Coleman v Orr - [2017] QSC 215

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v Orr & Ors [2017] QSC 215

PARTIES:

NEIL ALFRED COLEMAN (as executor and trustee of the Will of LILLIAN MAY BEATTIE, deceased)

(applicant)

v
BRUCE DOUGLAS ORR AND OTHERS

(respondents)

FILE NO:

BS5956 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

4 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2017

JUDGE:

Mullins J

ORDER:

1.   It is declared that, on the proper construction of the will dated 23 April 1998 and the codicil dated 6 April 2005 of Lillian May Beattie deceased, clause 4 of the will confers in respect of any beneficiary named in clause 3 who failed to survive the deceased for 30 days leaving a child or children who survived the deceased for 30 days, an interest in favour of those children, so that they take, and if more than one equally, the share which their parent would have taken, had such parent survived the deceased for 30 days.

2.   The twenty-fifth respondent’s costs of the application incurred after 10 July 2017 on the standard basis be paid from the deceased’s estate.

3.   The applicant’s costs of the application on the indemnity basis be paid out of the deceased’s estate.

4.   The applicant have liberty to apply in respect of any other orders which he may be advised to seek in relation to costs.

CATCHWORDS:

SUCCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – PRINCIPLES OR RULES OF CONSTRUCTION – GENERALLY – where will provided for a substitutional gift to issue, if any named beneficiary failed to survive the deceased and specified that such issue would take the share which his/her or their mother or father would have taken had such parent survived the deceased – whether the intention of the deceased in using “issue” was to refer to children only and not any remoter descendants

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – where executor joined the solicitor who drafted the will as a respondent to the application to construe the will – where will provided for a substitutional gift to issue, if any named beneficiary failed to survive the deceased and specified that such issue would take the share which his/her or their mother or father would have taken had such parent survived the deceased – where deceased’s estate was small – where it was a forgone conclusion that in the context of the will “issue” would be construed as “children” and not extending to remoter descendants – whether the solicitor who drafted the will should bear the costs of the executor’s application for construction of the will

Matthews v Williams (1941) 65 CLR 639, cited
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18, cited
Sibley v Perry (1802) 32 ER 211, followed
Simpson v Simpson [2011] QSC 196, followed

COUNSEL:

R D Williams for the applicant

R T Whiteford for the twenty-fifth respondent

SOLICITORS:

Mitchells Solicitors…

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 Coleman v Orr

Details

AGLC: Coleman v Orr [2017] QSC 215
Case: [2017] QSC 215
Decision Date: 4 October 2017

CaseChat Overview and Summary

Coleman v Orr involved a dispute concerning the construction of a testamentary disposition in the context of a will. The deceased, Lillian May Beattie, left a will and a codicil that included provisions for substitutional gifts to the "issue" of named beneficiaries if they did not survive the deceased. The primary issue before the court was the interpretation of the term "issue" within the will and codicil, specifically whether it referred only to direct children of the deceased or whether it extended to more remote descendants such as grandchildren or great-grandchildren. The court was also required to determine whether the solicitor who drafted the will should bear the costs associated with the executor’s application for the construction of the will.

The court considered the principles of will construction and noted that the context of the will and the absence of ambiguity suggested that "issue" should be interpreted narrowly to mean direct children. The court held that the deceased’s intention was to provide for her direct descendants, rather than extending to more remote descendants. Additionally, regarding the costs, the court held that the solicitor who drafted the will should bear the costs of the executor’s application, given that it was a forgone conclusion that "issue" would be interpreted as "children" only and the deceased’s estate was small. The court emphasised that the solicitor, as the drafter of the will, should bear responsibility for any costs arising from the necessity to clarify the will’s meaning.

The final orders of the court declared that the term "issue" in the will and codicil should be construed to refer to the children of the deceased beneficiaries. The court also ordered that the solicitor who drafted the will should bear the costs of the executor’s application for the construction of the will, with specific directions on the basis of costs to be paid. The executor was granted liberty to apply for any further orders related to costs.

Orders

Orders of the court

1. It is declared that, on the proper construction of the will dated 23 April 1998 and the codicil dated 6 April 2005 of Lillian May Beattie deceased, clause 4 of the will confers in respect of any beneficiary named in clause 3 who failed to survive the deceased for 30 days leaving a child or children who survived the deceased for 30 days, an interest in favour of those children, so that they take, and if more than one equally, the share which their parent would have taken, had such parent survived the deceased for 30 days.

2. The twenty-fifth respondent’s costs of the application incurred after 10 July 2017 on the standard basis be paid from the deceased’s estate.

3. The applicant’s costs of the application on the indemnity basis be paid out of the deceased’s estate.

4. The applicant have liberty to apply in respect of any other orders which he may be advised to seek in relation to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Coleman v Orr & Ors [2017] QSC 215
PARTIES:	NEIL ALFRED COLEMAN (as executor and trustee of the Will of LILLIAN MAY BEATTIE, deceased) (applicant) v BRUCE DOUGLAS ORR AND OTHERS (respondents)
FILE NO:	BS5956 of 2017
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	4 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2017
JUDGE:	Mullins J
ORDER:	1. It is declared that, on the proper construction of the will dated 23 April 1998 and the codicil dated 6 April 2005 of Lillian May Beattie deceased, clause 4 of the will confers in respect of any beneficiary named in clause 3 who failed to survive the deceased for 30 days leaving a child or children who survived the deceased for 30 days, an interest in favour of those children, so that they take, and if more than one equally, the share which their parent would have taken, had such parent survived the deceased for 30 days. 2. The twenty-fifth respondent’s costs of the application incurred after 10 July 2017 on the standard basis be paid from the deceased’s estate. 3. The applicant’s costs of the application on the indemnity basis be paid out of the deceased’s estate. 4. The applicant have liberty to apply in respect of any other orders which he may be advised to seek in relation to costs.
CATCHWORDS:	SUCCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – PRINCIPLES OR RULES OF CONSTRUCTION – GENERALLY – where will provided for a substitutional gift to issue, if any named beneficiary failed to survive the deceased and specified that such issue would take the share which his/her or their mother or father would have taken had such parent survived the deceased – whether the intention of the deceased in using “issue” was to refer to children only and not any remoter descendants PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – where executor joined the solicitor who drafted the will as a respondent to the application to construe the will – where will provided for a substitutional gift to issue, if any named beneficiary failed to survive the deceased and specified that such issue would take the share which his/her or their mother or father would have taken had such parent survived the deceased – where deceased’s estate was small – where it was a forgone conclusion that in the context of the will “issue” would be construed as “children” and not extending to remoter descendants – whether the solicitor who drafted the will should bear the costs of the executor’s application for construction of the will Matthews v Williams (1941) 65 CLR 639, cited Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18, cited Sibley v Perry (1802) 32 ER 211, followed Simpson v Simpson [2011] QSC 196, followed
COUNSEL:	R D Williams for the applicant R T Whiteford for the twenty-fifth respondent
SOLICITORS:	Mitchells Solicitors…