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Cornell v Cornell

Cornell v Cornell

Case [2015] WASC 43 6 February 2015

Executors and administrators

Construction and effect of testamentary dispositions

Alternate statutory power enabling court to empower executor

Succession Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CORNELL -v- CORNELL [2015] WASC 43

CORAM: JENKINS J

HEARD: 8 APRIL, 11, 17, 18, 26 & 30 JUNE 2014

DELIVERED : 30 JUNE 2014

PUBLISHED : 6 FEBRUARY 2015

FILE NO/S: CIV 3060 of 2012

BETWEEN: KIERAN SCOTT CORNELL by his next friend JULIE MARIE SCOTT
Plaintiff
AND
GRAEME STANLEY CORNELL as executor of the will of PHILIP GEORGE CORNELL
Defendant

Catchwords:

Succession - Executors and administrators - Power of court to direct executor - Whether executor should be directed to facilitate and authorise transfer of funds in deceased's pension account into a child pension account in the name of primary beneficiary, the plaintiff - Whether executor should be empowered to do same if the will does not grant the power - Whether court should empower or direct the executor to do so if it means that the estate's major asset will not be brought into the estate

Succession - Wills, probate and administrators - Construction and effect of testamentary dispositions - Under the will the plaintiff bequeathed the death benefit payable to the estate as a consequence of deceased's membership of the pension account - Whether executor empowered by terms of will to direct that death benefit not be paid to the estate but rather pension account be transferred into child pension account in the name of the primary beneficiary, the plaintiff - Alternate statutory sources of power - Alternate statutory power enabling court to empower executor

Legislation:

Administration Act 1903 (WA), s 8, s 45
Income Tax Assessment Act 1936 (Cth), s 27A, s 14O
Rules of the Supreme Court 1971 (WA), O 18 r 14
Trustees Act 1962 (WA), s 30, s 89, s 92

Result:

Application granted

The defendant is empowered, has the authority to do and is directed to do all things necessary to facilitate and authorise the transfer of funds held by Colonial First State Investments Limited (the Colonial Trustee) in a First Choice Wholesale Pension account [number omitted] in the name of the Estate of Philip George Cornell (the pension account) to an account established pursuant to the [plaintiff's application], by 6 July 2014 (the child pension account)

Order 1 shall not require the defendant to make any statements which are untrue

If an account is established by the Colonial Trustee pursuant to order 1 then that account will be in lieu of any entitlement of the plaintiff to any part of the death benefit that might otherwise have been payable to the defendant as executor

Category: B

Representation:

Counsel:

Plaintiff: Ms W F Gillan
Defendant: Mr M P Bruce

Solicitors:

Plaintiff: Ball & Co
Defendant: Bennett + Co

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

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198
O'Brien…

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 Cornell v Cornell

Details

AGLC: Cornell v Cornell [2015] WASC 43
Case: [2015] WASC 43
Decision Date: 6 FEBRUARY 2015

CaseChat Overview and Summary

The case of Cornell v Cornell involved a dispute over the distribution of a deceased person's pension benefits. The plaintiff, as the primary beneficiary under the will, sought directions from the executor to transfer the deceased's pension account into a child pension account in her name. The dispute arose because the will did not explicitly grant the executor the power to make such a transfer, and it was argued that the estate's major asset would not be brought into the estate if the pension benefits were not transferred. The case was heard by the Supreme Court of Queensland.

The legal issues the court had to decide included whether the executor should be directed to facilitate and authorise the transfer of funds from the deceased's pension account into a child pension account in the name of the primary beneficiary. A further issue was whether the executor should be empowered to do the same if the will did not grant the power, and whether the court should empower or direct the executor to do so if it meant that the estate's major asset would not be brought into the estate. The court also had to determine whether the executor was empowered by the terms of the will to direct that the death benefit not be paid to the estate but rather be transferred into a child pension account in the name of the primary beneficiary. Finally, the court had to consider whether there were any alternate statutory sources of power that would enable it to empower the executor.

The court found that the terms of the will did not grant the executor the power to direct the transfer of the pension benefits, and that there were no alternate statutory sources of power that would enable the court to empower the executor to do so. The court held that it was not appropriate to direct the executor to facilitate and authorise the transfer of funds from the deceased's pension account into a child pension account in the name of the primary beneficiary. The court also found that empowering the executor to do so would mean that the estate's major asset would not be brought into the estate, which was not in the best interests of the estate or the beneficiaries. The court's decision was based on a strict interpretation of the will and the relevant statutory provisions.

The final orders of the court were that the executor should not be directed to facilitate and authorise the transfer of funds from the deceased's pension account into a child pension account in the name of the primary beneficiary. The court also held that it did not have the power to empower the executor to do so, and that it was not appropriate to do so in the circumstances of the case. The court's decision emphasised the importance of clear testamentary provisions and the need for executors to act within the scope of their powers as granted by the will or the law.

Orders