Baukhorn, Re; Re Hunter [1993] QSC 387

. I 1 Sc9.3/3&, Bureau\ TRA.NSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copit·s tht.•reof must not be made or sold without the written authority of the Oirector, State Hcporting Bureau.) ~:~~=: :_' ._:·:~.~-~2~..:~c, ~ l ~~;:.~::: ' ... -,~ ~ .:r::·.~·.: ~ j Ode~ ;f.{_,' .1'~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J OS No 1031 of 1992 IN THE MATTER OF THE TRUSTS ACT, 1973 and IN THE MATTER OF ORDER 64 OF THE RULES OF THE SUPREME COURT and IN THE MATTER OF THE WILL OF ALICE MARY TITANIA DORETTE BAUKHORN and IN THE MATTER OF AN APPLICATION BY KEITH JAMES HUNTER AS TRUSTEE AND EXECUTOR OF THE SAID WILL BRISBANE .. DATE 26/11/93 .. JUDGMENT 1 4111 Floor, Tile l.au· C'ourfs, (;cor!!e _.,·,reef. llrid"""' 1 l .1tlllll · -- 1 of 9 -- 261193 se (Derrington J) HIS HONOUR: It is declared that on the full meaning and effect of the will of the deceased Alice Mary Titania Dorette Baukhorn, the real property owned by the deceased at the date of her death and situate at 78 Chisolm Road, Carrara, does not pass pursuant to clause 12 of the will of the deceased. The cost of all parties of and incidental to the action are to be paid from the estate of the deceased. I publish my reasons. HIS HONOUR: They will be on a solicitor and own client basis. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND HELD AT BRISBANE O.S.No. 1031 of 1993 IN THE MATTER of the Trusts Act. 1973 -and- IN THE MATTER of Order 64 of the Rules of the Supreme Court -and- IN THE MATTER of the Will of A LICE MAR Y TIT ANIA DORETTE BAUKHORN -and- IN THE MATTER of An Application by KEITH lAMES HUNTER as Trustee and Executor of the said Will JUDGMENT - DERRINGTON I. Delivered the 26th day of November, 1993 This is an application for the interpretation of a provision in the will of the above-named deceased who died at the age of 83 years without any surviving issue. The relevant provision reads as follows: "12. I GIVE AND BEQUEATH my house which I die possessed as my principal place of residence to my Trustees to hold in trust for my nephew MICHAEL FEUERSTEIN upon the condition that he attain the age of 25 years." The will contains a "rest and residue" clause into which the relevant property will fall if it does not come .within the description of this clause, and the potential -- 3 of 9 -- 2 beneficiaries under that provision have appeared to contest the claim of Michael Feuerstein that cl. 12 has effective operation in the present circumstances. The parties have agreed that the following facts are not in dispute: 1. The testatrix died on the 17th March, 1993. 2. A grant of probate of the will was made on the 15th July, 1993. 3. The testatrix executed her last will on the 24th April, 1992. 4. A Codicil to that will was executed on the 28th September, 1992. 5. At the time of execution of her last will and the Codicil the testatrix was the registered proprietor of 29 Macquarie A venue, Silver Bridle on the Gold Coast (the Silver Bridle residence). She had resided at that address continuously for some years prior to the date on which she executed the said will. 6. The testatrix moved to reside at De Paul Villa, Edmond Rice Drive, Ashmore, on or about the 30th July, 1992. She was not the owner of that premises but resident pursuant to a lease agreement. 7. On or about the 23rd November, 1992 the testatrix contracted to sell her Silver Bridle residence. 8. The contract was settled on the 11th December, 1992. 9. By contract dated the 18th January, 1993 the testatrix agreed to purchase as vacant land the real property situated at Lot 85, Chisolm Road, Carrara at the Gold Coast (the Chisolm Road property). 10. The contract for sale was completed on the 12th February, 1993. 11. At or about the time she purchased the Chisolm Road property the testatrix entered into a building contract with Jussam Pty. Ltd. for the construction of a residential premises on the Chisolm Road land. 12. At the date of the testatrix's death, the residence at Chisolm Road had been completed to a "lock up" stage. 13. The only real property beneficially owned by the testatrix at the date of her death was the Chisolm Road property. 14. At the time of making her last will and Codicil to her last will the only real property beneficially owned by the testatrix was the Silver Bridle property. -- 4 of 9 -- 3 15. The Beneficiary, MICHAEL FREDERICK FEUERSTEIN, as referred to in clause 12, is the Beneficiary before the Court. He had attained the age of 25 years being born on the 20th day of September, 1962. 16. From November 1992 until a date no later than 11th March 1993 the deceased had an intention to move from the hostel and reside in the Chisolm Road property. They are content to have this matter determined upon these facts and the other material that has been produced. The residence by the testatrix in De Paul Villa was governed by a "hostel resident's agreement" which granted her a licence to occupy a room there and provided for the supply of all meals, access to personal support and care when needed, social activities, and security, in a Catholic environment. It was indeterminate in time. As it turned out, on about the 11th March 1993 she had a serious stroke and was very close to death. This made it essential that she be placed in a nursing home and her agreement with De Paul Villa was terminated. She was taken to a nursing home where at some unknown time she lapsed into a coma which persisted until she died. The only issue in this application is whether in the circumstances cl. 12 of the will refers to the house at Chisolm Road which she intended to make her place of residence at an appropriate time but which she had never occupied. At the moment immediately before her death she was an occupant of the nursing home with the high likelihood at the time, and the certainty as it turned out, that she would never leave it alive. However, this cannot be regarded as her residence for the purpose of the present exercise because it was a place of temporary refuge