Recent Case Illustrates the Importance of Having a Valid Will

The recent Queensland Court of Appeal decision of Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams illustrates the complexity of issues that can arise when estates are being administered and the importance of ensuring you have a compliant and binding Will.

By way of background, the case involves a deceased’s estate and a claim made in the District Court of Queensland against that estate by a handicapped dependent (‘the Applicant’). The claim against the estate was brought pursuant to section 41(1) of the Succession Act 1981 (Qld) for further and better provision in the amount of $140,000.00.

Although the Applicant had been provided for under a second Will, the Court of first instance held this Will to be invalid and therefore reverted to an earlier and compliant Will where no provision had been made for the Applicant. The claim by the Applicant was not contested by his siblings, the other beneficiaries under the Will, who, with the Court’s approval, sought to sanction the agreement between the parties for further and better provision from the deceased’s estate.

The Applicant’s claim in the District Court was dismissed by Judge Everson, who made the following comments in handing down his decision:-

“I’m not going to sanction the settlement. I’m simply not satisfied that he has a need of the magnitude of what’s proposed… I decline the application”.

Judge Everson formed this view as many of the needs of the Applicant were provided for by the State, and further the Applicant did not have the capacity to spend the money in his own right. Judge Everson further questioned the life expectancy of the Applicant and whether better provision would be necessary.

The grounds of appeal were:-

  1. That the Applicant suffered an injustice by being denied the benefit of a compromise of his claim;
  1. That the application being refused was inconsistent with community standards in relation to the exercise of the jurisdiction to make such orders;
  1. That the Applicant was denied natural justice by refusing to hear further submissions on the basis for the compromise; and
  1. That the primary judge in making those errors failed to afford the applicant a proper exercise of the jurisdiction required to be exercised.

In overturning the decision of Judge Everson, the Queensland Court of Appeal cited the case of Watts v The Public Trustee whereby it was noted that although the Court cannot make an order giving effect to a proposed settlement unless the Court thinks further provision is required, the Court should not refuse to make orders giving effect to a settlement by comparing the settlement with the judgment or order that the Court itself would have made.

Effectively, they viewed the decision of Judge Everson, in failing to sanction the agreement, as not in the best interests of the Applicant and went so far as to find that his reasoning failed to acknowledge the significance of contemporary International Human Rights Instruments which recognise the rights of people with disabilities, and failed to show an appreciation of the principles which should be taken into account in making a decision in respect of a person with a disability. The judge had failed to recognise that the Applicant has the same basic human rights as anyone else and that he has a right to respect for his human worth and dignity.

The Appeal Court considered the original application afresh and found that the parties agreement to settle in the amount of $140,000.00 was in the best interests of the Applicant and appropriate. The compromise in the amount of $140,000.00 was sanctioned whilst the court specified the means by which the Applicant was to receive these funds given his current capacity.

Although the reasoning for the decision may be complex, this case illustrates the intricacies that can arise when estates are being administered. Had the second Will, which provided sufficiently for the Applicant been held as valid, there would have been no need for an application to the Court. As the Courts approval was required and ultimately denied in the first instance, the decision of the Court of Appeal illustrates both the discretion the Courts have in making such orders and that, with such discretion, the Courts can often make the wrong decision.

Although it should go without saying, it is often best not to leave such matters to the Courts and to ensure your wishes are properly provided for under a valid and binding Will.

McLaughlins Lawyers have the necessary expertise to ensure your Wills, enduring powers of attorneys and advanced health directives are drafted correctly and comply with the statutory requirements. Our estates team is knowledgeable in handling complex estate matters, and where necessary, making claims against an estate for further and better provision.

If you would like to make an appointment with one of our solicitors to discuss your Will or an estate matter, please do not hesitate to contact us on (07) 5591 5099.

Author: Oliver Peacock

Partner: Ian Kennedy

Date: 01/02/2016