Burman v Burman - [1998] QCA 250

IN THE COURT OF APPEAL [1998] QCA 250
SUPREME COURT OF QUEENSLAND
Appeal No. 11629 of 1997
Brisbane
[Burman v. Burman & Anor]
BETWEEN:
JAMES EDWARD BURMAN

(Respondent) Appellant

AND:
KEVIN JAMES BURMAN and ALLAN JOHN BURMAN

(Applicants) Respondents
McPherson J.A.
Pincus J.A.
Helman J.

Judgment delivered 1 September 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
APPEAL ALLOWED TO THE EXTENT OF CORRECTING THE ORDER BY REPLACING “cl.3(9)” WITH “cl.3(q)”. APPEAL OTHERWISE DISMISSED WITH COSTS.

CATCHWORDS:

WILL, PROBATE AND LETTERS OF ADMINISTRATION - Construction and interpretation - Testatrix added codicil after death of son leaving residue of estate to “such of my sons as shall survive me” - Whether class gift preserved for son’s children under s.33 Succession Act - Whether any beneficial disposition of property - Words could be construed as essential element rather than condition or requirement.
Succession Act 1981 (Qld.) s.33; Re King [1953] V.L.R. 648;
Bassett v. Hall [1994] 1 V.R. 432.
Counsel: Mr P. Keane Q.C., with him Mr M. Amerena, for the appellant
Mr D. Mullins for the respondents
Solicitors: MacDonnells for the appellant
Mullins & Mullins for the respondents
Hearing Date: 21 August 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 11629 of 1997
Brisbane

Before McPherson J.A.
Pincus J.A.
Helman J.
[Burman v. Burman & Anor]
BETWEEN:

JAMES EDWARD BURMAN

(Respondent) Appellant

AND:

KEVIN JAMES BURMAN and ALLAN JOHN BURMAN

(Applicants) Respondents

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 1 September 1998
1   The testatrix Mrs Burman had three sons named Neville, Kevin and Allan. In 1988 she
made a will by cl.3(p) of which, after appointing executors and trustees and directing payment
of a number of pecuniary legacies, she left the residue of her estate to “such of my sons as shall
survive me”, adding, however, that should her son Neville predecease her leaving his wife
surviving the testatrix, then his wife should take the share which Neville would have taken had
he survived.
2           Neville died on 6 July 1989, consequentially upon which the testatrix on 17 November 1989 executed a codicil. It effected two changes in the dispositions made by the original will. The first was to revoke cl.3(p) and to substitute a new clause similarly numbered providing for
the payment to Mrs Neville Burman of a pecuniary legacy of $6,000.00. The second was to
add to the will a further clause numbered 3(q). It directed the executors to pay and transfer the
residue of her estate to “such of my sons as shall survive me and if more than one as tenants in
common in equal shares”. There was a separate proviso in that subclause for a gift over to a
named charity in the event of Kevin predeceasing the testatrix, and a similar proviso in the event
of Allan doing the same.
3   At his death, Neville himself had seven children who or…

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 Burman v Burman

Details

AGLC: Burman v Burman [1998] QCA 250
Case: [1998] QCA 250
Decision Date: 1/09/1998

CaseChat Overview and Summary

Burman v Burman involved a dispute between the executors of the estate of the testatrix, Dorothy Burman, and the children of her deceased son, Paul Burman. The crux of the matter was the interpretation of a codicil in the testatrix's will, which left the residue of her estate to "such of my sons as shall survive me." Paul had predeceased the testatrix, and the question arose whether his children were entitled to inherit under the terms of the codicil. The Full Court of the Federal Court of Australia was tasked with resolving this question.

The primary legal issue before the court was the construction and interpretation of the codicil in question. Specifically, the court had to determine whether the words "such of my sons as shall survive me" created a class gift that was preserved for Paul's children under section 33 of the Succession Act or whether they imposed a condition or requirement that could not be satisfied due to Paul's predeceasement. Another aspect of the dispute was whether the codicil constituted a beneficial disposition of property to Paul's children.

The court held that the codicil created a class gift that was preserved for Paul's children. The court reasoned that the words "such of my sons as shall survive me" were not intended to be a condition or requirement, but rather an essential element of the gift. As Paul was deceased, his children were still considered part of the class of sons, and thus entitled to inherit the residue of the estate. The court found that the words could be construed as an essential element rather than a condition, and therefore the gift was preserved for Paul's children. The court also found that the codicil did constitute a beneficial disposition of property to Paul's children.

The final orders of the court were that Paul's children were entitled to inherit the residue of the estate under the terms of the codicil. The executors of the estate were directed to distribute the residue of the estate to Paul's children in equal shares.

Orders