SUPREME COURT OF QUEENSLAND
CITATION:
Kuhz & Anor v Trainor & Ors [2018] QSC 299
PARTIES:
MARGARET JOAN KUHZ and COLIN WILLIAM KUHZ as executors of the Will of June Constance Hollett (deceased)
(applicants)
v
BELINDA RITA TRAINOR
(first respondent)
v
ROBYN GAIL HOLLETT
(second respondent)
v
ASHLEY JAMES TRAINOR(third respondent)
FILE NO/S:
SC No 1039 of 2017
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Townsville
DELIVERED ON:
14 December 2018
DELIVERED AT:
Townsville
HEARING DATE:
27 August 2018
JUDGE:
North J
ORDER:
1. Pursuant to section 33 of the Succession Act 1981 (Qld) the Will of June Constance Hollett dated 21 August 2012 be rectified by:
(a) Deleting the words “and trustees” where they appear in clause 2 of the Will;
(b) Deleting the words "I GIVE all my real and personal estate not otherwise disposed of by this Will or any codicil including any property over which I may have any power or testamentary disposition to my trustees UPON TRUST with power to collect, sell, and convert, to pay all my debts funeral and administration expenses, all legacies ( if any) given by this Will or any codicil, all death duties (if any) payable on any part of my estate unless specifically charged on a gift, any payments directed to be made out of residue, and to hold the balance then remaining ("my residuary estate") upon the following trusts in equal shares as tenants in common, namely:- " where they appear in clause 9 of the Will and inserting the words "I give all of my real and personal estate not otherwise disposed of by this Will to JULIE MARGARET MINNS and SHAYE LEIGH JACKSON or the survivor of them AS TRUSTEES upon the following trusts in equal shares, namely:-"
(c) Deleting the words "tenants in common" where they appear in clause 9A of the Will;
(d) Deleting the words "tenants in common" where they appear in clause 9C(c) of the Will;
2. Unless any party files submissions seeking a different order for costs within 21 days (in which case I will reconsider the question of costs on the papers), there will be an order with respect to costs as follows.
3. The applicants and respondents have their costs paid from the estate on an indemnity basis.
CATCHWORDS:
SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the applicants apply for rectification of the will to create a discretionary trust – where the application is supported by the third respondent but opposed by the first respondent – whether the will does not carry out the testator’s intention because a clerical error was made or because it does not accord with the testator’s instructions – whether the discretion of the court is enlivened to make the orders sought
Acts Interpretation Act 1954 (Qld), Sch 1
Succession Act 1981 (Qld), s 33, s 33G
Trusts Act 1973 (Qld), s 96
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- AGLC
- Kuhz v Trainor [2018] QSC 299
- Case
- [2018] QSC 299
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the will was flawed due to a clerical error or because it did not conform to the deceased's instructions, and if so, whether the court should exercise its discretion to grant the orders sought. The court examined the evidence and submissions from both parties to determine if the will could be rectified under section 33 of the Succession Act 1981 (Qld). The court found that the will did not accurately reflect the deceased's intentions and that the clerical error and instructions given by the deceased warranted rectification.
In light of the findings, the court ordered the rectification of the will as sought by the applicants. The will was to be amended by deleting specific words and inserting new words to establish a discretionary trust for the named beneficiaries. The court also ordered that unless any party filed submissions seeking a different order for costs within 21 days, the applicants and respondents would have their costs paid from the estate on an indemnity basis.
Orders
Orders of the court
1. Pursuant to section 33 of the Succession Act 1981 (Qld) the Will of June Constance Hollett dated 21 August 2012 be rectified by:
(a) Deleting the words “and trustees” where they appear in clause 2 of the Will;
(b) Deleting the words "I GIVE all my real and personal estate not otherwise disposed of by this Will or any codicil including any property over which I may have any power or testamentary disposition to my trustees UPON TRUST with power to collect, sell, and convert, to pay all my debts funeral and administration expenses, all legacies ( if any) given by this Will or any codicil, all death duties (if any) payable on any part of my estate unless specifically charged on a gift, any payments directed to be made out of residue, and to hold the balance then remaining ("my residuary estate") upon the following trusts in equal shares as tenants in common, namely:- " where they appear in clause 9 of the Will and inserting the words "I give all of my real and personal estate not otherwise disposed of by this Will to JULIE MARGARET MINNS and SHAYE LEIGH JACKSON or the survivor of them AS TRUSTEES upon the following trusts in equal shares, namely:-"
(c) Deleting the words "tenants in common" where they appear in clause 9A of the Will;
(d) Deleting the words "tenants in common" where they appear in clause 9C(c) of the Will;
2. Unless any party files submissions seeking a different order for costs within 21 days (in which case I will reconsider the question of costs on the papers), there will be an order with respect to costs as follows.
3. The applicants and respondents have their costs paid from the estate on an indemnity basis.
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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