Fitzgerald v Rowley

[2019] QSC 21

SUPREME COURT OF QUEENSLAND

CITATION:

Fitzgerald & Anor v Rowley & Anor [2019] QSC 21

PARTIES:

DAWN MARIE FITZGERALD and
KRYSTLE LOUISE TOKUNAI

(Applicants)

v
DULCIE MARY AGNES ROWLEY (as executor of the Will of Marianne Therese Fitzgerald deceased)

(First Respondent)

and

DAWN MARIE FITZGERALD (as executor of the Will of William Francis Gim Fitzgerald deceased)

(Second Respondent)

FILE NO/S:

No 473 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

15 February 2019

DELIVERED AT:

Cairns

HEARING DATE:

1 February 2019

JUDGE:

Henry J

ORDERS:

1. Pursuant to s 33(3) Succession Act 1981 (Qld), the time for the making of an application for an order to rectify the will of William Francis Gim Fitzgerald deceased dated 25 April 2014 (“the will”) be extended to 5 September 2018.

2.   That the will be rectified by deleting clause 4 thereof and in lieu thereof, inserting the following clause:

“4.     If Marianne survives me:

(a)     I give the Remaining Trust Fund (as that term is defined in clause 2.6 of the trust deed of the WFG & MT Fitzgerald Family Trust Settlement 2014 (“the deed”)) of the WFG & MT Fitzgerald Family Trust Settlement 2014 that is paid to my estate pursuant to clause 2.6 of the deed to such of my children as survive me and, if more than one, in equal shares; and

(b)     I give the residue of my estate to Marianne.”

3.   I will hear the parties as to costs.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – MISTAKES AND OMISSIONS – where the deceased instructed a trust deed and a will be created – where upon his death his wife was to be the beneficiary of the trust and his daughters, the applicants, were to be trustees – where the deceased had intended upon the death of his wife for the remaining trust fund to be distributed to the applicants – where all relevant parties believed the trust deed and will gave effect to this intention – where in fact the literal effect of the will did not provide for the distribution of the remaining trust fund – whether the Court ought rectify the will to carry out the intentions of the testator

Succession Act 1981 (Qld) s 33

Rose v Tomkins [2018] 1 Qd R 549

COUNSEL:

C Brewer for the applicants

C Ryall for the first respondent

SOLICITORS:

The Will & All (formerly Jeneve Frizzo Estate Law) for the applicants

Murray & Lyons for the first respondent

No separate representative for the second respondent in her capacity as executor

1. The applicants seek rectification of their deceased father’s will or, in the alternative, adequate provision be made from the estate of their deceased mother.

2. The applicants are the daughters of William Francis Gim Fitzgerald (“Gim”) and Marianne Therese Fitzgerald (“Marianne”).  Gim died on 11 December 2014 and Marianne died on 10 December 2017.  Gim’s will, executed 25 April 2014, relevantly provided:

   “4.  Gift of estate to Wife

   If…