Official Receiver in Bankruptcy v Schultz [1990] HCA 45

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. Official Receiver in Bankruptcy v Schultz [1990] HCA 45

ORDER Appeal allowed. Order that the costs of the appellant of the appeal and the costs of the respondents of and incidental to the appeal be paid out of the deceased estate. Set aside the orders of the Full Court of the Supreme Court of Queensland. In lieu thereof,

1. order that the appeal to that Court be dismissed;

2. order that the costs of the appellant of that appeal and the costs of the respondents of and incidental to that appeal be paid out of the deceased estate.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 8 Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

Elaine Ethel Pereira died on 18 June 1987. By her will, she provided:

3. I give devise and bequeath the whole of my real and personal estate whatsoever and wheresoever situate unto and to the use of my Trustees upon the following trusts that is to say:—

(a) As to my personal belongings and effects and my jewellery or clothing of which I may die possessed for Merle Heather Schultz;

(g) As to the house and contents at 43 Renton Street, Camp Hill, Brisbane to the said Merle Heather Schultz.

Merle Heather Schultz and her husband were the executors of Mrs. Pereira's estate and are the respondents to this appeal. On 11 March 1985, Mrs. Schultz had been declared bankrupt under the Bankruptcy Act 1966 Cth and a sequestration order had been made against her estate.

After Mrs. Pereira's death, her husband made an application for provision out of her estate pursuant to s. 41 of the Succession Act 1981 Q. That application was successful. On 26 July 1988, Moynihan J. directed that the will "be read and construed as though the name Shelton Clement Pereira appeared in Clause 3(g) thereof instead of the name Merle Heather Schultz".