Re the Will of Edwin Marsden Tooth - [2020] QSC 214

SUPREME COURT OF QUEENSLAND

CITATION:

Re the Will of Edwin Marsden Tooth; Ex parte Corporation of the Synod of the Diocese of Brisbane [2020] QSC 214

PARTIES:

THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE

(applicant)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(intervener)

FILE NO:

BS No 2092 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2020

JUDGE:

Martin J

ORDER:

It is declared that, upon the proper construction of the Will of Sir Edwin Marsden Tooth dated 14 October 1957, the Corporation of the Synod of the Diocese of Brisbane is beneficially entitled to the gift in clause 16(ii) of the Will and in respect of which it has all the powers of an absolute owner.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – WHAT INTEREST PASSES – ABSOLUTE GIFTS GENERALLY AND WHEN CUT DOWN – ABSOLUTE GIFTS GENERALLY – where a testator left a detailed Will with two codicils – where cl. 16 of the Will defines the entire residuary estate as constituting 100 equal parts and directs the trustees “to pay” portions of the residuary estate to certain institutions in the proportions and for the purposes identified in the sub-clauses – where cl. 16(ii) of the Will allots a portion of the residuary estate to the applicant “for the purpose of establishing within the Diocese a home for Aged Persons to be described as ‘The Edwin Marsden Tooth Memorial Home’” – where the applicant seeks a declaration regarding the proper construction cl. 16(ii) of the Will – where the applicant submits that the gift was an absolute gift – where the Attorney-General does not oppose the application but submits that the gift was for a charitable purpose and that a trust was imposed on the gift – whether the applicant is beneficially entitled to the gift as an absolute gift or whether the gift is subject to a trust

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – PRINCIPLES OR RULES OF CONSTRUCTION – WORDS HAVING TECHNICAL OR LEGAL MEANING – where a testator left a will that does not indicate, on its face, that it was prepared by a lawyer – where the will uses formal language – where the will precisely identifies beneficiaries and the purposes of gifts – where the will contains detailed instructions – where one of the witnesses of the will was described as a solicitor – whether the will was prepared by a lawyer

McClymont v Hooper (1973) 128 CLR 147, cited
National Trustees, Executors and Agency Co of Australasia Ltd v O’Connor (1919) 27 CLR 60, applied
Re McIlrath (dec’d) [1959] VR 720, cited
Re O’Mullane (dec’d) [1955] VLR 217, cited
Re Frigo; Ex parte Missionaries of Sacred Heart [2017] QSC 81, applied

COUNSEL:
RM Treston QC for the applicant

A McCabe (sol.) for the Attorney-General intervening

SOLICITORS:
Cornford-Scott Lawyers for the applicant

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: [2020] QSC 214
Decision Date: 22 July 2020

CaseChat Overview and Summary

The case of Re the Will of Edwin Marsden Tooth involved the Corporation of the Synod of the Diocese of Brisbane, which sought a declaration regarding the proper construction of clause 16(ii) of the will of the late Sir Edwin Marsden Tooth. The testator's will, dated 14 October 1957, included a detailed provision for the establishment of a home for aged persons in the Diocese, referred to as the "Edwin Marsden Tooth Memorial Home." The Corporation argued that the gift was an absolute gift, whereas the Attorney-General contended that the gift was subject to a trust for charitable purposes.

The legal issues before the court were whether the gift in clause 16(ii) of the will was an absolute gift to the Corporation, or whether it was subject to a trust. The court also needed to determine whether the will was prepared by a lawyer, based on its formal language and precise instructions, even though it did not explicitly indicate that it was prepared by a legal professional.

The court concluded that the gift in clause 16(ii) was an absolute gift to the Corporation, based on the clear language of the will and the absence of any indication that the gift was intended to be charitable. The court found that the use of formal language and the detailed instructions did not necessarily imply that the will was prepared by a lawyer. The court rejected the Attorney-General's submission that the gift was for a charitable purpose and that a trust was imposed on the gift.

The court declared that the Corporation was beneficially entitled to the gift in clause 16(ii) of the will and had all the powers of an absolute owner. This decision provided clarity on the proper construction of the will and the rights of the Corporation with respect to the specific gift in question.

Orders

Orders of the court

It is declared that, upon the proper construction of the Will of Sir Edwin Marsden Tooth dated 14 October 1957, the Corporation of the Synod of the Diocese of Brisbane is beneficially entitled to the gift in clause 16(ii) of the Will and in respect of which it has all the powers of an absolute owner.

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

The “gift over” clause is a clause frequently seen in wills of this type. It applies in a circumstance that has not come to pass and it does not require the conclusion advanced on behalf of the Attorney-General because it does not necessarily follow that a testator would, because the testator makes provision for a failed gift to be applied charitably, intend that the gift be charitable in all circumstances.Conclusion The Corporation seeks declarations as to the proper construction of the Will. It is declared that, upon the proper construction of the Will of Sir Edwin Marsden Tooth dated 14 October 1957, the Corporation is justified in regarding itself as having been beneficially entitled to the provisions which came to it from the estate of the deceased pursuant to clause 16(ii) of the Will and in respect of which it has all the powers of an absolute owner.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re the Will of Edwin Marsden Tooth; Ex parte Corporation of the Synod of the Diocese of Brisbane [2020] QSC 214
PARTIES:	THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE (applicant) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervener)
FILE NO:	BS No 2092 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2020
JUDGE:	Martin J
ORDER:	It is declared that, upon the proper construction of the Will of Sir Edwin Marsden Tooth dated 14 October 1957, the Corporation of the Synod of the Diocese of Brisbane is beneficially entitled to the gift in clause 16(ii) of the Will and in respect of which it has all the powers of an absolute owner.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – WHAT INTEREST PASSES – ABSOLUTE GIFTS GENERALLY AND WHEN CUT DOWN – ABSOLUTE GIFTS GENERALLY – where a testator left a detailed Will with two codicils – where cl. 16 of the Will defines the entire residuary estate as constituting 100 equal parts and directs the trustees “to pay” portions of the residuary estate to certain institutions in the proportions and for the purposes identified in the sub-clauses – where cl. 16(ii) of the Will allots a portion of the residuary estate to the applicant “for the purpose of establishing within the Diocese a home for Aged Persons to be described as ‘The Edwin Marsden Tooth Memorial Home’” – where the applicant seeks a declaration regarding the proper construction cl. 16(ii) of the Will – where the applicant submits that the gift was an absolute gift – where the Attorney-General does not oppose the application but submits that the gift was for a charitable purpose and that a trust was imposed on the gift – whether the applicant is beneficially entitled to the gift as an absolute gift or whether the gift is subject to a trust SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – PRINCIPLES OR RULES OF CONSTRUCTION – WORDS HAVING TECHNICAL OR LEGAL MEANING – where a testator left a will that does not indicate, on its face, that it was prepared by a lawyer – where the will uses formal language – where the will precisely identifies beneficiaries and the purposes of gifts – where the will contains detailed instructions – where one of the witnesses of the will was described as a solicitor – whether the will was prepared by a lawyer McClymont v Hooper (1973) 128 CLR 147, cited National Trustees, Executors and Agency Co of Australasia Ltd v O’Connor (1919) 27 CLR 60, applied Re McIlrath (dec’d) [1959] VR 720, cited Re O’Mullane (dec’d) [1955] VLR 217, cited Re Frigo; Ex parte Missionaries of Sacred Heart [2017] QSC 81, applied
COUNSEL:	RM Treston QC for the applicant A McCabe (sol.) for the Attorney-General intervening
SOLICITORS:	Cornford-Scott Lawyers for the applicant