You be the Judge: Where there is no Will, there is no way

Today we look at a recently reported case from the Queensland Supreme Court. We will present the facts of this case and then ask you to be the judge.

Submit your answer to see whether the court agreed with you.

A Falling Out

As with many good cases, the dispute in In the estate of Edward Steven Middleton (deceased) [2019] QSC 128 (23 May 2019) started, unfortunately, with a falling out.

The deceased, Mr Middleton made a will in 1994 in which he appointed his daughter, the applicant, as Executor. He left his entire Estate to the applicant, apart from a bequest of $20,000 to his parents.

In 2013, Mr Middleton had a falling out with his daughter. As a result, Mr Middleton made a new will which appointed the Public Trustee of Queensland as Executor and left his Estate to the RSPCA.

A Change of Heart

Thankfully Mr Middleton and his daughter reconciled and on 28 July 2018 Mr Middleton took back his 2013 will from the Public Trustee of Queensland and signed an acknowledgement stating his intention to:

“Make arrangements for the ongoing retention, storage and safe keeping of the before mentioned Will document and it is not my intention to return the document to the Public Trustee of Queensland for safe keeping purposes. I understand that it is my responsibility to take appropriate action to store the said document in a safe and secure place, and that failure to do so may result in loss to me, my estate and/or my beneficiaries, as my Executor(s) may not be able to take appropriate action to administer my Estate if the said document is missing on my death.”

The judgement goes on to state:

[13] After the deceased had repaired his relationship with the applicant, the deceased expressed to others an intention to leave everything to the applicant, except for a monetary sum to care for his pet dog.

[14] The deceased also expressed an intention to leave everything to the applicant in discussions with the applicant. These discussions took place in 2018, at a time after the deceased had been diagnosed with lung cancer. Despite treatment, his condition deteriorated and he was admitted as an inpatient to the Royal Brisbane Hospital in November 2018.

[15] Prior to his admission to hospital, the deceased provided a note to a next door neighbour. Relevantly, that note stated the neighbour was to let the applicant know if he did not come out of hospital. It said the applicant would “find my Will (to her) and other items”

Ten days prior to Mr Middleton’s death, the applicant located and showed Mr Middleton his 1994 will and he said in words to the effect “that is my will.”

The Law

Section 13 of the Succession Act 1981 (Qld):

“provides the circumstances in which a Will may be revoked. Relevantly, those circumstances include, revocation by means of a later Will, or by a document declaring an intention to revoke the Will, or by the testator destroying the Will with the intention to revoke it, or writing on the Will or otherwise dealing with it in a way which satisfies the Court that the testator intended to revoke it.”

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Connor James

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