Best v Gardner - [2013] NTSC 60

Best v Gardner [2013] NTSC 60
PARTIES:BEST, Brian James
v

GARDNER, Dean Harry
As Executor of The Will of
MARGARET JANE BEST

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:70 of 2013 (21333474)
DELIVERED:  23 September 2013
HEARING DATES:  19 September 2013
JUDGMENT OF:  RILEY CJ
CATCHWORDS:

WILLS AND PROBATE — Construction and effect of testamentary dispositions — Misdescription of asset — Falsa demonstratio non nocet — Whether bequest of ‘MLC Shares’ was intended to refer to MLC investment accounts.
Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404; In re Gifford; Gifford v Seaman [1944] 1 Ch 186; Hardwick v Hardwick (1873) 16 LR Eq 168, applied.
Perrin v Morgan [1943] AC 399; Pringle v Pringle [2010] WASC 206, referred to.
REPRESENTATION:
Counsel:
Plaintiff:R Arndt
Defendant:L McCrimmon
Solicitors:
Plaintiff:Ryan Arndt Barrister and Solicitor
Defendant:Bill Piper Barristers and Solicitors
Judgment category classification:    B
Judgment ID Number:  Ril1315
Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Best v Gardner [2013] NTSC 60

No 70 of 2013 (21333474)
BETWEEN:

BRIAN JAMES BEST

Plaintiff

AND:

DEAN HARRY GARDNER as Executor
of The Will of MARGARET JANE BEST

Defendant

CORAM: RILEY CJ
REASONS FOR JUDGMENT
(Delivered 23 September 2013)

The plaintiff is the son of the late Margaret Jane Best, who died on 27 August 2012. He is one of the beneficiaries under her will dated 10 July 2012. The defendant is the executor of the estate. The defendant was granted probate on 16 January 2013.
Clause 7 of the will provides:
I give devise and bequeath my MLC Shares to be divided as follows:
7.1 Bernadine Best 80%,
7.2 Brian Best 20%.
At the time of her death the testator’s assets included financial products described as an MLC Master Key Unit Trust Account valued at $202,256.38 and an MLC Master Key Super and Pension Fundamentals Account valued at $ 1,073,655.38 (‘the MLC Accounts’). There were no other assets in the estate which could possibly be described as ‘MLC Shares’.
The plaintiff commenced these proceedings seeking a declaration that the MLC Accounts do not form part of the property described as ‘my MLC Shares’ in cl 7 of the will. The defendant seeks a declaration as to the proper meaning of the words ‘MLC Shares’ in cl 7 of the will.
The expression ‘MLC Shares’ is not defined in the will and nor are there any references in the will itself which might assist in defining more accurately the meaning of the term.
The evidence placed before this Court reveals that MLC Limited is a long-established company which specialises in the provision of financial products. Although it is a public company, it is a wholly owned subsidiary of the National Australia Bank. It was not possible for the testator to own shares in the company or any of its subsidiaries. No such shares were listed or…

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 Best v Gardner

Details

AGLC: Best v Gardner [2013] NTSC 60
Case: [2013] NTSC 60
Decision Date: 23 September 2013

CaseChat Overview and Summary

The case of Best v Gardner involved a dispute over the interpretation of a will. The deceased had bequeathed certain ‘MLC Shares’ to his son, but it was unclear whether this referred to shares in a company or investment accounts with MLC. The dispute was ultimately brought before the court to determine the correct interpretation of the will and the distribution of the deceased's estate. The legal issues before the court were whether the misdescription of the asset in the will could be corrected and whether the term ‘MLC Shares’ was intended to refer to the investment accounts.
The court considered the doctrine of falsa demonstratio non nocet, which allows for corrections to be made to misdescriptions in a will where the intention of the testator is clear. The court found that the deceased's intention was to bequeath his MLC investment accounts to his son, despite the misdescription of the asset in the will. The court also considered the context in which the will was made and the circumstances surrounding the deceased's estate. The court held that the misdescription could be corrected and that the bequest of ‘MLC Shares’ was intended to refer to the investment accounts.
As a result, the court ordered that the MLC investment accounts be distributed to the son as per the deceased's intention. The court's decision provides guidance for executors and beneficiaries in similar situations where there may be uncertainty over the interpretation of a will. The court's approach to the doctrine of falsa demonstratio non nocet and the importance of considering the context and circumstances of the will are key takeaways for legal practitioners.

Orders