Collins v Marinovich

The case of Collins v Marinovich was heard in the Supreme Court of Queensland, where the plaintiff, Angelique Collins, sought to establish the nature of a mortgage agreement between herself and the deceased, Phyllis Power-Nemeth. The central issue was whether a clause in the mortgage, which provided for the forgiveness of the debt upon Power-Nemeth's death, constituted a testamentary disposition. The court needed to determine if this clause was testamentary, depended on the death of Power-Nemeth for its "vigour and effect," and if it was immediately effective or severable from the rest of the mortgage terms.

The court examined the nature of the clause in question, focusing on whether it was testamentary. The court considered the principle that a testamentary instrument is revocable unless it explicitly states otherwise, and that a non-testamentary instrument takes effect immediately upon execution. The court also looked at whether the clause was severable from the other terms of the mortgage and whether it could be revoked. The court found that the clause was indeed testamentary because it depended on Power-Nemeth’s death for its effect and was intended to take effect upon her death. Furthermore, the clause was revocable and thus testamentary in nature. The court also considered whether the clause could be separated from the rest of the mortgage terms, concluding that it was not severable.

The court granted the plaintiff declaratory relief against the second defendant and will hear further from the plaintiff as to whether she seeks declaratory relief against the first defendants. The court will also hear from the parties as to the wording of the declaration and order, and as to costs.