Contesting a Will in Queensland

Introduction

The words contesting a will refer to a family provision claim, not challenging a Will or a Will dispute. The law relating to contesting a Will in each State of Australia is different.

The following is a summary of fundamental information that any interested person will find helpful if contemplating a family provision claim in Queensland:


1. Claiming in QLD.

A claim can only be made in Queensland if either:

  • a) There is real estate property owned by the deceased situated in Queensland; and/or
  • b) The deceased was domiciled (living permanently) in Queensland at the date of his or her death and owned personal property anywhere.

2. Obtaining a copy of the Will.

Pursuant to Section 33Z(4) of the Succession Act 1981 (QLD) the following persons are entitled to inspect a Will of the deceased:

  • a) any person mentioned in the will;
  • b) any person mentioned in an earlier will as a beneficiary;
  • c) spouse, parent or issue of the deceased;
  • d) any person who would have been entitled to a share if the estate if the deceased died intestate;
  • e) parent/guardian of a minor mentioned in the will or who would have been entitled to a share if the deceased died intestate;
  • f) creditor or person with a claim against the estate;
  • g) a person who may apply for an order under s41 (NOTE: s41 – estate of a deceased person liable for maintenance).

3. When there is no will in QLD.

The legal term when the deceased died without a Will is that the decease died “Intestate”.

In QLD, the list of beneficiaries when there is no Will are as follows:

  • 1. If survived by spouse/s and no issue then the spouse is entitled to the entire estate. If more than one spouse then the estate is divided equally, unless an order of the court of agreement states otherwise.
  • 2. If survived by spouse/s and if there is only one spouse, then the spouse is entitled to:-
    • – $150,000.00 and household chattels; and
    • – The following part of the balance of the estate;
      • If there is only one child of the deceased who is alive or if they died leaving a child who survived the deceased, then the spouse receives 1/2 and the child receives 1/2;
      • If there is more than one child, then 1/3 to the spouse and the remainder 2/3 to be divided equally between the children.
  • 3. If survived by multiple spouses then the spouses are entitled to:-
    • – $150,000.00 and household chattels;
    • – The remainder of the estate as follows:
      • If there is a child of the deceased who is alive or if they died leaving a child who survived the deceased, then the spouse/s equally share 1/2 of the estate;
      • If there is more than one child then the spouses equally share 1/3 of the estate and the remaining 2/3 equally shared between the children;
    • – Children of the intestate are entitled to the balance of the estate.
    • – The spouses’ entitlement is to be divided between them equally unless an order of the court or agreement states otherwise
  • 4. If survived by issue only then the issue is entitled to the entire estate as follows;
    • – If all issue survived, then the estate is divided up equally between them;
    • – If some issue dies, then their share is taken by their surviving children.
  • 5. Right of spouse to acquire property:
    • – The spouse of an intestate has the right to acquire any of the property that belonged to the deceased. The purchase price paid for the property is firstly paid from the spouse’s entitlement in the estate and if sufficient then from their own resources. The spouse may acquire any real estate or personal estate such as a car, boat or shares.
  • 6. If survived by no spouse or issue then the estate is divided in the following order:
    • a) Parents in equal shares or all to the surviving parent;
    • b) Surviving siblings (half or whole blood) in equal shares – if a sibling has died then their child would receive their share;
    • c) Nephews or nieces of the deceased;
    • d) Grandparents in equal shares or surviving grandparent;
    • e) Surviving aunts and uncles in equal shares; and
    • f) First cousins.
  • 7. If survived by no relatives then The Crown is entitled to the entire estate.

4. The time limit to contest a Will in QLD.

Pursuant to the Succession Act 1981, ss 41(8) and 44(3) the time limit in which to make a claim is within 9 months of the date of death (but the estate may be distributed 6 months after the date of death, unless notice of intended application is given).

5. Eligibility to contest a will in QLD.

To receive an order for provision or further provision you must be an eligible person/applicant.

