DIY unsigned will: witness accounts differ but doc declared valid

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

source https://qldestatelawyers.com.au/diy-unsigned-will-witness-accounts-differ-but-doc-declared-valid/

Insufficient excuse for estrangement; further provision refused

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

source https://qldestatelawyers.com.au/insufficient-excuse-for-estrangement-further-provision-refused/

Right to reside proves baseless; beneficiary to repay lost rent

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

source https://qldestatelawyers.com.au/right-to-reside-proves-baseless-beneficiary-to-repay-lost-rent/

Invalid binding nomination: trustees should pay spouse regardless

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

source https://qldestatelawyers.com.au/invalid-binding-nomination-trustees-should-pay-spouse-regardless/

Court approves dementia will asset distribution for wealthy octogenarian

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 at his parents’ home in Largs Bay, a suburb in 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 and began living 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 he 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

source https://qldestatelawyers.com.au/court-approves-dementia-will-asset-distribution-for-wealthy-octogenarian/

Court approves start of further provision claim delayed 21 years

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

source https://qldestatelawyers.com.au/court-approves-start-of-further-provision-claim-delayed-21-years/

Court refuses undue influence estate caveat removal

A caveat can be lodged in the court registry against the issue of a grant of probate or letters of administration. The applicant for the grant then needs to decide whether to apply for an estate caveat removal order or to go to a trial to have the deficiencies alleged by the caveator decided. Similar measures apply in all Australian states.

A Victorian court was recently asked to remove two caveats lodged in the context of allegations of testamentary incapacity and undue influence over the period during which a testator made two wills.

Clarice Robustelle died aged 91 in March 2021, having never been married and with no children.

Clarice had been actively involved in farming on her property near Wangaratta for many years. From 2004 she was assisted in those endeavours by Stephen Atkins and his son Bryden who were allowed to occupy another residence on Clarice’s property.

Other than some small pecuniary gifts, Clarice’s will in March 2018 left the bulk of her estate to Stephen, or his son Bryden if the former did not survive her.

Steven died in February 2020.

Bryden applied for a grant of letters of administration for Clarice’s 2018 will.  At the time of the application, the estate was valued at approximately $7.25m and at the time of hearing, at $8.6m.

Before a grant was issued, Clarice’s niece Jeanette Clarke filed a caveat against the grant on the basis that Clarice lacked the requisite testamentary capacity to make the 2018 will and that – alternatively – she made the will as a result of Stephen’s undue influence.

Jeanette sought to impugn that will and an earlier will made in August 2012, also on the ground of Stephen’s alleged undue influence.

In response, Bryden promptly applied to the Supreme Court for removal of the caveat on the basis that Jeanette – not being a beneficiary under either will – had no standing to make it.

Justice Kate McMillan observed though – when the matter came before her – that Jeanette would have standing if she sought to propound a will made in July 2008 under which she was the major beneficiary. She directed Bryden to also seek a grant of the 2012 will, in the alternative.

As expected, Jeanette caveated that will thereby allowing consideration of Bryden’s application for the removal to the caveats in the context of the validity of all wills.

That argument came before Justice Steven Moore who had to decide whether Jeanette had established a prima facie case sufficient enough to warrant full consideration and determination at a trial or whether the caveats should be summarily removed.

He noted Jeanette’s contention that Clarice’s cognitive abilities had been in long-term decline since 2012 when she reported difficulties remembering names, culminating in a VCAT declaration in 2017 (later revoked in 2018) that she was unable to make judgements about herself or her assets.

He also pondered allegations of Stephen’s coercive conduct – starting in 2006 and continuing until his death in 2020 – and whether they might establish Clarice was subject to his control when the 2018 and 2012 wills were made.

Bryden contested the allegations and asserted that they failed to prove actual coercion as opposed to a mere opportunity for coercion.

The court observed though that Jeanette – to successfully resist the removal of the caveats – did not have to prove the alleged coercive behaviour but rather, only had to establish a prima facie case.

His honour also concluded that evidence of mental disorder 9 months before the 2018 will was sufficient to warrant a trial in relation to that will’s validity.

He refused to order removal of the caveats and the dispute will go to trial where a judge will decide whether or not to accept each of Jeanette’s allegations.

Re Robustelle (No 2) [2023] VSC 72 Mooe J, 24 February 2023

 

source https://qldestatelawyers.com.au/court-refuses-undue-influence-estate-caveat-removal/