A homemade Will headache – untangling Re Negrean; Borbil v Borbil [2025] QSC 66

The Supreme Court of Queensland’s decision in Re Negrean; Borbil v Borbil [2025] QSC 66 is a compelling and instructive illustration of the challenges courts face when interpreting a homemade will drafted by a testator with limited English proficiency. In an estate tangled with familial complexity, informal expressions of intention, and imprecise testamentary language, Justice Hindman was called upon to decipher the true meaning of Raveica Negrean’s will and to determine whether it conferred proprietary rights or merely expressed aspirational wishes.

This article explores the factual matrix, the legal issues at stake, and the judicial reasoning that ultimately led the court to reject claims of a life interest and affirm a traditional, structured approach to testamentary construction.

Background: a homemade will, a divided family

Raveica Negrean died on 2 March 2019, survived by five adult children: Cosmin, Crina, John (also known as Ioan), Elisei, and Timotei Borbil (Tim). All, except John, had children of their own. Raveica left a will dated 18 February 2019, of which probate was granted to Tim, the named executor, on 14 July 2023.

The main asset of Raveica’s estate was her residential property at 3 Falstaff Street, Sunnybank Hills, Queensland ("Property"). Disputes arose regarding the interpretation of various testamentary clauses, particularly those relating to John’s purported right to remain in the Property and be repaid debts he claimed were owed to him by the deceased.

Three applications came before the Court. Two had been brought by John but were ultimately abandoned. The third and central application was brought by Tim in his capacity as executor, seeking declarations as to the proper construction of the will and, in due course, possession of the Property.

The issues for determination

At the heart of the proceeding were three core interpretive issues, namely:

•  whether John was granted a life interest in the Property

• whether he had at least a personal right to reside there

• whether proceeds from a future sale of the Property were to be applied first to pay debts allegedly owed to John.

These questions required the court to balance technical principles of testamentary construction with the evident informality and linguistic limitations of the will’s drafting.

Judicial analysis: construction principles and life Interests

Justice Hindman began by restating foundational principles of will construction:

• The Court’s function is to ascertain the deceased’s intention when interpreting a will. The testator’s intention must be derived from the words of the will, read according to their ordinary meaning bearing in mind the facts existing at the time the will was made.[1]

• Courts favour validity over failure of gifts and seek to give effect to all provisions.

• Importantly, where ambiguity arises, the court must adopt the most probable interpretation, without speculating about unexpressed intentions.

• Particular leniency is afforded in the interpretation of homemade wills, especially where the testator's first language is not English.

The “Life Interest” claim

John relied on a sentence within paragraph 4 of the will “Special Directions”:

“I would ask that any money in my bank account to use for bills, funeral costs and repairs to house at 3 Falstaff Street Sunnybank Hills, Queensland 4109. Which is my son John Negrean (Ioan Borbil) principal place of residence and I wish it to continue being his home for as long as he wanted to be.”

In construing this paragraph, Justice Hindman noted that it is a matter of construction as to whether an interest or rights given to a beneficiary to live in a property is a life interest or merely a licence giving a right to reside. Her Honour went on to explain that “[t]he key difference is that a life interest allows the interested person to tenant the property and collect rent from same (a right to profits); that is, there is a right to use the property, rather than just reside in it.”

Justice Hindman found that the wording in paragraph 4 of the will did not create a life interest, nor even a right to reside, and certainly not one capable of withstanding sale. The language amounted to a precatory wish, not an operative gift. It lacked the formality and clarity required to confer an equitable or legal interest in land. Moreover, any implied licence had been terminated when John vacated the property and began renting out rooms without remitting income to the estate.[7] In reaching this conclusion, her Honour, distinguished between a mere expression of hope or family harmony from a legally enforceable grant of a right.

Specific and residual bequests: a careful reconciliation

The will, though disorganised and replete with grammatical inconsistencies, did reflect some discernible structure:

• Specific gifts: John was given the motor vehicle, jewellery, a pink Argyle diamond, and scrap gold. Tim received an investment property in Victoria.

• Household chattels: items located at the Property, including collectibles and furniture, were to be divided equally among the five children.

• The residue: including the Property itself, was left in equal shares to John and Elisei.

A list of additional chattels in the sixth paragraph — “oil painting, crystal wear and collectibles, furniture, collectible coins, bank notes, white goods” — was held not to constitute a further specific gift to John, but a reiteration of general property already covered in the fifth paragraph.

Notably, while the opening of the fifth paragraph mentions giving “everything that belongs to me” to children and grandchildren, the court held the grandchildren were not, in fact, beneficiaries. Rather, the reference was a non-binding wish for the children to pass certain items to their offspring.

The “Debt Clause”: no preferential treatment

The final interpretive challenge centered on the following clause in the seventh paragraph of the will:

“If the property ever to be sold, the monetary gain from the sale of the property Must first pay John Negrean (Ioan Borbil) for all money owed then the rest be shared equally between John and Elisei or their surviving beneficiary.”

John argued that this imposed a binding obligation on the executor to prioritise repayment of debts owed to him by the estate from the proceeds of any sale. Justice Hindman disagreed.

This clause, her Honour explained, only applied if the Property had been sold before death, and the sale proceeds were traceable in the estate. As the Property remained unsold at death, the clause had no operative effect. Any valid claim for repayment of debts would need to be assessed as part of the ordinary administration of the estate.

Orders and costs

Having settled the interpretive questions, the Court:

• declined to grant any right or interest in the Property to John beyond his residual share

• confirmed that the executor could proceed to realise estate assets as necessary to satisfy debts

• deferred making possession orders to allow the parties time to negotiate

• proposed that the executor’s legal costs be paid from the estate on the indemnity basis.

Takeaways: drafting lessons and legal limits

Re Negrean is a textbook example of the dangers of informal drafting. While a court will strive to honour the intentions of a testator, there are limits to how far leniency can stretch. Ambiguity, misplaced punctuation, and imprecise expressions of “wishes” will not overcome the absence of dispositive language.

Key drafting lessons include:

1. avoid precatory language (“I wish,” “I hope”) in dispositive provisions

2. clearly distinguish gifts from general sentiments or instructions

3. name specific beneficiaries and define their entitlements unambiguously

4. consider the possibility of conflicting clauses and resolve them explicitly.

Finally, this decision underscores the importance of legal advice in will preparation – particularly for testators with language or literacy barriers. Homemade wills may be heartfelt, but they often leave behind a legacy of litigation.

Author: Raffael Maestri