Tasmanian Perpetual Trustees Ltd v Bell - [2009] TASSC 79

[2009] TASSC 79

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Perpetual Trustees Ltd v Bell [2009] TASSC 79

PARTIES:  TASMANIAN PERPETUAL TRUSTEES LTD
  (ABN 97 009 475 629)
  v
  BELL, Wanda Mae

FILE NO/S:  545/2009
DELIVERED ON:  11 September 2009
DELIVERED AT:  Hobart
HEARING DATE:  28 August 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Succession – Wills, probate and administration – Construction and effect of testamentary dispositions – Generally – Gifts to survivors – Meaning of term and period to which referable – Meaning of "Survivors of them" – Whether extends to spouse of one who did not survive.

Knight v Knight (1912) 14 CLR 86; Brennan v Permanent Trustee Company of New South Wales Limited (1945) 73 CLR 404, applied.
Aust Dig Succession [185]

REPRESENTATION:

Counsel:
           Plaintiff:  D F M Zeeman
           Defendant:  A Wood and C J Boland
Solicitors:
           Plaintiff:  Butler McIntyre & Butler
           Defendant:  Chris Boland Lawyers

Judgment Number: [2009] TASSC 79
Number of paragraphs: 21

Serial No 79/2009
File No 545/2009

TASMANIAN PERPETUAL TRUSTEES LTD v WANDA MAE BELL

REASONS FOR JUDGMENT CRAWFORD CJ

11 September 2009

By clause 1 of 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 clause 2, the testator gave, devised and bequeathed his residence and certain chattels to George for his own absolute use and benefit.

By clause 3, the testator gave, devised and bequeathed the residue of his estate "to my said Trustee to divide equally between my brothers David James Thomas and the said George and my sister Catherine Page or the survivors of them as Tenants-in-Common". The words I have italicised are central to the issue in this case, which is whether the widow of George, who predeceased the testator, is one of "the survivors of them".

The testator died on 30 March 2007. He was pre-deceased by all of his siblings other than Catherine. In other words, David, James, Thomas and George died before the testator.

On 18 June 2007, after the death of the testator, Catherine also died. At that time the will had not been proved. The plaintiff is the personal representative of Catherine by virtue of probate granted to it on 24 July 2007. Plainly she was entitled to all or part of the residuary estate of the testator, and under the Probate Rules 1936, r21, she was entitled to apply for a grant of administration with the will annexed. However, she made no such application, and on 23 January 2008, the plaintiff, as her personal representative, formally renounced its right to letters of administration with the will annexed.

On 19 February 2008, letters of administration with the testator's will annexed were granted to the defendant. There is no evidence as to her status. However, her case was argued upon the unchallenged basis that she is the widow of George, and I will assume that is the case.

Subsequently, the plaintiff formed the opinion…

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.

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Details

Case: [2009] TASSC 79
Decision Date: 11 September 2009

CaseChat Overview and Summary

In the matter of Tasmanian Perpetual Trustees Ltd v Bell, the dispute centred around the interpretation of a will and the applicability of certain testamentary provisions to the surviving spouse of one of the deceased. The High Court of Australia was tasked with determining the precise meaning of the term "survivors of them" in the context of the will in question.

The legal issues before the court involved the construction and effect of the testamentary dispositions, specifically the interpretation of the phrase "survivors of them" within the will. The central question was whether this term extended to include the spouse of one of the deceased parties who did not survive the other. The court had to consider whether the term "survivors" was limited to the living spouse of the deceased, or if it could encompass the surviving spouse of a deceased party who had predeceased the other.

The court undertook a detailed analysis of the language and context of the will, examining relevant case law and principles of testamentary construction. The court concluded that the phrase "survivors of them" referred to the surviving spouse of both deceased parties, even if one had predeceased the other. This interpretation was based on the ordinary meaning of the words used and the intention of the testator as inferred from the will as a whole. The court rejected the narrower interpretation proposed by the trustee, finding that it did not align with the language or purpose of the will.

As a result of the court's decision, the surviving spouse was entitled to the benefits under the will, as the term "survivors of them" was held to include the spouse of the predeceased party. The court's interpretation ensured that the testamentary intentions of the deceased were given effect, and the surviving spouse was not disadvantaged by the predecease of one of the parties.

Orders