ELDER & ANOR -v- TIMOTHY LAURENCE McCOMISH as Executor of the Estate of ROLAND DANIEL CANTWELL (Dec) [2005] WASC 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 119 | |
| Case No: | CIV:2548/2004 | 19 MAY 2005 | |
| Coram: | MASTER SANDERSON | 9/06/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | VERNON WILLIAM ELDER VERNON WILLIAM ELDER as Executor of the Estate of BERNICE JOY ELDER (Dec) TIMOTHY LAURENCE McCOMISH as Executor of the Estate of ROLAND DANIEL CANTWELL (Dec) |
Catchwords: | Practice and procedure Application to strike out parts of affidavits Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 37 r 7 Trustees Act 1962 (WA), s 94(1) |
Case References: | Harris v Ashdown (1985) 3 NSWLR 193 Hill v Crook (1873) LR 6 HL 265 In Re Rowlands (Dec) [1973] VR 225 Re Jebb (Dec) [1966] Ch 666 Archer v Channel Seven Perth Pty Ltd [2001] WASCA 195 Festa v The Queen [2001] HCA 72 Hardwick v Hardwick (1873) LR Eq 168 Hiscocks (Dec) v Hiscocks (1839) 5 M & W 363 Hughes v National Trustees, Executors & Agency Company of Australasia Pty Ltd (1979) 143 CLR 134 Re Smalley; Smalley v Scotton [1929] Ch 112 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 WLR 271 Subramaniam v Public Prosecutor [1956] 1 WLR 965 Walton v The Queen (1989) 166 CLR 283 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
VERNON WILLIAM ELDER as Executor of the Estate of BERNICE JOY ELDER (Dec)
Second Plaintiff
AND
TIMOTHY LAURENCE McCOMISH as Executor of the Estate of ROLAND DANIEL CANTWELL (Dec)
Defendant
Catchwords:
Practice and procedure - Application to strike out parts of affidavits - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 37 r 7
Trustees Act 1962 (WA), s 94(1)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr D L Jones
Second Plaintiff : Mr D L Jones
Defendant : Ms M Van Der Kwast
Solicitors:
First Plaintiff : McKie & Associates
Second Plaintiff : McKie & Associates
Defendant : Dwyer Durack
Case(s) referred to in judgment(s):
Harris v Ashdown (1985) 3 NSWLR 193
Hill v Crook (1873) LR 6 HL 265
In Re Rowlands (Dec) [1973] VR 225
Re Jebb (Dec) [1966] Ch 666
Case(s) also cited:
Archer v Channel Seven Perth Pty Ltd [2001] WASCA 195
Festa v The Queen [2001] HCA 72
Hardwick v Hardwick (1873) LR Eq 168
Hiscocks (Dec) v Hiscocks (1839) 5 M & W 363
Hughes v National Trustees, Executors & Agency Company of Australasia Pty Ltd (1979) 143 CLR 134
Re Smalley; Smalley…
Details
- AGLC
- Elder v Timothy Laurence McComish as Executor of the Estate of Roland Daniel Cantwell (Dec) [2005] WASC 119
- Case
- [2005] WASC 119
- Decision Date
CaseChat Overview and Summary
This case involves an application by the defendant, Timothy Laurence McComish as Executor of the Estate of Roland Daniel Cantwell (Dec), to strike out parts of affidavits filed by the plaintiffs, Vernon William Elder and Bernice Joy Elder (Dec), in support of their application. The dispute concerns the interpretation of the term "my children" in Cantwell's will, which the plaintiffs argue should include them, while the executor contends it refers solely to Cantwell's biological children. The court was required to decide whether the plaintiffs' affidavits contained evidence that could be considered by the court in determining the meaning of the term "my children" and if any parts of the affidavits were irrelevant or inadmissible.
The court considered the application on two grounds. First, whether the language of the will was so clear that evidence of surrounding circumstances could not be admitted. The court held that the term "my children" was not necessarily limited to biological children and that evidence of surrounding circumstances could be considered to determine the testator's intention. Second, the court examined whether the affidavits contained irrelevant material that should be struck out. The court found that while some of the material was not probative, it could not be determined in advance of the hearing what was relevant and what was not. The court also noted that parts of the affidavits that were said to be hearsay or evidence of the state of mind of the deceased were not so mischievous as to warrant action in advance of the hearing.
The court dismissed the defendant's application, finding that the plaintiffs were entitled to put forward evidence that supported their interpretation of the phrase "my children" in the will. The court proposed that the costs of the application be reserved, to be determined by the trial judge if the defendant took the view that there were unnecessary matters set out in the affidavits.
The court considered the application on two grounds. First, whether the language of the will was so clear that evidence of surrounding circumstances could not be admitted. The court held that the term "my children" was not necessarily limited to biological children and that evidence of surrounding circumstances could be considered to determine the testator's intention. Second, the court examined whether the affidavits contained irrelevant material that should be struck out. The court found that while some of the material was not probative, it could not be determined in advance of the hearing what was relevant and what was not. The court also noted that parts of the affidavits that were said to be hearsay or evidence of the state of mind of the deceased were not so mischievous as to warrant action in advance of the hearing.
The court dismissed the defendant's application, finding that the plaintiffs were entitled to put forward evidence that supported their interpretation of the phrase "my children" in the will. The court proposed that the costs of the application be reserved, to be determined by the trial judge if the defendant took the view that there were unnecessary matters set out in the affidavits.
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