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Jones v Jones

 

[2020] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

Jones v Jones & Ors [2020] QSC 6

PARTIES:

TREVOR JOHN JONES (as executor and trustee of the estate of GEORGE HOWARD JONES deceased)

(applicant)

v

LAURENCE LLEWLLYN JONES

(first respondent)

AND

KATHLEEN JUNE JONES

(second respondent)

AND

JUDITH ANN JONES

(third respondent)

AND

PAULINE MODRZYNSKI

(fourth respondent)

AND

LYNNETTE FAY ABBOTT

(fifth respondent)

AND

MARGARET ELIZABETH THOMASSON

(sixth respondent)

AND

TARYN LORRAINE JONES

(seventh respondent)

AND

REBECCA LEE JONES

(eight respondent)

AND

KYLIE JUNE JONES

(ninth respondent)

AND

TRACEY ANN LAMPARD (formerly TRACEY ANN JONES)

(tenth respondent)

AND

DARREN CHARLES JONES

(eleventh respondent)

AND

BRADLEY DAVID JONES

(twelfth respondent)

AND

JASON ALLAN MODRZYNSKI

(thirteenth respondent)

AND

SHARON LORRAINE PERNA (formerly SHARON LORRAINE MODRZYNSKI)

(fourteenth respondent)

AND

KERRY ANN MODRZYNSKI

(fifteenth respondent)

AND

CLINTON PATRICK MODRZYNSKI

(sixteenth respondent)

AND

MICHELLE LEIGH BETTINI

(seventeenth respondent)

AND

MATTHEW ABBOTT

(eighteenth respondent)

AND

MATTHEW JOHN THOMASSON

(nineteenth respondent)

AND

CHRISTOPHER JAMES THOMASSON

(twentieth respondent)

FILE NO/S:

No 611 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

10/02/2020

DELIVERED AT:

Rockhampton

HEARING DATE:

10 December 2019

JUDGE:

Crow J

ORDER:

  1. The parties are to provide written submissions within fourteen days herof as to the appropriate form of orders.
  2. The court will hear from the parties as to costs. 

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR’S INTENTION – whether intended as a specific bequest or residuary disposition – whether there was a contrary intention for payment of debts for the purpose of s 59(3) Succession Act 1981

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – where will directs executor to direct monies for the running costs of a property – whether that direction includes capital expenditure

SUCCESSION –  ADMINISTRATION OF ESTATE – OTHER MATTERS – commission – where executor seeks executor’s commission under Succession Act 1981 and Trusts Act 1973 – where will contains clause for executor’s salary – assessment of executor’s salary

Succession Act 1981 (Qld) s 55, s 59, s 60

Trusts Act 1973 (Qld) s 101

Allgood v Blake (1873) LR 8 Exch 160

Creer & Anor – The Estate of Peters [2007] NSW SC 1291

Fell v Fell (1922) 31 CLR 286

Jones v Jones [2012] QSC 342 

Kirkpatrick v Kavulak [2005] QSC 282

Lade & Co Pty Ltd v Black [2007] QSC 385

Perrin v Morgan [1943] AC 399

Re Estate of Ghidella [2005] QSC 106

Re Harcourt [1921] 2 Ch 491 at 503

Re Knight [1977] Qd R 189 at 191

Re Lack [1983] Qd R 613

Rodgers deceased, Re [2001] QSC 282

Smidmore v Smidmore (1905) 3 CLR

Springett v Jennings (1871) 6 Ch App 333

Tipler v Fraser (1976) Qd R 272

Towns v Wentworth (1858) 14 ER 794

COUNSEL:

S Deaves for the applicant

A Arnold for the first respondent

M DeWard for the 11th, 13th, 14th, 15th and 16th respondents

SOLICITORS:

Rees R & Sydney Jones for the applicant

Swanwick Murray Roche for the first respondent

Rees R & Sydney Jones for the fifth respondent

Macrossan & Amiet for the 11th, 13th, 14th, 15th and 16th respondents

Background

  1. [1]
    George Howard Jones passed away on 18 July 2002 aged 76 years. At the age of 23, Mr George Howard Jones married Kathleen June Archer at Maffra, Victoria. Mr and Mrs Jones had 8 children: Judith, Trevor, Pauline, Lynnette, Robert, Laurence, Margaret and Christine. Sadly, Christine passed away at the age of 2. 
  2. [2]
    In 1965 Mr and Mrs Jones and their seven children moved from Sale, Victoria onto the property “Malo”. A cattle property of approximately 2, 898 hectares, Malo[1] is located off the Leichhardt Highway in the Dawson Valley. When George Howard Jones moved to Malo he was aged only 39 years, Judith was 14, Trevor was 13, Pauline was 12, Lynnette was 11, Robert was 10, Laurence was 9, and Margaret was 7. Whilst intending no disrespect to Trevor John Jones and Laurence Llewellyn Jones, in accordance with the drafting style employed in the affidavits filed, I shall refer to each respectively as Trevor and Laurence.
  3. [3]
    As was common in those days, the Jones children worked on their family property Malo after school and on weekends. Trevor, the eldest son and applicant, left school at the age of 15. Trevor then spent the next six years working on a full time basis at Malo. When he was aged 21, Trevor purchased his own property, “Myra”, at Clermont. Trevor has owned and operated Myra for 46 years, expanding the property to acquire “Myra North”; Trevor is an experienced and competent grazier.
  4. [4]
    Trevor and Mrs Heather Jones have three children, Brett Howard Jones, Taryn Lorraine Jones and Dale John Jones. Taryn is the seventh respondent in this matter.
  5. [5]
    Robert Williams Jones, Mr and Mrs Jones Senior’s second eldest son, is not a party to the proceedings but is a beneficiary of his father’s will. Pursuant to the will, Robert William Jones was provided with a life interest in his father’s one-half share of the property “Barellen”.[2]  He was further gifted the property of the Barellen Partnership.[3]
  6. [6]
    Mr Robert William Jones is currently 64 years of age. Under the terms of the will, on the passing of Robert William Jones, the testator’s half share in the Barellen property is bequeathed to Brett Howard Jones and Dale John Jones; the sons of Trevor and Heather Jones. Mr Robert William Jones does not have any children of his own.
  7. [7]
    The testator’s wife, Mrs Kathleen June Jones, along with the couple’s four daughters have been left specific bequests.
  8. [8]
    The eldest daughter, Judith Ann Jones has three children of her own. Namely, Tracy Anne Jones, Darren Charles Jones and Bradley David Jones; the tenth, eleventh and twelfth respondents, respectively.
  9. [9]
    Pauline Modrzynski (nee Jones) is married to Allan Modrzynski and they have four children: Jason Allan Modrzynski, Sharon Lorraine Modrzynski, Kerry Anne Modrzynski and Clinton Patrick Modrzynski; the thirteenth, fourteenth, fifteenth and sixteenth respondents.
  10. [10]
    Lynnette Fay Abbott (nee Jones) has two children, the seventeenth and eighteenth respondents, Michelle Leigh Bettini and Matthew Abbot.
  11. [11]
    Margaret Elizabeth Thomasson (nee Jones) has two surviving children, the nineteenth and twentieth respondents, Matthew John Thomasson and Christopher James Thomasson.
  12. [12]
    The first respondent, Laurence, is the youngest son of George Howard Jones (deceased) and Kathleen June Jones. Laurence has three children, Rebecca Lee Jones, Kylie June Jones and Kathleen Rose Matheson Jones. Laurence’s adult daughters are the eighth and ninth respondents, respectively. Kathleen is currently 10 years-old and resides on Malo with her father.  Laurence left school when he was 14 and has worked on the property Malo for the last 49 years. Laurence is currently owner of the cattle property “Forest Hills”, which adjoins Malo. Laurence and his father purchased Forest Hills in equal shares and Laurence was consequently gifted his father’s share through his father’s will.

