Re Rodgers deceased

[2001] QSC 282

SUPREME COURT OF QUEENSLAND

CITATION:

Rodgers deceased, Re [2001] QSC 282

PARTIES:

In the will of FLORENCE STUART RODGERS deceased
CHERYL ANN RIETHMULLER and GARY RIETHMULLER
(applicants)

v
JANICE MARGARET BALLARD
(first respondent)
and
TODD ANTHONY BALLARD
(second respondent)
and
JASON ANDREW BALLARD
(third respondent)

FILE NO:

5424 of 2001

DIVISION:

Trial Division

DELIVERED ON:

6 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2001

JUDGE:

Mullins J

ORDER:

1.   It is declared that on the true construction of the last will of Florence Stuart Rodgers deceased ("deceased") dated 13 March 1996 the gift "To Todd Anthony Ballard any money that is in Commonwealth bank" is a gift of the money remaining in the Commonwealth Bank to the credit of the deceased after payment of funeral, testamentary and administration expenses to the extent which they exceed the amount of her residuary estate and after payment of the pecuniary legacies given under the said will of the deceased.

2.   It is ordered that the applicants' costs of the application be paid from the estate of the deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Construction and effect of testamentary dispositions – nature of gift – whether intended as a specific bequest or residuary disposition – whether there was a contrary intention for payment of debts for purpose of s 59(3) Succession Act 1981 – whether there was a contrary intention for payment of pecuniary legacies for purpose of s 60 Succession Act 1981.

Succession Act 1981, s 55, s 59, s 60

Doe v Hiscocks (1839) 5 M&W 363; 151 ER 154
Franguescos v Shaw [1977] 1 NSWLR 660

Re Shaw deceased [1955] St R Qd 284

COUNSEL:

LA Stephens for the applicants

The first respondent in person
The second respondent in person
The third respondent in person

SOLICITORS:

SW Ungerer for the applicants

1. MULLINS J:  On 18 June 2001 Cheryl Ann Riethmuller and Gary Riethmuller ("the applicants") applied for probate of the will of the late Mrs Florence Stuart Rodgers who died on 30 April 2001.  On the same date the applicants applied for a number of orders in relation to the proving and/or construction of Mrs Rodgers' will which is dated 13 March 1996.

1. The applicant Mrs Riethmuller is a niece of Mrs Rodgers.  Mrs Rodgers was survived by her only daughter Janice Margaret Ballard ("the first respondent").  The first respondent has two sons Todd Anthony Ballard ("the second respondent") and Jason Andrew Ballard ("the third respondent").  The respondents appeared at the hearing of the application, but did not oppose the orders sought by the applicants.   

1. The application was argued before me by Mr Stephens of Counsel on the basis that I had to consider the granting of probate in addition to the construction of the will.  I reserved my decision.  When looking at the file in connection with considering my decision, it became apparent that probate of Mrs Rodgers' will was granted by the registrar on 19 June 2001.  The probate was…