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Source: https://qldestatelawyers.com.au/feed/

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<title>Life Insurance Nomination found to be an informal will</title>
<link>https://qldestatelawyers.com.au/life-insurance-nomination-found-to-be-an-informal-will/</link>
<dc:creator><![CDATA[QLD Estate Lawyers]]></dc:creator>
<pubDate>Tue, 15 Oct 2024 02:57:55 +0000</pubDate>
<category><![CDATA[validity of will]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=16825</guid>
<description><![CDATA[Can a completed life insurance nomination form be regarded as a valid will? Consider the circumstances of Ron Selig who died in November 2022 in a farm accident whilst working on a property near Longreach at the edge of outback Queensland. He lived in rented accommodation at Buderim at the time. His estate consisted only […]]]></description>
<content:encoded><![CDATA[Can a completed life insurance nomination form be regarded as a valid will?
Consider the circumstances of Ron Selig who died in November 2022 in a farm accident whilst working on a property near Longreach at the edge of outback Queensland.
<img fetchpriority="high" decoding="async" class="alignleft wp-image-16911 size-medium" title="Life Insurance Nomination found to be an informal will" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1150772924-300x200.jpg" alt="iStock 1150772924" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1150772924-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1150772924-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1150772924-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1150772924-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1150772924-2048x1366.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />
He lived in rented accommodation at Buderim at the time. His estate consisted only of a $150,000 life policy with Australian Seniors Insurance (“ASI”), furniture and personal effects of modest value.
Ron had married his first wife, Vicki Garvie in 1974. They had two children together, Aaron and Melinda. Their marriage ended in divorce in 1995, but they remained good friends.
He then married Janna in 1996. They also had 2 children together, born in 2002 and 2007. Ron and Janna separated in 2008, but they had never formally divorced.
His last formal will made in November 2003 named Janna the executor and beneficiary.
Her application for probate of that will was dismissed by the Queensland Supreme Court Court in June 2023 under opposition from Aaron and Melinda.
The pair instead proposed that documents Ron had completed in April 2021 in connection with his ASI life policy – a “My Wishes” form and a “Nomination of Beneficiaries” form – should be considered as his last will.
The deceased had completed the forms with the assistance of first wife Vicki, who since 2014 visited him at least 2-3 times a week from her home at Nambour.
The court heard that Ron had called Vicki in April 2021 and asked her to come over “to help him with something”.
He already had the two insurance forms laid out on a table when Vicki arrived and requested her help to “write his Last Will and Testament”.
He explained he wanted Vicki her to write on the Nomination of Beneficiaries form that their children – Melinda and Aaron – were each to be 50% beneficiaries of his life insurance policy.
Ron told her not to bother writing down anything about his furniture as it was worth nothing, and when the time came Melinda and Aaron could work out what they wanted to do with it.
Vicki read through each of the two documents with him and completed the answers as he instructed. The “My Wishes” form was completed with specific details regarding funeral arrangements, where his ashes were to be scattered, and who was to be told of his death.
She swore from the witness box that after completing the documents, Vicki read through them both out loud with him to make sure he could follow what had been written complied with what he had asked her to write. Ron then signed each document in her presence.
Melinda and Aaron first made claim against the ASI policy, which was refused because Ron had neglected to submit the Nomination form to ASI before his death.
As observed by Justice Lincoln Crowley, had the form been received by the insurer before the deceased’s death, there would have been no need for the court proceedings.
In opposition to the children’s claim, Janna contended that the two ASI forms were forgeries.
She argued it was “simply illogical” for Ron to have signed them as they maintained a close relationship and had even reconciled. Ron had made no mention – she swore – of the insurance nomination or of any desire to benefit the children in any way.
Preferring Vicki’s “cogent, direct evidence”, the court rejected Janna’s assertions.
The judge accepted that Ron had told Vicki, Melinda and Aaron on separate occasions before he died that his “will” was in the top drawer of his bedside cupboard ie, the location in which the two insurance documents were found after his death.
Justice Crowley held that the content of the two insurance documents were the expression of his testamentary intentions and that Ron intended them to be his last will. That conclusion was even more compelling – so held the judge – given Ron knew the life policy was his only significant asset.
His honour also was satisfied that Ron had the necessary capacity to make a will at the time the documents were signed, noting that the death certificate and coroner’s report “do not indicate any illness or condition that would suggest or raise any suspicion of the lack of capacity”.
He ordered that the insurance documents were the last valid will of the deceased, and Melinda and Aaron were appointed as administrators of the estate which they were to share equally.
