March 2017 Bulletin 86 to WILLS, PROBATE AND ADMINISTRATION PRACTICE (QUEENSLAND)

Transcription

1 March 2017 Bulletin 86 to WILLS, PROBATE AND ADMINISTRATION PRACTICE (QUEENSLAND) by Dr John K de Groot Bulletin Editor: Terence B Ogge, lawyer Subscriptions representative: info@degrootspublishing.com Telephone:

2 2 [Heading references refer to the paragraphs or sections of the service for which the comment/update is relevant] Chapter 4 Estate Administration 421 A grant of letters of administration with the will Re Tang [2017] VSC 59 (24 February 2017). The applicant, the mother of the deceased, who died aged 41 years in Shanghai, the People s Republic of China (China), applied for a grant of letters of administration with the will. The deceased, an Australian citizen and a resident of China left a handwritten note dated 14 November 2014 in Chinese language addressed to his mother, who lived in Victoria, stating that he had two bank accounts at Westpac and that the money in both accounts were for her personal use only. He wrote the note while in hospital suffering from a serious heart condition; he died seven days later. The value of the estate comprised $121,838 in Victoria and $415,115 in China. Consents to the mother s application were filed by the deceased s father who lived in China and by the deceased s estranged wife agreeing to the Australian assets passing to the mother and the Chinese assets passing under the laws of intestacy or by agreement. The deceased s wife stated that their child, born in May 2013, would make no claim on the estate. McMillan J considered three potential ways of characterising the note: an informal will; a valid will executed in a foreign place in accordance with the relevant foreign law; or a donatio mortis causa, a death-bed gift. Her Honour made the following findings: the evidence did not establish the requisite standard for testamentary capacity at the time of the writing of the note. The doctor s report did not address that issue. The note purported to deal with less than one quarter of the deceased s assets and not with all the assets in Victoria. The deceased did not intend the note to be his will. the validity of the note must be determined under Chinese law. Although the deceased was an Australian citizen, his domicile of choice and habitual residence was China. (see s 9, Domicile Act 1978 (NSW) which is identical to s 9, Domicile Act 1981(Qld)).

3 3 the note did not constitute a donatio mortis causa. The test (see Public Trustee v Bussell l (1993) 90 NSWLR 111) met two difficulties in the present case: whether delivery effected by the note to perfect the gift and the evidence of the delivery were sufficient. The bank passbooks were not in evidence and so it was impossible to conclude whether the evidence of title entitled the mother to complete a delivery. It was concluded that delivery was not effected so as to give rise to a donatio mortis causa. The application for letters of administration with the will was dismissed. 426 Proof of will in solemn form Estate Stojic, Deceased [2017] NSWSC 168 (3 March 2017). The plaintiffs, two children of the testator, sought a determination of one of the deceased s two 2014 wills. The defendant, Simon, aged 45, also a child of the testator, sought probate of a 2013 will and contended that the 2014 wills were invalid because of the testator s lack of testamentary capacity and of knowledge and approval of the wills. Alternatively, he contended that the June 2014 will was procured by undue influence. The testator died at the age of 73 leaving five children, the eldest 51 and the youngest 13, by four partners. The 2013 will appointed Simon executor and divided the estate, valued at $8.1 million, equally among the four capable children, the fifth child, Marjian, aged 13 years, suffered from autism. The 2014 wills divided the estate among the plaintiffs and the son, Anton, excluded Simon and recorded a separate provision for Marjian. The children had engaged in acrimonious disputes mainly against Simon with several litigation proceedings and Family Provision applications; they displayed a guerrilla war mentality at the hearing. At the time of making the 2013 will, the testator s estate planning included appointment of Simon as a director of the family company with an issue of shares, and gifts of $4 million dollars and a residential property. Lindsay J made the following observations and findings: for the 2014 wills there was no medical evidence regarding testamentary capacity. However, His Honour was satisfied that the testator had sufficient capacity to make the May 2014 will. the testator s health had deteriorated at the time of the June 2014 will; he was frail and unable to hold a pen. The evidence was

4 4 open to a finding that the testator s finger prints, as a signature, were not applied as a voluntary act of the testator. His Honour was not comfortably satisfied that the testator had the requisite capacity, or still less that he knew and approved the document. The motivation for the June 2014 will was that the May 2014 will could have been invalid for want of due execution. the critical question was the knowledge and approval of the May 2014 will which was executed in the Australian Embassy, Croatia. There was no evidence that the testator had read the will, or had it read to him prior to execution. Suspicious circumstances attending the execution raised doubt about the testator s knowledge and approval; the evidence was contradictory and too convenient. His Honour was not satisfied that the testator knew and approved the May 2014 will and made a grant of the 2013 will in solemn form to Simon, the defendant. Chapter 8 The Construction of Wills 806 Application to the court Rhodes v Rhodes [2017] QSC 21 (28 February 2017). Before the court was a pro forma will. The issue was whether the testator intended the residuary estate to be an absolute gift, the creation of a testamentary trust or a condition enforceable in equity. The relevant clause was: All my worldly goods to my ex-wife who will distribute it [sic] to my children as she sees fit. Henry J made the following findings: the wording that the former wife will distribute had an imperative quality which was inconsistent with the giving of an interest or benefit to her; the word will indicated an obligation to distribute the residuary estate to the testator s children. the wording as she sees fit in the context of the words will distribute indicated a trust power. little in the words used suggested one conclusion over the other in considering whether the testator intended a testamentary trust or a condition enforceable in equity. The absence of contrary indicia favoured the imposition of a testamentary trust. The words used by the testator gave rise to a testamentary trust.

5 5 810 Words and phrases in wills judicially considered Kieninger v Perpetual Trustee Company Ltd [2017] QSC 20 (28 February 2017). The question before the court was whether there could be in Queensland an entity similar to the Cancer Council of Queensland (CCQ). The testator had established by will a trust in favour of his daughter, Pamela, and the CCQ. The trust s income was to be distributed between Pamela and the CCQ, and after Pamela s death to the CCQ and any other similar charitable organisations in Queensland which conduct cancer research. A Family Provision application made by Pamela was settled and accepted by the court. The settlement provided that upon Pamela s death the income be distributed to CCQ and any other similar charitable organisations in Queensland which conduct cancer research. Martin J considered a number of authorities and dictionary definitions of similar and observed that the term can be a purely relative concept. Consideration of at least three matters could assist: how an entity was organised, what work it did and how it did that work. Before the court was evidence of other charitable organisations that engaged in cancer research. His Honour held that, at the time of the testator s death, no charitable organisation in Queensland was similar to the CCQ because of their differences in size, area of operation, type of operation, extent of research and manner of engagement. Furthermore, prior to Pamela s death or within a reasonable time after it, there was no reasonable prospect that it would be practicable for any such organisation to come into existence to permit the testator s intentions to be realised. Practice Direction No 1 of February 2017 In addition to the newspapers listed in Practice Directions 2 of 2014, 14 of 2014, 18 of 2014, 31 of 2014 and 4 of 2015, approval was granted for publication by the Cassowary Coast Independent News of a notice of intention to apply for probate or letters of administration where the deceased s last known address falls within its circulation district (UCPR r 599(3)).