Pursuant to Section 40 and 41(1) of the Succession Act 1981 (QLD) the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person in QLD:

  • a) the wife or husband of the deceased at the time of death;
  • b) de-facto partner of deceased at time of death (requires 2 years);
  • c) former legal spouse (must not be remarried and be receiving or entitled to maintenance OR be a parent of minor child of deceased and dependent at date of death);
  • d) child of the deceased;
  • e) step-child of the deceased (extends the definition to where step-child’s parent predeceases);
  • f) parent (if dependent at date of deceased’s death);
  • g) dependent of the deceased at the time of death (maintained by the deceased at the time of death and either a parent of deceased, parent of a child of deceased or person under 18);

*Under Succession Act 1981, s 40 a former de-facto spouse (NOT EXPRESSLY LISTED but may be eligible if parent of minor child of deceased and dependent at date of death);

*Under Succession Act 1981, s 40 sibling of deceased (NOT EXPRESSLY LISTED but may be eligible if the sibling is a dependent and under 18).

6. The evidence the Court takes into consideration in QLD.

The Court takes the following evidence into consideration:

  • a) any family or other relationship between the applicant and the deceased (including the nature and the duration of the relationship);
  • b) any obligation or responsibilities the deceased had to the applicant or beneficiary;
  • c) the nature and extent of the deceased’s estate and liabilities;
  • d) the financial resources (including earning capacity) and financial needs of the applicant (both present and future), any other applicant or beneficiary;
  • e) the financial circumstances of another person the applicant is cohabiting with;
  • f) any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary in existence at the time of the hearing;
  • g) the applicant’s age at the time of the hearing;
  • h) any contribution (financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate or the welfare of the deceased or family of the deceased for which adequate consideration was not received by the applicant;
  • i) any provision made for the applicant by the deceased during the deceased’s lifetime or made from the estate;
  • j) any evidence of testamentary intentions of the deceased, including evidence of statements made by the deceased;
  • k) whether the applicant was being maintained by the deceased before the deceased’s death and (if the court considers it relevant) the extent to which and basis on which the deceased did so;
  • l) whether any other person is liable to support the applicant;
  • m) the character and conduct of the applicant before and after the deceased’s date of death;
  • n) the conduct of any other person before and after the deceased’s date of death;
  • o) any relevant Aboriginal or Torres Strait Islander Customary Law;
  • p) any other matter the Court considers relevant, including matters in existence at the time the application is being considered.

7. When you don’t live in QLD.

Where you personally live has no bearing on your claim. The important factor is that the deceased lived in Queensland and the deceased owned assets in Queensland. A claimant can very easily make a claim from another State without leaving his or her front door. This is a common and frequent situation. What you don’t want is a lawyer acting for you without a thorough knowledge of the law in the State where you are claiming.

8. When you believe the Will is not valid in QLD.

You may be able to challenge the validity of a Will if you believe the Will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe there was undue influence placed upon the Will maker in the will making process or if there was fraud involved. To research the Intestacy rules for Queensland please refer to question 3.

9. When where and how do you start in QLD.

When. Because estate funds can sometimes be sold, transferred or spent, if you are going to make a claim you should do so without delay. Otherwise you may have no assets or funds to claim upon.

Where. You may call any of our offices for assistance. We are also available after normal business hours.

How. We will talk to you about your case and depending upon your wishes immediately attempt to settle your claim before any court action is considered. If the persons named in the Will refuse to settle we will commence court proceeding for you.

For a free case assessment call 1800 90 20 90

10. The legal fees in QLD.

Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant the claimant’s costs will be paid out of the estate.

If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings. For that reason alone we recommended you should only seek advice from a specialist lawyer in this field of law.

There is a lot more detail to discuss with you about costs and the variety of costs agreements available to you in these cases including our guaranteed “No Win No Fees” policy.

For a free case assessment call 1800 90 20 90



11. Would you please summarise the sections of the Queensland Succession Act 1981 (in force since 1 July 2009) relevant to contesting a will pursuant to family provision “rules” in that state.

Q. Who is eligible to make an application to the Supreme Court for provisions out of an estate of a deceased person?

A. The deceased’s spouse, child or dependant

Q. What does ‘child’ mean in this section?

A. Child means, in relation to a deceased person, any child, stepchild or adopted child of that person.

Q. What does ‘dependant’ mean in this section?

A. Dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—

  • a. a parent of that deceased person; or
  • b. the parent of a surviving child under the age of 18 years of that deceased person; or
  • c. a person under the age of 18 years.
Q. What does ‘stepchild’ mean in this section?