The court might perhaps have come to a different conclusion if the estate had other substantial assets that were not dealt with by the nomination form. The decision however shows that careful consideration needs to be given to any documents found that give some indication of how a deceased wishes their estate to be distributed.
<a href="https://www.queenslandjudgments.com.au/caselaw/qsc/2024/189" target="_blank" rel="noopener">Selig v Selig [2024] QSC 189 Crowley J, 26 August 2024</a>
 
]]></content:encoded>
</item>
<item>
<title>Daughter kills abusive father: her children denied a will benefit</title>
<link>https://qldestatelawyers.com.au/daughter-kills-abusive-father-children-denied-a-will-benefit/</link>
<dc:creator><![CDATA[QLD Estate Lawyers]]></dc:creator>
<pubDate>Mon, 14 Oct 2024 12:16:44 +0000</pubDate>
<category><![CDATA[Disentitling Conduct]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=16822</guid>
<description><![CDATA[Gail Beazleigh murdered her 51-yr-old father Edward Savage in July 2000 because, she claimed, he had sexually abused her for 20 years. The 27-yr-old Gail cut his throat at his Redcliffe home after a bag had been placed over his head and his hands tied behind his back. She claimed her father started molesting her […]]]></description>
<content:encoded><![CDATA[Gail Beazleigh murdered her 51-yr-old father Edward Savage in July 2000 because, she claimed, he had sexually abused her for 20 years.
The 27-yr-old Gail cut his throat at his Redcliffe home after a bag had been placed over his head and his hands tied behind his back.
<img decoding="async" class="alignleft wp-image-16912 size-medium" title="Daughter kills abusive father: children denied a will benefit" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-2161885671-300x200.jpg" alt="iStock 2161885671" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-2161885671-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-2161885671-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-2161885671-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-2161885671-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-2161885671-2048x1366.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />She claimed her father started molesting her from the age of five, first raped her at the age of 13, and that when she was 17 he began drugging her.
She was convicted of the murder by the Brisbane Supreme Court in December 2002 and sentenced to life imprisonment. Her husband was also convicted as an “accessory” to the crime.
The deceased left a will appointing his brother as executor and leaving his estate to his three children including Gail, in equal shares.
Edward’s will also specified that if any child of his should die before him then that share of his estate would pass to their children, ie his grandchildren by way of what is commonly referred to as a ‘gift over’ clause.
It is a well-established principle of estate law – the rule of forfeiture – that a person criminally responsible for the death of another can’t receive any benefit from the estate of the deceased by will or otherwise.
Gail had forfeited her interest as a beneficiary of her father’s will and could never receive anything from his estate.
But what about her three children? Could take Gail’s share under the ‘gift over’ clause? Or should a child of the murderer responsible for the death of the deceased be likewise denied any benefit in that way?
This the question came before Justice Martin Burns in the Supreme Court in Brisbane.
One-third of Edward’s estate had already been distributed to his son, Steven Savage, and a balance of $519,000 was being held by the executor pending the decision of the court.
The court had to decide on the one hand if Gail’s three adult children would get to share between them what Gail would otherwise have received had she not slit her father’s throat; or whether the gift would ‘fail’ meaning that Gail’s share would be divided between Steven and the two children of her other sibling, Edward who had died.
In this instance though, the event upon which the gift over was dependent – ie, Gail’s death – had not occurred as she was very much alive.
Should though a gift over be allowed to operate to achieve the same outcome in circumstances different to those contemplated by the willmaker?
The judge answered that question in the negative. There was no basis for holding Gail’s share of her father’s estate should be gifted over to her three children.
Thus, Justice Burns reasoned, the gift over provision was not enlivened and the gift was taken to have failed.
The Court ordered that Gail’s share be shared between Steven who received a half share and Edward’s two children who received a quarter share each.
<a href="https://archive.sclqld.org.au/qjudgment/2023/QSC23-280.pdf" target="_blank" rel="noopener">Savage v Savage & Ors [2023] QSC 280 Burns J, 8 December 2023</a>
]]></content:encoded>
</item>
<item>
<title>Charities brawl over willmaker’s intention to gift his estate</title>
<link>https://qldestatelawyers.com.au/charities-brawl-over-willmakers-intention-to-bequest-his-estate/</link>
<dc:creator><![CDATA[QLD Estate Lawyers]]></dc:creator>
<pubDate>Thu, 10 Oct 2024 11:58:50 +0000</pubDate>
<category><![CDATA[Will interpretation]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=16782</guid>
<description><![CDATA[In June 2020, James O’Connor – a never married medical specialist who had no children - suffered a heart attack and died some weeks later in a Gold Coast hospital.]]></description>
<content:encoded><![CDATA[In June 2020, James O’Connor – a never married medical specialist who had no children – suffered a heart attack and died some weeks later in a Gold Coast hospital.
