Promissory Estoppel a Macedonian lawyer, and the Audiovisual link

Ljubica Dimitrovska who died in November 2014 had three children: the first, Radmila, born in Macedonia in 1948, from her first marriage, which ended in divorce about 1950; the second, Lidija, born in Macedonia in 1957, and her third child a son, Leonard born in Macedonia in 1960 ( who predeceased Ljubica) from her second marriage which ended when her husband died in 1971.

Ljubica and her second husband moved to Australia with Lidija and Leonard, in 1967; and in 1969 the couple purchased the Granville property (the principal asset of Ljubica’s estate). Radmila remained in Macedonia.

Lidija married her first husband in 1976 and in 1987 moved to live in Croatia. She had subsequently married her second husband and lived in Croatia.

Vase Antov the son of Radmila and a grandson of Ljubica moved to Australia in 1997 but had spent time in Austria for a brief time in 1999 and then again from 2001 to about 2006.

The Grandson’s claim

Vase claimed he was entitled to an unencumbered interest in the Granville property which had been owned Ljubica and which had been occupied by Vase (together with the Ljubica and Radmila) from approximately May 2010.

Vase sought a declaration that, in the events which had happened, Lidija (as executor of the deceased’s estate) held the Granville property upon constructive trust for him.

A constructive trust, is an equitable remedy that seeks to avoid the consequences of unconscionable conduct by one party, to the detriment of a beneficiary. In Muschinski v Dodds (1985) 160 CLR 583 Deane J stated that a constructive trust

“can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement”.

Vase also sought an order that Lidija do all things and sign all documents necessary to transfer the unencumbered title of the Granville property to him, and further sought a declaration that, as executor of the estate, Lidija held the balance of the estate upon constructive trust for him.

Vase’s case rested upon the existence of two documents — a Power of Attorney, and a document described as a Contract for a Gift, which was said to have been prepared on the deceased’s instructions by Zarko Dabeski a Macedonian lawyer in 2009. 

These documents were alleged by Vase in combination to have given rise to specific representations in relation to the Granville property, upon which Vase claimed to have relied to his detriment, so as to generate an entitlement to receive an unencumbered transfer of the Granville property on the grounds of promissory estoppel.

Vase submitted that he relies upon both documents to establish his case,  if the Contract for a Gift is not found to be an authentic document then “this case would simply not be pressed further” 

At first instance Vase’s claims were dismissed with costs, the Court held that it was not persuaded that the Contract for a Gift was an authentic document which had been executed by Ljubica, and declaring that the execution of the Power of Attorney was of no effect as it had been obtained by the undue influence and unconscionable conduct of Vase. 

The appeal

Vase appealed the decision on the grounds that the primary judge erred in finding that the Contract for a Gift was not authentic, and in exercising discretion under r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) by refusing to receive the evidence of Zarko Dabeski – who claimed to have witnessed the execution of this document – via video link with the court in Macedonia, and in refusing to receive Mr Dabeski’s affidavit into evidence.

The defendant was not provided with any contact details that have been able to produce any communication with Zarko Dabeski, they have not even been able to confer with him in order to satisfy themselves in relation to some procedural aspects at least in relation to his evidence.

Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 provides the court with a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party.

Sir Edwin Marsden Tooth – Trust or Absolute Gift?

A charitable trust provides a will-maker with the ability to specify a particular cause they wish to benefit and enables the trustees greater flexibility in carrying out the will makers wishes in the administration of the estate.

Sir Edwin Marsden Tooth died on 27 May 1957. He formed Austral Motors Pty Ltd in 1924 becoming a leader of the motorcar industry in Brisbane and, towards the end of his life, a generous philanthropist gave generously to medical, educational and charitable institutions.

In 1956 Sir Edwin contributed £35,000 to the Brisbane Hospitals Board for the construction of the Edwin M. Tooth Lecture Theatre and the Edwin M. Tooth Laboratories for Research in Medicine at (Royal) Brisbane Hospital which were made available to the University of Queensland’s medical school. He endowed the Edwin Tooth scholarship for postgraduate study in medicine. Additionally, he provided £20,000 to enable Brisbane Hospital to appoint a visiting professor of medicine, surgery, or obstetrics and gynaecology each year. 

