Written by Despina Bouletos

On 26 November 2024, the Supreme Court recently handed down its decision of Chester v Cowin [2024] NSWSC 1554. This case concerned the estate of the late Malcolm Chester, who died intestate on 25 May 2022. Malcolm left two daughters, Geraldine and Penelope, who were each entitled to 50% of his estate pursuant to the rules of intestacy. Malcom’s estate consisted primarily of a property at Reindeer Place, Werrington (valued at $760,000) and cash at bank (valued at $109,055).

Factual Matrix

Geraldine had, for the majority of her lifetime, resided at the Reindeer Place property with Malcolm. Geraldine had four children, Matthew, Mitchell, CW and TW (CW and TW being minors) who also resided at the property with Geraldine.

Geraldine and each of her children commenced proceedings seeking further provision from Malcolm’s estate. The provision sought by each of the plaintiffs was, in effect, that Geraldine and her children have the right to reside in the Reindeer Place property until the youngest child attained adulthood.

Both Penelope and Geraldine had a close and loving relationship with Malcolm, and there was no evidence to the contrary.

Importantly, although Malcolm died intestate, he left a handwritten document dated March 2020 indicating his intention that Geraldine and her children be allowed to remain living in the property, until her youngest child attained adulthood.

Geraldine and her two adult children provided limited and incomplete evidence of their financial circumstances. In respect of Geraldine’s two minor children, no evidence whatsoever was provided as to their financial or social needs, including where they attended school, their extra-curricular activities and the quantum of any financial support received from their father.

Findings by the Court

The Court held that each of Geraldine and her four children were eligible persons to bring a family provision application. Further, the Court held that there were factors warranting the making of such an application by each of Geraldine’s children, such factors being the close relationship of dependency each child had with Malcolm for the whole of their lives, with Malcolm supplying their housing and taking responsibility for a considerable portion of their upbringing.

The Court then considered what bearing the incomplete financial disclosure by each of the plaintiffs had on their applications. The Court referred to the case of Sgro v Thomson [2017] NSWCA 326 in which it was held that, financial need is one indicator as to whether adequate provision has been made, but not the sole or predominant consideration.

The Court held that, if it had been required to be satisfied that the plaintiffs had not been left adequate provision in terms of financial need, it likely would have dismissed the plaintiffs’ summons, as the evidence did not demonstrate their financial need in any meaningful way and was “manifestly deficient”.

However, it was necessary to consider financial need as only one of the factors set out in s 60 of the Succession Act 2006 (NSW). The Court found that several other factors enumerated in s 60 were relevant, including:

· Each of the plaintiffs were dependent on the deceased for a long period;

· The nature of Malcolm’s estate was such that he was able to make provision for both his daughters and grandchildren;

· Malcolm’s testamentary intentions (set out in his note); and

· Gerladine’s minor children had lived their entire lives at the Reindeer Place property. Accordingly, any provision which did not provide them the opportunity to continue residing in that property until attaining adulthood would be inadequate.

Ultimately, the Court made a finding that Geraldine and her two minor children had not been left adequate provision, because, under an intestacy position, they could not continue living in the Reindeer Place property.

The Court made an order for further provision by granting each of them the right to occupy the house until each of the minor children attained adulthood. However, the Court made an order that Geraldine was to pay a fee equal to one third of the market rental for the property for the duration of that time. The Court made no order in relation to the claims by Geraldine’s adult children.

Implications

This case has important implications for family provision applicants and serves as a timely reminder of the need to provide detailed evidence of financial need in order to avoid inviting criticism from the Court. However, this case makes clear that it is possible for a finding of provision to be made, notwithstanding a lack of meaningful evidence regarding financial need by an applicant.

The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for your succession matter, please contact our experienced succession law team.

Written by Despina Bouletos

The Supreme Court of Queensland delivered an important judgment on 12 November 2024, Re Allan (Dec’d) [2024] QSC 277, in relation to the revocation of a will and its impact on the revival of a prior will. Although Re Allan was dealt with on the papers and the judgment itself is only twenty paragraphs long, it has significant implications for how a prior will may be revived.

Factual Matrix

 Re Allan concerned an application by Mark Allan for a grant of letters of administration of the estate of his wife, the late Joanne Allan, who died on 5 November 2009.

Mark and Joanne had been married since 1992 and had two children together. On 17 October 1997, both Joanne and Mark prepared wills (“1997 Wills”) in which they left the entirety of their estates to one another. The 1997 Wills also contained a clause that Mark’s and Joanne’s parents would be appointed as joint guardians of their children, if both Mark and Joanne died.

On 22 November 2003, Joanne and Mark prepared new wills (“2003 Wills”). Each of the 2003 Wills were identical to the 1997 wills except that, instead of nominating both Joanne’s and Mark’s parents as guardians of their children, only Mark’s parents were nominated. Both the 1997 and 2003 Wills were prepared by a solicitor and the 2003 Wills were held at that solicitor’s office.

In July 2009, two months prior to Joanne’s death, she and Mark attended on their solicitors and recovered the 2003 Wills. Mark gave evidence that he and Joanne proceeded to destroy the 2003 Wills with the intention of revoking them and that it was his and Joanne’s understanding that in doing so they had reinstated the 1997 Wills.

Earlier Application

In 2020, Mark sought letters of administration of Joanne’s 1997 Will. The Court rejected Mark’s application on the basis that:

1. There was an inference that Joanne’s 2003 Will contained a provision revoking all previous wills;
2. Upon execution of the 2003 Will, Joanne revoked her 1997 Will;
3. In July 2009, Joanne revoked her 2003 Will by destroying it with the intention of revoking it; and
4. As a matter of law, the revocation of the 2003 Will was not sufficient to revive Joanne’s 1997 Will, as none of the circumstances set out in Section 17 of the Succession Act 1981 (QLD) (“Queensland Act”) allowing for the revival of an earlier will that has been revoked, were enlivened.

