“Reasonable Prudence” & the Motorhome

Lloyd Wade had two children from his first marriage: Robena and her brother, Geoffrey.

In 1993, Lloyd met Francesca Duck. They lived together in a defacto relationship from around that time until he died in 2011.

In April of 2005, Lloyd and Francesca purchased a motorhome. They made a down payment of $20,000 taking out a loan of $126,493.10 the balance of the motorhome’s purchase price (the “Loan”). The Contract provided that Lloyd, his company Spring Cove, and Francesca, were joint purchasers of the motorhome, and were jointly and severally liable for the sales contract obligations.

Joint liability means that two or more people together (jointly) promise to do the same thing. Several liability exists where two or more people make separate agreements with another party.

When taken together, joint and several liability arises. The effect of this is that the people both together, and separately, promise to do something.

This results in one joint obligation and multiple several obligations. Since it is one obligation, performance by one person discharges all the others of their obligations. Until the obligation is discharged, however, each individual is liable for the entire obligation until it is performed.

The motorhome was originally registered in Spring Cove’s name. Six months later, on October 28, 2005, the ownership was transferred to Lloyd, however all payments on the Loan were made from Spring Cove’s accounts.

Lloyd died in June 2011, under his will Francesca was appointed executrix and obtained a grant of probate. As executrix Francesca made 26 monthly payments for the motorhome from the company account. Estate funds were later used to pay the outstanding loan balance.

Francesca gave evidence that Lloyd parked the motorhome in the driveway of their home in 2010, and that it remained parked there until 2012. Francesca claimed she did not consider the motorhome to be hers and apparently did not inspect or care for it until the spring of 2012 when a friend inspected it and discovered significant damage.

As executrix and trustee of Lloyd’s deceased estate Francesca transferred the motorhome for no consideration, to a friend who would assist her in determining the cost of repairs and would complete them. If the cost of repairs exceeded the resale value, the friend could keep the motorhome. Alternatively, the estate could reimburse the cost of the repairs and the motorhome would be returned to the estate.

Between July 2011 and August 2013 the estate made monthly payments on the motorhome from the Spring Cove account, at which point the funds in the account were exhausted.

In August 2013, Francesca sold the home she shared with Lloyd and paid the outstanding balance of the Loan (approximately $97,322) from the estate. The total amount paid by Spring Cove and the estate on the Loan was approximately $123,571.

In October 2013, Lloyd’s daughter Robena filed a petition seeking the removal of Francesca as executrix alleging that she had improperly paid the Loan with estate assets. The Court ordered Robena to replace Francesca as administrator of the estate and pay into trust the $125,000 she received as proceeds from the sale of the Clearwater home, pending the outcome of further litigation.

In 2017, Robena sought to establish Francesca’s liability for the loss of value in the motorhome, and brought an application to recover the funds that Francesca had used to pay off the loan.

The Court found that Francesca was not liable to the estate for 50% or any part of a debt incurred in the purchase of a motorhome or for the gift of the motorhome to a friend after Lloyd’s death. Ordering the release of funds held in trust to Francesca.

Robena appealed, the Court held Francesca, as the former executrix of Lloyd’s estate, was personally liable for the deterioration of estate property and jointly and severally liable for a loan paid in full by the estate as:

  • The contract unequivocally expressed Francesca had joint and several liability for the loan, she signed the sales contract alongside Lloyd, making her jointly and severally liable to the bank for the motorhome loan.
  •  Lloyd and his estate had paid the entirety of the motorhome loan. Therefore, Francesca was liable to pay the estate 50% of the monies paid towards the loan out of the estate – which was $61,785.
  •  Francesca’s failure to exercise “reasonable prudence” in preserving the motorhome, and her decision to transfer the motorhome for no consideration diminished its value was a breach of her duty to maintain the motorhome. Therefore she was personally liable for the loss. She was ordered to pay $30,000 to the estate, which is what she herself said it was worth at the time of the Deceased’s death.

