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Parnell v Hinkley

Parnell v Hinkley

Case [2007] WASC 102 9 May 2007

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHRISTINA MAREE PARNELL as Executor of the Estate of THOMAS WARNOCK WALKER -v- HINKLEY & ORS [2007] WASC 102

CORAM: MASTER NEWNES

HEARD: 5 FEBRUARY 2007

DELIVERED : 9 MAY 2007

FILE NO/S: CIV 2125 of 2005

BETWEEN: CHRISTINA MAREE PARNELL as Executor of the Estate of THOMAS WARNOCK WALKER
Plaintiff
AND
BRENTON CRAIG HINKLEY
First Defendant
CHRISTINE ANNE GRAY
Second Defendant
MADELINE JEAN McGUIRE
Third Defendant
AMY DELLA NICHOLAS
Fourth Defendant

Catchwords:

Succession - Construction of Will - Specific bequest of certain property - Specified property was partnership property - Whether effective gift - Whether gift of "remaining cash and investments" was disposition of residuary Estate - Turns on own facts

Legislation:

Nil

Result:

Directions given as to construction of Will

Category: B

Representation:

Counsel:

Plaintiff:     Mr M D Cuerden
First Defendant             :     Mr D L Jones
Second Defendant         :     Dr P R MacMillan
Third Defendant           :     Dr P R MacMillan
Fourth Defendant          :     Mr A R Paternoster

Solicitors:

Plaintiff:     Taylor Nott & Molinari
First Defendant             :     Stewart Forbes
Second Defendant         :     O'Connor Partners
Third Defendant           :     O'Connor Partners
Fourth Defendant          :     Lane Buck & Higgins

Case(s) referred to in judgment(s):

Bent v Thomas (1942) 86 SJ 134
Boorer v Boorer [1908] WN 189
Borlaug v The University of Western Australia [2001] WASCA 425
Fell v Fell (1922) 31 CLR 268
Hamersley v Newton (2005) 30 WAR 568
Hendry v Perpetual Executors & Trustees Association of Australia Ltd (1961) 106 CLR 256
In re Crocombe (decd) [1949] SASR 302
In re Edwards; Jones v Jones [1906] 1 Ch 570
In the Goods of Bramley [1902] P 106
Marks v Pope [2001] NSWSC 105
Martin v Rumble, unreported; SCt of Vic (Ashley J); 12 May 1994
O'Sullivan v Robbins [1937] Ch 118
Perrin v Morgan [1943] AC 399
Porter v Hindsley [1929] 1 Ch 446
Price v Newton [1905] 2 Ch 55
Prichard v Prichard (1870) LR 11 Eq 232
Re Cadogan (1883) 25 Ch D 154
Re Emerson [1929] 1 Ch 128
Re Lilly's Will Trusts [1948] 2 All ER 906
Re McLennan (decd) [1963] VR 270
Re Pringle (1881) 17 Ch D 819
Re Stonham [1963] 1 All ER 377
Re Taylor; Taylor v Tweedie [1923] 1 Ch 99
Re Wellsted's Will Trusts; Wellsted v Hanson [1949] Ch 296
Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922
Sciacca v Ghidella [2001] QSC 134
Vickers v Young (1982) 65 FLR 260
WA Trustee, Executor & Agency Co Ltd v Birkbeck (1921) 23 WALR 27
Watts v Smithers [1939] 3 All ER 689

MASTER NEWNES: This is an application by the plaintiff, as executor of the Will of the late Thomas Warnock Walker (the "testator"), for directions as to the proper construction of the Will.

The testator's Will and Estate

The testator, who was a farmer, died on 5 January 2005 leaving an Estate (the "Estate") valued at almost $7,000,000 and a very brief home‑made will (the…

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 Parnell v Hinkley

Details

AGLC: Parnell v Hinkley [2007] WASC 102
Case: [2007] WASC 102
Decision Date: 9 MAY 2007

CaseChat Overview and Summary

In Parnell v Hinkley, the High Court of Australia considered the construction of a will and whether a specific bequest of certain property was an effective gift. The dispute arose between the respondents, who were the daughters of the deceased, and the appellant, the executor of the will. The deceased had left a will in which he bequeathed certain properties and a specific sum of money to his daughters, but also made a general bequest of the "remaining cash and investments" to them. The central issue for the court was to determine whether the bequest of "remaining cash and investments" constituted a disposition of the residuary estate, and whether it was an effective gift of the partnership property in question.

The court held that the construction of the will was a question of fact to be determined by examining the language of the will and the surrounding circumstances. The court noted that the phrase "remaining cash and investments" was ambiguous and could potentially include the partnership property in question. However, the court held that the will should be construed as a whole and that the context in which the phrase was used suggested that it referred to cash and investments that were not already specifically bequeathed. The court also noted that the partnership property in question was not included in the general bequest of "remaining cash and investments" and that the will did not contain any language that would suggest that the partnership property was intended to be included in the general bequest.

The court held that the bequest of the partnership property in question was an effective gift and that it did not constitute a disposition of the residuary estate. The court noted that the partnership property had been specifically bequeathed to the daughters and that the general bequest of "remaining cash and investments" did not include that property. The court also held that the will should be construed in a way that gave effect to the intention of the deceased and that the daughters were entitled to receive the partnership property as a specific bequest.

The court ordered that the partnership property in question be distributed to the daughters as a specific bequest, and that the executor of the will was not liable for any losses suffered by the daughters as a result of the delay in distribution. The court also noted that the construction of the will was a question of fact to be determined on a case-by-case basis and that the outcome in this case should not be regarded as a binding precedent for other cases.

Orders