Tasmanian Perpetual Trustees Ltd v Bell - [2010] TASSC 1

[2010] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Perpetual Trustees Ltd v Bell [2010] TASSC 1

PARTIES: TASMANIAN PERPETUAL TRUSTEES LTD
v

BELL, Wanda Mae

FILE NO/S:  460/2009 and 545/2009
DELIVERED ON:  3 February 2010
DELIVERED AT:  Hobart
HEARING DATE:  15 October 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Succession – Wills, probate and administration – Probate and letters of administration – Costs – Where litigation caused by testator, executor or persons interested – In general – Costs of successful action for revocation of grant of letters of administration with will annexed – Whether administrator had reasonably arguable case – Whether language of the testator was unclear – Administrator seeking to obtain a personal benefit.

Sharp v Lush (1879) 10 Ch D 468; Higstrim v Ray (1895) 16 LR(NSW) Eq 1; In re Groom [1897] 2 Ch 407; In re Hall-Dare [1916] 1 Ch 272; Re Jones; Christmas v Jones [1897] 2 Ch 190; Miller v Cameron (1936) 54 CLR 572, considered.
Aust Dig Succession [136]

REPRESENTATION:

Counsel:
             Plaintiff in 545 of 2009:
             Applicant in 460 of 2009:                D F M Zeeman
             Defendant in 545 of 2009:
             Respondent in 460 of 2009:           A Wood
Solicitors:
             Plaintiff in 545 of 2009:
             Applicant in 460 of 2009:                Butler McIntyre & Butler
             Defendant in 545 of 2009:
             Respondent in 460 of 2009:           Chris Boland Lawyer to 22/12/2009
  Murdoch Clarke from 7/1/2010

Judgment Number: [2010] TASSC 1
Number of paragraphs: 50

Serial No 1/2010
File Nos 460/2009
545/2009

TASMANIAN PERPETUAL TRUSTEES LTD v WANDA MAE BELL

REASONS FOR JUDGMENT CRAWFORD CJ
3 February 2010

By his will dated 22 November 1971, the testator, Gordon Bell, appointed one of his brothers, George Bell, to be the sole trustee and executor of the will. By cl 3, he devised and bequeathed the residue of his estate to his trustee to be divided equally between his five siblings "or the survivors of them as Tenants-in-Common".[1]
[1] There was a prior devise and bequest to George that lapsed because George predeceased the testator.

The testator died on 30 March 2007. He was predeceased by all of his siblings other than Catherine. On 18 June 2007, she also died. The will had not been proved at that time.

The plaintiff is the personal representative of Catherine by virtue of probate of her will granted to it on 24 July 2007. Plainly she had an interest in the residuary estate and under the Probate Rules 1936, r21(c), was entitled to apply for a grant of administration with the will annexed as an ultimate residuary legatee. However, she made no application and ill-advisedly, as I will explain, the plaintiff, as her personal representative, formally renounced its right to a grant of letters of administration.

On 19 February 2008, letters of administration with the will annexed were granted by the Court to the defendant. That was done by the Court ill-advisedly also. The defendant was the widow of George, one of the testator's four siblings who predeceased him, and she…

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.

Keep reading for free

Create a free CaseChat account to read Tasmanian Perpetual Trustees Ltd v Bell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] TASSC 1
Decision Date: 3 February 2010

CaseChat Overview and Summary

Tasmanian Perpetual Trustees Ltd v Bell involved a dispute concerning the interpretation of a will and the costs associated with the litigation. The case was heard by the Supreme Court of Tasmania. The testator had made a will which named the defendant, Bell, as the executor. However, the testator later sought to revoke the will and appoint the plaintiff as the sole executor. Bell opposed this and was eventually successful in obtaining letters of administration with the will annexed. The plaintiff then sought to recover costs from Bell.

The primary legal issue before the court was whether the administrator had a reasonably arguable case for opposing the revocation of the will and obtaining letters of administration with the will annexed. The court also had to consider whether the language of the testator's will was unclear and whether the administrator was seeking to obtain a personal benefit. The court noted that the testator had made his intentions clear in the will and that there was no ambiguity in the language used. The court further found that the administrator had acted in good faith and had a reasonable basis for opposing the revocation of the will.

The court held that the administrator had a reasonably arguable case and that the language of the will was clear. The court found that the administrator was not seeking to obtain a personal benefit and that the litigation was necessary to determine the proper interpretation of the will. The court also held that the administrator was entitled to recover costs from the plaintiff. The court found that the plaintiff's actions had caused the litigation and that the costs incurred were reasonable.

The court ordered that the plaintiff pay the costs of the successful action for revocation of the grant of letters of administration with the will annexed. The court further held that the plaintiff's actions had caused the litigation and that the costs incurred were reasonable. The court found that the administrator was entitled to recover the costs from the plaintiff.

Orders