Sir Edwin’s estate was worth over £700,000. In his Will he provided a bequest to the Corporation of the Synod of the Diocese of Brisbane (the Corporation) to establish within the Diocese a home for the aged persons and it was named “The Edwin Marsden Tooth Memorial Home” (the Home). The Home was built and later, extended, through the use of government grants, other legacies and other gifts. 

Re the Will of Edwin Marsden Tooth

The Corporation sought the Courts declaration as to the proper construction of the Will. The question for determination concerns the true nature of one of the gifts in that will – was it absolute or was it subject to a trust? 

An absolute gift passes directly to the intended beneficiary; it is then theirs to do with as they wish. In contrast, a gift in trust means that the gift is controlled by the trustees.

The Corporation of the Synod of the Diocese of Brisbane submits that the following clause of the Will provides for an absolute gift to it. 

“… I direct my trustees to stand possessed of my [residuary estate] upon trust to pay the same to the following institutions in the proportions and for the purposes herein mentioned viz:- …

(ii) To the said Corporation for the purpose of establishing within the Diocese a home for Aged Persons to be described as ‘The Edwin Marsden Tooth Memorial Home’ …”

The Attorney- General, who has a right to intervene in the matter, submits that the gift was for a charitable purpose and that a trust was created. 

The Court held that, upon the proper construction of the Will of Sir Edwin Marsden Tooth, the Corporation is justified in regarding itself as having been beneficially entitled to the provisions which came to it from the estate of the deceased pursuant to the Will and in respect of which it has all the powers of an absolute owner. 

The UK permits a Will to be witnessed via video conference

In the United Kingdom, s 9 of the Wills Act 1837 provides that a will must be in writing and signed in the presence of two witnesses.

Witnesses to the document must not include anyone who is a beneficiary of the will or the will makers spouse or civil partner.

The witnesses must attest and sign the will or acknowledge their signatures in the presence of the will-maker.

Section 1 of the Wills Act 1963 provides a will to be “properly executed” if it was executed in line with the laws

(a) of the place where the will was executed;

(b) where, at the time the will was executed or when the testator died, the testator was domiciled or had his habitual residence; or

(c) in force in a state of which the testator was a national either when the will was executed or at the date of the testator’s death.

Therefore, if the testator is a national of a state that allows witnessing of wills by video or holographic wills, the testator would not need to comply with the formal witnessing requirements under s9 of the Wills Act 1837 for the will to be considered valid under English law.

However if the will-maker doesn’t meet one of these exceptions, a will must be witnessed in accordance with the formal requirements, requiring two present witnesses.

A temporary revision to the Wills Act permitting live video-conferencing removes the requirement for the physical presence between the will-maker and their witnesses until 31 January 2022, although this date could be amended.

The amendment permitting video-conference Wills is to be made in September 2020 providing that any Will (not already admitted to probate) which has been made after January 31 2020, will be valid if it complies with the amendment.

The signatures must be made by hand in pen on the one original document- esignatures are not permitted

The will-maker must execute the document

a. in the presence of two witnesses being in the presence of the will-maker by way of video conference in real-time, not by pre-recorded video; or

b. in the presence of one witness being in the presence of the testator by way of video conference

There will be a minimum of two separate video recordings – one where the Will maker signs the Will and the second for the witnesses if they are in the same room when they do so; otherwise, there will be three video conferences to complete the Will signing procedure.

There can only be one Will document. So, once the will maker has signed their Will with your witnesses watching via video link, there will be a delay whilst it is delivered to both your witnesses for them to sign (again by live video link).

Importantly the document is not a valid Will until everyone has signed. In the intervening period, the Will maker could change their mind or lose capacity between signing the Will and the witnesses signing.

Similarly, there is a risk the document could be lost or damaged if posting it between the will-maker, witnesses and back again.

Court dismisses estoppel claim by unreliable discharged bankrupt

Dr William (“Bill”) Garrett pioneered the worldwide development of diagnostic ultrasound to monitor pregnancies in the 1960’s died in November 2015.