Litigation History

  1. [13]
    Further background facts are set out in the reasons of McMeekin J in Jones v Jones [2012] QSC 342, in particular from paragraphs [1] to [19]. That decision concerned the matter of costs, where on 3 October 2012, McMeekin J ordered Laurence to pay the estate the sum of $185,000, following the discontinuation of an application brought by Laurence for further provision.  In the lead up to the costs order, McMeekin J had also made orders regarding the construction of clause 3(m)A of the will.[4] Apart from construing the will, McMeekin J ordered the parties to attend mediation,[5] though mediation was unsuccessful. 
  2. [14]
    The last will and testament of George Howard Jones was executed on 19 June 2002, about of one month prior to George Howard Jones’ passing on 18 July 2002. The will, which was admitted to probate on 4 October 2002 has been aptly described by counsel as “problematic”. The 10-page-will, makes a series of specific bequests before setting up a testamentary trust of the property Malo for a period of 20 years. As mentioned above, the will also bequeaths a life interest in the Barellen property to Robert William Jones. At the time of George Howard Jones’ passing, Robert William Jones was only aged 47 years. It is therefore plain that the duties placed upon the executor and trustee of the will, Trevor, are onerous and expected to continue for many years.
  3. [15]
    Laurence suffers from mental health issues as set out in Exhibit LLJ-1.[6] It is not disputed that the eldest son Trevor and the youngest son Laurence have a strained relationship. The applicant, Trevor, alleges that Laurence has threated and abused him on many occasions;[7] Laurence does not dispute this. This strained relationship has resulted in poor communication between the two brothers. Trevor was unable to attend the property Malo for approximately 9 years from 2010 until a recent inspection on 28 May 2019.  After attending Malo in May 2019 Trevor noticed that “Laurie’s behaviour towards me has improved.”[8]
  4. [16]
    Hostility and lack of communication has significantly impeded Trevor in his efforts to act appropriately as the executor and trustee of the estate of his father. The estate expended over $430,000 in defence of Laurence’s claim against the estate.[9] Accordingly, issues have arisen as to the payment of these expenses in this large solvent estate. By originating application filed 8 August 2019, Trevor as executor and trustee, has applied for seven substantive orders relating to the payment of outstanding expenses, capital payments and associated issues which effect the entitlement of several beneficiaries.
  5. [17]
    With regards to payments of debts in the case of solvent estates, sections 59 and 60 of the Succession Act 1981 (Qld) are relevant. They provide:

59 Payment of debts in the case of solvent estates

  1. (1)
    Where the estate of a deceased person is solvent the estate shall, subject to this Act, be applicable towards the discharge of the debts payable thereout in the following order, namely—

class 1property specifically appropriated devised or bequeathed (either by a specific or general description) for the payment of debts; and property charged with, or devised or bequeathed (either by a specific or general description) subject to a charge for the payment of debts;

class 2property comprising the residuary estate of the deceased including property in respect of which any residuary disposition operates as the execution of a general power of appointment;

class 3property specifically devised or bequeathed including property specifically appointed under a general power of appointment and any legacy charged on property so devised bequeathed or appointed;

class 4donationes mortis causa.

  1. (2)
    Property within each class as aforesaid shall be applied in the discharge of the debts and, where applicable, the payment of pecuniary legacies rateably according to value; and where a legacy is charged on a specific property the legacy and the property shall be applied rateably.
  2. (3)
    The order in which the estate is applicable towards the discharge of debts and the incidence of rateability as between different properties within each class may be varied by a contrary or other intention signified by the will, but a contrary or other intention is not signified by a general direction, charge or trust for the payment of debts or of all the debts of the testator out of the testator’s estate or out of the testator’s residuary estate or by a gift of any such estate after or subject to the payment of debts.

60 Payment of pecuniary legacies

Subject to a contrary or other intention signified by the will—

  1. (a)
    pecuniary legacies shall be paid out of the property comprised in class 2 referred to in section 59 after the discharge of the debts or such part thereof as are payable out of that property; and
  2. (b)
    to the extent to which the property comprised in class 2 referred to in section 59 is insufficient the pecuniary legacies shall abate proportionately.

Orders Sought

  1. [18]
    In the originating application, the applicant sought orders relating to seven issues, paragraphs one through to four seek:
    1. A declaration that, upon the proper construction of clause 3(m)(A)(v) of the will of George Howard Jones, deceased (“the Deceased”) dated 19 June 2002 (“the Will”), any expenses incurred by the applicant in the administration of the estate of the Deceased are to be paid from the income generated by the farming and grazing operations carried out on the property “Malo” pursuant to clause 3(m)(A) of the Will.
    2. A declaration that, upon the proper construction of clause 5 of the Will, the applicant is authorised to pay all expenses of a capital nature in relation to “Malo” from the income generated by the farming and grazing operations carried out in the property Malo pursuant to clause 3(m)(A) of the Will.
    3. A declaration that, upon the propert construction of clause 3(m)(A) of the Will, the entitlement of the beneficiaries in the second clause numbered 3(m)(A)(i) to the proceeds of the sale of “Malo” is subordinate to the liabilities and administration expenses of the estate and is postponed until those liabilities and expenses are ascertained.
    4. A declaration that, upon the proper construction of clause 3(m)(A)(vi) of the Will, the amount of the residue payable to the First Respondent cannot be determined until “Malo” has been sold and the proceeds distributed in accordance with the second clause in the will numbered 3(m)(A)(i).

Construction of Clause 3(m)(A)(v), (vi) and Clause 5 of the will

  1. [19]
    Clause 3(m) of the will, amended in accordance with the orders made by McMeekin J on 3 April 2012 provides:

“I DEVISE AND BEQUEATH the rest and residue of my estate both real and personal as follows:-

  1. (a)
    I DEVISE AND BEQUEATH whatever right, title or interest I may have at the time of my death in the property known as “Malo” more particularly described as Portion 6 Parish of South End together with all livestock and farming plant and farming machinery located on “Malo” at the time of my death (other than my livestock and machinery in the “Barellen Partnership” and the “LL & GH Jones Partnership”) UNTO AND TO the use of my Trustee UPON TRUST to continue to carry out my farming and grazing operations on the property “Malo” and to pay and apply for a period of twenty (20) years following my death the annual income earned from such grazing and farming business in the following manner:-
  1. (i)
    firstly in payment of any running expenses including maintenance and replacement of plant and machinery;
  1. (ii)
    secondly in payment of any annual Mortgage payments owing to any mortgagee on my property “Malo”;
  1. (iii)
    thirdly in payment of any income tax assessed on the income earned from such property;
  1. (iv)
    fourthly in payment of the sum of $10,000.00 per year UNTO my wife the said KATHLEEN JUNE JONES;
  1. (v)
    fifthly in payment of any shortfall in cash monies available to my Trustee from the rest and residue of my estate for payment of the legacies referred to in subclauses 3 (m) (B) (i), (ii), (iii), (iv) and (v) of this my Will;
  1. (vi)
    sixthly any residue shall be paid to my son the said LAURENCE LLEWELLYN JONES;

AND from and after a date twenty (20) years following my death UPON the following trusts:-

  1. (i)
    To sell my interest in the property “Malo” together with all fixed improvements thereon and to pay the proceeds of such sale unto such grand-child or grand-children of mine except BRETT JONES and DALE JONES who shall be living at my death and at a date twenty (20) years following my death and if more than one in equal shares PROVIDED THAT should any such grand-child or grand-children of mine die prior to the date twenty (20) years following the date of my death leaving a child or children living at the date twenty (20) years following my death then such child or children shall take and if more than one in equal shares the interest that his or her parent would have taken in my estate under the provisions of this clause had such parent been living at the date twenty (20) years following my death;
  2. (ii)
    To hold the balance thereof including any plant or livestock then remaining after the aforesaid 20 year period then owned by my estate for my son the said LAURENCE LLEWELLYN JONES.
  1. (b)
    I DEVISE AND BEQUEATH the remainder thereof UNTO AND TO the use of my Trustee UPON TRUST to sell and convert into money such part or parts thereof as shall not consist of money and pay and apply the proceeds thereof in the following manner:-
  1. (i)
    Firstly, in payment of my wife KATHLEEN JUNE JONES the sum of FIFTY THOUSAND DOLLARS ($50,000.00);
  1. (ii)
    Secondly, in payment of the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) UNTO AND TO the use of my Trustee UPON TRUST to invest such amount in any investment authorised by law and to pay and apply the income earned from such investment in the following manner:-
  1. (a)
    the payment of all premiums on City Mutual Life Insurance Policy No. 628913/4 and City Mutual Life Policy No 714644/8 owned by me at my death insuring the lives of my wife the said KATHLEEN JUNE JONES and my son the said LAURENCE LLEWELLYN JONES;
  1. (b)
    the payment of the balance thereof to my wife the said KATHLEEN JUNE JONES during her lifetime

