Dubois v Hodgson - [1999] NSWSC 1065

CITATION: DUBOIS v HODGSON [1999] NSWSC 1065

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 1510/99

HEARING DATE(S): 22/09/99 and 23/09/99

JUDGMENT DATE:
23 September 1999

PARTIES :

EDWARD GEORGE DUBOIS v ISABELLA HODGSON & 2 OTHERS

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr B. Ralston for the plaintiff
Mr P Blackburn-Hart for the 3rd defendant
Mr Jamieson for the 4th defendant

SOLICITORS: Robert D. West & Associates for the plaintiff
Windeyer Dibbs for the 3rd defendant
Dollan Wong Turvey for the 4th defendant

CATCHWORDS: Succession. Wills Probate & Administration. Construction of gift for a purpose. Held the gift passed to those entitled to the property which was the object of the purpose gift. Use of armchair principle of construction.

CASES CITED: Commissioner for Stamp Duties (Qld) v Livingston (1965) AC 694 at 717.
re Bowes, Earl of Strathmore v Vane (1896) 1 Ch 507
Allgood v Blake (1873) LR 8 Ex 160 at 162
Theobold on Wills 5th ed at p321.
Allen v A.G. (1914) 15 SR (NSW) 41.
re Lipinski's Will Trusts 1976 1 Ch 235

DECISION: Paragraphs 49, 50 and 51

-1 -
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 23 SEPTEMBER 1999

001510/99 - EDWARD GEORGE DUBOIS v ISABELLA HODGSON & 3 ORS

JUDGMENT
1 MASTER:. This is the hearing of an application brought for construction of a will of the late John Smyth. It is probably convenient to firstly mention the beneficiaries who take under that will in order to put into context the matters that I have to deal with later. 2 The will was made on 4 September 1990. Iolanda Hoare, who I will refer to as Iolanda, is the second defendant. She is the plaintiff in other proceedings which are before me for hearing in which she seeks an order under the Family Provisions Act. She in these proceedings deposes to the fact that she lived with the deceased in a de facto relationship which commenced in the mid to late 1960s and continued up until the time the deceased was admitted to hospital in 1990. 3 Yvonne Hoare, who I will refer to as Yvonne, is the third defendant. She is the daughter of Iolanda. She is not suggesting that she is a member of the deceased household or dependant upon the deceased. 4 Isabella Hoare, who I will refer to as Isabella, is the first defendant. In the Family Provision Act proceedings she deposes to the fact that she and the deceased lived in a de facto relationship from a period commencing about May 1989 up until the deceased's death. 5 The plaintiff in the proceedings, Edward George Dubois, is the executor of the will. He was also a friend the deceased, having met him in November 1986 when he and the deceased operated businesses in adjoining joining premises. 6 Tony Drieman, who I will refer to as Mr Drieman, was a friend of the deceased. He rented a property known as 34 Pacific Highway,…

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: [1999] NSWSC 1065
Decision Date: 23 September 1999

CaseChat Overview and Summary

In Dubois v Hodgson, the case before the court involved a dispute concerning the interpretation of a will, specifically a gift for a purpose. The court was required to determine whether the gift passed to the intended beneficiaries or to those entitled to the property that was the object of the purpose gift. The case arose from the estate of the deceased, and the dispute centred on the interpretation of a particular clause in the deceased's will. The primary issue before the court was how to construe the ambiguous language in the will regarding the purpose gift. The court had to decide whether the gift should be interpreted strictly according to the terms of the will or whether it should be interpreted more broadly to achieve the underlying purpose of the gift.

The court considered the established principles of will construction, including the application of the 'armchair principle' of construction. This principle requires the court to consider what a reasonable person in the position of the deceased would have intended at the time of making the will. The court also considered the established legal principle that gifts for purposes are to be interpreted in a way that gives effect to the donor's intentions, but that the court may depart from the literal terms of the will if necessary to achieve the purpose of the gift. After considering the relevant authorities and the circumstances of the case, the court concluded that the gift passed to those entitled to the property which was the object of the purpose gift, rather than to the intended beneficiaries.

The court's decision was based on its finding that the language of the will was ambiguous and that the purpose of the gift could not be achieved if the gift was strictly construed according to its literal terms. The court held that the gift should be interpreted in a way that gave effect to the donor's intentions, and that the purpose of the gift could only be achieved if the gift passed to those entitled to the property which was the object of the purpose gift. The court's decision was based on a careful analysis of the language of the will and the relevant legal principles. The final orders of the court are not stated in the text.

Orders