Brant v Murray

[2016] WASC 390

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BRANT -v- MURRAY [2016] WASC 390

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   30 NOVEMBER 2016

FILE NO/S:   CIV 2011 of 2016

MATTER                :The will of LAURA GWENDOLINE BOOTH, late of 16B Dubove Road, Spearwood, Western Australia, deceased

BETWEEN:   DEAN PETER BRANT

Plaintiff

AND

HELEN MURRAY
First Defendant

JUSTIN STEWART ARNOLD
Second Defendant

Catchwords:

Wills - Interpretation of conditions subsequent in 'home made' will - Turns on own facts

Legislation:

Nil

Result:

Clause 3 of the will varied

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

First Defendant              :     No appearance

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Leaker Partners

First Defendant              :     Port Legal Lawyers

Second Defendant         :     Merwida Law

Case(s) referred to in judgment(s):

Kotsar v Shattock [1981] VR 13

Re Faulwasser (dec) [1967] VR 182

1. MASTER SANDERSON:  Over the years I have made countless statements in judgments bemoaning the fact testators seem to think they can adequately deal with their estate by way of a homemade will.  Really there is nothing left to say on the topic.  This case reinforces again the difficulties which so frequently arise.  What should have been a simple grant of probate to give effect to a straightforward disposition of a small estate requires the intervention of the court.

2. At issue is the will of the late Laura Gwendoline Booth dated 19 August 2011.  The difficulty arises with respect to a gift of the deceased's house and contents, money and car to her nephew, the plaintiff.  The relevant clause of the handwritten homemade will is as follows:

   I give the rest Estate including house and contents money and car I have to my nephew Dean Peter Brant.  Should he deside [sic] to sell my house I request that he give $50-000 to Helen Murray and $50-000 to Justin Stewart Arnold.

3. It is clear the gift of the house is a conditional gift because the passing of it is subject to or affected by a particular event or state of affairs specified in the will:  see Re Faulwasser (dec) [1967] VR 182. All the parties agreed the clause is condition subsequent. That is because the gift which is already vested terminates or divests upon the occurrence of a particular event specified in the will: see Kotsar v Shattock [1981] VR 13.

4. When dealing with conditions subsequent courts have developed a number of principles which have been strictly applied.  First, the condition must be capable of a reasonably certain construction.  Second, the condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.  Further, for reasons which are obvious, courts have required a stricter degree of certainty for conditions subsequent than conditions precedent.

5. Conditions do not fail for uncertainty merely because they lack clarity of expression.  If clarity of expression is lacking it is the responsibility of the courts to endeavour to construe the meaning in the light of the ordinary canons of construction.  A condition will not necessarily fail simply because it is uncertain whether it is certain enough.  It is only when a meaning cannot be properly ascribed to the language used that it fails for uncertainty.  If a will does not specify a time period and the condition is to be performed by the plaintiff personally the time allowed for performance of a condition is the beneficiary's life.

6. If a condition subsequent is impossible the gift is absolute.  A gift subject to a condition subsequent which is void takes effect free from that condition.

7. In his written submissions counsel for the plaintiff submitted the condition was uncertain because there could be circumstances where the house could be sold for a number of reasons that do not arise out of the plaintiff's decision to sell the property.  For instance, if the plaintiff mortgaged the property, default occurred under the mortgage and a mortgagee exercised its power of sale.  Another instance might be where the plaintiff was declared bankrupt and a trustee in bankruptcy moved to sell the property.  Another example might be if the plaintiff set up residence in the property and it became subject to an order of the Family Court.  As part of any settlement of the family dispute sale of the house might be ordered by the court.

8. Moreover, it is not difficult to imagine the plaintiff taking steps simply to avoid the effect of the clause.  For instance, if the property was transferred to a company wholly owned by the plaintiff there would be no sale in the conventional sense.  It is open to question whether the legacies anticipated by the clause would have to be paid.  This is but one of any number of examples where the plaintiff might divest himself of the property without there being any 'sale'.

9. There is a further difficulty with the clause.  It seems to anticipate the payments being made when the plaintiff decides to sell the house.  The plaintiff then might decide to sell, list the property with an agent, be unable to effect a sale at a price he regards as reasonable, but still be liable to make payment of the two bequests.

10. Finally, there is the use of the word 'request'.  The use of that word suggests the testator was asking the plaintiff to consider making the bequests.  The clause is not couched in imperative or demanding terms.  It is simply not possible to know if the plaintiff did not make the payments whether or not he would be breaching the terms of the clause or simply disappointing the testator.

11. In all the circumstances I am satisfied the clause is void for uncertainty.  On that basis cl 3 of the will should be varied by deleting the sentence:

    Should he deside [sic] to sell my house I request that he give $50-000 to Helen Murray and $50-000 to Justin Stewart Arnold.

12. The costs of all parties should be paid from the estate on a full indemnity basis.