 AND from and after the death of my wife said KATHLEEN JUNE JONES to pay and apply such investment together with the proceeds of City Mutual Life Insurance Policy No 628913/4 in the following manner:-

  1. (a)
    to hold in trust the sum of FIVE THOUSAND DOLLARS ($5,000.00) to be applied towards further payment of premiums on the insurance policy with City Mutual Life Policy No. 714644/8 until the death of my son LAURENCE LLEWELLYN JONES;
  1. (b)
    To pay the balance thereof UNTO such grand-child or grand-children of mine (excluding any child or children adopted by any child of mine) as shall be living at the death of my wife the said KATHLEEN JUNE JONES whether born in or out of wedlock in equal shares PROVIDED HOWEVER that should any grandchild or grandchildren of mine predecease my wife the said KATHLEEN JUNE JONES leaving a child or children living at the death of my wife the said KATHLEEN JUNE JONES then such child or children shall take and if more than one in equal shares the benefits of every description which his, her or their parent would have taken in my estate under this Clause of this my Will had such parent been living at the date of death of my wife the said KATHLEEN JUNE JONES.
  1. (iii)
    Thirdly, in payment of the sum of FORTY THOUSAND DOLLARS ($40,000.00) UNTO AND TO the use of my Trustee UPON TRUST to invest such amount in any investment authorised by law and to pay all interest earned from such investment to my daughter JUDITH ANN JONES during her lifetime and from and after her death to pay the said sum of FORTY THOUSAND DOLLARS ($40,000.00) UNTO such of them my grandchildren TRACY ANN JONES, DARREN CHARLES JONES and BRADLEY DAVID JONES as shall be living at the death of my daughter the said JUDITH ANN JONES and if more than one in equal shares PROVIDED THAT should any of them my grandchildren the said TRACY ANN JONES, DARREN CHARLES JONES and BRADLEY DAVID JONES predecease my daughter the said JUDITH ANN JONES leaving a child or children living at the time of the death of the said JUDITH ANN JONES then such child or children shall take and if more than one in equal shares the benefits of every description which his, her or their parents would have taken under this clause of this my will had such parent been living at the time of death of my daughter the said JUDITH ANN JONES.
  1. (iv)
    Fourthly, in payment UNTO my daughters PAULINE MODRZYNSKI, LYNNETTE ABBOTT and MARGARET THOMASSON the sum of FORTY THOUSAND DOLLARS ($40,000.00) each PROVIDED THAT should any of my daughters the said PAULINE MODRZYNSKI, LYNNETTE ABBOTT and MARGARET THOMASSON predecease me I DIRECT that the amount of FORTY THOUSAND DOLLARS ($40,000.00) which they would have been entitled be divided equally between their respective children;
  1. (v)
    Fifthly, if my son TREVOR JOHN JONES owes to me at the time of my death more than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) then I FORGIVE unto my son the said TREVOR JOHN JONES the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) of such debt then owing. Should my son the said TREVOR JOHN JONES owe me at the time of my death and amount less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) then in payment unto my son the said TREVOR JOHN JONES the difference between the amount of such debt and the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) and I FORGIVE UNTO my son the said TREVOR JOHN JONES the full amount of the debt then owing at the time of my death;
  1. (vi)
    Sixthly, in payment of the rest and residue thereof UNTO such of my grand-child or grand-children of mine as shall be living at my death except BRETT JONES and DALE JONES and if more than one in equal shares.”
  1. [20]
    Paragraph 5 of the will provides:

“I EMPOWER my Trustee for such time as he shall think fit and for the purpose of carrying out the terms of this my Will to carry on or join in carrying on any business in which I may be engaged at the time of my death with full discretionary power as to insurance alteration disposition and increase or diminution of capital plant or stock and the purchase and sale of stock and plant employment of managers agents servants labourers and workmen and their salaries remuneration privileges powers and authorities and generally to act in the management of such business and to use my residuary estate therein as if my Trustee were the absolute owner thereof and I DECLARE that my Trustee shall be free from all responsibility and be fully indemnified out of my estate in respect of any loss arising in relation thereto and shall have the power to determine what part of the produce and monies arising from the conduct of such business shall be treated as capital and what part as income and whether any expenses or other payments shall be paid out of capital or income and to determine all questions or matters of doubt arising in or about the conduct of such business and every such determination shall be conclusive and binding on all the persons claiming hereunder and I FURTHER EMPOWER my Trustee to pay to themselves a reasonable salary for any work performed by them in the administration of my estate including the running and management of the property “Malo”. I INSTRUCT my Trustee to offer the position of manager for the property “Malo” to my son the said LAURENCE LLEWELLYN JONES whilst those properties are held in trust by my Executor such position to be offered on usual terms and conditions applicable at the time to the management of properties of that nature.”

Interpretation of the will

  1. [21]
    In Allgood v Blake,[10] Blackburn J said:

“The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words with reference to those facts and circumstances which were (or ought to have been) in the mind of a testator when he used those words ...  [T]he meaning of words varies according to the circumstances of concerning which they are used.”

  1. [22]
    In this present case the relevant rules governing the construction of the will are:
    1. (1)
      The court construes the will to give effect to the intention of the testator garnered from words expressed in the will.  As Lord Romer said in Perrin v Morgan [1943] AC 399 at 420:

“I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.” 

  1. (2)
    the correct approach to construing wills, aligns with construing contracts and trusts;
  2. (3)
    in construing a will, a court cannot re-write the document;
  3. (4)
    the testator’s intentions are to be ascertained from the entirety of the will;[11]
  4. (5)
    a word or phrase in a will is given its usual or ordinary meaning;[12]
  5. (6)
    to understand the language used by that testator, the court is entitled to “sit in the testator’s armchair”,[13]  that is to consider what information the testator had at the time of the making of the will; and
  6. (7)
    in giving effect to the whole of the instrument, the court enquires into the general scheme of the will and construes the will to give effect to that scheme.[14]
  1. [23]
    In terms of s 59(1) of the Succession Act 1981 (Qld), the will does not include class 1 property. Necessarily, it must then be considered whether the will has class 2 property, namely a residuary estate. The will does not contain the usual residuary estate clause, however the commencing words of clause 3(m) indicate that it is dealing with "the rest and residue" of the deceased's estate.  An issue then, is whether or not Malo forms part of the residuary estate as opposed to being a specific bequest.
  2. [24]
    Resolving this issue is important because section 59 of the Succession Act 1981 (Qld) provides for classes of property and their priority in discharging debts payable by the estate. Any estate debts are to be met by the residuary estate before they are met out of any property which was subject to a specific bequest or devise.
  3. [25]
    Section 55 the Succession Act 1981 (Qld) defines the term "residuary estate" as follows:

"(a) property of the deceased that is not effectively disposed of by his or her will; and

(b)  property of the deceased not specifically devised or bequeathed but included (either by a specific or general description) in a residuary disposition".

  1. [26]
    A specific devise or bequest was explained by Dixon CJ in McBride v Hudson[15] as follows:

“What marks a bequest as specific is that its subject-matter is designated as something that does at the time of the will, or shall at the time of the death of the testator, form an identifiable part of his property and is, so to speak, distinguished by the intention of the testator as ascertained from his will to separate it in his disposition from the rest of his property for the purpose of bequeathing it as the distinct subject of a testamentary disposition”

  1. [27]
    The gift of an identified piece of real estate would ordinarily be regarded as a specific bequest.  However, the complicating feature in the present case is the fact that the bequest of Malo appears in a part of the will which purports to deal with "the rest and residue" of the estate.  Most other specific bequests are not contained within this “rest and residue” clause.
  1. [28]
    In the present situation, there are two rules of construction which could apply.  However, before addressing them, it is important to note that the fundamental rule in construing a will is to “put on the words used the meaning which, having regard to the terms of the will, the testator intended”.[16]  The whole of the will must be looked at in order to ascertain that intention[17].
  2. [29]
    The first of the rules which may apply is that words which have a technical meaning should, prima facie, be interpreted according to that meaning.  In Re Harcourt [18] it was said that:

"[W]hen a testator has used words which have acquired a definite meaning in conveyancing and have for a long time been used in the drafting of wills and settlements and other like documents with that meaning, it requires a very strong case to justify their interpretation in a different sense.”

