Scroll for more

down-arrow-icon
Disclaiming Entitlements gifts wills intestacy lawyers estate plan lawyers queensland australia

Disclaiming Entitlements Under A Will

I recently read the Queensland case of The Trust Company Limited v Gibson & Anor [2012] QSC in which the Executor of an estate applied to the Court to address a number of interesting issues.

Background

The background to the matter is as follows:

  • Prior to his death, Mr Gibson left a Will leaving the whole of his estate to his wife (Mrs Gibson) and if she passed away then:
    (a)    His matrimonial home (or any substitute property) to his two children Rodney John Gibson and Ms Debra Campbell; and
    (b)   The residuary estate (or balance of his estate) to his two children and also his two step-daughters, Ms Rickuss and Ms Jarvis.
  • In April of 2009, Mr Gibson (who was suffering Alzheimers), was admitted to hospital.  He was then approved for permanent high level residential care.
  • In August of 2009, Mrs Gibson (who was also Mr Gibson’s power of attorney), needed to sell the matrimonial home so that she could pay for a nursing home bond.  A deed was signed by Mrs Gibson so that she would receive half the proceeds from the sale of the matrimonial home, and Mr Gibson would receive the other half.
  • The settlement proceeds under the deed were distributed.
  • Mr Gibson (the deceased), passed away on 16 September 2010.
  • On 27 September 2010, Mrs Gibson disclaimed any interest she had as a beneficiary under the Will.
  • On 20 October 2010, Ms Rickuss also disclaimed her interest.

Does the fact that the property has already been sold mean that Mr Gibson died intestate (without a valid Will)?

The Court considered Mr Gibson’s intention when preparing the Will and found that Mr Gibson did not die intestate, and the remainder of the estate would pass to the residuary beneficiaries.

Did the 50% of the proceeds from the sale of the Matrimonial home form part of the Residuary Estate?

The Court considered whether the term “substitute property” referred to in the Will also included the cash received by Mr Gibson from the sale of the matrimonial home.

The Court found that the cash did not form part of the term “substitute property” referred to in the Will.  However, as discussed below, the proceeds still formed part of the residuary estate.

Was the gift of the matrimonial home adeemed or satisfied before the Will maker’s death?

The Court found that the sale of the matrimonial home meant that the gift to the two children was adeemed or satisfied prior to Mr Gibson’s death.  Because of this, Mr Gibson’s share of the proceeds from the sale of the matrimonial home did form part of his residuary Estate, and could be distributed to his two children, but they had to share that with the other step-child.

Step-daughter’s disclaimer

The Court considered whether Ms Rickuss’ disclaimer means that a partial intestacy existed in relation to her share of the residuary estate.

The Court found that that the step-daughter’s disclaimer results in her quarter share of the residuary estate passing to the other step-daughter and the other two children, and will not result in a partial intestacy.

Update Your Will

The matter is an important reminder to regularly update a Will for changing circumstances, allowing for contingencies in your Will if your assets need to be sold for any reason, and allowing for residuary beneficiaries in your Will. A properly drafted Will could avoid the problems suffered here.

If you require assistance with making a new Will or updating an existing Will, or any questions relating to Disclaiming Entitlements under a Will, please do not hesitate to contact me.

Share to your network

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

Subscribe to our Newsletter

Subscribe to our newsletter to get updates on everything Wills, Estates and Probate.

Chloe Kopilovic

Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now