In 1957, Bill met and married his wife Nancy, whilst he was studying in England; she too graduated in medicine. They returned to Australia where they jointly specialised in obstetrics and gynaecology and where their three children, Jemima, Tom and Cathy were born.
Bill and Nancy had a very happy marriage and they were closely involved in the activities of all his children. In December 1994, Nancy died suddenly and unexpectedly. Following her death, Bill saw little point in continuing to work and retired from medical practice in 1995. The family had been living in Paddington for some time however in 1998, he moved to another property, in Ormond Street, Paddington. (“the Paddington property”)

Bill’s Will

Bill made a will on in June 2008 leaving bequests to his grandchildren and step-grandchildren; a painting and $200,000 to his friend Jason Gill (‘the plaintiff”). Leaving the residue of his estate equally to his three children.

Jemima Tom and Cathy (“the executors”) obtained a grant of probate of Bill’s 2008 will in February 2016. Jason claims that in 2009 Bill promised that he would leave him the Paddington property in return for caring for him until his death. Jason says he fulfilled that promise and is now entitled to the Paddington property either in contract or under doctrines of equitable estoppel.

To establish an equitable estoppel, the plaintiff must prove that

1) the plaintiff assumed that a legal relationship would exist between them (and in the latter case) that the defendant would not be free to withdraw from that expected legal relationship;
2) the defendant has induced the plaintiff to adopt that assumption or expectation;
3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; 4) the defendant knew or intended him to do so;
4) the plaintiff’s action or inaction will occasion detriment if the assumption of expectation is not fulfilled; and
5) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

The executors deny any such promise was made. Alternatively, they contend that if such a promise was made to Jason, it was not contractual or that Jason either did not rely on it or suffered no detriment as a result. Jason continued to live in the Paddington property after Bill’s death.

Jason Gill

After Nancy’s death, Bill developed a circle of friends in the Paddington area including Jason Gill. Jason met Bill in 1996; he was lonely after Nancy’s death and was looking for day-to-day companionship. Jason was quick to fill this gap but in the Court’s view, this wasn’t a spontaneous flowering of a generous, mutually supportive and altruistic friendship. Jason saw Bill as a potential source of financial support; obtaining financial advantages soon after their friendship commenced.

Bill advanced (although Jason disputes this amount) loans of over $160,000. The Court found that Jason was unreliable in almost every part of his life. His failure over 10 years to repay more than a small part of these substantial loans is one marker of that unreliability.

Jason was declared bankrupt on 11 April 2003. The Court concluded that Bill was unaware Jason was bankrupt as nothing in Bill’s papers or the form of the loan records he created with Jason indicated that he was aware of the bankruptcy. Similarly, Bill never told his children that Jason was bankrupt. In late 2003 Jason moved into the Paddington property.

Jason alleges in the alternative that if the claimed promise to him is not established he should be given restitution for the value of the care services he provided to Bill in his declining years. The executors argued that the benefits Jason derived from his living arrangements at the Paddington property, together with advances and other benefits in that Bill conferred on Jason exceed the market value of any casual care services provided.

Finally, and further in the alternative, Jason claims as an “eligible person” he is entitled to make a claim under the Succession Act on the basis that he lived in the same household as Bill and was dependent upon him an order for further provision out of the estate under, s 59 Succession Act 2006.

The Executors defence

The executors contend further that, because of Bill’s declining capacities at the time of the alleged promise, the Court should set aside any contract based upon these promises that Jason may have made with Bill in 2009, either due to unconscionable conduct, undue influence or in the exercise of the Court’s Contracts Review Act 1980 jurisdiction.

The executors have filed a crossclaim. If the plaintiff’s claim to an interest in the Paddington property is unsuccessful, the executors crossclaim against Jason Gill for possession of the property.

In the alternative, if Jason is successful in his claim for the Paddington property, they claim restitution for various expenditures upon and improvements they made to the property in the belief that the property was theirs.

The Judgment

Jason’s claim failed in its entirety. The Court held that no contract existed between Jason and Bill, therefore the claim in equitable estoppel fails. Bill gave Jason a legacy of $200,000 so any claim in restitution fails. Similarly, the will made adequate provision for Jason therefore further provision out of the estate of the deceased under the Succession Act is not warranted.

On the cross-claim, judgment for possession of the Paddington property entered in favour of the executors and Jason found in breach of fiduciary duty and to have engaged in unconscionable conduct concerning the deceased.