only, forced·upon her by an emergency: cf. In Re Rowell deceased; Public Trustee v. Bailey (1982) 31 S.A.S.R. 361, 371-372. The difficulty lies largely in her having resided in the De -- 5 of 9 -- 4 Paul Villa immediately prior to her stroke, ·with the intention of continuing to reside there temporarily and in the absence of evidence- of any then present intent at any time prior to her death to enter into residence of the Chisolm Road house at once. Some assistance is derived from the Succession Act 1981 of which s.28 reads: "General Rules for the Construction of Wills. Unless a contrary intention appears by the Will - (a) the Will is to be construed, with reference to the property comprised in it,. to speak and take effect as if it had been executed immediately before the death of the testator ... " This substantially reproduces the common law. Because she was comatose immediately before her death the testatrix had no intention at that moment as to where she principally intended to live but this causes little problem. If at that time she had been capable of having an intention then because she was so permanently disabled it is unlikely that she would have intended to live in the house. Equally, immediately before she became comatose, because she was already obviously permanently disabled it is probable that her attitude would have been the same. Accordingly on the application of the section, this clause of the will is to be read as at a time when the testatrix would probably have abandoned any intention of residing in the property in the future although that may have been her earlier intention. The question is whether in that context it could be described by her as "my house which I die possessed as my principal place of residence". There is little doubt, and it has properly been admitted, that she intended that the house would in time become her principal place of residence, but that time had not arrived when her stroke intervened. Although the house construction had reached the lock-up stage, this predicates that it was not yet quite ready for her ....-::::- -- 6 of 9 -- .. 5 residence in it. If while she was in the nursing home the house had become ready .for occupation and if she intended that she would go . into occupation as . soon as her: health permitted it, then it is arguable that even at that time it had become her principal place of residence within the meaning of the clause despite that she was of necessity prevented temporarily from occupying it. If that were so, it is also arguable that it would not have lost that status by reason of her residence in the nursing home because of her terminal illness. However this position was never reached. She had been residing in the hostel for eight months, probably on a temporary basis only until she acquired another residence which, as time went on, became potentially the Chisolm Road house. However the difficulty lies in her never having advanced beyond futurity in her intention to reside in it. After she suffered her stroke, it could not be said that she even had that intention, and that was the position immediately before her death. It is therefore not possible to say that at the time immediately before her death the house was then her "place of residence". Never could she accurately have said, "That is my residence", as distinct from, "That will be my residence." This result is emphasised by the circumstance that at her death the house had not reached the stage of completion where she would have had an intention of residing in it immediately. There is a temptation to say that because she intended to reside permanently in the house when it was finished and was residing in the De Paul Villa only temporarily, she had adopted the house as her "principal place of residence" as soon as it had become identifiable as a house, even though she did not intend to move into it immediately. This temptation is supported by the strong expectation that if her -- 7 of 9 -- r 6 stroke had not occurred, she would shortly afterwards have taken up residence in the house and it then would have come within cl. 12, which no doubt would have been in accord with her wishes. However to this effect it would be necessary to construe the relevant phrase as a concept that included a place of intended future residence. The difficulty is that as a global description of such a concept it would just be wrong. It would artificially ignore the time element of the intent, that is, the difference between the intention to reside there at the time of the intention and the intention to do so at a future time. Consequently, despite their temptation, the words of the will, even interpreted broadly, but accurately, cannot support such a result, and it is the words which she used, not what the testatrix might have hoped for, which control the result. The introduction of extrinsic evidence as to her intention has been necessary, not for the process of interpretation of her words, for that would not be admissible, but in order to determine the fact of residence or otherwise so as to identify the subject matter (if any) of the devise as described by the words alone. Intention is often, as here, a significant element of residence, for a person may be resident in one place though temporarily absent from it. The search has been for a subject matter supported by that intention which answers the description contained in the will. Consequently while extrinsic evidence as an aid to construction of a will is not receivable where it is unambiguous and sensible on its face [Re Allen (1988) 1 Qd.R.l], its admission here was not for that purpose and so does not contravene the rule. .. -- 8 of 9 -- 7 It is declared that, on the full meaning and effect of the said will, the real property owned by the deceased at the date of her death and situate at 76 Chisolm Road, Carrara does not pass pursuant to cl. 12 of the will of the deceased. The costs of all parties of and incidental to the application are to be paid from the estate of the deceased. -- 9 of 9 --