In total, the Court ordered $91,785 to be paid to estate from funds held in trust for Francesca.

 

Richie Benaud’s Family Provision Claim

 

Richie Benaud, was an Australian cricketer and Broadcaster who, became Australia’s Test captain and the first player to reach 200 wickets and 2,000 runs in Test cricket. He has been described as “perhaps the most influential cricketer and cricket personality since the Second World War.”

Richie married Marcia Lavender in 1953; the marriage lasted 14 years and produced two sons, Gregory and Jeffery.

In 1967 Richie divorced Marcia and married Daphne Surfleet just as he was beginning his broadcasting career. He and Daphne lived in Coogee and the south of France. It was reported that Richie liked being near the ocean,

“I love looking at water,” he said. “It’s quite something to come home to … to come home from overseas and see Wedding Cake Island, it’s just beautiful.”

The Coogee apartment could sell for over $2 million with the French flat, worth between $1 million to $1.5 million.

A former spouse of the deceased may be eligible to apply for family provision. In NSW a former spouse of the deceased is eligible without having to meet any further criteria of eligibility.

The Act defines a dependant as including the child, and a former wife or husband of the deceased person, and gives the Court scope to assess if adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the will of the deceased person.

Marcia and her son Gregory contested the Will in the NSW Supreme Court.

It was reported that in Greg’s opinion, that the action was not a money grab but the will did not provide adequate provision for his mother Marcia, who hadn’t spoken to Richie for 20 years and wasn’t invited to his funeral.

Greg’s lawyer told the court “We don’t know what the size of the estate is.

Daphne produced a verified schedule of their financial resources, including assets, liabilities and provide financial documents relating to superannuation the estate which reportedly includes complex property trusts, superannuation funds in Australia and overseas, as well as managed investment funds worth tens of millions of dollars.

Factors relevant to a claim by a divorced wife include the culpability of the deceased in relation to the grounds of the divorce, the length of time from the separation of the spouse and the course that the lives of the two spouses have followed since separation.

Richie wrote of his divorce from Marcia: “My wife and I had been separated for over two years and I was divorced for desertion”. He agreed to pay his ex-wife Marcia $52 a week and $10 a week each for his sons and she got the matrimonial home in Carlisle Cres, Beecroft, which was to be held in trust for the boys.

Richie continued to pay Marcia some alimony every two weeks up until his death, although the amount is not known. She never remarried.

Marcia and Greg lived together in a Department of Housing property in Erina, on the Central Coast. Daphne made a settlement offer to Marcia and Gregory which was declined while they ascertain the true value of the estate.

Richie’s estate includes pension funds in Australia as well as property trusts and managed investment funds and He and Daphne had property in Coogee and Beaulieu-sur-Mer in the south of France where they spent much of the year when Benaud worked in England.

The matter was resolved through mediation between the parties.

Following the mediation Marcia said she was very happy about the outcome and pleased the matter was resolved.

Greg said “Daphne has always been kind to my brother and myself,” and that there was no animosity between them. He said that Richie had told him that if he received a letter from the estate’s lawyer saying I was eligible to make a claim that I should do so. I received that letter following an earlier letter saying I was a beneficiary. I followed my dad’s wishes and I am pleased.”

Early in the day the court highlighted the pitfalls of going to trial, saying it would be costly, uncertain and take some time to  be resolved. Following the agreement the Court stated that if it went to trial  “it would have been a lot longer than one day and I’m sure that it would have been more difficult for all of you”.

 

 

 

 

 

 

 

A Daughter, the De Facto, and Ademption

 

David Bonnici died in December 2014, leaving a will dated 26 May 2010. Probate of the will was granted in January 2016 to David’s former de facto spouse Narelle Reynolds (the plaintiff) and David’s eldest daughter Alison by a previous relationship (the defendant), the executrices named in the will.

