be.
Although courts frequently make allowances for reasoned future contingencies supported by medical experts, Justice Kunc was not prepared in this instance to rely on mere speculation.
He observed that foreseeable expenses were covered by Medicare for medical issues and the NDIS package for personal needs.
As she was in receipt of social security benefits, she will – so held the court – never be affected by unemployment and had no assets of value that might be lost or destroyed.
All “current needs are being met and there is no reason to think that that will change,” ruled the judge.
Having failed to establish she had received inadequate provision -given her immediate needs and future needs were satisfied – her claim was dismissed.
The court’s reasoning may appear somewhat callous cold or crude. Other cases with similar facts have resulted differently. A further provision was made for a disabled child has been approved where need – over and above available benefits – has been demonstrated.<a href="#_ftn1" name="_ftnref1">[1]</a>
Maria Oliveria by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 <a href="https://www.caselaw.nsw.gov.au/decision/18aa649552ac157e4095bbf3" target="_blank" rel="noopener">Read case</a>
<a href="#_ftnref1" name="_ftn1">[1]</a> <a href="https://www.queenslandjudgments.com.au/caselaw/qca/2015/286" target="_blank" rel="noopener">Abrahams v Abrahams [2015] QCA 286</a>
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<title>DIY unsigned will: witness accounts differ but doc declared valid</title>
<link>https://qldestatelawyers.com.au/diy-unsigned-will-witness-accounts-differ-but-doc-declared-valid/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Tue, 26 Sep 2023 22:27:46 +0000</pubDate>
<category><![CDATA[Informal will]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=8870</guid>
<description><![CDATA[DIY wills often survive contests over their legal validity but invariably put the will-maker’s estate to enormous expense to establish their legitimacy. Leslie Turnbull died on 8 October 2022 with no spouse and one living child, Alexander. Having been diagnosed with terminal lung cancer in late-2017 or early-2018, he was advised to put his affairs […]]]></description>
<content:encoded><![CDATA[DIY wills often survive contests over their legal validity but invariably put the will-maker’s estate to enormous expense to establish their legitimacy.
Leslie Turnbull died on 8 October 2022 with no spouse and one living child, Alexander.
<img decoding="async" class="alignleft wp-image-8888 size-medium" title="Unsigned wills can be validated as an 'informal will' if they are proved to have been intended by the will maker to take effect as their will Edit Snippet" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-957376182-300x200.jpg" alt="iStock 957376182" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads//iStock-957376182-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-957376182-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-957376182-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-957376182-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads//iStock-957376182-2048x1365.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />Having been diagnosed with terminal lung cancer in late-2017 or early-2018, he was advised to put his affairs in order.
Leslie obtained a DIY will form of the type sold by newsagents.
He completed the form with directions as to the distribution of his assets before two friends who signed as witnesses. But at no stage did Leslie actually sign the will himself.
Leslie’s estate consisted of $147,000 in bank funds and homes at Lawnton and Everton Hills.
The will form appointed his brother Ken to be executor and provided a specific gift of “my car” to friend Lee Hornby who was one of the two witnesses of to the will.
Everything else was left to Alexander.
Where a will is signed in accordance with statutory formalities and requirements, it is presumed to be valid unless proven otherwise.
On that basis the vast majority of applications for probate are dealt with relatively inexpensively by the Probate Registrar without a court hearing.
But where there is contention or uncertainty, the issues are likely to be referred to a judge of the Supreme Court for determination.
In Leslie’s case the executor had to ask the Supreme Court to issue a grant of probate in respect of his ‘informal will’.
The court was prepared to accept the that the document stated the will-maker’s intentions and that it was ‘testamentary’ in nature.
But whether or not Leslie intended it to constitute his will really depended on whether or not he had intentionally deferred signing it, or whether that was in oversight.
There were some differences in the recollection of the two witnesses in that regard.
Witness Hornby recalled “Leslie said to me that he would get us back together again at a later time to finish signing it properly”.
The other witness, Stephanie Wood swore that Leslie had said to her “words to the effect that he would sign the purported will after I left”.
Justice Peter Davis had to weigh up all available facts.
“The evidence is strong that Leslie intended the will to be effective immediately and operate upon his death,” he concluded, pointing to the facts that he was terminally ill when he had made it and that he had later told Ken of all its terms.
The judge also noted the will was found where the will-maker had been seen to place it – inside a “buffet” cabinet where he kept important documents.
“Had Leslie changed his mind and not wished to execute the will, he would surely have destroyed it rather than keeping it in a safe place with other important documents,” Justice Davis observed.
