DUBOIS v HODGSON [1999] NSWSC 1065

New South Wales Supreme Court CITATION : DUBOIS v HODGSON [1999] NSWSC 1065 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1510/99 HEARING DATE(S) : 22/09/99 and 23/09/99 JUDGMENT DATE : 23 September 1999

PARTIES : EDWARD GEORGE DUBOIS v ISABELLA HODGSON & 2 OTHERS JUDGMENT OF : Master Macready at 1

Mr B. Ralston for the plaintiff COUNSEL : Mr P Blackburn-Hart for the 3rd defendant Mr Jamieson for the 4th defendant Robert D. West & Associates for the plaintiff SOLICITORS : Windeyer Dibbs for the 3rd defendant Dollan Wong Turvey for the 4th defendant CATCHWORDS : Succession. Wills Probate & Administration. Construction of gift for a purpose. Held the gift passed to those entitled to the property which was the object of the purpose gift. Use of armchair principle of construction. Commissioner for Stamp Duties (Qld) v Livingston (1965) AC 694 at 717. re Bowes, Earl of Strathmore v Vane (1896) 1 Ch 507 CASES CITED : Allgood v Blake (1873) LR 8 Ex 160 at 162 Theobold on Wills 5th ed at p321. Allen v A.G. (1914) 15 SR (NSW) 41. re Lipinski's Will Trusts 1976 1 Ch 235 DECISION : Paragraphs 49, 50 and 51

-1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

THURSDAY 23 SEPTEMBER 1999

001510/99 - EDWARD GEORGE DUBOIS v ISABELLA HODGSON & 3 ORS

JUDGMENT

1 MASTER:. This is the hearing of an application brought for construction of a will of the late John Smyth. It is probably convenient to firstly mention the beneficiaries who take under that will in order to put into context the matters that I have to deal with later. 2 The will was made on 4 September 1990. Iolanda Hoare, who I will refer to as Iolanda, is the second defendant. She is the plaintiff in other proceedings which are before me for hearing in which she seeks an order under the Family Provisions Act. She in these proceedings deposes to the fact that she lived with the deceased in a de facto relationship which commenced in the mid to late 1960s and continued up until the time the deceased was admitted to hospital in 1990. 3 Yvonne Hoare, who I will refer to as Yvonne, is the third defendant. She is the daughter of Iolanda. She is not suggesting that she is a member of the deceased household or dependant upon the deceased. 4 Isabella Hoare, who I will refer to as Isabella, is the first defendant. In the Family Provision Act proceedings she deposes to the fact that she and the deceased lived in a de facto relationship from a period commencing about May 1989 up until the deceased's death. 5 The plaintiff in the proceedings, Edward George Dubois, is the executor of the will. He was also a friend the deceased, having met him in November 1986 when he and the deceased operated businesses in adjoining joining premises. 6 Tony Drieman, who I will refer to as Mr Drieman, was a friend of the deceased. He rented a property known as 34 Pacific Highway, Mooney Mooney from the deceased prior to the death of the deceased. Mr Drieman survived the deceased but died himself on 6 June, 1997. 7 The fourth defendant is the executor of the last will of Mr Drieman and is the beneficiary under that will of any estate or interest which Drieman is found to have had as at the date of his death in the Mooney Mooney property. 8 Alexander Filby is the half brother of the deceased. He is not a party to the proceedings but Mr Filby and the deceased, until the death of Mr Filby on 13 May 1989 were the owners as joint tenants of a property known as 7 Walker Place, Church Point (the Church Point property) and certain shares and money on deposit. 9 As I mentioned, he predeceased the deceased and some of the assets which were jointly owned with the deceased passed to him by virtue of survivorship. There were other assets which he had with Mr Filby and those assets pass to the deceased. 10 No application for probate of Mr Filby's will was made by the deceased in his lifetime and the plaintiff, as the legal representative of the deceased, obtained a grant of probate of Mr Filby's will upon the death of the deceased. 11 I will mention for the record, because it will be useful, the assets of the deceased at the date of death. He owned a number of pieces of real estate, namely, 7 Walker Place, Church Point. That is the jointly owned property to which I have referred. There is the property at 34 Pacific Highway, Mooney Mooney to which I have also referred. Another property was 7 Helen Street, Sefton, to which I shall refer as the Helen Street property. There was also 42, 44, 46 and 48 Neill Street, Harden, known as the Harden shops. He held a property at 146 Neill Street, Murrumburrah and another one at 27 Neill Street, Harden. Two other properties were held. One was 96 Waldron Road, Chester Hill and another at 344 Albury Street, Murrumburrah. 12 He had money on deposit of some $15,000 and shares in companies of just under $30,000. He had two motor vehicles and an interest in the estate of his stepbrother, Mr Filby. 13 The will in respect of which these proceedings have been commenced is one which was drawn by the deceased. Some of the provisions are easily understood. Accordingly under the will it is clear that the Helen Street property and all the possessions in this pass to Isabella. The Murrumburrah Post Office property and its contents pass to Isabella as do the Toyota motor vehicle and the picture framing machinery in the Waldron Road property. 14 The Church Point property and it its contents was left to Isabella and Yvonne in equal shares as tenants in common. The Harden Shop properties, 27 Neill Street and 147 Neill Street were all left to Iolanda. 15 The Waldron Road property was held on trust for the plaintiff during Isabella's life with rentals during that time to be paid to Isabella. The remainder passes to the plaintiff. 16 The other provisions in the will are not that clear and I will deal now with the outstanding matters which will require the court to form a view as to the appropriate construction of the will. 17 The will of the deceased is three pages long and the last paragraph of the will provides as follows: "Any assets or property not bequeathed by the above bequests to be bequeathed to Yvonne Hoare"