He had made a formal will with solicitors in May 2003 which appointed the St Vincent de Paul Society of Victoria as the major beneficiary.
<img decoding="async" class="alignleft wp-image-16910 size-medium" title="Charities brawl over willmaker's intention to bequest his estate" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1013751744-300x200.jpg" alt="iStock 1013751744" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1013751744-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1013751744-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1013751744-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1013751744-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1013751744-2048x1365.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />
However some informal notes found at his residence by relatives who assisted him when he was hospitalised appeared to grant Cancer Council Queensland a 20% share.
The inevitable dispute between the two charities came before Justice Glenn Martin of the Supreme Court of Queensland in August 2024 who was charged with determining which document or documents constituted James’ last valid will.
The first set of informal notes (referred to as the Update Notes) consisted of 8 numbered pages titled UPDATE AND CHANGES TO THE WILL OF JAMES EDMUND O’CONNOR which were signed and dated by two entries 10/02/2020 and 8/4/2020.
The second tranche of informal notes – titled DETAILED NOTES – comprised 6 pages with page 2 headed “Details for the last will of James Edmond O’Connor”. It contained a detailed summary of a large variety of James’ assets, including cash deposits, shares, bonds, real estate, a car and superannuation entitlements.
Ordinarily a will must be in writing and signed by the willmaker and 2 witnesses (and ideally, the will should also be dated). But Queensland law permits an informal document – not made in accordance with those formalities – to be admitted to probate as an informal will subject to the ruling of the court.
With this in mind, Samantha Lennox on behalf of Cancer Council Queensland, sought to have the Update Notes declared as James’ informal will.
Justice Martin concluded that neither the Update Notes nor the Detailed Notes constituted an informal will but were instead “notes to be used when [James was] considering changes he might want to make to his will” and an aide memoir for him doing so.
His Honour observed that James had previously made a will and was thus aware of the formalities and protocols for making a will. Additionally, the informal notes contained a lengthy summary of the legal requirements for doing exactly that.
The May 2003 will favouring the St Vincent de Paul Society of Victoria was held to be the valid will for which probate was granted reflecting the willmaker’s intention.
The case serves as a reminder that informal notes accompanying or referring to wills must be treated cautiously and can cause significant delay. In this instance the process occupied more than 4 years from James’ death and incurred significant legal costs payable by James’ estate to resolve the ambiguity.
<a href="https://archive.sclqld.org.au/qjudgment/2024/QSC24-224.pdf" target="_blank" rel="noopener">In the Will of James Edward O’Connor (deceased); Ex parte Lennox [2024] QSC 224 Martin SJA, 20 August 2024 </a>
]]></content:encoded>
</item>
<item>
<title>Mother’s death bed regret falls short of a valid will</title>
<link>https://qldestatelawyers.com.au/mothers-death-bed-hostility-regret-falls-short-of-a-valid-will/</link>
<dc:creator><![CDATA[QLD Estate Lawyers]]></dc:creator>
<pubDate>Thu, 30 May 2024 21:20:27 +0000</pubDate>
<category><![CDATA[Estrangement]]></category>
<category><![CDATA[Informal will]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=14809</guid>
<description><![CDATA[Many an attempt to make what appears to be a will unconventionally or informally falls short of a valid will because it does not meet minimum legal requirements. Unfortunately this was the case in relation to the estate of Erika Kaegi-Fluri who – when she died – was survived by her only daughter, Juliana Wool. […]]]></description>
<content:encoded><![CDATA[Many an attempt to make what appears to be a will unconventionally or informally falls short of a valid will because it does not meet minimum legal requirements.
Unfortunately this was the case in relation to the estate of Erika Kaegi-Fluri who – when she died – was survived by her only daughter, Juliana Wool.
<img loading="lazy" decoding="async" class="alignleft wp-image-14890 size-medium" title="Mother's death bed hostility regret falls short of a valid will " src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1002255010-300x200.jpg" alt="iStock 1002255010" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1002255010-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1002255010-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1002255010-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1002255010-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1002255010-2048x1365.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />In her first will made in December 2013, she left the whole of her estate to Juliana.