A. A person is a stepchild of a deceased person if:

  • a. the person is the child of a spouse of the deceased person; and
  • b. a relationship of stepchild and step-parent between the person and the deceased person did not stop prior to the death of the deceased (NOTE: the relationship of stepchild and step-parent would cease on the divorce of the deceased person and the stepchild’s parent)

To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because–

  • a. the stepchild’s parent died before the deceased person, if the deceased person’s marriage to the parent subsisted when the parent died; or
  • b. the deceased person remarried after the death of the stepchild’s parent, if the deceased person’s marriage to the parent subsisted when the parent died.
Q. Does maintenance for a spouse, child or dependant need to be provided upon death of the person?

A. If adequate provisions are not made in the will or from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, order that such provisions are made.

Q. Who may apply to the court for family provision in Queensland?

A. If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

Q. What main factors does the court consider when assessing the need for maintenance of a dependant?

A. The court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

Q. What are the main discretionary powers of the court in relation to making family provision orders (maintenance orders)?

A. The court may–

  • a. attach such conditions to the order as it thinks fit; or
  • b. if it thinks fit–by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
  • c. refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
Q. How is the incidence of payment(s) ordered by the court to be determined?

A. Unless the court orders otherwise, the incidence of payment(s) shall fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court.

Q. Can the court exonerate any part of the estate of the deceased person from the incidence of the order? If so how?

A. The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party.

Q. What are the courts powers in relation to fixing periodic or lump sum payments?

A. The court may at any time fix a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested.

Furthermore the court may exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, to whom such lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable.

Q. Concerning the question of limitations, how is an application to be treated?

A. Where an application has been filed on behalf of any person it may be treated by the court as an application on behalf of all persons who might apply, for the purpose of limitation of liability.

Q. Who may for an application on behalf of a person under a legal incapacity?
  • The personal representative or
  • The public trustee or
  • The chief executive of the department in which the Child Protection Act 1999 is administered or
  • Any person acting as the litigation guardian of a person under a legal incapacity
Q. Can such listed person(s) apply to the court for advice or directions as to whether the person under a legal incapacity ought so to apply? If yes, how is this treated by the court?

A. Yes. The personal representative or the public trustee or the chief executive of the department in which the Child Protection Act 1999 is administered, or any person acting as the litigation guardian of a person under a legal incapacity, may apply on behalf of a person under a legal incapacity in any case where such person might apply, or may apply to the court for advice or directions as to whether the person ought so to apply; and, in the latter case, the court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of limitation.

Q. What restrictions are on an application under this part (section 41)?

A. An application has to be instituted within 9 months after the death of the deceased.

Q. Can the court hear and determine an application under this part although a grant has not been made?

A. Yes. Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.

Q. Can a person applying for a declaration of paternity under the provisions of the Status of Children Act 1978 proceed with an application for maintenance or family provision?

A. Yes, but only when such a declaration of paternity has been obtained

Q. Will the court assist in such applications?

A. Yes, the court may give such directions and act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under the Status of Children Act 1978 and this part.

Q. How does an order effect the estate?

A. Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order.

Q. Does any mortgage, charge or assignment made before or after the order have any force, validity or effect?

A. No mortgage, charge or assignment of any kind whatsoever of or over such provision, made before the order is made, shall be of any force, validity or effect, and no such mortgage, charge or assignment made after the order is made shall be of any force, validity or effect unless made with the permission of the court.

Q. How is a donatio mortis causa (gift on the occasion of death) made by the deceased to be treated?

A. Any sum of money or other property received by any person as a donatio mortis causa shall be treated as part of the estate of the deceased.

Q. Will any person be held liable for having paid that sum of money or transferred that other property in order to give effect to the donatio mortis causa?

A. No. Where any sum of money or other property is received by any person as a donatio mortis causa made by the deceased person that sum of money or that other property shall be treated for the purposes of this part as part of the estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa.

Q. Does the court have discretion to alter its orders?

A. Where the court has ordered a periodical payment or has ordered any part of an estate or a lump sum to be invested for the benefit of any person, it may increase or reduce the provision so made or discharge, vary or suspend the order, or make such other order as is just in the circumstances.

Q. What factors does the court consider in whether or not to alter an order?

A. On the application of any person the Court may inquire into whether any party deriving benefit under the order is still living or has become possessed of or entitled to provisions for the party’s proper maintenance or support. The court then assesses the adequacy of the provision and whether the order for the party remains adequate.

