Lubke v Claridge - [2016] TASSC 44

[2016] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Lubke v Claridge [2016] TASSC 44

PARTIES:  LUBKE, Melissa
  v
  CLARIDGE, Brian

FILE NO:  869/2016
DELIVERED ON:  23 August 2016
DELIVERED AT:  Hobart
HEARING DATE:  4 August 2016
JUDGMENT OF:  Brett J

CATCHWORDS:

Succession – Construction and effect of testamentary dispositions – Construction generally – Ascertainment of testator's intention – Homemade will.

Aust Dig Succession [1170]

Succession – Construction and effect of testamentary dispositions – Construction generally – Principles or rules of construction – Generally.

Aust Dig Succession [1172]

Succession – Construction and effect of testamentary dispositions – Construction generally – Admissibility and use of extrinsic evidence in aid of construction – Generally.

Wills Act 2008 (Tas), ss 42, 46.
Re Horgan(deceased) [1969] 3 All ER 1570; Fell v Fell (1922) 31 CLR 269, applied.
Perrin v Morgan [1943] AC 399; In the Estate of Edith Lillian Rogers deceased [2006] EWHC 753 (Ch); In the Estate of Veldhuis [2007] SASC 420; In the Estate of Yearwood, deceased (1982) 30 SASR 169; Rea Costello (deceased) [2014] SASC 134, cited.
Aust Dig Succession [1204]

REPRESENTATION:

Counsel:
             Appellant:  C Groves
             Respondent:  In Person
Solicitors:
             Appellant:  Dobson, Mitchell and Allport
             Respondent:  In Person

Judgment Number: [2016] TASSC 44
Number of paragraphs: 32

Serial No 44/2016
File No 869/2016

MELISSA LUBKE v BRIAN ANDREW CLARIDGE

REASONS FOR JUDGMENT BRETT J

23 August 2016

This case concerns the will of Andrew John Lubke. Mr Lubke died on 4 January 2016. He is survived by his wife, the applicant, and their children.
Mr Lubke's will was executed by him on 14 May 2015. He prepared the will himself, by completing by hand a blank will form which was part of a will kit purchased by him from a post office. The will makes a small bequest and then leaves the residue of the estate to the applicant with provision for his children in the event that she did not survive him. The applicant executed a will in reciprocal terms, contemporaneously with the preparation and execution of Mr Lubke's will.
The issue in this case concerns the clause in the will which appoints an executor. I set out that clause as follows:

Evidence of surrounding circumstances establishes that Brian Claridge had been Mr and Mrs Lubke's accountant for several years. The accounting practice is in fact conducted by a company "Brian Claridge Accounting Pty Ltd". The company operates from premises at 442 Elizabeth Street, North Hobart. It is an Australian proprietary company limited by shares. The sole directors and shareholders of the company are Brian Frederick Claridge and Nelson Mary Claridge. A search of the relevant register reveals that there is no separate business name registered as "Brian Claridge Accounting".
Given the uncertainty surrounding the identity of the executor, having regard to these circumstances, a grant of probate has not yet been sought. Instead the applicant has now applied for the following orders:
"1A determination…

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 Lubke v Claridge

Details

AGLC: Lubke v Claridge [2016] TASSC 44
Case: [2016] TASSC 44
Decision Date: 23 August 2016

CaseChat Overview and Summary

Lubke v Claridge was a case concerning the interpretation of a homemade will. The dispute arose as to the identity of the intended executor of the will. The case was heard in the Supreme Court of Queensland. The legal issues before the court were whether the words of the will were ambiguous and, if so, whether the court could consider extrinsic evidence to clarify the meaning.

