Dalziel v Gott & Ors [2024] QSC 276

SUPREME COURT OF QUEENSLAND CITATION: Dalziel v Gott & Ors [2024] QSC 276 PARTIES: KENT WILLIAM DALZIEL AS ADMINISTRATOR OF THE ESTATE OF JOHN EDWARD GOTT (applicant) v TERRENCE MICHAEL GOTT (first respondent) and JAMES MICHAEL TERRENCE GOTT, MICHELLE CAMILLE GOTT, ROSEMARY FRANCES WILSON, JANICE CECILE KANE, KAREN ANN GOTT, ANNEMIEKE SCHNEIDER, MAARINKE VAN DER MEULEN, ARNDERS VAN DER MEULEN AND CRISTIAEN VAN DER MEULEN (second respondents) FILE NO/S: 10675 of 2024 DIVISION: Trial Division PROCEEDING: Application DELIVERED EX TEMPORE ON: 30 October 2024 DELIVERED AT: Brisbane HEARING DATE: 25 October 2024 JUDGE: Burns J ORDER: The Order of the Court is that: 1. Pursuant to s 6 of the Succession Act 1981 (Qld), upon the proper construction of clause 3 of the last Will of JOHN EDWARD GOTT dated 29 August 2012, the gift of the house property described as “Florida” comprises the land and real property described as Lot 5 on Registered Plan 96296 on Title Reference 14454132 and Lot 6 on Registered Plan 96296 on Title Reference 14454133. 2. The Applicant’s costs be paid from the estate on the indemnity basis. 3. The costs of the Second Respondents be paid from the estate on the indemnity basis. CATCHWORDS: SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – GENERALLY – where the administrator of an estate brought an application for a declaration as to the -- 1 of 5 -- 2 COUNSEL: SOLICITORS: proper construction of a Will – whether the testator intended to gift his brother a single parcel of land or two adjoining parcels - whether the language used in the Will, or part of it, was ambiguous on the face of the Will or ambiguous in light of surrounding circumstances – whether the “armchair principle” could be deployed to take into account the testator’s “habits of speech and family, property, friends and acquaintances” Succession Act 1981 (Qld), s33C Mann v Mann [2024] QSC 50, cited The Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339, cited Suthers v Suthers [2015] QSC 285, cited K Kluss for the applicant I Klevansky for first-named second respondent M Dwyer for the fourth-named second respondent and as friend of the court for the sixth-named, seventh-named, eighth- named and ninth-named second respondent The Estate Lawyers for the applicant Robert Bax and Associates for the first-named second respondent Michael Dwyer Solicitor for the fourth-named second respondent [1] BURNS J: This is an application for a declaration as to the proper construction of a clause in the Will of the late John Edward Gott. It was executed on 29 August 2012. Mr Gott died on 1 August 2014. The applicant is the administrator of Mr Gott’s estate. [2] The clause in question makes a gift of real property to the first respondent, Terrence Michael Gott. He was the brother of the Deceased. The issue is whether, in making that gift, the Deceased intended that it comprise a single parcel of land or two adjoining parcels. If the clause, when properly construed, gifts only one parcel of land, the other parcel will fall into residue and will pass to a number of the second respondents in various shares, as residuary beneficiaries under the Deceased’s last Will. On the other hand, if the subject clause, when properly construed, gifts both parcels of land, they will pass to the first respondent. [3] Following the commencement of this proceeding, the first respondent died. That was on 18 June 2023. His interests are represented by the executor of his estate, Ms Carmichael. The two first-named second respondents, James Michael Terrence Gott and Michelle Camille Gott, are the beneficiaries of Terrence Michael Gott’s estate. -- 2 of 5 -- 3 [4] The clause under consideration – clause 3 – relevantly provides as follows: “I give and devise all my right, title and interest in and to house property ‘Florida’, 487 Main Western Road, Mount Tamborine (‘my residence’) PROVIDED HOWEVER should my residence have been sold during my lifetime then in lieu thereof I GIVE a sum of money (which is the same amount as the amount of the proceeds of sale of my residence, after deduction of commissions, legal and like expenses of sale) together with all furniture and other articles and effects of domestic, household and garden use or ornament (without limiting the generality same to include paintings and carpets and to exclude motor vehicle) to my brother …” [5] By s 33C of the Succession Act 1981 (Qld), evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in a Will if the language, or part of it, is meaningless, ambiguous on the face of the Will, or ambiguous in the light of surrounding circumstances. However, evidence of the testator’s intention is not admissible to establish any of those circumstances: s 33C(2). Plainly, though, extrinsic evidence of the surrounding circumstances may be admitted in determining if the Will or part of it is ambiguous in their light. Also, by sub-s (3), s 33C does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a Will. That means, relevantly, that the “armchair principle”, permitting the Court as it does to sit in the position of the testator to take account of his or her “habits of speech and family, property, friends and acquaintances”, may still be deployed to determine what the testator meant by the words used in his or her Will. However, like the restriction in s 33C(2), this principle does not allow direct evidence to be given of the testator’s intention by, for example, allowing evidence of the instructions given to the solicitor who drafted the Will. (See The Public Trustee of Queensland