Re: The will of Entriken (deceased)

[2006] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

Re: The will of Entriken (deceased) [2006] QSC 231

PARTIES:

ERROL WALTER ENTRIKEN, EVELYN MILLICENT CASALEGNO and KENNETH SHAW ENTRIKEN (Applicants)

And

GAIL PATRICIA GALLAGHER, GLENNIS ETHEL ENTRIKEN AND GWENDA DAWN ENTRIKEN and NATALIE CECILIA KERRIGAN, SELINA MAREE ZAMBITO, ROBERT ERIC ANDREW ENTRIKEN AND MARK FRANCIS ENTRIKEN

(Respondents)

FILE NO/S:

170 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

3 April 2006

DELIVERED AT:

Townsville

HEARING DATE:

31 March 2006

JUDGE:

Cullinane J

ORDER:

That the beneficiaries named in Clause 3(b) take a one seventh interest of the residue of the estate after the payment of debts, funeral and testamentary expenses and the specific bequests and devises provided for in the will including the specific devise provided for in Clause 3 (c).

That costs of the applicants and Natalie Cecilia Kerrigan, Selina Maree Zambito, Robert Eric Andrew Entriken and Mark Francis Entriken be taxed on an indemnity basis and paid out of the estate. Costs of the applicant, Kenneth Shaw Entriken be fixed in the sum of $7,000.

CATCHWORDS:

WILL - PROPER CONSTRUCTION - where the Applicants are seeking an order as to the proper construction of the deceased’s will - whether the one-seventh share to be taken by the grandchildren is to be calculated after taking into account the debts of the estate and a devise of real property as specified in a later clause.

In the Goods of Shepherd 1879 48 LJP 62 (considered)

SOLICITORS:

Boulton Cleary and Kern for the Applicants

Nelson Lawyers for the Respondents

1. This is an application by the personal representatives of the abovenamed deceased seeking an order as to the proper construction of the deceased’s will.

1. The deceased died on 3 August 2004 and probate of the will was granted on 17 December 2004.

1. The deceased had seven children of whom one (Robert Eric Entriken) predeceased her.  He died leaving four children. 

1. It is desirable if I set out the relevant provisions of the will in full:

“2.       I APPOINT, EVELYN MILLICENT CASALEGNO, ERROL WALTER ENTRIKEN and KENNETH SHAW ENTRIKEN or the survivor of them (hereinafter referred to as “my Trustee”) to be Executor and Trustee of this my Will.

3.        I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal or whatsoever nature and wheresoever situate unto and to my Trustee to pay thereout all my just debts, funeral and testamentary expenses and to stand possessed of the rest and residue of my estate (hereinafter referred to as “my residuary estate”) upon the following trusts:-

(a)            I GIVE DEVISE AND BEQUEATH my personal effects to the persons                     nominated in “Attachment A” that is stored/retained with my Will and in   the event that “Attachment A” has not been prepared by me, my personal   effects shall be distributed at the discretion of my Trustees;

(b)            I GIVE DEVISE AND BEQUEATH one seventh (1/7) of the balance of   my residuary estate to the children of my late Son, ROBERT ERIC   ENTRIKEN namely, NATALIA CECILIA KERRIGAN, SELINA   MAREE ZAMBITO, ROBERT ERIC ANDREW ENTRIKEN  and MARK                  FRANCIS ENTRIKEN as shall survive me and if more than one, in equal   shares for their sole use and benefit absolutely.

(c)            I GIVE to my Son, KENNETH SHAW ENTRIKEN my property at 11    Fairlight Crescent, Annandale, Townsville in the State of Queensland.

(d)           I GIVE DEVISE AND BEQUEATH  the balance of my residuary estate to   my Children namely, GAIL PATRICIA GALLAGHER, EVELYN   MILLICENT CASALEGNO, GLENNIS ETHEL ENTRIKEN, GWENDA              DAWN ENTRIKEN  and ERROL WALTER ENTRIKEN   as shall survive   me and if more than one, in equal shares for their sole use and benefit   absolutely.”

1. It is accepted that by virtue of Clause 6 of the will there has to be brought into account an amount of $134,000 owing to the deceased by the late Robert Eric Entriken for the purposes of calculating a one seventh share provided for by Clause 3(b).

