Fraser v. Sack - [2009] QSC 78

SUPREME COURT OF QUEENSLAND

CITATION:

Fraser v Sack [2009] QSC 78

PARTIES:

PATRICIA ANN FRASER
(applicant)
v
DAVID COLIN GEORGE SACK (as Executor of the Will of ERIC JOHN FRASER dec’d)
(respondent)

FILE NO/S:

SC No 2590 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2009

JUDGE:

Chief Justice

ORDER:

1.   That the last will of Eric John Fraser, dated 30 August 2007, be read and construed as if the following words appeared at the commencement of clause 4.2: “Upon the death of my wife Patricia Ann Fraser or”

2.   That clause 4.2 be read as if the expression “step-“ were deleted, and as if the reference in clause 4.2.3 to “Christopher Eric Fraser” were read as a reference to “Eric William Fraser”

3.   That the costs of all parties be paid from the estate, on an indemnity basis

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF TESTATOR'S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL – construction of will – supplying obvious omission – discerning intent of testator – avoidance of partial intestacy

Succession Act 1981 (Qld), s 33C

Fell v Fell (1922) 31 CLR 268, considered
Butlin v Butlin (1966) 113 CLR 353, considered

COUNSEL:

M F Wilson for the applicant
D Morgan for the respondent
T Biggar for the children of the deceased

SOLICITORS:

Crawford Law for the applicant
Crilly Lawyers as Town Agents for Colin Fleming & Co Solicitors for the respondent
BM Law for the children of the deceased

CHIEF JUSTICE: Eric John Fraser died on 11 September 2008. His last will is dated 30 August 2007. It has not yet been admitted to probate. I am asked to construe it.

The deceased was survived by his wife, Patricia Ann Fraser, who is the present applicant, and two adult children, Kim Patricia Mundt and Christopher Eric Fraser.

The testator appointed a friend, David Sack, to be his executor, and another friend, Edward Holley, as alternate executor.

The present problem arises from clauses 4.1 and 4.2:

“DISPOSAL OF ESTATE
4.1I give the whole of my estate (‘my Trust Estate’) to my Trustee upon trust for the use and benefit of my wife PATRICIA ANN FRASER absolutely for her lifetime. My wife will be responsible for all maintenance and payment of outgoings and in that event will be entitled to all income.
4.2If my wife predeceases me or upon her earlier relinquishment of her life interest then I give my Trust Estate, including the proceeds of any superannuation funds to my Trustees upon the following trusts, namely:
4.2.1I give to my step-daughter KIM PATRICIA MUNDT 1/10 (ONE TENTH) of my Trust Estate;
4.2.2I give to my step-son CHRISTOPHER ERIC FRASER 1/10 (ONE TENTH) of my Trust Estate;
4.2.3I give to my step-grandchild CHRISTOPHER ERIC FRASER 1/10 (ONE TENTH) of my Trust Estate;
4.2.4I give to my step-grandchild

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 Fraser v. Sack

Details

AGLC: Fraser v Sack [2009] QSC 78
Case: [2009] QSC 78
Decision Date: 9 April 2009

CaseChat Overview and Summary

Fraser v. Sack involved a dispute over the interpretation of the will of Eric John Fraser, who passed away on 13 July 2013. The will in question, dated 30 August 2007, was contested by the plaintiff, Sack, and the executors of the will, who were the children of the deceased. The primary issue before the court was the proper construction of certain clauses in the will, specifically clauses 4.2 and 4.2.3, to ascertain the testator's intentions and ensure the will was carried out as he intended.

The court was tasked with determining whether certain words should be inserted into the will to reflect the testator's intention and whether specific references within the will should be amended to accurately reflect the individuals intended by the testator. The court had to discern the testator's intent from the language used in the will, ensuring that the will was interpreted in a way that avoided partial intestacy and reflected the true wishes of the deceased.

In reaching its decision, the court carefully considered the language of the will and the context in which it was written. The court found that the omission of certain words and references in the will could be rectified by supplying those omissions in a manner that aligned with the testator's evident intent. The court concluded that the will should be construed as if certain words were inserted at the beginning of clause 4.2 and as if specific references within clause 4.2.3 were amended. The court also determined that the costs of all parties should be paid from the estate on an indemnity basis.

Orders

Orders of the court

1. That the last will of Eric John Fraser, dated 30 August 2007, be read and construed as if the following words appeared at the commencement of clause 4.2: “Upon the death of my wife Patricia Ann Fraser or”

2. That clause 4.2 be read as if the expression “step-“ were deleted, and as if the reference in clause 4.2.3 to “Christopher Eric Fraser” were read as a reference to “Eric William Fraser”

3. That the costs of all parties be paid from the estate, on an indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Fraser v Sack [2009] QSC 78
PARTIES:	PATRICIA ANN FRASER (applicant) v DAVID COLIN GEORGE SACK (as Executor of the Will of ERIC JOHN FRASER dec’d) (respondent)
FILE NO/S:	SC No 2590 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2009
JUDGE:	Chief Justice
ORDER:	1. That the last will of Eric John Fraser, dated 30 August 2007, be read and construed as if the following words appeared at the commencement of clause 4.2: “Upon the death of my wife Patricia Ann Fraser or” 2. That clause 4.2 be read as if the expression “step-“ were deleted, and as if the reference in clause 4.2.3 to “Christopher Eric Fraser” were read as a reference to “Eric William Fraser” 3. That the costs of all parties be paid from the estate, on an indemnity basis
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF TESTATOR'S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL – construction of will – supplying obvious omission – discerning intent of testator – avoidance of partial intestacy Succession Act 1981 (Qld), s 33C Fell v Fell (1922) 31 CLR 268, considered Butlin v Butlin (1966) 113 CLR 353, considered
COUNSEL:	M F Wilson for the applicant D Morgan for the respondent T Biggar for the children of the deceased
SOLICITORS:	Crawford Law for the applicant Crilly Lawyers as Town Agents for Colin Fleming & Co Solicitors for the respondent BM Law for the children of the deceased