“Unmeritorious”: costs ordered against family provision applicant 13 Dec 2023, 7:21 pm

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 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As it turned out, Scott had withdrawn $45,000 from his father’s bank account after his death.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  I was a cadet’ – decided to proceed notwithstanding his lawyers had also withdrawn, leaving him to represent himself.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.

Day v Peake [2023] QDC 178 Clarke DCJ 256 September 2023

Day v Peake [No 2] [2023] QDC 200 Clarke DCJ, 3 November 2023

Residuary beneficiary caught out by estate admin convenience steps 11 Dec 2023, 4:24 pm

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.

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.

Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261

Death benefit nominees disentitled by deceased’s attorney 10 Dec 2023, 4:23 pm

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 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.

Re Rentis Pty Ltd [2023] QSC 252 Applegarth J, 23 Oct 2023

Unconventionally signed DIY will declared valid at great expense 6 Nov 2023, 4:18 pm

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 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.

Re Chambers (dec’d) [2023] QSC 230 Davis J, 13 October 2023

Capacity fight over will-maker’s delusion daughter is a witch 6 Nov 2023, 5:05 am

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 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.

Diedler -v- Borowiec [No 2] [2023] WASC 396 Whitby J, 18 October 2023

Court denies provision to disabled child: needs “fully covered” by NDIS 3 Nov 2023, 3:21 am

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”.

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.[1]

Maria Oliveria by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 Read case

[1] Abrahams v Abrahams [2015] QCA 286

DIY unsigned will: witness accounts differ but doc declared valid 26 Sep 2023, 6:27 pm

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 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.

Re Turnbull (dec’d) [2023] QSC 140 Davis J, 27 June 2023

Insufficient excuse for estrangement; further provision refused 25 Sep 2023, 6:05 pm

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 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.

Speechley v Willemyns [2023] QDC 154  Long SC DCJ, 25 August 2023

Right to reside proves baseless; beneficiary to repay lost rent 25 Sep 2023, 7:04 am

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.

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.

Tehan v Tehan [2023] QSC 172 [2023] Hindman J, 23 June 2023

Invalid binding nomination: trustees should pay spouse regardless 17 Jun 2023, 3:42 am

To be confident your superannuation benefits are paid on your demise as you intend them to be, care is required to avoid an invalid binding nomination.

An invalid binding nomination will result if its language, form or means of transmission does not accord with the terms of the particular superannuation fund deed.

The Supreme Court of Queensland recently had to determine the validity of a binding nomination that was challenged on one of those grounds.

Anthony Williams died on 28 December 2021. He was survived by his second wife Gayle who he had married in 2019, as well as his two adult sons Paul and Mark who was appointed as the executor of his estate.

Anthony had a self-managed super fund which he called the Boosey Doherty Superannuation Fund, of which he was a trustee.

The initial members of the fund had been Anthony and his first wife Margaret, but after Margaret died in 2014 their son Paul became a trustee in Margaret’s place and he remained as trustee of the fund at the time Anthony died.

Paul and Mark entered into a Deed – after Anthony’s demise – to attempt to add Mark as an additional trustee of the fund.

In dispute was this appointment, as well as the effectiveness of the binding death benefit nomination Anthony had prepared and duly signed in March 2018 in accordance with the requirements of the deed as to its form, directing his death benefit to be paid 50% to Gayle, and 50% to his estate.

Paul determined the nomination to be invalid however because the paperwork had not been given by Anthony to him as co-trustee of the super fund as required by the terms of the deed.

Paul also declined to provide super fund information to Gayle until ordered by the court and resolved that by reason of Anthony’s conduct in not copying his nomination to Paul, neither Anthony’s estate nor Gayle should be paid any benefit from the fund.

Not surprisingly Gayle sought relief from the court by way of an order declaring that the nomination to be valid and removing Paul and Mark as trustees.

The contest came before Justice Glenn Martin who concluded that the binding nomination was invalid because it had not been given to Paul as trustee after it had been made because the terms of the deed required nominations to be given to all trustees.

He did not accept Gayle’s argument that the nomination could be valid so long as Anthony as one of the trustees had acknowledged its receipt because the Deed specified that “notice to one of the trustees is not notice to all of them”.

Paul and Mark were less successful though on the issue of whether they should be removed as trustees.

Justice Martin first held that Mark had not been validly added as a trustee of the fund, finding that such appointment had – also contrary to the terms of the deed – purportedly occurred before he had been granted probate of the will.

