Hopwood v Cuthbertson - [2001] TASSC 64

[2001] TASSC 64

CITATION: Hopwood & Anor v Cuthbertson [2001] TASSC 64

PARTIES: HOPWOOD, Ian

HOPWOOD, Andrew
TUCKER, Jennifer
v
CUTHBERTSON, Lynn

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 55/2000
DELIVERED ON:  7 June 2001
DELIVERED AT:  Hobart
HEARING DATES:  15 March 2001
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Succession - Wills probate and administration - Construction and effect of testamentary dispositions - Mistake or misdescription - In respect of object of gift - Misdescription as to relationship, Christian name, surname and sex.

In re Duffy 10/1997, followed.
Doe v Hiscocks (1839) 5 M & W 363: 151 ER 154; Re Waller; White v Scoles (1899) 80 LTR 701, applied.
Aust Dig Succession [159]

REPRESENTATION:

Counsel:
             Appellants:  P W Tree
             Respondent:  A C R Spence and C N McIntyre
Solicitors:
             Appellants:  E R Henry Wherrett & Benjamin
             Respondent:  Page Seager

Judgment Number: [2001] TASSC 64
Number of Paragraphs: 64

Serial No 64/2001
File No FCA 55/2000

IAN HOPWOOD, ANDREW HOPWOOD and
JENNIFER TUCKER v LYNN CUTHBERTSON

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
SLICER J
EVANS J
7 June 2001

Order of the Court

Appeal dismissed.

Serial No 64/2001
File No FCA 55/2000

IAN HOPWOOD, ANDREW HOPWOOD and
JENNIFER TUCKER v LYNN CUTHBERTSON

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
7 June 2001

The appeal

The respondent made application to the Court pursuant to the Rules of Court 1965, O65, r1, now the Rules of Court 2000, r90. She claimed to have an interest in the estate of the late Owen Forrest Lord, by virtue of his will dated 30 March 1993. Mr Lord ("the testator") died on 6 July 1998 and his will was admitted to probate on 29 September 1998. The appellant, Ian Hopwood, is the sole executor and trustee of the testator's estate. The respondent, and the appellants Ian Hopwood and Andrew Hopwood, are all children of Raymond Hopwood. The other appellant, Jennifer Tucker, was a great niece of the deceased.

The critical clause in the testator's will provides:

"i appoint the said ian hopwood to be the sole Executor of this my Will and the Trustee of my Estate and I hereinafter refer to him as 'my Trustee' which expression i declare shall mean and include the Trustee or Trustees for the time being of this my Will whether original or substituted and i give devise and bequeath the whole of my Estate both real and personal of whatsoever nature or kind and wheresoever situate and of or to which I shall be possessed or entitled at the date of my death unto my Trustee upon trust for my grandsons the said ian hopwood, andrew hopwood, len hopwood and my great niece jennifer tucker for their own respective use and benefit absolutely as tenants in common in equal shares."

The respondent claimed that she was the person referred to in that clause as "len hopwood". The learned judge at first instance found in favour…

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.

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Details

Case: [2001] TASSC 64
Decision Date: 7 June 2001

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the appeal of Ian Hopwood, Andrew Hopwood and Jennifer Tucker against Lynn Cuthbertson was dismissed. The appeal pertained to the interpretation of the will of the late Owen Forrest Lord, particularly concerning the identity of the beneficiary referred to as "Len Hopwood." The respondents argued that they were the intended beneficiaries of the estate, while the appellants contended that no such person as "Len Hopwood" existed and therefore, the bequest was void for uncertainty.

The Full Court of the Supreme Court of Tasmania, consisting of Underwood, Slicer and Evans JJ, considered the grounds of appeal and found that the primary judge's determination was correct. The Court held that the primary judge applied the appropriate legal principles in interpreting the will and ascertaining the testator's intention. The Court found that the similarities in the names "Len" and "Lynn" and the context in which the will was made supported the primary judge's conclusion that the testator intended to benefit Lynn Cuthbertson.

The Court also rejected the argument that the primary judge failed to give proper weight to certain evidence. It was found that the evidence provided by Ian Hopwood was unreliable and did not play a persuasive part in the primary judge's reasoning process. The Court held that the primary judge was not obliged to refer to every piece of evidence, and the lack of reference to certain evidence did not render the determination inadequate as a matter of law.

The appeal was dismissed, and the Full Court upheld the decision of the primary judge that Lynn Cuthbertson was entitled to a one-quarter share in the estate of the testator pursuant to his will dated 30 March 1993.

Orders