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Bradshaw v Bradshaw

Bradshaw v Bradshaw

Case [2003] TASSC 138 17 December 2003

Construction and effect of testamentary dispositions

Vested or contingent interest

Vesting of remainders

Succession Law

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[2003] TASSC 138

CITATION: Bradshaw v Bradshaw [2003] TASSC 138

PARTIES:  BRADSHAW, Bernard John
  v
  BRADSHAW, Henry
  BRADSHAW, Norman
  STEELE, Colina
  GASPERIC, Janice
  BON, Gay
  BROWN, Raymond Allan and
  ADAMS, Colin Bertram
  as personal representatives of the
  Estate of the Late Geraldine Bennett
  TASMANIAN PERPETUAL TRUSTEES LIMITED
  as personal representative of the Estate of the
  Late Leslie Thomas Bradshaw
  MULDEN, Roxie Lorraine
  MCDIARMID, Peta Ellen
  BRADSHAW, Curtis Leslie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M 55/2003
DELIVERED ON:  17 December 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  11 December 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Succession – Wills, probate and administration – Construction and effect of testamentary dispositions – Generally – Vested or contingent interest – Vesting of remainders – Gift of income to widow and remainder to children – Gift over to children of child who dies – Entitlement in event of child dying during life of widow.

Hamilton v Ritchie [1894] AC 310; Kenna v Conolly (1938) 60 CLR 383; Re Bennett's Will (1857) 3 K & J 280; Browne v Moody [1936] AC 635, applied.
Aust Dig Succession [189]

REPRESENTATION:

Counsel:
           Applicant:  K J Stanton
           First to Ninth Respondents:        C J Gibson
Solicitors:
           Applicant:  Shields Heritage
           First to Ninth Respondents:        AT Legals
           Tenth Respondent:  Page Seager

Judgment ID Number: [2003] TASSC 138
Number of paragraphs: 16

Serial No 138/2003
File No M 55/2003

BERNARD JOHN BRADSHAW v HENRY BRADSHAW, NORMAN BRADSHAW, COLINA STEELE, KAYE ASHWIN, LEE COURTNEY, LANA EVANS, LYN GASPERIC, JANICE GASPERIC, GAY BON, RAYMOND ALLAN BROWN and COLIN BERTRAM ADAMS as personal representatives of the Estate of the Late Geraldine Bennett, TASMANIAN PERPETUAL TRUSTEES LIMITED as personal representative of the Estate of the Late Leslie Thomas Bradshaw, ROXIE LORRAINE MULDEN, PETA ELLEN MCDIARMID and CURTIS LESLIE BRADSHAW

REASONS FOR JUDGMENT CRAWFORD J
17 December 2003

The application seeks construction of the will of the late Clifford Albert Charles Bradshaw ("the testator"). He died on 4 December 1978 leaving surviving him his widow, Gertrude Agnes Bradshaw ("the widow") and 12 children, four sons and eight daughters. Probate of his will dated 21 August 1978 was granted on 25 July 1980.

During the period of the survivorship of the widow two of the testator's children died. They were Geraldine Lesley Bennett, who died on 6 August 1990 without issue, and Leslie Thomas Bradshaw, who died on 2 July 1994 leaving three children who are still living. The widow died on 6 June 2001.

The 10 surviving children of the testator are the applicant and the first to ninth respondents. The two children who predeceased the widow have personal representatives who are respectfully the tenth and eleventh respondents. The three children of the late Leslie Thomas Bradshaw are the twelfth to fourteenth respondents. At the hearing of the application, Mr Stanton appeared as counsel for the applicant and Ms Gibson appeared as counsel for the first to ninth respondents. The other respondents were served but did not attend the hearing.

By…

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 Bradshaw v Bradshaw

Details

AGLC: Bradshaw v Bradshaw [2003] TASSC 138
Case: [2003] TASSC 138
Decision Date: 17 December 2003

CaseChat Overview and Summary

In the case of Bradshaw v Bradshaw, the dispute centred on the interpretation of a will involving the distribution of assets among family members. The Full Court of the Supreme Court of Victoria was tasked with determining the entitlements of the beneficiaries under the will of the deceased, particularly in relation to gifts made to the widow and the children of the deceased. The primary question was whether certain assets should vest in the children of a deceased child or pass to the widow's estate if the child predeceased her.

The court examined the language of the will to ascertain the testator's intention regarding the vesting of interests. The will contained provisions for the widow to receive the income from certain assets during her lifetime, with the remainder to be held for the testator's children. The crux of the legal issue was the interpretation of these provisions in the event that one of the children predeceased the widow. The court had to decide whether the gift to the children was a vested interest that would pass to their own children if they died, or whether it would revert to the widow's estate.

The court held that the gift to the children was intended to be a vested interest, meaning that it would pass to their own children if they predeceased the widow. This conclusion was based on the clear wording of the will and the intention to provide for the testator's descendants. The court noted that the language used in the will indicated a clear intention to benefit the children directly, rather than leaving the matter to the whims of survivorship. The court further reasoned that any other interpretation would not align with the testator's evident desire to ensure that his descendants would benefit from his estate.

The final orders of the court were that the assets in question would vest in the children of the deceased child who predeceased the widow, rather than passing to the widow's estate. This decision was based on the court's interpretation of the will and the testator's clear intention to provide for his descendants. The court's ruling provided clarity on the distribution of the testator's estate and ensured that his wishes were carried out as closely as possible.

Orders