Desmarchelier v Stone - [2004] QSC 458

SUPREME COURT OF QUEENSLAND

CITATION:

Desmarchelier v Stone & Ors [2004] QSC 458

PARTIES:

JANE DENISE DESMARCHELIER
(applicant)
v
DOROTHY MARGARET STONE
(first respondent)
BRUCE KINGSLEY WEBSTER
(second respondent)
GEOFFREY BURSTON WEBSTER
(third respondent)
DAVID JAMES WEBSTER
(forth respondent)
LINDSAY ANN HAMON
(fifth respondent)
ALEXANDER BRAND WEBSTER
(sixth respondent)
SUSAN ELIZABETH PURNELL
(seventh respondent)
RICHARD ANDREW CHERRY WILLIS
(eighth respondent)
KEITH CHERRY WILLIS
(ninth respondent)
IAN CHERRY WILLIS

(tenth respondent)

FILE NO/S:

BS9032 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

17 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2004

JUDGE:

Moynihan J

ORDER:

1.   On the true construction of the last will of the late Alexander Richard Kingsley Webster (the testator), and in the events which have happened namely the testator’s death on 21 February 2002 and the death of his brother, the late Alison Brand Webster (known as Brand) on 10 March 2002:-

a.   the gift to Brand of a one half share of the property referred to in the will as “Blue Anchor” being land more particularly described as 21 Knoll Road, North Tamborine, being lot 1 on Registered Plan No 32149 and Lot 1 on Registered Plan No 32155, each in the County of Ward, Parish of Tamborine, lapsed on Brand’s death in accordance with section 32 of the Succession Act 1981 (Qld), with the consequence that:

i.        this one half share in “Blue Anchor” fell to be dealt with as part of the residue of the estate in accordance with section 28(b) of that Act; and

ii.       the executors were correct to allow the second respondent to exercise the testamentary option for the purchase of that one half share in “Blue Anchor”; and

iii.      the executors were correct to account for the proceeds of sale of this one half share in “Blue anchor” as an amount falling into the residue of the estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTIMONY – GENERALLY – whether construction of the will is correct

Succession Act 1981 (Qld), s 32

Report of the Law Reform Commission on the Law Relating to Succession QLRC 24 February 1978, p 20, para 32,

The Law of Succession (Butterworths) 1027

COUNSEL:

D Marks for the applicant

S W Sheaffe for the second respondent

M Wilson for the first, third, fourth, eighth, ninth and tenth respondents

SOLICITORS:

Cartwights Tebbett & Ostwald for the applicant

Mitchells Solicitors & Business Advisors for the second respondent

de Groots for the first, third, fourth, eighth, ninth and tenth respondents

Alexander Richard Kingsley (the Testator) died on 21 February 2002. His last will and testament appointed the Applicant (Jane Denise Desmarchelier), the First Respondent (Dorothy Margaret Stone) and the Second Respondent (Bruce Kingsley Webster) executors. Probate of the will was granted on 17 June 2002.

The will relevantly provided:

“I give Devise and Bequeath in equal shares to my brothers, James Burston Webster and Alison Brand Webster, my property at Tamborine known…

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 Desmarchelier v Stone

Details

AGLC: Desmarchelier v Stone [2004] QSC 458
Case: [2004] QSC 458
Decision Date: 17 December 2004

CaseChat Overview and Summary

The matter before the Queensland Supreme Court was a dispute concerning the interpretation of the last will of Alexander Richard Kingsley Webster. The central issue in the case was whether the gift of a one-half share of a property referred to as "Blue Anchor" to the testator's brother, Alison Brand Webster, lapsed upon Brand's death and consequently formed part of the residue of the estate. The dispute arose after the testator's death on 21 February 2002, followed by Brand's death on 10 March 2002. The executors of the estate had permitted a testamentary option for the purchase of the one-half share in "Blue Anchor" to be exercised by a second respondent, leading to further complications in the distribution of the estate.

The legal issues that the court had to determine were primarily centred around the construction of the will and the effect of Brand's death on the testamentary gifts. Specifically, the court had to decide whether the gift to Brand lapsed and became part of the residue under section 32 of the Succession Act 1981 (Qld). If the gift lapsed, the court needed to consider the correctness of the executors' actions in allowing the second respondent to exercise the testamentary option and in accounting for the proceeds of the sale as part of the residue. This involved a detailed analysis of the language used in the will and the application of statutory provisions concerning lapsed gifts and residue distribution.