Narelle applied for an order that the grant of probate made to her and Allison be revoked and that a grant of administration with the will annexed be made to her alone. Allison under a cross claim sought a declaration that the gifts to the plaintiff in the will of the deceased have adeemed.

Narelle also made a family provision claim. Against the possibility that provision made for her in the Will of the deceased has adeemed.

David had three children an adult daughter and son by a previous relationship; and a daughter born in April 2008 with Narelle. The de facto relationship commenced in August 2007 and ended sometime after she had moved out of the family home at in December 2010.

David and Narelle had not agreed to an arrangement for settlement of maintenance and property claims or a formal agreement enforceable as a settlement under the Family Law Act or any comparable legislation.

The will declared under the heading “Special gifts” that

“my partner [Narelle] is the beneficiary of my super.”

In clause 4(g) it declared that

“[my] furniture is to be given directly to [Narelle] without any payment required to assist in raising our daughter. “

Under the heading “Real estate”, clause 5, that three specified properties be sold and that the proceeds of sale go to the three children and the plaintiff: one property (the former family home) at Church Point, another at Westmead, the third in Queensland however David’s father has a right of residence in the Queensland property.

Clause 6, of the will named David’s three children and his defacto spouse as his residuary beneficiaries.

Clause 8 provided:

“If any of my children die after me but before reaching his or her age of inheritance (18 yrs), their portion of the estate will go to the remaining beneficiaries.”

Neither party to the proceedings attributes particular significance to the use here of the word “portion”, which accords with the word “share”.

David sold the Westmead property in 2010.When a gift of specific property prospectively made by a will fails because it has been destroyed or transferred out of the ownership of the will-maker it is said to have been “adeemed”. David’s testamentary gift of the proceeds of sale of that property was the subject of an ademption.

In late 2010 David and Narelle purchased a property in Mona Vale as trustees of their superannuation fund. Following David’s death, it was transferred into the superannuation fund.

Alison argued that the gifts to Narelle in David’s will have adeemed ‘because there is an implied revocation of the gift of the legacy:  At a time when the relationship between the Narelle and David was coming to an end, the gifts have already been satisfied through the agreement to provide funds so that the trustee of the [superannuation fund] could purchase the Mona Vale property for Narelle’s sole benefit.

A will made by one spouse in favour of another might have been superseded, in whole or part, by a formal “separation agreement” made for the provision of maintenance, or for a settlement of matrimonial property claims, upon the termination of a marriage. However the Court wasn’t satisfied that David ever intended the purchase of the Mona Vale property as a joint investment (and ancillary transactions) to operate as a legal impediment to any entitlement the plaintiff might prospectively have to gifts made in his will.

The Court held that there was no foundation in the principles governing an ademption to deny the validity of any of the gifts made in favour of Narelle in David’s Will.

David could have revoked or altered his will but he did not. Nor did he seek a property settlement via a “financial agreement” governed by the Family Law Act 1975; he continued a joint investment with Narelle through the parties’ ongoing superannuation fund.

It is important that you create a Will and keep it up to date. Otherwise it can add to your loved ones stress at an already difficult time.

 

 

What happens if an asset gifted in your Will has been sold

I was recently asked what happens if you’ve given a specific item away in your Will but it has been sold or given away during your lifetime. Similarly if an asset being gifted changes in description after the Will is made. An example of this would be where the gift in the Will is described as “the proceeds of a bank account numbered A13659X”. If that bank merges or is taken over and the money is re-allocated to a new account number as a result, then the gift is no longer accurately described in the Will and could fail because it no longer forms part of your Estate.

This is called the Rule of Ademption and it can occur where the item is given away or sold during the Testator’s lifetime

The word “ademption” derives from the Latin noun ademptio, meaning “a taking away”.

The concept of ademptio was adopted from the Roman law of succession, where an inter vivos gift to a beneficiary, giving to the beneficiary the value of a thing otherwise to be gifted by will, could operate as a gift in substitution for the legacy

An inter vivos gift is a gratuitous transfer of property to another person while you are alive, as you no longer own that property when you die the property is unaffected by intestacy or your will.

