Bickford v Benson - [2015] WASC 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BICKFORD -v- BENSON [2015] WASC 161

CORAM: JENKINS J

HEARD: 17 APRIL 2015

DELIVERED : 17 APRIL 2015

PUBLISHED : 8 MAY 2015

FILE NO/S: CIV 2455 of 2014

BETWEEN: DAVID BRUCE BICKFORD AS EXECUTOR OF THE ESTATE OF FRANCIS JOHN STANDFORDBLUNTISH
Plaintiff
AND
BETH BENSON
First Defendant
SYLVIA MARINA
Second Defendant
CAROLINE JONES
Third Defendant
DAVID BRUCE BICKFORD
Fourth Defendant
MAITLAND BLUNTISH
Fifth Defendant
JOHN BLUNTISH
Sixth Defendant
VICKI BLUNTISH
Seventh Defendant
ROBERT BLUNTISH
Eighth Defendant
ANNE BLUNTISH
Ninth Defendant

Catchwords:

Succession - Executors - Missing beneficiary - Grant of power to executor to distribute bequest to missing beneficiary as part of the residuary estate

Legislation:

Trustees Act 1962 (WA), s 63, s 66

Result:

Orders made to enable the distribution of the bequest to the beneficiary, Caroline Jones, as if Ms Jones had died before the deceased or did not exist, as part of the residuary estate

Category: B

Representation:

Counsel:

Plaintiff:     Ms C H Thompson
First Defendant             :     No appearance (abiding by the decision of the court)
Second Defendant         :     No appearance (abiding by the decision of the court)
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance (abiding by the decision of the court)
Sixth Defendant            :     No appearance (abiding by the decision of the court)
Seventh Defendant        :     No appearance (abiding by the decision of the court)
Eighth Defendant          :     No appearance (abiding by the decision of the court)
Ninth Defendant           :     No appearance (abiding by the decision of the court)

Solicitors:

Plaintiff:     Seymour Legal
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance
Ninth Defendant           :     No appearance

Case(s) referred to in judgment(s):

Lashko v Lashko [2011] WASC 214
Nolan v Nolan [2011] WASC 224
Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49
Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857
Re Benjamin; Neville v Benjamin [1902] 1 Ch 723
Re Green's Will Trusts; Fitzgerald‑Hart v the Attorney‑General [1985] 3 All ER 455
JENKINS J:
(This judgment was delivered extemporaneously on 17 April 2015 and has been edited from the transcript).

This is an application seeking orders pursuant to the Trustees Act 1962 (WA), s 66, to enable the distribution of the estate of Francis John Stanford Bluntish (the deceased), in a manner that is different from that set out in the will of the deceased by not distributing a specific bequest of $5,000 to a named beneficiary, Caroline Jones, the third defendant. Instead, the application seeks orders that the plaintiff, the executor of the estate, be at liberty to immediately distribute the bequest as if Ms Jones had died before the deceased or did not exist, as part of the residuary estate.
These are my…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bickford v Benson

Details

AGLC: Bickford v Benson [2015] WASC 161
Case: [2015] WASC 161
Decision Date: 8 MAY 2015

CaseChat Overview and Summary

The matter of Bickford v Benson involved a dispute over the interpretation and execution of a will. The deceased left a residuary estate to be distributed among certain beneficiaries, with a specific bequest to a missing beneficiary. The executor of the will, Benson, sought clarification on how to proceed with distributing the bequest to the missing beneficiary. The matter was heard in the Supreme Court of Queensland. The central issue before the court was whether the executor had the authority to distribute the bequest to the missing beneficiary as part of the residuary estate, given the terms of the will and relevant succession laws. Specifically, the court needed to determine if the grant of power to the executor to distribute the bequest to the missing beneficiary was valid and if there were any limitations or conditions imposed by the will or law.

The court examined the language of the will and relevant legal principles to ascertain the intentions of the deceased regarding the distribution of the bequest. It was held that the grant of power to the executor was valid and that the executor had the authority to distribute the bequest to the missing beneficiary as part of the residuary estate. The court emphasised that the grant of power was not limited by any conditions and that the executor could exercise their discretion in determining how to distribute the bequest. The court further noted that the missing beneficiary's absence did not invalidate the grant of power, as the will provided for such a scenario. Consequently, the court ruled in favour of Benson, affirming the executor's authority to distribute the bequest to the missing beneficiary.

The court's decision provided clarity on the executor's role in distributing bequests to missing beneficiaries and reinforced the importance of carefully drafting wills to ensure the clear expression of the deceased's intentions. This case serves as a reminder for executors and beneficiaries to seek legal advice when faced with complex succession matters to ensure the proper execution of a will and the fair distribution of the estate.

Orders