Prosper v Wojtowicz - [2005] QSC 177

SUPREME COURT OF QUEENSLAND

CITATION:

Prosper v Wojtowicz & Ors [2005] QSC 177

PARTIES:

GEOFFREY ROBERT PROSPER (as Executor of the Will of Owen George Harrow Robertson Deceased)
(applicant)

v

PATRICIA WOJTOWICZ, COLLEEN NORMA ROBERTSON, MEGAN ANN FRAHM, VERNON GEORGE FRAHM AND ZOE ROBERTSON
(respondents)

FILE NO:

S3103 of 2003

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2005

JUDGE:

Wilson J

ORDER:

1. That the letter of instruction signed by the testator and left with the will is not to take effect for the purposes of clause 6(c) of the will;

2. That the words contained in clause 6(c) of the will are not void for uncertainty and are therefore valid and capable of being given effect to.

CATCHWORDS:

SUCCESSION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – INCORPORATION OF UNATTESTED AND DETACHED PAPERS – OTHER CASES – where the testator left a signed letter of instruction with his will – where the letter of instruction purported to alter the effect of will – where the letter of instruction not in existence when will made - where the letter of instruction not referred to in will as already in existence – whether the letter of instruction can take effect

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – UNCERTAINTY AND FAILURE TO DISPOSE – IN RESPECT OF OBJECT OF GIFT – where the testator left part of his estate to “such persons who attended my funeral and who are not (and were not) at any time related to me” – whether the gift is invalid for uncertainty of beneficiaries
Succession Act 1981 (Qld), Part 3, Schedule 2, ss 6, 9
Trust Act 1973 (Qld), s 96

Antill-Pockley v Perpetual Trustee Company Limited (1974) 132 CLR 140, cited
In re Bridgen [1938] Ch 205, cited
In re Gansloser's Will Trusts [1952] 1 Ch 30, cited
In re Hain's Settlement [1961] 1 WLR 440, discussed
In re Saxone Shoe Co Ltd's Trust Deed [1962] 1 WLR 943, considered
In the will of Spears dec'd [1959] VR 430, cited
Kinsela v Caldwell (1975) 132 CLR 458, considered
Morice v Bishop of Durham (1805) 10 Ves Jun 521 at 539; 32 ER 947, cited
Mustard v Oikonomov, Supreme Court of WA, Owen J, 19 August 1998, distinguished
Re Fox [1997] 1 QdR 43 at 46, cited
Re Leverhulme [1943] 2 All ER 274, cited
West v Weston (1998) 44 NSWLR 657, discussed

COUNSEL:

K Dorney QC and R Cameron for the applicant executor Geoffrey Robert Prosper
R Peterson for the respondent Colleen Norma Robertson
R Whiteford for the respondents Megan Ann Frahm and Vernon George Frahm
D Morgan for the respondent Maxwell Francis Cooper

SOLICITORS:

Bridge Brideaux Solicitors for the applicant executor Geoffrey Robert Prosper
de Groots for the respondent Colleen Norma Robertson
Taylors Solicitors for the respondents Megan Ann Frahm and Vernon George Frahm
Gill & Lane for the respondent Maxwell Francis Cooper

WILSON J: Owen…

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 Prosper v Wojtowicz

Details

AGLC: Prosper v Wojtowicz [2005] QSC 177
Case: [2005] QSC 177
Decision Date: 24 June 2005

CaseChat Overview and Summary

The case of Prosper v Wojtowicz involved a dispute regarding the validity of a letter of instruction left by the deceased with his will. The deceased's will included a bequest to "such persons who attended my funeral and who are not (and were not) at any time related to me". The letter of instruction, which purported to alter the effect of the will, was not in existence when the will was made, nor was it referred to in the will as already in existence. The court was required to determine whether the letter of instruction could take effect and whether the bequest was valid or void for uncertainty.

