What happens when a valid will doesn’t name beneficiaries?

The Queensland Supreme Court was recently asked by a deceased’s spouse to rectify a will to name her as the beneficiary in the face of opposition from his two adult children of a former marriage who argued that – in the absence of any named beneficiary – the laws of intestacy should apply.

iStock 874078274Trevor McMahon had made out a will kit will in July 2021.  He married Michelle Ochea – his defacto partner of 13 years – in August 2021 and died two days later.

There were no issues with Trevor’s testamentary capacity and the parties all agreed the will was valid in all respects for probate purposes.  The will appointed Michelle as executor but no beneficiaries were named.

In the section marked ‘4. Special Gifts’, Trevor gifted 2 houses located at Woodend near Ipswich and 3 motor vehicles with no recipient named.

In section ‘5. Residuary  / Residue of my Estate’, Trevor indicated the residue of his estate was given to ‘Same’.  He then listed a tractor, forklift and boat and trailer again with no recipient named.

Michelle’s legal team sought orders to rectify the will by deleting the contents of sections 4 and 5 to replace them simply with Michelle’s full name such that she would receive entire estate.

Justice Sean Cooper observed that – because Trevor made out the will himself  – he had to be presumed to have known of and approved the contents of the will.

That said, the court had power to rectify it if it was satisfied that Trevor’s testamentary intentions hadn’t been carried out through clerical error either by the insertion of something not intended, or the omission of something intended.

Michelle could thus only succeed if she were to prove Trevor didn’t intend it to be in the form it took and that her proposed version was what he intended to specify.

Her contention was that as she was the only person named (ie as executor), the word ‘Same’ conveyed an intention she was to be the sole beneficiary especially given their longstanding relationship and a 2016 statutory declaration stating the houses were to go to her on the event of his death.

The court decided to give no weight to the relationship evidence or the 2016 statutory declaration because they were not evidence of his intention at the time of making the will.

She also asserted that by making a will, Trevor certainly did not intend to die intestate, a proposition that the court readily accepted noting though that no intention could thereby be presumed that his entire estate was to go to Michelle.

The use of the word ‘Same’ was evidence Michelle was intended to be a significant beneficiary but did not necessarily signify she was to be the sole beneficiary. After all, if the contrary had been the case, there would have been no need for Trevor to list out his assets.

His honour thus ruled the court had no power to rectify the will as proposed, thereby leaving an intestate estate.

His honour was also of the view that Michelle was sufficiently conflicted to properly perform the role of executor and that she should be removed and replaced by her step-daughter Sandra.

He ordered Michelle to deliver all files, documents and estate funds to be transferred to Sandra’s legal advisers and for Michelle to pay Sandra’s legal costs on a standard basis.

This decision is another example of the problems that can arise when a will maker goes DIY and doesn’t seek legal advice when making their will.

In the Estate of Trevor William McMahon (deceased) [2022] QSC 236 Cooper J, 2 November 2022