Bain v Demarchi

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.