Lawler v Herd - [2010] QSC 281

SUPREME COURT OF QUEENSLAND

CITATION:

Lawler v Herd (as executor of the estate of John Baird Torrance, deceased) [2010] QSC 281

PARTIES:

TATSARIN LAWLER
(applicant/cross-respondent)
v

BRIAN JOHN HERD (as executor of the estate of John Baird Torrance, deceased)
(respondent/cross-applicant)

FILE NO/S:

BS 2479 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 and 22 July 2010

JUDGE:

Fryberg J

ORDERS:

1.   Declare that upon a proper construction of the will and in the events which have happened Tatsarin Lawler is the sole residuary beneficiary of the estate of John Baird Torrance, deceased.

2.   Application of the executor filed 25 March 2010 dismissed.

3.   Order that the costs of both parties, assessed on the indemnity basis, be paid out of the estate.

4.   Liberty to apply.

CATCHWORDS:

Succession – Wills, probate and administration – Jurisdiction and discretion of the court – Queensland – Statutory power to rectify will to reflect testamentary intentions – Relevant considerations – Applicant needs to demonstrate that the will did not give effect to testator’s intentions and what the intentions were

Succession – Wills, probate and administration – Construction and effect of testamentary disposition – Generally – General principles of construction – Admissibility of extrinsic evidence – In general – Relevant principles – Intention of testator – Extrinsic evidence not admitted where there is no ambiguity

Succession Act 1981 (Qld), s 33, s 33C

McCorley & Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Pakleppa [2005] QSC 83, cited

COUNSEL:

F W Redmond for the applicant/cross-respondent
R Treston for the respondent/cross-applicant

SOLICITORS:

Redmond + Redmond Lawyers for the applicant/cross-respondent
Carne Reidy Herd Lawyers for the respondent/cross-applicant

HIS HONOUR: John Baird Torrance made his last will on 8 September 2003. In that will, he made the following dispositions, having first appointed an executor:

“3. I GIVE a life interest in my home at 3 Bauhinia Avenue, Enoggera or in any other home that I am living at the time of my death to my partner, TATSARIN LAWLER (“TATSARIN”), for her sole use and benefit subject to her surviving me for thirty (30) days.
4. I GIVE the residue of my estate to TATSARIN SHOULD HOWEVER TATSARIN predecease me or not survive me for thirty (30) days then the following provision shall apply.
5. I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situated to my trustees UPON TRUST as follows:
(a) To such of my sister’s children, DAVID WOOD, JENNIFER CARTER, GRAHAM WOOD and my brother’s children GLEN TORRANCE, IAN TORRANCE AND WAYNE TORRANCE as shall survive me and if more than one in equal shares;
(b) PROVIDED THAT if any of the persons named above fail to survive for thirty (30) days leaving a child or children living at my death or attain the age of eighteen (18) years then such child or children shall take (if more…

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 Lawler v Herd

Details

AGLC: Lawler v Herd [2010] QSC 281
Case: [2010] QSC 281
Decision Date: 22 July 2010

CaseChat Overview and Summary

The case of Lawler v Herd concerns a dispute over the interpretation and rectification of a will. The deceased, John Baird Torrance, left a will which was being contested by Tatsarin Lawler, who claimed to be the sole residuary beneficiary. The executor of the will, Herd, disputed this claim and sought clarification and rectification of the will's terms. The matter was brought before the court to determine the proper interpretation of the will and to decide whether the will should be rectified to reflect the deceased's intentions.

The primary legal issue before the court was whether the will could be rectified to reflect the deceased's true intentions, given that the will did not appear to give effect to those intentions as they were understood by the applicant. The court needed to determine whether there was ambiguity in the will that would permit the admission of extrinsic evidence and whether the will could be rectified to align with the deceased's intentions. Additionally, the court had to consider the general principles of construction of wills and the admissibility of extrinsic evidence in interpreting testamentary dispositions.

The court found that the will was clear and unambiguous, and therefore, no extrinsic evidence was admissible to alter its meaning. The court held that Tatsarin Lawler was the sole residuary beneficiary of the estate, as per the proper construction of the will. The application by the executor to rectify the will was dismissed, as there was no basis to conclude that the will did not reflect the deceased's intentions. The court ordered that the costs of both parties be paid out of the estate on an indemnity basis, and liberty to apply was granted.

In summary, the court upheld the clear terms of the will, found Tatsarin Lawler to be the sole residuary beneficiary, and dismissed the executor's application for rectification. The costs of the proceedings were to be borne by the estate, and both parties were granted liberty to apply if necessary.

Orders

Orders of the court

1. Declare that upon a proper construction of the will and in the events which have happened Tatsarin Lawler is the sole residuary beneficiary of the estate of John Baird Torrance, deceased.

2. Application of the executor filed 25 March 2010 dismissed.

3. Order that the costs of both parties, assessed on the indemnity basis, be paid out of the estate.

4. 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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CITATION:	Lawler v Herd (as executor of the estate of John Baird Torrance, deceased) [2010] QSC 281
PARTIES:	TATSARIN LAWLER (applicant/cross-respondent) v BRIAN JOHN HERD (as executor of the estate of John Baird Torrance, deceased) (respondent/cross-applicant)
FILE NO/S:	BS 2479 of 2010
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	21 and 22 July 2010
JUDGE:	Fryberg J
ORDERS:	1. Declare that upon a proper construction of the will and in the events which have happened Tatsarin Lawler is the sole residuary beneficiary of the estate of John Baird Torrance, deceased. 2. Application of the executor filed 25 March 2010 dismissed. 3. Order that the costs of both parties, assessed on the indemnity basis, be paid out of the estate. 4. Liberty to apply.
CATCHWORDS:	Succession – Wills, probate and administration – Jurisdiction and discretion of the court – Queensland – Statutory power to rectify will to reflect testamentary intentions – Relevant considerations – Applicant needs to demonstrate that the will did not give effect to testator’s intentions and what the intentions were Succession – Wills, probate and administration – Construction and effect of testamentary disposition – Generally – General principles of construction – Admissibility of extrinsic evidence – In general – Relevant principles – Intention of testator – Extrinsic evidence not admitted where there is no ambiguity Succession Act 1981 (Qld), s 33, s 33C McCorley & Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Pakleppa [2005] QSC 83, cited
COUNSEL:	F W Redmond for the applicant/cross-respondent R Treston for the respondent/cross-applicant
SOLICITORS:	Redmond + Redmond Lawyers for the applicant/cross-respondent Carne Reidy Herd Lawyers for the respondent/cross-applicant