JAMES ROBERT THOMAS AS EXECUTOR OF THE WILL OF NANCY LOUISE WILSON (DEC) -v- STRICKLAND & ORS [2001] WASC 156

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 156
Case No:	CIV:1149/2001	Heard:	29 MAY 2001
Coram:	McKECHNIE J	Delivered:	19/06/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	JAMES ROBERT THOMAS AS EXECUTOR OF THE WILL OF NANCY LOUISE WILSON (DEC) MARGARET ANNE STRICKLAND LORNA MYRTLE THOMAS IRENE MAY JAMIESON LYNDA JAMIESON JENNIFER LOUISE BIFFIN WENDY NEWTON BURNS HERVEY NEWTON JAMES HIBERT NEWTON WARWICK NEWTON LEONIE STEAD
Catchwords:	Wills Construction presumption against intestacy Intention of testator No new principles
Legislation:	Nil
Case References:	In re Harrison, Turner v Hellard [1884] 30 Ch D 390 Fell v Fell (1922) 31 CLR 268 Hendry v Perpetual Executors & Trustees Association of Australia Ltd (1961) 106 CLR 256 McNamara v Fleming, re Fleming deceased [1963] VR 17 Minehan v Minehan [1965] WAR 196 O'Connor & Bruyn v Perpetual Trustee Co Ltd (1974) 5 ALR 47 Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 Perrin v Morgan [1943] AC 399 Reardon v Mewburn, unreported; SCt of WA (White J); Library No 930049; 9 February 1993 Watson v Ralph (1982) 148 CLR 646

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JAMES ROBERT THOMAS AS EXECUTOR OF THE WILL OF NANCY LOUISE WILSON (DEC) -v- STRICKLAND & ORS [2001] WASC 156 CORAM : McKECHNIE J HEARD : 29 MAY 2001 DELIVERED : 19 JUNE 2001 FILE NO/S : CIV 1149 of 2001 BETWEEN : JAMES ROBERT THOMAS AS EXECUTOR OF THE WILL OF NANCY LOUISE WILSON (DEC)

Plaintiff

AND

MARGARET ANNE STRICKLAND

First Defendant

LORNA MYRTLE THOMAS

Second Defendant

IRENE MAY JAMIESON

Third Defendant

LYNDA JAMIESON

Fourth Defendant

JENNIFER LOUISE BIFFIN

Fifth Defendant

WENDY NEWTON

Sixth Defendant

BURNS HERVEY NEWTON

Seventh Defendant

(Page 2)

JAMES HIBERT NEWTON

Eighth Defendant

WARWICK NEWTON

Ninth Defendant

LEONIE STEAD

Tenth Defendant

Catchwords:

Wills - Construction presumption against intestacy - Intention of testator - No new principles

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff : Mr J J Hockley

First Defendant : Mr H O Moser

Second Defendant : No appearance

Third Defendant : Mr M J Rogers

Fourth Defendant : Mr M J Rogers

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Eighth Defendant : No appearance

Ninth Defendant : No appearance

Tenth Defendant : Mr M J Rogers

(Page 3)

Solicitors:

Plaintiff : Yarwood & Associates

First Defendant : Colin Garber & Associates

Second Defendant : No appearance

Third Defendant : Michael Rogers & Associates

Fourth Defendant : Michael Rogers & Associates

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Eighth Defendant : No appearance

Ninth Defendant : No appearance

Tenth Defendant : Michael Rogers & Associates

Case(s) referred to in judgment(s):

In re Harrison, Turner v Hellard [1884] 30 Ch D 390

Case(s) also cited:

Fell v…

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 Thomas v Strickland

Details

AGLC: Thomas v Strickland [2001] WASC 156
Case: [2001] WASC 156
Decision Date

CaseChat Overview and Summary

The case of Thomas v Strickland is an application by the executor of a will for a declaration as to the interpretation of certain clauses within the will. The testatrix, Nancy Louise Wilson, died on 14 December 1998, having made a will on 9 August 1998. The issue in the case revolves around the construction of the will and the phrase "all superannuation funds available and any other monies available from bank accounts and/or any other accounts," given that Miss Wilson had no superannuation funds strictly so called. The executor's application seeks orders declaring that the deceased intended the proceeds of her two AMP Guaranteed Annuity Policies to be distributed according to specific paragraphs of her will and that the word "superannuation" should be read to include the deceased's two AMP Guaranteed Annuity Policies.

The court found that the testatrix intended to dispose of her entire estate, including the proceeds of her AMP policies, in accordance with her will. The court determined that Miss Wilson referred to her AMP policies as her "super" or "super fund" and that when she referred to "superannuation funds" she was in fact referring to the AMP policies. The court also found that the will should be construed in a manner that avoids intestacy, aligning with the testatrix's intention to distribute her estate as specified in the will. The court ruled that the costs of the application be paid from the deceased's estate.

In conclusion, the court granted the executor's application, declaring that the deceased intended the proceeds of her two AMP Guaranteed Annuity policies to be distributed according to the will and that the word "superannuation" should be read to include the deceased's two AMP Guaranteed Annuity Policies. The costs of the application were ordered to be paid from the deceased's estate.

Orders