To qualify as an inter vivos gift the transfer must meet the following:

  1. Intent — The donor must intend to make a gratuitous transfer.
  2. Delivery — The property must be delivered to the donee.
  3. Acceptance — The donee must accept the property.

There are many situations in which a valid legacy might “adeem”:

The most commonly encountered form of ademption. Is when a gift of specific property prospectively made by a will fails, (because it has been destroyed or transferred out of the ownership of the will-maker) and is said to have been “adeemed”, if that property no longer exists at the time, upon his or her death, the will becomes effective

A parent, with an obligation to provide for another person, makes a will containing a gift to that person, but later in their lifetime of the donor makes a substantial gift to the donee, the gift inter vivos is taken to be a satisfaction pro tanto of the gift prospectively made in the will. The operative principle is sometimes spoken of as “the doctrine of the satisfaction of a legacy by a portion” or, more properly, “the ademption of a legacy by a portion”: In this situation the testamentary gift is said to have been “adeemed”, in whole or part, by the inter vivos gift. Both gifts must be in the nature of a “portion” If a will prospectively provides a gift for a particular purpose and the will-maker subsequently makes an inter vivos gift for the samepurpose, the testamentary gift is “adeemed” even though the will-maker does not stand in loco parentis to the beneficiary of the testamentary gift: an “ademption of a legacy given for a particular purpose”.

An “express ademption” occurs where a will-maker executes a will containing a gift (to be effected when, on the death of the will-maker, the will becomes operative) and subsequently makes an inter vivos gift with the express intention (known to the donee at the time of acceptance of the inter vivos gift) that the inter vivos gift should adeem the testamentary gift pro tanto.

There are exceptions to the rule of ademption including:Where the gift has been removed by fraud or by a tortuous act unknown to the testator as recognised in Earl of Shaftsbury –v- Countess of Shaftsbury [1716] 23 ER 1089. The Earl of Shaftsbury made a will giving all his household goods and furniture in his leased house at Ryegate to his wife. The Earl went to sea and appointed his steward who negotiated a surrender of the lease and removed the goods to another house. He wrote an account to the Earl who approved it. It was held that the bequest adeemed and did not pass to the Countess but said that had the goods been by Fraud or by a tortious act the result would have been otherwise.

Where an agent disposed of the gift the subject of the bequest outside of the terms of the agency and without the knowledge of the testator as in Basan –v- Brandon [1836] 59 ER 68  An agent disposed of the property the subject of a bequest outside the terms of his authority and without the knowledge of the testator, it was held that the gift had not adeemed and could be traced into the reinvestment.

Where the gift is still in the estate in substance although changed in name and form as in Oakes –v-Oakes [1852] 68 ER 68 ademption is bought about by the voluntary act of a Will maker in relation to the property in such a way that it is no longer “substantially the same thing”

As I have posted before your Will is a planning document that should be updated regularly in order to reflect your current life circumstances.

 

 

 

 

 

Prince Estate Announces New Album

In April 2016 Prince Rogers Nelson died aged 57 at his home, in suburban Minneapolis Minnesota. Estimates of his estate range from $150 million to $300 million.

On the second anniversary of Prince’s death his estate has released an original recording of ‘Nothing Compares 2 U and launched two new websites – the retrospective Prince Discography annotated, and the fan focussed Prince2Me.

The estate announced that on September 28 a new Prince Album will be released which will comprise a set of songs created at the same time.

There are also plans for the release of a Prince memoir at the end of the year. The artist delivered 50 pages of handwritten work to a publisher before his death in 2016.

Prince’s previous executors Bremer Trust, struck a global agreement with the superstar’s former record company Warner Bros Record however Prince had entered a deal with Jay-Z’s music streaming site TIDAL a month before his death.

