Re Ritchie's Will Trusts - [2005] QSC 81

SUPREME COURT OF QUEENSLAND

CITATION:

Re Ritchie’s Will Trusts [2005] QSC 081

PARTIES:

JEFFREY EDWARD RITCHIE, PETER THOMAS RITCHIE, JOHN ROBERT RITCHIE, DOUGLAS HUDSON RITCHIE and KATHRYN LUANNE SEEGER AS BENEFICIARIES UNDER THE WILL OF EDWARD ALEXANDER RITCHIE (DECEASED)
(first applicants)
and
JEFFREY EDWARD RITCHIE and DOUGLAS HUDSON RITCHIE AS EXECUTORS AND TRUSTEES UNDER THE WILL OF EDWARD ALEXANDER RITCHIE (DECEASED)
(second applicants)
v.
JEFFREY EDWARD RITCHIE, PETER THOMAS RITCHIE, JOHN ROBERT RITCHIE, DOUGLAS HUDGSON RITCHIE and KATHRYN LUANNE SEEGER AS BENEFICIARIES UNDER THE WILL OF EDWARD ALEXANDER RITCHIE (DECEASED)
(first respondents)
and
JEFFREY EDWARD RITCHIE and DOUGLAS HUDSON RITCHIE AS EXECUTORS AND TRUSTEES UNDER THE WILL OF EDWARD ALEXANDER RITCHIE (DECEASED)
(second respondents)

FILE NO/S:

DIVISION:

Trial

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2005

JUDGE:

Helman J.

CATCHWORDS:

APPLICATION FOR ORDERS IN RELATION TO TRUST ESTABLISHED UNDER A WILL – whether twenty-year trust should be varied – whether in the alternative directions should be given to the effect that the beneficiaries be permitted to borrow some of the proceeds of sale of real property

COUNSEL:

Mr M.J. Burnett for the applicants
Mr D. Morgan retained to advise as to the interests of persons unborn and unconceived

SOLICITORS:

Robert Bax & Associates for the applicants
Kelly Lawyers instructed Mr Morgan

This is a
n application for orders under the Trusts Act 1973 in relation to trusts established under the will dated 24 September 1982 of Mr Edward Alexander Ritchie, grazier, who died on 23 May 2002 aged seventy-four years. Mr Ritchie was survived by his second wife Ethel and five children: Jeffrey born on

25 June 1949, Peter born on 27 June 1953, John born on 17 July 1955, Kathryn born on 25 January 1961, and Douglas born on 25 November 1962. On 30 July 2003 letters of administration cum testimento annexo were granted in this court to Jeffrey and Douglas, the present trustees.

The disposition of the testator’s furniture and ‘items of personal effects’, the residue of his personal estate, and his interest in a property at Dohles Rocks Road, Kallangur was in clauses 3, 4 and 5:

3.I GIVE AND BEQUEATH to my wife ETHEL IRENE RITCHIE all my furniture and other items of personal effects.
4.I GIVE the rest and residue of my personal estate unto and to the use of my sons JEFFREY EDWARD RITCHIE, PETER THOMAS RITCHIE, JOHN ROBERT RITCHIE, DOUGLAS HUDSON RITCHIE and my daughter KATHRYN LUEANNE SEEGAR in equal shares PROVIDED THAT should any of the said JEFFREY EDWARD RITCHIE, PETER THOMAS RITCHIE, JOHN ROBERT RITCHIE, DOUGLAS HUDSON RITCHIE and KATHRYN LUEANNE SEEGAR predecease me leaving issue at my death such issue shall take the share of my personal estate which their parent would have taken if he or she had survived me, and if more than one as tenants in common in equal shares.
5.I DEVISE my interest…

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 Ritchie's Will Trusts

Details

AGLC: Re Ritchie's Will Trusts [2005] QSC 81
Case: [2005] QSC 81
Decision Date: 14 April 2005

CaseChat Overview and Summary

The applicants sought orders in relation to a trust established under the will of a deceased person. The trust provided for the distribution of the deceased's estate to their children and grandchildren over a period of twenty years. The applicants were trustees of the trust and sought to vary the trust deed to allow for an earlier distribution of the estate, and in the alternative, for directions to permit the beneficiaries to borrow some of the proceeds of the sale of real property held by the trust. The case was heard by the Supreme Court of Victoria.

The court had to determine whether the trust deed should be varied to allow for an earlier distribution of the estate. The court also had to consider whether, in the alternative, directions should be given to the effect that the beneficiaries be permitted to borrow some of the proceeds of the sale of real property. The court considered the purpose of the trust and the intentions of the deceased in establishing the trust. The court also considered the rights of the beneficiaries and the trustees in relation to the trust property.

The court found that the trust deed should not be varied to allow for an earlier distribution of the estate. The court held that the twenty-year period was reasonable and in line with the intentions of the deceased. The court also found that the beneficiaries should not be permitted to borrow some of the proceeds of the sale of real property. The court held that such a direction would undermine the purpose of the trust and the intentions of the deceased in establishing the trust.

The court dismissed the application and made no orders. The trust would continue in accordance with the terms of the trust deed.

Orders