Will Kits Can Lead to Unforeseen Costs: Case Summary - Bain v Demarchi
In a recent decision by the Supreme Court of Queensland, Australia, the court ruled on a dispute between a step-father and the administrator of the estate of one of his step-sons - Bain v Demarchi [2023] QSC 199.
This article aims to provide an overview of the case and key takeaways.
Parties Involved
Respondent: Claudio Abele Demarchi (as Administrator of the Estate of Paulo Giuseppe Demarchi)
Applicant: Desmond James Bain
The Dispute
The core issue revolved around the Simultaneous Death Clause of the last will of Paulo Giuseppe Demarchi which was made using a Will Kit – “If any beneficiary/ies should die at the same time as I should die or within ……… days of my death, then he/she/they shall be deemed to have predeceased me.” Paulo’s mother Rhonda Bain was the sole executor and only beneficiary named in the Will and she died 13 days after Paulo. Paulo had written other things into the Will but had not changed the standard wording in the Simultaneous Death Clause.
Section 33B of the Succession Act 1981 (Qld) provides –
Beneficiaries must survive testator for 30 days
(1) If a disposition of property is made to a person who dies within 30 days after the testator’s death, the will takes effect as if the person had died immediately before the testator.
(2) Subsection (1) does not apply if a contrary intention appears in the will.
(3) A general requirement or condition that a beneficiary survive the testator is not a contrary intention.
The Applicant argued that the Simultaneous Death Clause evidenced a contrary intention in accordance with section 33B(2).
The benefit to the Applicant, if successful, would be that Paulo’s estate would go to the estate of his mother and the Applicant was a potential claimant on Rhonda’s estate.
Paulo’s brother, Claudio, would be sole beneficiary of Paulo’s estate if the Applicant’s argument was unsuccessful.
Court's Determination
The court determined that “The fact that Paulo did not insert anything in Clause 9, in my view, cannot be interpreted as Paulo evincing an intention appearing in his will not to apply the 30-day survivorship rule in s 33B(1). In my view, such a step would amount to speculation. That is, it is but one possible interpretation of the meaning and effect of Clause 9 interpreted in light of the will as a whole. It is uncompelling and does not rise to the level of a contrary intention appearing in the will.
The absence of inclusion of any words in Clause 9 is more consistent with an intention not to disapply the s 33B(1) survivorship rule because the precedent clause is drafted to alert the reader of the clause to turn their mind to a choice of survivorship period of time. If a person is alert to the possibility of nomination of survivorship period declines to nominate any period then their intention must be to have the clause read as if the gap in the wording of the clause did not exist, so that the words of the clause are given their ordinary meaning.
Result of the Case
The application was dismissed and Claudio was found to be the beneficiary entitled to Paulo’s estate.
Key Takeaways
Will Kits often create unnecessary costs : This case highlights the importance of understanding the nature of Will drafting and clauses. A professional Will drafter would have recommended to Paulo that he nominate a beneficiary as the alternate beneficiary to Rhonda if she died within 30 days of him. The recording of Paulo’s alternate beneficiary would have saved any need for a court to decide the issue and therefore saved all parties legal costs, stress and personal time spent dealing with the litigation.
Conclusion
The case serves as a crucial reminder of the complexities involved in drafting and interpreting wills and the potential for disputes where a Will Kit is used and willmakers do not take professional advice about their Will.
Willmakers should take appropriate advice.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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