Crnjanin v Crnjanin - [2011] QSC 295

SUPREME COURT OF QUEENSLAND

CITATION:

Crnjanin v Crnjanin & Ors [2011] QSC 295

PARTIES:

JOVAN MILAN CRNJANIN (ALSO KNOWN AS JOHN CRNJANIN) AS EXECUTOR OF THE ESTATE OF ALEXANDER MOISEENKO DECEASED
(applicant)
v
JOVAN MILAN CRNJANIN (ALSO KNOWN AS JOHN CRNJANIN) AS EXECUTOR OF THE ESTATE OF JUNE CRNJANIN
(first respondent)
and
ALEXANDER KASATCHENKO
(second respondent)
and
GABRIEL MASKO
(third respondent)
and
JOVAN MILAN CRNJANIN (ALSO KNOWN AS JOHN CRNJANIN)
(fourth respondent)
and
MILANKO CRNJANIN
(fifth respondent)
and
SERGE EROFEV (ALSO KNOWN AS SERGEI EROFEEV)
(sixth respondent)

FILE NO:

6230 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2011

JUDGE:

Applegarth J

ORDERS:

MONIES held by me in BANK or INVESTMENT ACCOUNTSALL OTHER ASSETS both REAL, or PERSONAL held by me at the time of my death.”” and a residuary bequest as to “The Court declares that, on its proper construction, clause 8 of the last will and testament of Alexander Moiseenko (“the deceased”) is a specific bequest as to “all 1.

The Court makes the following directions for the administration of the estate of the late Alexander Moiseenko pursuant to s 96 of the Trusts Act 1973:2.

The applicant is at liberty to distribute the estate of the deceased on the basis that there is no further liability for income tax on the part of the estate notwithstanding that the Deputy Commissioner of Taxation has refused and/or failed to provide a release of such liability and/or to otherwise certify in that regard;(a)

(b) Any debts and expenses of the administration of the estate of the deceased which exceed the value of the residuary estate of the deceased shall be rateably paid by the specific devisees and the specific legatee referred to in paragraphs 3 to 8 of the Will;

(c) In the event that debts and expenses of the administration of the estate are to be rateably paid by the specific devisees and the specific legatee referred to in paragraphs 3 to 8 of the will the rateable proportion is charged on the specific devise or bequest to which it relates and each specific devisee shall have the option (exercisable by written notice to the executor’s solicitors within 21 days of being informed of the amount of the charge) to pay the charge otherwisethe relevantproperty is to be sold;

(d) To the extent that the properties referred to in clauses 3 to 7 of the Will require work to be done to make them habitable, saleable (if necessary) and insurable, the applicant is not obliged to expend money on them from funds presently available to the administration and can transmit such properties to the specific beneficiaries entitled thereto without further seeing to the state of repair of such properties;

(e) To the extent that any property is charged with the payment of money to the estate of the deceased the executor is to insist upon payment of the money…

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.

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Details

Case: [2011] QSC 295
Decision Date: 6 October 2011

CaseChat Overview and Summary

The matter before the Court involved an application by an executor for a declaration as to the construction of a clause in a deceased's will. The deceased had bequeathed certain assets to a beneficiary in a clause which was in dispute. The primary issue for the Court was to ascertain whether the clause constituted a specific bequest or a residuary bequest, or a combination of both. The Court had to determine the precise intention of the deceased as expressed or implied in the will.

The Court examined the language of the will and the surrounding circumstances to interpret the clause in question. It found that the clause specified "all monies held by me in bank or investment accounts and all other assets both real or personal held by me at the time of my death," which indicated that the clause was intended to cover both specific and residuary assets. The Court concluded that the clause should be interpreted as a specific bequest of the specified assets, with the balance of the estate to be dealt with as residue. The Court considered the practical effect of the bequest and the principle that specific bequests take precedence over residuary bequests in the absence of clear contrary intention.

The Court declared that the clause in question was a specific bequest of the specified assets. It also provided directions for the administration of the estate, including that the executor could distribute the estate without further liability for income tax, and that any debts and expenses exceeding the value of the residuary estate would be rateably paid by the specific devisees and legatees. The Court also outlined procedures for the sale of properties and the handling of charges against specific bequests. The costs of the application were to be paid from the estate on an indemnity basis.

Orders

Orders of the court

MONIES held by me in BANK or INVESTMENT ACCOUNTSALL OTHER ASSETS both REAL, or PERSONAL held by me at the time of my death.”” and a residuary bequest as to “The Court declares that, on its proper construction, clause 8 of the last will and testament of Alexander Moiseenko (“the deceased”) is a specific bequest as to “all 1.

