Marks v Marks - [2013] VSC 75

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 03591 of 2011

ANDREW JAMES MARKS AND DEBORAH SUE BRADY (As Trustees of the Estate of James Noel Marks)	Plaintiffs
v
JUNE YVONNE MARKS, PETER BENJAMIN MARKS, JANE HELENE RODWELL AND KATRINA ANN KING	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23-24 APRIL 2012
DATE OF JUDGMENT:	1 MARCH 2013
CASE MAY BE CITED AS:	MARKS v MARKS
MEDIUM NEUTRAL CITATION:	[2013] VSC 75

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Wills – Construction – Testator’s intention – Income to be paid to wife “as she in her sole discretion may require” – Questions answered – Whether words uncertain or ambiguous – Extrinsic evidence – Wills Act 1997, s 36(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S J Moloney	Norton Gledhill
For the First Defendant	Ms L M Englefield	Roberts Beckwith Partners
For the Second Third and Fourth Defendants	Mr C E Shaw	Simon Jaques & Co

HIS HONOUR:

Introduction

The testator, James Noel Marks, died on 4 December 2006, leaving a will dated 2 May 2006. Probate of that will was granted to Andrew James Marks (“Mr Marks”), Deborah Sue Brady (“Ms Brady”) and June Yvonne Marks (“Mrs Marks”), the three named executors, on 17 April 2007. Mrs Marks was the testator’s second wife. Mr Marks was his nephew. The four residuary beneficiaries of that will were the testator’s children from his first marriage, Jane Helene Rodwell, Peter Benjamin Marks, Deborah Sue Brady and Katrina Ann King.

By an originating motion filed on 12 July 2011, two of the three executors and trustees, Mr Marks and Ms Brady, sought answers to various questions concerning the proper construction of a clause in that will. The third executor and trustee, Mrs Marks, was named as the first defendant, and the three remaining residuary beneficiaries, Jane Rodwell, Peter Marks and Katrina King, were named as the second to fourth defendants (“the remainder defendants”), to the originating motion. The plaintiffs, the first defendant and the remainder defendants were separately represented at the hearing.

The Will

For present purposes, the following provisions of the testator’s last will are relevant:

…
3.I DIRECT that my Trustees shall not be less than two nor more than three in number and the power of appointing a new Trustee or Trustees may be exercised by the Trustee or Trustees of my estate for the time being (and if more than one jointly) but if at any time there shall be less than three Trustees of my estate nevertheless the then Trustee shall have all the powers, authorities and discretions conferred hereby or by law upon my Trustees and may act in all respects as if there were two or more Trustees hereof.
4.I DECLARE that subject in all respects to the provisions of Clauses 5, 6 and 7 and the rights of my said wife thereunder, should any difference of opinion at any time exist between or among…

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 Marks v Marks

Details

AGLC: Marks v Marks [2013] VSC 75
Case: [2013] VSC 75
Decision Date: 1 MARCH 2013

CaseChat Overview and Summary

In the case of Marks v Marks, the dispute arose from the interpretation of a clause in a will which directed that income from certain assets should be paid to the testator's wife "as she in her sole discretion may require". The court was tasked with determining the true meaning of this phrase, specifically whether it was uncertain or ambiguous and, if so, whether extrinsic evidence could be considered to clarify the testator's intention. This case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was the interpretation of the phrase "as she in her sole discretion may require". The court had to decide whether this phrase was uncertain or ambiguous, and if it was, whether extrinsic evidence could be used to ascertain the testator's true intention. The court considered the applicability of the Wills Act 1997, particularly section 36(1)(b), which allows for the consideration of extrinsic evidence when there is uncertainty or ambiguity in the will.

The court found that the phrase "as she in her sole discretion may require" was not inherently uncertain or ambiguous. It held that the wife had the sole discretion to determine when and how to use the income, without the need for further clarification. The court emphasised that the wife's discretion was absolute and not subject to judicial review. Consequently, the court concluded that extrinsic evidence was not necessary to interpret the will. The court ruled in favour of the wife, affirming that she had the sole discretion over the income as intended by the testator.

No further orders were made beyond the clarification of the will's terms. The court's decision was definitive, providing the wife with the sole discretion over the income as intended by the testator.

Orders