In reaching its decision, the court meticulously examined the will and the relevant provisions of the Succession Act. The court found that the gift to Brand lapsed upon his death, as per section 32 of the Act. Consequently, the one-half share of "Blue Anchor" became part of the residue of the estate. The court affirmed that the executors acted correctly in allowing the second respondent to exercise the testamentary option for the purchase and in accounting for the proceeds as part of the residue. The court's reasoning was grounded in the statutory interpretation of the Succession Act and the plain meaning of the testamentary language used in the will.

The court ordered that the one-half share of "Blue Anchor" that was gifted to Brand lapsed upon his death and should be treated as part of the residue of the estate. The executors were validated in their decisions to allow the second respondent to exercise the testamentary option and to account for the sale proceeds as part of the estate residue.

Orders

Orders of the court

1. On the true construction of the last will of the late Alexander Richard Kingsley Webster (the testator), and in the events which have happened namely the testator’s death on 21 February 2002 and the death of his brother, the late Alison Brand Webster (known as Brand) on 10 March 2002:-

a. the gift to Brand of a one half share of the property referred to in the will as “Blue Anchor” being land more particularly described as 21 Knoll Road, North Tamborine, being lot 1 on Registered Plan No 32149 and Lot 1 on Registered Plan No 32155, each in the County of Ward, Parish of Tamborine, lapsed on Brand’s death in accordance with section 32 of the Succession Act 1981 (Qld), with the consequence that:

i. this one half share in “Blue Anchor” fell to be dealt with as part of the residue of the estate in accordance with section 28(b) of that Act; and

ii. the executors were correct to allow the second respondent to exercise the testamentary option for the purchase of that one half share in “Blue Anchor”; and

iii. the executors were correct to account for the proceeds of sale of this one half share in “Blue anchor” as an amount falling into the residue of the estate.

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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CITATION:	Desmarchelier v Stone & Ors [2004] QSC 458
PARTIES:	JANE DENISE DESMARCHELIER (applicant) v DOROTHY MARGARET STONE (first respondent) BRUCE KINGSLEY WEBSTER (second respondent) GEOFFREY BURSTON WEBSTER (third respondent) DAVID JAMES WEBSTER (forth respondent) LINDSAY ANN HAMON (fifth respondent) ALEXANDER BRAND WEBSTER (sixth respondent) SUSAN ELIZABETH PURNELL (seventh respondent) RICHARD ANDREW CHERRY WILLIS (eighth respondent) KEITH CHERRY WILLIS (ninth respondent) IAN CHERRY WILLIS (tenth respondent)
FILE NO/S:	BS9032 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	17 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2004
JUDGE:	Moynihan J
ORDER:	1. On the true construction of the last will of the late Alexander Richard Kingsley Webster (the testator), and in the events which have happened namely the testator’s death on 21 February 2002 and the death of his brother, the late Alison Brand Webster (known as Brand) on 10 March 2002:- a. the gift to Brand of a one half share of the property referred to in the will as “Blue Anchor” being land more particularly described as 21 Knoll Road, North Tamborine, being lot 1 on Registered Plan No 32149 and Lot 1 on Registered Plan No 32155, each in the County of Ward, Parish of Tamborine, lapsed on Brand’s death in accordance with section 32 of the Succession Act 1981 (Qld), with the consequence that: i. this one half share in “Blue Anchor” fell to be dealt with as part of the residue of the estate in accordance with section 28(b) of that Act; and ii. the executors were correct to allow the second respondent to exercise the testamentary option for the purchase of that one half share in “Blue Anchor”; and iii. the executors were correct to account for the proceeds of sale of this one half share in “Blue anchor” as an amount falling into the residue of the estate.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTIMONY – GENERALLY – whether construction of the will is correct Succession Act 1981 (Qld), s 32 Report of the Law Reform Commission on the Law Relating to Succession QLRC 24 February 1978, p 20, para 32, The Law of Succession (Butterworths) 1027
COUNSEL:	D Marks for the applicant S W Sheaffe for the second respondent M Wilson for the first, third, fourth, eighth, ninth and tenth respondents
SOLICITORS:	Cartwights Tebbett & Ostwald for the applicant Mitchells Solicitors & Business Advisors for the second respondent de Groots for the first, third, fourth, eighth, ninth and tenth respondents