The court held that the words of the will were ambiguous and that extrinsic evidence could be considered to clarify the meaning. The court noted that the Wills Act 2008 permits the use of extrinsic evidence to clarify a will if the language used in the will is ambiguous on the face of the will or in the light of the surrounding circumstances. The court held that the use of the words “Brian Claridge Accounting” in the context of the will, including the use of the business address, and considered in light of surrounding circumstances, established such ambiguity. The ambiguity arose because it was unclear whether the intention of the testator was to appoint as executor Mr Claridge in his individual capacity, a business entitled "Brian Claridge Accounting", which did not exist, or the company "Brian Claridge Accounting Pty Ltd", which was a separate person.

The court found that the words of the will were ambiguous and that extrinsic evidence could be considered to clarify the meaning. The court considered the surrounding circumstances, including the fact that Mr Claridge works as an accountant in a practice carried on by a corporation entitled "Brian Claridge Accounting Pty Ltd". The court held that this evidence established ambiguity in the will and permitted the court to consider extrinsic evidence to clarify the meaning. The court held that the testator's intention was to appoint the company "Brian Claridge Accounting Pty Ltd" as the executor of the will.

The court ordered that the company "Brian Claridge Accounting Pty Ltd" be appointed as the executor of the will.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the first place, the intention of the testator will be discovered, if possible, by having regard to the ordinary meaning of the words used in the will, in the context of the entire document, without reference to rules or canons of construction or the surrounding circumstances. (See Williams on Wills, 6th ed, 439; Public Trustee of Queensland v Smith [2009] 1 Qd R 26 [31]). The approach to construction in the event that the testator's intention is not adequately revealed by examination of the ordinary meaning of the words in the will, is now dealt with by s 46 of the Wills Act 2008 which provides:"46 Use of extrinsic evidence to clarify a will (1) In proceedings to construe a will, evidence, including evidence of the testator's intention, is admissible to the extent that the language used in the will renders the will, or any part of the will — (a) meaningless; or(b) ambiguous on the face of the will; or(c) ambiguous in the light of the surrounding circumstances.(2) Evidence of a testator's intention is not admissible to establish any of the circumstances referred to in subsection (1)(c).(3) Nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will." The principal purpose of this provision seems to be to overcome the general rule at common law that direct evidence of the testator's intention was not admissible except in particular circumstances, eg in the case of equivocation. Equivocation is the term used to describe a description in a will of a person, property or thing which is equally capable of applying to more than one subject. At common law, evidence was also admissible to establish surrounding circumstances from which the testator's meaning in respect of a word used in the will can be inferred (the "armchair principle"). For example, evidence of the testator's knowledge, including his knowledge of particular matters, and his habits, is admissible for the purpose of identification of a person referred to in the will, in the case of ambiguity. All of this evidence is still admissible, having regard to the provisions of s 46(3), but, in addition, direct evidence of the testator's intention can be admitted, provided that the preconditions of admissibility set out in the section are present. The operation of s 46 permits examination of surrounding circumstances, with the exclusion of evidence of the testator's intention, in order to determine whether or not the language used in the will renders any part of the will ambiguous. If ambiguity within the meaning of the section appears upon such an examination, then evidence which includes direct evidence of the intention of the testator becomes admissible. If the words “Brian Claridge Accounting” is not read “in the light of the surrounding circumstances”, then it is not possible to detect ambiguity. The testator’s intention, according to those words alone, was to appoint an accounting practice to be his executor. For a variety of reasons, such an appointment would not be effective. However, when considered in the light of the surrounding circumstances, I am satisfied that cl 2 of the will is ambiguous, at least in respect of the identity of the intended executor. The use of the words "Brian Claridge Accounting" in the context of the will, including, in particular, the use of the business address, and considered in the light of surrounding circumstances, which include the fact that Mr Claridge works as an accountant in a practice that is actually carried on by a corporation entitled "Brian Claridge Accounting Pty Ltd", establishes such ambiguity. The nature of the ambiguity is that it is unclear, having regard to these circumstances, whether the intention of the testator was to appoint as executor Mr Claridge in his individual capacity, a business entitled "Brian Claridge Accounting", which does not exist, or the company "Brian Claridge Accounting Pty Ltd", which is, of course, is a separate person.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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