Comerica Bank & Trust, which replaced Bremer as administrator of the estate the day after the Universal deal was signed asked the Court to rescind the deal to avoid litigation, as it “cannot unequivocally assure” the court that the two contracts do not conflict.

Three of Prince’s half siblings Sharon, Norrine and John R. Nelson were upset that Comerica removed the contents of Prince’s vault from his Paisley Park studio complex in Minnesota without their permission and shipped the materials to California and filed a motion to remove Comerica Bank & Trust as estate executor. Comerica has said the company discussed the move with the heirs.

Courts ordered an investigation into the nullified $31 million deal between the Prince estate and Universal Music Group. The deal comprised all of Prince’s music not under contract to Warner Music as well as the contents of his “vault” reportedly containing thousands of unreleased recordings. The deal was rescinded following the investigation of Warner’s claims it held the rights to some of the recordings included in the Universal deal due to expiration dates of Warner’s rights over them.

TIDAL claimed that the deal included the streaming rights to Prince’s entire back catalogue and exclusive rights to his latest release HITnRUN; as well as an additional unreleased full-length studio album and exclusive streaming rights to Prince’s previously released catalogue; in November 2015, Prince pulled his entire catalogue from all other streaming services.

However, the Prince estate questioned the validity of Prince’s agreement with Tidal. During the legal battle, Prince’s catalogue returned to all major streaming services.

The estate charged TIDAL with streaming Prince content illegally, and demanded specific documents be shown. TIDAL refused, saying these documents were confidential. The dispute was settled in April with all parties satisfied.

Two days after a Minnesota judge said it was in the best interest of the estate to end litigation and allow the deal to go forward. It was announced that a new album of previously unreleased music from Prince’s storied Vault would debut on TIDAL in 2019.

“I’m very pleased this is resolved, and we get to honour the relationship between Prince and Tidal with this album. We look forward to fans hearing the new music and experiencing the genius of Prince.”

The album will stream exclusively on Tidal for 14 days and will be available for download seven days after its debut. That will be followed by a global physical release by the Prince estate.

Jay-Z is working with the Prince estate to select songs for the new album.

There are also plans for the release of a Prince memoir at the end of the year. The artist delivered 50 pages of handwritten work to a publisher before his death in 2016.

Comerica and its lawyers have already collected at least $5.9 million in fees and expenses, and the lawyers for Sharon Norrine and John wrote “There is legitimate concern that at the end of the Estate’s administration there will be little, if anything left to pass on to the Heirs,” the $5.9 million doesn’t include a pending request for nearly $2.9 million in fees and expenses for Comerica and its lawyers.

The Carver County District Court has admonished everyone to keep spending under control, writing that the estate “is not an unlimited resource!”

It is worth noting that although Prince didn’t leave a Will and his assets were controlled by a trust the fact that he didn’t leave a clear direction for how his estate would be distributed following his death.

Reg Grundy, Rich List & A Nominal Estate

Reg Grundy died in Bermuda (his place of domicile) on 6 May 2016, aged 93 years, leaving a will dated 21 January 2011 and sufficient property in NSW to ground the jurisdiction of the Court to admit the will to probate.

In 2015, Reg’s wealth was estimated as being $809 million, a figure largely stemming from the $320 million sale of Grundy’s company to Pearson Television in 1995.

Reg had one a daughter from his first marriage. She changed her name by deed poll in 2000, to her present name, Viola La Valette. She has been known as Robin Grundy.

There was a degree of estrangement between Reg and Viola, which he referred to in his autobiography

“The loss of my daughter is the greatest heartbreak in my life. I have lost a daughter and gained a wife who is the light of my life. If only the three of us could have lived happily ever after.”

Joy Chambers-Grundy is Reg’s widow, executor and, having survived him by 30 days, takes “the remainder” (the residue) of his estate after provision of a lifetime annuity of $US250000 granted in favour of Viola and payment of his just debts, funeral and testamentary expenses.

The limited provision made for his daughter in his will may be due to his disappointment with Viola’s treatment of him and his belief that she was unreliable in her handling of property and in need of protection.

