JUDGMENTS

Ruskey-Fleming v Cook [2013] QSC 142

Kent 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.

Manly v The Public Trustee of Qld - [2008] QCA 198

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.

Sadleir v Kähler & Ors [2018] QSC 67

The Deceased died leaving a handwritten document which purported to be his last Will. In the first instance, the Court was required to make a determination that the handwritten document was the Deceased’s last valid Will even though the document did not strictly comply with the legal requirements of a Will.

After determining the handwritten document was a valid Will, the Court was asked to construe the Will to determine the meaning of a provision within the Will which disposed of the Deceased’s estate. Here, a clause written by the Deceased contained a condition which had to be met in order for the clause to come into effect. The condition was never technically fulfilled and therefore the Deceased’s niece sought a declaration from the Court as to the meaning of that clause in the Will so the estate could be distributed.

The Estate Lawyers were successful in arguing that the estate should be distributed to the Deceased’s niece.

Re Mac [2020] QSC 342

The Deceased died without a Will leaving a small estate. Paul acted for the Applicant, who was the Deceased’s de facto spouse, believed that the Deceased had four children from a marriage in Vietnam however there was no clear evidence of how many, if any, of the Deceased’s children survived or predeceased him. The Applicant sought to acquire the Deceased’s interest in the home they owned together as tenants in common.

The Court was asked to determine whether the Deceased’s de facto spouse was entitled to have the Deceased’s half share of their home transferred to her on payment of the transfer value in circumstances where the Applicant did not have any funds available to her to pay the transfer value and the Applicant was not able to locate the Deceased’s children.

The Court found that the Applicant was able to to have the Deceased’s interest in the property transferred to her by ‘setting off’ the transfer value against her overall entitlement from the Deceased’s estate.

Forster v Forster [2022] QSC 30

The Deceased and his second wife made a Mutual Will Agreement. Both the Deceased and his wife had children from their previous marriages. The Deceased died, resulting in his wife receiving his entire estate as well as all of his superannuation entitlements.

The Mutual Will Agreement contained a clause requiring the survivor to refrain from taking “any action intended to substantially diminish the assets which would otherwise comprise her estate… other than what is reasonably consistent with the maintenance of reasonable standard of living.” The Deceased’s son filed an Application seeking disclosure of his step-mother’s personal assets as well as disclosure of the assets and liabilities of the Deceased’s estate so he could satisfy himself that this clause of the Mutual Will Agreement was being complied with.

The Court found that, so long as the Deceased’s wife makes her Will in the same terms as foreshadowed in the Mutual Will Agreement, the Deceased’s wife could not be compelled to provide the disclosure sought by the Deceased’s son.

Public Trustee of Queensland v Ferris & Ors [2024] QSC 103

In this case, The Public Trustee were seeking that the Court make what is known as a ‘Benjamin Order’, being an Order that they are justified in distributing the Deceased’s estate to the person who appears to be entitled to it, despite some relevant information being unable to be obtained.

The Deceased was born in 1923 and died in 2013 without leaving a valid Will. The Deceased did not leave a spouse or any children and was not survived by his parents. The Public Trustee was appointed by the Court as the Administrator of the Deceased’s estate so the estate could be distributed in accordance with the rules of intestacy. These rules apply when a Deceased person dies without a valid Will.

The Deceased had a sibling who was adopted out of the family in accordance with Slovenian law in 1939. The Court had to consider whether the adoption under Slovenian law affected the right of succession under Queensland law. If the Slovenian adoption was treated as a legal adoption pursuant to Queensland law, then the Deceased’s brother would not inherit the Deceased’s estate. Conversely, if the adoption was found to not affect the right of succession under Queensland law, then the Deceased’s brother would be entitled to his estate.

The Court found that the Deceased’s brother, who died in 2001, was entitled to inherit the Deceased’s estate pursuant to the rules of intestacy in Queensland. As the Deceased’s brother had already died, his surviving wife was entitled to receive the Deceased’s estate as Executor of the estate of her late husband.

Re Negrean; Borbil v Borbil [2025] QSC 66

The deceased died leaving a self-made Will. Due to English not being the testator’s primary language, the Will is filled with grammatical and sensical errors. The clause which was disputed reads as follows:

“I would ask that any money in my bank account to use for bills, funeral costs and repairs to house at 3 Falstaff Street Sunnybank Hills, Queensland 4109. Which is my son John Negrean (Ioan Borbil) principal place of residence and I wish it to continue being his home for as long as he wanted to be.”

The main dispute was whether this clause created a right to reside (meaning that Mr Negrean could live in the property as long as he wished) or a life interest (meaning Mr Negrean could deal with that property in any such way he pleased).

The Court considered that the clause may confer a right to reside, however, it did not create any life interest for Mr Negrean to begin renting rooms out and doing various other things he intended to use the property for. It was also considered that even if a right to reside was applicable, the right (existing or not) had ended upon Mr Negrean periodically vacating the property and/or when he began renting out rooms in the property.

In summary, it was determined that the will:

1. did not create any life interest in the property in favour of Mr Negrean; and

2. did not create any right of residence in the property in favour of Mr Negrean, and if it did, that right of residence was terminated on him leaving the property for a period of time.

This is why it is extremely important to ensure that your estate plan is drafted professionally by a qualified succession lawyer, so that you can ensure that there is no ambiguity as to how your Will is put into effect on your passing.

Re Whitehead [2026] QSC 48

If a person does not have testamentary capacity, they generally cannot create new testamentary documents. However, there are limited circumstances where the Court can intervene and approve a ‘Statutory Will’ if an individual has lost capacity, and a potential new Will is proposed that would protect that testator’s interests. In this instance, the Court considered the appropriate test to apply was whether the proposed Will is a will the incapacitated person “probably would” make if he had testamentary capacity.

In this matter: 

1. WJ was diagnosed with Parkinsons Disease in 2016. Thereafter, he was deemed to lack testametary capacity;

2. WJ and his former de-facto spouse (DF) separated in 2025;

3. As at the date of the hearing, DF was WJ’s appointed attorney for health matters and was also named as a beneficiary under WJ’s Will;

4. WJ had indicated numerous times following his separation that he intended to create a new Will, however, due to his lack of capacity, he was not able to do so;

5. The financial attorneys for WJ (who were his financial advisors during his lifetime and the executors of his last six Wills) brought an application for a Statutory Will to be created, which would essentially write out DF as a beneficiary. They also sought the revocation of DF’s appointment as WJ’s attorney for health matters.

The Court considered that it is reasonable that, in the circumstances of separation, a testator would not intentionally keep their ex-spouse as an attorney, nor would they intend to give that person a provision from their estate. The Court also considered that DF was largely financially independent, and as such, no reasonable testator would give such a person a provision under their Will following separation.

 The Court therefore made Orders that:

1. The proposed Statutory Will which removed DF as a beneficiary was approved; and

2. DF would no longer be an attorney for WJ.

This case serves as an important reminder to ensure that your estate plan is always up to date and reflective of your current circumstances to prevent the need for Court intervention.