Re: Humpheys - [2002] QSC 90

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Humpheys [2002] QSC 090

PARTIES:

NOEL PATRICK HUMPHREYS
(applicant)
v
RUTH MERLE HUMPHREYS as executrix of the Will of FRANCIS THOMAS HUMPHREYS deceased
(respondent)

FILE NO:

1921 of 2002

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

10 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2002

JUDGE:

Ambrose J

ORDER:

I order therefore that –

1. Each of the applicant and the respondent be empowered jointly and secondly to transfer to the respondent a life interest in the property referred to in cl 3(e) of the will situated at 160 Oxlade Drive, New Farm, described as Lot 12 on RP 8785 and Lot 1 on RP 45693.

2. That upon the registration of the respondent as the proprietor of a life estate in fee simple in the said property, the applicant and respondent, as trustees under the will, hold the remainder of that estate in fee simple upon the trusts specified in cl 3(e),(ii), (aa) and (bb) of the will.

3. That the applicant as executor and trustee of the will of FRANCIS THOMAS HUMPHREYS deceased with or without the consent of the respondent have power to sell the remainder of the estate in fee simple in the said property referred to in cl 3(e) of the will to Joseph Alexander Mackay and Catherine Cynthia Heather Mackay being the parties to a contract a copy of which is Exhibit E to the affidavit of Noel Patrick Humphreys filed herein on 28 February 2002 for the sum of $770,000 subject to the prior production to this court of a valuation by an approved valuer being a member of the Australian Institute of Valuers selected by at least one of the trustees of the will demonstrating that $770,000 is not less than the value of that property at the time of sale.

4. I order that the costs of the applicant and of the respondent of and incidental to this application be assessed upon an indemnity basis and that those costs be a first charge upon the proceeds of any sale of the remainder of the estate in fee simple referred to in paragraph 2 of this order.

5. Each of the applicant and the respondent have liberty to apply for further orders or directions upon four (4) days notice in writing given to the other.

CATCHWORDS:

TRUSTS AND TRUSTEES – APPLICATIONS TO COURT – where trust created under will – where respondent trustee-executrix given personal license to reside in house – where applicant-executor given interest in eventual sale of the property under the will – where applicant seeks variation of trusts created under the will for the sale of the property and the creation of a life interest for the respondent – whether Court should vary the trusts – whether Court has power to vary the trusts

TRUSTS AND TRUSTEES – APPOINTMENT OF TRUSTEES

WILLS, PROBATE AND LETTERS OF ADMINISTRATION – ACCELERATION

Trusts Act 1973 (Qld), s 6(1)(d), s 32, s 94, s 95(1)(b), s…

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 Re: Humpheys

Details

AGLC: Re: Humpheys [2002] QSC 90
Case: [2002] QSC 90
Decision Date: 10 April 2002

CaseChat Overview and Summary

The case of Re: Humpheys involved an application to the court regarding the interpretation and modification of a trust created under the will of Francis Thomas Humphreys. The applicant, who was also the executor of the will, sought to vary the trusts to facilitate the sale of a property and the establishment of a life interest for the respondent, who was the trustee-executrix. The respondent had been granted a personal license to reside in the house, while the applicant held an interest in the eventual sale of the property as per the terms of the will. The central issue before the court was whether it had the jurisdiction to alter the trusts as requested and if such variation was warranted.

The court examined the legal authority to vary the terms of the trust, considering both the statutory provisions and the precedents set by previous cases. It was established that the court's power to vary trusts is not absolute and is contingent upon whether the variation would be in the best interests of the beneficiaries and whether it aligns with the intentions of the testator as expressed in the will. The court also considered the principle of acceleration, which pertains to the timing of the beneficiaries' interests becoming possessory. The applicant argued that modifying the trusts would facilitate the sale of the property and better serve the interests of the beneficiaries, while the respondent contended that any alteration would deviate from the testator's intentions.

Upon reviewing the arguments and evidence presented, the court determined that the requested variation of the trusts was permissible. It found that the modification would indeed align with the testator's intentions and serve the best interests of the beneficiaries. The court thus empowered the applicant and respondent jointly to transfer a life interest in the property to the respondent. It also authorised the sale of the property to specific purchasers, subject to the condition that a valuation from an approved valuer would confirm the sale price. The court further directed that the costs of the application be assessed on an indemnity basis and that these costs be a first charge on the proceeds from the sale of the property.