Juliana and her husband had a tumultuous falling out with Erika in 2017 – that lead them to sue her – over the financial arrangements they had made for Erika to reside with them in Cairns.
The ensuing litigation eventually resolved, but not the disaffection that it brought.
Erika moved back to Mackay to live out her days quietly in a retirement village.
She made a new will in 2018 and a further final will in 2020. Juliana’s name appeared nowhere as beneficiary in either document both of which were accompanied by a statement of Erika’s reasons for leaving no benefit to her daughter.
The last will bequeathed the estate in one-third shares to the RSPCA and two friends, Micael Johannsson and Adam Anderson.
Shortly after Erika’s death in July 2022 in Mackay, Charles Marino – her executor – applied for it to be admitted to probate.
Julia intervened however, claiming there was a subsequent will.
A note had been found in Erika’s bedside drawer. The note appeared to state Erika’s testamentary intentions, leaving her estate to Juliana. English was not Erika’s first language, but the intention seemed quite clear.
The note read:
“DEAR JULIANA
I AM CHANGING MY WILL!
KIM ADAM AND MICAEL HAVE ABANDEND ME. RSPCA LET ME DOWN.
I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA. I GO TO HOSPITAL NOW. WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER. NO MONEY MUST BE PAID TO RSPCA, MICAEL OR KIM AND ADAM. I CANCEL THE CAIRNS WILL
SORRY MY HANDS GETTING SORE.
I LOVE YOU VERY MUCH YOU ARE MY ONLY DAUGHTER YOU ARE ALL I HAVE NOW.
I WRITE THIS LETTER IN CASE SOMETHING HAPPEN TO ME. SORRY I AM VERRY TIRED.
I CONTACT YOU FROM HOSPITAL.
I LOVE YOU MORE THAN ANYTHING IN THE WORD! YOUR MOTHER,
[…Erika’s signature…]
Mackay 6.6.2022”
The note appeared to be an informal will, and so Juliana asked the Supreme Court to admit the note to probate as Erika’s last will.
To prove the note as a valid informal will, Juliana needed to be able to convince a judge that the document embodied her mother’s testamentary intentions and by some act or words, had demonstrated it was to operate as her will of itself.
The matter came before Justice James Henry in the Supreme Court of Queensland at Cairns.
The judge was troubled by evidence that Erika may have had undiagnosed dementia; her health issues just prior to going to hospital may have affected her mental capacity to make a will; and Erika was emotions could fluctuate with her mood.
He concluded that the note “at best provides some support for an inference Erika intended it to operate her will”. That said, “it provides at least equally strong support for the inference Erika merely intended the note to inform her daughter of her regret and change of heart and her plan to reflect that by making a new will”.
Juliana failed in her attempt to have the note declared to be a valid informal will.
Despite that, Juliana’s cause is not entirely lost as she has a pending family provision claim contesting her exclusion from the 2020 will, which her mother’s note will likely go a long way to support.
<a href="https://archive.sclqld.org.au/qjudgment/2024/QSC24-089.pdf" target="_blank" rel="noopener">Wool v Marino [2024] QSC 89 Henry J, 14 May 2024</a>
]]></content:encoded>
</item>
<item>
<title>Armchair notepad memo ruled to be a valid will, just</title>
<link>https://qldestatelawyers.com.au/armchair-notepad-memo-ruled-to-be-a-valid-will-just/</link>
<dc:creator><![CDATA[QLD Estate Lawyers]]></dc:creator>
<pubDate>Wed, 29 May 2024 21:36:14 +0000</pubDate>
<category><![CDATA[Informal will]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=14807</guid>
<description><![CDATA[Valid wills can be made in unconventional and informal ways even by video, notepad memo or even on the back of an envelope. That said, the risks of departing from the strict requirements of a formal will are enormous and the expense to which an estate can be put to prove validity, equally huge. Consider […]]]></description>
<content:encoded><![CDATA[Valid wills can be made in unconventional and informal ways even by video, notepad memo or even on the back of an envelope.
That said, the risks of departing from the strict requirements of a formal will are enormous and the expense to which an estate can be put to prove validity, equally huge.
<img loading="lazy" decoding="async" class="alignleft wp-image-14891 size-medium" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1036989658-300x200.jpg" alt="iStock 1036989658" width="300" height="200" title="Armchair notepad memo ruled to be a valid will, just 2" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-1036989658-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1036989658-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1036989658-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1036989658-1536x1024.jpg 1536w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-1036989658-2048x1365.jpg 2048w" sizes="(max-width: 300px) 100vw, 300px" />Consider the case of Ken Young who died in August 2022 – at age 85 – without any known will. Ken was divorced, had no children and his closest relatives were his niece and two nephews.
