Case Summary: Jensen v Mlynarik [2024] QSC 19
In a recent decision by the Supreme Court of Queensland, Australia, the court ruled on a dispute between a brother who was executor of the estate of his mother and one of his brothers who was named as a beneficiary - Jensen v Mlynarik [2024] QSC 19. This article aims to provide an overview of the case and key takeaways.
Parties Involved
· Applicant: Christopher Martin Jensen (as Executor of the Estate of Doris Winifred Mlynarik)
· Respondent: Richard Julius Mlynarik
The Dispute
The core issue revolved around whether the Respondent had disclaimed the gift provided to him under the Will of the deceased.
Doris Winifred Mlynarik was survived by her 3 adult sons, the Applicant, the respondent and another son, Anthony. Her Will provided for her 3 adult sons to receive her residuary estate in equal shares.
The respondent lived in the USA since about 1982. His mother and Anthony visited him in 1984 and the visit culminated in an argument between the Respondent and his mother.
The Respondent did not respond to numerous communications sent to him by the Applicant’s solicitors culminating in a letter served on the Respondent by process servers in the USA calling on him to disclaim the gift.
The Respondent also did not respond to the Originating Application and supporting affidavits served on him which brought about this judgement.
Court's Determination
The court determined that –
1. Fundamentally, the disclaimer of a gift involves a refusal to accept that an interest has been bequeathed. The disclaimer must be made with knowledge of the gift and an intention to disclaim it. Unless and until a gift is disclaimed, the law will presume that a donee assents to the gift. The presumption has been described as a strong one and the onus rests on an applicant to prove the disclaimer.
2. There is no generally applicable form of disclaimer required by the law. A disclaimer may be made by any means effective for the purpose; by deed or other writing, such as a letter; by word of mouth; or by conduct. The essential feature is not the form but the substance, namely an effective communication, by whatever means, rejecting ownership of the subject-matter of the proffered gift that is both timely and peremptory.
3. In some cases, conduct may necessarily imply a disclaimer. Merely ignoring inquiries or letters from a trustee might fall short of the definitive conduct required to establish a disclaimer. However, each case must depend on its own particular facts. As the law in this area is concerned with matters of substance and not form, in particular circumstances, a failure to act or respond may constitute a disclaimer where continuing inaction and silence necessarily implies, or is only consistent with, the refusal of a gift.
4. The facts of this case included circumstances from which the failure to respond could only be interpreted as a disclaimer. The relevant circumstances were the long history of familial estrangement, the relevant correspondence having come to the actual attention of the respondent and that correspondence having advised the respondent, in the clearest of terms, that his continuing inaction was intended to be, and was being relied upon as evidencing rejection of the gift. In those circumstances, the respondent elected to ignore the correspondence, and took none of the steps outlined in the correspondence. That conduct, engaged in with knowledge of the gift and how the conduct would be interpreted and relied upon, amounted to a peremptory, dogmatic refusal of the gift. In the present case, the only inference able to be drawn from the respondent’s continuing inaction and failure to respond, is that he has refused to accept the interest bequeathed to him.
Result of the Case
It was declared that the respondent has disclaimed the gift provided to him under the will and that gift was to be divided among his 2 brothers in equal shares.
Key Takeaways
Family estrangement often creates unnecessary costs: This case highlights the costs which an estate can be put to by a family member who refuses to co-operate.
Conclusion
The case serves as an important reminder of the difficulties involved in administering an estate when a family member refuses to co-operate and refuses to act reasonably.
The Executor seems to have acted reasonably but the estate has still been put to considerable expense as a result of the respondent’s response to his argument with his mother.
In hindsight it would have been better for the deceased to leave the respondent out of her will but it was impossible for her to know that at the time.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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