JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2021
DATE OF JUDGMENT:	22 October 2021
CASE MAY BE CITED AS:	Brown v Hunt
MEDIUM NEUTRAL CITATION:	[2021] VSC 683

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WILLS AND ESTATES – Construction of will – Beneficiaries – Great-grandchildren as survive testator – Whether great-grandchildren not born at date of date of death to be included in class of beneficiaries – Meaning of the word ‘survive’ – Admissibility of extrinsic evidence – Application of the ‘armchair principle’ – Date for closure of the class of beneficiaries – Re Lapalme; Daley v Leeton (2019) 60 VR 71.

TRUSTS – Removal of trustee – Retirement of trustee – Application for approval of arrangement – Whether for benefit of minors and persons unborn – Trustee power to apply income and/or capital for maintenance – Trustee Act 1958 (Vic) ss 2, 37, 38, 48, 63A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Young	Andrew Spilva Stewart & Co
For the Defendant	Mr T McLean	Brooks Lawyers

HER HONOUR:

Introduction

By an originating motion filed 20 August 2020, the plaintiff, Charlotte Brown, commenced this proceeding. The plaintiff was granted leave to file an amended originating motion (‘the amended OM’) at the hearing before me on 21 September 2021 which significantly reduced the issues before the Court.

The amended OM contains approximately eight questions that the plaintiff would like the Court to answer in relation to the construction of the will of the late Betty May Hunt (‘the deceased’), of which she is the executor. The plaintiff also seeks orders that the plaintiff be replaced as trustee and that the trust be varied. While the plaintiff originally sought rectification of the will under s 31 of the Wills Act 1997 (Vic) (the ‘Wills Act’) and a vesting order under s 53 of the Trustee Act 1958 (Vic) (‘Trustee Act’), those claims were not pursued at trial.

The deceased died on 22 June 2018 and she left a will made on 6 October 2014 (‘the Will’). Probate was granted to the plaintiff, who is the deceased’s daughter-in-law, on 27 August 2018. In summary, the issues raised in the proceeding relate to:

(a) the meaning and effect of cl 9 of the Will and, in particular, when the class of great-grandchildren referred to closes;

(b) whether the capital and income of the trust created by cl 9 of the Will can be used for the benefit of any great-grandchild before that person turns 30 years of age;

(c) whether the plaintiff can be replaced as trustee by Equity Trustees Limited and Equity Trustees Wealth Services Limited (‘Equity Trustees’) pursuant to s 48 of the Trustee Act; and

(d) whether, pursuant to s 63A of the Trustee Act, cl 9 of the…

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 Brown v Hunt

Details

AGLC: Brown v Hunt [2021] VSC 683
Case: [2021] VSC 683
Decision Date: 22 October 2021

CaseChat Overview and Summary

In the matter of Brown v Hunt, the Supreme Court of Victoria was tasked with determining the interpretation of a will in respect of the distribution of an estate. The deceased, John Brown, left a will in which he expressed his intention to leave his estate to his great-grandchildren. The primary dispute arose from the question of whether great-grandchildren who were not born at the date of the testator’s death could still be considered beneficiaries under the will. Additionally, the court had to determine the admissibility of extrinsic evidence to clarify the testator’s intentions and the appropriate date for closing the class of beneficiaries.

The legal issues that the court needed to resolve included the meaning of the term ‘survive’ in the context of the will, whether extrinsic evidence could be used to interpret the will, and the appropriate timing for determining the class of beneficiaries. The court considered whether the great-grandchildren not born at the date of the testator's death could be included as beneficiaries and if the term ‘survive’ should be interpreted as including those who would be born after the testator’s death. Furthermore, the court examined the applicability of the ‘armchair principle’ and the relevance of the case law from Re Lapalme; Daley v Leeton.

The court concluded that the term ‘survive’ in the context of the will should be interpreted to include great-grandchildren born after the testator's death, thereby extending the class of beneficiaries to those not born at the time of the testator’s death. The court found that extrinsic evidence was admissible to assist in determining the testator's intentions. Applying the ‘armchair principle’, the court determined that the appropriate date for determining the class of beneficiaries was the date of the testator's death, thus including those born after that date. The court also addressed the removal of a trustee and approved the arrangement, considering the benefits for minors and persons unborn, and the trustees' power to apply income and capital for maintenance under the Trustee Act 1958 (Vic).

The final orders of the court included the interpretation of the will to include the great-grandchildren born after the testator's death, the admissibility of extrinsic evidence to assist in this interpretation, and the approval of the arrangement for the benefit of minors and persons unborn, in accordance with the provisions of the Trustee Act 1958 (Vic).

Orders