He also concluded the “behaviour of Paul … is, at least, concerning” and his decision that Gayle, should be deprived of Anthony’s entire death benefit because of his non-compliance “was “not a decision that one might expect to be made by a trustee acting rationally”.

He ordered that Paul and Mark should be removed as trustees.

What remains to be determined is whether the independent trustees proposed by Gayle – who he agreed were suitably qualified and independent – could be appointed to a SMSF of which they were not members.

Williams v Williams & Anor [2023] QSC 90 Martin SJA, 5 May 2023

Dementia will & multiple beneficiary asset distribution gets court approval 14 Jun 2023, 3:37 pm

Courts have the power in many cases to make wills on behalf of people who lack the legal capacity to do so for example by reason of dementia.

The Supreme Court of South Australia was recently asked by the Public Trustee of that State for orders approving and authorising the making of a will for Ross Snoswell, aged 88.

Ross was born in 1935 and lived his entire life in his parents’ home in Largs Bay, to the north-west of Adelaide on St Vincents Gulf, until he suffered a fall in 2018.

Ross had never married and had no children, but after the fall he could not return home alone. He took up residence with his long-term partner Margaret Gallary, having known her since his 20’s when they met at the Wonderland Dance Hall in Adelaide.

Margaret also had no children but her nephew Wayne, niece Selena and Selena’s husband Scott provided support to she and Ross over the years.

After Ross’s father died in 1971, his mother Heloise transferred their Largs Bay home  into her and Ross’s name as joint tenants, in consideration of “love and affection” without any payment from Ross.

When Heloise died in 1988 Ross became sole owner of Largs Bay property, denying his only sibling Rhonda any beneficial interest in it.

Rhonda considered legal action to gain a share the property but decided against it, not wanting to force Ross from the family home. Rhonda herself died in 2020 and was survived by her husband, Kingsley, and their children, Pamela Crouch and David Cammiss.

Unbeknown to all, Ross had significant assets in excess of $1M including at least one other residential investment property, in addition to Largs Bay.

Following his 2018 fall, Ross was diagnosed with vascular dementia and the Public Trustee of South Australia was appointed as his administrator. In 2021, Margaret and Selena were appointed limited guardians for healthcare and in home support services.

As Ross had no will, his beneficiaries under intestacy rules would either be Margaret – if she qualified as Ross’s spouse – or his niece Pamela and nephew David in equal shares if Margaret did not so qualify.

The Public Trustee considered that given the significant size of his estate and his multi-faceted family history, it should apply to the Court for authorisation to make Ross’s will.

They filed proceedings in which Ross was named as respondent and was represented by a solicitor Mark Jordan as his litigation guardian. Margaret, Pamela and David were also parties to the proceedings.

The Court cannot make a will for someone if they have the capacity to do so themselves. Her honour, Justice Anne Bampton, agreed with the position taken by all parties that Ross lacked capacity to make a will and was unlikely to regain it.

The court thus had the requisite power to make Ross’s will, but her honour had to consider whether any proposed will accurately reflected his likely intentions if he were in the position of having the legal capacity that he lacked.

Ross had never made any wills, but his litigation guardian Jordan swore of several discussions when Ross had expressed his desires regarding his estate.

It was clear Ross wanted to gift the Largs Bay property to Margaret, and $30,000 to his neighbour Rod Hunter.

Ross had also indicated to Jordan that he did not want Pamela and David to get anything from his estate but that Selena, Scott and Wayne should receive a benefit in recognition of the support and assistance they had provided to him and Margaret.

Because of some inconsistences in the evidence and differing accounts as to his relationship with Pamela and David, her honour concluded his feelings towards them “may have softened or mellowed over time if he had not lost testamentary capacity and was not open to influence from others”.

The Public Trustee proposed a will in which Margaret was the executor, $30k was left to Rod, $50,000 to each of Pamela and Rod, the Largs Bay property for Margaret, and then 50% of the residue to Margaret, 25% to Wayne, and 25% to Selena and Scott.

The guardian Jordan proposed a will in which the estate went 50% to Margaret, and the remaining 50% to Selena, Wayne, and charity. A third version – put up by Pamela and David – had Pamela and David receiving the Largs Bay property, and the residue distributed as per the will proposed by the Public Trustee.

Justice Bampton determined that Ross clearly wanted to benefit Margaret and Rod as well as Selena, Scott and Wayne who had provided support, he would likely have considered  gifts to Pamela and David “equal to approximately half the value of the Largs Bay property” if he had capacity, was aware he had “ample assets” and was uninfluenced by others.

