Affoo v Public Trustee of Queensland

The case of Affoo v Public Trustee of Queensland was heard by the Supreme Court of Queensland. The deceased, Affoo, had made a will leaving the bulk of his estate to the Public Trustee of Queensland. Affoo's daughter, the applicant, brought an application under the Family Provision Act 1908 (Qld) seeking a Court Order for the Public Trustee to provide for her from the estate. The applicant later brought a separate application under the Public Trustee Act 1978 (Qld) seeking a sanction to require the Public Trustee to dispose of a property in accordance with the deceased's will. The deceased passed away before the Court made a final order in the family provision application.

The Court was required to determine the effect of the deceased's death on the family provision application, whether an agreement between the parties as to orders could be enforced, and the test to be applied in making a sanction order under the Public Trustee Act. The Court also needed to consider the implied terms in the contract between the deceased and the Public Trustee and whether a condition precedent had been fulfilled within a reasonable time.

The Court found that the family provision application did not abate on the deceased's death and that the agreement between the parties as to orders could be enforced. However, the Court distinguished between making final orders in a family provision application and sanctioning a disposition under the Public Trustee Act. The Court held that a condition precedent in a contract could be binding notwithstanding the effect of s 59 of the Public Trustee Act, and that there was an implied term that the condition precedent be fulfilled within a reasonable time. The Court found that the Public Trustee had not breached the contract by failing to dispose of the property in accordance with the deceased's will, and dismissed the applicant's application for Family Provision.

The Court dismissed the application for Family Provision and made no order in relation to the sanction application. The Court held that the family provision application did not abate on the death of the applicant and that an agreement between the parties as to orders could be enforced. However, the Court distinguished between making final orders in a family provision application and sanctioning a disposition under the Public Trustee Act. The Court found that the Public Trustee had not breached the contract by failing to dispose of the property in accordance with the deceased's will, and dismissed the applicant's application for Family Provision.