  1. [30]
    Not surprisingly, this rule tends to be given greater force when the will has been drafted by a lawyer.[19]
  2. [31]
    The second rule which could be applied is that the court may ignore words likely to have been inserted in error in order to give effect to the testator's true intentions. The Privy Council explained this principle in Towns v Wentworth[20] as follows:-

“When the main purpose and intention of the Testator are ascertained to the satisfaction of the Court, if particular expressions are found in the Will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified…”

  1. [32]
    The High Court approved this statement in Smidmore v Smidmore[21] and also adopted "a sound rule of construction", a principle expressed in Jarman on Wills (Fifth Edition):

"It is to be observed, too, that a devise of lands in clear and technical terms, will not be controlled by expressions in a subsequent part of the will, inaccurately referring to the devise, in terms which, had they been used in the devise itself, would have conferred a different estate, if the discordancy appeared to have sprung merely from a negligent want of adherence to the language of the proceeding devise."

  1. [33]
    There are many examples of decisions where the courts have been required to determine whether a clause in a will is truly a residuary clause or whether it constitutes a specific gift.  The use of words such as "rest" and "residue" have not always been conclusive[22].
  2. [34]
    In Re Knight,[23] Andrews J held that the identification of a specific piece of land in a will as opposed to “words referring generally to all lands not otherwise disposed of by his will”[24] meant that the identified piece of land was a specific gift and not part of the residuary estate.
  3. [35]
    I conclude that, as a whole, the will reflects an intention that the gift of Malo was intended as a specific gift as:
    1. (a)
      it has been specifically identified; and
    2. (b)
      the will provides for the applicant to continue carrying on the business carried on by the deceased on Malo 20 years after the deceased’s death; and
    3. (c)
      the will treats the land and its improvements differently to the plant, equipment and livestock upon it.
  4. [36]
    As stated earlier, the will does not specify any class 1 properties.[25] Therefore, by virtue of section 59 of the Succession Act 1981 (Qld), the residuary estate, being class 2 property,[26] bears the burden of any estate administration costs and estate debts, prior to any specific devise or bequest. 
  5. [37]
    As to the “scheme of the will”, despite being ten pages in length, the will contains only six enumerated clauses. There is no difficulty in construing clause 1, which is simply a revocation of past wills clause. Nor is there any issue with clause 2 and 4, which appoint Trevor as the executor and forgive the debts owed to the testator by Robert William Jones in respect of the “Barellan” partnership, respectively. Clause 6, is a standard infant trust clause.
  6. [38]
    The difficulty in discerning the scheme of the will arises from the unhelpful way in which clause 3 and clause 5 have been drafted. Whilst the blatant errors in the drafting of the will have been corrected by the order of McMeekin J on 3 April 2012, the scheme of the will is not as plain as it ought to be.
  7. [39]
    However, the text of will shows the scheme of the will to be as follows:
    1. (a)
      Several specific bequests of chattels or cash or the proceeds of insurance policies to nominated beneficiaries. That occurs via clauses 3(a)(i) and (ii), 3(b), 3(c), 3(d), 3(e), 3(f), 3(h), and 3(i).
    2. (b)
      The property Barellen was, by paragraphs 3(g), (j) and (k), predominantly left to Robert William Jones.  More specifically, paragraphs 3(g) and (j) bequeathed the plant, machinery and livestock in the Barrellen partnership, as well as any monies standing to the credit of George Howard Jones in the Barellen partnership bank accounts, to Robert William Jones. Finally, by clause 3(k), Robert William Jones received a life interest in George Howard Jones’ half share in the Barellen real property. At the conclusion of Robert’s life tenancy Brett and Dale Jones were to acquire their grandfather’s half share in the property. 
    3. (c)
      The property Forest Hills was left to Laurence. There is no difficulty in the construction of paragraph 3(l) being the devise to Laurence of George Howard Jones’ interest in the grazing partnerships “LL & GH Jones Partnership” including Mr Jones Snr’s interest in the grazing property known as Forest Hills and all livestock, farming plant and machinery owned by the partnership. By paragraph 3(l) it is plain that Laurence was to receive Forest Hills as his own property.
    4. (d)
      The property Malo was left in a 20-year testamentary trust by a difficult and confused clause 3(m) which appears to contain specific and residuary clauses.
  8. [40]
    As set out above, paragraph 3(m) commences “I devise and bequeath the rest and residue of my estate real and personal as follows…” Although styled as a rest and residue clause, it is plain that the entirety of paragraph 3(m) is not a rest and residue clause. The subject matter of clause 3m(A) is Malo and it’s 20-year testamentary trust. The subject matter of clause 3m(B) is the disposition of the testator’s non-rural liquid assets, which the testator intended to be paid within a reasonable time of his death and not delayed by the 20-year testamentary trust.
  9. [41]
    Paragraph 3(m)(B) contains a number of specific bequests, namely, 3(m)(B)(i), (ii), (iii), (iv) and (v). The curious clause 3(m)(A)(v) with its reference as a fifth priority, “In payment of any shortfall in cash monies available to my trustee from the rest and residue of my estate for payment of the legacies referred to in subclauses 3(m)(B)(i), (ii), (iii), (iv) and (v)” evinces an intention on behalf of the testator to ensure that the specific devises the subject of paragraphs 3(m)(B)(i), (ii), (iii), (iv) and (v) were in fact paid. Clause 3(m)(A)(v) is an “insurance” type clause, that is, a clause to make sure that the specific bequests in 3(m)(B)(i), (ii), (iii), (iv) and (v) were paid. However, as it shown in exhibit TJJ6,[27] there was in fact sufficient cash monies in the estate to meet each of the specific devises the subject of clauses 3(m)(B)(i), (ii), (iii), (iv) and (v).
  10. [42]
    In accordance with clause 3(m)(B), the following specific devises have in fact been paid by the trustee:[28]
    1. (1)
      $50,000 to Kathleen June Jones per clause 3(m)(B)(i).
    2. (2)
      $150,000 has been invested and is held upon trust as directed by clauses 3(m)(B)(ii),(a),(b),(ba),(bb). Clause 3(m)(B)(ii) effects an investment of $150,000 upon a trust to pay the life insurance premiums under specific policies for the testator’s wife, Kathleen June Jones, for the entirety of Mrs Jones’ lifetime. Then following Mrs Jones death, to hold in trust the sum of $5,000 towards the further payment of the premiums for a life insurance policy with respect to Laurence and the remaining balance to the Jones grandchildren in equal shares. Clause 3(m)(B)(ii) is tolerably clear.
    3. (3)
      $40,000 into a trust to pay the interest earned on the investment to Judith Ann Jones during her lifetime and upon the passing of Judith Ann Jones pay the sum in equal shares to the children of Judith Ann Jones pursuant to clause 3(m)(B)(iii).
    4. (4)
      $40,000 each to George Howard Jones’ three youngest daughters, Pauline, Lynnette and Margaret pursuant to clause 3(m)(B)(iv).
  11. [43]
    Clause 3(m)(B)(v) is a forgiveness of debt clause, a specific bequest by the testator to Trevor. Any debt of up to a sum of $100,000 was forgiven, however as Trevor owed his father $175,000 at the time of his father’s passing, Trevor has paid the balance of $75,000 to the estate.
  1. [44]
    Another curious clause is 3(m)(B)(vi).  It provides:

“Sixthly payment of the rest and residue thereof UNTO such of my grandchild or grandchildren of mine as shall be living at my death except Brett Jones and Dale Jones and if more than one in equal shares.”

