It happens more often than it should. See the recent decision of Di Trapani & another v Di Trapani & others [2026] QSC 20.
The will and the application
A will prepared by an accountant for a couple with inter-related companies and trusts came before the Court when the last of the couple, Elizabeth Di Trapani, died on 21 November 2023. There were several difficulties with the construction of the will.
In the will, the deceased purported to make gifts of assets that were not hers: they were held in a trust. She instructed her trustees to forgive intercompany loans and advances. The deceased also wanted her estate to pay any Commonwealth or State tax imposed in the future on the capital of her estate as though it were a testamentary expense and wanted her executors to consider advice from her accountant on substantial decisions.
The executors sought the assistance of the Court in determining whether any of these gifts or instructions were valid and binding and, if so, which.
It appeared that the deceased and her late husband did not want to spend money on having their wills drawn by lawyers. Ironically, the estate spent what was, no doubt, a significant amount of money on the lawyers who appeared at the hearing of the construction application. There were 9 respondents, represented by 3 barristers and 4 law firms. Three of the respondents were self-represented.
The decision
In his decision, McCafferty J carefully canvassed the principles of construing a will at common law and as the Succession Act 1981 (Qld) may apply to the particular issues before him.
In particular, his Honour considered a line of authority in which Courts have decided that a disposition of property under a will may be effective notwithstanding the deceased did not own the property. This issue occupied the majority of the hearing. His Honour decided that, in the circumstances of this will, the attempt to gift assets that were held in a trust was not effective. After delivering his reasons, his Honour asked the parties to agree to a form of orders reflecting his reasons or, if agreement was not able to be reached, the parties were to provide submissions in support of their respective positions.
As it turned out, the self-represented parties did not agree, in relation only to one issue, with the form of orders that the other parties agreed. After written submissions were provided, McCafferty J made orders in the terms agreed by the represented parties.
Why it matters
It is unlikely that the construction application would have been required if the deceased had sought estate planning advice from appropriately qualified lawyers (potentially with the assistance of her accountant).