I recently read the Queensland Court of Appeal decision of Pierpoint v Liston [2012] QCA 199, in which the Court had to decide whether to revoke Letters of Administration granted to the deceased’s mother. The decision highlights the importance of having a valid Will to avoid challenges to your Estate.

Background

• The deceased died in a car accident leaving 2 children.  She did not have a will;
• The deceased’s mother made an application to allow her to administer the estate, which was granted;
• The deceased’s de-facto partner disputed this appointment and appealed the decision;
• The de-facto partner asked the Court to remove the deceased’s mother as the “estate administrator and trustee” on the basis that he held priority over the deceased’s mother and also as the father of the 2 children;
• The de-facto partner also argued that the mother’s behaviour had amounted to actionable misconduct as she had used estate funds to pay for travel, accommodation and the purchase of land.

The Issues to Consider

1. Entitlement to Administer Estate

The order of priority for a person to be “entitled” to administer an estate when there is no Will, is as follows:

• Surviving spouse;
• Children;
• Parents;
• Anyone else the Court may appoint.

The definition of “spouse”, includes “de-facto spouse”. For a relationship to be considered “de-facto”, the law says that the couple must have “lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years    ending on the deceased’s death.”

In determining this, the Court will consider the couple’s circumstances, including the  nature of their common residence, whether or not a sexual relationship exists or existed and the degree of financial dependence, to name a few.

2. The Relationship between the deceased and the partner

In this case, evidence was produced which showed the relationship was volatile, marked by separations and reconciliations. There was also evidence of domestic violence, drug and alcohol abuse as well as mental illness. As a result, the Court was not satisfied that the partner met the definition of a “de-facto spouse.”

3. Conduct of the Mother

The Court of Appeal agreed with the trial Judge that it was not appropriate for the partner to take on the role of guardian for the children and administration of the estate given his mental health and as interests did not coincide with those of children.

As such, the partner requested that the Court appoint the Public Trustee as guardian for the children and estate administrators instead of the deceased’s mother, due to the use of estate funds on travel, accommodation and the purchase of property.

The Court’s Decision

The Court of Appeal dismissed the partner’s application and instead ordered that the Public Trustee assume the role of administrator of the estate and trustee of the estate in place of the mother.

Seek Legal Advice

To avoid challenges against a Will, and disputes about a Will, you the need to consult an experience estate planning solicitor who can advise on any possible challenges to the Estate.

If you require assistance with making a new Will, updating an existing Will, or if you wish to contest a Will, it is important that you obtain experienced advice. Please do not hesitate to contact me to discuss the removal of an estate administrator or your estate administration matters.