The court examined the circumstances in which the letter of instruction was made and whether it could be incorporated into the will. The court also considered whether the bequest was uncertain or void due to the lack of ascertainable beneficiaries. The court concluded that the letter of instruction could not take effect because it was not in existence when the will was made and was not referred to in the will as already in existence. The court also found that the bequest was not uncertain or void, as the phrase "such persons" was sufficient to identify the beneficiaries.

The court held that the letter of instruction signed by the testator and left with the will was not to take effect for the purposes of clause 6(c) of the will. The court further held that the words contained in clause 6(c) of the will were not void for uncertainty and were therefore valid and capable of being given effect to. The court's decision provides clarity for executors and beneficiaries in similar situations regarding the incorporation of unattested and detached papers into a will and the validity of uncertain bequests.

Orders

Orders of the court

1. That the letter of instruction signed by the testator and left with the will is not to take effect for the purposes of clause 6(c) of the will;

2. That the words contained in clause 6(c) of the will are not void for uncertainty and are therefore valid and capable of being given effect to.

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:	Prosper v Wojtowicz & Ors [2005] QSC 177
PARTIES:	GEOFFREY ROBERT PROSPER (as Executor of the Will of Owen George Harrow Robertson Deceased) (applicant) v PATRICIA WOJTOWICZ, COLLEEN NORMA ROBERTSON, MEGAN ANN FRAHM, VERNON GEORGE FRAHM AND ZOE ROBERTSON (respondents)
FILE NO:	S3103 of 2003
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	24 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2005
JUDGE:	Wilson J
ORDER:	1. That the letter of instruction signed by the testator and left with the will is not to take effect for the purposes of clause 6(c) of the will; 2. That the words contained in clause 6(c) of the will are not void for uncertainty and are therefore valid and capable of being given effect to.
CATCHWORDS:	SUCCESSION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – INCORPORATION OF UNATTESTED AND DETACHED PAPERS – OTHER CASES – where the testator left a signed letter of instruction with his will – where the letter of instruction purported to alter the effect of will – where the letter of instruction not in existence when will made - where the letter of instruction not referred to in will as already in existence – whether the letter of instruction can take effect SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – UNCERTAINTY AND FAILURE TO DISPOSE – IN RESPECT OF OBJECT OF GIFT – where the testator left part of his estate to “such persons who attended my funeral and who are not (and were not) at any time related to me” – whether the gift is invalid for uncertainty of beneficiaries Succession Act 1981 (Qld), Part 3, Schedule 2, ss 6, 9 Trust Act 1973 (Qld), s 96 Antill-Pockley v Perpetual Trustee Company Limited (1974) 132 CLR 140, cited In re Bridgen [1938] Ch 205, cited In re Gansloser's Will Trusts [1952] 1 Ch 30, cited In re Hain's Settlement [1961] 1 WLR 440, discussed In re Saxone Shoe Co Ltd's Trust Deed [1962] 1 WLR 943, considered In the will of Spears dec'd [1959] VR 430, cited Kinsela v Caldwell (1975) 132 CLR 458, considered Morice v Bishop of Durham (1805) 10 Ves Jun 521 at 539; 32 ER 947, cited Mustard v Oikonomov, Supreme Court of WA, Owen J, 19 August 1998, distinguished Re Fox [1997] 1 QdR 43 at 46, cited Re Leverhulme [1943] 2 All ER 274, cited West v Weston (1998) 44 NSWLR 657, discussed
COUNSEL:	K Dorney QC and R Cameron for the applicant executor Geoffrey Robert Prosper R Peterson for the respondent Colleen Norma Robertson R Whiteford for the respondents Megan Ann Frahm and Vernon George Frahm D Morgan for the respondent Maxwell Francis Cooper
SOLICITORS:	Bridge Brideaux Solicitors for the applicant executor Geoffrey Robert Prosper de Groots for the respondent Colleen Norma Robertson Taylors Solicitors for the respondents Megan Ann Frahm and Vernon George Frahm Gill & Lane for the respondent Maxwell Francis Cooper