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 DefendantCHRISTINE ANNE GRAY
Second DefendantMADELINE JEAN McGUIRE
Third DefendantAMY 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
Borlaug v The University of Western Australia [2001] WASCA 425
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
Martin v Rumble, unreported; SCt of Vic (Ashley J); 12 May 1994
O'Sullivan v Robbins [1937] Ch 118
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…
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- AGLC
- Parnell v Hinkley [2007] WASC 102
- Case
- [2007] WASC 102
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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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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