SUPREME COURT OF QUEENSLAND
CITATION: Dalziel v Gott & Ors [2024] QSC 276 PARTIES: KENT WILLIAM DALZIEL AS ADMINISTRATOR OF THE ESTATE OF JOHN EDWARD GOTT
(applicant) v
TERRENCE MICHAEL GOTT
(first respondent) and
JAMES MICHAEL TERRENCE GOTT, MICHELLE CAMILLE GOTT, ROSEMARY FRANCES WILSON, JANICE CECILE KANE, KAREN ANN GOTT, ANNEMIEKE SCHNEIDER, MAARINKE VAN DER MEULEN, ARNDERS VAN DER MEULEN AND CRISTIAEN VAN DER MEULEN
(second respondents)
FILENO/S:
10675 of 2024
DIVISION: Trial Division PROCEEDING: Application DELIVERED EXTEMPOREON: 30 October 2024 DELIVEREDAT: Brisbane HEARINGDATE: 25 October 2024 JUDGE: Burns J ORDER: The Order of the Court is that:
1. Pursuant to s 6 of the Succession Act 1981 (Qld), upon the proper construction of clause 3 of the last Will of JOHN EDWARD GOTT dated 29 August 2012, the gift of the house property described as “Florida” comprises the land and real property described as Lot 5 on Registered Plan 96296 on Title Reference 14454132 and Lot 6 on Registered Plan 96296 on Title Reference 14454133.
2. The Applicant’s costs be paid from the estate on the indemnity basis.
3. The costs of the Second Respondents be paid from the estate on the indemnity basis.
CATCHWORDS: SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION
GENERALLY – GENERALLY – where the administrator of an estate brought an application for a declaration as to the
proper construction of a Will – whether the testator intended to gift his brother a single parcel of land or two adjoining parcels
- whether the language used in the Will, or part of it, was ambiguous on the face of the Will or ambiguous in light of surrounding circumstances – whether the “armchair principle” could be deployed to take into account the testator’s “habits of speech and family, property, friends and acquaintances”
COUNSEL:
SOLICITORS:
Succession Act 1981 (Qld), s33C
Mann v Mann [2024] QSC 50, cited
The Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339, cited
Suthers v Suthers [2015] QSC 285, cited
K Kluss for the applicant
I Klevansky for first-named second respondentM Dwyer for the fourth-named second respondent and as friend of the court for the sixth-named, seventh-named, eighth- named and ninth-named second respondent
The Estate Lawyers for the applicant
Robert Bax and Associates for the first-named second respondent
Michael Dwyer Solicitor for the fourth-named second respondent
BURNS J: This is an application for a declaration as to the proper construction of a clause in the Will of the late John Edward Gott. It was executed on 29 August 2012. Mr Gott died on 1 August 2014. The applicant is the administrator of Mr Gott’s estate.
The clause in question makes a gift of real property to the first respondent, Terrence Michael Gott. He was the brother of the Deceased. The issue is whether, in making that gift, the Deceased intended that it comprise a single parcel of land or two adjoining parcels. If the clause, when properly construed, gifts only one…
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- AGLC
- Dalziel v Gott [2024] QSC 276
- Case
- [2024] QSC 276
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the language used in clause 3 of the will was ambiguous and, if so, whether this ambiguity could be resolved by considering the testator’s habits of speech and surrounding circumstances, including his family, property, and acquaintances. The court was required to determine if the "armchair principle" could be applied to resolve the ambiguity and ascertain the testator's true intent.
The court concluded that the language in the will was indeed ambiguous, both on its face and in the context of the surrounding circumstances. In resolving this ambiguity, the court applied the "armchair principle," which allows for the consideration of broader context to interpret the testator's intentions. The court found that the bequest referred to two adjoining parcels of land: Lot 5 on Registered Plan 96296 on Title Reference 14454132 and Lot 6 on Registered Plan 96296 on Title Reference 14454133.
The court ordered that the gift of the house property described as "Florida" included both parcels of land. Additionally, the court ruled that the costs of the application be borne by the estate on an indemnity basis for both the applicant and the second respondents.
Orders
Orders of the court
The Order of the Court is that:
1. Pursuant to s 6 of the Succession Act 1981 (Qld), upon the proper construction of clause 3 of the last Will of JOHN EDWARD GOTT dated 29 August 2012, the gift of the house property described as “Florida” comprises the land and real property described as Lot 5 on Registered Plan 96296 on Title Reference 14454132 and Lot 6 on Registered Plan 96296 on Title Reference 14454133.
2. The Applicant’s costs be paid from the estate on the indemnity basis.
3. The costs of the Second Respondents be paid from the estate on the indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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