JUDGMENTS

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.

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.

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 was successful in arguing that the estate should be distributed to the Deceased’s niece.

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.

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.