Q. Can the court increase the provision made?

A. The court shall not increase the provision so made unless the income of the estate or, as the case may be, the capital or income of the part of the estate or lump sum invested for the benefit of the person concerned in pursuance of the original order is considered by the court to be sufficient for the purposes of such increase and all other lawful payments (if any) therefrom

Q. Can the court reverse such an increase?

A. Where the court has increased the provision, however at a subsequent date determined it to be insufficient for the purposes of such provision and all other lawful payments (if any), the court may reduce or suspend any increase or discharge, vary or suspend the original order, or make such other order as is just in the circumstances.

Q. How are duties payable in consequence of the death of a deceased person?

A. Where the deceased person leaves a will, duties payable are computed as if the provisions of such order had been part of the will.

If the deceased person did not leave a will, duties payable are computed as if the provisions of such order had been part of the law governing the distribution of the estates of persons dying intestate.

Q. Can action be taken against the personal representative for distribution of the estate before maintenance orders are made?

A. No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate and no application or order under this part shall disturb the distribution, if it was properly made by the personal representative for the purpose of providing for the maintenance or support of the spouse or any child of the deceased person totally or partially dependent on the deceased person immediately before the death of the deceased person whether or not the personal representative had notice at the time of the distribution of any application or intended application under this part in respect of the estate.

Q. Do persons entitled to make an application under this section have a right to action against the personal representative for distributing any part of the estate?

A. No person who may have made or may be entitled to make an application under this part shall be entitled to bring an action against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the person (being of full legal capacity) has notified the personal representative in writing that the person either–

  • a. consents to the distribution; or,
  • b. does not intend to make any application that would affect the proposed distribution.
Q. What are some of the restrictions for bringing a cause of action against the personal representative?

A. No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative

  • a. not earlier than 6 months after the deceased’s death and without notice of any application or intended application under section 41(1) or 42 in relation to the estate; or
  • b. if notice under section 41(1) or 42 has been received–not earlier than 9 months after the deceased’s death, unless the personal representative receives written notice that the application has been commenced in the court or is served with a copy of the application.
Q. What constitutes notice to the personal representative?

A. For the purposes of this section notice to a personal representative of an application or intention to make any application under this part shall be in writing signed by the applicant or the applicant’s solicitor.

However, nothing in subsection (4) shall prevent the subsequent making of an application within any other period allowed by or pursuant to this part.

12. How is an executor protected in Queensland from contested will claims after he/she has already distributed the estate?

Section 7 of the Status of Children Act 1978 protects an executor who has distributed an estate from any claim by a person who could claim an interest in the estate if the executor “had no notice of the relationship on which the claim is based.”

13. In a will contest, if there has been a mistake in the distribution of assets of the deceased’s estate to the beneficiaries can this be rectified?

In Curran & Ors v McGrath [2010] QSC 172 McMeekin J said at 23:

Since the decision of Gibbs J in Re Donkin (deceased); Riechelmann v Donkin [1966] Qd R 96 it has been consistently accepted in Queensland that once an asset ceases to be an asset of the estate and the beneficiary to whom it is given has received it in his or her own right then there is no power to subject that asset to the incidence of an order under the Act, or to require the beneficiaries to restore the asset to the estate, or to make payment in satisfaction of any order.

14. I am a de facto contesting the will of the deceased in Queensland. What does the law require when proving the continuance of such a relationship?

In the context of a dispute as to whether a de facto relationship, previously found to subsist, continues in existence, there is no presumption or inference of continuance of such a relationship. The persuasive onus rests throughout on the person asserting the relationship to establish that continuance: McPherson JA in S v B [2004] QCA 449. Dutney J said in the same case:

De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship.

15. When contesting a will in Queensland, when does property cease to be part of a testator’s estate?

The principles that apply were most recently considered by the Court of Appeal in Holdaway v Arcuri Lawyers (a firm) [2008] QCA 218 by Keane JA. The principles that Keane JA identified from the authorities can be summarised as follows:

