Bakranich v Robertson

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.