Underwood v. Underwood - [2007] QSC 256

SUPREME COURT OF QUEENSLAND

CITATION:

Underwood v Underwood [2007] QSC 256

PARTIES:

PETA CHANEL UNDERWOOD
(First Applicant)
DEREK JOHN UNDERWOOD and SCOTT ANDREW UNDERWOOD
(Second Applicant)
v
LOUIS UNDERWOOD AND MARK WEDRAT in their capacity as executors of the estate of the late PETER CHARLES UNDERWOOD
(First Respondents)
GREGORY PETER UNDERWOOD
(Second Respondent)

FILE NO/S:

53 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

19 April 2007

DELIVERED AT:

Cairns

HEARING DATE:

2 March 2007

JUDGE:

Jones J

ORDER:

1. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(j) thereof, the deceased’s one half share (“the deceased’s share”) of each of the properties located at –
(a) 100 Buchan Street, Cairns in the State of Queensland
(b) 125 Hartley Street, Cairns in the State of Queensland
(c) 19-21 Bollard Street, Cairns in the State of Queensland
(d) 23 Bollard Street, Cairns in the State of Queensland

is to pass:
(i) As to one third of the deceased’s share to Louis Underwood and
(ii) As to two thirds of the deceased’s share to Glen Underwood.

2. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(k) thereof the deceased’s one third interest in the business described as “Total Exhibition Rentals” (“the deceased’s interest”) is to pass
(a) As to one half of the deceased’s interest, to Louis Underwood, and
(b) As to one half of the deceased’s interest, to Glen Underwood.

3. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(n) thereof the deceased’s one third interest in the business known as “Underwood Party Hire” (“the deceased’s business interest”) is to pass
(a) As to one half of the deceased’s business interest to Glen Underwood; and
(b) As to one half of the deceased’s business interest to a company to be incorporated by the trustees and executors in accordance with Clause 3(n)(ii) of the said will.

4. The costs of and incidental to the application of each party shall be assessed on an indemnity basis and paid from the residuary estate.

CATCHWORDS:

SUCCESSION – WILLS – Construction of testamentary dispositions – general principles – “armchair rule” – extrinisic evidence.

COUNSEL:

Mr D G Mullins for the applicants
Mr D B Fraser QC with Mr A P Collins for the first respondents
No appearance for second respondent

SOLICITORS:

Gadens Lawyers for the applicants
Williams Graham & Carman for the first respondents

The applicants are three of the four surviving children of Peter Charles Underwood, deceased (hereinafter “the testator”) who died on 9 May 2006 leaving a will which he executed on 17 October 2003. The remaining child is joined as the second respondent but takes no part in the application. The applicants seek declarations…

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 Underwood v. Underwood

Details

AGLC: Underwood v Underwood [2007] QSC 256
Case: [2007] QSC 256
Decision Date: 19 April 2007

CaseChat Overview and Summary

The case of Underwood v Underwood involved a dispute over the interpretation of a will executed by the late Peter Charles Underwood on 17 October 2003. The primary contention was the distribution of Peter's assets, including his half-share in several properties and interests in businesses. The case was heard and decided by the Supreme Court of Queensland.

The central legal issue before the court was the proper construction of specific clauses within Peter's will, particularly Clauses 3(j), 3(k), and 3(n). The dispute hinged on whether certain extrinsic evidence could be considered to clarify the testator's intentions, particularly in light of the "armchair rule," which generally restricts the use of such evidence in interpreting wills. The plaintiffs argued that extrinsic evidence was necessary to understand Peter's intentions, while the defendants maintained that the will was clear and unambiguous on its face.

In delivering the judgment, the court meticulously reviewed the language of the will and the context in which it was written. The court found that the language of the will was unambiguous and that the intentions of the testator were clearly expressed. The court rejected the argument for the admission of extrinsic evidence, adhering to the principle that the will should be interpreted based on its own terms. The court held that the deceased’s half-share in the specified properties and his interests in the businesses were to be distributed as detailed in the respective clauses of the will.

