Hope v Schneider - [2016] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

Hope & Anor v Schneider & Ors [2016] QSC 44

PARTIES:

DEBORAH MAREE HOPE and CHRISTINE ANN SOWIK

(applicants)

v
ESTATE OF MARIE JOSEPHINE SCHNEIDER

(first respondent)
CHRISTOPHER JOHN LAYTON
(second respondent)
SAMANTHA SCHNEIDER

(third respondent)

FILE NO:

SC No 574 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2016

JUDGE:

Ann Lyons J

ORDER:

1. It is declared that the will of Marie Josephine Schneider be read and construed as if the first four lines of clause 4 which precede the words PROVIDED HOWEVER are ignored.

2. I will hear from the parties as to costs.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – GENERALLY – where the testatrix in a clause in her last Will left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death – where, pursuant to a later inconsistent clause in the Will, the testatrix left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue – what was the intention of the testatrix – whether whole or part of the contradictory clauses should be ignored or omitted

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS – GENERALLY – where the testatrix in a clause in her last Will left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death – where, pursuant to a later inconsistent clause in the Will, the testatrix left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue – what was the intention of the testatrix – whether whole or part of the contradictory clauses should be ignored or omitted

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – WHERE INCONSISTENCY OR REPUGNANCY – where the testatrix in a clause in her last Will left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death – where, pursuant to a later inconsistent clause in the Will, the testatrix left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue – what was the intention of the testatrix – whether whole or part of the contradictory clauses should be ignored or omitted

Succession Act 1981 (Qld),…

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 Hope v Schneider

Details

AGLC: Hope v Schneider [2016] QSC 44
Case: [2016] QSC 44
Decision Date: 14 March 2016

CaseChat Overview and Summary

In the case of Hope v Schneider, the parties were contesting the interpretation of the will of the deceased, Marie Josephine Schneider. The dispute centred on the specific pecuniary bequests made to the grandchildren and step-grandchildren, as well as the residue of the estate to be divided among the children and stepchildren who were living at the time of her death. A later clause in the will left the entire estate to her children in equal shares, with provisions for the shares of any predeceased children to pass to their issue. The court was tasked with determining the testatrix's intention and resolving the ambiguity between the clauses.

The legal issues before the court included ascertaining the testatrix's intention, particularly in the context of the conflicting clauses within the will, and whether any part of these clauses should be disregarded or omitted. The court considered the provisions of Section 33C of the Succession Act 1981 (Qld), which allows for the use of evidence, including the testator's intention, to interpret ambiguous or conflicting language in a will. The court examined the wording of the will, the evidence presented, and the surrounding circumstances to ascertain the testatrix's intention.

The court found that the will contained clear instructions regarding the specific gifts to grandchildren and step-grandchildren, as well as the equal division of the residue among the children and stepchildren who were alive at the time of death. However, the clauses regarding the distribution of the residue in the event of a child or stepchild's predecease were ambiguous. The court concluded that the testatrix's intention was for a grandchild or step-grandchild to inherit the share of a deceased parent, as evidenced by the inclusion of the clarifying words in clause 4 after "PROVIDED HOWEVER". The court accepted that the ambiguity arose from the use of precedent clauses that were not integrated into the main clause, leading to the conflicting provisions.

The court made a declaration that the will of Marie Josephine Schneider should be read and construed as if the first four lines of clause 4, which precede the words "PROVIDED HOWEVER", are ignored. The court will hear from the parties regarding costs.

Orders

Orders of the court

1. It is declared that the will of Marie Josephine Schneider be read and construed as if the first four lines of clause 4 which precede the words PROVIDED HOWEVER are ignored.