  1. [45]
    Clause 3(m)(B)(vi) is curious because it also purports to be a rest and residue clause, included in clause 3(m), which, as highlighted above, is also stated to be a rest and residue clause. Easy interpretation is not advanced by the fifth, sixth, and seventh words in clause 3(m)(B), namely “the remainder thereof”. It is also to be observed that clause 3(m)(A)(v), the so-called insurance clause, requires payments from the profits of Malo to meet any shortfall in cash with respect of every paragraph of 3(m)(B), with the exception of 3(m)(B)(vi).
  2. [46]
    The so-called insurance clause 3(m)(A)(v), which references clauses 3(m)(B)(i) through to (v), reveals that the intention of the testator was that the legacies subject of paragraphs 3(m)(B)(i) to (v) were specific legacies that ought to be paid as soon as possible after his death and not bear any administrative or other expenses.
  3. [47]
    With clause 3(m)(B)(vi) being the last paragraph of clause 3, and as it is expressly stated to be a “rest and residue” clause, the drafting of the will promotes a construction that clause 3(m)(B)(vi) was intended by the testator to be the residue clause of his non-rural liquid assets, not the residue clause of his entire estate. This interpretation is enhanced by the so-called insurance clause 3(m)(A)(v). That clause reveals an uncertainty in the mind of the testator as to whether he had sufficient cash monies available to meet the specific bequests the subject of paragraphs 3(m)(B)(i) to (v) inclusive. Furthermore, given its exclusion from clause 3(m)(A)(v), I conclude that 3(m)(B)(vi) is a residuary disposition of the non-rural liquid assets within the estate of George Howard Jones (deceased). As the clause does not designate an identifiable part of the testator’s property, it is not a specific devise within section 55(b) of the Succession Act 1981 (Qld) and accordingly is “residuary estate”.[29]
  4. [48]
    This construction also accords with the scheme of the will as discussed above. Namely, with specific bequests by George Howard Jones to his wife, Trevor, and his daughters of cash, insurance policies or chattels. Then the testator’s younger sons, Robert and Laurence, received a life interest in Barellen and the property Forest Hills, respectively.
  5. [49]
    In accordance with his stated intention to benefit each of his grandchildren, George Howard Jones has then bequeathed Brett Jones and Dale Jones a quarter share each in the land at Barellen, content in the knowledge that George Howard Jones’ other grandchildren would receive each an equal share of the property Malo twenty years after his passing.
  6. [50]
    In my view, the above scheme of the will reflects the testator’s true intent and the will ought to be construed accordingly.  What, of course, the testator could not anticipate was the lengthy, acrimonious and extremely costly application brought by Laurence for further and better provision out of the estate. That litigation, in terms of management of the testamentary trusts, and the effect upon the cash holdings of the testamentary trusts has had a dire impact. However, that cannot detract from a proper interpretation of the will. Although class 2 property has been ascertained, the residue in clause 3(m)(B)(vi) is insufficient to meet all debts. Accordingly, s 59(1) of the Succession Act 1981 (Qld) provides that class 3 property, consisting of specific devises and bequests, will bear the balance of the debts.
  7. [51]
    As discussed above, I conclude that the class 3 specific bequests have been identified in paragraphs 3(a) through to 3(l), 3(m)(A) and 3(m)(B)(i) through to (v). The primary position therefore in terms of s 59(3) of the Succession Act 1981 (Qld) is that the class two property bear the debts and then additional debts falling upon the estate fall rateably upon each specific bequest. This general rule applies unless it is “varied by contrary or other intention signified in the will”.[30]
  8. [52]
    In Rodgers deceased, Re,[31] Mullins J was required to both construe a will and apply ss 59 and 60 to a will that was drafted by the late Mrs Rogers. Mullins J said that:[32]

“[3]  The application was argued before me by Mr Stephens of Counsel on the basis that I had to consider the granting of probate in addition to the construction of the will. I reserved my decision. When looking at the file in connection with considering my decision, it became apparent that probate of Mrs Rodgers' will was granted by the registrar on 19 June 2001. The probate was granted to the applicants as executors. That part of the will in respect of which Mrs Rodgers disposed of her estate which is the subject of the granted probate was:

"I Give Devise and Bequeath

To my beloved grandsons my home situated at 50 City View Rd

Camp Hill Brisbane 4152 and all contents

if any car at time of death to Todd Anthony Ballard

To Jason Andrew Ballard the sum of Twenty Thousand dollars

To Janice Margaret Ballard the sum of eight hundred dollars

To Todd Anthony Ballard any money that is in Commonwealth

bank.

To Cheryl Ann Riethmuller the sum of $500”.

  1. [53]
    Mullins J concluded that the clause “To Todd Anthony Ballard any money that is in Commonwealth Bank” was a specific bequest,[33] thus falling within class 3.[34] Mullins J then said:[35]

“[15]  The question then arises whether Mrs Rodgers has exhibited an intention in her will for the pecuniary legacies to be paid from the money held in the Commonwealth Bank, before the gift to the second respondent takes effect. The language used by Mrs Rodgers is "any money" and not "all my money" or "my money". Having regard to the effort that Mrs Rodgers made in detailing the pecuniary legacies, her relationship with each of the pecuniary legatees, her failure to expressly specify what part of her estate was residue, the composition of her assets and the other gifts under the will, I consider that her intention by using the expression "any money" was equivalent to saying "any money left in the Commonwealth Bank after paying my debts and legacies". I therefore find that there is a contrary intention in the will for the purpose of s 59 of the Succession Act 1981 that, to the extent which the funeral, testamentary and administration expenses exceed the amount of Mrs Rodgers' residuary estate, the funeral, testamentary and administration expenses be paid from Mrs Rodgers' money in the Commonwealth Bank and that there is a contrary intention in the will for the purpose of s 60 of the Succession Act 1981 which was that the pecuniary legacies be paid from Mrs Rodgers' money in the Commonwealth Bank.”

  1. [54]
    In the present case, I conclude that a contrary intention has been manifested in the will through several clauses. The first is the so-called insurance clause 3(m)(A)(v), which creates a priority order in regard to the specific legacies which are the subject of paragraphs 3(m)(B)(i) to (v) inclusive.  In my view, this evinces the intention that not all specific devises were intended by the testator to rateably meet any debts of the estate.
  1. [55]
    The so-called insurance clause 3(m)(A)(v), together with the balance of clause 3(m)(A) and clause 5 of the will, indicate that it was the testator’s intention that the carrying on of the business on the property of Malo would bring significant profits and these profits would then be sufficient to meet the specific devises, as well as any shortfall in payments pursuant to clause 3(m)(B)(i) through to (v).
  1. [56]
    In my view, the use of the word “residue” in clause 3(m)(A)(vi) together with provisions for the testamentary trust that appear immediately thereunder, in particular, the words in paragraph 3(m)(A)(vi)(ii): “to hold the balance thereof including any plant and livestock then remaining after the aforesaid 20 year period then owned by my estate, for my son, the said Laurence Llewellyn Jones”, evince the testator’s intention that the proper expenses incurred by Trevor in the administration of the estate will be paid from the income generated by the farming and grazing operations carried out upon Malo pursuant to clause 3(m)(A) of the will.
  2. [57]
    Notably, when the direction in clause 3(m)(A)(vi)(ii) to hold “the balance of the livestock then remaining” is read in conjunction with clause 5, which vests broad powers upon the trustee to carry on the testator’s business at Malo, the testator’s intention  is that trustee has the full power to sell sufficient numbers of stock to meet the ordinary expenses incurred in the administration of the estate.
  3. [58]
    Exhibit TJJ-6 shows that the assets of the estate at the time of the passing of George Howard Jones included an estimated 730 head of cattle with an estimated value of approximately $280,000, and plant and equipment valued at $120,000.[36] As can be seen from exhibit TJJ7,[37] as of June 2019, the estate held 1,130 head of cattle worth approximately $904,000, as well as plant and equipment worth approximately $200,000. The direction with respect to livestock then remaining, shows that the trustee had the discretion and power to sell off livestock to meet the ordinary and proper expenses in the due administration of the trust. 
  4. [59]
    My conclusion therefore, in terms of s 59(3) of the Succession Act 1981, is that the testator signified a contrary intention in his will to the presumption which exists under s 59 Succession Act 1981 (Qld).  The outstanding debts of the estate ought not to be borne by the residue of the non-rural liquid assets referred to in clause 3m(B)(vi) nor borne rateably by devises of specific property under the will, but rather borne solely by the specific devise provided for in clause 3(m)(A), that is the devise of Malo for 20 years. Whilst I am cognizant that the testamentary trust had a lifespan of 20 years and that the expenses and outgoings of the trust estate with respect to the Barellen property will exceed 20 years, I consider the testator’s intention was that the profits from Malo were intended to meet all the reasonable and proper expenses of the conduct of the estate and testamentary trusts, including the administration of the life interest of Barellen. This is signified by the above construction of the will and particularly by the words in clause 3(m)(A)(vi)(ii) “to hold the balance thereof” and 3(m)(A)(vi)(i) “to pay the proceeds of such sale”. Additionally, the words in clause 5 “I further empower my trustee to pay themselves a reasonable salary for any work performed by them in the administration of my estate including the running and management of the property Malo” shows the testator’s intention was that the profits of Malo bear the trust administration expenses.
  5. [60]
    Accordingly, I consider it is proper to make the declaration sought in terms of paragraph 1of the originating application. 