Court orders production of a laptop used to create a Will

Denys Wlademir Pasitschnyk (“Denys”) died in April 2016 with an estate estimated to be worth around $1 million.

On September 1, 2016, Susan Coleiro entered a caveat to ensure that she would be notified prior to a grant being sealed. Susan submitted that Denys died intestate and that, she was his domestic partner at the time of his death.

Following Susan’s caveat, three other people entered caveats, claiming to be good friends of Denys and disputing the existence of a domestic relationship between Denys and Susan.

In most jurisdictions the court may, for the purpose of enabling the proper determination of any matter in question in any proceedings, by subpoena or otherwise, order any person either to attend court to be examined as a witness, to produce any document or thing to the court or both.

Two of those friends Carmen D’Angelo and William Harrison (“the applicants”) sought to propound a copy of Denys’ will instructions under s 12(2) of the Wills Act 1936 (SA) (the Wills Act) claiming Application for production and examination of a laptop alleged by the applicants to have created testamentary documents –that the documents were prepared on a laptop on April 6 and 8 2016.

Denys’s friend Brian McIvor, submitted that Denys made five wills and gave instructions for a will on 6 and 8 April 2016. While these documents expressed the Will makers intention they did not meet the formal requirements of s 8 of the Wills Act.

The applicants sought an order requiring production of the laptop to be examined by, Jean Pierre Du Plessis, a forensic expert in accordance with a proposed digital examination protocol (“the application”).

The Court considered that the origin of the 6 and 8 April 2016 documents was relevant to the matters in dispute between the parties and the determination of Denys’ last testamentary intention. Emphasising that the exercise of its quasi‑inquisitorial probate jurisdiction as to which document represents the testamentary intention of Denys will lead to admitting his last will to probate as all prior wills are revoked.

Similarly, the parties are under a duty to disclose documents that are directly relevant to material issues in pleadings or affidavits.

The Court ordered William Harrison to provide the laptop computer in accordance with the “Digital Examination Protocol” provide access passwords to the forensic expert And do all things necessary to assist in the examination; and within seven days to disclose:

documents in his possession or control relevant to the devices, including, but not limited to, receipts and other documents relating to any repair and removal of the hard disk drive in or around June 2017;

and his telephone records for the period 6 April 2016 to 8 April 2016.

Application for exoneration by a trustee

Sir Colin MacKenzie, was an Australian anatomist, benefactor, museum administrator and director who died in 1938; his wife Lady Winifred MacKenzie died on 21 February 1972.

Lady Winifred Iris Evelyn MacKenzie left a will dated 4 April 1966 and codicil dated 14 February 1969 (‘the will’) establishing the Sir Colin and Lady MacKenzie Trust Fund – a charitable trust (‘the trust’); the income of the trust was to be applied one third in favour of the committee administering the Sir Colin MacKenzie Sanctuary (‘the gift to the sanctuary’) upon the condition that its name never be altered from the ‘Sir Colin MacKenzie Sanctuary’; and two thirds for the provision of prizes and grants for studies in comparative anatomy (‘the gift for anatomical studies’)

Since the early 1980s, the sanctuary has been commonly known as ‘Healesville Sanctuary’; this name is used for advertising and promotional purposes. In June 2002 the registration of the name ‘Sir Colin MacKenzie Sanctuary’ lapsed; it was re-registered in February 2014.

Trustee’s Enquiry

The trustee of the trust (‘the trustee’) sought answers to the following questions concerning the administration of the trust:

(a) whether the name of the Sir Colin MacKenzie Sanctuary has been altered from the ‘Sir Colin MacKenzie Sanctuary’;

(b) whether the result of any such alteration is that the gift has lapsed; and

(c) if so, how funds gifted to the sanctuary ought to be applied.

The second issue is whether the alteration of the name of the sanctuary was contrary to the condition imposed by the will. If so, the gift will be said to have lapsed.

The Sanctuary

The will directed that, if the name of the sanctuary is altered, the funds which comprise the gift to the sanctuary become a part of the gift for anatomical studies.

The Court ordered that the gift to the sanctuary according to clause 3(ii)(A) of the will lapsed on 27 June 2002. The funds gifted are to be applied as part of the gift for anatomical studies according to clause 3(ii)(B).

