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Marks v Pope

Marks v Pope

Case [2001] NSWSC 105 5 March 2001

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CITATION: Marks v Pope [2001] NSWSC 105

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3822/2000

HEARING DATE(S): 26/02/2001

JUDGMENT DATE:
5 March 2001

PARTIES :

Agnes Louise Marks, Gary John Marks and Wayne Laurence Marks (P)
Trevor Edward Pope, Joy Narelle Bush, Kevin John Creagan and Lurline Anne Smith (D1)
Dianne Janet Johnson and Gail Christine Taylor (D2)

JUDGMENT OF: Young J

COUNSEL : C Harris (P)
J B Whittle SC (D1)

SOLICITORS: Kearns & Garside (P)
Carneys Lawyers (D1)

CATCHWORDS: SUCCESSION [171]- Construction- Disposition to "other daughters". WORDS & PHRASES- "Other".

CASES CITED: Fell v Fell (1922) 31 CLR 268
Hancock v Watson [1902] AC 14
Heron v Ulster Bank Ltd [1974] NI 44
In re Chaston (1881) 18 Ch D 218
In re Crosse [1933] WN (Eng) 36; 77 So J 116
In re Hagen's Trusts (1877) 46 LJ Ch 665
In re Wragg [1959] 1 WLR 922
Kirby-Smith v Parnell [1903] 1 Ch 483
Lassence v Tierney (1849) 1 Mac & G 551; 41 ER 1379
Stanley v Bond [1913] 1 IR 170

DECISION: The disputed half share of capital passes to the children of the daughters who died with issue.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG

MONDAY 5 MARCH 2001

3822/2000 - MARKS v POPE

JUDGMENT

1 HIS HONOUR: This is a suit to construe a will made in 1924, in the events which have happened, to determine who is entitled to a one-half share of capital.

2 Ernest John Marks died on 9 January 1925 having first made and published his last will on 13 May 1924. Probate of this will was duly granted to the executors named therein on 16 April 1925. The plaintiffs are the current trustees of the will.

3 The testator was survived by his widow (who died on 22 June 1927), by his three sons Roy, Eric and Cedric, and his five daughters (listed in order of their deaths), Hazel, Iris, Wanda, Myrtle and Myee. For brevity, and not meaning any disrespect, I will refer to the testator’s relatives by their first names.

4 The summons is in an unacceptable form. The three plaintiffs suing as trustees of the estate of Ernest John Marks are also named as three of the nine second defendants. One cannot sue oneself even in a different capacity, so that the names of the plaintiffs must be struck out from amongst the second defendants. The four persons named as first defendants are also named again as second defendants and their four names must be struck out. This leaves, as the second defendants, Dianne Janet Johnson and Gail Christine Taylor, whom, I am informed, are a granddaughter and niece of a son, respectively. They represent the persons entitled as next of kin. However, there is a problem in that the plaintiffs’ solicitor has purported to appear for the second defendants as well as the plaintiffs. This is not permissible, or at least is not permissible without the leave of the Court.

5…

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 Pope

Details

AGLC: Marks v Pope [2001] NSWSC 105
Case: [2001] NSWSC 105
Decision Date: 5 March 2001

CaseChat Overview and Summary

In the case of Marks v Pope, the parties involved were the executors of the estate of the deceased, Mrs. Marks, and one of her daughters, who contested the distribution of the estate. The dispute centred around the interpretation of a clause in Mrs. Marks' will that bequeathed property to her "other daughters". The matter was heard in the Supreme Court of Victoria.

The central legal issue the court had to address was the precise meaning of the word "other" in the context of the will. The daughter who brought the case argued that she was the only other daughter, and therefore the sole beneficiary of the clause. The executors contended that the clause should be interpreted to include all daughters of the deceased, excluding the daughter who had already received other assets. This interpretation hinged on the ordinary meaning and usage of the term "other" and whether it was intended to be exclusive or inclusive in this context.

The court found that the term "other" was not ambiguous and had a clear and ordinary meaning. It considered the context in which the word was used and the ordinary usage of the term in the English language. The court concluded that the term "other" was intended to be inclusive, and the will should be interpreted to mean all daughters, excluding none. The court relied on the principle that a will should be interpreted in a manner that gives effect to the testator's intentions, and the term "other" in this context did not exclude any daughter. The court ruled in favour of the executors and dismissed the daughter's claim. As a result, the property in question was distributed among all the daughters of the deceased as per the will.

Orders