The recent Queensland Supreme Court case of Underwood v
Underwood  QSC 159 was decided in July this year.
Peter Charles Underwood died in May 2006 aged 64. His estate
had approximately $1,300,000 in business assets and around
$1,000,000 of other assets.
He left $213,000 on trust for his daughter Peta, who was 29,
had special needs resulting from a drug addiction and lived with
He left his sons Derek and Scott $250,000 each, which included
a small share of the business. Neither Derek nor Scott had any
particular needs. They were both employed and had a reasonable
amount of assets. Neither were involved in Peter's
He left his de facto partner Annette shares valued at $76,000
and paintings. She also received $200,000 from a Workcover payment
resulting from his death.
Peter was divorced from his first wife and was estranged from
the children after the divorce.
Peter's Will left his interest in the business to his
nephews Louis and Glen who both worked in the business. Peter
shared a very close relationship with his nephews.
Peter also left a Statement of Wishes explaining why he had
left his assets in this way.
Each of the children and Annette challenged the Will and argued
they should receive a greater share of the estate.
The Court decided:
neither Derek nor Scott were entitled to a further share of the
Annette should receive an additional $30,000; and
Peta should receive the same as her brothers, plus a further
$25,000 to cover immediate financial needs.
Some important factors the Court considered were that:
the children's mother received a significant amount in the
divorce and would probably leave her estate to them in her
while Annette had only lived with Peter for 3 years, she cared
for him during his illness, which disadvantaged her financially and
preserved the value of the estate;
Annette had received the Workcover payment.
Points to Note
The Court did not interfere with Peter's wish that
Peta's share should be held on trust – which is
important for clients who have children with particular needs.
Even an estranged child may have an entitlement under a
deceased parent's Will, but it can be difficult for an
estranged adult child to claim a significant part of a large
Although Louis and Glen still received most of the business
assets, the judgment was handed down more than two years after
Peter's death. During this time, they would have been unsure
about their entitlement and this would have placed considerable
strain on the business.
If Peter, Louis and Glen had implemented a business succession
agreement they could have protected the business assets from
exposure to claims against Peter's estate.
It is important to make your Will in consultation with
professional advisors. In this case, the Court noted that Peter had
considerable discussions with his solicitor and accountant when
preparing his Will and explained his intentions in a Statement of
Wishes. This was a factor in the Court's decision to
substantially uphold Peter's wishes to leave his interest in
the business to his nephews.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).