Foley v Gleeson - [2013] QSC 234

SUPREME COURT OF QUEENSLAND

CITATION:

Foley v Gleeson and Ors [2013] QSC 234

PARTIES:

HEATHER JEAN FOLEY
(applicant)

v

MICHAEL BRUCE GLEESON
(first respondent)

IAN CAMPBELL GUNN
(second respondent)

PAUL JAMES EMMERSON

(third respondent)

FILE NO:

SC No 232 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

5 September 2013

DELIVERED AT:

Cairns

HEARING DATE:

18 July 2013

JUDGE:

Henry J

ORDERS:

It is declared that the meaning and effect of clauses 3(c)(1) and 3(c)(26)(i) of the will is to confer a discretion upon the second respondent and the third respondent, as trustees, with respect to the manner of distribution and disposition of the funds, the subject of those clauses, as between the applicant and the named secondary beneficiaries.1.

The application is otherwise dismissed.2.

I will hear the parties as to costs.3.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PARTICULAR TESTAMENTARY DISPOSITIONS – DESCRIPTION OF BENEFICIARIES OR PERSONS – GENERALLY – where the deceased through his will bequeathed funds to trustees in two trusts in which the applicant was named a primary beneficiary and other relatives named secondary beneficiaries – where the applicant contends she is unconditionally entitled to be paid all funds held in each trust – where the applicant contends the trustees do not have a discretion in relation to the distribution of the funds between the primary beneficiary and the secondary beneficiaries – whether the applicant is unconditionally entitled to be paid the funds held in each trust

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PARTICULAR TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION – TO IDENTIFY PERSON OR OBJECT OF DISPOSITION – where the respondent contends the applicant is not unconditionally entitled to be paid the funds in the two trusts – where the respondent relies upon extrinsic evidence to show the deceased did not trust the applicant’s guardians – whether recourse to extrinsic evidence is necessary to determine the application

Trusts Act 1973 (Qld) s 8
Succession Act 1981 (Qld) ss 33C, 52

Beattie v Sainsbury (2003) NSWUSC 499, considered
Charter v Charter (1874) LR 7 HL 364, considered
Karger v Paul (1984) VR 161, cited
Ritchie v Magree (1964) 114 CLR 173, cited

Saunders v Vautier 41 ER 482, cited

COUNSEL:

MA Jonsson for the applicant

CJ Crawford for the respondents

SOLICITORS:

Williams Graham Carman Solicitors on behalf of the applicant
G.J. Buckley & Associates Solicitors on behalf of the respondents

The last will of Alexander Donald Gunn (“the deceased”) bequeathed some of his property to trustees in two trusts in which his sister, the applicant, was named as a primary beneficiary and certain other relatives were named as secondary beneficiaries.

The applicant, who has dementia and is represented by her guardians, contends through the present application that she is unconditionally entitled to and ought forthwith be paid the funds held in each trust. That is, she…

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 Foley v Gleeson

Details

AGLC: Foley v Gleeson and Ors [2013] QSC 234
Case: [2013] QSC 234
Decision Date: 5 September 2013

CaseChat Overview and Summary

The matter before the court involved the interpretation of a testamentary disposition in a will. The deceased had left funds in two trusts, with the applicant as a primary beneficiary and other relatives as secondary beneficiaries. The applicant sought to be paid all the funds held in each trust, contending that the trustees had no discretion in distributing the funds between the primary and secondary beneficiaries. The respondent, however, argued that the trustees had discretion and that extrinsic evidence was necessary to understand the deceased’s intentions.

The primary legal issue was whether the applicant was unconditionally entitled to the funds in the trusts or if the trustees had discretion to distribute the funds. A secondary issue was whether extrinsic evidence could be used to determine the deceased’s intentions regarding the trusts. The court had to interpret the relevant clauses of the will and decide if the trustees' discretion was a valid interpretation of the deceased's wishes.

The court found that the clauses in question conferred a discretion on the trustees to distribute the funds between the primary and secondary beneficiaries. This conclusion was based on the plain language of the will and the context in which the clauses were written. The court also determined that recourse to extrinsic evidence was not necessary to ascertain the deceased's intentions, as the terms of the will were clear and unambiguous. Therefore, the applicant's claim for an unconditional entitlement to the funds was rejected.

The court declared that the trustees had the discretion to distribute the funds as they saw fit, as per the will's clauses. The application was dismissed in all other respects. The court reserved decision on the costs of the application, indicating that it would hear from the parties on this matter.

Orders

Orders of the court

It is declared that the meaning and effect of clauses 3(c)(1) and 3(c)(26)(i) of the will is to confer a discretion upon the second respondent and the third respondent, as trustees, with respect to the manner of distribution and disposition of the funds, the subject of those clauses, as between the applicant and the named secondary beneficiaries.1.

The application is otherwise dismissed.2.

I will hear the parties as to costs.3.

Background

Background to the litigation

Full text does not contain this section.

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:	Foley v Gleeson and Ors [2013] QSC 234
PARTIES:	HEATHER JEAN FOLEY (applicant) v MICHAEL BRUCE GLEESON (first respondent) IAN CAMPBELL GUNN (second respondent) PAUL JAMES EMMERSON (third respondent)
FILE NO:	SC No 232 of 2013
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	5 September 2013
DELIVERED AT:	Cairns
HEARING DATE:	18 July 2013
JUDGE:	Henry J
ORDERS:	It is declared that the meaning and effect of clauses 3(c)(1) and 3(c)(26)(i) of the will is to confer a discretion upon the second respondent and the third respondent, as trustees, with respect to the manner of distribution and disposition of the funds, the subject of those clauses, as between the applicant and the named secondary beneficiaries.1. The application is otherwise dismissed.2. I will hear the parties as to costs.3.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PARTICULAR TESTAMENTARY DISPOSITIONS – DESCRIPTION OF BENEFICIARIES OR PERSONS – GENERALLY – where the deceased through his will bequeathed funds to trustees in two trusts in which the applicant was named a primary beneficiary and other relatives named secondary beneficiaries – where the applicant contends she is unconditionally entitled to be paid all funds held in each trust – where the applicant contends the trustees do not have a discretion in relation to the distribution of the funds between the primary beneficiary and the secondary beneficiaries – whether the applicant is unconditionally entitled to be paid the funds held in each trust SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PARTICULAR TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION – TO IDENTIFY PERSON OR OBJECT OF DISPOSITION – where the respondent contends the applicant is not unconditionally entitled to be paid the funds in the two trusts – where the respondent relies upon extrinsic evidence to show the deceased did not trust the applicant’s guardians – whether recourse to extrinsic evidence is necessary to determine the application Trusts Act 1973 (Qld) s 8 Succession Act 1981 (Qld) ss 33C, 52 Beattie v Sainsbury (2003) NSWUSC 499, considered Charter v Charter (1874) LR 7 HL 364, considered Karger v Paul (1984) VR 161, cited Ritchie v Magree (1964) 114 CLR 173, cited Saunders v Vautier 41 ER 482, cited
COUNSEL:	MA Jonsson for the applicant CJ Crawford for the respondents
SOLICITORS:	Williams Graham Carman Solicitors on behalf of the applicant G.J. Buckley & Associates Solicitors on behalf of the respondents