Otto v Redhead and Thompson & Anor - [2007] QSC 278

SUPREME COURT OF QUEENSLAND

CITATION:

Otto v Redhead and Thompson & Anor [2007] QSC 278

PARTIES:

GLEN LAWRENCE OTTO
(applicant)
v
GRAHAM REGINALD REDHEAD and PETER CHRISTIAN THOMPSON (Executors and Trustees of the will of BERYL MAY OTTO deceased)
(first respondent)
and
BRETT ADRIAN OTTO
(second respondent)

FILE NO:

BS 3010 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2007

JUDGE:

Chesterman J

ORDER:

Declarations that:
1. The assets to be appropriated between the residuary beneficiaries are, in accordance with clause 6(c) of the will to be valued as at 20 September 2005;
2. Any net income from the assets appropriated to either of the residuary beneficiaries which is received by, given to or transferred to that residuary beneficiary or which is within the beneficiary’s effective exclusive control should be taken into account in the process of determining the amounts to be paid to those beneficiaries in accordance with clause 13 of the will;

3. The applications are otherwise adjourned

CATCHWORDS:

SUCCESSION – WILLS PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PERIOD OF DISTRIBUTION – GENERALLY – where the applicant and second respondent were residuary beneficiaries under a will – where the residue of the testatrix’s estate was divided between the applicant and second respondent – where part of that residue was an interests in two companies – where the applicant’s share of the residue was said to include the entire interest in one company and the second respondent’s share in the residue was to include the entire interest in the second company – where since the death of the testatrix the second company had made profits and increased in value compared with the first company which had not –– whether the assets including the companies were to be valued as at the time of the testatrix’s death or as at the time of the division of the estate – whether an express intention that the parties should benefit equally from the estate was excluded by an express intention that the relevant values be taken as at the testatrix’s death

SUCCESSION – WILLS PROBATE AND ADMINISTRATION – GENERALLY – where between the date of valuation and the date of distribution the second company earned income – where that income did not form part of the assets of the company to be valued as at the date of valuation - where there was an express intention that the first and second respondents would benefit equally from the estate whether that income is part of the estate – whether that income is available for the enrichment of the beneficiaries – whether that income should be brought into account upon the division of the estate

In Re Hillas-Drake Deceased; National Financial Bank v Liddell (1944) 1 Ch 235, applied

COUNSEL:

Mr D Murphy SC for the applicant
Mr DJ Morgan for the first respondents
Mr D Mullins SC for the second respondent

SOLICITORS:

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 Otto v Redhead and Thompson & Anor

Details

AGLC: Otto v Redhead and Thompson [2007] QSC 278
Case: [2007] QSC 278
Decision Date: 4 October 2007

CaseChat Overview and Summary

The applicants, Otto and Thompson, are residuary beneficiaries under the will of a deceased person, Redhead. The dispute concerns the valuation and division of the estate, particularly the shares of two companies. The applicants argue that their shares should be valued at the time of division rather than at the date of Redhead’s death, while the second respondent contends that the valuation should be as of the date of death. The court was tasked with interpreting the will to determine the appropriate timing for valuing the assets, specifically the companies, and whether any post-death income from these assets should be included in the estate for distribution.

The primary legal issue was the interpretation of the will concerning the timing of the valuation of the estate assets, specifically the shares in the two companies. The court had to consider whether the will expressed an intention that the assets be valued at the date of Redhead’s death or at the time of distribution. Additionally, the court needed to decide whether post-death income from the assets should be included in the estate and, if so, whether it should be distributed to the beneficiaries. The applicants argued that the will intended for the beneficiaries to benefit equally, implying that the assets should be valued at the time of distribution. The second respondent, however, argued that the will's intention for equal benefit was subject to the valuation at the date of death.

The court examined the language of the will and concluded that the assets were to be valued as at the date of Redhead’s death, aligning with clause 6(c) of the will. The court found that there was no express intention in the will to value the assets at the time of distribution. Regarding post-death income, the court held that such income should be taken into account in determining the amounts to be paid to the beneficiaries, in accordance with clause 13 of the will. The court determined that the income was part of the estate and should be considered in the division process.

The court made several declarations. Firstly, it was declared that the assets were to be valued as at the date of Redhead’s death. Secondly, any net income from the assets received by or within the exclusive control of the beneficiaries should be considered in determining the amounts to be paid to them. Lastly, the applications were adjourned.

Orders

Orders of the court

Declarations that:

1. The assets to be appropriated between the residuary beneficiaries are, in accordance with clause 6(c) of the will to be valued as at 20 September 2005;

2. Any net income from the assets appropriated to either of the residuary beneficiaries which is received by, given to or transferred to that residuary beneficiary or which is within the beneficiary’s effective exclusive control should be taken into account in the process of determining the amounts to be paid to those beneficiaries in accordance with clause 13 of the will;

3. The applications are otherwise adjourned

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Otto v Redhead and Thompson & Anor [2007] QSC 278
PARTIES:	GLEN LAWRENCE OTTO (applicant) v GRAHAM REGINALD REDHEAD and PETER CHRISTIAN THOMPSON (Executors and Trustees of the will of BERYL MAY OTTO deceased) (first respondent) and BRETT ADRIAN OTTO (second respondent)
FILE NO:	BS 3010 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	14 September 2007
JUDGE:	Chesterman J
ORDER:	Declarations that: 1. The assets to be appropriated between the residuary beneficiaries are, in accordance with clause 6(c) of the will to be valued as at 20 September 2005; 2. Any net income from the assets appropriated to either of the residuary beneficiaries which is received by, given to or transferred to that residuary beneficiary or which is within the beneficiary’s effective exclusive control should be taken into account in the process of determining the amounts to be paid to those beneficiaries in accordance with clause 13 of the will; 3. The applications are otherwise adjourned
CATCHWORDS:	SUCCESSION – WILLS PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – PERIOD OF DISTRIBUTION – GENERALLY – where the applicant and second respondent were residuary beneficiaries under a will – where the residue of the testatrix’s estate was divided between the applicant and second respondent – where part of that residue was an interests in two companies – where the applicant’s share of the residue was said to include the entire interest in one company and the second respondent’s share in the residue was to include the entire interest in the second company – where since the death of the testatrix the second company had made profits and increased in value compared with the first company which had not –– whether the assets including the companies were to be valued as at the time of the testatrix’s death or as at the time of the division of the estate – whether an express intention that the parties should benefit equally from the estate was excluded by an express intention that the relevant values be taken as at the testatrix’s death SUCCESSION – WILLS PROBATE AND ADMINISTRATION – GENERALLY – where between the date of valuation and the date of distribution the second company earned income – where that income did not form part of the assets of the company to be valued as at the date of valuation - where there was an express intention that the first and second respondents would benefit equally from the estate whether that income is part of the estate – whether that income is available for the enrichment of the beneficiaries – whether that income should be brought into account upon the division of the estate In Re Hillas-Drake Deceased; National Financial Bank v Liddell (1944) 1 Ch 235, applied
COUNSEL:	Mr D Murphy SC for the applicant Mr DJ Morgan for the first respondents Mr D Mullins SC for the second respondent
SOLICITORS: