Newly married widow loses bid to become sole beneficiary of $1.1million estate

A Queensland widow who married her late husband two days before he died has lost a bid to be named the sole beneficiary of his $1.1million estate, even though he had ‘very limited contact’ with his children adults from a previous marriage.

Ipswich man Trevor William McMahon died on August 18 last year, after marrying longtime domestic partner Michelle Corillo Ochea on August 16.

The couple had been in a relationship for about 13 years.

Mr McMahon made his last will on July 22, 2021, appointing Ms Ochea as his executor and estate trustee.

The will included two adjoining homes in the Ipswich suburb of Woodend with a combined value of $1.1million, as well as several vehicles, a tractor, a forklift, a boat and trailer, and a motorhome Toyota Coaster.

However, Mr. McMahon did not name a beneficiary for the gifts in the handwritten sections.

The first section, listing homes and vehicles as “gifts,” did not name a recipient.

The next section, which included the tractor, forklift and boat, read: “I direct my executor(s) to pay all my debts and then give the remainder of my estate to SAME,with the word “same” handwritten by Mr. McMahon.

Last month, Ms Ochea asked the Queensland Supreme Court to rectify the ‘flawed’ will with the effect of making her the sole beneficiary.

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Mr McMahon’s adult children, Sandra Lee Percival and Nathan Tervor McMahon, have asked that their father’s estate be distributed according to the rules of the intestate – when a person dies without a valid will – and that Ms Ochea be ignored as executor.

Mrs Ochea argued that it was her husband’s intention when he executed the will that she should be the sole beneficiary.

She relied on “evidence of very limited contact between Mr McMahon” and the two adult children and “a breakdown of the relationship” with one of them, and “the absence of any contact” with his third adult child, according to court documents.

She argued that ‘clear and convincing evidence’ of her late husband’s intent had been demonstrated in the ‘domestic relationship… culminating in their marriage less than a month after Mr McMahon had executed the will’, and the fact that his two adult children from a previous marriage had moved in with the couple in 2021 and remained to live with them until Mr McMahon’s death.

Ms Ochea also cited a “solemn declaration that Mr. McMahon made on March 10, 2016, in which he declared that his two houses … were to be left to the petitioner”.

Judge Sean Cooper rejected these arguments.

“Evidence of the nature of the relationship between Mr. McMahon and others does not, in my view, constitute evidence of his intention when he executed the will,” he said in his decision.

Nor was Judge Cooper “prepared to give weight to the statements made by Mr McMahon in the statutory declaration – which was made more than five years before he executed the will”.

Instead, he concluded that “the only evidence of Mr. McMahon’s intention at the relevant time is the form of the will itself”.

“The fact that Mr. McMahon named the applicant as executor is consistent with the intention that she be the recipient of a large bequest,” he said.

“Furthermore, Mr. McMahon’s use of the word ‘SAME’ in clause 5, when completing a statement which expressly referred to the executor, is evidence that he intended to identify the claimant. as the beneficiary of the gift in clause 5. However, I am not satisfied that this evidence provides clear and convincing evidence that Mr. McMahon’s real intention was to leave his entire estate to the claimant.

Judge Cooper said such an intention was inconsistent with Mr McMahon’s reference to numerous assets in clause 4, albeit without any reference to a beneficiary.

“If Mr. McMahon had intended to leave his entire estate to the claimant, it would not have been necessary for him to have specified any element of ownership in clause 4,” he said.

“For these reasons, I am not persuaded that Mr. McMahon’s intention in executing the will was to leave his entire estate to the claimant. Accordingly, the court has no power to order the rectification of the will in the terms requested by the applicant Mr. McMahon’s application for rectification of the will must be dismissed.

Judge Cooper also ruled that Ms Ochea would be removed as executor of the estate.

Ms Percival argued in court that Ms Ochea would be in a ‘conflict position’ and favor her own interests and those of her adult children, who were not beneficiaries of Mr McMahon’s estate but ‘continued to live without rent in the house”.

“There is strength in these submissions,” Judge Cooper said.

The court ordered Ms Percival to be appointed administrator of the estate, which was “to be distributed according to the rules of the intestate”.

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