Hesse v Donovan - [2004] QSC 343

SUPREME COURT OF QUEENSLAND

CITATION:

Hesse v Donovan & Ors [2004] QSC 343

PARTIES:

GRAHAM HESSE as executor of the estate of the late Clive Francis Chatwood
(applicant)
v
HAZEL LARADE DONOVAN
(first respondent)
TIMOTHY MARK STANFIELD
(second respondent)
ELAINE WAUGH
(third respondent)
BENEFICIARIES ON INTESTACY [ROBYN FORSTER (NEE STANFIELD), WENDY PAYNE, PETER LINSAY STANFIELD, TIMOTHY STANFIELD, OLGA NICHOLS, CORAL KENT, GLENYS THOMPSON, LLEWELYN STANFIELD, VALMAI RANKIN, DESLEY DRAPER, GLENEVE STANFIELD, JOHN STANFIELD, JIM STEWART, JEFF STUART, BILL BINSTEAD, GARY BINSTEAD, GREG BINSTEAD, RON ZERNICKE, GRAHAM DEAR, PRUE DEAR, RODNEY GEDDES, MURRAY GEDDES, DESLEY LIND, CRAIG LIND, ESDENE KRUGER]
(fourth respondents)

FILE NO:

S7783 of 2003

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

7 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2004

JUDGE:

Mullins J

ORDER:

1. It is declared that:
(a) the expression “bank account” in clause 5 of the last will made on 9 November 1983 (“the will”) of Clive Francis Chatwood (“the testator”) refers to the one bank account in the name of the testator held with Bank of Queensland at the date of the testator’s death and the bank accounts held by the testator with St George Bank Limited which had credit balances at the date of the testator’s death, being two cash management accounts and the portfolio loan variable account;
(b) the gift contained in clause 5 of the will is a specific bequest;
(c) each of the mortgages held by St George Bank Limited over the property at 1155 Logan Road, Holland Park and the unit at 6/9 Lambert Street, Kangaroo Point charged those respective properties with the total amount of the debt owed by the testator at the date of his death under the fixed rate loan accounts, being the total sum of $327,842.35;
(d) each of the property at 1155 Logan Road, Holland Park and the unit at 6/9 Lambert Street, Kangaroo Point is charged with the repayment to St George Bank Limited of the total debt of $327,842.35 in accordance with s 61(1) of the Succession Act 1981.
2. Liberty to any party to apply on 2 days’ notice in writing to the other parties.
3. The costs of the applicant, the second respondent and the third respondent be assessed on an indemnity basis and paid from the estate of the testator.

CATCHWORDS:

SUCCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - where testator’s real property was subject to an “all moneys” mortgage – whether will signified a contrary intention for purpose of s 61(1) of the Succession Act 1981(Q) that real property not be primarily liable for all debts secured by the mortgage – no contrary intention found

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – LEGACIES AND DEVISES – whether a gift of the residue of the money in the testator’s bank account, after payment of funeral and testamentary expenses, was a specific bequest

Succession Act 1981
Trusts Act 1973

Franguescos v Shaw [1977]

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 Hesse v Donovan

Details

AGLC: Hesse v Donovan [2004] QSC 343
Case: [2004] QSC 343
Decision Date: 7 October 2004

CaseChat Overview and Summary

In Hesse v Donovan, the matter before the Queensland Supreme Court involved a dispute over the interpretation and effect of the will of Clive Francis Chatwood, who passed away in 2009. The primary issues revolved around the distribution of his estate, particularly focusing on whether certain real properties were liable for debts secured by mortgages and the interpretation of a bequest concerning the residue of his bank account. The applicant, Sandra Hesse, sought clarification on the extent of the testator's intentions as expressed in his will, while the respondents, including various banking institutions, contested certain aspects of the applicant's interpretation.

The court was tasked with determining whether the will explicitly conveyed an intention contrary to the statutory provision under section 61(1) of the Succession Act 1981 (Q), which stipulates that real property should not be primarily liable for debts secured by an "all moneys" mortgage. Additionally, the court needed to ascertain whether the bequest in clause 5 of the will constituted a specific gift of the residue of the testator's bank account after funeral and testamentary expenses were paid.

In its reasoning, the court found that the testator's will did not manifest a clear intention to exempt the specified real properties from the liability for the outstanding mortgage debts. The court held that the expression “bank account” in clause 5 of the will referred to all relevant bank accounts held by the testator at the time of his death. Furthermore, the court concluded that the bequest in clause 5 was indeed a specific bequest, as it directed the distribution of the residue of the testator's bank account after certain expenses were settled. The court's interpretation aligned with the statutory requirement that the real properties in question remain liable for the outstanding debts as per section 61(1) of the Succession Act 1981.

