Thomson v Down - [2012] QSC 171

SUPREME COURT OF QUEENSLAND

CITATION:

Thomson & Ors v Down & Ors [2012] QSC 171

PARTIES:

HELEN DORIS KATHLEEN THOMSON and SHIRLEY ANN SOMMER as Executrixes of the Estate of GILBERT JAMES DOWN deceased
(applicants)
v
KENNETH GILBERT DOWN
(first respondent)
and
GEOFFREY PHILLIP DOWN
(second respondent)
and
RAYMOND JAMES DOWN
(third respondent)
and
HELEN DORIS KATHLEEN THOMSON
(fourth respondent)
and
SHIRLEY ANN SOMMER
(fifth respondent)
and
REBECCA JAN DOWN (by her litigation guardian CORRINNE JANE WRIGHT)
(sixth respondent)
and
LEE MUELLER
(seventh respondent)
and
KERRY HYDE
(eighth respondent)
and
GLENN WRIGHT
(ninth respondent)

FILE NO/S:

3619 of 2012

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2012

JUDGE:

Dalton J

ORDER:

I declare that on the proper construction of the will of Gilbert James Down dated 17 December 1999 the will:

(a) directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and

(b) upon the death of Rebecca Jan Down to hold that property on trust for Kenneth Gilbert Down, Geoffrey Phillip Down, Raymond James Down, Helen Doris Kathleen Thomson and Shirley Ann Sommer.

I order that the costs of each party to this application be paid from the estate of Gilbert James Down on an indemnity basis.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – PARTICULAR WORDS – application for a declaration as to the proper construction of a will – where the testator entered into a second marriage approximately three months before making the will that is the subject of the application – whether the phrase ‘all my children’ in the testator’s will includes the three adult children of his second wife

Williams on Wills, Vol 1, (8^th ed, 2002) Butterworths, London
Estate of Jack Alexander Warren [2001] NSWSC 104

COUNSEL:

C S Harding for the applicant
B S Dulley for the sixth respondent
K Hyde appeared on her own behalf and on behalf of the seventh respondent
G Wright appeared on his own behalf

SOLICITORS:

Butler McDermott Lawyers for the applicant
Bruce Dulley Family Lawyers as town agents for Griffiths Parry Solicitors for the sixth respondent
K Hyde appeared on her own behalf and on behalf of the seventh respondent
G Wright appeared on his own behalf

This is an application for a declaration as to the proper construction of the last will and testament of Gilbert James Down who died on 19 May 2010, leaving a will dated 17 December 1999.

Gilbert Down died on 19 May 2010. During his lifetime he had been married twice. His first wife and he had six children who are the first to sixth respondents. The sixth respondent has Down syndrome. After his first wife died, Gilbert Down married again in October 1999, that is, around three months before making the will which is the subject of this application.…

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 Thomson v Down

Details

AGLC: Thomson v Down [2012] QSC 171
Case: [2012] QSC 171
Decision Date: 22 June 2012

CaseChat Overview and Summary

The case of Thomson v Down involves an application for a declaration as to the proper construction of the will of the deceased, Gilbert James Down. The applicant, Helen Doris Kathleen Thomson, seeks clarification on whether the phrase ‘all my children’ in the will includes the three adult children of the testator’s second wife, Rebecca Jan Down. The dispute revolves around the interpretation of this phrase and its impact on the distribution of the testator's estate.

The central legal issue before the court was the interpretation of the phrase ‘all my children’ within the context of the will. The court needed to determine whether this phrase includes the adult children of the testator’s second wife, thereby affecting the distribution of the estate among the beneficiaries. The court also had to consider the testator's intent and the circumstances surrounding the creation of the will, particularly the timing of the testator's second marriage.

The court held that the phrase ‘all my children’ in the will should be interpreted in the context of the testator's intent at the time the will was made. Given that the testator's second marriage occurred approximately three months before the will was executed, the court concluded that the testator's intent was to include the children of this second marriage. Therefore, the court declared that the will directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and upon her death, to hold that property on trust for the specified beneficiaries, including the three adult children of the testator’s second wife.

The court ordered that the costs of the application be paid from the estate of Gilbert James Down on an indemnity basis. This decision clarifies the distribution of the testator's estate and ensures that the testator's intent, as expressed in the will, is faithfully executed.

Orders

Orders of the court

I declare that on the proper construction of the will of Gilbert James Down dated 17 December 1999 the will:

(a) directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and

(b) upon the death of Rebecca Jan Down to hold that property on trust for Kenneth Gilbert Down, Geoffrey Phillip Down, Raymond James Down, Helen Doris Kathleen Thomson and Shirley Ann Sommer.

I order that the costs of each party to this application be paid from the estate of Gilbert James Down on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thomson & Ors v Down & Ors [2012] QSC 171
PARTIES:	HELEN DORIS KATHLEEN THOMSON and SHIRLEY ANN SOMMER as Executrixes of the Estate of GILBERT JAMES DOWN deceased (applicants) v KENNETH GILBERT DOWN (first respondent) and GEOFFREY PHILLIP DOWN (second respondent) and RAYMOND JAMES DOWN (third respondent) and HELEN DORIS KATHLEEN THOMSON (fourth respondent) and SHIRLEY ANN SOMMER (fifth respondent) and REBECCA JAN DOWN (by her litigation guardian CORRINNE JANE WRIGHT) (sixth respondent) and LEE MUELLER (seventh respondent) and KERRY HYDE (eighth respondent) and GLENN WRIGHT (ninth respondent)
FILE NO/S:	3619 of 2012
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2012
JUDGE:	Dalton J
ORDER:	I declare that on the proper construction of the will of Gilbert James Down dated 17 December 1999 the will: (a) directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and (b) upon the death of Rebecca Jan Down to hold that property on trust for Kenneth Gilbert Down, Geoffrey Phillip Down, Raymond James Down, Helen Doris Kathleen Thomson and Shirley Ann Sommer. I order that the costs of each party to this application be paid from the estate of Gilbert James Down on an indemnity basis.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – PARTICULAR WORDS – application for a declaration as to the proper construction of a will – where the testator entered into a second marriage approximately three months before making the will that is the subject of the application – whether the phrase ‘all my children’ in the testator’s will includes the three adult children of his second wife Williams on Wills, Vol 1, (8^th ed, 2002) Butterworths, London Estate of Jack Alexander Warren [2001] NSWSC 104
COUNSEL:	C S Harding for the applicant B S Dulley for the sixth respondent K Hyde appeared on her own behalf and on behalf of the seventh respondent G Wright appeared on his own behalf
SOLICITORS:	Butler McDermott Lawyers for the applicant Bruce Dulley Family Lawyers as town agents for Griffiths Parry Solicitors for the sixth respondent K Hyde appeared on her own behalf and on behalf of the seventh respondent G Wright appeared on his own behalf