Tuesday, October 17, 2023

Another (brick in the wall)** - or statutory will case (as the case may be)

View Legal blog - Another (brick in the wall)** - or statutory will case (as the case may be) by Matthew Burgess

Recent posts have looked at various aspects of the statutory (or court ordered) will regime.

Doughan v Straguszi [2013] QSC 295 provides another example of how the courts approach these provisions.

In summary:
  1. A will maker had lost capacity leaving a will that did not deal with a number of assets and indeed was inaccurate in relation to one of the main assets, being the family farm.
  2. The will maker’s son was involved in litigation that had some prospect of ultimately resulting in his bankruptcy.
  3. The proposed court ordered will created testamentary trusts, primarily to benefit the will maker’s daughter and grandchildren.
In approving the will, despite the clear financial difficulties of the son, the court confirmed the following factors, were critical:
  1. There was significant evidence to show the longstanding connection of the family with the farming property.
  2. There was no doubt, based on the evidence, that the will maker wanted the property to stay in her family line for future generations.
  3. There was no evidence to suggest that the use of the testamentary trusts to benefit the daughter and grandchildren was a mechanism to simply shelter the wealth for the ultimate benefit of the son, once his financial difficulties had been resolved. This was an important distinction compared to other cases where applications for a statutory will incorporating testamentary trusts were rejected on the basis that they were simply designed to provide de facto control of wealth to a beneficiary who is otherwise facing bankruptcy.
  4. In other words, here, the intention was not to defeat the son’s creditors, rather it was to ensure that the substantive assets of the family were held in an appropriate structure for the benefit of future generations.
  5. The fact that there were also errors and unnecessary complications with the pre-existing will was also seen as important.
  6. Ultimately, the court was in no doubt that the will being proposed was precisely what the will maker would have done had she still had the capacity to do so.
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** For the trainspotters, the title of today's post is riffed from the Pink Floyd song 'Another brick in the wall'.

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