In April 2017 Viola applied, for a grant of family provision relief in respect of the estate, or notional estate, of the deceased.

Generally speaking a Family Provision Claim is made in a jurisdiction where the deceased lived at the date of their death, or owned assets in that jurisdiction, or both.

In most Jurisdictions legislation governs who can bring a claim against a persons estate. Generally speaking this is:

  • The deceased’s spouse, a person living in a de facto relationship with the deceased at the time of death, a person living in a close personal relationship (such as a volunteer carer) with the deceased when the deceased died;
  • The deceased’s child;
  • The deceased’s former spouse;
  • A person who was:
  • Dependent (wholly or partly) on the deceased at a particular time (this may include a former de facto spouse, parent, sibling, or step-child; and
  • A grandchild of the deceased, or a member of the household of the deceased;

and

  • believe they have been left without adequate provision for the proper maintenance, education or advancement in life.

The Court takes a number of factors into account: the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim.

Adequate provision is unique and therefore difficult to define.

The Court considers a broad range of factors, as the definition of adequate provision is unique to each circumstance brought before the court.

Joy was reticent to provide Viola with a copy of her father’s will claiming that Reg had died without assets. Correspondence from the estates solicitors stated;

Dr Grundy died without any assets in his sole name, so that his estate owned no assets upon deathTherefore, Dr Grundy‘s Last Will will not be submitted for probate in the Supreme Court of Bermuda.”

In April 2017  Viola’s solicitors requested that Joy provide them with the information identified in that paragraph, they declined the request responding:

“As ought to have been clear from our letter of 12 April 2017:

(a) Dr Grundy died domiciled in Bermuda and left no estate whether in Bermuda or elsewhere;

(b) the law of New South Wales is irrelevant and the Courts of New South Wales have no jurisdiction;

(c) we do not now have, and nor will we be seeking, any instructions to accept service of any misconceived proceedings that your client should care to issue in New South Wales.

Viola’s solicitors noted the Bermuda lawyers’ statement and invited them to address the question of notional estate, both generally and by specific reference to particular items of property located in New South Wales, which they contend constitutes the notional estate.

Notional estate orders are orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased’s death (either with or without the intention of defeating applications for family provision).

Notional estate provisions brought to the forefront the distinction of ‘estate versus notional estate’ that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982(NSW). It made explicit in the legislation that ‘estate’ and ‘notional estate’ were different. Things subject to contracts (like mutual wills) were not within the definition of ‘estate’. To bring such property within the legislation required now the application of the complex procedures and definitions of ‘notional estate’. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act.

Joy submitted that if the case were hashed out in open court, it would cause embarrassment, resentment and prurient media attention, which her husband never wanted and specifically avoided. Similarly the exact size of the estate shouldn’t be of relevance to the case.

However the court disagreed, and gave Viola leave to determine the wealth of her father included granting access to her father’s will and NSW properties for the purposes of valuing them.

The court also ordered he news organisation that published a rich list that estimated Reg’s wealth at $809 million release the documents that the calculation was based on to Viola. Joy disputes this figure claiming the estate had a net value of “not less than about $214 million”

 

Jones v Westcomb – What’s 300 years?

 

Politicians and media commentators often criticise judges who disagree with the idea that the judiciary should observe strict black-letter law by labelling them “judicial activists”.  An independent judiciary, and respect for the role of Courts and tribunals, is fundamental to the rule of law.

One of the distinguishing features of the general law is that judges decide cases according to the doctrine of precedent – essentially that cases involving the same material facts must be decided in the same way.

The doctrine of precedent serves the political ideal of the rule of law; according to that ideal, courts among other institutions of state, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties.

Recently the Queensland Supreme Court applied a rule formulated in 1711. It strikes me that a profession that is painted by some as activist stretches back 300 years in order to construe a will makers intention.

