Ellaway v Lawson - [2006] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Ellaway v Lawson & Anor [2006] QSC 170

PARTIES:

MARGARET INA LESLEY ELLAWAY
(applicant)
v
VERONICA JANETTE LESLIE LAWSON AS EXECUTOR OF THE ESTATE OF MARY KNIGHT, DECEASED
(respondent)

FILE NO:

2887 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

12 July 2006

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

27 April 2006

JUDGE:

Douglas J

ORDER:

Application contained in paragraphs 1 and 2 of the originating application filed 5 April 2006 is dismissed.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – CONDITION, FORFEITURE AND GIFT OVER – MARRIAGE – MARRIAGE GENERALLY – where a clause of the will states that applicant does not receive her bequest until she either divorces her current husband or her current husband dies – where there is a gift over to a charity if this gift does not take effect – whether clause is invalid on public policy grounds

Succession Act 1981 (Qld), s 41.

Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, cited.
Fender v St John-Mildmay [1938] AC 1, cited
H v W (1857) 69 ER 1157, cited
Ramsay v Trustees Executors and Agency Co Ltd (1948) 77 CLR 321, followed
Re Caborne; Hodge v Smith [1943] Ch 224, cited
Re Johnson’s Will Trusts [1967] 1 Ch 387, cited
Re Ramsay [1948] VLR 347, cited.
Re Thompson [1939] 1 All ER 681, cited

COUNSEL:

R Cameron for the applicant
D Mullins SC for the respondent

SOLICITORS:

Bridge Brideaux for the applicant
Martinez Quadrio for the respondent

Douglas J: Mrs Mary Knight, the deceased, who died on 6 July 2005, left a will appointing one of her two daughters, the respondent, Mrs Lawson, as executrix. Both Mrs Lawson and her sister, the applicant, Mrs Ellaway, are named as beneficiaries. Mrs Lawson is directed to sell their mother’s home, worth about $280,000, and divide the proceeds, after payment of the estate’s debts and testamentary expenses, equally between herself and her sister.

Mrs Lawson receives her share immediately but by cl. 3(c)(ii) of the will, Mrs Ellaway does not receive her bequest “until such time as … (she) … either –

“(i) divorces her current husband; or
(ii) her current husband dies …”

If the gift does not take effect there is a gift over to a Catholic Parish church which was served, and responded through the Archdiocese, but did not appear on the hearing of the application.

The applicant contends that the limitation imposed by the will on Mrs Ellaway’s receipt of the bequest is void as being contrary to public policy. The respondent’s executrix, Mrs Lawson, argues that the High Court decision in Ramsayv Trustees Executors and Agency Co Ltd (1948) 77 CLR 321 requires me to determine this issue in favour of the will as it stands and to dismiss the application.

It is clear that the testatrix wished to prevent her son-in-law…

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 Ellaway v Lawson

Details

AGLC: Ellaway v Lawson [2006] QSC 170
Case: [2006] QSC 170
Decision Date: 12 July 2006

CaseChat Overview and Summary

The matter of Ellaway v Lawson was heard in the Supreme Court of Queensland. The applicant, Ellaway, sought to challenge the validity of a clause in the will of her late father which stipulated that she would not receive her inheritance until she either divorced her current husband or her current husband died. In the event that the clause did not take effect, the bequest was to be transferred to a specified charity. The legal issues in this case were whether the clause in question was valid and enforceable, and if not, whether it could be severed from the rest of the will. The court had to consider the effect of the clause on Ellaway's marital status and the potential public policy implications of enforcing such a condition.

The court examined the clause in the context of the testator's overall intentions and found that the clause did not contravene any public policy considerations. It was determined that the clause was a valid expression of the testator's wishes and was not contrary to any statute or public policy. The court also considered the possibility of severing the clause from the rest of the will but concluded that doing so would alter the testator's intentions and thus was not appropriate. The court held that the clause was valid and enforceable and did not contravene any public policy considerations.

Ellaway's application was dismissed, and the clause in the will was upheld as valid. The court found that the clause was a clear expression of the testator's wishes and did not contravene any statute or public policy. The court did not find it necessary to sever the clause from the rest of the will as it did not believe that doing so would be appropriate. The final order of the court was that the application contained in paragraphs 1 and 2 of the originating application filed on 5 April 2006 was dismissed.

Orders

Orders of the court

Application contained in paragraphs 1 and 2 of the originating application filed 5 April 2006 is dismissed.

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:	Ellaway v Lawson & Anor [2006] QSC 170
PARTIES:	MARGARET INA LESLEY ELLAWAY (applicant) v VERONICA JANETTE LESLIE LAWSON AS EXECUTOR OF THE ESTATE OF MARY KNIGHT, DECEASED (respondent)
FILE NO:	2887 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	12 July 2006
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	27 April 2006
JUDGE:	Douglas J
ORDER:	Application contained in paragraphs 1 and 2 of the originating application filed 5 April 2006 is dismissed.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – CONDITION, FORFEITURE AND GIFT OVER – MARRIAGE – MARRIAGE GENERALLY – where a clause of the will states that applicant does not receive her bequest until she either divorces her current husband or her current husband dies – where there is a gift over to a charity if this gift does not take effect – whether clause is invalid on public policy grounds Succession Act 1981 (Qld), s 41. Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, cited. Fender v St John-Mildmay [1938] AC 1, cited H v W (1857) 69 ER 1157, cited Ramsay v Trustees Executors and Agency Co Ltd (1948) 77 CLR 321, followed Re Caborne; Hodge v Smith [1943] Ch 224, cited Re Johnson’s Will Trusts [1967] 1 Ch 387, cited Re Ramsay [1948] VLR 347, cited. Re Thompson [1939] 1 All ER 681, cited
COUNSEL:	R Cameron for the applicant D Mullins SC for the respondent
SOLICITORS:	Bridge Brideaux for the applicant Martinez Quadrio for the respondent