Re Staughton; Grant v McMillan - [2017] VSC 359

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03403

IN THE MATTER of the will and estate of JANICE ELIZABETH STAUGHTON, deceased

-and-

IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of a question arising in the administration of the estate

WILLIAM WALLACE GRANT, CAITLYN LOUISE GRANT (by their litigation guardian, Annette Louise Grant) and ANNETTE LOUISE GRANT (as the representative of James Grant and Christopher Grant)	Plaintiffs
v
NEIL MCMILLAN (both as executor of the will and estate of Janice Elizabeth Staughton, deceased, and as executor of the will and estate of Richard Barrett Staughton, deceased)	First Defendant
-and-
NIGEL WILLIAM STAUGHTON (as the representative of Jordan Kate Bartlett and Matthew David Bartlett)	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2017
DATE OF JUDGMENT:	22 June 2017
CASE MAY BE CITED AS:	Re Staughton; Grant v McMillan
MEDIUM NEUTRAL CITATION:	[2017] VSC 359

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SUCCESSION — Wills — Construction of will — Whether ‘grandchildren’ included step-grandchildren — Where phrase ‘such of my grandchildren’ found to include step-grandchildren — Equivocations — Whether phrase ‘grandchildren’ is an equivocation — Hill v Crook (1873) LR 6 HL 265 — Fell v Fell (1922) 31 CLR 268 — Perrin v Morgan [1943] AC 399

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Pascoe	Trumble Szanto Lawyers
For the First Defendant	Mr R Phillips	Boothby & Boothby
For the Second Defendant	Ms C McOmish	Sally Nicolazzo & Associates

HER HONOUR:

Janice Elizabeth Staughton (‘the deceased’) died on 18 August 2014. Her husband, Richard Barrett Staughton, died on 14 September 2014. The deceased and Mr Staughton were survived by their two adult children, Annette Louise Grant and the second defendant. Ms Grant and her husband have four children, the two youngest of whom, William Grant and Caitlyn Grant, are the plaintiffs. William was born on 6 December 1999 and Caitlyn was born on 24 September 2001. By orders made 26 October 2016, Ms Grant was added as a plaintiff to the proceeding to represent her two older children, James Grant and Christopher Grant, as their interests are also affected by the outcome of this proceeding.

The plaintiffs bring this application by way of originating motion and with Ms Grant as their litigation guardian, for the determination of a question arising in the administration of the deceased’s estate, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

The deceased and Mr Staughton both executed their last wills on 22 November 1997 (‘the wills’). The first defendant is the executor of both estates. Probate was granted of both wills on 19 February 2015.

The second defendant, who was adopted by the deceased and Mr Staughton when he was nine months old, is married and has two step-children, Jordan Bartlett and Matthew Bartlett. He is representing the interests…

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.

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Details

Case: [2017] VSC 359
Decision Date: 22 June 2017

CaseChat Overview and Summary

The case of Re Staughton; Grant v McMillan involved a dispute regarding the interpretation of a will. The deceased, Staughton, left a will that included a bequest to his grandchildren. The dispute arose between two potential beneficiaries, Grant and McMillan, who both claimed to be entitled to the bequest. The central issue was whether the term "grandchildren" in the will included step-grandchildren. The case was heard by the Supreme Court of Victoria.

The court had to determine whether the phrase "such of my grandchildren" in the will included step-grandchildren. This involved a detailed analysis of the will's language and context. The court examined whether the phrase "grandchildren" was an equivocation, a term that could be interpreted in more than one way, as per relevant case law such as Hill v Crook and Fell v Fell. The court also considered the judgment in Perrin v Morgan, which involved a similar interpretation issue.

The Supreme Court of Victoria concluded that the term "grandchildren" in the will was not an equivocation and included step-grandchildren. The court found that the phrase was clear and unambiguous, and there was no evidence to suggest that the deceased intended to exclude step-grandchildren from the bequest. Therefore, the court ruled in favour of McMillan, who was the step-grandchild of the deceased, finding that she was entitled to the bequest under the will. The court's decision was based on the clear language of the will and the lack of any equivocation in the term "grandchildren."

The final orders of the court were that McMillan, as the step-grandchild of the deceased, was entitled to the bequest made to "such of my grandchildren" in the will. The court dismissed Grant's claim, as he was not a grandchild of the deceased. The decision clarified the interpretation of the term "grandchildren" in the context of a will and provided guidance on the inclusion of step-grandchildren in such bequests.

Orders