Trust Company Ltd & Anor v Oates - [2009] QSC 282

[2009] QSC 282

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

No 9197 of 2009

TRUST COMPANY LIMITED (ACN 004 027 749)	Applicant
and
MAUREEN ELIZABETH GILBY	Applicant

and

VALARIE JOY OATES Respondent

and

JAMES CLIFFORD GILBY Respondent

and

KEITH ALAN GILBY Respondent

and

PETER JOHN GILBY Respondent

and

BARBARA JOY ANN PIERCE Respondent

and

NOEL PIERCE Deceased

BRISBANE

..DATE 02/09/2009

ORDER

HER HONOUR: This is an application by Trust Company Limited and Maureen Gilby to obtain orders pursuant to section 18 of the Succession Act 1981, that a page entitled 'Trust Use Only Additional Notes', including the handwriting on the reverse of that page that is Exhibit CC3 to the affidavit of Carmelo Cacciola filed on 21 August 2009, forms the will of the late Noel Pierce.

Trust Company Limited and Ms Gilby are shown as executors in that handwritten note, and it is on that basis that they have made this application. The application was served on the sister of the deceased, Ms Valarie Oates, the niece of the deceased, Ms Barbara Pierce and Mr Keith Gilby, Mr Peter Gilby and Mr James Gilby.

The latter three persons are the brothers of Ms Maureen Gilby. Ms Maureen Gilby and her brothers are the children of Margaret Gilby, who was Mr Pierce's de facto partner for many years. Mr Pierce had made a will with Trust Company of Australia in 2003 in which he appointed Trust Company of Australia Limited and Margaret Gilby as his executors.

Under that will he gave $5,000 to Ms Oates, $5,000 to Ms Pierce and the rest and residue of his estate to Ms Margaret Gilby. If she did not survive, then the residue went to Ms Maureen Gilby, and if Ms Maureen Gilby did not survive, it went to her brother, Mr James Gilby. Ms Margaret Gilby died in August 2008.

On Thursday 25 February 2009 Mr Pierce contacted Mr Cacciola, an employee of Trust Company, and said that he was pretty crook, going to hospital next week and wanted to make a new will. Mr Cacciola went to Mr Pierce's home on 26 February 2009 and took instructions for a new will. Mr Cacciola made notes of Mr Pierce's instructions. They are Exhibit CC1 to the affidavit of Mr Cacciola that was filed on 21 August 2009. Those handwritten original notes form the exhibit and are notated that they were read to Mr Pierce.

Mr Cacciola then transcribed those instructions onto page 9 of a document that he was provided with by his employer that is a printed document that is called 'Estate Planning Fact Finder'. The printed document shows Mr Pierce's name on the front as the client and has Mr Cacciola's signature on the front page.

The document has a series of headings and questions that have been completed, including asset details, bank accounts and various instructions. Page 9 of that document has been taken out of CC1 and is in fact a separate exhibit to Mr Cacciola's affidavit filed…

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.

Keep reading for free

Create a free CaseChat account to read Trust Company Ltd & Anor v Oates and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] QSC 282
Decision Date: 02/09/2009

CaseChat Overview and Summary

Trust Company Limited and Maureen Elizabeth Gilby applied for an order under section 18 of the Succession Act 1981 that a page of handwritten notes, including additional notes on the reverse, forms the will of the deceased, Noel Pierce. The application was made on the basis that Trust Company Limited and Ms Gilby were named as executors in the notes. The application was served on the deceased's sister, niece, and three brothers of Ms Gilby. The deceased had made a will in 2003, appointing Trust Company of Australia Limited and Margaret Gilby as executors, and leaving $5,000 to Ms Oates, $5,000 to Ms Pierce, and the residue to Ms Gilby, with alternate beneficiaries in the event of her predecease. Margaret Gilby died in August 2008. On 26 February 2009, the deceased instructed Mr Cacciola, an employee of Trust Company, to make a new will. Mr Cacciola took notes of the deceased's instructions and later transcribed them onto a document called 'Estate Planning Fact Finder'. The instructions were to appoint Trust Company and Ms Gilby as executors, grant Ms Gilby a right to reside in the deceased's house, sell the house upon her vacating and divide the sale proceeds between her and her three brothers, and leave the residue to Ms Gilby. The deceased signed a disclosure statement attached to the document. The deceased intended to execute the will before his death on 2 March 2009, but he died before the will was executed. The deceased also intended to give $5,000 to Ms Oates and Ms Pierce before his death. The court found that there was a document that recorded the deceased's testamentary intentions, and that the deceased intended the document to be his will. The court granted the application and ordered that the handwritten notes form the will of the deceased. The court also exhorted the Gilby family members to consider the deceased's intention to make a gift of $5,000 to each of Ms Oates and Ms Pierce.

Orders