What are the consequences to a family member who refuses to give up occupation of the deceased’s home after the will-maker’s death despite an executor’s demand that they do so.

Patrick Tehan died in July 2021 aged 87 never having married.  By a will of July 2018, he left one third of his estate to his sister-in-law Gloria and the remainder to four nieces and nephews.

shutterstock 104328014Two of those nephews – Luke and Damien – were appointed to be his executors.

Another nephew, Ben Tehan, had been residing in the Patrick’s Windsor home prior to his death.

Ben filed a caveat against the estate contending that his uncle had lacked capacity at the time his last will was made.

He also refused to vacate the residence when asked to do so by the executors, alleging an agreement with Patrick and his brother John, that he had a right to reside rent free in the home in perpetuity in exchange for the care he provided to Patrick.

The executors naturally enough wanted to have the home sold and the estate administered.

They filed proceedings for a solemn form grant of probate and for Ben to be required to vacate the home.

The issues came to trial before Justice Melanie Hindman in the Supreme Court in Brisbane.

Ben produced no evidence of any lack of capacity on Patrick’s part and effectively abandoned that claim.

The executors were none the less required to satisfy the court on the issue not least because the death certificate listed dementia as a cause of death.

They called solicitor Nathan Donovan who had prepared the 2018 will and who swore that he took instructions from the deceased at his home at which time he was provided clear instructions as to how his estate was to be divided.

Donovan took an audio recording in which the will-maker expressed how he wished his estate to be divided.

He had also recommended to the family that given Patrick’s age, it would be prudent for him to consult a GP to medically confirm he had capacity to make decisions about his testamentary affairs.

Patrick did in fact attend at the Windsor Medical Centre six days before the 2018 will was executed to obtain a letter as to his ability to make a will and for an “over-75 year old annual health assessment”.

Dr Hossain provided a letter certifying “His memory looks normal, and he is capable of making decisions on his new will”.

The clinic’s patient records that were produced at the trial revealed no concern about the deceased’s mental capacity then or previously.

The court was thus well satisfied that that the deceased had capacity to make his last will.  Accordingly the 2018 will was declared valid and probate of the will was granted to the executors.

Ben similarly could not produce any evidence of any agreement concerning his right to reside rent free in the home. That claim was ultimately also dismissed.

The court next examined what Ben must reimburse the estate for his occupation to account for lost rental income.

It relied on the evidence of a valuer that the weekly market rent was $460 when Patrick died but by the date of the court hearing, had escalated to $560.

Although the lost rent on those calculations totalled $66,000, the court restricted his liability to $50,000 to take into account the likely agent’s costs and management expenses that would have been incurred.

He was also ordered to pay the estate’s legal costs of the court dispute.

Ben’s debt will be deducted from his share of the inheritance he was otherwise to receive from Patrick’s estate.

Tehan v Tehan [2023] QSC 172 [2023] Hindman J, 23 June 2023