Mann v Mann & Ors - [2024] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION: Mann v Mann & Ors [2024] QSC 50
PARTIES: GRAEME PETER MANN
(Applicant)
v
NAN ELLEN MANN (as executor of the Will of
GEOFFREY GORDON MANN deceased)
(First Respondent)
NAN ELLEN MANN
(Second Respondent)
STUART GORDON MANN
(Third Respondent)
NATALIE JEAN MANN
(Fourth Respondent)
FILE NO/S: 499 of 2023
DIVISION: Trial
PROCEEDING: Application
ORIGINATING Supreme Court of Queensland
COURT:
DELIVERED ON: 28 March 2024
DELIVERED AT: Cairns
HEARING 29 January 2024, further submissions received 9 & 16
DATES: February 2024
JUDGE: Henry J

ORDERS: 1. Application dismissed.

2.

Liberty to apply to be heard as to costs, on the giving of two business days’ notice in writing by no later than 24 April 2024.

3.

If the liberty conferred by order 2 is not exercised in time, the estate will pay the parties’ costs to be assessed if not agreed on the indemnity basis.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – GENERALLY – where the Queensland State Government resumed a portion of the Mann farm property and paid partial compensation to the deceased – where the deceased made a will which excluded the State resumed land and effectively included the anticipation of the consequential compensation as residue – where the deceased left the farm

property to his adult children equally – where the deceased left the residue of his estate to his wife and appointed her executor of the will – where the Cairns Regional Council resumed a further part of the property and paid compensation after the death of the deceased – where the State Government revoked their resumption and returned the resumed land after the death of the deceased – where the deceased did not anticipate the possibility of these future events in his will – where the applicant seeks a declaration the returned resumed land and the council compensation form part of the property left to the children – where the first respondent opposes that declaration and argues that the returned resumed land and the council compensation form part of residue of the estate – whether the will should be construed so that the returned resumed land and council compensation goes to the children or the wife.
Acquisitions of Land Act 1981 (Qld) s 17
Succession Act 1981 (Qld) ss 6, 21, 33, 33C, 33E, 33F
Brown v Butcher (1922) 22 SR (NSW) 176 discussed
Castle v Fox (1871) LR 11 Eq 542 discussed
Fell v Fell (1922) 31 CLR 268 cited
In re McBeane (1973) 7 SASR 579 discussed
In re Portal & Lamb (1885) 30 Ch D 50 discussed
In re Willis (1911) 2 Ch 563 discussed
Knight v Knight (1912) 14 CLR 86 cited
Nicol v Chant (1909) 7 CLR 569 cited
Orr v Slender; Estate of Godfrey Raymond Orr (2005) 64
NSWLR 671 cited
Roberts v Pollock [2019] QSC 184 cited
Webb v Byng (1885) 1 K&J 580; 69 ER 591 discussed

COUNSEL:

A R Philp KC…

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 Mann v Mann & Ors

Details

AGLC: Mann v Mann & Ors [2024] QSC 50
Case: [2024] QSC 50
Decision Date: 28 March 2024

CaseChat Overview and Summary

The case of Mann v Mann & Ors was heard in the Supreme Court of Queensland, where the dispute centered around the interpretation of a will left by Geoffrey Mann. The primary issue was whether the will correctly reflected Geoffrey's intentions, particularly in relation to a portion of his farm property that had been resumed by the Queensland State Government. The will excluded this resumed land and effectively included the compensation paid by the State as part of the residue. The family members involved were seeking clarification and potential rectification of the will to better align with Geoffrey's intentions.

The legal issues before the court were to determine the correct interpretation of Geoffrey's will, whether the compensation from the State was intended to be included in the residue, and whether the will should be rectified under the provisions of Section 33 of the Succession Act. The court had to balance the testator's apparent intentions as expressed in the will against the unforeseen consequences of government actions. The court also considered whether there were any clerical errors or whether the will failed to give effect to Geoffrey's instructions.

The court concluded that the will accurately reflected Geoffrey's intentions and that there were no clerical errors or failures to follow his instructions. The court noted that the focus of rectification under Section 33 should be on the testator's intentions at the time of making the will, rather than on subsequent events such as the government's resumption and compensation. The court rejected the applicants' request for rectification and dismissed the application. The court also ordered that the estate bear the costs of the proceedings on an indemnity basis, given the uncertain impact of the government's actions on the will's interpretation. The court allowed a brief period for the parties to apply for a review of the costs order if necessary.

The final orders of the court were to dismiss the application for rectification of the will and to direct that the estate bear the costs of the proceedings on an indemnity basis, with an allowance for a brief period to apply for a review of the costs order.

Orders

Orders of the court

1. Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Nor would that be to the point in the task of considering rectification. Section 33(1) Succession Act permits a court to rectify a will if satisfied the will does not carry out the testator’s intentions because a clerical error was made or the will does not give effect to the testator’s instructions. The temporal focus of that exercise is upon what was known and what occurred at the time of the will, not the consequence of what was not known would later occur. The foregoing reasons demonstrate the will does carry out Geoffrey’s intentions. In any event, the will is consistent with the instructions given and there is no suggestion of clerical error. It follows none of the conditions of s 33’s operation are present in this case. Conclusion These reasons have explained the declarations sought in the present application are at odds with the proper construction of Geoffrey’s will. Therefore, they should not be made. It was not submitted it is necessary in quelling the controversy to additionally articulate the construction favoured by the executor, confirmed by these reasons, in the form of a declaration. The application should simply be dismissed. In respect of costs, this controversy derived from the uncertain impact on the will’s meaning of the unanticipated consequences of State and local government interference in the testator’s private property. My present view of the just course in such a situation is that the estate should bear the parties’ costs on the indemnity basis. In the interests of expedition, I will make such an order but, as a matter of caution, also confer a brief period of liberty to apply to be heard as to costs. Orders My orders are: See for example, Orr v Slender; Estate of Godfrey Raymond Orr (2005) 64 NSWLR 671, 675 [16]. Citing Roberts v Pollock [2019] QSC 184, [47].

Ratio Decidendi

Legal Principle Established

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