Shea v the Public Trustee - [1992] TASSC 95

COURT: SUPREME COURT OF TASMANIA

CITATION: Shea v The Public Trustee [1992] TASSC 95; B15/1992

PARTIES:  SHEA, Cheryl Kaye
  v
  THE PUBLIC TRUSTEE

SHEA, Luke

FILE NO/S:  M336/1990
DELIVERED ON:  8 May 1992
JUDGMENT OF:  Cox J

Judgment Number: B15/1992
Number of paragraphs: 13

Serial No B15/1992

List "B"

File No M336/1990

CHERYL KAYE SHEA v. THE PUBLIC TRUSTEE AND LUKE SHEA

REASONS FOR JUDGMENT COX J

8 May 1992

Will – Construction – "My house property situate 44 Charles Street" – Items of personalty "thereat" – Ademption of specifically devised land depriving sole child of any substantial benefit – Testator's Family Maintenance Act 1912 – Wishes of testatrix frustrated by ademption – Modest estate – Provision made as if will referred to residence at time of death.

By her last will and testament prepared on her instructions by a solicitor employed by the Public Trust Office and signed on 14 March 1989, the late Vera May Harris appointed the Public Trustee her sole executor and trustee. In the despositive part of the will she provided as follows:

"3 I GIVE the whole of my estate both real and personal to my Trustee UPON TRUST as follows:–
(a)to pay thereout my just debts funeral and testamentary expenses and all duties payable in respect of my estate (whether actual or notional)
(b)as to my house property situate 44 Charles Street Moonah aforesaid and all my articles of household and personal use and ornament therein and thereat for my daughter CHERYL KAYE SHEA absolutely if she survives me AND IN THE EVENT of her not surviving me to fall into and form part of the residue of my estate
(c)as to the residue of my estate for my grandson LUKE SHEA absolutely if he survives me and also attains the age of twenty one (21) years AND IN THE EVENT of him not surviving me or surviving me but failing to attain the age of twenty one (21) years for my said daughter CHERYL KAYE SHEA absolutely if she survives me"

By cl 4 she gave her trustee a number of powers, including a power to apply the income and capital to which he might be entitled towards the maintenance, education or advancement in life of any infant benefited thereunder, and for that purpose to pay the same to the guardian of such child without being bound to see to the application thereof.

The testatrix, at the time of making her will, was aged 63 years and her husband had died the previous year. She was the sole beneficiary of his estate, their only child, the plaintiff, being nominated as sole beneficiary in the event that her mother predeceased him. The will was never proved, as the estate was small and the family home passed by survivorship to the testatrix. A close loving relationship existed between all three, and from time to time the parents acknowledged to the plaintiff that she would, after their death, inherit everything they owned. The plaintiff herself…

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 Shea v the Public Trustee

Details

AGLC: Shea v the Public Trustee [1992] TASSC 95
Case: [1992] TASSC 95
Decision Date: 8 May 1992

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Cheryl Kaye Shea brought a case against the Public Trustee and Luke Shea, contesting the interpretation and implementation of her late mother's will. The will was drafted by a solicitor employed by the Public Trust Office and signed by the testatrix, Vera May Harris, on 14 March 1989. The will specified that Cheryl Kaye Shea would inherit her mother's house at 44 Charles Street, Moonah, along with its contents, if she survived her mother. If Cheryl did not survive, the house would form part of the residue of the estate, which was to be inherited by Luke Shea, Cheryl's son, if he survived and attained the age of 21. The will also included provisions for the trustee to maintain and educate any beneficiaries who were minors.

The central issue in this case was whether Cheryl Kaye Shea was entitled to the real property at 132 Brent Street, Glenorchy, which her mother had purchased with the proceeds from the sale of the house at 44 Charles Street, Moonah. This issue arose because the property described in the will no longer matched the property owned by the estate at the time of the testatrix's death. The court had to determine whether the sale of the original property resulted in the ademption of the specific bequest and, if so, what implications this had for the distribution of the estate.

The court found that the specific bequest of the house at 44 Charles Street, Moonah, was adeemed by the sale, meaning that the property no longer belonged to the estate as described in the will. Consequently, the real property at 132 Brent Street, Glenorchy, which replaced it, did not benefit Cheryl Kaye Shea as per the will's terms. However, the court ruled that the personal belongings and household items, which were not specifically devised, would pass to Cheryl Kaye Shea. In the alternative, the court considered whether Cheryl Kaye Shea was entitled to maintenance from the estate under the Testator's Family Maintenance Act 1912. The court concluded that the testatrix intended for Cheryl Kaye Shea to receive the bulk of the estate, and the unintended consequence of her sale of the house should be rectified. Therefore, the court ordered that Cheryl Kaye Shea should receive the property at 132 Brent Street, Glenorchy, as if it had been the property devised by the will. This decision ensured that Cheryl Kaye Shea received adequate provision for her maintenance and support after her mother's death, as intended by the testatrix.

Orders