Clause 3(ii)(B) of the deceased’s will provides that the allocation of prizes and grants shall be decided by the committee.  

In September 2010 the Court declared that the gift in clause 3(ii)(B) could no longer be carried out according to the direction in the will and authorised the trustee to administer the gift for anatomical studies cy près.

The will makers intention

In construing the intention of the testator the Court should give regard to the text of the will only, and not speculate as to the testator’s broader intentions by reference to extrinsic evidence. 

A condition of the will clearly and unambiguously imposes a condition that the name of the sanctuary never be altered from the ‘Sir Colin MacKenzie Sanctuary’  the alteration of the name of the sanctuary from the ‘Sir Colin MacKenzie Sanctuary’ was a breach of the condition imposed the will. Accordingly, the gift to the sanctuary has lapsed when the name ‘Sir Colin MacKenzie Sanctuary’ ceased to be registered on 27 June 2002.

Correspondence received on 30 September 2009 appeared to confirm that the name had been changed. Although nothing indicates that the plaintiff acted with anything less than good faith in making payments on 22 October 2009, 2 May 2011 and 2 May 2012 those payments were not made reasonably as the plaintiff was on notice that the sanctuary no longer complied with the condition attached to the gift.

The trustee sought exoneration from liability pursuant to  s 67 Trustee Act 1958 (Vic); it had acted honestly, reasonably and ought fairly to be excused. 

The Court considered that after about seven of the ten years, the trustee was placed on notice that there may have been a breach of the terms of the gift and ought to have ceased distributions. 

A more onerous burden is placed upon professional trustee companies to satisfy the Court that it is entitled to relief; therefore although it was not intentional, negligent, or dishonest the trustee should have sought judicial advice as to how the trust funds ought to be administered.

The Court’s decision

The Court concluded that the trustee ought to be excused from liability for distributions made in breach of trust before it was put on notice, but not afterwards. The Attorney-General, as protector of charities, should decide whether to pursue a claim for breach of trust against the trustee to recover losses and interest for the period when it was not excused from liability.

The Court found the distributions were made in breach of the trust ordering that the trustee pay to make good the loss caused by the breach and put the trust in the same position as if the breach had not been committed.

Promissory Estoppel & Washing Unclean Hands

Promissory Estoppel is an equitable remedy that operates where a person has acted in reliance of a promise made. Where the promisor induces the promisee to believe that certain contractual rights within their contracts will not be enforced and the promisee changes their position in reliance on that promise, the promissor will not be allowed to enforce those rights.

One equitable maxim is that one who comes to equity must come with clean hands (alternatively, equity will not permit a party to profit by their wrong doing). If you seek an equitable remedy but have acted wrongly, then you do not have clean hands and you may not receive the remedy you seek.

In May 2009, Alf and Marilyn Plath consulted a solicitor, about transferring their house at Turkey Beach, for $315,000 to their son Ira. The contract acknowledged that a deposit of $15,000 had been received and the balance of the price to be paid, with interest, by yearly instalments of $30,000. The first instalment was to be paid a year from the completion of the contract, which was 1 June 2009. Ira also executed a mortgage in favour of his parents to secure this debt.

On 26 May 2009, the house was transferred to Ira and the mortgage was registered; Ira had never owned a house and became entitled to and with the solicitors’ assistance successfully applied for a first home owner grant, under the First Home Owner Grant Act 2000 (Qld).

Marilyn died in September 2010, and her property passed to Alf, who died in  June 2011. They were survived by seven children and named their daughters Alexis and Cheyenne Plath as executors (“legal personal representatives”) of their estate. In 2017, the legal personal representatives commenced proceedings in the District Court, claiming payment from Ira of the sum of $300,000 plus interest at the agreed rate, and recovery of the house.

Ira submitted that his parents told him out of gratitude for everything which he had done for them he would not have to pay any of the secured amount of $300,000 and that after 12 months he would be released from the mortgage debt. He relied upon his parents wanting to give the property to him, and acting in reliance on his parents representations, went ahead with the transaction; therefore his parents, and the personal representatives of his father’s estate, were estopped from enforcing the mortgage against him.