Approval of Capital Payments

  1. [61]
    The declaration sought in terms of paragraph 2 of the originating application, being the approval of payment of all expenses of a capital nature in relation to Malo is a construction, which in my view does not accord with the testator’s intention. The testator’s intention may be seen at paragraph 3(m)(A), with reference to “the annual income earned” and then the specific order of payments, including “(i) firstly in payment of any running expenses including maintenance and replacement of plant and machinery”. It can be seen that paragraphs 3(m)(A)(i), (ii), (iii) and (iv) specifically refer to annual payments. This evinces an annual accounting exercise to be undertaken to determine what, if anything, was left over as the residue to be payable to Laurence. The words of clause 3(m)(A) however are careful not to include any capital payments.
  2. [62]
    In particular, clause 3(m)(A)(i) refers to “running expenses including maintenance and replacement of plant and machinery”. The deliberate use of the words “running expenses” to include maintenance and replacement of plant and machinery, shows that a true capital expense that improves the real property at Malo was not to be deducted in determining the proper balance to be paid annually to Laurence. The use of the word “running” is also repeated in clause 5, with the specific empowerment in the trustee to pay themselves a reasonable salary for any work performed in the administration of the estate, including the “running and management of the property Malo”.
  3. [63]
    Additionally, the second charge on the annual income earned under clause 3(m)(A)(ii) is any annual mortgage payment upon the property Malo. It may be seen pursuant to clause 3(m)(A)(vi)(i) that upon the sale of the property Malo, twenty years following the testator’s death, direction is for the payment of the “proceeds” of such sale to the grandchildren. This necessarily infers the deduction of any mortgage amount then outstanding.
  4. [64]
    The intention of the testator may also be seen in his direction to his trustee to pay out any ordinary annual mortgage payments, as opposed to accelerating payment which may render the property debt free in twenty years’ time. The property being debt free would have been to the obvious benefit of the grandchildren beneficiaries.
  5. [65]
    I consider that clauses 3(m)(A)(vi)(i) and (ii) show that it was the testator’s intention that, 20 years after his death, when Malo is sold, the property was to be in a similar condition to the condition it was at the time of the deceased passing. As is pointed out by the first respondent’s counsel, a blanket authorisation in such broad terms may be interpreted by the trustee as allowing the trustee to spend large capital sums to the obvious benefit of the grandchildren beneficiaries. An example of this is the $690,000 the trustee wishes to spend includes a sum of $225,000 to be paid in respect of fencing.[38] Exhibits 9 and 10, are photographs of Malo and show that, at least in the area where the photos are taken, the fencing is in good order. Plainly for such a large property, the sum of $225,000 may effect renewal of a portion of the fencing. However, a distinction may be drawn in terms of the testator’s intention as sworn in the will between running expenses, that is, repair and maintenance, and capital improvement, in terms of new fences. Whilst clause 5 of the will does empower the trustees with a broad discretion as to what ought to be classified as an outgoing of a capital nature or a true expense, that does not justify the broad terms of the declarations which are sought in order 2.
  6. [66]
    Exhibit TJJ-11 is the report of Mr Lyons,[39] a property valuer. Mr Lyons inspected Malo on 11 November 2003 noting that the fencing was “mainly sound”.[40] In his report, Mr Lyons further comments that the boundary fences are “mainly fair with some newer sections.[41] Whilst the internal fences were “mainly sound…comprises about 35% of older mixed 2 barb and 1 plain and 4 barb on split posts in fair condition whilst the remainder comprises 4 barb split posts in fair/good condition”.[42] Further, importantly, on the date of inspection on 11 November 2003 Mr Lyons commented that the “structural improvements on Malo are below district standard”.[43]
  7. [67]
    Mr Gary Bishop is a livestock and rural agent who attended Malo on 28 May 2019 and considered the fences to be “in poor condition”.[44] While the differing descriptions between Mr Lyon’s 2003 report and Mr Bishop’s 2019 report is supportive of the notion that ongoing deterioration to the fences has occurred, it is difficult to conclude that “poor” fencing justifies the suggested expenditure of $225,000. However, it is plain that it was the testator’s intention that Malo ought to be preserved in a condition similar to as it was on 18 July 2002 and not improved by the trustee to the benefit of the grandchildren and at the cost of Laurence.
  8. [68]
    It is therefore not in accordance with the deceased’s intention to make a broad ranging declaration in terms of order 2.

Priority between Beneficiary’s entitlements and Executor’s Payment

  1. [69]
    It follows the above reasons that a declaration ought to be made in the first part of the terms sought by paragraph 3 of the application. Namely, entitlements of the beneficiaries to the proceeds of the sale of Malo is subordinate to the liabilities and administration expenses of the estate. However, it is inappropriate to declare that those grandchildren beneficiaries’ entitlements ought to be postponed until all of the liabilities and administration expenses of the estate are ascertained. The second part of the declaration sought is inappropriate because it was the testator’s intention as expressed in the second paragraph 3(m)(A)(i) that the beneficiary grandchildren would receive their interest 20 years following the death of their grandfather.
  2. [70]
    It is plain that there will be additional trustee and administration expenses relating to the Barellen property. These had been estimated by the executor to be no more than $3,000 per annum or less than $60 per week. Upon the sale of Malo, when the accounts are settled, the full extent of the executor’s expenses will be known and a more accurate estimate can be made regarding the executor’s ongoing costs with respect to the administration of the estate. Prior to distribution to the  grandchildren beneficiaries, accounting advice can be obtained providing a reasonable estimate of a capital sum which should be withheld from distribution by the executor, so as to be able to meet the aforementioned administrative expenses. It is then a matter between Trevor as executor and each of the grandchildren beneficiaries as to whether they wish to seek orders which may effectively resolve that outstanding issue.

