The Fox Family & Their Father’s Missing Will 

Re Fox [2020] QSC 30

If you’re looking for tales of drama, mystery and intrigue then the Supreme Court of Queensland’s Succession law cases have it all. Despite good intentions, failing to update your will and your family with your intentions can lead to family disputes worthy of any TV show with the costs of each court invention causing a serious financial dent in your estate and, as in the case of Re Fox, there’s not always a happy ending.

Robert Laurence Cecil Fox died in 2018 leaving behind two adult children, Joanne and Trevor from his first marriage, a step daughter, Angelina and his youngest daughter Alexandra, from his relationship with their mother Olga.

Like all good men, Robert had made a will in 2001 which instructed that his estate should be divided in the following way:

30% to Joanne

30% to Trevor

30% to his wife Olga

10% to his stepdaughter Angelina and:

a gift of $500 to his executor David Ross.

However, by the time the Fox patriarch died in 2018, Robert’s life had changed dramatically. Alexandra had been born in 2003 and he had divorced her mother Olga in 2013, five years before his death.

Joanne, the eldest of the Fox children, took over the administration of the estate on her father’s death and applied for probate based on the 2001 will which is when the first hurdle for the Fox family appeared. Probate can only be granted to the executors of the will and David Ross was the named executor, not Joanne so her application was refused.

For reasons unknown, David Ross renounced his office in 2019 and Joanne reapplied to the court for letters of administration to be granted to her based on the fact that there was no longer an executor to handle the administration of the will.

But then her brother Trevor stepped forward and added fuel to the already simmering fire. Trevor gave evidence that the 2001 will wasn’t the last wishes of their father. Robert Fox had shown Trevor an updated will following his divorce from Olga which no longer included Olga and his step sister Angelina but did now include the youngest Fox sister, Alexandra. In the new updated will all three Fox children were given an equal share of the estate.

Trevor ended his affidavit to the court by saying that he fully supported his sister application and that he would be willing to forgo his financial entitlement under the will to benefit his youngest sister, Alexandra.

Trevor’s generous gesture towards Alexandra made Joanne re consider her actions and she then filed another application to the court, this time asking for a grant of the letters of administration for the 2001 will confirming that she would also forgo her financial entitlement for Alexandra but then said in her application that she would administer the estate as if her father died intestate which would remove Angelina as a beneficiary. Angelina unsurprisingly opposed this application asking the court to instruct Joanne to proceed with the administration of the 2001 will which left her 30% of her step father’s estate.

With the Fox children unable to provide evidence of another will, it was the left to the court to consider the possibilities.

If the court decided that the 2001 was valid, then:

Robert’s gift to his now ex wife Olga was revoked on their divorce and would fall into the residue, however, Roberts 2001 will only gave specific gifts and didn’t contain a residue which would mean Olga’s 30% would fall into intestacy.

Joanne and Trevor have disclaimed their father’s gifts to them in favour of Alexandra but have actually maintained their gifts for the benefit of Alexandra. This would mean that their gifts would also fall into intestacy as there is no residue however, the only people who would benefit from the gifts under intestacy would be Joanne, Trevor and Alexandra anyway as they are Robert’s issue.

Angelina is the only person who would miss out as she was a step child of Robert and the court held that she ceased to be a step child when her mother and Robert divorced.

If the court decided that Robert died intestate then :

Joanne, Trevor and Alexandra would equally be the beneficiaries of Robert’s estate but as Joanne and Trevor have relinquished their gifts Alexandra would receive all the estate.

The problem was that Robert didn’t die intestate. He left the 2001 will and Trevor had provided evidence that there is another will and the court confirmed that Joanne’s application to administer her father’s estate based on intestacy could not go ahead.

It was also inappropriate for Joanne’s application for letters of administration for the 2001 will to be allowed until further evidence was obtained and so all of Joanne’s applications were adjourned.

Unless Robert’s updated will is found, then the Fox children will never know what their father intended when it came to their step sister Angelina. Two years after their father’s death, they were still no nearer to distributing his estate and the cost of Joanne’s three applications to the court had greatly diminished the beneficiary pot.

All good stories have a moral to take away and the Fox family story is no different. If you want your family succession story to be a success then for every life event make a new will and make sure your nearest and dearest know where it is and what your intentions are.