Jensen v Mlynarik - [2024] QSC 19

SUPREME COURT OF QUEENSLAND

CITATION: Jensen v Mlynarik [2024] QSC 19

PARTIES:
CHRISTOPHER MARTEN JENSEN (EXECUTOR OF THE WILL OF DORIS WINIFRED MLYNARIK)

(applicant)

v
RICHARD JULIUS MYLNARIK
(respondent)

FILENO/S: BS No 14456 of 2023

DIVISION: Trial Division

PROCEEDING: Application

ORIGINATINGCOURT: Supreme Court at Brisbane

DELIVEREDON: 16 February 2024

DELIVEREDAT: Brisbane

HEARINGDATE: 17 January 2024

JUDGE: Kelly J

ORDERS:
1.   It is declared that the Respondent, Richard Julius Mlynarik, has disclaimed the gift provided to him under the will of the late Doris Winifred Mlynarik dated 28 September 2010, for which will a Grant of Probate was made by the Court in proceeding number S 5857 of 2019 on 4 July 2019 (the Will).

2.   The Applicant shall pay such sum as is due and payable to the Respondent, Richard Julius Mlynarik, under the Will to each of Christopher Marten Jensen and Anthony Mlynarik, being the other residuary beneficiaries named in the Will, in equal shares.

3.   The Applicant shall be paid his costs of the proceeding out of the residuary estate on the indemnity basis.

CATCHWORDS:
SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – TESTAMENTARY DISPOSITIONS GENERALLY – DISCLAIMER OF GIFT –

where deceased left gift in will to beneficiary – where beneficiary provided with clear notice of gift – where beneficiary made no contact with executor to claim the gift – whether beneficiary’s conduct amounts to disclaimer of gift

Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394, cited

Matthews v Matthews (1913) 17 CLR 8, cited

Micallef & Anor v Micallef & Anor; Arrowsmith v Micallef & Ors [2012] QSC 239, cited

Public Trustee v Attorney-General for New South Wales Unreported, Supreme Court of New South Wales, Powell J, No. 2959 of 1981, 7 September 1981, BC8111325, cited

Re Bisset; Bennett v Royal Australian Institute of Architects

[2016] 1 Qd R 211, cited

Re Scott (deceased); Widdows v Friends of Clergy Corporation & Ors [1975] 2 All ER 1033, cited

Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261, cited

Tantau v MacFarlane [2010] NSWSC 224, cited

Townson v Tickell (1819) 3 B & Ald 31 at 36; 106 ER 575, cited

COUNSEL: R Cameron for the applicant

SOLICITORS:

Parker Family Law for the applicant

The applicant is the executor of his late mother’s will which is dated 28 September 2010 (“the will”). The deceased is survived by her three adult sons, the applicant, the respondent and Anthony Mlynarik (“Anthony”). Under the will, following the payment of expenses, the sons were gifted the whole of the deceased’s estate as tenants in common in equal shares. There are no eligible applicants for further provision out of the estate. The estate is now comprised of cash.

The applicant applied for, inter alia, a declaration that the respondent has disclaimed his gift provided to him under the will. I made that declaration on 17 January 2024. These are my reasons.

Factual background

Since…

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 Jensen v Mlynarik

Details

AGLC: Jensen v Mlynarik [2024] QSC 19
Case: [2024] QSC 19
Decision Date: 16 February 2024

CaseChat Overview and Summary

In the case of Jensen v Mlynarik, the dispute arose from the interpretation of a testamentary disposition within the will of the deceased, Doris Winifred Mlynarik. The primary issue was whether the beneficiary, Richard Julius Mlynarik, had effectively disclaimed a gift provided to him in the will. The Applicant, Christopher Marten Jensen, sought a declaration that the gift had been disclaimed and that the sum due to the Respondent be paid to the other residuary beneficiaries named in the will. The court was required to determine whether the Respondent's conduct amounted to a disclaimer of the gift, given that he had not contacted the executor to claim it.

The court considered the relevant legal principles governing disclaimers of gifts under a will. It was necessary to assess the Respondent's actions and inactions in the context of the notice provided to him regarding the gift. The court examined whether the Respondent's failure to contact the executor and claim the gift constituted a disclaimer. The Respondent's inaction and lack of communication were pivotal in the court's analysis.

After considering the evidence and arguments presented, the court concluded that the Respondent's conduct amounted to a disclaimer of the gift. The court found that the Respondent had not taken any steps to claim the gift despite being provided with clear notice of its existence. Consequently, the court declared that the Respondent had disclaimed the gift provided to him under the will. The court further ordered that the sum due to the Respondent be paid to the other residuary beneficiaries, Christopher Marten Jensen and Anthony Mlynarik, in equal shares. Additionally, the Applicant was to be reimbursed for his costs of the proceeding on the indemnity basis.

Orders

Orders of the court

1. It is declared that the Respondent, Richard Julius Mlynarik, has disclaimed the gift provided to him under the will of the late Doris Winifred Mlynarik dated 28 September 2010, for which will a Grant of Probate was made by the Court in proceeding number S 5857 of 2019 on 4 July 2019 (the Will).

2. The Applicant shall pay such sum as is due and payable to the Respondent, Richard Julius Mlynarik, under the Will to each of Christopher Marten Jensen and Anthony Mlynarik, being the other residuary beneficiaries named in the Will, in equal shares.

3. The Applicant shall be paid his costs of the proceeding out of the residuary estate on the indemnity basis.

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:	Jensen v Mlynarik [2024] QSC 19
PARTIES:	CHRISTOPHER MARTEN JENSEN (EXECUTOR OF THE WILL OF DORIS WINIFRED MLYNARIK) (applicant) v RICHARD JULIUS MYLNARIK (respondent)
FILENO/S:	BS No 14456 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATINGCOURT:	Supreme Court at Brisbane
DELIVEREDON:	16 February 2024
DELIVEREDAT:	Brisbane
HEARINGDATE:	17 January 2024
JUDGE:	Kelly J
ORDERS:	1. It is declared that the Respondent, Richard Julius Mlynarik, has disclaimed the gift provided to him under the will of the late Doris Winifred Mlynarik dated 28 September 2010, for which will a Grant of Probate was made by the Court in proceeding number S 5857 of 2019 on 4 July 2019 (the Will). 2. The Applicant shall pay such sum as is due and payable to the Respondent, Richard Julius Mlynarik, under the Will to each of Christopher Marten Jensen and Anthony Mlynarik, being the other residuary beneficiaries named in the Will, in equal shares. 3. The Applicant shall be paid his costs of the proceeding out of the residuary estate on the indemnity basis.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – TESTAMENTARY DISPOSITIONS GENERALLY – DISCLAIMER OF GIFT – where deceased left gift in will to beneficiary – where beneficiary provided with clear notice of gift – where beneficiary made no contact with executor to claim the gift – whether beneficiary’s conduct amounts to disclaimer of gift Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394, cited