  • a. A transfer of real property of a deceased by an executor to himself as a beneficiary under the will, will usually be regarded as effecting a distribution of the asset to the beneficiary;
  • b. The question of whether there has been an assent by the executor such as to effect the distribution of the beneficial title to an asset is a question of fact to be determined on all the circumstances of the case;
  • c. Once executors who are also trustees have got in the estate and performed the duties of their office, they thereafter hold the property remaining vested in them as trustees for the beneficiaries under the will and at that point those assets cease to be part of the estate of the testator;
  • d. The beneficial title to property transferred by an executor to a beneficiary may not rest solely with the beneficiary. It may remain available for the payment of the debts of the estate if there are such debts outstanding;
  • e. In the absence of evidence to the contrary it will be assumed that an executor intends to do what is right. So despite any transfer of assets by an executor to himself as beneficiary the asset nonetheless will remain available to the executor to meet the debts of the estate, if any are outstanding;
  • f. Where the beneficiary and personal representative are the one and the same person the estate has been effectively distributed upon lodgement of the transmission documents with the titles office. It is sufficient that a transmission application be lodged even though no memorandum of the transfer be lodged if the personal representative and the ultimate transferee are one and the same person.

16. I’m thinking about contesting a will in Queensland. What do I need to establish in my claim to prevent it from being dismissed?

Mullins J said in Sylvester v Sylvester & Anor [2010] QSC 331:

An application for family provision may be dismissed summarily, where an applicant fails to disclose a prima facie case on the basis of the material filed by that applicant in support of the application: Higgins v Higgins [2005] 2 Qd R 502 at [15] (Higgins). The applicant for family provision therefore has the evidentiary burden on the application for summary dismissal of the proceeding.

17. What is the importance of statutory time limits on contested will claims?

White J observed in Bird v Bird [2002] QSC 202 at [22]:

[T]ime limits in statutes are for good reason. The fundamental policy of the law and the reason for the statutory time limit is that there be prompt administration of the estate and the “preservation of the certainty and integrity of an executorial administration regularly completed”: Baker v Williams & Brunner [2007] QSC 226 at [30] per de Jersey CJ; and see Hills v Chalk (supra) at [78]-[81] per Muir JA.

18. Would you please give me some case examples where a contested will application has failed in QLD?

In Sylvester v Sylvester & Anor [2010] QSC 331 Mullins J provided a number of examples:

In Higgins v Higgins [2005] 2 Qd R 502, the case presented by the applicant (Malcolm) was scrutinised to ascertain “whether it is one which can be said to be futile so that it ought to be dismissed summarily” (at [17]). Malcolm and his brother (Douglas) were the two adult sons of the testatrix. The testatrix gave her residence valued at $480,000 to Douglas and his wife. The residue of her estate was valued at $1.357m. She gave 50 per cent of the residue to Douglas and his wife, 25 per cent to their children and the remaining 25 per cent to the children of Malcolm and his wife. The testatrix and her husband had worked two farming properties with Douglas and Malcolm. Douglas took over running one of the properties and Malcolm the other. After the death of the testatrix’ husband, Malcolm, Douglas and the testatrix became the owners of these farming properties as tenants in common in equal shares. Malcolm deposed to net assets of $2.1m, some of which were jointly owned, but he did not identify his co-owner, although it could be inferred it was most likely his wife. He did not indicate his present sources of income. He did not depose to any present difficulty in meeting his liabilities or any possible future contingencies. His application for family provision was based on a claim that the testatrix did not give recognition to the work that he and his wife had done on the farm properties which contributed to the building up of the testatrix’ estate.

White J (as her Honour then was) concluded in Higgins that Malcolm’s application was bound to fail and dismissed the application, observing at [46]:

No doubt Malcolm had and continues to have a sense of grievance that the testatrix did not provide for him in the same way as she provided for Douglas in her will. That is not the purpose of what is, after all, intrusive legislation into the freedom of a deceased person to dispose of his or her estate as he or she desires whether by will or by intestacy.

The approach taken in Higgins to a summary judgment application was applied in Banks v Seemann [2008] QSC 202 (Banks), but the applicant in that matter, who was the son of the testatrix, successfully resisted summary judgment sought by his sister who was the executrix of their mother’s estate. Although the applicant and his wife had substantial assets and a steady income from their superannuation fund, the applicant had been suffering ill-health since 1993 that was a matter known by the testatrix. His sister was in a good financial position. The applicant had worked in his parent’s business to which his mother had succeeded on his father’s death and the applicant had received no benefit from his father’s estate. The relationship between the applicant and his mother was also described as “unusual”. It was concluded that the combination of the relevant factors in that case meant that the applicant had shown a prima facie case for further and better provision from his mother’s estate.