2. I will hear from the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I also note the provisions of s 33C of the Succession Act 1981 (Qld) which is in the following terms:“33C Use of evidence to interpret a will(1) In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it—(a) meaningless; or(b) ambiguous on the face of the will; or(c) ambiguous in the light of surrounding circumstances.(2) However, evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).(3) This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.” The obvious starting point are the words of the Will itself and if the usual meaning is clear then the Will is given that construction. It is clear from the words of the Will that Mrs Schneider had 2 children and 2 stepchildren as well as grandchildren and step-grandchildren. It is also clear from the face of the Will that she initially appointed her son and her stepson as her executors and that she left specific and equal gifts to her grandchildren and step-grandchildren. It would seem to me that clauses 2 and 3 clearly show that she was treating her children and stepchildren equally and her grandchildren and step-grandchildren equally. A very even handed approach is obvious on the face of the Will. The provisions of clauses 3(a) to (e) are also clear. It would seem clear to me that Mrs Schneider at clause 3 (f) turned her mind to the residue of her estate and once again she specifically names both her children and her husband’s children by name. Three is no doubt that she wants them to all to share the residue if they are alive when she died. She then had to consider what was to occur if they were not all alive at her death. Were the children of her children or the children of her step children to take their deceased parents share or not? There is no doubt however that clauses 3(f) and 4 are ambiguous when one considers them together. That fact is readily apparent as the clauses cannot stand together. Accordingly, pursuant to s 33C of the Succession Act 1981 (Qld), given that ambiguity, this Court can consider evidence, including evidence of Mrs Schneider’s intention, to help in the interpretation of the language used in the Will. In my view, having considered both the words of the Will and Mr Denning’s evidence, Mrs Schneider’s intention was that a grandchild or step-grandchild was to take the deceased parent’s share. This intention is gleaned from the use of the specific words which are contained in clause 4 after the words “PROVIDED HOWEVER”. As Mr Denning states, those words in clause 4 were included because he would have received instructions that the “grandchildren” clause was to be included. Obviously that clause related to the grandchildren getting the share of the parent. Clause 4 comes directly after clause 3(f) and I accept that, as that clause has been specifically included, there must have been instructions in that regard about that aspect of her estate. In my view, the words in clause 4 after the words “PROVIDED HOWEVER” make it manifestly clear what she wanted to happen. They are the words which are surely clarifying words which were meant to follow on after the list of her children and stepchildren’s names. I accept Mr Denning’s evidence that the source of the ambiguity in clauses 3(f) and 4 is due to the use of precedent clauses. The precedent clauses were clearly inserted and not merged into clause 3 nor checked for obvious ambiguity.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hope & Anor v Schneider & Ors [2016] QSC 44
PARTIES:	DEBORAH MAREE HOPE and CHRISTINE ANN SOWIK (applicants) v ESTATE OF MARIE JOSEPHINE SCHNEIDER (first respondent) CHRISTOPHER JOHN LAYTON (second respondent) SAMANTHA SCHNEIDER (third respondent)
FILE NO:	SC No 574 of 2016
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2016
JUDGE:	Ann Lyons J
ORDER:	1. It is declared that the will of Marie Josephine Schneider be read and construed as if the first four lines of clause 4 which precede the words PROVIDED HOWEVER are ignored. 2. I will hear from the parties as to costs.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – GENERALLY – where the testatrix in a clause in her last Will left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death – where, pursuant to a later inconsistent clause in the Will, the testatrix left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue – what was the intention of the testatrix – whether whole or part of the contradictory clauses should be ignored or omitted SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS – GENERALLY – where the testatrix in a clause in her last Will left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death – where, pursuant to a later inconsistent clause in the Will, the testatrix left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue – what was the intention of the testatrix – whether whole or part of the contradictory clauses should be ignored or omitted SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – WHERE INCONSISTENCY OR REPUGNANCY – where the testatrix in a clause in her last Will left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death – where, pursuant to a later inconsistent clause in the Will, the testatrix left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue – what was the intention of the testatrix – whether whole or part of the contradictory clauses should be ignored or omitted Succession Act 1981 (Qld),…