Blockley v Challis - [2017] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 02471

MITCHELL BLAIR BLOCKLEY (as executor of the Will of Nigel Francis Blockley, deceased)	Plaintiff
v
PHILIP CHALLIS (in his capacity as the executor of the Will of Helen Blockley, deceased)	First Defendant
JANE HALL (representing herself and Nicholas Roger Thompson)	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2016
DATE OF JUDGMENT:	1 February 2017
CASE MAY BE CITED AS:	Blockley v Challis and anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 15

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WILLS – Construction – Testator granted right to B to reside in a property for ‘as long as she wishes’ – Property to be sold and proceeds distributed when B ‘ceases to use or reside permanently’ in the property – B died while living in the property – Whether ‘cease to use or reside’ includes cesser by way of death – Whether voluntary or involuntary cesser required

WILLS – Construction – Pecuniary legacies of specified amount to be paid from one-third of the proceeds of sale of the property – Specified amounts different in value from value of one-third of the sale proceeds – How legatees are to be paid – Whether pro rata division of sale proceeds is appropriate – Specified amounts ordered to be paid, with remainder falling as residue

WILLS – Evidence – Armchair principle – Extrinsic evidence – Whether uncertainty from surrounding circumstances or on the face of the will – Evidence of testator’s intention unhelpful – Wills Act 1997 (Vic) s 36

WORDS AND PHRASES – ‘Cease to use or reside permanently’ – ‘Cease’

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	TSA Lawyers
For the First Defendant	Mr S McNab	Gisborne Legal
For the Second Defendant	Mr P Pascoe	John Benninson

HER HONOUR:

The issue for determination in this proceeding is how the will of Nigel Francis Blockley (‘the deceased’) should be construed. There is a dispute between the executor of the deceased’s will (a stepson), the estate of his widow, and other stepchildren. The amount in dispute is approximately $92,000.

Background

The deceased’s first wife was Anne. Anne had five children with her former de facto partner, Roger Thompson.[1] Anne, along with three of her five children (Mitchell, Samantha and Nicholas) and family friends, assisted the deceased to build a family home at 35 Henderson’s Road, Wandin North (‘the property’).[2] The property had been purchased in 1982 and was the primary asset of the deceased.
[1]Affidavit of Jane Hall sworn 28 September 2016 (‘the Hall affidavit’) [6].
[2]The Hall affidavit [11]; the affidavit of Samantha Louise Blockley sworn on 28 September 2016 (‘Samantha’s affidavit’) [5]; Thompson affidavit [8].

Anne died in 1992. The deceased married Helen Blockley in 1996, with whom he had no children.[3] Helen moved into the property after their marriage, to reside with the deceased. Helen lived in the property until her own death in 2014, twelve years…

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 Blockley v Challis

Details

AGLC: Blockley v Challis [2017] VSC 15
Case: [2017] VSC 15
Decision Date: 1 February 2017

CaseChat Overview and Summary

The case of Blockley v Challis involved a dispute regarding the interpretation of a will. The deceased, who had granted the respondent the right to reside in a property for as long as she wished, specified that the property was to be sold and the proceeds distributed when the respondent ceased to use or reside in the property permanently. The respondent continued to live in the property until her death, leading to the question of whether the phrase ‘cease to use or reside permanently’ included cessation by way of death. Additionally, the will provided for pecuniary legacies of specified amounts to be paid from one-third of the proceeds of sale of the property, but these specified amounts differed in value from one-third of the sale proceeds. The court had to determine how the legatees were to be paid, considering whether a pro rata division of the sale proceeds was appropriate.

The primary legal issues the court had to address were whether the term ‘cease to use or reside permanently’ included cessation by way of death, and if a voluntary or involuntary cessation was required. Furthermore, the court needed to resolve the discrepancy between the specified pecuniary legacies and one-third of the sale proceeds, determining how the legatees should be paid. The court was also required to consider the applicability of extrinsic evidence in light of the ‘armchair principle’ and section 36 of the Wills Act 1997 (Vic).

The court held that the phrase ‘cease to use or reside permanently’ did include cessation by way of death, thereby triggering the sale of the property. The court reasoned that the testator’s intention was to ensure the property was not left vacant or unused indefinitely, and death constituted a permanent cessation of residence. Regarding the pecuniary legacies, the court found that the specified amounts were to be paid as directed, with any remainder falling as residue. The court held that extrinsic evidence was unhelpful in resolving the uncertainties, adhering to the principle that the court should not consider external evidence to determine the testator’s intention when the will is clear on its face. Consequently, the specified legacies were to be paid, and any shortfall would be distributed as residue.

Orders