Bain v Demarchi - [2023] QSC 199

SUPREME COURT OF QUEENSLAND

CITATION:

Bain v Demarchi [2023] QSC 199

PARTIES:

IN THE ESTATE of PAULO GIUSEPPE DEMARCHI, DECEASED

DESMOND JAMES BAIN

(applicant)

v
CLAUDIO ABELE DEMARCHI

(respondent)

FILE NO/S:

S 592 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

1 September 2023, 4 September 2023

DELIVERED AT:

Rockhampton

HEARING DATE:

23 August 2023, 4 September 2023

JUDGE:

Crow J

ORDER:

Order Delivered: 1 September 2023

1.   The application is dismissed.

Further Orders Delivered: 4 September 2023

2. Pursuant to s 6 of the Succession Act 1981 (Qld):

a.   the grant of letters of administration on intestacy made to Claudio Abele Demarchi on 16 March 2023 in proceeding S 192 of 2023 is revoked;

b.   subject to the formal requirements of the Registrar, letters of administration with the will dated 20 July 2009 of Paulo Giuseppe Demarchi, deceased, be granted to Claudio Abele Demarchi as administrator;

3.   on the proper construction of the will dated 20 July 2009 of Paulo Giuseppe Demarchi, deceased, Claudio Abele Demarchi is the beneficiary entitled to the residue of the testator;

4.   the costs of Claudio Abele Demarchi as administrator of the estate of Paulo Giuseppe Demarchi, deceased, be paid out of the estate on the indemnity basis;

5.   there be no order as to the applicant’s costs of the proceeding.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – STATUTORY RULES OF CONSTRUCTION – LAPSE WHERE BENEFICIARY DOES NOT SURVIVE TESTATOR BY SPECIFIED PERIOD – where the deceased executed his last will and testament using a will kit – where the deceased appointed his mother as the sole beneficiary of his will – where the deceased past away on 21 December 2022 – where the deceased’s mother past away 13 days later on 3 January 2023 – where the respondent was granted letters of administration on intestacy as administrator in relation to the deceased’s estate on 16 March 2023 – where the applicant makes an application to rescind the intestacy orders pursuant to Part 4 of the Succession Act 1981 (Qld) – whether there has been proper application of s 33B of the Succession Act 1981 (Qld) – whether s33B(2) of the Succession Act 1981 (Qld) is satisfied.

Succession Act 1981 (Qld), ss 33(1), 33B, 33B(1), 33B(2), 33(1)
Wills Act 1958 (Vic), s 31

Bassett v Hall (1994) 1 VR 432
Desmarchelier v Stone [2005] 2 Qd R 243
Donald v Guillesser [2016] 1 Qd R 583
Hogarth v Johnson [1987] 2 Qd R 383
Public Trustee of Queensland v Jacob & Ors [2006] QSC 372
Public Trustee of Queensland v Jacob [2007] 2 Qd R 165
Re Hartley [2020] 5 QR 240

COUNSEL:

D J Topp for the applicant

J Otto KC for the respondent

SOLICITORS:

Keppel Coast Law for the applicant

Grant & Simpson for the respondent

The applicant, Mr Bain, was 50 years of age when he married Rhonda Dorothy Demarchi on 26 October 1994. At that time Rhonda…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bain v Demarchi

Details

AGLC: Bain v Demarchi [2023] QSC 199
Case: [2023] QSC 199
Decision Date: 1 September 2023, 4 September 2023

CaseChat Overview and Summary

In the matter of Bain v Demarchi, the Supreme Court of Queensland was called upon to determine the beneficiary of the estate of Paulo Giuseppe Demarchi, who passed away on 21 December 2022. The deceased had executed a will appointing his mother as the sole beneficiary. However, the deceased’s mother predeceased him by 13 days, passing away on 3 January 2023. Following the death of both the deceased and his mother, Claudio Abele Demarchi, who is the son of the deceased, was granted letters of administration on intestacy. Subsequently, the applicant applied to rescind the intestacy orders, arguing for a different interpretation of the will.

The court had to decide whether the statutory provisions concerning the lapse of testamentary gifts applied, particularly under section 33B(2) of the Succession Act 1981 (Qld). The central issue was whether the applicant had correctly applied section 33B of the Act, which deals with the construction of testamentary dispositions where a beneficiary does not survive the testator by the specified period. The court needed to determine if the statutory rules of construction were properly applied and whether the will should be interpreted to ensure that the intended beneficiaries were correctly identified.

