Simpson v Simpson

[2011] QSC 196

SUPREME COURT OF QUEENSLAND

CITATION:

Simpson v Simpson & Ors [2011] QSC 196

PARTIES:

NEIL ROBERT SIMPSON, AS EXECUTOR OF THE ESTATE OF MIRIAM GRACE SIMPSON, DECEASED
(applicant)
v
STEPHEN MICHAEL SIMPSON
(first respondent)
ANNETTE JOAN BORCHARDT
(second respondent)
TIMOTHY CLIFTON WHITNEY, A LITIGATION GUARDIAN FOR TAYLOR JAMES SIMPSON KEENE, A MINOR
(third respondent)

FILE NO:

SC No 2877 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

30 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2011

JUDGE:

Peter Lyons J

ORDER:

The Court:

1.    Declares that, upon the proper construction of the will of Miriam Grace Simpson, deceased, dated 1 April 1983, and in the events which have occurred, the First Respondent holds any interest in the estate of the said deceased to which he would have been entitled by reason of Charles Erle Simpson predeceasing the deceased upon constructive trust for the Applicant and the Second Respondent;

2.    Declares that the residuary estate of the said deceased should be paid by the Applicant equally to the Applicant and the Second Respondent;

3.    Orders that the Applicant’s, the Second Respondent’s and the Third Respondent’s costs of this Application be paid from the estate of Miriam Grace Simpson, deceased, on an indemnity basis.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – DESCRIPTION OF LEGATEES AND DEVISEES – ISSUE – where the testatrix provided in her will for disposition of the residue of her estate to such of her children who attained the age of eighteen years – where the testatrix further provided that if one of her children died before his or her interest vested, then the disposition the deceased child would have taken was to pass to such ‘issue’ of the deceased child who attained the age of eighteen – where a child of the testatrix died at the hand of his son (‘the grandchild’) – whether a child of the grandchild was entitled to the share of the estate that the grandchild would have taken but for his criminal conduct.

Succession Act 1981 (Qld), s 33L

Matthews v Williams (1941) 65 CLR 639; [1941] HCA 32
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18

COUNSEL:

R T Whiteford for the applicant

R M Treston for the third respondent

SOLICITORS:

Finemore Walters & Story for the applicant

McCullough Robertson for the third respondent

1. Miriam Grace Simpson (the testatrix) died on 5 August 2010.  She left a will, dividing her estate amongst her three children, with provision for a gift over in the event that any of her children predeceased her.  Her son Charles Simpson died on 25 April 2006, at the hand of his son (and the testatrix’s grandson) Stephen Simpson.  The question in the application is whether Stephen’s son Taylor Keene is conditionally entitled to the share of the testatrix’s estate which would have passed to Charles, had he survived.

The will

1. The will first provided for a specific disposition of a…