v Smith [2009] 1 Qd R 26, [31]-[32]; Suthers v Suthers [2015] QSC 285, [3]-[4]; Mann v Mann [2024] QSC 50, [32]-[36].) [6] The applicant’s only interest in this application is the proper administration of the estate. Put another way, he has no beneficial interest in the way in which clause 3 is construed. In contrast, the first-named second respondent, James Michael Gott, is very much concerned in the outcome of the application because he contends for a construction that, if correct, would see both parcels of land pass to the estate of the first respondent in which he will take. For the purposes of this application, I proceed on the basis that he has the onus of persuading me that his construction is correct. As for the applicant, he has quite rightly advanced the alternative construction – that -- 3 of 5 -- 4 clause 3 conveys only the parcel of land on which the house was constructed – in the role of legal contradictor to assist the court. [7] According to the plain (or usual) meaning of the words used in clause 3, the property gifted under it was: (a) a house property; (b) known as “Florida”; (c) situated at 487 Main Western Road, Mount Tamborine; and (d) referred to by the testator, three times in that clause, as his “residence”. [8] The administrator submitted that the wording of the clause is therefore clear and demonstrates an intention on the part of the Deceased to gift the house property in which the Deceased resided at 487 Main Western Road to the first respondent. Further, it was submitted, there is no language in clause 3 which makes the gift meaningless or ambiguous on its face. The question, it was argued, was whether the language of clause 3 is ambiguous in light of the surrounding circumstances, but, after an examination of the circumstances proved by affidavit on the hearing of this application, the administrator submitted there was not. [9] I cannot agree. In my view, there is ambiguity in the words used in light of the proven surrounding circumstances but, if I am wrong about that, recourse may nonetheless be had to the “armchair principle” to determine what the testator actually meant by the words used in clause 3 to describe the property gifted. [10] Either way, I am persuaded that, by the words used in clause 3, as considered in the light of the surrounding circumstances, the testator was referring to both parcels of land. [11] First, both parcels were purchased by the testator and others in 1979. A house and garage were constructed on one parcel – Lot 5. On the adjoining parcel – Lot 6 – what are described as “intricately-planned gardens” were constructed. The house and gardens were, together, designed as two parts of a whole and in accordance with a contour plan of the overall property. For example, the house was positioned on Lot 5 to maximise the view over the gardens and, to that end, the bedrooms, verandah and kitchen were positioned accordingly. Indeed, the building contract for the construction of a “residence” on the land specified that land to be Lots 5 and 6, and the testator appears to be one of the signatories to that contract. The gardens incorporate several permanent structures such as water features, ponds and the like, -- 4 of 5 -- 5 the supply of electricity (and perhaps also water) from the house and interconnected pathways that all link in one way or another to the house and garage. As James Gott deposed, the gardens complement the house and vice versa – each is an integral part of the other. Unsurprisingly then, what evidence there is from sources such as James Gott, Shirley Gott, Julie Gott and Phyllis McGill (a neighbour) support the conclusion that the testator took immense pride in the gardens, enjoyed spending time in them and showing them in competitions and, all things considered, regarded the house and gardens as component parts of his home which he referred together as “Florida”. I am therefore satisfied that, when referring to his “house property” known as “Florida” and his residence in clause 3, the testator was referring to both parcels of land and the improvements on them. [12] Second, although the street address for Lot 6 is different to that for Lot 5, the mention in clause 3 of only the street address for Lot 5 is hardly determinative. That is a common practice among owners of multiple blocks in the part of Main Western Road where “Florida” is situated. Also, the testator made a prior Will through a different solicitor on 12 November 2007. Although caution is required because that Will was of course revoked, by clause 4 of it, the testator gifted the land and residence located at the street address for Lot 5 and then spelt out the real property descriptions for both Lot 5 and Lot 6, the point being that the street address incorporated in clause 3 of the operative Will was the same street address used in the prior Will as the location for both parcels of land. [13] Last, I do not think the circumstances relied on by the administrator to support his construction (in the event that extrinsic evidence regarding the surrounding circumstances is admitted, as I have done) – such as the construction of the house wholly within Lot 5 and the gardens (at least predominantly) within Lot 6, the separate title references and street addresses and the fact that the two parcels would achieve a significantly higher return if sold separately than if sold together – detract at all from the conclusion I have reached as to what the testator actually meant by the words used in clause 3. [14] Order as per draft, initialled by me and placed with the papers. -- 5 of 5 --