This is a case I was involved in last month.  Judgment was given yesterday.

Finnegan v Garner [2019] QSC 100

The deceased died leaving a wife and eight children (including two step-children).  He and his wife separated in 2000, but did not divorce. The estate was worth just under $1m.

It was believed that the deceased executed a will around the time of the separation, and that such will excluded the wife.  Although no copy could be located, various witnesses gave evidence of having seen it and its contents.  Probate was obtained of an earlier 1998 will.

There were at least three potential pieces of litigation in the estate:

  • a dispute about whether probate should (or could) be granted of a copy of the lost 2000 will, including whether it was revoked by destruction;
  • potential family provision applications by the spouse, and some of the deceased’s eight children; and
  • potential claims for compensation pursuant to s107 of the Powers of Attorney Act 1998 for compensation for the sale of assets by an attorney during the deceased’s lifetime.

The estate also had claims against one of the children, the Second Respondent, for debts that the deceased took out on behalf and for the benefit of that child, which the estate had paid post death.  The Second Respondent had no assets and no means by which to repay the monies. He had also threatened proceedings against the estate involving those issues.

The Third Respondents had sent the estate tax invoices (amounting to approximately $120,000) relating the care of the deceased during his life and other work performed for him.

The deceased’s wife and all the children, apart from the Second Respondent, entered into a Deed of Agreement, whereby it was essentially agreed that the estate would not pursue the Second Respondent for the debt, one of the children would receive a property and the estate would otherwise be split equally between the rest of them.  The Second Respondent refused to be a part of the agreement.

The Second Respondent would not receive anything out of the proposed distribution, but he had already received a substantial benefit out of the estate, being the payment of the debts that had occurred for his benefit (and which everyone agreed not to pursue him for).

Notices were served on the Second and Third Respondents pursuant to s68 of the Trusts Act.  No proceedings were commenced.

The Executors applied to Court for:

  • a direction that they would be justified in:
    • not pursuing the Second Respondent for the debts; and
    • distributing the estate pursuant to the Deed, rather than in accordance with the 1998 Will; and
  • Orders barring the claims of the Second and Third Respondents.
  • Crow J allowed the application and made the orders sought.

Read Finnegan v Garner here.