Dalziel v Gott - [2024] QSC 276

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 respondent

M 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…

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 Dalziel v Gott

Details

AGLC: Dalziel v Gott [2024] QSC 276
Case: [2024] QSC 276
Decision Date: 25 October 2024

CaseChat Overview and Summary

In the matter of Dalziel v Gott, the court was tasked with interpreting the intentions of the late John Edward Gott, specifically regarding the distribution of his property as outlined in his will dated 29 August 2012. The dispute arose as the will bequeathed a house property identified as “Florida” to the testator’s brother, leading to a contention over whether this referred to one or two parcels of land. The administrator of the estate brought the application seeking clarification on this point.

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

Full text does not contain this section.

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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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