The court's final orders declared that the bank account referred to in the will included all accounts held by the testator at the time of his death, the bequest was specific, the properties were charged with the outstanding mortgage debt, and the properties were liable for repayment in accordance with the Act. Additionally, the court allowed liberty for any party to apply for further orders and assessed costs on an indemnity basis to be paid from the testator's estate.

Orders

Orders of the court

1. It is declared that:

(a) the expression “bank account” in clause 5 of the last will made on 9 November 1983 (“the will”) of Clive Francis Chatwood (“the testator”) refers to the one bank account in the name of the testator held with Bank of Queensland at the date of the testator’s death and the bank accounts held by the testator with St George Bank Limited which had credit balances at the date of the testator’s death, being two cash management accounts and the portfolio loan variable account;

(b) the gift contained in clause 5 of the will is a specific bequest;

(c) each of the mortgages held by St George Bank Limited over the property at 1155 Logan Road, Holland Park and the unit at 6/9 Lambert Street, Kangaroo Point charged those respective properties with the total amount of the debt owed by the testator at the date of his death under the fixed rate loan accounts, being the total sum of $327,842.35;

(d) each of the property at 1155 Logan Road, Holland Park and the unit at 6/9 Lambert Street, Kangaroo Point is charged with the repayment to St George Bank Limited of the total debt of $327,842.35 in accordance with s 61(1) of the Succession Act 1981.

2. Liberty to any party to apply on 2 days’ notice in writing to the other parties.

3. The costs of the applicant, the second respondent and the third respondent be assessed on an indemnity basis and paid from the estate of the testator.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hesse v Donovan & Ors [2004] QSC 343
PARTIES:	GRAHAM HESSE as executor of the estate of the late Clive Francis Chatwood (applicant) v HAZEL LARADE DONOVAN (first respondent) TIMOTHY MARK STANFIELD (second respondent) ELAINE WAUGH (third respondent) BENEFICIARIES ON INTESTACY [ROBYN FORSTER (NEE STANFIELD), WENDY PAYNE, PETER LINSAY STANFIELD, TIMOTHY STANFIELD, OLGA NICHOLS, CORAL KENT, GLENYS THOMPSON, LLEWELYN STANFIELD, VALMAI RANKIN, DESLEY DRAPER, GLENEVE STANFIELD, JOHN STANFIELD, JIM STEWART, JEFF STUART, BILL BINSTEAD, GARY BINSTEAD, GREG BINSTEAD, RON ZERNICKE, GRAHAM DEAR, PRUE DEAR, RODNEY GEDDES, MURRAY GEDDES, DESLEY LIND, CRAIG LIND, ESDENE KRUGER] (fourth respondents)
FILE NO:	S7783 of 2003
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	7 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2004
JUDGE:	Mullins J
ORDER:	1. It is declared that: (a) the expression “bank account” in clause 5 of the last will made on 9 November 1983 (“the will”) of Clive Francis Chatwood (“the testator”) refers to the one bank account in the name of the testator held with Bank of Queensland at the date of the testator’s death and the bank accounts held by the testator with St George Bank Limited which had credit balances at the date of the testator’s death, being two cash management accounts and the portfolio loan variable account; (b) the gift contained in clause 5 of the will is a specific bequest; (c) each of the mortgages held by St George Bank Limited over the property at 1155 Logan Road, Holland Park and the unit at 6/9 Lambert Street, Kangaroo Point charged those respective properties with the total amount of the debt owed by the testator at the date of his death under the fixed rate loan accounts, being the total sum of $327,842.35; (d) each of the property at 1155 Logan Road, Holland Park and the unit at 6/9 Lambert Street, Kangaroo Point is charged with the repayment to St George Bank Limited of the total debt of $327,842.35 in accordance with s 61(1) of the Succession Act 1981. 2. Liberty to any party to apply on 2 days’ notice in writing to the other parties. 3. The costs of the applicant, the second respondent and the third respondent be assessed on an indemnity basis and paid from the estate of the testator.
CATCHWORDS:	SUCCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - where testator’s real property was subject to an “all moneys” mortgage – whether will signified a contrary intention for purpose of s 61(1) of the Succession Act 1981(Q) that real property not be primarily liable for all debts secured by the mortgage – no contrary intention found SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – LEGACIES AND DEVISES – whether a gift of the residue of the money in the testator’s bank account, after payment of funeral and testamentary expenses, was a specific bequest Succession Act 1981 Trusts Act 1973 Franguescos v Shaw [1977]