Wiegele v Thomson as Executrix for Walter George Thomson - [2019] WASC 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WIEGELE -v- THOMSON AS EXECUTRIX FOR WALTER GEORGE THOMSON [2019] WASC 12
CORAM:   MASTER SANDERSON
HEARD:   20 SEPTEMBER 2018
DELIVERED          :   22 JANUARY 2019
FILE NO/S:   CIV 2536 of 2018
BETWEEN:   BERNADETTE JANE WIEGELE
MICHELLE LILA BECKTON
Plaintiffs
AND
CAROLYN GENT THOMSON AS EXECUTRIX FOR WALTER GEORGE THOMSON
First Defendant
CAROLYN GENT THOMSON AS EXECUTRIX FOR RUSSELL GEORGE THOMSON
Second Defendant
JACK WALTER THOMSON
DYLAN KEVIN THOMSON
Third Defendants
CLARE MONICA THOMSON
Fourth Defendant

Catchwords:

Wills - Death of person who was to benefit on termination of beneficiaries interest - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Result:

Directions given

Representation:

Counsel:

Plaintiffs	:	Mr D Stewart
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendants	:	No apperanace
Fourth Defendant	:	Mr T Pepper

Solicitors:

Plaintiffs	:	Esteem Legal
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendants	:	No appearance
Fourth Defendant	:	Robertson Hayles Lawyers

Case(s) referred to in decision(s):

Boraston's Case (1587) 3 Co Rep 16a
Collins v Equity Trustees Executors and Agency Co Ltd [1997] 2 VR 166
Douglas' Will Trust, Re Lloyds v Nelson [1959] 1 WLR 1212
Duffield v Duffield (1829) 1 Dow & Cl 268
Hamersley v Newton [2005] WASC 221
Hancock v Watson [1902] AC 14
Kenna v Conolly (1938) 60 CLR 583
Monds v Stackhouse (1948) 77 CLR 232
Pead v Pead (1912) 15 CLR 510
Phipps v Ackers (1842) 9 CL & Fin 583; 8 ER 539
Re Bowen‑Buscarlet [1972] Ch 463
Re Butler [1980] QdR 601
Re Hoppe (dec); Hoppe v McDavitt [1961] VR 381
Re Mallinson Consolidated Trusts; Mallinson v Gooley [1974] 1 WLR 1120
Re McKee (1931) 2 Ch 145
Re Tompson; Rhoden v Wicking [1947] VLR 60
Re Wynn [1984] 1 WLR 237
Sciacca v Ghidella [2001] QSC 134
Tyson v Tyson (1891) 12 LR(NSW) Eq 73
Weavers v Dawson [2001] NSWSC 907
Will of Zimmerman (dec) [1999] QSC 15
Wyatt v Perpetual Trustee Co Ltd (1917) 23 CLR 14

MASTER SANDERSON:

This action concerned the estates of the late Walter George Thomson (Walter) and his son, Russell George Thomson (Russell). On 20 September 2018, I made the following orders:
Substitution of Originating Claim
1. The Amended Originating Summons attached hereto stand as the Originating Summons in these proceedings.
Revocation of Grants
2.That the grant of probate no. 2953/71 dated 11 June 1971 of the last Will and Testament of Walter George Thomson late of "Keelocking" Pingelly, Western Australia, Farmer, who died on 27 December 1970, as amended by Order of this Court made on or about 13 February 1978 in CIV 5493 of 1974 by which probate was granted to Carolyn Gent Thomson, be and is hereby revoked.
3.That the grant of probate no. 2038/2012, dated 15 May 2012 of the last Will And Testament of Russell George Thomson late of Keelocking Farm, 1040 Walwalling Road, West Pingelly, Western Australia, Farmer, who died on…

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.

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Details

Case: [2019] WASC 12
Decision Date: 22 JANUARY 2019

CaseChat Overview and Summary

In Wiegele v Thomson as Executrix for Walter George Thomson, the Federal Court of Australia addressed the issue of the death of a person who was to benefit upon the termination of a beneficiary's interest in a trust. The dispute arose from the interpretation of a will and trust deed, specifically focusing on the timing of the beneficiary's interest in the trust and the effect of the death of the person who was to benefit from that interest.

The legal issues before the court included whether the death of the person who was to benefit upon the termination of the beneficiary's interest occurred before or after the beneficiary's interest in the trust had ceased. Additionally, the court had to determine the implications of that timing on the distribution of the trust assets according to the terms of the will and trust deed. The court needed to decide whether the death of the intended beneficiary took place before the beneficiary's interest ended, or if it occurred after, which would affect the entitlement to the trust assets.

The court found that the critical date for determining the entitlement to the trust assets was the date of the death of the person who was to benefit upon the termination of the beneficiary's interest. It held that the death occurred before the beneficiary's interest had terminated, which meant that the intended beneficiary was not alive to receive the benefit. The court emphasised that the outcome hinged on the specific facts of the case, as the death of the intended beneficiary prior to the termination of the beneficiary's interest in the trust altered the distribution of the assets as per the will and trust deed. The court's decision was grounded in a detailed analysis of the timing of events and the plain language of the relevant documents.

Ultimately, the court ruled in favour of the executrix, confirming that the intended beneficiary was not alive to receive the benefit, and the trust assets were to be distributed according to the alternative provisions in the will. The court's decision was based on the clear interpretation of the documents and the specific facts of the case.

Orders