Bain v Demarchi[2023] QSC 199

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Mr Bain, was 50 years of age when he married Rhonda Dorothy Demarchi on 26 October 1994. At that time Rhonda Demarchi had two adult children, Paulo Giuseppe Demarchi and Claudio Abele Demarchi. On 20 July 2009, Paulo Giuseppe Demarchi executed his last will and testament, utilising a will kit.
2. [2]
   Paulo’s will had eleven clauses and, in the standard form of will kits, it included many lines with no information. By Clause 2, Paulo appointed his mother, Rhonda Bain, as his sole executor.
3. [3]
   The fifth through to ninth clauses are relevant to the issue to be decided in this application. These clauses, including the blanks, are set out as follows:

1. [4]
   Paulo passed away on 21 December 2022 and thirteen days later, on 3 January 2023, his mother, Rhonda Bain passed away. The issue in this application concerns the proper application of s 33B of the Succession Act 1981 (Qld) which provides:

“33B Beneficiaries must survive testator for 30 days

1. (1)
   If a disposition of property is made to a person who dies within 30 days after the testator’s death, the will takes effect as if the person had died immediately before the testator.
2. (2)
   Subsection (1) does not apply if a contrary intention appears in the will.
3. (3)
   A general requirement or condition that a beneficiary survive the testator is not a contrary intention.”

5. [5]
   Morrison JA in Donald v Guillesser [2016] 1 Qd R 583 said of s 33B at [13]:

“Relevantly, two conditions must be met before s 33B applies. First, there must be a disposition of property in the will, to a person. Secondly, the person must die within 30 days after the testator. If they are met then s 33B directs that the will takes effect as if the person died before the testator.”

6. [6]
   The effect of s 33B(1) is to deem Rhonda Bain to have pre-deceased Paulo, with the consequential effect that Paulo had executed a valid will but with no qualifying beneficiaries. In the circumstances, as Paulo passed away without any spouse and without issue (children), Paulo’s estate will pass, via the intestacy rules, to his only relative, his brother, the respondent, Claudio Demarchi.
7. [7]
   If, however, s 33B(1) does not apply, then as Rhonda Bain survived, Paulo, then all of Paulo’s estate will fall into the estate of Rhonda Bain. In these circumstances, Mr Bain has a potential financial interest in Paulo’s estate as although Rhonda Bain did not include Mr Bain as a beneficiary under her will, Mr Bain has brought an application pursuant to Part 4 of the Succession Act 1981 (Qld) for further provision out of Mrs Bain’s estate
8. [8]
   The principle question to be determined on the application is whether s 33B(2) is satisfied, namely, whether “a contrary intention appears in the will”.
9. [9]
   The legislative history of the predecessor to s 33B of the Succession Act 1981 (Qld) (s 32 of the Succession Act 1981) was well explained by Moynihan J in Desmarchelier v Stone^[1] and White J in Public Trustee of Queensland v Jacob [2007] 2 Qd R 165.
10. [10]
    As White J said in Jacob, the appeal division of the Supreme Court of Victoria in Bassett v Hall (1994) 1 VR 432 examined a similar provision (s 31 of the Wills Act 1958 (Vic)), her Honour quoting from the reasons of Marks, Gobbo and Coldrey JJ at [434]–[435]:

“Turning first to the argument as to the meaning of contrary intention, we are unable to agree that these words have a special meaning in s. 31 which they do not have elsewhere. It will be a question in each case as to whether a contrary intention is disclosed in the will. There is no warrant for reading into the statute a requirement that there must be manifested in specific terms an intention to exclude known issue of any beneficiary who does not survive the testator.

In our opinion, where the will provides that in the event of one of the two named beneficiaries predeceasing the testator, the surviving beneficiary was to take the whole gift, this would ordinarily suffice to demonstrate a contrary intention for the purposes of s. 31. It is not necessary that there be an exclusion of a gift over to the issue of the beneficiary who predeceased the testator. Such a requirement would be tantamount to saying that the only effective contrary intention would be an express exclusion of s. 31”.

