The recent Queensland case of Masci v Masci
 QCA 245 highlights the dangers of failing to seek proper
advice about your estate planning.
Mr and Mrs Masci married in 1984. They both had children from
previous relationships, but did not have any children together.
They prepared a joint Will at home that:
appointed one of each of their children as joint
provided for the survivor of them to stay in the family home
until their death; and
directed that on the death of the survivor, Mr Masci's
children should receive 50% of the assets and Mrs Masci's
children should receive the other 50%.
The main reason for the dispute was that Mr and Mrs Masci owned
the family home as joint tenants. This meant that the first to die
could not gift their interest in the property in a Will, and the
survivor would automatically own the whole of the family home.
Following Mr Masci's death in 2012, Mrs Masci sold the
family home and asserted that she was not bound by the terms of the
joint Will because they owned it as joint tenants.
Various disputes arose about the terms of the Will, and the
intention of the parties. One of the executors applied to enforce
the Will. The two main issues that the Court had to decide were
whether Mr and Mrs Masci intended to:
make a mutual Will – a binding contract not to change
their Wills; and
sever the joint tenancy of their house, which meant they would
own it as tenants in common and the interest of each would form
part of their estate and be dealt with under their Will.
The Court ultimately held that Mr and Mrs Masci intended to make
a mutual Will, and that they had intended to sever the joint
tenancy ownership of their family home. This meant that Mrs Masci
did not inherit Mr Masci's interest in the family home
automatically when he died, and it was to be dealt with under the
terms of the joint Will.
The drafting of the joint Will and the way Mr and Mrs Masci
owned their family home resulted in the parties enduring two court
hearings over three and a half years, and legal costs likely to be
disproportionate to the value of the estate property. It is also
not clear whether the arrangements had the effect they
Wills and other estate planning documents appear simple, and in
some circumstances they are. But we often see issues arise from
Wills that have been prepared at home. Not properly understanding
the effect of a Will and the nature of your property can turn a
simple task into a complicated dispute.
Seeking proper advice about your estate planning is essential to
avoiding the expense and stress of disputes in the future.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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