Estate Litigation

Woman's disappearance at sea highlights inadequate Queensland laws for missing people

Four years after a Queensland woman disappeared at sea a Brisbane lawyer trying to highlight flaws in the state’s estate laws is frustrated that nothing has been done to enact laws for managing a missing person’s estate.

Brisbane estate litigation lawyer Charlie Young says there is a serious gap in the state’s estate laws with no legislation addressing what may happen to the assets and financial affairs of a person who is missing.

Charity avoids $230,000 costs order in estate dispute

In the recent decision of Wright v Wright [2016] QDC 74, the Royal Children’s Hospital Foundation (“CHF”) was very nearly disadvantaged to the tune of $230,000 when the Court considered making an adverse costs order against it.

In Wright, the deceased’s Will gifted a pension benefit (worth approximately $630,000) to CHF and the balance of his estate (worth approximately $1.1 million) to his two siblings. His Will made no provision for his two adult children, so they made an application against the estate for further provision.

Strict test for testamentary capacity

In the recent decision of MPL [2016] QSC 61, the Supreme Court of Queensland has provided an important reminder of the relevant test to establish whether or not a person has testamentary capacity to make a Will and the importance of each limb of that test.

MPL is a 24 year old male who suffered a traumatic brain injury in 2012. As a result of the accident, he received a compensation payment in excess of $7 million.

In February 2016, he gave instructions to a solicitor to prepare a Will and he signed that Will.

Clarification for legal personal representatives regarding their duties and obligations in respect of superannuation entitlements

In the decision of Brine v Carter [2015] SASC 205, the South Australian Supreme Court has ruled that the obligation of Administrators to claim superannuation and death benefit entitlements for the benefit of the estate (which was established in McIntosh v McIntosh [2014] QSC 99) applies equally to executors appointed under a Will.

Parties ordered to pay their own costs of estate dispute

In the recent decision of Carter v Brine (No 2) [2016] SASC 36, the Supreme Court of South Australia ordered that an applicant and beneficiaries involved in a complex estate challenge must pay their own legal costs of the dispute, instead of having their costs paid by the estate or an opposing party.

In Brine (No 1), the deceased’s de facto spouse made various claims against the deceased’s estate in relation to interests in property and to receive increased provision. The beneficiaries of the estate were heavily involved in and defended the claim made by her.

Interpreting a Will: description or condition?

In the recent Western Australian case of Blyth v Wilken [2015] WASC 486, the Court was required to interpret the Will of a deceased person to determine if his former de facto spouse was entitled to receive a gift left to her.

The deceased’s Will stated:

“I give devise and bequest the rest and residue of my real and personal estate … upon trust for my de facto wife Kathrine Mary Murray absolutely …”

Fighting families diminish value of estate in court

In the recent decision of Hoskin [2016] QSC 31, the Queensland Supreme Court was faced with the unique task of determining the proper distribution of the estate of a person whose identity could not be confirmed.

Phyllis Hoskin died in 2009. She had no spouse or children and did not leave a Will. The Public Trustee was appointed as the administrator of her estate and had the task of distributing her $1.2 million assets to her next of kin, in accordance with the rules of intestacy.

Court confirms requirement to establish financial need in family provision applications

The recent Queensland Court of Appeal decision of Abrahams v Abrahams [2015] QCA 286 has highlighted the uncertainty and difficulties for an applicant when making an application for further provision against a deceased estate.

In Abrahams, a claim for further provision was made in the District Court by the Public Trustee on behalf of the deceased’s disabled son (“the Son”), who had severe down syndrome and had not been left any gift in his father’s Will.

iPhone Will Saga Has Sequel in Court

The lawyers responsible for a legal first in Australia – having the Court declare a Will on an iPhone to be valid- have gone back to court for another win over bequest details in what’s become known as the “iWill”.

In what was a legal first in Australia, Brisbane estate litigation lawyer Charlie Young successfully argued to the Supreme Court in Brisbane in 2013 that a Will typed into a mobile phone before the owner took his own life, was legally valid.


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