11. [11]
    As their Honours said, “It is a question in each case as to whether a contrary intention is disclosed in the will”. It is a matter, therefore, of construing the will to determine if there is an intention by the testator not to apply s 33B(1) of the Succession Act 1981 (Qld).
12. [12]
    In Bassett it was concluded that the inclusion in the will of the provision “that in the event of one of the two named beneficiaries pre-deceasing the testator, the surviving beneficiary would take the whole of the gift” would ordinarily suffice to demonstrate a contrary intention. Similarly, in Jacob, White J concluded that the words “if more than one in equal shares” was sufficient to constitute a contrary intention to the application of s 33(1) of the Succession Act 1981 (Qld) as it then was.
13. [13]
    This application differs insofar as it is not the use of any particular words which is said to manifest the contrary intention, but rather the absence of the use of any words in the ninth clause that manifest the contrary intention. The argument brought by Mr Bain is that as Paulo failed to nominate any number of days in the ninth clause of his will the 30-day survivor rule ought to yield “due to the invitation given to Paulo in the clause to nominate a number of days – any number of days – in which Rhonda, as the only beneficiary named anywhere in the will, should die within Paulo’s death so as to deem a pre-decease. Which invitation Paulo palpably declined to avail himself of.”
14. [14]
    In attempting to ascertain the intention of the testator, the will must be read as a whole.^[2] By the fourth and fifth clauses of the will of Paulo, it is plain that Paulo wished to gift the entirety of his estate to his mother, Rhonda Bain. Further, the absence of any nominated beneficiary in the second part of the fifth clause reaffirms that intention. However, that of itself is insufficient to manifest a contrary intention as the same maybe said in regard to any disposition in a will to any beneficiary. The sixth clause has no operation in the present case as, unless the s 33B(1) presumption is displaced, Rhonda Bain is deemed to have pre-deceased Paulo and accordingly the effect of Clause 6 would be to cause Claudio to be the sole beneficiary.
15. [15]
    It is the ninth clause, entitled “Simultaneous Death Clause” which is the focus of the submissions made on behalf of Mr Bain. The argument is that Paulo, having taken the time to have his will signed and witnessed according to law, must be taken to have carefully read the provisions of such an important document, and then faced with the decision to specify any number of days in Clause 9, he declined to do so and so he must have intended that his mother Rhonda Bain would receive his entire estate is she survives him by any measure of time.
16. [16]
    There are a number of difficulties with this submission. The first is whether Paulo in fact declined to nominate any number of days, or rather was content with the vague proposition as currently set out in Clause 9, that his beneficiary, Rhonda Bain, would be deemed to pre-decease him if she should die at the same time “or within days of my death”. Paulo may have considered that a nomination of “within days of” his death was sufficient to reflect his intention.  If that interpretation was intended, then, as Mrs Bain died within 13 days of Paulo, and as 13 days is a confined period in the life of a mature person, then the effect of the clause is to deem Mrs Bain to have pre-deceased Paulo. This has the same effect as s 33B(1).
17. [17]
    The argument for Mr Bain is that the failure to nominate any days ought to be interpreted as Paulo evincing an intention in his will that there ought to be no timeline for survivorship. If that were in fact Paulo’s intention, he could have easily inserted “zero” or “nil” in clause 9. The fact that Paulo did not insert anything in Clause 9, in my view, cannot be interpreted as Paulo evincing an intention appearing in his will not to apply the 30-day survivorship rule in s 33B(1). In my view, such a step would amount to speculation.  That is, it is but one possible interpretation of the meaning and effect of Clause 9 interpreted in light of the will as a whole. It is uncompelling and does not rise to the level of a contrary intention appearing in the will.
18. [18]
    The absence of inclusion of any words in Clause 9 is more consistent with an intention not to disapply the s 33B(1) survivorship rule because the precedent clause is drafted to alert the reader of the clause to turn their mind to a choice of survivorship period of time. If a person is alert to the possibility of nomination of survivorship period declines to nominate any period then their intention must be to have the clause read as if the gap in the wording of the clause did not exist, so that the words of the clause are given their ordinary meaning. Accordingly, the clause has the effect of deeming Rhonda Bain to have predeceased Paulo if Rhonda Bain died “within days” of Paulo’s passing. If I am wrong in my conclusion that 13 days is a sufficiently short period to be “within days of my death” as referred to in Clause 9 then, in any event the statutory presumption is s 33B(1) has the same effect. Either way it is, in my view, not a contrary intention within the meaning of s 33B(2).
19. [19]
    On behalf of the respondent, it was argued that Mr Bain did not have standing to bring the application. In Re Hartley [2020] 5 QR 240, Henry J referred to the decision of the Full Court in Hogarth v Johnson [1987] 2 Qd R 383 in which the Full Court held that the plaintiff did have standing to bring an action because of the possibility that his claim for further and better provision out of the estate would succeed.^[3] In my view, Mr Bain did have standing, as he has brought a claim for further and better provision and had at least a possibility of success in that claim. The determination of whether Paulo’s estate fell into the estate of Rhonda Bain was an important issue affecting the quantum of Mrs Bain’s estate and therefore affecting Mr Bain’s interest in that estate. In these circumstances Mr Bain had standing to bring this application.
20. [20]
    The application of Mr Bain filed 19 June 2023 is dismissed. I will hear the parties as to the proper form of orders and upon costs.