Payment to Laurence

  1. [71]
    The declaration sought in paragraph 4 raises significant problems. Firstly, as discussed above, proper construction of clause 3(m)(A) of the will, in my view, shows it was the intention of the testator that Laurence would receive profits from the running of Malo,  after the deduction of the specific annual payments identified in clause 3(m)(A)(i) through to (v).
  2. [72]
    That being said, the testator’s intention was completely thwarted by Laurence’s application for further provision out of the estate. A 2012 report by Mr Cameron,[45] accountant of Bentley’s, calculated the potential profit in accordance with clause 3(m)(A)(vi) for the financial years of 2003 to 2012, inclusive. According to the report, had Laurence not brought his application for further and better provision, the profit would have amounted to approximately $683,295 which ought to have been paid to Laurence. This included a substantial re-valuation of stock in the 2011 financial year which caused a much larger than usual tax liability in respect of that year in the estate.
  3. [73]
    As a result of the uncertainty, and the expenditure of approximately $430,000 by the estate, resulting from Laurence’s unsuccessful further and better provision application, Laurence has not received that sum of money. It is apparent that much of it has been expended defending Laurence’s application. Exhibit TJJ-9 is an acknowledgement, indemnity and undertaking signed by Laurence on 24 April 2014 in which Laurence acknowledges that he has received $90,000 from the estate between April 2012 and March 2014. Further, that he is indebted to the estate in the sum of $262,321.11, that being the residual debts from the LL & GH Jones Partnership which remained outstanding.  There are additional further sundry minor debts as well as the $185,000 owing by Laurence as a result of the order of McMeekin J of 3 October 2012.[46]
  4. [74]
    As discussed below, Laurence has also continued to run considerable numbers of his cattle on Malo for many years and in current circumstances where there is a severe drought (perhaps even worse than the drought of 2003 referred to in Mr Lyons’ report). This has led to a general running down of the condition of Malo. It is plain there is much work to be done by the executor in readying the property for a sale in a condition comparable to what it was in at the time of the passing of George Howard Jones on 18 July 2002. Whilst the will, upon its proper construction, does call for annual payments to be made to Laurence, it is plain that Laurence by his actions in bringing an application for further and better provision out of the estate, by continuing to run an excessive number of cattle upon Malo and by refusing to communicate or cooperate with Trevor, was the substantial cause of a practical inability on behalf of the trustee Trevor to properly carry out the terms of the testamentary trust.
  5. [75]
    In those circumstances, with the redaction of the words “upon the proper construction of clause 3(m)(A)(vi) of the will” I consider it appropriate to make the declaration sought in terms of paragraph 4. I consider that such a declaration is appropriate as it is not possible to properly quantify the residue, if any, payable to Laurence until Malo has been sold and the proceeds distributed. That is, I conclude due to Laurence’s actions, he has been deprived of his entitlements under the will for the past 18 years. I note that Laurence has not in fact brought any application to obtain the annual payments referred to in paragraph 3(m)(A)(vi) and the further delay in payment consequent upon the sale of the property Malo in July 2022 is the only fair and practical response.

Executor’s Commission

  1. [76]
    By paragraph 5, Trevor seeks an order pursuant to s 68 of the Succession Act 1981 (Qld) and s 101 of the Trusts Act 1973 (Qld) that he be paid commission for the estate of the deceased in such sum or sums to be determined by the court. The order is opposed by Laurence but consented to by his respondents who appeared upon the hearing, namely the 11th, 13th, 14th, 15th and 16th respondents, those respondents consenting to Trevor receiving an annual salary. Trevor has received a small legacy of $100,000 under the will. The receipt by an executor of a legacy does not preclude claim for commission[47].
  2. [77]
    Whilst there is no statutory guidance as to what a reasonable executor’s commission ought to be, the purpose of the commission is to remunerate the executor for the “pains and troubles incurred”.[48] Commission is often allowed as a percentage of the capital income of the estate. In Re Estate of Ghidella,[49] Jones J reviewed the authorities and allowed commission at the rate of 1.5% upon income and 2% upon capital.[50]
  3. [78]
    As the will expressly provides, via clause 5, for Trevor to pay himself a reasonable salary for the administration of the estate, as well as for the running and management of Malo, I conclude that it was the testator’s intention that Trevor ought to receive executor’s remuneration as a salary.
  4. [79]
    In paragraphs 57 to 68 of his affidavit filed 8 August 2019, Trevor has set out the work that he has undertaken on behalf of the estate and the “considerable pains and troubles” he has endured. As it is a large estate and there are ongoing issues as to the proper quantification of the income from the estate, particularly in respect to the valuation of stock, I consider that it is appropriate in the present case to allow an executor’s salary at the conservative rate of $20,000 per year. That amount ought to be allowed for the past 17 years and continue until the sale of the property Malo, at which point Trevor’s duties will significantly reduce, such that for the balance of his executorship he ought to be allowed a salary of $3,000 per annum.

Injunction to Remove Livestock from Malo

  1. [80]
    In paragraph 6, Trevor seeks an order that within 60 days Laurence remove all of his livestock from Malo. According to Laurence’s affidavit and oral evidence, Laurence and his late father George Howard Jones utilised the neighbouring properties of Malo and Forest Hills as one conglomerate agricultural enterprise. On the lands were many hundreds of cattle owned by Laurence, many hundreds of cattle owned by George Howard Jones, and even more cattle owned by the grazing partnership LL & GH Jones Partnership.
  2. [81]
    It is plain by the terms of the will, upon the passing of George Howard Jones, that arrangement was put to an end.  By clause 5 of the will, Trevor was directed to offer the position of manager of the property Malo to Laurence on the “usual terms and conditions applicable at the time for the management of properties of that nature”. Exhibit TJJ-10 is a series of correspondence between 4 March 2004 and 29 June 2004 whereby Trevor attempted to carry out his late father’s wishes in offering Laurence a management contract for Malo. Laurence claimed in evidence that he had never been offered the management rights, that is plainly not so.
  3. [82]
    Furthermore, as can be seen by the correspondence from Laurence’s then-solicitor, De Groot’s, Laurence’s attitude was that he did “not wish to proceed to the meeting as proposed by your client”,[51] that is, to discuss the nature of the contract. Even if, as Laurence suggests, a manager of a large rural property has a right to run some cattle upon the property, it is plain that there was never any concluded agreement between Laurence and his father’s estate as to Laurence’s continued use of the property Malo for the grazing of Laurence’s livestock.  There have been multiple requests made by Trevor’s solicitors to have Laurence remove his livestock,[52] all to no result.
  4. [83]
    Contained within the bundle of letters that is Exhibit TJJ-12, there is a letter of Rees R & Sydney Jones of 1 October 2015 which records that in the July 2015 muster some 2,156 head of cattle were mustered off Malo, as well as in excess of 50 of Laurence’s horses being observed.[53]  Trevor organised for the sale of some 330 head of cattle, being estate cattle, bringing stock numbers down to 1,856 head. This total comprised of 928 head of estate cattle and 928 head owned by Laurence. The letter of Rees R & Sydney Jones cites the carrying capacity of Malo as 1,300 head. I accept that in dry times, the carrying capacity at Malo is 1,300 head, as that is the carrying capacity assessed by the rural valuer Mr Pat Lyons on 11 November 2003 when Malo was also subject to a considerable drought.[54] I conclude that Malo has been overstocked for several years. Photographic exhibits 1 to 9 do show that areas of Malo are in poor condition. However, I accept that those photographs are not necessarily demonstrable of the whole of Malo.
  5. [84]
    Mr Bishop in his report of 6 June 2019 observes Malo “is showing signs of overstocking” warning that if cattle numbers were not reduced “in the next month or two, you will have significant animal welfare issues throughout the winter.”[55]
  6. [85]
    In summary, Laurence has for the last 17 years, depastured a large number of livestock upon Malo without having any right to do so. In addition to the cattle, Trevor, relying on observations of employed musterers, alleges that Laurence is also running in excess of 90 horses upon Malo.[56] Laurence disputes this and claims there is perhaps 70-odd horses. Regardless of whether there are 70 or 90 horses upon Malo, there is plainly an overstocking of Malo of both horses and cattle which, given the drought conditions, requires immediate attention.
  7. [86]
    In coming to this conclusion, I have placed no weight upon the five cattle carcases shown in Exhibit 5. I accept Laurence’s evidence that the deceased cattle, together with the skeletons of prior deceased cattle are the result of Laurence removing cattle that have perished in water facilities. The depasturing by Laurence of his stock upon Malo represents the tort of cattle trespass.[57]
  8. [87]
    The trespass is a continuing trespass and I accept that damages are an inadequate remedy. There will be grave difficulty in quantifying the damages caused by the continuing cattle trespass, and it is therefore appropriate that an injunction ought to be issued.[58] The only arguments brought on behalf of Laurence against the issue of a permanent injunction are laches and change of position, based upon the fact that Laurence has continued to “manage” the property Malo for the past 17 years without remuneration. In respect of the latter, as set out above, Laurence was offered a management contract, and was offered an income but refused to enter into any negotiations or accept any remuneration as a manager. I cannot accept therefore that Laurence has changed his position on the basis that he had an ongoing right to depasture his stock on Malo when plainly that was not the case.
  9. [88]
    That there is delay in this matter is evident, however, delay must be viewed not only in light of the extremely expensive, protracted and difficult further and better provision application brought by Laurence, but also by Laurence’s sustained abuse and threats of violence against Trevor, which have continued until recently. In those circumstances, I cannot accept that Trevor as executor is precluded from active relief on the basis of delay.
  10. [89]
    The more difficult issue is framing an order which Laurence is able to comply with. According to Mr Bishop, on his recent inspection of Malo, there were areas of fencing which needed to be attended to which would create difficulty with mustering. It is plain from the photographs that the Theodore area is in the grips of quite a severe drought. When assessed by Mr Bishop in May 2019, there were considerable numbers of fattened cattle which were readily saleable. However, I am conscious that in the last several months things may have changed significantly.
  11. [90]
    Laurence was repeatedly asked how long he would need to remove his cattle off the property and refused to provide any guidance whatsoever. Counsel for Laurence in submissions conceded that 12 months would be reasonable. I accept the submission that 12 months is a reasonable period for the removal by Laurence of all of his livestock from Malo. That is, by approximately 31 January 2021, Laurence is required to remove all of his livestock from Malo.

