Re Thomson

Case [2010] QSC 167

SUPREME COURT OF QUEENSLAND

CITATION:

Re Thomson & Anor (as trustees of the trusts established pursuant to the will of Shine (deceased)) [2010] QSC 167

PARTIES:

ELIN MARY THOMSON and MARGARET MARY SILVA (as trustees of the trusts established pursuant to the Will of Daniel William Shine Deceased)
(applicants)

AND

All next of kin and other persons interested in the construction of the will
(respondents)

FILE NO/S:

14523 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2010

JUDGE:

Atkinson J

ORDER:

Order that the applicants’ costs be paid on an indemnity basis from the estate.

It is directed that the property held on trust as to three quarters of the estate be distributed to the personal representatives of Edward Joseph Shine, Ellen Mary Watson, Annie Catherine Shine, James Joseph Shine and Mary Agnes Ryan.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF TESTATOR’S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL – construction of a will  – where gift was to “children” of the deceased’s siblings that survived the deceased’s daughter – where children of the deceased’s siblings did not survive the deceased’s daughter – where court considered the ordinary meaning of the word “children” to be children of the first generation – where there was a partial intestacy

Succession Act 1981 (Qld), s 33C, s 33N, s 37(1)(a)

Fell v Fell (1922) 31 CLR 268, cited
Key v Key (1853) 4 De GM & G 73, cited
Langston v Langston (1834) 2 Cl & F 194, cited
Leader v Duffy (1888) 13 App Cas 294, cited
Perrin v Morgan [1943] AC 399, cited
Ralph v Carrick (1879) 11 Ch D 873, cited
Re Atkinson; Pybus v Boyd [1918] 2 Ch 138 at 143, cited
Re East, Deceased [1964] QW 16, cited
Reeves v Brymer (1799) 4 Ves 692, cited
Re Harrison, Turner v Hellard (1885) 30 Ch D 390, cited
The Public Trustee of Queensland v Smith [2008] QSC 339, cited

COUNSEL:

R D Peterson for the applicants
No appearance by the respondents

SOLICITORS:

Hede Byrne & Hall for the applicants
No appearance by the respondents

  1. The trustees, Ms Thomson and Ms Silva, applied to the court to determine the true and proper construction of the last will of Daniel William Shine (“the will”) dated 26 April 1934 and give directions to the trustees established pursuant to the will.  In particular they asked the court to construe and give directions with regard to clause 3 of the will and the gift and bequest by the testator set out in clause 3.

  1. Daniel William Shine died in Brisbane on 2 May 1934 at the age of 49.  He was a farmer who lived at Fernvale and executed his last will on 26 April 1934 only a week before his death.  By clause…

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Details
AGLC
Re Thomson [2010] QSC 167
Case
[2010] QSC 167
Decision Date

CaseChat Overview and Summary

The case of Re Thomson involved the interpretation of a will, focusing on the disposition of assets to the “children” of the deceased's siblings. The dispute arose as the children of the deceased's siblings did not survive the deceased's daughter. The matter was heard by the Supreme Court of Victoria. The central issue was the ascertainment of the testator's intention in using the term “children,” particularly whether it referred to the first generation of descendants or a more expansive lineage. The court had to determine the proper distribution of the estate in light of the partial intestacy that resulted from the ambiguous wording of the will.

The court engaged in a detailed analysis of the ordinary meaning of the word “children” within the context of the will. It considered dictionary definitions and precedents to ascertain that “children” typically refers to the immediate descendants of a person, rather than their grandchildren or more distant relatives. This conclusion was influenced by the need to interpret the will in a way that aligned with the testator’s likely intention, given the absence of other specific guidance in the document. The court found that the term “children” should be understood to mean the first generation of descendants, leading to the conclusion that the intended beneficiaries were the deceased's niece and nephews, who did not survive the deceased's daughter.

The Supreme Court of Victoria resolved the dispute by directing that the property held in trust as to three quarters of the estate be distributed to the personal representatives of Edward Joseph Shine, Ellen Mary Watson, Annie Catherine Shine, James Joseph Shine, and Mary Agnes Ryan, who were the children of the deceased's siblings. The court ordered that the applicants' costs be paid on an indemnity basis from the estate. This decision ensures that the estate is distributed in accordance with the testator's likely intention, as interpreted by the court.

Orders

Orders of the court

Order that the applicants’ costs be paid on an indemnity basis from the estate.

It is directed that the property held on trust as to three quarters of the estate be distributed to the personal representatives of Edward Joseph Shine, Ellen Mary Watson, Annie Catherine Shine, James Joseph Shine and Mary Agnes Ryan.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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