The Supreme Court of Queensland case of O’Brien & Anor v Smith & Anor [2012] QSC 166 is a good example of how things do go wrong with a home made Will.
The testator in the case made a home made Will leaving specific cash gifts to certain beneficiaries and then gifted his residuary estate to “a trust or other entity to be set up by my Executors…and administered by them as they shall see fit.”
The matter went to the Supreme Court because the executors were unable to determine who the beneficiaries of the residuary estate would be. It was argued, and accepted by the Court, that the clause which endeavoured to create the trust failed. For any trust to arise, there must be certainty as to the intended beneficiaries and in this case, there was no such certainty. The end result was that there was an intestacy as to the residue which means it had to be dealt with under the Succession Act as if the testator died without a Will.
A number of parties were involved in the litigation including the executors, beneficiaries and guardians of minor beneficiaries. The Court made orders that the costs of all parties were to be paid by the estate which is to be expected given all parties had a legitimate interest in determining the correct construction of the Will. However, such costs would have been substantial and could have been avoided only if the testator had made his Will with his solicitor.
If you require any further advice or assistance with a Will or other succession issue, please contact Donnie Harris Law at or 07 4724 1016. Our Townsville Lawyers would be happy to assist you.