In the alternative, Ira claimed, calculated on a restitutionary basis, the reasonable value of the services which he said he provided to his parents, which he valued in a sum in excess of $800,000.

The District Court concluded that there was no basis for an estoppel, the documents were intended to have effect according to their terms and held the contract and mortgage enforceable.

On appeal, the Supreme Court accepted and it was sufficiently established that Ira signed these documents with the expectation, created by his parents, that he would never be required to perform the obligations within them. Alf, Marilyn and the respondents, as their successors, were estopped from enforcing the terms of the contract and the mortgage.

It is often stated that in order to enliven a claim for equitable relief, a party must come to equity with clean hands. In the ordinary course, this doctrine requires that there be a connection between the plaintiff’s unclean act and the rights he or she wishes to enforce. Ira’s actions in claiming the first home owners grant raises the question of whether a party which obtains a wrongly obtained grant merits equitable relief.

The Supreme Court accepted that equitable relief was conditional upon Ira repaying the grant in order that the appellant’s unclean hands may be “washed”. Ira undertook to repay to the State of Queensland the first home owners’ grant paid to him with any interest and penalty owed.

Dowager Lucan’s entire estate left to the homeless

In November 1974 Richard Bingham, 7th Earl of Lucan commonly known as Lord Lucan, vanished after his children’s nanny Sandra Rivett, was found bludgeoned to death, and his ex-wife was severely beaten with a lead pipe.

Lord Lucan’s car was later found abandoned and bloodstained in Newhaven, East Sussex. An inquest found that Lord Lucan killed Sandra after mistaking her for his wife.

Following school Lord Lucan was a second lieutenant in the Coldstream Guards, before becoming a merchant banker. Although a reasonably successful gambler as a young man he was less so when he left banking to become a professional gambler and was Bankrupt when he disappeared.

A report to creditors in August 1975 stated his unsecured debts at £45,000 and liabilities of £1,326. His assets were estimated at £22,632. In order to discharge his debts, the family silver was sold and the balance was repaid from proceeds from the Lucan family trust.

Custody of the children was transferred to Veronica’s sister and brother-in-law following her diagnosis with mental illness; she hadn’t spoken to her children in more than 35 years and had never met her grandchildren.

The Presumption of Death Act 2013 was passed allowing an application to the High Court to declare that a person is presumed dead. Death is taken to occur on

(a) the last day that they could have been alive (if the court is satisfied that they are dead), or

(b) the day seven years after the date they were last seen (if death is presumed by the elapse of time).

As the 7th Earl of Lucan was last seen alive in 1974 (notwithstanding numerous alleged sightings since that time) the Court issued a death certificate enabling his son George to assume the family title as the 8th Earl of Lucan

Veronica, who formally became the Dowager Countess after the death certificate was issued for her husband, died from an overdose following an incorrect self-diagnosis of Parkinson’s disease.

Veronica left her entire estate of £576,626 to the homeless charity Shelter. Leaving her estranged children George, 8th Earl of Lucan, his sisters, Lady Camilla Bloch, QC, and Lady Frances Bingham out of her Will on account of having

”the lack of good manners and reverence shown to me as their parent, I do not wish any of my three children to benefit from my death any more than they have to”

It was reported that George applauded his mother’s decision to provide a legacy to” a fantastic and worthwhile charity” adding that the property in which she lived was made available to her rent-free for the latter part of her life under an arrangement ”put in place by my sisters and I” with the family trust and was not part of her personal estate.

Intention that a document is to be a Will

A testator must, at the time of signing, have had an intention to put
into effect a document that comes within the definition of a will. This intention can be expressed in the document, by the commencing words:

”This is the last will and testament …”;

or implied by the form of the document. Oral evidence is admissible to prove testamentary intention.

The definition in Sch 1 of the Acts Interpretation Act 1954 (Qld) provides that “document” includes:

(a) any paper or other material on which there is writing; and

(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and

(c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

The following events took place in a hospital room in a private hospital at the Gold Coast. The testator was a Chinese National with substantial investments in Queensland who spoke and understood little English. He was being supported through the last stages of his illness by a nephew who was present during the events. The testator’s executor Doris Choi had been involved in his business affairs for some time.