In another application for summary dismissal of a family provision application, the applicant’s claim for provision was described as being “practically hopeless”, but, in exercising the extreme caution that was described as appropriate for applications in summary judgment in this sort of matter, the court declined to exercise the discretion to summarily terminate the proceeding: Atthow v McElhone [2010] QSC 177 at [29].

19. What duties and obligations is an executor under when defending a contested will claim?

What duties and obligations is an executor under when defending a contested will claim?

  • 165. First, I observe that it has long been recognised that where executors receive notice of such a claim then they are under a duty to preserve the trust estate until the claim is resolved: Re Simpson [1950] Ch 38 at 42; Re Crowley [1949] St R Qd 189 at 192.
  • 166. Second … As a general proposition I consider it accurate to assert that before embarking on expensive litigation the executors need to give careful consideration to what amounts they will expend and how best they should discharge their duties. Resort to generalisations that executors are entitled or obligated to uphold the will may provide no guidance at all in some cases … Consistent with that view is the observation of Holmes JA in Underwood & Anor v Sheppard, a case involving family provision claims:
  • The learned judge’s observation that the obligation to consider the impact of costs on the estate applied with greater force to the executors than to the beneficiaries is unimpeachable. Executors bear a fiduciary duty to which they must have regard in conducting litigation affecting the estate; beneficiaries do not.
  • 167. Third … The effect of s 41 of the Act is to impose on every testator or testatrix an obligation to make “adequate and proper” provision for their spouse and children. If they fail to do so the court not only has the power, but the obligation, to ensure that is done, upon application being made. Notions that an executor can effectively determine the fate of an application by vigorously contesting it, irrespective of the sense or merits in doing so, are in my view misguided and wrong. Executors cannot ignore the duty that lay on the testator. Thus when an application is made or notified the executor’s obligation is to objectively assess the evidence, impartially assess the merits of that application, and if necessary compromise the suit. That there is this obligation is consistent with the Practice Direction governing applications of this type. Paragraph 2(b) describes one of the objects of the Practice Direction as “encouraging the early consensual resolution of applications” and para 8(b) requires that the standard directions “contain a dispute resolution plan designed to exhaust the prospects of a consensual resolution of the application”.

20. I am a widow who has been granted a property life interest in the deceased’s estate. Should I contest the will for more provision?

In Kowalski v Public Trustee & Ors [2011] QSC 323, the widow plaintiff received a property life interest under the deceased’s will. McMeekin J said at 42:

The applicant has pointed out, not unreasonably: “At present, I feel stripped of my dignity and the opportunity to live independently. I am afraid I will not have enough money left to provide for myself in the future. I am frustrated that should the court only grant me a life interest in [the testator’s] estate, I will have to account to the Public Trustee for the rest of my life as to where I live, what I spend money on and what my needs are. Any order involving the grant of a life interest in my favour would result in ongoing legal costs as I would wish and need to seek the assistance of my solicitors in dealing with the Public Trustee in relation to the terms of the life interest.”

The plaintiff was awarded $100,000 before costs for contingencies.

21. Can you please describe in detail the operation of section 41 of the Succession Act 1981 (QLD)?

In Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 the High Court explained the operation of section 41 (at 21-22):
  • 21. Section 41(1) of the Succession Act provides that the Supreme Court may, in its discretion and upon proper application being made, “order that such provision as the Court thinks fit shall be made out of the estate of the deceased person” for a spouse, child or dependant of the deceased person. The Court may attach conditions to the order or direct that the provision consist of a lump sum or periodical or other payment: s.41(2). The Court may direct upon what part of the deceased estate the order shall fall: s.41(3) and (4). Moreover, s.41(10) provides: “Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order.”
  • 22. The wide powers conferred by s.41 and the manner in which sub-s.(10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court’s order.

Each beneficiary’s right to due administration is made subject to the terms of the order in the sense that the order governs the executor’s actions to the exclusion of any inconsistent direction contained in or derived from the will. But the respective rights to due administration are themselves unchanged, notwithstanding the impact upon their value. Such a result should not be surprising, bearing in mind that the right to due administration as discussed in Commissioner of Stamp Duties (Q.) v. Livingston [1964] UKPC 2; (1964) 112 CLR 12; (1965) AC 694 is a continuing right of uncertain ultimate worth. It remains a right belonging to each of the named beneficiaries, in relation to the whole of the assets of the estate and the management of the estate, the concomitant of the duty of the executor to perform his or her functions in a proper manner. Viewed in this way, the making of an order under s.41 gives rise to a new right in a person in whose favour the order is made, corresponding to the new obligation imposed upon the executor. That right is derived from statute and is independent of the right conferred by the will. Of course, an order under s.41 may simultaneously render a beneficiary’s chose in action largely worthless by depriving the beneficiary of any right to expect property from the estate, while at the same time creating the new right we have described…

22. My de facto partner just died. I was dependant on him until death and wish to contest the will. Will the fact that I was receiving Centrelink payments at the time of the deceased’s death have any bearing on my eligibility to claim?