1. The issue which arises here is whether on the proper construction of the will the one seventh share to be taken pursuant to Clause 3(b) by the grandchildren is to be calculated after taking into account the debts of the estate and the bequest provided for in 3(a) but including the real property the subject of the specific devise in Clause 3(c).

1. There is evidence from the solicitor who prepared the will of an earlier will in which the estate was to be divided equally between the six surviving children and the grandchildren of the deceased, being the children of Robert Eric Entriken deceased.

1. The solicitor concerned deposes to taking instructions from the deceased in relation to the will admitted to probate. She says that when the draft will was read to the deceased, the deceased said that “Ken” was to take the land at 11 Fairleigh Crescent and this was to be “Ken’s share” of her estate and he would therefore be removed from the bequest of the residuary estate in which he and the other surviving siblings were to take equally.

1. The solicitor said she then raised with the deceased the question of whether that should lead to a proportionate change in the shares to be taken by the grandchildren.  She says that the deceased insisted that the shares remain as they were in her then existing will.

1. It is thus the contention of the solicitor representing the grandchildren on the application that Clause 3(b) is not a residuary disposition but rather a specific disposition of a one seventh share of the estate measured by what remains after the payment of debts and funeral and testamentary expenses and the satisfaction of the specific bequests in 3(a).  This would mean that the estate of which the grandchildren were to receive a one seventh share included the real property the subject of  Clause 3(c).

1. I do not think this is a case in which evidence of the testator’s intention is admissible. There is not in my view sufficient equivocation in the terms of the will.  In any case the instructions themselves as deposed to by the solicitor do not represent an unambiguous statement of intention. It might be thought that the statements are more consistent with what is contended for on behalf of the grandchildren here than the alternative construction but I think this is debatable.

1. Not surprisingly emphasis was placed upon the location in the will of Clause 3(c) in support of the argument that I have referred to.

1. On the other hand it is very difficult to see why the words “the balance of my residuary estate” should be construed any differently in Clause 3 (b) to where they appear in Clause 3(d) which is undoubtedly a residuary disposition.

1. It is possible that the testatrix intended to provide for broadly equal shares to the grandchildren (by Clause (b)), Kenneth Shaw Entriken (by Clause (c)) and the remaining children (by Clause (d)).  There is evidence of the value of the land and the and the net value of the estate before the Court.

1. However I am not persuaded that she has achieved this by the terms in which she has expressed her will.  Apart from the location of the specific devise in Clause 3(c) it seems to be that in their terms, Clauses 3(b) and (d) are equally dispositions of residue.  I do not think that the location alone is sufficient to justify a different conclusion to that which the plain language of the will would require.

1. In In the Goods of Shepherd 1879 48 LJP 62, the testatrix after directing payment of her debts and testamentary expenses left ‘all my household goods and furniture, plates, linen, glass and all other effects wheresoever and whatsoever’ to her sister. There followed a number of specific bequests and pecuniary legacies. There was no other clause dealing with the residuary estate. It was argued that the Clause set out above was not a residuary disposition for two reasons. The first was that the words “and all other effects whatsoever” should be read ejusdem generis. This argument was rejected. The second was based on the fact that the specific bequests followed the clause said to be a residuary clause.  The president of the court (Sir James Hannen) said at p63:

“For my own part I see nothing in the will to cut down the general force of the words which have been used unless it be the fact that several things are enumerated afterwards, but I do not think that the bare fact of those general words preceding several specific legacies is sufficient for me to arrive at the conclusion that the testatrix meant otherwise than what she has said namely that all other effects wheresoever and whatsoever are to go to her sister with the exception of the specific legacies afterwards enumerated.”

1. I take a similar view here of the fact that the devise in Clause 3(c) follows the bequest in Clause 3(b).

1. I declare that upon the proper construction of the will the beneficiaries named in Clause 3(b) take a one seventh interest of the residue of the estate after the payment of debts, funeral and testamentary expenses and the specific bequests and devises provided for in the will including the specific devise provided for in Clause 3(c).

1. It was common ground that a special order be made in respect of the third applicant, Kenneth Shaw Entriken so far as his costs are concerned.

1. I order that the costs of the applicants and Natalie Cecilia Kerrigan, Selina Maree Zambito, Robert Eric Andrew Entriken and Mark Francis Entriken be taxed on an indemnity basis and paid out of the estate.  I order that the costs of the applicant, Kenneth Shaw Entriken be fixed in the sum of $7,000.