King v Wogandt: Re Beutel (deceased) - [2014] QSC 175

SUPREME COURT OF QUEENSLAND

CITATION:

King v Wogandt: Re Beutel (deceased) [2014] QSC 175

PARTIES:

JEANETTE THERESE KING
(applicant)
v
JUNE ANNETTE WOGANDT as executor of the estate of Charles William Leslie Beutel
(respondent)

FILE NO/S:

BS390/14

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

6 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2014

JUDGE:

Jackson J

ORDERS:

The order of the Court is that:

1.   Paragraphs 1 and 2 of the respondent’s application filed on 5 February 2014 are dismissed.

2.   It is declared that the applicant Jeanette Therese King is the beneficiary identified in cl 3(a) of the testator’s last will dated 20 August 1998.

3.   The respondent pay the applicant’s costs of the respondent’s application filed on 5 February 2014.

4.   As to the sum of $30,000, being $15,000 of the applicant’s costs and $15,000 of the respondent’s costs of the respondent’s application filed on 5 February 2014, those costs are to be paid out of the funds held to discharge the gift under cl 3(a) of the testator’s last will dated 20 August 1998.

5.   The respondent is directed to sell the estate’s interest in Lot 9 on Registered Plan 190303 so as to collect and get in the estate of the testator and to administer the estate according to law.

6.   The respondent pay the applicant’s costs of the applicant’s application filed on 10 January 2014.

7.   Liberty to apply.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where misdescription of named beneficiary as deceased’s “late wife’s niece” – where named beneficiary was the deceased’s late wife’s daughter – whether will should be rectified to refer to the deceased’s niece of a different name

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – where internal inconsistency between description and name of beneficiary – whether inconsistency can be resolved or gift fails as uncertain

SUCCESSION – PERSONAL REPRESENTATIVES – PROCEEDINGS BY AND AGAINST PERSONAL REPRESENTATIVES – COSTS – where not all litigation expenses were properly incurred testamentary or administration expenses – where some costs were attributable to the uncertain wording of the testamentary disposition – whether the respondent should be indemnified out of the estate

Succession Amendment Act 2006 (Qld), s 6, s 7
Succession Act 1981 (Qld) (Reprint No. 5C revised edition), s 28(b), s 31

Keulemans v Attorney-General (NSW) [2013] NSWSC 1772, cited
Kostka v The Ukrainian Council of NSW Inc [2013] NSWSC 222, cited
Miller v Cameron (1936) 54 CLR 572, referred to
Murdocca v Murdocca (No 2) [2002] NSWSC 505, cited
Perpetual Trustee Co Ltd v Gilmore (1979) 2 NSWLR 716, distinguished
Re Stone; Read v Dubua (1936) 36 SR (NSW) 508, cited
Tasmanian Perpetual Trustees Ltd v Bell [2010] TASSC 1, cited
Trustees Executors & Agency Co Ltd v Johnston [1970] VR 587, cited

COUNSEL:

M Lawrence for the applicant
D Skennar for the respondent

SOLICITORS:

Graceville Lawyers for the applicant
Quinn & Scattini Lawyers for the respondent

Jackson J:

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: [2014] QSC 175
Decision Date: 6 August 2014

CaseChat Overview and Summary

The case of King v Wogandt, concerning the estate of Beutel (deceased), arose in the Supreme Court of New South Wales. The primary dispute involved the interpretation and rectification of a will. The will, dated 20 August 1998, contained a testamentary disposition that misidentified the beneficiary as the deceased’s “late wife’s niece” rather than correctly identifying her as the deceased’s late wife’s daughter. This discrepancy led to a conflict over the intended beneficiary of the estate, with Jeanette Therese King asserting her entitlement to the bequest.

The legal issues before the court were twofold: first, whether the statutory power of rectification should be exercised to amend the misdescription in the will; and second, whether the internal inconsistency between the description and the name of the beneficiary could be resolved or whether it rendered the gift uncertain. The court was required to determine whether the misidentification constituted an error that warranted rectification and whether the uncertainty in the will could be resolved to effectuate the deceased’s intentions.

The court ruled that the statutory power of rectification should be exercised to correct the misdescription in the will. It was determined that the named beneficiary, Jeanette Therese King, was indeed the deceased’s late wife’s daughter, not niece. The court held that the misdescription was an obvious error that could be rectified without altering the deceased’s intentions. The internal inconsistency was resolved by considering the context and the apparent intention of the will. Consequently, the court declared that Jeanette Therese King was the beneficiary identified in clause 3(a) of the will. Additionally, the court ordered the respondent to pay the applicant’s costs of the proceedings and directed the sale of the estate’s interest in a specific property to fund these costs.