Accordingly her honour authorised a will be made  appointing the Public Trustee as executor and giving Largs Bay to Margaret. Then after the $30,000 gift to neighbour Rod, the residue was to be divided by way of 50% to Margaret, $250,000 to each of Pamela and David, and then 50% of the balance to Selena and Scott and the other 50% to Wayne.

Other states including Queensland have similar legislative provisions for wills to be made by the court when a person is unable to do for so themselves.

In the Estate of Snoswell [2023] SASC 35 Bampton J, 10 March 2023

Court approves start of further provision claim delayed 21 years 13 Jun 2023, 10:15 pm

In what circumstances can an estate can defeat the rules of survivorship that ordinarily transfer full ownership of joint property to the surviving joint owner in the event of the death of the other?

The Supreme Court of NSW was recently petitioned by a beneficiary of an estate to achieve exactly that result.

Sijia Guo brought a claim for provision out of the estate of her late mother Wei Hong who disappeared in April 2001 never to be seen again. Under intestacy rules her entire estate passed to her spouse, leaving nothing for her adult daughter.

She had been born in China in 1995 to Wei Hong and her former husband Jin Hua Guo. Her parents divorced in 1999, with Wei Hong moving to Australia to rekindle a former relationship with Yong Wei whom she eventually married in March 2000.

In October 2000, Yong signed up the $470,000 buy of a home at Carlingford in Sydney’s north-west in joint names with Wei Hong and paid a 10% deposit. Wei Hong did not sign the contract – she was overseas – but advanced the whole of the balance purchase price from funds she had transferred from China.

She disappeared just after settlement of the purchase, after being dropped by Yong at a Carlingford bus stop to get to Sydney airport to take a flight to see Sijia who had stayed in China with her grandparents since her mother’s departure to Australia.

It wasn’t until 2012 that the NSW State Coroner declared that Wei Hong Guo couldn’t be found dead or alive, and 2021 that the court declared that she was no longer alive thereby allowing Sijia’s provision claim to proceed.

Notwithstanding registration of the transmission of the property into Yong’s name had occurred long ago, Sijia sought an order that the deceased’s interest in the home be brought back into the estate for the purposes of that claim.

If Sijia was successful, the entire property and rent accrued would be brought back into Wei Hong’s estate. Otherwise, only half the Carlingford property and accrued rents would be regarded as part of the deceased’s notional estate. As the value of the Carlingford property was $1.7M and accrued rents were $330,000, the difference in outcomes was significant.

A resulting trust – Sijia contended – existed over her mother’s interest in the home despite the joint tenancy by reason of the couple’s intentions.

The trust arose – so her argument ran – because her mother had no intention to hold the property as joint tenants and had contributed all of the purchase price.

The evidence submitted by both parties took two forms: financial evidence predominantly from bank statements and property documents in support of the contributions made towards the purchase and by whom, and secondly correspondence, documents and recollections in relation to the intentions of the purchasers.

Justice Francois Kunc noted that such evidence was sparse due to the time that had elapsed, and that Wei Hong was no longer available to give evidence.

Despite the passage of time, gaps in memories and documentary evidence, his honour was able to conclude that $335,000 had been contributed by Wei Hong to the Carlingford property purchase but he was unable to ascertain who had provided the balance.

Yong Wei was not a reliable witness, in his honour’s view. He rejected Yong’s claims that the deceased had contributed nothing.

Sijia submitted letters from her mother to family members at the time that spoke of the purchase where she spoke of “my new home” that “I bought”, arguing that this showed that her mother’s intention was that the property was to be “hers”.

The same correspondence however also showed that Wei Hong spoke glowingly of her relationship with Yong, perhaps indicating the property was being purchased as a benefit to of their marriage, regardless of the contributions made by either of them.

Ultimately, his honour concluded Sijia had not proved, on the balance of probabilities, the purchase was other than as joint tenants. Thus no resulting trust had arisen, he ruled.

The court rejected Yong’s additional contention that Sijia’s further provision claim against what remained in the estate should be barred by reason of delay.

Sijia’s youth when her mother disappeared, her location in China as she grew up, the duration of the police investigation and coronial enquiry, all combined to provide a reasonable explanation for delay such that it would be unjust – in his view – not to allow the proceedings to be brought, regardless of the difficulties with evidence and memories that occurred.

This case highlights the importance of intention when considering whether a property recorded as held as joint tenants should in fact be regarded otherwise, and also the barriers to claiming otherwise especially when one of the joint owners has died.

Guo v Gao (No 2) [2023] NSWSC 231 Kunc J, 17 March 2023 Read case