Due to the testator’s bad health the will was executed in urgent circumstances wIth the intention that it be a temporary will pending preparation and execution of a more complete document As it turned out, the testator’s condition deteriorated rapidly and he did not execute any further will.

Doris engaged a solicitor, to assist in the preparation of the will who had regularly undertaken legal work for the testator’s businesses but was not an estate lawyer. It is important to note that the testator did not understand what passed between Doris and the solicitor. The testator’s appreciation of events, for the purpose of assessing his awareness and approval of the contents of the will, depended on what passed between him and Doris .

The solicitor advised Doris that the testator needed to name beneficiaries and specify the proportions of the estate for each beneficiary. The nephew sent Doris a video clip of the testator specifying his two daughters and two sisters as beneficiaries. Following this Doris sent an electronic message to the testator enquiring whether his estate was to be distributed equally before receiving a response Doris sent details of the proposed beneficiaries to the solicitor following this the testator replied to her request (about equal distribution) stating that he hoped everyone would agree.

Although, there was no evidence that the testator had any appreciation of Chinese law on the subject the Court of appeal had consulted the Law of Succession of the People’s Republic of China as in that jurisdiction the time and mode for partitioning the estate shall be decided through consultation by and among the successors in the spirit of mutual understanding and mutual accommodation.

Later that day, Doris and the solicitor met with the nephew and the second witness attended the testator in his hospital room. While drafting the will on her personal computer, the solicitor asked Doris whether the testator had decided the distribution proportions. Doris responded that the testator hoped everyone would agree but had received no further information.

As a result of this conversation, the solicitor prepared the draft will providing expressly that the distribution to the beneficiaries would be made equally, although the clause was set out in a way that would readily enable amendment to insert differential proportions.

Shortly after Doris and the solicitor arrived, the testator without further explanation asked for the will took the document and signed it. He then wrote in Chinese characters confirming that his assets were to be given to four beneficiaries although he was “not yet decided” on the proportions. Following her explanation of the operation of the express provision of the will as to equal distribution and a short discussion among those present Doris asked the testator in Mandarin:

“What do you want to write? Equally distributed among four people.”

The testator replied:

”No, not equally – not equally distributed” .

Doris told the solicitor that the testator wanted to cross out equally; then said to the testator in Mandarin

“So we will delete the word”

and told him to initial the change, which he did after the word equally had been crossed out. Following that, the witnesses witnessed the will.

The execution of the will complied with the requirements of s 10 of the Succession Act 1981 (Qld). However, the circumstances attending the execution of the will raised a real question as to whether the testator knew and approved of its contents and effect.

Did the testator intend to execute: a will that had the effect of leaving his estate to the four named beneficiaries equally, or on the footing that the distribution was not to be equal and that he had not made up his mind as to what their shares would be.

At first instance, the Court found that at no stage before or after the testator signed the deletion did Ms Choi seek confirmation from the testator that he understood that the deletion would have no impact on the assets being distributed equally between the four beneficiaries contrary to his express wishes.

Further, if the testator understood Doris’s statement that the distribution would be equal, absent an allocation of proportions, there was no rational basis on which the testator would have required the word “equally” to be crossed out.

Significantly the testator was not asked, at the time Doris gave her explanations to confirm that he understood them in particular, whether he understood and was not advised that crossing out the word “equally” would still result in an equal distribution of assets between the beneficiaries.

The appellant’s argument was whether the will should be admitted under s 18 of the Act. Section 18 outlines the circumstances when the court may dispense with execution requirements for a will, alteration or revocation of a will.

On appeal, the sole question for determination is whether that finding, made by inference, was incorrect. The draft will executed by the testator was written in English; the testator did not understand written English. The Solicitor did not speak Mandarin and did not understand the conversation between Ms Choi and the testator. Ms Choi and the Solicitor spoke to one another in English, and the testator did not understand the conversation between them. The nephew spoke both Mandarin and English. The language capabilities of the other witness were not established.

The Court found on the part of the primary judge in reaching the conclusion that the deceased did not understand or approve of the document providing for an equal distribution to the beneficiaries as his last will.

Crisp Order

A Crisp order is a Court Order that provides an applicant with a portable life interest in particular items of estate property; allowing the applicant to use the value of specific estate assets to secure appropriate accommodation and to meet their ongoing maintenance needs.