After his death, niece Anthea located a notebook on his armchair in which he regularly made notes.
Three pages of his notebook contained instructions that read like a will and were headed “Consider this my will”.
The pages contained instructions for the distribution of all of his possessions and money which was all to go to Anthea. He also specifically noted – with reasons for this decision – that he did not want any benefit to go to his nephews.
To get the benefits the pages appeared to bestow upon her, Anthea needed to convince a judge that the document – which was not signed with usual formalities of a formal will – purported to state Kenneth’s testamentary intentions.
Ken had signed each of the 3 notebook pages – exactly when was unknown – but there has been no witness to his signature.
If the notepad was held not to be a valid will, Ken’s estate would pass according to the laws of intestacy in equal shares between Anthea and Ken’s nephews.
Naturally the nephews were given notice of Anthea’s application to the court but did not contest her claim the NSW Supreme Court.
Anthea was able to convince Chief Justice in Equity David Hammerschlag that the notepad was indeed an informal will because the notepad pages had been written and signed by Ken and showed he intended the notes to form his will by the use of the introductory words, “Consider this my will”.
Further, the pages gave testamentary instructions, namely to give his estate to Anthea and to exclude his nephews.
Informal notes can be declared valid, but the process of having them declared to be lawful is fraught with uncertainty. Professionally drafted wills eliminate the anxiety and cost of court applications that are necessary to determine the legitimacy of something done informally.
The Estate of Young [2024] NSWSC 569 Hammerschlag CJ in Eq, 10 May 2024 <a href="https://www.caselaw.nsw.gov.au/decision/18f748e58456014a114f7db0" target="_blank" rel="noopener">Read case</a>
]]></content:encoded>
</item>
<item>
<title>Disinherited step-children have modest win after tragic rupture</title>
<link>https://qldestatelawyers.com.au/disinherited-step-children-have-modest-win-after-tragic-rupture/</link>
<dc:creator><![CDATA[QLD Estate Lawyers]]></dc:creator>
<pubDate>Wed, 29 May 2024 10:23:26 +0000</pubDate>
<category><![CDATA[Disentitling Conduct]]></category>
<guid isPermaLink="false">https://qldestatelawyers.com.au/?p=14805</guid>
<description><![CDATA[Can a parent successfully disinherit children or step-children who allege sexual abuse against them, a crime of which they are subsequently acquitted by a court? Adam Fornari died on 13 August 2022, aged 58. His assets – the net value of which was just in excess of $1,000,000 – consisted in the main, of two […]]]></description>
<content:encoded><![CDATA[Can a parent successfully disinherit children or step-children who allege sexual abuse against them, a crime of which they are subsequently acquitted by a court?
Adam Fornari died on 13 August 2022, aged 58. His assets – the net value of which was just in excess of $1,000,000 – consisted in the main, of two farm blocks of 670 acres near Mudgee in New South Wales.
<img loading="lazy" decoding="async" class="alignleft wp-image-14894 size-medium" title="Disinherited step-children have modest win after bitter rupture" src="https://qldestatelawyers.com.au/wp-content/uploads/iStock-173940094-300x200.jpg" alt="iStock 173940094" width="300" height="200" srcset="https://qldestatelawyers.com.au/wp-content/uploads/iStock-173940094-300x200.jpg 300w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-173940094-1024x683.jpg 1024w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-173940094-768x512.jpg 768w, https://qldestatelawyers.com.au/wp-content/uploads/iStock-173940094.jpg 1254w" sizes="(max-width: 300px) 100vw, 300px" />He had been in a 20 year relationship with Karen Hibberd until December 2019. Karen’s three infant children from a prior relationship – Kirt, Kimberley and Kyle then aged 7, 4 and 2 – began living with the deceased at the start of the couple’s relationship.
The family remained together at Faulconbridge – in the Blue Mountains west of Sydney – with Adam present and involved in the bringing up of the three children for the whole of their childhood in the absence of their biological father.
The couple purchased the Mudgee farms in 2003 and the family holidayed there regularly.
Kimberley left school at 18 and had three children from 2 relationships and by 2019 she, her 3 children and then partner Wayne moved in to the Faulconbridge home.
Kyle and his child and his partner Taylor and her child also moved in in October 2019.
