Lewis v Lohse

[2003] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis & Anor v Lohse & Ors [2003] QCA 199

PARTIES:

ROSMOND ANN LEWIS
AMY BOND
(applicants/first respondents)
v
CYNTHIA JUNE LOHSE
(first respondent/second respondent)
PETER RUTHENBERG
(second respondent/appellant)
VIOLET GUSE
(third respondent)

FILE NO/S:

Appeal No 7631 of 2002
SC No 3420 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2003

JUDGES:

de Jersey CJ, Williams JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed with costs to be assessed on the standard basis;1.   

Order that the costs of the first respondents and the second respondent of and incidental to this appeal be assessed on an indemnity basis and that the first respondents and the second respondent recover from the estate of the testator the difference between the costs so assessed and any costs paid by the appellant pursuant to this order2.   

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF TESTATOR’S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL – where gift of land, livestock, plant and machinery devised to appellant and second respondent subject to them accepting associated liability – where second respondent first accepted bequest but later withdrew acceptance – where appellant neither accepted nor rejected bequest – whether testator intended that both devisees must accept liability before the gift could take effect – whether a bequest may be disclaimed after initial acceptance – whether words used constituted a “contrary intention” for purposes of s 61 Succession Act 1981

Succession Act 1981 (Qld), s 61

In re Young; Fraser v Young [1913] 1 Ch 272, cited
Re Cranstoun (decd); Gibbs v Home of Rest for Horses [1949] Ch 523, cited

COUNSEL:

The appellant appeared on his own behalf
R T Whiteford for the first respondents
M Amarena for the second respondent
No appearance for the third respondent

SOLICITORS:

The appellant appeared on his own behalf
Roberts & Kuskie for the first respondents
Morton & Morton for the second respondents
No appearance for the third respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Williams JA. I agree with those reasons, and with the orders His Honour proposes.

1. WILLIAMS JA:  This appeal essentially depends upon the proper construction of a clause in a will.  The clause in question provides as follows:

“I give devise and bequeath to Cynthia June Lohse and my cousin’s son Peter Ruthenberg of Proston in Queensland as tenants in common in equal shares, subject to them accepting liability for payment of the balance of any security attaching to the land or personal property:

(a)        My land described as . . .  [“Rossgae”] . . .

(b)        All livestock and all plant and machinery on this land.”

1. The appellant,…