”… such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff’s benefit, more appropriate accommodation… intended to provide flexibility, by way of a life estate, the terms of which could be changed to “cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital”

Ken Kui Yuen Lau (“Ken”) died in March 2018 at the age of 81. Man Ling Ng (“Mary”) is 74 years old and is Ken’s widow from his second marriage. In addition to Mary, Ken was survived by his only child from his first marriage, Gary Pui Kuen Lau (“Gary”), he is 45 years old and the only other beneficiary of Ken’s estate (the “Estate”).

Ken married his first wife, Grace, in 1972. Their son Gary, was born in 1974. Grace died in 1998.

Gary lived with Ken in the family home (”the Peakhurst property”) until he married in 2000 and bought his own home with financial assistance from his father.

Ken married Mary in September 2001 and they remained married at the time of his death in March 2018. Mary’s marriage to Ken was her first; she has no children.

Shortly after they married, Ken purchased and the couple moved into the Bexley Property. Although Mary continued to work as a registered nurse, she reduced her hours over the years at Ken’s request.

The 2001 Will

Six weeks after Ken married Mary he executed the 2001 Will at his solicitor’s office; at the same time, Mary made a will.

Ken appointed Mary as his executor, left the Peakhurst Property to Gary and gave the residue of his estate to Mary.

In 2012 Ken was diagnosed with bladder cancer; Mary gave up work to care for him. In 2014, Ken was diagnosed with prostate cancer and was in and out of the hospital for the last few years of his life. Ken’s health deteriorated to the point that in 2017 he was bedridden with Mary providing care for him at home in the Bexley Property until his last hospital admission in March 2018.

During the course of their relationship, Mary contributed to their costs of food, entertainment and holidays. Although, in the last months of his life, Ken transferred a total of $110,000 to Mary the Court accepted that Mary and Ken maintained largely separate finances and assets.

The 2016 Will

In November 2016 Ken had a solicitor draw up a Will (”the 2016 Will”) appointing Mary and Gary as joint executors and trustees; leaving the Peakhurst Property to Gary; a life estate in the Bexley Property to Mary, with Gary as remainderman; and the residue of his Estate to Mary and Gary equally.

The Court had to determine probate between the two wills and a family provision claim pursuant to the Succession Act 2006 (NSW) with alternate claims brought by both Mary and Gary depending on the Will the Court admitted to probate.

The Court determined that the 2016 Will should be admitted to probate as there were no demonstrated suspicious circumstances to suggest that Ken did not know and approve the contents of the 2016 Will, or that the 2016 Will did not truly reflect his testamentary intentions.

Family provision claim

Mary submitted that her present financial circumstances and needs warranted further provision out of the Estate.

Since retiring in 2012, Mary relied on a super fund pension and rental income from a property she purchased in Eastwood, NSW (the “Eastwood Property”). Mary holds the Eastwood Property unencumbered and in her name alone. After Ken’s death, Mary commenced receiving his Comsuper pension of $743 per fortnight.

The Court found that the 2016 Will does not make adequate provision for Mary’s proper maintenance and advancement in life as it gave her only a life estate in the Bexley Property.

Having regard to all the circumstances of the case at the time of the hearing, the Court held that a life estate fails to address the reality that Mary will need to move from the Bexley Property within a few years to more suitable accommodation due to her age.

The Court wasn’t satisfied that the life estate gave Mary the flexibility of choice as to her future accommodation; this would properly be achieved by way of a Crisp order, made in favour of Mary in relation to the Bexley Property.

The Court accepted Gary’s submission that a Crisp order provides the flexibility enabling Mary to continue to reside in the Bexley Property for as long as she desires or is able, with the security to deal with her accommodation as she ages – on condition Gary resigns as co-executor – and additional provision of $45,000 ought to be made for Mary’s maintenance or advancement in life. However, as Mary has adequate income from the Eastwood Property and Ken’s Comsuper pension, to meet rates, insurance and subsequent maintenance costs for the Bexley Property.

A Crisp order is preferred by the Court because it provides the least alteration to Ken’s testamentary intentions. On Mary’s death, Gary will obtain the remaining capital benefit of what is currently the Bexley Property.