Legislative Provisions

Section 17(1) of the Queensland Act states that a will that has been revoked is revived by re-execution or by execution of a new will that shows an intention to revive the prior will. Importantly, section 15 of the Succession Act 2006 (NSW) (“NSW Act”) contains an identical provision.

Current Application

For the purpose of the current application, Mark accepted that Joanne had died intestate (given the Court’s findings in the prior application) and therefore sought a grant of letters of administration on the basis of intestacy. The Court allowed Mark’s application.

Implications

The finding of the Court in Re Allan has significant implications for the revival of wills in NSW and the enlivening of s15 of the NSW Act. It will not suffice simply for a testator or testatrix to revoke a will which itself revokes a prior will, in an effort to revive that prior will.

Rather, more actives step will be required to revive a prior will, being either re-execution of that will or execution of a new will that reflects an intention to revive the prior will. If such steps are not taken, there is a very real risk that a testator or testatrix may be found to have died intestate, notwithstanding their contrary intentions. Practitioners will also need to give careful consideration as to how to give effect to a client’s intentions to revive a prior will.

The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for your estate planning, please contact our experienced succession law team.

By Julian Peters

Where a landowner has been approached by Developers of Wind or Solar Farms, it is important to consider the following issues so that the documentation finally entered satisfactorily protects you.

Below are some issues to consider when dealing with Developers of Wind and Solar Farms:

Who is the developer?

• Who is the Developer proposing to operate the wind or solar farm and what is their track record? It is not uncommon for these developments to be put in place and then on sold to a third party who will take over the Development and whose track record may not be as good. Assignment arrangements need to be fully disclosed in the documentation and a degree of control needs to remain with the Landowner in this regard.
• At what stage has discussion reached regarding the Purchaser of the power from the proposed wind or solar farm.

Location, draft plans, facilities

• It is important that the actual location of the turbines or solar panels are known at the early stage of discussions, together with the size and dimensions of the area required for wind or solar farm and any conditions precedent, particularly as to draft plans in the initial documentation and final plans. These arrangements need to be locked into the documentation to avoid later disputes.
• Whether easements, use of tracks, transmission lines, battery storage facilities and substation locations need to be identified and the cost to be paid for these by the Developer are to be clearly specified in the documentation.

Government Bodies

• What is the current position regarding the Developer’s discussions and negotiations with the various government bodies who are to approve the development and the timeframes for final approval together with funding arrangements. These approvals often take a long time to get and may influence the decision of whether to proceed with the developer as opposed to dealing with another developer

Fees

• What are the fees to be paid? This include the fees for the option to grant a Lease, access licenses and the rent to be paid under the terms of the Lease for each turbine and its output and the area upon which the solar panels are to be located and output from those solar panels including increases in rents need to be fully understood and locked into the documentation.

Construction

• How is construction of the wind or solar farm to take place, is it to be a staged construction or not? The times for completion of the works need to be considered carefully as the construction activity will impact upon the landowners’ use, not only of the land the subject of the wind or solar farm but the remaining land. Consideration needs to be given as to what operations currently carried out on the land will need to be retained.
• A Construction Bond needs to be considered to cover the construction works in the eventuality of the developer not finishing them.
• The timing and delivery of a Decommissioning Bond will need to be included in the documentation. The earlier the bond is put in place and regularly updated is important so that the decommissioning works can be carried out by the landowner if the operator fails to carry them out when the wind or solar farm ceases operation.

Documentation

• There is a need to ensure that the terms of the documentation do not affect the salability of the land.
  The documentation needs to further provide for:
  • the maintenance or construction of fences, gates and improvements
  • the control of pests, weeds and erosion
  • the ability of the landowner to mortgage the property
  • the standard that the property is to be restored to when the wind or solar farm operations come to an end, particularly the removal of the substantial platforms used in conjunction with the erection of the turbines
  • the ability of the landowner to control who comes onto the land and what notice is required for such access
  • the construction area height and width of the project.
  • what acts constitute default by the operator and/or the landowner
  • compensation and indemnities for damage to persons, animals or property of the landowner and third parties
  • public liability and workers compensation insurance amounts
  • the legal costs to be paid upfront by the operator to the landowner in connection with the negotiation and completion of all of the documentation
  • what other infrastructure is the landowner permitted to put on their land
  • whether or not transmission lines are to be placed underground or overhead
  • the obligations of the operator to continue the flow of electricity and provide the maximum return to the landowner
  • how are disputes to be dealt with, including those that may arise with adjoining landowners.
  • the prohibition of pests coming onto the land, together with weed and erosion control
  • the sharing arrangements for increased rates and taxes resulting from the change in land use
  • the ability of the landowner to sell the land to third parties or transfer the land to related parties by way of their will or otherwise
  • the specific locations for any substations and/or battery storage facilities and whether to leases or sell those sites to the operator or electricity providers
  • the use of existing tracks and location of easements to be created, including the amount to be paid for the easements.
  • that the rents offered are competitive and are regularly increased and include a share of the output from the turbines and solar panels
  • that there is a minimum number of turbines and panels to be installed so that the developer cannot reduce those during the life of the project.
  • the rights granted to the operator allowing their lenders to take over the project, in the event of default, are no greater than the rights allowed by the landowner to the operator