The result of all estate and Will disputes will depend on the facts. Every family situation is different and so it is practically impossible to find an exact precedent which will apply to your family’s situation. Before you can make any determinations about your situation we would encourage you to speak with us so that we can provide you with some considered advices.

We have summarized some recent decisions from the Supreme Court of Queensland regarding Will and estate disputes which you may find interesting.

The Estate Lawyers successfully acted for a son of a deceased who refused to accept that his deceased father had capacity to make a Will in 2007. The Will was prepared by a solicitor based on instructions provided by the deceased’s daughter. The solicitor attended at the deceased’s nursing home and the Will was executed. The Estate Lawyers, on behalf of the son, were able to prove that even though the solicitor thought the deceased had capacity to make a Will, that the deceased did not, in fact, have capacity. The nursing home notes contained repeated references to the deceased being disorientated, confused and there were statements made by the deceased to the solicitor on the day the Will was signed which the son was able to prove were incorrect. Therefore the 2007 Will was set aside by the Supreme Court following a contested Trial and it was ordered that the deceased’s estate was to be administered in accordance with his earlier Will made in 2000.

The Deceased’s Will was disputed by one of his sons. The Deceased was a farmer. The Applicant was estranged from the Deceased and had no contact with him for at least 22 years. The Deceased’s other son had worked dutifully with the Deceased on the Deceased’s farming properties for almost 30 years. Aside from some minor bequests, this son was to receive the whole of the Deceased’s estate to the exclusion of the Applicant.

The Judge dismissed the Applicant’s claim for provision from the Deceased’s estate because the Judge thought that the Applicant’s case was not strong enough to justify the Court interfering with the Deceased’s Will. The Judge found it relevant that the Applicant had sufficient financial resources to support himself already and that it was not appropriate to make provision for the Applicant where there was a complete estrangement from the Deceased for an extended period.

The Applicant was the stepson of the Deceased. The estate was worth approximately $3 million and no provision was made for the Applicant in the Deceased’s Will. The Applicant’s father married the Deceased in 1979 when the Applicant was aged 10. The Applicant’s father died in 2003 and the Deceased inherited his estate which was worth nearly $1 million including super. The Applicant didn’t receive anything from his father’s estate. The Deceased had no natural children. The Applicant was her only stepchild. The Applicant never lived with the Deceased whilst she was married to his father.

The Applicant’s income was approximately $60,000 per annum. The Applicant was in a de facto relationship. He and his spouse had approximately $600,000 in assets over and above their liabilities. The Applicant’s relationship with his father and the Deceased was not strong. The Judge found that the Deceased felt no warmth or affection towards the Applicant and that they rarely saw each other after the Applicant’s father’s death. The Court still awarded the Applicant $900,000 from the Deceased’s estate.

The Applicant was a son of the Deceased. The Will left ½ of the Deceased’s estate to her daughter and the other ½ to be divided equally amongst the Applicant and his three sons equally. The Applicant was therefore entitled to approximately $450,000 from the estate which was worth approximately $3.6 million.

The Applicant had alcohol and drug problems but was endeavouring to stay clean. He owed his creditors approximately $230,000 and was on the verge of bankruptcy. The Deceased’s intention was to make sure her grandchildren received a benefit because she thought the Applicant would waste the money given to him. The grandchildren had suggested that any further provision for the Applicant be held in a trust so it couldn’t be spent by the Applicant.

The Judge found that the Applicant needed further money to secure his future accommodation. The Judge was not concerned that the first $230,000 paid to the Applicant would be used to pay back his creditors or that he may waste the money given to him. The Judge awarded a ¼ share of the estate to the Applicant. The Deceased’s daughter kept her ½ share of the estate and the Deceased’s three grandchildren had their benefits reduced from a 1/8th share each to a 1/12th share each respectively.

This decision involved the determination of the rights of two disappointed beneficiaries’ following the lawful exercise of a Power of Attorney which deprived them of their interest under the Deceased’s Will. The Deceased’s final Will made a specific bequest of a house to the two named beneficiaries. The Deceased lost capacity to handle her own financial affairs and was unable to make a new Will. The Deceased needed to move into a nursing home and so her Enduring Power of Attorney sold the house to pay for the nursing home bond.

Upon the Deceased’s death, the nursing home bond was returned to the Deceased’s estate. The question for the Court was whether the sale proceeds of the house should be provided to the people nominated as the beneficiaries for the house under the Will or whether the funds should be paid in accordance with the residue of the estate. The Judge ruled that the gift of the house had failed because the house had been lawfully sold. The refund of the nursing home bond was paid to the residuary beneficiaries and not the specific beneficiaries.

Prior to this decision, the law in Queensland was that if the sale proceeds of the house could be traced they would be paid to disappointed beneficiaries. The law following this decision is that a disappointed beneficiary has a right to apply to the Court seeking compensation for their losses due to the exercise of the Power of Attorney but the amount of compensation awarded, if any, is now at the Court’s discretion and not a fixed entitlement.

The Plaintiff sought to have the Deceased’s final Will set aside in favour of the Deceased’s prior Will. The Plaintiff’s claim was that the Deceased lacked testamentary capacity when his final Will was prepared and challenged the Deceased’s final Will.