The Court makes the following directions for the administration of the estate of the late Alexander Moiseenko pursuant to s 96 of the Trusts Act 1973:2.

The applicant is at liberty to distribute the estate of the deceased on the basis that there is no further liability for income tax on the part of the estate notwithstanding that the Deputy Commissioner of Taxation has refused and/or failed to provide a release of such liability and/or to otherwise certify in that regard;(a)

(b) Any debts and expenses of the administration of the estate of the deceased which exceed the value of the residuary estate of the deceased shall be rateably paid by the specific devisees and the specific legatee referred to in paragraphs 3 to 8 of the Will;

(c) In the event that debts and expenses of the administration of the estate are to be rateably paid by the specific devisees and the specific legatee referred to in paragraphs 3 to 8 of the will the rateable proportion is charged on the specific devise or bequest to which it relates and each specific devisee shall have the option (exercisable by written notice to the executor’s solicitors within 21 days of being informed of the amount of the charge) to pay the charge otherwisethe relevantproperty is to be sold;

(d) To the extent that the properties referred to in clauses 3 to 7 of the Will require work to be done to make them habitable, saleable (if necessary) and insurable, the applicant is not obliged to expend money on them from funds presently available to the administration and can transmit such properties to the specific beneficiaries entitled thereto without further seeing to the state of repair of such properties;

(e) To the extent that any property is charged with the payment of money to the estate of the deceased the executor is to insist upon payment of the money so charged before transmission of the property to the beneficiary entitled thereto.

3. All parties’ costs of and incidental to this application shall be paid from the estate on an indemnity basis.

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:	Crnjanin v Crnjanin & Ors [2011] QSC 295
PARTIES:	JOVAN MILAN CRNJANIN (ALSO KNOWN AS JOHN CRNJANIN) AS EXECUTOR OF THE ESTATE OF ALEXANDER MOISEENKO DECEASED (applicant) v JOVAN MILAN CRNJANIN (ALSO KNOWN AS JOHN CRNJANIN) AS EXECUTOR OF THE ESTATE OF JUNE CRNJANIN (first respondent) and ALEXANDER KASATCHENKO (second respondent) and GABRIEL MASKO (third respondent) and JOVAN MILAN CRNJANIN (ALSO KNOWN AS JOHN CRNJANIN) (fourth respondent) and MILANKO CRNJANIN (fifth respondent) and SERGE EROFEV (ALSO KNOWN AS SERGEI EROFEEV) (sixth respondent)
FILE NO:	6230 of 2011
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2011
JUDGE:	Applegarth J
ORDERS:	MONIES held by me in BANK or INVESTMENT ACCOUNTSALL OTHER ASSETS both REAL, or PERSONAL held by me at the time of my death.”” and a residuary bequest as to “The Court declares that, on its proper construction, clause 8 of the last will and testament of Alexander Moiseenko (“the deceased”) is a specific bequest as to “all 1. The Court makes the following directions for the administration of the estate of the late Alexander Moiseenko pursuant to s 96 of the Trusts Act 1973:2. The applicant is at liberty to distribute the estate of the deceased on the basis that there is no further liability for income tax on the part of the estate notwithstanding that the Deputy Commissioner of Taxation has refused and/or failed to provide a release of such liability and/or to otherwise certify in that regard;(a) (b) Any debts and expenses of the administration of the estate of the deceased which exceed the value of the residuary estate of the deceased shall be rateably paid by the specific devisees and the specific legatee referred to in paragraphs 3 to 8 of the Will; (c) In the event that debts and expenses of the administration of the estate are to be rateably paid by the specific devisees and the specific legatee referred to in paragraphs 3 to 8 of the will the rateable proportion is charged on the specific devise or bequest to which it relates and each specific devisee shall have the option (exercisable by written notice to the executor’s solicitors within 21 days of being informed of the amount of the charge) to pay the charge otherwisethe relevantproperty is to be sold; (d) To the extent that the properties referred to in clauses 3 to 7 of the Will require work to be done to make them habitable, saleable (if necessary) and insurable, the applicant is not obliged to expend money on them from funds presently available to the administration and can transmit such properties to the specific beneficiaries entitled thereto without further seeing to the state of repair of such properties; (e) To the extent that any property is charged with the payment of money to the estate of the deceased the executor is to insist upon payment of the money…