CHRISTOPHER JAMES THOMASSON (twentieth respondent)
FILE NO/S:
No 611 of 2019
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
10/02/2020
DELIVERED AT:
Rockhampton
HEARING DATE:
10 December 2019
JUDGE:
Crow J
ORDER:
1. The parties are to provide written submissions within fourteen days herof as to the appropriate form of orders.
2. The court will hear from the parties as to costs.
CATCHWORDS:
SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR’S INTENTION – whether intended as a specific bequest or residuary disposition – whether there was a contrary intention for payment of debts for the purpose of s 59(3) Succession Act 1981
SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – where will directs executor to direct monies for the running costs of a property – whether that direction includes capital expenditure
SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS – commission – where executor seeks executor’s commission under Succession Act 1981 and Trusts Act 1973 – where will contains clause for executor’s salary – assessment of executor’s salary
[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
AGLC
Jones v Jones [2020] QSC 6
Case
[2020] QSC 6
Decision Date
CaseChat Overview and Summary
In the case of Jones v Jones, the dispute arose out of the interpretation of a will concerning the testator's intentions regarding the payment of debts and the allocation of funds for the running costs of a property, as well as the assessment of the executor's commission. The matter was heard in the Supreme Court of Queensland.
The central legal issues in the case involved determining whether the testator intended a specific bequest or a residuary disposition, the interpretation of the will's direction for the executor to allocate funds for the running costs of a property, and whether this direction included capital expenditure. Additionally, the court had to assess the executor's salary in light of a specific clause in the will and determine the executor's commission under the Succession Act 1981 and the Trusts Act 1973.
The court examined the language of the will and the context in which it was written to ascertain the testator's intentions. It concluded that the direction for the running costs of the property did not include capital expenditure. The court also found that the will's clause for the executor's salary provided sufficient guidance for assessing the executor's remuneration. Finally, the court determined that the executor's commission was to be assessed according to the relevant provisions of the Succession Act 1981 and the Trusts Act 1973.
The court ordered that the parties provide written submissions within fourteen days regarding the appropriate form of orders and that the court would hear from the parties on the matter of costs.
Orders
Orders of the court
1. The parties are to provide written submissions within fourteen days herof as to the appropriate form of orders.
2. The court will hear from the parties as to costs.