Well-intentioned will makers who use a do-it-yourself kit to express their wishes frequently encumber their estate with years of disputation and tens of thousands of dollars in litigation costs.
Raveica Negrean died in March 2019 leaving a will dated February 2019.
Her son John believed the will gave him a life interest in her Falstaff Street, Sunnybank Hills residence that enabled him to rent out rooms for profit. He also claimed the will provided for priority repayment from the estate of a loan he made to his mother.
His brother Tim – the named executor – disagreed and asked the Supreme Court to clarify the will terms in April 2025.
Tim also asked the court to order vacant possession of the property that John had turned into a share house with five tenants.
Justice Melanie Hindman concluded that Raveica’s will granted no life interest or right of residence to John as her language in the will expressed merely a wish, not a mandate.
She found the correct interpretation was for the residue – including the home – was to go to John and his brother Eli in equal shares.
The court also found that a “debt clause” directing repayment of Raveica’s loan from John only applied if the property was sold prior to Raveica’s death and if the sale proceeds were traceable in her estate.
John would thus have to prove his debt as part of the ordinary administration of the estate.
At the first hearing of the executor’s application, Justice Hindman delayed granting the order for vacant possession, giving John time to raise finance so that he could keep the house, get legal advice and attend mediation to resolve issues with his siblings.
However, before mediation could take place John was incarcerated on an unrelated matter.
Tim went back to court asking for vacant possession of the property.
On the further hearing in August, John’s contention he had used rent money he had collected from tenants for maintenance and repairs could not be substantiated.
He could not produce receipts or other paperwork evidencing his claim.
The judge observed that about $50,000 of rent he had collected had been applied to some estate expenses including barrister’s fees.
Regardless, she granted Tim’s application for vacant possession, requiring the tenants to vacate by a specified date in October.
She ruled that any tenancy agreements entered into by John were invalid, as only the executor has authority to deal with estate property and John had never held a life interest.
While sympathizing with the tenants – one of whom was represented by a solicitor and barrister at the hearing – she ordered they must vacate to bring an end to six years of estate disputation.
She noted the core duties of an executor were to call in assets of the estate, pay debts of the estate and distribute the estate according to the terms of the will.
At the time of the hearing, the estate had in excess of $109,000 of known debt, a tax debt and had no liquid funds.
John eventually found a lender and acquired brother Eli’s interest.
The terms leading to this resolution are unknown.
What we do know is that a 6 year delay and more than $140,000 in litigation expenses would have been avoided had a professionally drafted will been prepared at the outset.
