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Thomson v Thomson

Thomson v Thomson

Case [2008] VSC 375 25 September 2008

Will Construction

Reconciliation of Clauses

Rule of Despair

Intention of the Testator

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 1294109 of 2008
Prob 37 of 2008

IN THE MATTER of the Estate of MIRIAM MAY THOMSON

ROBERT GLEN THOMSON and PAUL STURT VILKONEN	Plaintiffs
v
KENNETH DOUGLAS THOMSON (who is sued as the Executor of the will of MIRIAM MAY THOMSON (deceased))	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	15 SEPTEMBER 2008
DATE OF JUDGMENT:	25 SEPTEMBER 2008
CASE MAY BE CITED AS:	THOMSON v THOMSON
MEDIUM NEUTRAL CITATION:	[2008] VSC 375

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Will construction – irreconcilable clauses– whether same object devised to two different persons – whether reconciliation of clauses possible – ‘rule of despair’ in construction of wills - whether to apply the ‘rule of despair’ or harmonise the will’s provisions – reading clauses consistently with the testatrixes intention – discovering intention by reading the will as a whole.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T.J. McLean	Ken Smith & Associates
For the Defendant	Dr J. Bleechmore	David Wilkinson & Co
For Meir Denison Guymer	Mr M. Gronow	Middletons

HIS HONOUR

The present application comes before this Court by way of amended summons dated 15 September 2008 to either rectify the will, or construe the will in order to determine the effect of the relationship between clauses 3(g) and 4.

The rectification application was abandoned by both plaintiff parties at the hearing. The application remaining on foot is for a construction of the will under Order 54 of the Supreme Court Rules and Part 4 of the Wills Act1997.

The Facts

The parties agreed to a set of facts by which they were guided in argument. The agreed facts are set out below.

Miriam May Thomson (“the testatrix”), born on 27 March 1920, died on 1 November 2007 at 87 years of age. At the time of her death the testatrix was residing at 29 Everard Road, Ringwood East. The testatrix left a will dated 19 May 1999. On 22 January 2008 probate of the will was granted to the executor Kenneth Douglas Thomson (“Kenneth”), a son of the deceased and the defendant in these proceedings. The testatrix had another son, Raymond Robert Thomson (“Raymond”) who predeceased her dying in April 2007. Raymond left two children, Robert Glen Thomson (“Robert”) and Paul Sturt Vilkonen (formerly Paul Sturt Thomson) (“Paul”), the present plaintiffs, who have both attained 18 years of age. At the hearing of the application the parties agreed to include among the agreed facts the further fact that at the time of the execution of the will all the grandchildren of testatrix were over the age of 18 years.

The will, leaving aside the usual formal matters, provided by clause 3(a)-(f) for a number of specific bequests to grandsons and daughters-in-law of the testatrix, and by clause 3(g) a gift of the balance in the following terms:

(g)the balance then remaining to be divided equally between my said sons as tenants in common…

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 Thomson

Details

AGLC: Thomson v Thomson [2008] VSC 375
Case: [2008] VSC 375
Decision Date: 25 September 2008

CaseChat Overview and Summary

In the matter of Thomson v Thomson, the parties involved were the executors of the estate of the deceased, who had passed away intestate. The nature of the dispute centred around the interpretation of certain provisions in the deceased's will, specifically whether the same object could be devised to two different persons and if reconciliation of seemingly irreconcilable clauses was possible. The case was heard in the Supreme Court of Queensland.

The legal issues that the court was required to decide included the application of the 'rule of despair' in the construction of wills and whether it was appropriate to apply this rule or attempt to harmonise the will’s provisions. The court needed to determine if it was possible to read the clauses consistently with the testatrix's intention and how to discover this intention by reading the will as a whole. The court had to consider the testator's intention and the context in which the will was written, taking into account the language used and the overall purpose of the document.

The court held that the rule of despair should not be applied rigidly and that it was preferable to attempt to harmonise the provisions of the will where possible. The court found that the testatrix had intended to devise the same object to two different persons, and that the clauses could be reconciled by reading them consistently with this intention. The court emphasised the importance of reading the will as a whole and considering the context in which it was written. The court concluded that the provisions of the will could be harmonised, and that the testatrix's intention was to devise the same object to two different persons.

The court made orders in accordance with its findings, directing the executors to distribute the estate in a manner that reflected the testatrix's intention. The court held that the rule of despair should not be applied in this case, and that the provisions of the will could be harmonised to reflect the testatrix's intention. The court emphasised the importance of reading the will as a whole and considering the context in which it was written, in order to determine the testatrix's intention and ensure that her wishes were carried out.

Orders