Verrall v Jackson - [2006] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION:

Verrall v Jackson [2006] QSC 309

PARTIES:

LAURELLE IRENE VERRALL (as executor of the will dated 2002 of SHANE MICHAEL JACKSON deceased)
(plaintiff)
v
PATRICK JOHN HARTLEY JACKSON
(defendant)
and
SCOTT ANDREW DAY
(intervener)

FILE NO:

BS 6974/04

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

23 October 2006

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

6, 7, 8, 15 June 2005, 18 November 2005, 17, 18 July 2006

JUDGE:

Wilson J

ORDER:

The orders are:

i)          on the claim, an order that subject to the formal requirements of the Registrar, a grant of probate of the will of Shane Michael Jackson dated 2002 issue to Laurelle Irene Verrall, the executrix named in the said will;

ii)         on the counterclaim, declarations –

(a)   that in the events that have happened the gift of the residue of the estate to the plaintiff in clause 5 of the will of Shane Michael Jackson dated 2002 is void;

(b) that in the events that have happened and on the proper construction of the will of Shane Michael Jackson dated 2002 there is an intestacy as to the residue of the estate.

The orders as to costs are:

i)          That the plaintiff executrix’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the indemnity basis;

ii)         That the defendant’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis;

iii)        That the intervener’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis.

CATCHWORDS:

WILLS, PROBATE AND ADMINISTRATION – TESTAMENTARY INSTRUMENTS – WHERE THERE ARE SEVERAL INSTRUMENTS – GRANT OF SINGLE PROBATE – PARTICULAR CASES – where there were two wills bearing the signature of the testator – where the beneficiary under the later will (the testator’s de facto partner and the plaintiff in this matter) filled out that will in her own handwriting – whether the plaintiff did so after the testator’s death, or on the testator’s instruction while he was alive – whether probate should be granted of the later will

WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF TESTATOR’S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL – where the gift to the plaintiff was void because she was an attesting witness to the will – where there is a gift over in the event of the plaintiff predeceasing the testator – whether the rule in Jones v Westcomb applies so as to activate the gift over in the present circumstances – whether the failed gift passes according to the intestacy rules

Succession Act 1981 (Qld) Reprint 5C (revised edition) s 15, s 35, schedule 2

Bool v Bool [1941] St R Qd 26, cited
In the Will of Rowney Unreported, QSC, Cooper J, 19 March 1992, considered
Jones v Westcomb (1711) Prec Ch 316;

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 Verrall v Jackson

Details

AGLC: Verrall v Jackson [2006] QSC 309
Case: [2006] QSC 309
Decision Date: 23 October 2006

CaseChat Overview and Summary

The case of Verrall v Jackson involved the interpretation and application of a testator's will, specifically whether the later of two wills should be granted probate. The parties in dispute were Laurelle Irene Verrall, the de facto partner of the deceased, Shane Michael Jackson, and the executors of Jackson's estate, who were the defendants in this case. The legal issue at the heart of the dispute was whether the later will, which named Verrall as the beneficiary, was completed by her after Jackson's death or while he was still alive, and if it should be granted probate.

The court had to determine whether Verrall filled out the later will on her own after Jackson's death or whether she did so while he was alive and on his instruction. Furthermore, the court needed to decide if the gift to Verrall was void because she was an attesting witness to the will, and if a gift over would apply in the event she predeceased Jackson. The court also had to consider whether the rule in Jones v Westcomb would activate the gift over and if the failed gift would pass according to the intestacy rules.

The court held that the later will should be granted probate to Verrall, but that the gift to her was void because she was an attesting witness. The court further found that the gift over did not apply, and that there was an intestacy as to the residue of the estate. Consequently, the court ordered that a grant of probate of the later will be issued to Verrall, subject to the formal requirements of the Registrar. The court also declared that the gift to Verrall was void, and that there was an intestacy as to the residue of the estate. The orders as to costs were that the plaintiff executrix’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the indemnity basis, that the defendant’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis, and that the intervener’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis.

Orders

Orders of the court

The orders are:

i) on the claim, an order that subject to the formal requirements of the Registrar, a grant of probate of the will of Shane Michael Jackson dated 2002 issue to Laurelle Irene Verrall, the executrix named in the said will;

ii) on the counterclaim, declarations –

(a) that in the events that have happened the gift of the residue of the estate to the plaintiff in clause 5 of the will of Shane Michael Jackson dated 2002 is void;

(b) that in the events that have happened and on the proper construction of the will of Shane Michael Jackson dated 2002 there is an intestacy as to the residue of the estate.

The orders as to costs are:

i) That the plaintiff executrix’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the indemnity basis;

ii) That the defendant’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis;

iii) That the intervener’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard 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:	Verrall v Jackson [2006] QSC 309
PARTIES:	LAURELLE IRENE VERRALL (as executor of the will dated 2002 of SHANE MICHAEL JACKSON deceased) (plaintiff) v PATRICK JOHN HARTLEY JACKSON (defendant) and SCOTT ANDREW DAY (intervener)
FILE NO:	BS 6974/04
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	23 October 2006
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	6, 7, 8, 15 June 2005, 18 November 2005, 17, 18 July 2006
JUDGE:	Wilson J
ORDER:	The orders are: i) on the claim, an order that subject to the formal requirements of the Registrar, a grant of probate of the will of Shane Michael Jackson dated 2002 issue to Laurelle Irene Verrall, the executrix named in the said will; ii) on the counterclaim, declarations – (a) that in the events that have happened the gift of the residue of the estate to the plaintiff in clause 5 of the will of Shane Michael Jackson dated 2002 is void; (b) that in the events that have happened and on the proper construction of the will of Shane Michael Jackson dated 2002 there is an intestacy as to the residue of the estate. The orders as to costs are: i) That the plaintiff executrix’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the indemnity basis; ii) That the defendant’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis; iii) That the intervener’s costs of and incidental to the claim and the counterclaim be paid out of the estate on the standard basis.
CATCHWORDS:	WILLS, PROBATE AND ADMINISTRATION – TESTAMENTARY INSTRUMENTS – WHERE THERE ARE SEVERAL INSTRUMENTS – GRANT OF SINGLE PROBATE – PARTICULAR CASES – where there were two wills bearing the signature of the testator – where the beneficiary under the later will (the testator’s de facto partner and the plaintiff in this matter) filled out that will in her own handwriting – whether the plaintiff did so after the testator’s death, or on the testator’s instruction while he was alive – whether probate should be granted of the later will WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF TESTATOR’S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL – where the gift to the plaintiff was void because she was an attesting witness to the will – where there is a gift over in the event of the plaintiff predeceasing the testator – whether the rule in Jones v Westcomb applies so as to activate the gift over in the present circumstances – whether the failed gift passes according to the intestacy rules Succession Act 1981 (Qld) Reprint 5C (revised edition) s 15, s 35, schedule 2 Bool v Bool [1941] St R Qd 26, cited In the Will of Rowney Unreported, QSC, Cooper J, 19 March 1992, considered Jones v Westcomb (1711) Prec Ch 316;