Ultimately, the judge was satisfied that the surrounding circumstances demonstrated Leslie’s intention that the unsigned document was intended to be his will.
Not only did the DIY will cause the estate enormous expense, the exercise took nearly 9 months to resolve.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QSC23-140.pdf" target="_blank" rel="noopener">Re Turnbull (dec’d) [2023] QSC 140 Davis J, 27 June 2023</a>
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<title>Insufficient excuse for estrangement; further provision refused</title>
<link>https://qldestatelawyers.com.au/insufficient-excuse-for-estrangement-further-provision-refused/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Mon, 25 Sep 2023 22:05:39 +0000</pubDate>
<category><![CDATA[Inadequate provision]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=8863</guid>
<description><![CDATA[Children left out of their parent’s will often make a claim against the estate to reverse the will-maker’s decision to exclude them. More often than not, they come to an agreement with the executor and beneficiaries as to what should be provided for them from the estate. When agreement can’t be reached, the matter goes […]]]></description>
<content:encoded><![CDATA[Children left out of their parent’s will often make a claim against the estate to reverse the will-maker’s decision to exclude them.
More often than not, they come to an agreement with the executor and beneficiaries as to what should be provided for them from the estate.
<img decoding="async" class="alignleft wp-image-8887 size-medium" title="Children left out of a parent's will need to provide a court with an excuse for estrangement from the parent to justify them receiving a benefit" src="https://qldestatelawyers.com.au/wp-content/uploads/shutterstock_1463151278-300x169.jpg" alt="shutterstock 1463151278" width="300" height="169" srcset="https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_1463151278-300x169.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_1463151278-768x432.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_1463151278.jpg 1000w" sizes="(max-width: 300px) 100vw, 300px" />When agreement can’t be reached, the matter goes to a trial where a judge considers whether a benefit should be provided and if so, how much.
John Speechley – a widower – died at age 87 in January 2019 survived by three of his five children, but son Peter and daughter Theresa also died before John.
John’s estate consisted of his Buderim residence – a home unit of around $480,000 in value – and bank funds in the order of $50,000 after expenses. Judge Gary Long SC noted that this was a “relatively small estate”.
In his last will dated 5 July 2016, John left his estate solely to daughter Amanda, and named her as executor.
No provision was made for his son Anthony or daughter Jennifer.
Anthony made a claim for provision out of the estate and his claim was resolved by agreement that he receive $25,800.
Jennifer – a former bankrupt – also made a claim against the estate for provision, and the claim went to trial as mediation had not been successful.
Jennifer was discharged from bankruptcy in August 2021, after she filed her application with the court against the estate, but prior to the trial.
Because her estate claim had arisen during her bankruptcy, her trustee in bankruptcy notified her that she must pay $16,130.75 out of any provision she ultimately received from the estate.
Amanda at first opposed Jennifer’s claim for former provision and contended only her trustee had standing to bring it.
When the matter came before judge Gary Long SC in the Queensland District Court, that preliminary point was determined in Jennifer’s favour in that the claim was not an “enforceable right of action’, but rather a mere “opportunity to apply” for what is ultimately an exercise of discretion by the court.
It was important for Jennifer to have been discharged from her bankruptcy before any order could be made in her favour, as the court will generally not do so if its effect would be simply to benefit her creditors.
The next issue was whether any provision should be made in the context of the “small estate” where Jennifer had specifically been excluded by her father.
The judge turned his mind to Jennifer’s needs, how any payment would adversely affect Amanda and the nature of the estrangement between Jennifer and the deceased.
Jennifer was in receipt of a disability support pension, had minimal assets, limited savings, no super, and owned no real estate. Amanda however was in no better financial position.
Amanda had clearly enjoyed a close relationship with the deceased while Jennifer did not.
Jennifer pointed out that her difficult relationship with her mother had – despite attempts to improve it – impacted on that with the deceased.
His honour was unconvinced by her account because they conflicted with the written accounts of both her parents and the testimony of another relative as well as – to a lesser extent – Amanda’s assertions to the contrary.
He ruled that – although Jennifer had detailed some need for support from the estate – he could not rely on her evidence about that need due to her evidence regarding her relationship with her father being proven unreliable. The beneficiary’s own needs in such a small estate in the absence of a cogent justification meant that it would not otherwise be appropriate to make any provision for her.
On a precautionary basis – ie if his decision was to be reversed on appeal – his honour quantified what Jennifer would otherwise be entitled to receive based on her need but reduced for the estrangement at $50,000.
Jennifer’s claim was dismissed, with the judge deliberating over 9 months to carefully consider his final decision.