The final orders of the court declared the specific distribution of Peter's assets as per the will, with costs to be assessed on an indemnity basis and paid from the residuary estate. The court's decision upheld the clear expression of the testator's intentions and rejected the introduction of extrinsic evidence.

Orders

Orders of the court

1. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(j) thereof, the deceased’s one half share (“the deceased’s share”) of each of the properties located at –

(a) 100 Buchan Street, Cairns in the State of Queensland

(b) 125 Hartley Street, Cairns in the State of Queensland

(d) 23 Bollard Street, Cairns in the State of Queensland

is to pass:

(i) As to one third of the deceased’s share to Louis Underwood and

(ii) As to two thirds of the deceased’s share to Glen Underwood.

2. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(k) thereof the deceased’s one third interest in the business described as “Total Exhibition Rentals” (“the deceased’s interest”) is to pass

(a) As to one half of the deceased’s interest, to Louis Underwood, and

(b) As to one half of the deceased’s interest, to Glen Underwood.

3. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(n) thereof the deceased’s one third interest in the business known as “Underwood Party Hire” (“the deceased’s business interest”) is to pass

(a) As to one half of the deceased’s business interest to Glen Underwood; and

(b) As to one half of the deceased’s business interest to a company to be incorporated by the trustees and executors in accordance with Clause 3(n)(ii) of the said will.

4. The costs of and incidental to the application of each party shall be assessed on an indemnity basis and paid from the residuary estate.

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:	Underwood v Underwood [2007] QSC 256
PARTIES:	PETA CHANEL UNDERWOOD (First Applicant) DEREK JOHN UNDERWOOD and SCOTT ANDREW UNDERWOOD (Second Applicant) v LOUIS UNDERWOOD AND MARK WEDRAT in their capacity as executors of the estate of the late PETER CHARLES UNDERWOOD (First Respondents) GREGORY PETER UNDERWOOD (Second Respondent)
FILE NO/S:	53 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	19 April 2007
DELIVERED AT:	Cairns
HEARING DATE:	2 March 2007
JUDGE:	Jones J
ORDER:	1. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(j) thereof, the deceased’s one half share (“the deceased’s share”) of each of the properties located at – (a) 100 Buchan Street, Cairns in the State of Queensland (b) 125 Hartley Street, Cairns in the State of Queensland (c) 19-21 Bollard Street, Cairns in the State of Queensland (d) 23 Bollard Street, Cairns in the State of Queensland is to pass: (i) As to one third of the deceased’s share to Louis Underwood and (ii) As to two thirds of the deceased’s share to Glen Underwood. 2. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(k) thereof the deceased’s one third interest in the business described as “Total Exhibition Rentals” (“the deceased’s interest”) is to pass (a) As to one half of the deceased’s interest, to Louis Underwood, and (b) As to one half of the deceased’s interest, to Glen Underwood. 3. It is declared that upon the true construction of the last will of the late Peter Charles Underwood executed 17 October 2003 that pursuant to Clause 3(n) thereof the deceased’s one third interest in the business known as “Underwood Party Hire” (“the deceased’s business interest”) is to pass (a) As to one half of the deceased’s business interest to Glen Underwood; and (b) As to one half of the deceased’s business interest to a company to be incorporated by the trustees and executors in accordance with Clause 3(n)(ii) of the said will. 4. The costs of and incidental to the application of each party shall be assessed on an indemnity basis and paid from the residuary estate.
CATCHWORDS:	SUCCESSION – WILLS – Construction of testamentary dispositions – general principles – “armchair rule” – extrinisic evidence.
COUNSEL:	Mr D G Mullins for the applicants Mr D B Fraser QC with Mr A P Collins for the first respondents No appearance for second respondent
SOLICITORS:	Gadens Lawyers for the applicants Williams Graham & Carman for the first respondents