Life Insurance Nomination found to be an informal will

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 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.

Selig v Selig [2024] QSC 189 Crowley J, 26 August 2024

 

source https://qldestatelawyers.com.au/life-insurance-nomination-found-to-be-an-informal-will/

Daughter kills abusive father: children denied a will benefit

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 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.

Savage v Savage & Ors [2023] QSC 280 Burns J, 8 December 2023

source https://qldestatelawyers.com.au/daughter-kills-abusive-father-children-denied-a-will-benefit/

Charities brawl over willmaker’s intention to gift his estate

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.

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.

In the Will of James Edward O’Connor (deceased); Ex parte Lennox [2024] QSC 224 Martin SJA, 20 August 2024 

source https://qldestatelawyers.com.au/charities-brawl-over-willmakers-intention-to-bequest-his-estate/