The Deceased’s final Will was made seven months prior to his death. It divided his estate equally between the Deceased’s four siblings, six nephews and nieces and one third cousin. The previous Will was made eleven years earlier and divided the Deceased’s estate in equal shares between his four siblings only.

The Deceased’s Death Certificate listed dementia among the causes of death. The initial diagnosis of the Deceased’s dementia occurred five years before the preparation of his final Will. Expert medical reports were tendered at Trial which stated that the Deceased’s mental state when he gave the instructions for preparation of the last Will would have been inconsistent with him having testamentary capacity.

The Court also heard evidence that the Deceased had incorrectly described his familial relationship with the new beneficiaries named in the final Will and that the Deceased struggled to provide instructions to make the final Will because he also had speech and hearing impairments.

The Court found that the Deceased lacked testamentary capacity to make his final Will and ordered that it be set aside.

The Deceased made a Will which left specific bequests to various family members. The bulk of his estate was left to his wife. Unfortunately, the Deceased’s wife died eighteen months prior to the Deceased. After the Deceased’s death, his Executor applied for a Grant of Probate of the Will. The Court noted various pen and pencil notes on the Will made by the Deceased. These markings indicated that certain beneficiaries were to be “taken out” and that some bequests were to be changed. The markings did not make the initial terms of the Will unreadable and they were not signed by the Deceased.

The question for the Court was whether those markings should be included as part of the Deceased’s Will even though he didn’t sign them or have his signature witnessed as required by the Succession Act. The Court found that the markings made on the Will were not intended to constitute changes to the Will and that the changes were merely made by the Deceased in contemplation of changing his Will at some time in the future. They therefore did not apply and his Executor could disregard them during the administration of the estate.

The Deceased made a home made Will together with his wife. They left their estates to each other and then subsequently equally to their two sons. This Will was properly executed and witnessed.

Some six months later, the Deceased and his wife had a falling out with one of their sons. The Deceased and his wife made handwritten alterations to their Wills. They crossed one son’s name out and replaced it with their second son’s name. They then prepared a second Will which removed the first son. The second Will was signed by the Deceased and his wife, but was not witnessed in accordance with the requirements of the Succession Act. The Deceased and his wife stapled the new documents to the first Wills.

The wife died six months prior to the Deceased. Following the Deceased’s death, the Court was asked which Will should apply to his estate. The Court considered the intention of the Deceased and his wife when they had prepared the second Wills. It found that they had intended the second Wills, although not properly witnessed, to be their final Wills. As such, the Deceased’s estate was administered in accordance with the terms of the second Will.

The Deceased’s Will left his estate to his brothers in Spain but following the Deceased’s death, a woman brought a claim against his estate alleging that she had been in a de facto relationship with the Deceased for almost three years, that they had been engaged for more than two years and that the Deceased had cared for her children when she had travelled overseas for a short period. She also claimed that although the Deceased had his own home, he stayed with her most of the time. Her children supported her claim.

The Court heard from the friends of the Deceased that he lived alone and there was no indication to them from the Deceased that he was in a relationship. The Court heard evidence of a conversation with the Deceased from approximately 2 months prior to his death. The Deceased said that he was living by himself. A mutual friend of the woman and the Deceased provided verbal and photographic evidence that the children had stayed with the Deceased while the woman was overseas.

The telephone records indicated that the Deceased did know the woman and had plenty of contact with her by telephone from his own home for a period of 18 months prior to the Deceased’s death. No telephone contact existed between them before this time however. The Court found that if there had been a relationship between the Deceased and the woman, it did not meet the minimum length of time necessary to amount to a de-facto relationship which would enable the woman to succeed in her claim against his estate. As such, the Court dismissed her application.

Kent acted in this matter which was heard in both the Supreme Court and then in the Court of Appeal. Kent acted for the three sons of the Deceased who successfully opposed the claim of their step-mother. Their step-mother brought an application to the Court claiming further provision from their Father’s estate.

The Deceased’s Will left small specific bequests of furniture and other personal items to his sons and his wife. He then split the rest of his estate in four equal shares between his three sons and his wife.

The Deceased’s wife filed Court proceedings and sought that the whole of the estate be provided to her so that the sons would be left with nothing.

The Deceased met his wife by letter. She was a nurse who resided overseas. She was younger than the Deceased’s sons. The sons claimed and the Court agreed that the Deceased and his wife reached an agreement that she would immigrate to Australia and marry the Deceased and then care for him in his latter years. In exchange, upon the Deceased’s death, the wife would receive Australian residency, a Veteran’s Widow Pension and a one quarter share of the Deceased’s estate. The Deceased died four years after the marriage.

The Supreme Court dismissed the wife’s Application for further provision from the estate. The wife’s appeal to the Court of Appeal was dismissed. Both the Supreme Court and the Court of Appeal considered:

  1. The status of marriage. They determined that the marriage had not been a sham, but had been one of mutual convenience;
  2. The agreement made prior to marriage. The wife received what she had been promised by the Deceased and she should have had no reasonable expectation of receiving more;
  3. The wife’s contribution to the marital asset pool was minimal;
  4. The relatively short length of the marriage;
  5. The needs of each of the Deceased’s sons; and
  6. The small size of the estate.
    This decision is now one of the leading authorities in Will disputes. It is regularly cited in subsequent Judgments as authority for what a Deceased’s person’s wife should receive in the event of a short marriage.