Yet another will kit disaster

It seems as though this blog page could be entirely populated by recent decisions on home made wills.  Certainly, home made wills are fertile ground for litigation with the resulting benefit flowing to lawyers acting in that litigation. 

In this case, the Queensland Supreme Court in Bain v Demarchi [2023] QSC 199 has considered a home made will in which there was no named beneficiary in the event that the named beneficiary died. 

Briefly, the facts were that Paulo Demarchi used a will kit to make a will in 2009.  He appointed his mother Rhonda Bain to be his executor and sole beneficiary.  He had no wife or children himself.

Paulo died on 21 December 2022, and his mother Rhonda died on 3 January 2023, leaving her husband (Paulo’s stepfather) Desmond surviving her.  This triggered the application of section 33B Succession Act which provides that (absent a contrary intention), if a gift is made in a will to a person who dies within 30 days of the will maker dying, then the will takes effect as though the beneficiary had died immediately before the will maker. 

In this case, if there was no beneficiary, then Paulo’s brother would receive the estate under the intestacy rules.  If the gift to Rhonda was valid, then Rhonda’s husband Desmond (ie Paulo’s stepfather) would be entitled to the estate as the beneficiary of Rhonda’s will. 

The court found that there was no contrary intention to the operation of section 33B Succession Act, and that as a consequence, the estate would be dealt with according to the rules of intestacy.  This had the result that Paulo’s brother would be entitled to the estate, rather than Paulo’s stepfather. 

Of course, reserve beneficiaries are something that lawyers will generally include in their wills when preparing them for a client.  Had Paulo seen a lawyer, then for a relatively modest cost, his estate would have done without the angst and cost of a Supreme Court application which has no doubt left his stepfather and his brother quite unhappy (although his brother would be likely to be quite a bit happier than his stepfather).  It is unlikely that the costs of the exercise would have been less than $50,000.

This recent decision is yet another demonstration of the risks associated with people using will kits. 

For advice in relation to wills, contact our lawyers Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au