The court dismissed the application to rescind the intestacy orders, holding that the statutory rules of construction had been correctly applied. The court found that the deceased's mother, who was appointed as the sole beneficiary, did not survive the deceased by the required period, resulting in a lapse of the testamentary gift. Consequently, the residue of the estate passed to the next of kin, which in this case was Claudio Abele Demarchi. The court concluded that the applicant had not demonstrated any grounds for the rescission of the intestacy orders. The court also revoked the intestacy orders and granted letters of administration with the will to Claudio Abele Demarchi, recognising him as the beneficiary entitled to the residue of the estate. The costs of Claudio Abele Demarchi as the administrator of the estate were ordered to be paid from the estate on an indemnity basis, while no order was made regarding the applicant's costs.

Orders

Orders of the court

Order Delivered: 1 September 2023

1. The application is dismissed.

Further Orders Delivered: 4 September 2023

2. Pursuant to s 6 of the Succession Act 1981 (Qld):

a. the grant of letters of administration on intestacy made to Claudio Abele Demarchi on 16 March 2023 in proceeding S 192 of 2023 is revoked;

b. subject to the formal requirements of the Registrar, letters of administration with the will dated 20 July 2009 of Paulo Giuseppe Demarchi, deceased, be granted to Claudio Abele Demarchi as administrator;

3. on the proper construction of the will dated 20 July 2009 of Paulo Giuseppe Demarchi, deceased, Claudio Abele Demarchi is the beneficiary entitled to the residue of the testator;

4. the costs of Claudio Abele Demarchi as administrator of the estate of Paulo Giuseppe Demarchi, deceased, be paid out of the estate on the indemnity basis;

5. there be no order as to the applicant’s costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bain v Demarchi [2023] QSC 199
PARTIES:	IN THE ESTATE of PAULO GIUSEPPE DEMARCHI, DECEASED DESMOND JAMES BAIN (applicant) v CLAUDIO ABELE DEMARCHI (respondent)
FILE NO/S:	S 592 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	1 September 2023, 4 September 2023
DELIVERED AT:	Rockhampton
HEARING DATE:	23 August 2023, 4 September 2023
JUDGE:	Crow J
ORDER:	Order Delivered: 1 September 2023 1. The application is dismissed. Further Orders Delivered: 4 September 2023 2. Pursuant to s 6 of the *Succession Act* 1981 (Qld): a. the grant of letters of administration on intestacy made to Claudio Abele Demarchi on 16 March 2023 in proceeding S 192 of 2023 is revoked; b. subject to the formal requirements of the Registrar, letters of administration with the will dated 20 July 2009 of Paulo Giuseppe Demarchi, deceased, be granted to Claudio Abele Demarchi as administrator; 3. on the proper construction of the will dated 20 July 2009 of Paulo Giuseppe Demarchi, deceased, Claudio Abele Demarchi is the beneficiary entitled to the residue of the testator; 4. the costs of Claudio Abele Demarchi as administrator of the estate of Paulo Giuseppe Demarchi, deceased, be paid out of the estate on the indemnity basis; 5. there be no order as to the applicant’s costs of the proceeding.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – STATUTORY RULES OF CONSTRUCTION – LAPSE WHERE BENEFICIARY DOES NOT SURVIVE TESTATOR BY SPECIFIED PERIOD – where the deceased executed his last will and testament using a will kit – where the deceased appointed his mother as the sole beneficiary of his will – where the deceased past away on 21 December 2022 – where the deceased’s mother past away 13 days later on 3 January 2023 – where the respondent was granted letters of administration on intestacy as administrator in relation to the deceased’s estate on 16 March 2023 – where the applicant makes an application to rescind the intestacy orders pursuant to Part 4 of the Succession Act 1981 (Qld) – whether there has been proper application of s 33B of the Succession Act 1981 (Qld) – whether s33B(2) of the Succession Act 1981 (Qld) is satisfied. Succession Act 1981 (Qld), ss 33(1), 33B, 33B(1), 33B(2), 33(1) Wills Act 1958 (Vic), s 31 Bassett v Hall (1994) 1 VR 432 Desmarchelier v Stone [2005] 2 Qd R 243 Donald v Guillesser [2016] 1 Qd R 583 Hogarth v Johnson [1987] 2 Qd R 383 Public Trustee of Queensland v Jacob & Ors [2006] QSC 372 Public Trustee of Queensland v Jacob [2007] 2 Qd R 165 Re Hartley [2020] 5 QR 240
COUNSEL:	D J Topp for the applicant J Otto KC for the respondent
SOLICITORS:	Keppel Coast Law for the applicant Grant & Simpson for the respondent