Public Trustee of Queensland v Robertson

The case of Public Trustee of Queensland v Robertson [2004] QSC 331 involved the Public Trustee of Queensland, as the administrator of the will of Albert Robert Robertson, who had passed away on 18 April 1996. Albert left behind two children, Louis Robert Robertson and Suzette Gay Murray. The dispute arose from the fact that Louis had left Australia on 7 November 1986 and there was no evidence to suggest he had returned. Despite extensive inquiries, including searches through various databases and advertisements in the Honolulu Advertiser, Louis's whereabouts remained unknown. The will of Albert left the residue of his estate to his children, contingent on their survival for thirty days. The Public Trustee sought clarification on the application of section 132 of the Public Trustee Act 1978 and section 33 of the Succession Act 1981.

The primary legal issues the court had to address were whether the Public Trustee was justified in exercising his powers under section 132 of the Public Trustee Act 1978, considering the uncertainty of Louis's existence, and whether section 33 of the Succession Act 1981 applied in this context. The court needed to determine if the will's language indicated a contrary intention that would prevent the application of section 33. The court examined previous cases such as Re Trenfield and Re Paton, and also considered McPherson JA's commentary in Burman v. Burman on the interpretation of testamentary language.

The court found that the extensive inquiries made to locate Louis Robertson justified the Public Trustee's doubt regarding his existence, thus permitting him to exercise his powers under section 132 of the Public Trustee Act 1978. The court concluded that the language in Albert's will, specifying that the residue should go to the surviving child, indicated a contrary intention to the general requirement in section 33(2) of the Succession Act 1981. This meant that section 33 did not apply in this case, and the estate should be administered as if Louis was not alive on 18 May 1996. The court ordered that the Public Trustee could proceed with the distribution of the estate accordingly. Additionally, the court ruled that the costs of the application be taxed on an indemnity basis and paid out of the estate.