The Trust Company Limited v Zdilar

The Trust Company Limited, as trustee for the estate of Ann Mary Ashton, brought an application to the Supreme Court of Queensland for directions in respect of the construction of Ms Ashton’s will, dated 29 September 1998. The will contained a bequest of the testatrix’s “house property” and “substitute house property” to her nephew and niece, the second and third respondents. The testatrix had owned a house at the time of making the will but sold it prior to her death. At the time of her death, the testatrix was living in a retirement village under a 99-year sub-lease. The question arose whether the testatrix had owned the unit in the retirement village at the time of her death, and whether the exit entitlement paid by the retirement village to the estate was payable to the second and third respondents.

The court needed to determine whether the testatrix owned the unit in the retirement village at the time of her death and whether recourse to extrinsic evidence was necessary to determine the testatrix’s intention. The court also needed to determine whether the retirement village was the “substitute house property” bequeathed by the will and whether the exit entitlement was payable to the second and third respondents. The court found that the testatrix had not owned the unit in the retirement village at the time of her death and that recourse to extrinsic evidence was not necessary to determine the testatrix’s intention. The court also found that the retirement village was not the “substitute house property” bequeathed by the will and that the exit entitlement was not payable to the second and third respondents.

The court held that the testatrix had not owned the unit in the retirement village at the time of her death, and that recourse to extrinsic evidence was not necessary to determine the testatrix’s intention. The court found that the ordinary and grammatical meaning of “house property” and “substitute house property” did not include the unit in the retirement village. The court also found that the retirement village was not the “substitute house property” bequeathed by the will and that the exit entitlement was not payable to the second and third respondents. The court ordered that the exit entitlement paid to the deceased’s estate by Tall Trees Rochedale Pty Ltd was not payable to the second and third respondents, and that all parties’ costs of this application be paid out of the deceased’s residuary estate on the indemnity basis.