The court concluded with specific orders regarding the transfer of the life interest, the sale of the property, and the assessment of costs. It granted the applicant and respondent the liberty to apply for further orders or directions, subject to providing four days' notice to the other party.

Orders

Orders of the court

I order therefore that –

1. Each of the applicant and the respondent be empowered jointly and secondly to transfer to the respondent a life interest in the property referred to in cl 3(e) of the will situated at 160 Oxlade Drive, New Farm, described as Lot 12 on RP 8785 and Lot 1 on RP 45693.

2. That upon the registration of the respondent as the proprietor of a life estate in fee simple in the said property, the applicant and respondent, as trustees under the will, hold the remainder of that estate in fee simple upon the trusts specified in cl 3(e),(ii), (aa) and (bb) of the will.

3. That the applicant as executor and trustee of the will of FRANCIS THOMAS HUMPHREYS deceased with or without the consent of the respondent have power to sell the remainder of the estate in fee simple in the said property referred to in cl 3(e) of the will to Joseph Alexander Mackay and Catherine Cynthia Heather Mackay being the parties to a contract a copy of which is Exhibit E to the affidavit of Noel Patrick Humphreys filed herein on 28 February 2002 for the sum of $770,000 subject to the prior production to this court of a valuation by an approved valuer being a member of the Australian Institute of Valuers selected by at least one of the trustees of the will demonstrating that $770,000 is not less than the value of that property at the time of sale.

4. I order that the costs of the applicant and of the respondent of and incidental to this application be assessed upon an indemnity basis and that those costs be a first charge upon the proceeds of any sale of the remainder of the estate in fee simple referred to in paragraph 2 of this order.

5. Each of the applicant and the respondent have liberty to apply for further orders or directions upon four (4) days notice in writing given to the other.

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:	Re: Humpheys [2002] QSC 090
PARTIES:	NOEL PATRICK HUMPHREYS (applicant) v RUTH MERLE HUMPHREYS as executrix of the Will of FRANCIS THOMAS HUMPHREYS deceased (respondent)
FILE NO:	1921 of 2002
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	10 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2002
JUDGE:	Ambrose J
ORDER:	I order therefore that – 1. Each of the applicant and the respondent be empowered jointly and secondly to transfer to the respondent a life interest in the property referred to in cl 3(e) of the will situated at 160 Oxlade Drive, New Farm, described as Lot 12 on RP 8785 and Lot 1 on RP 45693. 2. That upon the registration of the respondent as the proprietor of a life estate in fee simple in the said property, the applicant and respondent, as trustees under the will, hold the remainder of that estate in fee simple upon the trusts specified in cl 3(e),(ii), (aa) and (bb) of the will. 3. That the applicant as executor and trustee of the will of FRANCIS THOMAS HUMPHREYS deceased with or without the consent of the respondent have power to sell the remainder of the estate in fee simple in the said property referred to in cl 3(e) of the will to Joseph Alexander Mackay and Catherine Cynthia Heather Mackay being the parties to a contract a copy of which is Exhibit E to the affidavit of Noel Patrick Humphreys filed herein on 28 February 2002 for the sum of $770,000 subject to the prior production to this court of a valuation by an approved valuer being a member of the Australian Institute of Valuers selected by at least one of the trustees of the will demonstrating that $770,000 is not less than the value of that property at the time of sale. 4. I order that the costs of the applicant and of the respondent of and incidental to this application be assessed upon an indemnity basis and that those costs be a first charge upon the proceeds of any sale of the remainder of the estate in fee simple referred to in paragraph 2 of this order. 5. Each of the applicant and the respondent have liberty to apply for further orders or directions upon four (4) days notice in writing given to the other.
CATCHWORDS:	TRUSTS AND TRUSTEES – APPLICATIONS TO COURT – where trust created under will – where respondent trustee-executrix given personal license to reside in house – where applicant-executor given interest in eventual sale of the property under the will – where applicant seeks variation of trusts created under the will for the sale of the property and the creation of a life interest for the respondent – whether Court should vary the trusts – whether Court has power to vary the trusts TRUSTS AND TRUSTEES – APPOINTMENT OF TRUSTEES WILLS, PROBATE AND LETTERS OF ADMINISTRATION – ACCELERATION Trusts Act 1973 (Qld), s 6(1)(d), s 32, s 94, s 95(1)(b), s…