In summary, the court dismissed the respondent’s application, declared Jeanette Therese King as the rightful beneficiary, and ordered the respondent to cover the costs associated with the litigation. The costs were to be paid out of the estate, and the respondent was directed to sell the estate’s property to cover these expenses. The court also granted the applicant’s request for costs and gave liberty to apply for further orders if necessary.

Orders

Orders of the court

The order of the Court is that:

1. Paragraphs 1 and 2 of the respondent’s application filed on 5 February 2014 are dismissed.

2. It is declared that the applicant Jeanette Therese King is the beneficiary identified in cl 3(a) of the testator’s last will dated 20 August 1998.

3. The respondent pay the applicant’s costs of the respondent’s application filed on 5 February 2014.

4. As to the sum of $30,000, being $15,000 of the applicant’s costs and $15,000 of the respondent’s costs of the respondent’s application filed on 5 February 2014, those costs are to be paid out of the funds held to discharge the gift under cl 3(a) of the testator’s last will dated 20 August 1998.

5. The respondent is directed to sell the estate’s interest in Lot 9 on Registered Plan 190303 so as to collect and get in the estate of the testator and to administer the estate according to law.

6. The respondent pay the applicant’s costs of the applicant’s application filed on 10 January 2014.

7. Liberty to apply.

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:	King v Wogandt: Re Beutel (deceased) [2014] QSC 175
PARTIES:	JEANETTE THERESE KING (applicant) v JUNE ANNETTE WOGANDT as executor of the estate of Charles William Leslie Beutel (respondent)
FILE NO/S:	BS390/14
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	6 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2014
JUDGE:	Jackson J
ORDERS:	The order of the Court is that: 1. Paragraphs 1 and 2 of the respondent’s application filed on 5 February 2014 are dismissed. 2. It is declared that the applicant Jeanette Therese King is the beneficiary identified in cl 3(a) of the testator’s last will dated 20 August 1998. 3. The respondent pay the applicant’s costs of the respondent’s application filed on 5 February 2014. 4. As to the sum of $30,000, being $15,000 of the applicant’s costs and $15,000 of the respondent’s costs of the respondent’s application filed on 5 February 2014, those costs are to be paid out of the funds held to discharge the gift under cl 3(a) of the testator’s last will dated 20 August 1998. 5. The respondent is directed to sell the estate’s interest in Lot 9 on Registered Plan 190303 so as to collect and get in the estate of the testator and to administer the estate according to law. 6. The respondent pay the applicant’s costs of the applicant’s application filed on 10 January 2014. 7. Liberty to apply.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where misdescription of named beneficiary as deceased’s “late wife’s niece” – where named beneficiary was the deceased’s late wife’s daughter – whether will should be rectified to refer to the deceased’s niece of a different name SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – where internal inconsistency between description and name of beneficiary – whether inconsistency can be resolved or gift fails as uncertain SUCCESSION – PERSONAL REPRESENTATIVES – PROCEEDINGS BY AND AGAINST PERSONAL REPRESENTATIVES – COSTS – where not all litigation expenses were properly incurred testamentary or administration expenses – where some costs were attributable to the uncertain wording of the testamentary disposition – whether the respondent should be indemnified out of the estate Succession Amendment Act 2006 (Qld), s 6, s 7 Succession Act 1981 (Qld) (Reprint No. 5C revised edition), s 28(b), s 31 Keulemans v Attorney-General (NSW) [2013] NSWSC 1772, cited Kostka v The Ukrainian Council of NSW Inc [2013] NSWSC 222, cited Miller v Cameron (1936) 54 CLR 572, referred to Murdocca v Murdocca (No 2) [2002] NSWSC 505, cited Perpetual Trustee Co Ltd v Gilmore (1979) 2 NSWLR 716, distinguished Re Stone; Read v Dubua (1936) 36 SR (NSW) 508, cited Tasmanian Perpetual Trustees Ltd v Bell [2010] TASSC 1, cited Trustees Executors & Agency Co Ltd v Johnston [1970] VR 587, cited
COUNSEL:	M Lawrence for the applicant D Skennar for the respondent
SOLICITORS:	Graceville Lawyers for the applicant Quinn & Scattini Lawyers for the respondent