Re Mason

[2014] QDC 63
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE DEVEREAUX SC
No. 477 of 2014
RE: MASON
BRISBANE
12.17 PM, THURSDAY, 27 FEBRUARY 2014
ORDER

HIS HONOUR: This is an application for orders concerning the construction of a will and orders pursuant section 98 of the Succession Act 1981 and rule 657C of the Uniform Civil Procedure Rules for a commission to be allowed to the executor and trustee for her pains and trouble in connection with her administration of the estate of the deceased. I borrow heavily from the outline of Ms Sheean for these brief reasons for making the orders sought.

The applicant is the executor of the estate of the deceased who died on 12 April 2013. The applicant was granted probate of the will in July 2013. The applicant executor is a beneficiary under the will, having been given a specific bequest. That is not expressed as a gift in compensation for the pains and trouble in connection with the administration of the estate and I do not infer that it was meant as such.

The deceased named two residuary beneficiaries; both are charities. In the will they were identified as the Royal Society for the Prevention of Cruelty to Animals (Queensland branch) and the Royal Brisbane Hospital for its research purposes.

There has never been a charity called the Royal Society for the Prevention of Cruelty to Animals (Queensland branch). There is a charity called the Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated.

The Royal Brisbane Hospital Research Foundation was established by the Hospitals Foundation Act 1982 as the fundraising arm of the Royal Brisbane Hospital. That Hospital has been combined with the Royal Women’s Hospital so that there is now the Royal Brisbane and Women’s hospital. By the Hospital Foundations Amendment Regulation number 1 of 2003 the research foundations for the two hospitals were combined to become the Royal Brisbane and Women’s Hospital Foundation.

So at the time the deceased made her will no such RSPCA body, as was described in the will, existed and the Royal Brisbane Hospital and its fundraising arm had ceased to exist. The will, I think I have omitted to say, was dated 23 March 2007.

It’s submitted, and I accept, that this may be treated as a case of misdescription of beneficiaries. I’m referred to the decision Woodgate v Tanks & ors (2013) QSC 204 in which Margaret Wilson J said at paragraph 38,

“Misdescription is not uncommon in testamentary dispositions. The court is reluctant to allow misdescription to vitiate a gift and leans against a finding of intestacy. In such cases, the Court of Construction will apply the principle of falsa demonstratio meaning false description does not vitiate provided that the thing or person described can be sufficiently identified.”

I’m satisfied that the entities meant to be benefited by the deceased in her will are sufficiently identifiable as the Royal Society for Prevention of Cruelty to Animals Queensland Incorporated and the Royal Brisbane and Women’s Hospital Foundation and so I’m satisfied the orders for assistance in construction of the will should be made. I’ve considered whether the amalgamation of the Royal Brisbane Hospital and the Women’s Hospital gives rise to an issue about the testator’s intention but I’m quite satisfied that identifying the Royal Brisbane and Women’s Hospital Foundation as the beneficiary is appropriate and in accordance with the testamentary intention.

I’m also satisfied that the order for commission should be made. I don’t propose to detail the matters set out. It’s sufficient to say that much needed to be done and many hours were spent carrying out the wishes of the deceased and I’ll make that order as well. I just pause. Ms Sheean, do you submit there’s anything else I need to make order – finding I need to make or ‑ ‑ ‑

MS SHEEAN: No, your Honour. If your Honour wished to you could dispense with the need for the filing of accounts but by making the commission – the order for commission I would suggest that that is inherent in that particular order.

HIS HONOUR: Well, then I won’t. I’ll just make the orders as per draft.

MS SHEEAN: Yes.

HIS HONOUR: Yes. I’ll make the orders as per draft which I’ll initial.Thank you for your assistance.

MS SHEEAN: Thank you, your Honour.

HIS HONOUR: And I’ll adjourn.

______________________

The District Court of Queensland, in the case of Re Mason, dealt with an application concerning the construction of a will and the allowance of a commission to the executor and trustee for their efforts in administering the estate of the deceased. The applicant, who is also a beneficiary under the will, sought orders under section 98 of the Succession Act 1981 and rule 657C of the Uniform Civil Procedure Rules. The deceased had named two charities as residuary beneficiaries in her will, but these charities had either ceased to exist or changed their names since the will was made. The court was required to determine whether the misdescription of the beneficiaries in the will could be corrected to reflect the intended beneficiaries.

The court considered the principle of falsa demonstratio non nocet, which means a false description does not vitiate a gift, provided the intended beneficiary can be identified. The court found that the intended beneficiaries could be sufficiently identified as the Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated and the Royal Brisbane and Women's Hospital Foundation. The court was also satisfied that the executor and trustee had expended significant time and effort in administering the estate, justifying the granting of a commission. The court made orders to assist in the construction of the will and to allow a commission to the executor and trustee for their pains and trouble.

The final orders were made in accordance with the draft provided by the applicant's solicitor, and the court did not require the filing of accounts as it was inherent in the order for commission. The case highlights the court's willingness to correct misdescriptions in wills to ensure the intended beneficiaries receive the gifts, and to recognise the efforts of executors and trustees in administering estates.

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