Hannes Kähler died on 5 November 2016 at the age of 72, never having married and without issue. Hannes had three siblings who pre-deceased him Jorst, Gesine and Steffen. Only Steffen had children, Maike, Tim and Anne. Steffen’s widow, Frauke the mother of Maike, Tim and Anne survived him.

Hannes’ parents had issue from other marriages, making those children Hannes’ stepbrothers and sisters. Antje and Hans-Gerd survived Hannes and are still alive. Jochen pre-deceased the testator and left no issue. Anne-Kathrin pre-deceased Hannes, and left two children who are still alive, Julia and Laura.

In November 2016, Hannes nephew Tim found a family tree prepared by Hannes with some handwritten notes written in German at the bottom and Hannes’ Australian Passport.

Tim did not find a Will but he did find a receipt for documents from a firm of solicitors that Hannes had deposited documents with in 1994 included a document described as “Will dated 15 January 1984”. Anne received a scanned certified copy of that document. Which was described as

Original handwritten document, which purports to be a Will, dated 15 January 1984;

 “MY WILL DATED 15TH JANUARY 1984

I, Hannes KAHLER, nominate as my sole beneficiary my brother, Mr. Steffen KAEHLER, of 52 Walkleys Road, Valley View, Adelaide, provided that he is not separated or divorced from his wife, Frauke Edith, nee BROLL, in which case my beneficiaries in equal shares shall be their children MAIKE, ANNE and Tim KAEHLER (3).

Townsville, the 15th of January 1984. H Káhler

My assets to date:

– Strata Title, Unit 4, 29 Stagpole St., West End (C/T in Safebox C’wealth Trad. Bank, Hermit Park)

– Cheque A/C and others with above Bank

– Superannuation Qld. Electricity Generating Board (to be Qld. Electricity Commission)

– Contents of above Home Unit

H Káhler 15/1/84.”

Hannes signature appeared at the end of each paragraph, and it was consistent with Hannes’ signature on his passport, a copy of which was deposited by Hannes with the handwritten document.

The court was satisfied that the document was an informal will as on the balance of probabilities that although it fails to comply with the formal requirements of a Will under the Succession Act it state Hannes testamentary intentions. The document is in his handwriting and titled as “my Will”, is dated and signed, and states the assets then available for distribution on his death. Although it does not appoint an executor, the document identifies the beneficiaries to whom his property is to be disposed upon his death.

The court was satisfied that Hannes never intended the document to be a draft will to be formally executed at a later date. It was deposited in safe custody with a firm of solicitors who gave him a receipt describing the document as a Will. The court believed Hannes intended the handwritten document to be his Will.

The informal will named Hannes’ brother Steffen as sole beneficiary,

‘provided that he is not separated or divorced from his wife, Frauke … in which case my beneficiaries in equal shares shall be their children’.   

At Hannes’ death although Steffen was dead he had not separated or divorced Frauke.

In determining whether there was an intestacy or the gift over took effect, the Court applied the rule in – Jones v Westcomb((1711) Prec Ch 316)

In Jones v Westcomb, a man made a will in favour of his wife for life and then after her death to the child with whom she was then pregnant, but if such child died before twenty-one, then the wife would be the beneficiary. However the wife was not pregnant at the relevant time.

Given that the testator willed, if his child died before 21, that the gift to the child should go to his wife; a fortiori(from the stronger argument)he would have intended that the gift over to her take effect, had he known at the time of the devise that she was not pregnant.

Where a testator has provided for the determination of an estate in any of two or more events, and has then given a gift over expressly to take place in one only of those events, the court will, in the absence of any indication to the contrary, imply, by way of necessary implication, an intention on the part of the testator that the gift over shall take effect, not merely in the specified event, but on the happening of any of the events which were to determine the previous estate.

In Hannes’ informal will, the real contingency for the gift over provision to apply was that Steffen was not living with his wife at the time of the testator’s death was satisfied by reason of Steffen’s death. The gift over to his children therefore took effect.