The death of a loved one is a difficult time for any family and the last thing that any parent would wish on their children is a dispute regarding their Will. The recent case of McGhee v Churven [2021] QSC 212 relates to a family dispute over a Taringa home and is a timely reminder of the importance of:
- Undertaking a regular review of estate affairs; and
- Receiving advice relevant to your circumstances from someone experienced in that skill set.
McGhee v Churven [2021] QSC 212 involves two siblings who were legal practitioners coming before the Court to resolve their personal dispute.
In summary, Mrs. Churven (the mother of the two siblings in this case) was looking to downsize after the passing of her husband but after the sale of her family home, she did not have sufficient funds to accommodate her move to a leafy Taringa Unit.
As a result, her son stepped in to pay for the new unit and allowed Mrs. Churven to keep the cash from the sale of her home for living expenses. At the time Mrs. Churven was eager to ensure that her more affluent friends did not think she was a tenant and requested that her son put the unit in her name. To secure his interest in the property, the son prepared a trust deed to confirm their understanding that the property would one day be returned to him.
Thirty years down the track, the property was still in Mrs. Churven’s name at the date of her death and no mortgage had been registered on the unit securing her son’s generosity. The issue of the unit’s ownership was key to this dispute, with Mrs Churven’s daughter claiming that the unit formed part of her mother’s estate and therefore she was entitled to it under the Will. The son’s position that he was the true beneficial owner of the unit was complicated by the fact that he was unable to produce the original signed trust deed.
What ensued was a very public dispute between the two siblings over entitlement to the property which involved allegations of forgery, undue influence, unconscionable conduct, and breach of fiduciary duty. While such a dispute is the last thing that a parent would want for their children, these allegations were particularly serious given that the two siblings were both solicitors.
Further, given that Mrs Churven’s desire to keep her financial situation private was a driving factor behind her son purchasing the unit in her name, the public airing of this dispute is an especially undesirable outcome.
Ultimately, the court sided with the son and concluded that it was Mrs. Churven’s intention that the property pass to her son. However, the lack of both clarity and a timely review of estate affairs has certainly led to a lot more expense and heartache which could have been avoided.
Key Takeaways
This case offers a few important lessons for those wishing to avoid Will-related troubles:
1. It is never a waste of time to review your wishes when your circumstances change. While there may be a cost now, the peace of mind knowing that your affairs are in order is priceless.
2. It is important not to set and forget. In the thirty years that elapsed between Mrs. Churven moving into the unit and her death, the law in this area underwent significant development. If Mrs. Churven was to seek legal advice earlier on, she likely would have been able to clarify her wishes, better understand her legal position and ensure that she had the right frameworks in place to ensure her wishes were carried out.
3. Make sure key documents are stored safely. This case was complicated by the fact that the son was unable to locate the original signed trust deed. After three decades, it is perfectly understandable that the son was unable to locate the deed. However, had the family sought the assistance of legal advisors earlier they may have been able to arrange for a copy of the document to be kept on file or otherwise been advised on how to overcome the evidential difficulties.
Disclaimer
The information contained on this website is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved.
Accordingly, the information on this site is provided with the understanding that the authors and publishers are not providing legal advice. As such, it should not be used as a substitute for consultation with professional legal advisers. Before making any decision or taking any action, you should consult with a professional lawyer from Rouse Lawyers.
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