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, citedCOUNSEL:
M Lawrence for the applicant
D Skennar for the respondentSOLICITORS:
Graceville Lawyers for the applicant
Quinn & Scattini Lawyers for the respondent
Jackson J:
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- Case
- [2014] QSC 175
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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