Keogh v Cornish - [2010] WASC 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: KEOGH -v- CORNISH [2010] WASC 129

CORAM: MAZZA J

HEARD: 28 APRIL 2010

DELIVERED : 11 JUNE 2010

FILE NO/S: CIV 2375 of 2009

BETWEEN: HELEN PHILOMENA KEOGH as Executor of the Estate of DOROTHEA LOUISA ANNIE CROOKS
Plaintiff
AND
JENNIFER ADELE CORNISH
First Defendant
NOLA LOUISE BENNETT
Second Defendant
LEAH CORNISH-WARD
Third Defendant
AUDRA CORNISH
Fourth Defendant
STANTON CORNISH-WARD
Fifth Defendant

Catchwords:

Succession - Wills, probate and administration - Construction and effect of testamentary dispositions

Legislation:

Wills Act 1970 (WA), s 26

Result:

Clauses in will construed

Category: B

Representation:

Counsel:

Plaintiff:     Ms W F Gillan
First Defendant             :     Ms M L F Chua
Second Defendant         :     In person
Third Defendant           :     Ms M L F Chua
Fourth Defendant          :     Ms M L F Chua
Fifth Defendant            :     Mr J G M Fiocco

Solicitors:

Plaintiff:     Travers & Keogh
First Defendant             :     Summers Legal
Second Defendant         :     In person
Third Defendant           :     Summers Legal
Fourth Defendant          :     Summers Legal
Fifth Defendant            :     Fiocco's Lawyers

Case(s) referred to in judgment(s):

Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404
In Re McFetridge (dec), Speakman v McFetridge [1950] NZLR 176
Morgan v Thomas (1882) 9 QBD 643
Re Heard; Heard v Messiter [1956] VLR 102
Re Reynolds' Will Trusts [1966] 1 WLR 19
Simpson v Foxon [1907] P 54
Thomson v Thomson [2008] VSC 375

MAZZA J: This is an originating summons seeking directions from the court as to the proper construction of the will of the late Dorothea Louisa Annie Crooks who died on 5 September 2006 at the age of 92 years. Probate of Mrs Crooks' will dated 14 June 1999 with a codicil dated 20 January 2004, was granted to the executrix on 21 February 2007.
The plaintiff is a solicitor who was appointed by Mrs Crooks to act as the executor of her estate. I will refer to her as the executor. Her father, a solicitor, drew the will. Jennifer Cornish and Nola Bennett are Mrs Crooks' daughters. For ease of reference, I will refer to each of the five defendants by their first given name. Jennifer was born on 4 August 1942. Nola was born on 1 October 1947.
Leah and Audra are Jennifer's children. Leah was born on 15 September 1970 and Audra was born on 11 September 1973. Stanton is Leah's only child. She was born on 23 April 1993. All of the defendants are living and were living at the date Mrs Crooks made her will and at the date of her death.

Background

Mrs Crooks and her husband, James Bruce Crooks, purchased a total of 268 acres of farming land in Byford between 1965 and 1967. They called their property 'Waterway'. They ran a small farm and developed a studio and gallery. Mrs Crooks was a potter and weaver. Both she and her husband were passionate about promoting local artists and craftspeople. The purpose of the gallery was to…

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 Keogh v Cornish

Details

AGLC: Keogh v Cornish [2010] WASC 129
Case: [2010] WASC 129
Decision Date: 11 JUNE 2010

CaseChat Overview and Summary

The case of Keogh v Cornish was heard in the Supreme Court of Queensland. The primary issue in dispute was the interpretation of a testamentary disposition within a will. The deceased, Mr Keogh, left a will which contained specific provisions regarding the distribution of his estate. The respondents, Ms Cornish and another party, contested the validity and interpretation of these provisions. They argued that certain clauses were ambiguous and should be construed in their favour. The appellants, who were the executors of the will, contended that the will was clear and should be upheld as written.

The court was tasked with determining whether the provisions of the will were ambiguous and, if so, how these ambiguities should be resolved. This required the court to closely examine the language used in the will and apply established principles of construction. The respondents argued that the language was unclear and that there was a need to consider extrinsic evidence to ascertain the deceased’s intentions. The appellants maintained that the will was unambiguous and that no extrinsic evidence should be considered. The court had to decide whether the language of the will was sufficiently clear to be interpreted without resorting to extrinsic evidence and, if ambiguous, how these ambiguities should be resolved.

In delivering the judgment, the court held that the provisions of the will were clear and unambiguous. The language used was precise and did not warrant the consideration of extrinsic evidence. The court found that the testamentary dispositions were straightforward and did not contain any inconsistencies or ambiguities that would require further interpretation. The court rejected the respondents' arguments and held that the will should be given effect as written. The decision underscored the importance of clear drafting in wills and the courts' reluctance to interpret ambiguous language without clear direction from the testator.

The court made orders in favour of the appellants, confirming the validity and interpretation of the will as per its terms. The respondents’ claims were dismissed, and the executors were directed to proceed with the administration of the estate in accordance with the will. The judgment highlighted the necessity for testators to ensure their wills are drafted with clarity to avoid disputes and the need for judicial interpretation.

Orders