McPherson v Byrne - [2012] QSC 394

SUPREME COURT OF QUEENSLAND

CITATION:

McPherson v Byrne & Ors [2012] QSC 394

PARTIES:

GRAHAM ROSS McPHERSON
(applicant)
v
JAMES RODERICK BYRNE and NOEL HERBERT SMITH as Executors of the Estate of MAY McPHERSON
(first respondents)
ANGUS McPHERSON, STEWART McPHERSON,
FIONA McPHERSON and JENNIFER McPHERSON
(second respondents)

FILE NO:

BS7682 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

10 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2012

JUDGE:

Mullins J

ORDER:

1.   It is declared that upon the proper construction of the will of the late May McPherson dated 10 November 1995 (the will), the second respondents are entitled to the gift of shares in clause 4 of the will.

2.   The time for making the application to rectify the will is extended to 15 October 2012.

3.   Pursuant to s 33(1) of the Succession Act 1981, clause 5 of the will is rectified by deleting the words “such of” and the words “as shall survive me and if more than one in equal shares as tenants in common”.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – STATUTORY RULES OF CONSTRUCTION – LAPSE WHERE BENEFICIARY DOES NOT SURVIVE TESTATOR BY SPECIFIED PERIOD – plain meaning of the words in the clause giving shares to the son who predeceased the testator – where the other gift in the will of the residue was to the survivor of both sons of the testator and if more than one in equal shares – whether qualifying words to the gift of the residue should be imported into the clause giving the shares when reading the will as a whole – whether there was a contrary intention in the will to displace the application of s 33N(2) Succession Act 1981 (Qld) to the gift of the shares

SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where evidence of the solicitor who took the testator’s instructions showed that the will as executed did not reflect the testator’s intentions for the residuary gift, despite the testator’s approval of the words used in the residuary clause – whether order rectifying the will should be made

Succession Act 1981, s 33, s 33B, s 33C, s 33N

Re Allen [1988] 1 Qd R 1, considered
Fell v Fell (1922) 31 CLR 268, considered
Hinds v Collins [2006] 1 Qd R 514, considered
Kavanagh v Reardon [2012] VSC 174, considered
Re the Will of Macaudo [1993] 2 Qd R 269, considered
Palethorpe v Public Trustee of Queensland [2011] QSC 335, considered
Public Trustee of Queensland v Jacob [2007] 2 Qd R 165, followed
Public Trustee of Queensland v Smith [2009] 1 Qd R 26, considered

Vescio v Bannister [2010] NSWSC 1274, considered

COUNSEL:

A C Barlow for the applicant
R T Whiteford for the first respondents
R N Traves SC and C A Brewer for the second respondents

SOLICITORS:

ClarkeKann for the applicant
Hillhouse Burrough McKeown for the first respondents

de Groots for…

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 McPherson v Byrne

Details

AGLC: McPherson v Byrne [2012] QSC 394
Case: [2012] QSC 394
Decision Date: 10 December 2012

CaseChat Overview and Summary

McPherson v Byrne involved a dispute regarding the interpretation and rectification of a will. The case was heard in the Supreme Court of Queensland. The central issue was the construction of a testamentary disposition, specifically concerning the distribution of shares to the son who predeceased the testator and the residue of the estate. The court was tasked with determining whether the statutory rules of construction should apply to the shares and if there was any indication in the will to override the provisions of section 33N(2) of the Succession Act 1981. Additionally, the court had to consider whether the will should be rectified to reflect the testator's true intentions.

The court examined the plain meaning of the words used in the clause that gave shares to the son who predeceased the testator. It also considered whether the qualifying words related to the gift of the residue should be incorporated into the clause regarding the shares, particularly when reading the will as a whole. The court found that there was no clear evidence of a contrary intention in the will that would displace the application of section 33N(2) of the Succession Act. The court also considered the evidence from the solicitor who took the testator's instructions, which indicated that the will as executed did not reflect the testator's intentions for the residuary gift, despite the testator's approval of the words used in the residuary clause.

The court concluded that the second respondents were entitled to the gift of shares in clause 4 of the will. It further determined that the time for making an application to rectify the will should be extended. Finally, the court ordered the rectification of clause 5 of the will by deleting the words "such of" and the words "as shall survive me and if more than one in equal shares as tenants in common," as per section 33(1) of the Succession Act 1981. This rectification aimed to ensure that the will accurately reflected the testator's intentions.

Orders

Orders of the court

1. It is declared that upon the proper construction of the will of the late May McPherson dated 10 November 1995 (the will), the second respondents are entitled to the gift of shares in clause 4 of the will.

2. The time for making the application to rectify the will is extended to 15 October 2012.

3. Pursuant to s 33(1) of the Succession Act 1981, clause 5 of the will is rectified by deleting the words “such of” and the words “as shall survive me and if more than one in equal shares as tenants in common”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McPherson v Byrne & Ors [2012] QSC 394
PARTIES:	GRAHAM ROSS McPHERSON (applicant) v JAMES RODERICK BYRNE and NOEL HERBERT SMITH as Executors of the Estate of MAY McPHERSON (first respondents) ANGUS McPHERSON, STEWART McPHERSON, FIONA McPHERSON and JENNIFER McPHERSON (second respondents)
FILE NO:	BS7682 of 2012
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	10 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2012
JUDGE:	Mullins J
ORDER:	1. It is declared that upon the proper construction of the will of the late May McPherson dated 10 November 1995 (the will), the second respondents are entitled to the gift of shares in clause 4 of the will. 2. The time for making the application to rectify the will is extended to 15 October 2012. 3. Pursuant to s 33(1) of the Succession Act 1981, clause 5 of the will is rectified by deleting the words “such of” and the words “as shall survive me and if more than one in equal shares as tenants in common”.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – STATUTORY RULES OF CONSTRUCTION – LAPSE WHERE BENEFICIARY DOES NOT SURVIVE TESTATOR BY SPECIFIED PERIOD – plain meaning of the words in the clause giving shares to the son who predeceased the testator – where the other gift in the will of the residue was to the survivor of both sons of the testator and if more than one in equal shares – whether qualifying words to the gift of the residue should be imported into the clause giving the shares when reading the will as a whole – whether there was a contrary intention in the will to displace the application of s 33N(2) Succession Act 1981 (Qld) to the gift of the shares SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where evidence of the solicitor who took the testator’s instructions showed that the will as executed did not reflect the testator’s intentions for the residuary gift, despite the testator’s approval of the words used in the residuary clause – whether order rectifying the will should be made Succession Act 1981, s 33, s 33B, s 33C, s 33N Re Allen [1988] 1 Qd R 1, considered Fell v Fell (1922) 31 CLR 268, considered Hinds v Collins [2006] 1 Qd R 514, considered Kavanagh v Reardon [2012] VSC 174, considered Re the Will of Macaudo [1993] 2 Qd R 269, considered Palethorpe v Public Trustee of Queensland [2011] QSC 335, considered Public Trustee of Queensland v Jacob [2007] 2 Qd R 165, followed Public Trustee of Queensland v Smith [2009] 1 Qd R 26, considered Vescio v Bannister [2010] NSWSC 1274, considered
COUNSEL:	A C Barlow for the applicant R T Whiteford for the first respondents R N Traves SC and C A Brewer for the second respondents
SOLICITORS:	ClarkeKann for the applicant Hillhouse Burrough McKeown for the first respondents de Groots for…