Personal Belongings

  1. [91]
    Exhibit TJJ-17 is a list of personal items of the late George Howard Jones that the executor, Trevor, alleges is in the control of Laurence and for which Laurence has refused to account. Again, without meaning any disrespect, I conclude that the items are more of sentimental value than financial value, consisting of items such as photographs, letters, walking sticks, books, filing cabinets and other personal items.
  2. [92]
    Trevor as executor seeks an order that Laurence be ordered to deliver these items to him. However, if in fact the items do not exist or cannot be found, Laurence will then be, prima facie, in breach of an injunction and potentially subject to orders of contempt of court. Despite numerous requests, Laurence claimed that in respect of many of the items, he simply had not looked for them and did not know where they were.
  3. [93]
    The photograph of Laurence’s house shows that it is not a large house. It would not be difficult for Laurence to search for these items. In cross-examination Laurence gave a series of unconvincing answers to questions about the disputed chattels.  Laurence gave his evidence in this respect and generally in an evasive and difficult manner.
  4. [94]
    In lieu of immediately ordering an injunction in respect of the personal effects as contained in exhibit TJJ-17, I consider it appropriate to order Laurence to swear a further affidavit to be filed within 28 days hereof in respect of each item listed in exhibit TJJ-17, detailing:
    1. (1)
      The date and amount of time that he has taken in searching for each item;
    2. (2)
      What he has done to look for the item;
    3. (3)
      The results of the search of each item;
    4. (4)
      If he has not located the item, any knowledge that he personally has as to the whereabouts of the item;
    5. (5)
      If he has located the item, whether he claims the item is now owned by himself and if so, the basis upon which he claims ownership of the item; and
    6. (6)
      If he does not claim ownership of the item, any reason why he should not deliver it up forthwith to the executor.
  5. [95]
    Furthermore, 14 days after the filing of the affidavit, Laurence is directed to file written submissions as to the appropriate orders in respect of the personal items, with Trevor being directed to file and serve any affidavit material in response and written submissions in response within 28 days of the receipt of Laurence’s written submissions. I will hear from the parties as to whether they require any further hearing dates for additional cross-examination of Laurence or oral submissions.
  6. [96]
    I will hear from the parties as to the form of orders to be made today consequent of these reasons and as to costs.

Footnotes

[1]Portion 6, Parish of South End.

[2]Portion 10, Parish of Gunn.

[3]Ex TJJ-2 to the affidavit of Trevor John Jones filed 8 August 2019.

[4]Ex TJJ-3 to the affidavit of Trevor John Jones filed 8 August 2019.

[5]Ex TJJ-3 to the affidavit of Trevor John Jones filed 8 August 2019.

[6]Ex LLJ-1 to the affidavit of Laurence Llewellyn Jones filed 25 October 2019.

[7]Affidavit of Trevor John Jones filed 8 August 2019.

[8]Affidavit of Trevor John Jones filed 8 August 2019.

[9]Jones v Jones [2012] QSC 342 at [2].

[10](1873) LR 8 Exch 160.

[11]Fell v Fell (1922) 31 CLR 268 at 273.

[12]Abbott v Middleton (1858) 7 HLC 68 at 114; Fell v Fell (1922) 31 CLR 268 at 273.

[13]Perrin v Morgan [1943] AC 399 at 420.

[14]King v The Perpetual Trustee Company (Ltd) (1955) 94 CLR 70 at 77.

[15](1962) 107 CLR 604 at 617.

[16]Perrin v Morgan [1943] AC 399 at 406.

[17]Fell v Fell (1922) 31 CLR 286 at 273 at 274.

[18][1921] 2 Ch 491 at 503.

[19]See, for example, Royal Society for the Prevention of Cruelty to Animals v Sharp [2011] 1 WLR 980 at [22] and Allen v Crane (1953) 89 CLR 152 at 166.

[20](1858) 14 ER 794 at 94.

[21](1905) 3 CLR 344 at 345.

[22]See, for example, Springett v Jennings (1871) 6 Ch App 333.

[23][1977] Qd R 189.

[24]Re Knight [1977] Qd R 189 at 191.

[25]Succession Act 1981 (Qld) s 59(1).

[26]Succession Act 1981 (Qld) s 59(1).

[27]Ex TJJ-6 to the affidavit of Trevor John Jones filed 8 August 2019.

[28]Ex TJJ-8 of the Affidavit of Trevor John Jones filed 8 August 2019.

[29]Succession Act 1981 (Qld) s 55.

[30] Succession Act 1981 (Qld) s 59(3).

[31] [2001] QSC 282.

[32] Rodgers deceased, Re [2001] QSC 282 at [3].

[33]Rodgers deceased, Re [2001] QSC 282 at [14].

[34] Succession Act 1981 (Qld) s 59(1).

[35]Rodgers deceased, Re [2001] QSC 282 at [15].

[36]Ex TJJ-6 to the affidavit of Trevor John Jones filed 8 August 2019.

[37]Ex TJJ-7 to the affidavit of Trevor John Jones filed 8 August 2019.

[38]Ex TJJ-13 to the affidavit of Trevor John Jones filed 8 August 2019.

[39]Ex TJJ-11 to the affidavit of Trevor John Jones filed 8 August 2019.

[40]Ex TJJ-11 to the affidavit of Trevor John Jones filed 8 August 2019

[41]Ex TJJ-11 to the affidavit of Trevor John Jones filed 8 August 2019.

[42]Ex TJJ-11 to the affidavit of Trevor John Jones filed 8 August 2019.

[43]Ex TJJ-11 to the affidavit of Trevor John Jones filed 8 August 2019.

[44]Ex TJJ-14 to the affidavit of Trevor John Jones filed 8 August 2019.

[45]Ex JPH-1 to the affidavit of Justin Paul Houlihan filed 9 October 2012.

[46]Jones v Jones [2012] QSC 342 at [76].

[47]Re Lack [1983] Qd R 613.

[48]Creer & Anor – The Estate of Peters [2007] NSW SC 1291.

[49][2005] QSC 106 at [15].

[50]See also Kirkpatrick v Kavulak [2005] QSC 282.

[51]Ex TJJ-10 to the affidavit of Trevor John Jones filed 8 August 2019.

[52]Ex TJJ-12 to the affidavit of Trevor John Jones filed 8 August 2019.

[53]Ex TJJ-12 to the affidavit of Trevor John Jones filed 8 August 2019.

[54]Ex TJJ-11 to the affidavit of Trevor John Jones filed 8 August 2019.

[55]Ex TJJ-14 to the affidavit of Trevor John Jones filed 8 August 2019.

[56]Affidavit of Ross Ian Clark filed 15 November 2019.

[57]See Lade & Co Pty Ltd v Black [2007] QSC 385.

[58]Tipler v Fraser (1976) Qd R 272.

Close

Editorial Notes

  • Published Case Name:

    Jones v Jones & Ors

  • Shortened Case Name:

    Jones v Jones

  • MNC:

    [2020] QSC 6

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    10 Feb 2020

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QSC 610 Feb 2020Application for declaratory relief as to the proper construction of a will together with orders as to the executor's remuneration and injunctive relief; application allowed in part: Crow J.

Appeal Status

No Status
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