Shaune v Bourgouin - [2012] VSC 619

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 01655

IN THE MATTER of the Estate of MARIA JAROSZ GORKA, Deceased

and

IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the estate

BETWEEN

DANIELLE SHAUNE (as executrix of the will and trustee of the estate of the Deceased)	Plaintiff
v
CHRISTINE BOURGOUIN	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2012
DATE OF ORDER:	12 December 2012
DATE OF REASONS:	14 December 2012
CASE MAY BE CITED AS:	Shaune v Bourgouin
MEDIUM NEUTRAL CITATION:	[2012] VSC 619

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WILLS AND ESTATES – Construction of a clause of the deceased’s will – Clause contains the words ‘I give devise and bequeath [to the defendant] for her own use and benefit absolutely’ in respect of a residential property – Whether the clause gave the defendant an absolute interest in the property – Effect of superadded directions in the clause purporting to qualify the terms of the gift – Use of extrinsic evidence – Wills Act 1958, s 22A – Wills Act 1997, s 42.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Bolkas	Warwick McLachlan
For the Defendant	Mr A Verspaandonk	Dick & Williams

HIS HONOUR:

Introduction and summary

This is an application by the plaintiff pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the estate of Maria Jarosz Gorka (‘Deceased’).

The Deceased made her last will on 22 June 1993 (‘Will’) and she died on 24 April 2010. The Deceased left an estate worth $163,823.77 and liabilities of $3,587.70. The estate comprised a residential property at 23A Murray Valley Highway, Bandiana (erroneously described in the Will as number 23) (‘Property’), savings of $2,823.77 and personal chattels worth $1,000 (‘Chattels’).

The only assets of the Deceased’s estate that presently remain are the Property, valued at approximately $150,000, and the Chattels, valued at approximately $500. The Deceased’s estate presently has unpaid liabilities of approximately $75,402.63. There are no funds available to the estate to pay its outstanding liabilities, except for the funds that will become available upon the sale of the Property. The Will contains no direction regarding the payment of estate debts and liabilities, except for the direction in cl 3 of the Will to the effect that the Deceased’s bank accounts are to be applied towards the payment of estate debts and liabilities.

The plaintiff and the defendant are two of the Deceased’s children. Pursuant to cl 1 of the Will, the plaintiff is the executrix of the Will and the trustee of the Deceased’s estate. Probate was granted by this Court to the plaintiff on 16 August 2010.

In addition to cl 1, the Will contains the following clauses:

2.I NOTE that I have made adequate provision…

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.

Continue reading Shaune v Bourgouin

Details

AGLC: Shaune v Bourgouin [2012] VSC 619
Case: [2012] VSC 619
Decision Date: 12 December 2012

CaseChat Overview and Summary

Shaune was the plaintiff and Bourgouin was the defendant in a case brought to the Supreme Court of Victoria. The dispute centred around the interpretation of a clause in the will of Shaune's deceased father, which bequeathed a residential property to Bourgouin for her sole use and benefit. The core issue was whether the clause conferred an absolute interest in the property upon Bourgouin, or whether the additional instructions in the clause, which appeared to modify the terms of the gift, had any legal effect. The court was tasked with determining the true intent of the deceased, considering the statutory provisions of the Wills Act 1958 and the Wills Act 1997.

The court examined the language of the will clause and the statutory provisions on the admissibility of extrinsic evidence to ascertain the testator's intention. It considered whether the superadded directions were mere expressions of hope or intention, or if they constituted conditions or qualifications that could alter the nature of the gift. The court noted the statutory provisions that limit the use of extrinsic evidence to circumstances where the language of the will is ambiguous or uncertain, and where the evidence can clarify the meaning of the terms used. The court had to balance these statutory constraints with the overarching objective of giving effect to the testator's intentions.

In its reasoning, the court determined that the clause did indeed confer an absolute interest in the property on Bourgouin, as the language used was clear and unambiguous. The additional instructions were seen as expressions of the testator's wishes and preferences, rather than enforceable conditions. The court held that these superadded directions did not qualify the terms of the gift, and therefore did not restrict the absolute interest given to Bourgouin. The court's decision was in line with the statutory framework, which prioritises the testator's intentions as expressed in the will, provided that those intentions are legally valid and enforceable.

The court made an order declaring that Bourgouin holds the absolute interest in the residential property bequeathed to her by the will, and that the superadded directions do not affect the absolute nature of that interest. This decision provides clarity for executors, beneficiaries, and testators in the crafting of wills, particularly regarding the use of language and the effect of additional instructions or conditions within a bequest.

Orders