This case demonstrates the danger of going to trial where success or failure can turn on how well witnesses perform in the witness box under cross examination, regardless perhaps of the truth of the claims being made.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QDC23-154.pdf" target="_blank" rel="noopener">Speechley v Willemyns [2023] QDC 154 Long SC DCJ, 25 August 2023</a>
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<title>Right to reside proves baseless; beneficiary to repay lost rent</title>
<link>https://qldestatelawyers.com.au/right-to-reside-proves-baseless-beneficiary-to-repay-lost-rent/</link>
<dc:creator><![CDATA[Peter Carter]]></dc:creator>
<pubDate>Mon, 25 Sep 2023 11:04:25 +0000</pubDate>
<category><![CDATA[Estate administration]]></category>
<category><![CDATA[right to reside]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=8861</guid>
<description><![CDATA[What are the consequences to a family member who refuses to give up occupation of the deceased’s home after the will-maker’s death despite an executor’s demand that they do so. Patrick Tehan died in July 2021 aged 87 never having married. By a will of July 2018, he left one third of his estate to […]]]></description>
<content:encoded><![CDATA[What are the consequences to a family member who refuses to give up occupation of the deceased’s home after the will-maker’s death despite an executor’s demand that they do so.
Patrick Tehan died in July 2021 aged 87 never having married. By a will of July 2018, he left one third of his estate to his sister-in-law Gloria and the remainder to four nieces and nephews.
<img decoding="async" class="alignleft wp-image-8976 size-medium" title="What happens if a beneficiary's claim that a will-maker had granted him a right to reside in the family home rent-free after his death is proved false" src="https://qldestatelawyers.com.au/wp-content/uploads/shutterstock_104328014-300x203.jpg" alt="shutterstock 104328014" width="300" height="203" srcset="https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_104328014-300x203.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_104328014-768x519.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_104328014-265x180.jpg 265w, https://qldestatelawyers.com.au/wp-content/uploads//shutterstock_104328014.jpg 1000w" sizes="(max-width: 300px) 100vw, 300px" />Two of those nephews – Luke and Damien – were appointed to be his executors.
Another nephew, Ben Tehan, had been residing in the Patrick’s Windsor home prior to his death.
Ben filed a caveat against the estate contending that his uncle had lacked capacity at the time his last will was made.
He also refused to vacate the residence when asked to do so by the executors, alleging an agreement with Patrick and his brother John, that he had a right to reside rent free in the home in perpetuity in exchange for the care he provided to Patrick.
The executors naturally enough wanted to have the home sold and the estate administered.
They filed proceedings for a solemn form grant of probate and for Ben to be required to vacate the home.
The issues came to trial before Justice Melanie Hindman in the Supreme Court in Brisbane.
Ben produced no evidence of any lack of capacity on Patrick’s part and effectively abandoned that claim.
The executors were none the less required to satisfy the court on the issue not least because the death certificate listed dementia as a cause of death.
They called solicitor Nathan Donovan who had prepared the 2018 will and who swore that he took instructions from the deceased at his home at which time he was provided clear instructions as to how his estate was to be divided.
Donovan took an audio recording in which the will-maker expressed how he wished his estate to be divided.
He had also recommended to the family that given Patrick’s age, it would be prudent for him to consult a GP to medically confirm he had capacity to make decisions about his testamentary affairs.
Patrick did in fact attend at the Windsor Medical Centre six days before the 2018 will was executed to obtain a letter as to his ability to make a will and for an “over-75 year old annual health assessment”.
Dr Hossain provided a letter certifying “His memory looks normal, and he is capable of making decisions on his new will”.
The clinic’s patient records that were produced at the trial revealed no concern about the deceased’s mental capacity then or previously.
The court was thus well satisfied that that the deceased had capacity to make his last will. Accordingly the 2018 will was declared valid and probate of the will was granted to the executors.
Ben similarly could not produce any evidence of any agreement concerning his right to reside rent free in the home. That claim was ultimately also dismissed.
The court next examined what Ben must reimburse the estate for his occupation to account for lost rental income.
It relied on the evidence of a valuer that the weekly market rent was $460 when Patrick died but by the date of the court hearing, had escalated to $560.
Although the lost rent on those calculations totalled $66,000, the court restricted his liability to $50,000 to take into account the likely agent’s costs and management expenses that would have been incurred.
He was also ordered to pay the estate’s legal costs of the court dispute.
Ben’s debt will be deducted from his share of the inheritance he was otherwise to receive from Patrick’s estate.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QSC23-172.pdf" target="_blank" rel="noopener">Tehan v Tehan [2023] QSC 172 [2023] Hindman J, 23 June 2023</a>
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