In the Estate of Trevor William McMahon (deceased)

In the matter of the estate of Trevor William McMahon, deceased, Michelle Corillo Ochea, also known as Michelle Corillo McMahon, applied for orders under section 33 of the Succession Act 1981 (Qld) to rectify the deceased's will, which had been executed on 22 July 2021. The will named Ms Ochea as executor but did not specify any beneficiaries. Ms Ochea had been in a domestic relationship with the deceased for approximately 13 years. Sandra Lee Percival, the first respondent, cross-applied for a declaration that the estate be distributed according to the rules of intestacy. The primary legal issue was whether the deceased intended to leave his entire estate to Ms Ochea, and whether Ms Ochea should be removed as executor due to a conflict of interest in her position as both executor and a potential applicant for family provision of the estate.

The court determined that the deceased did not intend to leave his estate to Ms Ochea, as there was no clear expression of such intent in the will. The court found that the will was incomplete and did not validly dispose of the estate. Consequently, the court decided to remove Ms Ochea as executor and grant letters of administration to Ms Percival. The estate was to be distributed according to the rules of intestacy. Additionally, the court ordered Ms Ochea to deliver all estate files and documents to Ms Percival's solicitors by a specified date and to transfer any estate funds in her possession to the trust account of the solicitors. The costs of the proceeding were to be reimbursed to the administrator from the estate on an indemnity basis and paid by Ms Ochea on a standard basis.

The court's decision was based on the incompleteness of the will and the absence of evidence indicating the deceased's intention to benefit Ms Ochea. The court also considered the conflict of interest in Ms Ochea's dual role as executor and potential applicant for family provision. The court concluded that the estate should not be subject to the will but rather to the rules of intestacy. The orders included dismissing Ms Ochea's application, removing her as executor, appointing Ms Percival as administrator, and directing the distribution of the estate according to the rules of intestacy. Ms Ochea was also required to deliver estate files and documents and transfer estate funds to Ms Percival's solicitors by a specified date.