Queensland Judgments
Authorised Reports & Unreported Judgments
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McElligott v Public Trustee of Queensland & Ors

Unreported Citation:

[2013] QSC 314


In this matter McMurdo J had to consider the nature of a gift under a will of a right to the “full use” of a rural property for a period of five years. The estate had insufficient other assets to meet its expenses such that the important question was whether or not the interest under the will was merely personal or, alternatively, was an equitable interest in the rural land?  His Honour identified that the word “interest” when used in respect of land has a chameleon like quality such that it will carry with it different connotations when used in different contexts.  In the matter before his Honour the question turned on a consideration of the full rights which the beneficiaries were given and the relationship with other rights given to other beneficiaries. It was particularly important that the gift was given to young children of whom it was thought could not be expected to carry on a business on the land. Although it is not said in the reasons for judgment, it would appear that the will was made in the expectation of an impending death such that it could have been assumed that the named beneficiaries would receive the gift as minors.  In the circumstances it was held that the gift of the right to use the land for five years conferred only a personal right and did not create an equitable interest in the land. The case also contains a discussion of the application of s 33C of the Succession Act which permits the admission of extrinsic evidence concerning the testator’s intention.

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