In Lohse v Lewis & Anor [2004] QSC 36, a case involving a claim by a defacto spouse, Mullins J reasoned [some paragraphs omitted]:
  • 84. The critical time for determining whether a person was a dependant for the purpose of making an application under s 40 of the Act is at the date of the death of the relevant deceased. In order to be a dependant the person must at the date of the deceased’s death be “wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person”.
  • 85. On any view the applicant was not wholly maintained or supported by the deceased at the date of his death, as she was in receipt of the benefits being paid through Centrelink. It is therefore a question of whether the applicant was being substantially maintained or supported by the deceased.
  • 86. The parties differed as to what construction should be given to the word “substantially” in this context.
  • 87. The issue was considered in Re Cobb [1989] 1 Qd R 522. The parties in that matter until Mr Cobb’s death had both worked, earning substantially the same amounts of income and had come to an agreement as to the dispositions of their respective incomes with the applicant in that matter spending the whole of her income on groceries, electricity, the telephone and her personal expenses and Mr Cobb paying the rent and for the maintenance of the premises in which they lived. Mr Cobb lived very frugally and after the agreed payments out of his income he had balances which by agreement between the parties were banked in his name, but were intended in due course to be used for the establishment of a jointly owned home. Kneipp J stated at 523:

“However, I do not think that it is necessary that the provision of support or maintenance is necessarily confined to the provision of support or services or the like. It seems to me that if savings are being accumulated for the benefit of two parties, and if the savings come out of the income of one party, there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition.

In the present case, having regard to the agreement between the parties as to the dispositions of their respective incomes, it seems to me to be at least arguable that the applicant might have claimed a proportion of the moneys which had been invested by the deceased in accordance with the agreement between them. In the result, it seems to me that one should take an overall view of the situation, and in these circumstances I think that one can appropriately take the view that each was contributing to the support of the other as a result of their living together in a household to whose finances both made contributions. I therefore find, although I must confess I have found the matter to be one of considerable difficulty, that the applicant was a dependant of the deceased.”

  • 95. The phrase “wholly or substantially maintained or supported (otherwise than for valuable consideration) by that deceased person at the time of the person’s death” has to be construed in the context of prescribing the condition precedent that the applicant, as a de facto spouse, must establish in order to obtain relief as a dependant at the date of the deceased’s death. It would make a nonsense of the requirement, if the word “substantially” did not take its meaning from the context given by the use of the word “wholly”. The word “wholly” is unambiguous. The word “substantially” indicates something less than “wholly”, but it connotes something which is still significant. It could not possibly mean in that context “not merely nominal, ephemeral or minimal”. It could in this context be appropriately paraphrased by the words “in the main” or “as to the greater part”: cf Department of Social Security v Wetter (1993) 40 FCR 22, 30. In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522, the future arrangements that had been planned between the parties and for which provision was made must also be taken into account.
  • 96. At the date of the deceased’s death, he was providing a home for the applicant including his furniture and furnishings, her means of transport and for her financial needs, except to the extent that she could meet her personal expenses and the expenses of keeping her dogs from the Centrelink benefits. By way of support for the applicant’s future with him, the deceased had made a considerable investment in purchasing Rossgae and was proposing that they both relocate for an “easier” life. The probabilities also are that if the applicant’s Centrelink benefits had been discontinued whilst the deceased was alive, the deceased would have paid for those expenses that the applicant managed to meet out of the Centrelink benefits.
  • 97. In these circumstances the applicant has shown that at the date of the deceased’s death she was being substantially maintained or supported by him. The applicant was therefore a dependant at the time of the deceased’s death within the meaning of the definition in s 40 of the Act.

23. I am a step-child of the deceased contesting a will in Queensland. Can you please explain to me the changes made to the definition of ‘step-child’ within the Succession Act 1981 (QLD)?

