SUPREME COURT OF QUEENSLAND
CITATION:
Woodgate v Tanks & Ors [2013] QSC 204
PARTIES:
NEIL TREVOR WOODGATE (as executor of the estate of WILLIAM BURNETT BOISEN, deceased)
(applicant)
v
ANNETTE TANKS
(first respondent)
JANE SCHY
(second respondent)
PAUL JAMES BOISEN
(third respondent)
FRANCESCA GERTRUDA MARIA HUTTON AND NEIL JAMES HUTTON
(fourth respondents)FILE NO/S:
BS3601/13
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
9 August 2013
DELIVERED AT:
Brisbane
HEARING DATE:
17 May 2013
JUDGE:
Margaret Wilson J
ORDER:
1. Declare that, on its proper construction, clause 2(a) of the will of William Burnett Boisen (deceased) (“the testator”) made on 30 July 2010 is to be read and construed as a gift of one sum of one hundred thousand dollars ($100,000) to be shared by the first, second and third respondents as tenants in common in equal shares.
2. Declare that, on its proper construction, clause 5(a) of the said will is to be read and construed as a gift of one sum of fifty thousand dollars ($50,000) to be shared by the fourth respondents as tenants in common in equal shares.
3. Direct that:(a) the applicant would be justified in distributing the testator’s estate on the basis that the gift in clause 2(j) of the said will is a gift to The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane for the general purposes of the Parish of Murgon;
(b) the applicant would be justified in distributing the testator’s residuary estate pursuant to clause 6 of the said will equally among each of the following:
i. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane;
ii. The Roman Catholic Trust Corporation for the Diocese of Cairns;
iii. The Roman Catholic Trust Corporation for the Diocese of Rockhampton;
iv. The Corporation of the Trustees of the Roman Catholic Archdiocese of Toowoomba; and
v. The Roman Catholic Trust Corporation for the Diocese of Townsville.
(together, “the Queensland Catholic Dioceses”)
(c) the receipt of the financial officer or the Archbishop or the Bishop of each of the Queensland Catholic Dioceses be sufficient to discharge the applicant;
(d) the applicant would be justified in entering into any agreement as to the payment of the executor’s commission in the estate with the Queensland Catholic Dioceses; and
(e) the applicant would be justified in joining the Queensland Catholic Dioceses as respondents to any application to the Court for the payment of the executor’s commission.
4. Order that the applicant’s costs of and incidental to the application be paid out of the testator’s residuary estate on the indemnity basis.
CATCHWORDS:
SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – PRINCIPLES OR RULES OF CONSTRUCTION – GENERALLY – where testator bequeathed legacies “to each of” the first, second and third respondents “in equal shares as tenants in common” – where testator bequeathed legacies “to each of” the fourth respondents “in equal shares as tenants in common” – where executor sought direction…
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- AGLC
- Woodgate v Tanks [2013] QSC 204
- Case
- [2013] QSC 204
- Decision Date
CaseChat Overview and Summary
The court had to determine the proper construction of the clauses in the will which used similar phrasing but resulted in different interpretations. The first legal issue was whether the phrases “to each of” the legatees indicated separate gifts to each individual or a collective gift to be shared among them. The second issue was ascertainment of the intended beneficiaries where the testator had referred to entities that did not exist under the names provided. The court had to consider principles of construction and whether the intended beneficiaries could be reasonably identified.
The court concluded that the clauses in question were intended to create separate gifts to each legatee, rather than a single gift to be shared equally among them. The court found that the testator's intention was clear, and the use of the phrase “to each of” indicated separate gifts. Furthermore, the court determined that the intended beneficiaries could be identified despite the misnomers, directing the executor to distribute the gifts to the appropriate Catholic entities. The court also provided guidance on the distribution of the residuary estate and the payment of executor's commission.
The court ordered that certain clauses in the will be interpreted as providing separate gifts to the specified legatees, and it directed the executor on how to distribute the estate accordingly. Additionally, the court provided guidance on the distribution of the residuary estate and the payment of executor's commission, ensuring that the executor could act with confidence in executing the will. The court also ordered that the executor's costs be paid from the residuary estate on an indemnity basis.
Orders
Orders of the court
1. Declare that, on its proper construction, clause 2(a) of the will of William Burnett Boisen (deceased) (“the testator”) made on 30 July 2010 is to be read and construed as a gift of one sum of one hundred thousand dollars ($100,000) to be shared by the first, second and third respondents as tenants in common in equal shares.
2. Declare that, on its proper construction, clause 5(a) of the said will is to be read and construed as a gift of one sum of fifty thousand dollars ($50,000) to be shared by the fourth respondents as tenants in common in equal shares.
3. Direct that:
(a) the applicant would be justified in distributing the testator’s estate on the basis that the gift in clause 2(j) of the said will is a gift to The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane for the general purposes of the Parish of Murgon;
(b) the applicant would be justified in distributing the testator’s residuary estate pursuant to clause 6 of the said will equally among each of the following:
i. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane;
ii. The Roman Catholic Trust Corporation for the Diocese of Cairns;
iii. The Roman Catholic Trust Corporation for the Diocese of Rockhampton;
iv. The Corporation of the Trustees of the Roman Catholic Archdiocese of Toowoomba; and
v. The Roman Catholic Trust Corporation for the Diocese of Townsville.
(together, “the Queensland Catholic Dioceses”)
(c) the receipt of the financial officer or the Archbishop or the Bishop of each of the Queensland Catholic Dioceses be sufficient to discharge the applicant;
(d) the applicant would be justified in entering into any agreement as to the payment of the executor’s commission in the estate with the Queensland Catholic Dioceses; and
(e) the applicant would be justified in joining the Queensland Catholic Dioceses as respondents to any application to the Court for the payment of the executor’s commission.
4. Order that the applicant’s costs of and incidental to the application be paid out of the testator’s residuary estate on the indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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