Rose v Tomkins

Case [2017] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

Rose v Tomkins & Ors [2017] QCA 157

PARTIES:

JULIA MARY ROSE (as executor of the will of Cheryl Marie Jones deceased)
(appellant)
v
BEVAN WARREN TOMKINS
(first respondent)
PETER JOSEPH JONES
PAUL EDWIN JONES
(second respondents)
KAREN LEE SCOTT
NICOLE ANN KILPATRICK
MICHAEL WARREN TOMKINS
(third respondents)

FILE NO/S:

Appeal No 10920 of 2016
SC No 7759 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2016] QSC 216

DELIVERED ON:

21 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2017

JUDGES:

Morrison and Philippides JJA and Flanagan J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The will of CHERYL MARIE JONES deceased dated 20 May 2015 be rectified as follows:

In clause 6(d), deleting the words ‘then it shall form part of my residuary estate’ and inserting the following words in their stead:

“Then my interest in the property shall be transferred absolutely to those of my sons PETER JOSEPH JONES and PAUL EDWIN JONES who survive me and if more than one in equal shares as tenants in common”.

2.   The respondents pay the appellant’s costs of and incidental to the appeal, but limited to the amount the respondents recover pursuant to the certificate below.

3. The respondents be granted a certificate under s 15 of the Appeal Costs Fund Act 1973.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the testatrix was in a de facto relationship – where the testatrix and her de facto partner both had their own respective children – where the testatrix and her partner held their residential home as joint tenants – where the testatrix and her partner gave instructions that they both wished their half‑share in the residence to pass to their respective children after both of them died – where instructions were given to sever the joint tenancy – where the testatrix’s will gave her partner the right to occupy the home until he died or remarried, at which stage the residence would form part of the testatrix’s residuary estate – where the testatrix’s will gave a half‑share in her residuary estate to her children and the other half‑share to her partner’s children – where it was not known whether the testatrix’s partner’s will mirrored hers – whether there was clear and convincing proof that the will did not carry out the testatrix’s intentions because it failed to give effect to her instructions

Succession Act 1981 (Qld), s 33

ANZ Trustees Ltd v Hamlet [2010] VSC 207, considered
Beardsley v Loogatha[2001] QCA 438, applied
Lockrey v Ferris [2011] NSWSC 179, considered
Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002, considered
Palethorpe v The Public Trustee of Queensland [2011] QSC 335, considered
Rawack v Spicer [2002] NSWSC 849, considered
Rose v Tomkins & Ors [2016] QSC 216,…

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AGLC
Rose v Tomkins [2017] QCA 157
Case
[2017] QCA 157
Decision Date

CaseChat Overview and Summary

In the case of Rose v Tomkins, the issue before the court was whether the statutory power of rectification under section 33(1)(b) of the Succession Act should be exercised to amend the will of Cheryl Marie Jones, who had passed away. The will in question did not reflect the deceased's intentions regarding the distribution of her half-share of her residential home to her children, as she had instructed. The deceased had been in a de facto relationship with Tomkins, and both had their own children. They had jointly owned their home and instructed that upon their deaths, their respective half-shares in the residence were to pass to their children. The will, however, did not give effect to these instructions, instead providing for Tomkins to occupy the home until he died or remarried, and then for the home to form part of the deceased's residuary estate. The residuary estate was divided equally between the deceased's children and Tomkins' children.

The court was tasked with determining whether the deceased's will failed to carry out her intentions as reflected in her instructions, and if so, whether rectification was appropriate under the relevant statutory provision. The court held that the deceased's instructions clearly indicated her intention that her half-share in the residence pass to her children. The instructions did not suggest that she intended to provide for Tomkins' children or that she wanted to create mutual wills with Tomkins. Therefore, the will did not give effect to the deceased's instructions, as it resulted in Tomkins' children receiving a quarter interest in the remainder of the house upon the earlier of Tomkins' death or remarriage. The court concluded that the will did not carry out the deceased's intentions and that rectification was warranted.

The court ordered that the will of Cheryl Marie Jones be rectified by amending clause 6(d) to ensure that her interest in the property would be transferred absolutely to her surviving sons in equal shares as tenants in common. Additionally, the court ordered that the respondents pay the appellant's costs of and incidental to the appeal, but limited to the amount the respondents recover pursuant to a certificate under section 15 of the Appeal Costs Fund Act 1973. The respondents were also granted a certificate under the Act.

Orders

Orders of the court

1. The will of CHERYL MARIE JONES deceased dated 20 May 2015 be rectified as follows:

In clause 6(d), deleting the words ‘then it shall form part of my residuary estate’ and inserting the following words in their stead:

“Then my interest in the property shall be transferred absolutely to those of my sons PETER JOSEPH JONES and PAUL EDWIN JONES who survive me and if more than one in equal shares as tenants in common”.

2. The respondents pay the appellant’s costs of and incidental to the appeal, but limited to the amount the respondents recover pursuant to the certificate below.

3. The respondents be granted a certificate under s 15 of the Appeal Costs Fund Act 1973.

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

The legal principles in respect of the rectification power in s 33(1)(b) of the Act may be summarised as follows:(a)The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated.(b)The Court must construe the provision of the will sought to be rectified.(c)The Court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained.(d)The Court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions.(e)The Court must be so satisfied on the balance of probabilities, on clear and convincing proof.Consideration As mentioned, the primary judge found that the instructions received from both Ms Jones and Mr Tomkins were that they were concerned that “their” half-share of their home pass to their respective children after both of them died. The advice given by Ms Lever in respect of effecting those instructions was that it was necessary to sever the joint tenancy and that they could then give each other the right to occupy the home until the other died or remarried, whereupon the house would be sold and a half-share of the home property would pass to their respective children. There was nothing in the instructions given by Ms Jones to indicate that her intention was to do more than ensure that her half-share went to her children. There is thus no evidence that Ms Jones intended by her Will to do more than ensure that her own children inherited her half-share in the house. Certainly, there were no instructions given that Ms Jones and her partner wanted to put in place mutual wills. Nor was any such finding made or sought. The finding that the wills were identical was made inferentially, in the absence of a copy of Mr Tomkins’ will as drafted by the solicitor or evidence from the solicitor to that effect. Importantly, the fact that both Ms Jones and Mr Tomkins wished their respective children to inherit their half interest does not lead to the conclusion that each intended by their will to protect and guarantee the inheritance of the other’s children. They were primarily concerned with ensuring that their interest went to their respective children. The implicit intention from the instructions given by Ms Jones was that she was concerned that her own children did not face uncertainty. There is nothing to indicate she was concerned by her will to ensure that the children of her partner also did not face uncertainty. Ms Jones’ instructions were not that she wanted by her will to provide for the children of Mr Tomkins. It cannot be disputed that, by clauses 6 and 7, Ms Jones’ children did not receive the entirety of her half-share of the house after both she and her partner died (or the earlier expiration of the right to reside), but only a one quarter interest in the remainder of the house with the other quarter interest being gifting to Mr Tomkins’ children. In my view, the appellant’s submission that the will as drawn did not give effect to, nor was it capable of giving effect to, Ms Jones’ instructions is correct, in that Ms Jones’ children did not receive her half-share of the house but only a one quarter interest in the remainder of the house.