Kirt also lived at the property, sleeping on the couch. So crowded wad the home – with Kimberley’s two eldest children sleeping in the main bedroom – that the only place for Adam to sleep was in a pine log cubby house in the backyard.
Those arrangements put Adam’s relationship with the other occupants – none of the adults among them having jobs – under severe stress.
In December 2019 Kimberley revealed to her mother that she had been sexually abused by Adam from age 6 until she was 12. That bombshell lead to Adam’s arrest for crimes of which he was ultimately acquitted at trial.
Unsurprisingly, his relationship with all of his step-children came to an abrupt end and they never spoke again.
So did his relationship with Karen with whom he reached a property settlement in August 2021 transferring the Faulconbridge residence to her. Adam received the two farm blocks and a portion of Karen’s superanuation.
Adam’s life went downhill from there.
His health took a turn for the worse, he lost his job and the day before he was to move into the farmhouse it mysteriously burned to the ground.
His sister Debra Wright – a full time police officer with relationship problems of her own – provided moral support and spent her own money to assist with legal costs and other expenses he couldn’t afford to meet.
She also regularly did his grocery shopping and prepared his meals. Adam was in fact, emotionally and financially dependent on her.
For that reason, his will of March 2022 left his whole estate to her.
All three of the stepchildren challenged the will in the NSW Supreme Court and sought provision be made for them out of the estate.
Kirt’s claim was resolved prior to the trial and so the court was left to consider what provision if any, should be made for Kimberley and for Kyle.
Debra accepted they were eligible to seek a provision as – although they were no longer stepchildren – they had been part of the deceased’s household and had been financial dependents.
Kimberley and Kyle had though to prove the factors in their favour, that warranted a provision being made.
Justice James Hmelnitsky KC agreed factors had been established – in that they had grown up in Adam’s household; he had been their father figure; he had been in a long term relationship with their mother; they had little if any contact with their biological father; and the family home and farm blocks had been co-owned by the couple – that warranted their applications for provision.
His honour then turned his mind to whether they should each receive the $200,000 they claimed from the estate despite their total estrangement from the deceased.
Debra argued that no provision should be made given the catastrophic allegations of sexual abuse that destroyed the relationship and resulted in the family rupture. Their stepfather – she asserted – had no longer, any moral duty to provide for their needs as adult children of a former partner.
Justice Hmelnitsky agreed.
“There is real doubt about whether the community would expect the deceased to make any provision for the maintenance of Kimberley and Kyle in his will,” he observed.
They were after all adult children of a former partner, estranged, and the deceased had already “done more than what society would ordinarily expect”.
Also relevant was that the estate had been left to his sister Debra in no way to punish the stepchildren but rather, to reflect his “genuine and heartfelt affection for his sister, whose unquestioning support he understandably wished to recognise”.
Kimberley and Kyle were nevertheless held to be entitled to some small provision for two reasons. First, the extent of the historical connection between them and the deceased as their parent for virtually all their childhood and second because there was no evidence by which Kimberley could be blamed for her unproved allegations and Kyle could not be blamed for siding with his sister.
Thus, although the estrangement caused a “significant weakening of the moral obligations”, it did not entirely negative the deceased’s obligations.
The judge ordered Kimberley receive $50,000 and Kyle $40,000. Kimberley received more as she was found to have greater financial need.
Neither award would give them financial independence, but the judge’s view was that the deceased had no obligation to achieve that for them.
The question of costs was left for another day. The amounts ultimately payable to Kimberley and Kyle may in fact end up being reduced by costs orders, particularly if Debra had offered at any time to pay them more than what was ultimately ordered.
Note that in Queensland, neither Kimberley or Kyle would have been eligible to seek any provision as their entitlement is deemed to have ceased when their mother’s relationship with the deceased ended – before his death – at which time they ceased to be his stepchildren.
Wilson v Wright; Wilson v Wright [2024] NSWSC 519 Hmelnitsky J, 7 May 2024 <a href="https://www.caselaw.nsw.gov.au/decision/18f3cad2c65c62995136f4d6" target="_blank" rel="noopener">Read case</a>
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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[QLD Estate Lawyers]]></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 Ian 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 Ian Jacobs as executor, made some minor gifts and then left the rest and residue of the estate equally between the three adult offspring.
<img loading="lazy" 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, which daughter Lynne occupied from death and which Jacobs also 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>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[QLD Estate Lawyers]]></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 loading="lazy" 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>
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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[QLD Estate Lawyers]]></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 loading="lazy" 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>
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<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[QLD Estate Lawyers]]></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 loading="lazy" 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 4" 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>
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