In Re John [1999] QCA 444 McMurdo P, Davies and Thomas JJA said:
  • 3. On 20 June 1997 certain amendments were made to the Succession Act which widened the ambit of the definition of stepchild for the purposes of Part IV of the Succession Act 1981…
  • 4. Prior to that amendment, the relevant legislation (s 40 of the Succession Act 1981) provided as follows: “In this part … “stepchild” means, in relation to a deceased person, a child of that person’s spouse who is not a child of the deceased person.”
  • 5. With respect to that definition, and to the former definition of “stepchild” in the preceding Succession Act 1867-1977, it has been held in a number of decisions in the Full Court and in the Court of Appeal that the relationship of stepchild and step-parent does not subsist after the termination of the marriage which created it. In short the death of the natural parent or the divorce of the natural parent from the step-parent were regarded as precluding an applicant from satisfying the definition of stepchild in the legislation. The following statements in Re Burt [1988] 1 Qd R 23 illustrate the approach that was taken:

“[I]n order to constitute an applicant the “stepchild” in relation to the deceased person referred in s 90 of the Act, the applicant must be the child by a former marriage of one who is the husband or wife of that person at the date of death of the latter.

I am satisfied that the relationship of affinity between step-parent and stepchild which comes into being with the marriage of the child’s natural parent with the step-parent depends for its continued existence upon the continuity of that marriage and that it ceases with the termination of that marriage whether by death or divorce.”

  • 9. The amendment upon which the appellant relies was effected to the Succession Act 1981 by the Justice and Other Legislation (Miscellaneous Provisions) Act 1997 which was assented to on 15 May 1997. The part of that Act with which we are concerned (Part 21) came into operation on 20 June 1997. Under that Act the definition of “stepchild” was omitted and the following new definition inserted:
    • Meaning of “stepchild”
    • 40A
      • 1. A person is a “stepchild” of a deceased person for this part if:
        • a. the person is the child of a spouse of the deceased person; and
        • b. a relationship of stepchild and stepparent between the person and the deceased person did not stop under subsection (2).
      • 2. The relationship of stepchild and stepparent stops on the divorce of the deceased person and the stepchild’s parent.
      • 3. To remove any doubt, it is declared that the relationship of stepchild and stepparent does not stop merely because:
        • a. the stepchild’s parent died before the deceased person, if the deceased person’s marriage to the parent subsisted when the parent died; or
        • b. the deceased person remarried after the death of the stepchild’s parent, if the deceased person’s marriage to the parent subsisted when the parent died.
  • 16. … the proper construction of the amending Act is that it has only a prospective operation.

24. Is written notice sufficient to make a claim under section 41 of the Succession Act 1981 (QLD)?

In Curran & Ors v McGrath [2010] QSC 172 McMeekin J stated:

12. On 24 April 2007, solicitors acting on behalf of the applicants and the deceased’s widow, Mary Ann McGrath, by letter gave notice of an intention to make application pursuant to s 41 of the Act.

34. In my view there is no adequate explanation for the delay. The applicants rely on the early letter giving notice of an intention to apply. It is well established that mere written notice of an intention to bring an application is not sufficient to stop time running, nor does an executor act improperly by proceeding with the distribution of the estate after such notice and after the time for bringing an application has passed: see Re McPherson [1987] 2 Qd R 394.

25. I am an applicant in a contested will case. If I reject a reasonable offer of settlement how will the court deal with my case when it comes to costs?

Jones J said in Underwood v Underwood [2009] QSC 107 at 34:

Whilst there is no Queensland statutory equivalent to the Victorian provision referred to by Gillard J [in Re Sitch [2005] VSC 383], the principles upon which the court’s discretion is now exercised has been similarly refined in the manner expressed by the Full Court of South Australia. The rejection of a reasonable offer of settlement is now more commonly seen as a basis for either denying a successful applicant some part of his or her costs or indeed, ordering payment to the estate of part of its costs.

In Dawson v Joyner (No 2) [2012] QSC 24 McMeekin J said:

Jones J [in Underwood v Underwood [2009] QSC 107] was influenced by an applicant’s “lack of appreciation of the extent of her true entitlement” and “reckless indifference to the rights of others” in requiring that the applicant pay costs, she having rejected an offer of compromise more favourable than his eventual decision.

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