BAKRANICH & ORS -v- BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec)) & ORS [2005] WASC 12

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 12
Case No:	CIV:1593/2004	Heard:	15 NOVEMBER 2004
Coram:	MASTER NEWNES	Delivered:	22/02/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Bequests void
Category:	B
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Parties:	ALBIT BAKRANICH MIRCO BAKRANICH TONY BAKRANICH BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec)) PAUL ANTHONY ROBERTSON DAVID GREGORY ROBERTSON MIRKA ROBERTSON
Catchwords:	Succession Will Devises of portions of single lot Whether devises void for uncertainty Whether Town Planning & Development Act 1928 (WA) applies to devise Whether devises void by virtue of s 20(1)(a) of Act
Legislation:	Town Planning and Development Act 1928 (WA), s 20(1)(a) Wills Act 1970 (WA), s 26
Case References:	Asten v Asten [1894] 3 Ch 260 Betts v Connolly (1970) 120 CLR 417 Donaldson v Leaf [1907] VLR 278 In re Gifford; Gifford v Seaman [1944] Ch 186 In re Hodgson; Nowell v Flannery [1936] 1 Ch 203 In re Taylor; Taylor v Tweedie [1923] 1 Ch 99 Magrath v Morehead (1871) LR 12 Eq 491 Pass v Mills (1886) 7 LR (NSW) Eq 34 Perpetual Trustees Co Ltd v Gilmore [1979] 2 NSWLR 716 Re Lewis's Will Trusts, Lewis v Williams [1984] 3 All ER 930 Re Mulder; Westminster Bank v Mulder [1943] 2 All ER 150 Re Rayner's Will (1928) 23 Tas LR 41 Re Tetsall; Foster v Tetsall [1961] 2 All ER 801 Thellusson v Lord Rendelsham (1859) 7 HL Cas 429 Davis v Richards & Wallington Industries Ltd [1991] 2 All ER 563 In re Barrance; Barrance v Ellis [1910] 2 Ch 419 In re Cheadle; Bishop v Holt [1900] 2 Ch 620 Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33 Timber Top Realty Pty Ltd v Mullens [1974] VR 312 Transport Trading and Agency Co of WA Ltd v Smith (1905) 8 WAR 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BAKRANICH & ORS -v- BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec)) & ORS [2005] WASC 12 CORAM : MASTER NEWNES HEARD : 15 NOVEMBER 2004 DELIVERED : 22 FEBRUARY 2005 FILE NO/S : CIV 1593 of 2004 BETWEEN : ALBIT BAKRANICH

First Plaintiff

MIRCO BAKRANICH

Second Plaintiff

TONY BAKRANICH

Third Plaintiff

AND

BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec))

First Defendant

PAUL ANTHONY ROBERTSON

Second Defendant

DAVID GREGORY ROBERTSON

Third Defendant

MIRKA ROBERTSON

Fourth Defendant

(Page 2)

Catchwords:

Succession - Will - Devises of portions of single lot - Whether devises void for uncertainty - Whether Town Planning & Development Act 1928 (WA) applies to devise - Whether devises void by virtue of s 20(1)(a) of Act

Legislation:

Town Planning and Development Act 1928 (WA), s 20(1)(a)

Wills Act 1970 (WA), s 26

Result:

Bequests void

Category: B

Representation:

Counsel:

First…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakranich v Robertson

Details

AGLC: Bakranich v Robertson [2005] WASC 12
Case: [2005] WASC 12
Decision Date

CaseChat Overview and Summary

The plaintiffs, sons of the deceased, sought a declaration that certain bequests in their father's will were void. The will provided for the devise of portions of the deceased's principal residence and an attached granny flat, along with the lots on which they stood, to the plaintiffs' younger cousins. The plaintiffs argued that the bequests were void either for uncertainty or because they contravened the Town Planning and Development Act 1928 (WA). The defendants contended that the bequests were clear and certain and that the Act did not apply to devises in a will.

The court found that the bequests were void for uncertainty. Although the will referred to separate lots, there was no evidence that such lots existed or that the deceased had intended to create them. The court held that it could not determine what portions of the land the deceased intended to pass to the younger cousins and therefore the bequests failed for uncertainty. Additionally, the court found that the bequests contravened the Town Planning and Development Act, which prohibits the unlawful subdivision of lots. The court held that the devises in the will purported to divide the existing lot into smaller portions, which constituted a subdivision within the meaning of the Act. As the bequests were void for uncertainty, it was unnecessary to further consider whether they contravened the Act. The court declared the bequests void and reserved the question of costs for later determination.

Orders