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Butler v Kenny

Butler v Kenny

Case [2022] VSCA 102 31 May 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0083

TREVOR EDWARD BUTLER (WHO IS SUED AS THE EXECUTOR OF THE WILL OF ERNEST EDWARD BUTLER, DECEASED, AND PERSONALLY)	Applicant
v
DALLAS WILLIAM ROSSITER KENNY & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	KYROU, McLEISH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF JUDGMENT:	31 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 102
JUDGMENT APPEALED FROM:	[2021] VSC 350 (McMillan J)

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WILLS, PROBATE AND ADMINISTRATION – Conflicting wills – Deceased’s son and certain grandchildren to each receive half of estate under earlier formal will – Son to receive entire estate under later informal will – Son sought probate of informal will – Settlement reached providing for payment following grant of probate of informal will – Registrar refused probate of informal will but granted probate of formal will – Grandchildren contended terms of settlement no longer binding – Whether certain terms subject to condition precedent that probate of informal will be granted – Leave to appeal granted – Appeal allowed.

CONTRACTS – Interpretation – Conditions precedent – Whether payment and release obligations subject to condition that probate of informal will be granted – Probate of informal will referred to throughout terms – Whether condition precedent or merely vehicle for effecting settlement – Terms directed to achieving resolution of all disputes – Definition of essential term ambiguous – Preferable construction best reflects language of clause and overarching purpose to resolve all disputes – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, applied.

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Counsel
Applicant:		Mr R Antill
Respondents:		Mr J McComish
Solicitors
Applicant:	Casey Business Lawyers
Respondents:	Vinci Solicitors & Conveyancers

KYROU JA

McLEISH JA

WALKER JA:

Introduction and summary of conclusions

This appeal arises out of a dispute over the will of Edward Butler (‘the deceased’), who died on 31 July 2016. He left a will dated 16 December 2005 (‘the 2005 will’) and an unsigned will purportedly drafted in accordance with instructions given to his solicitor on 5 July 2016 (‘the informal will’). His estate was worth approximately $873,000, and included a property in Nyora (the ‘Nyora property’).
Under the terms of the 2005 will, the deceased’s son, Trevor Butler (the applicant in this proceeding), was to receive half the residuary estate and the deceased’s daughter, Colleen Kenny, was to receive the other half. The 2005 will provided that, in the event of either Trevor or Colleen failing to survive the deceased, then their children (if any) would take their parent’s share in the estate. Colleen died before the deceased. She had three children: Dallas, Shenae and Chase (‘the Kennys’, who are the respondents in this proceeding). Thus, under the 2005 will, the Kennys were entitled to half the estate (or around $436,000). In contrast, under the terms of the informal will, Butler was to receive the whole residuary estate and the Kennys were to receive nothing.
On 2 May 2018, 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 Butler v Kenny

Details

AGLC: Butler v Kenny [2022] VSCA 102
Case: [2022] VSCA 102
Decision Date: 31 May 2022

CaseChat Overview and Summary

Butler v Kenny involved a dispute over the estate of a deceased person, with the son seeking probate of an informal will, which left the entire estate to him. The grandchildren, who were beneficiaries under an earlier formal will, opposed the probate of the informal will and argued that the settlement terms were no longer binding because the informal will could not be probated. The court was tasked with determining the nature of the obligations under the settlement and whether they were subject to a condition precedent that required the grant of probate of the informal will.

The primary legal issue was the interpretation of the settlement agreement, specifically whether the payment and release obligations were conditional upon the grant of probate of the informal will. The settlement agreement referred to the probate of the informal will throughout its terms, and the grandchildren contended that the terms were contingent on this condition. The court had to determine whether this was a condition precedent or if the reference to the informal will was merely a vehicle to effect a settlement. The overarching purpose of the settlement was to resolve all disputes, and the court had to consider which construction of the terms best reflected this purpose.

The court found that the terms of the settlement were not subject to a condition precedent that required the grant of probate of the informal will. The reference to the informal will was not determinative of the enforceability of the settlement terms. The court held that the preferable construction of the settlement terms was one that best reflected the language of the clause and the overarching purpose of resolving all disputes. The decision in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd was applied, where the court found that an ambiguous term should be construed in a manner that best achieved the overall purpose of the agreement. The appeal was allowed, and the settlement terms were held to be binding.

The final orders of the court were that the Registrar's refusal to grant probate of the informal will was quashed, and probate of the formal will was granted instead. The settlement agreement was upheld, and the terms regarding the payment and release obligations were deemed to be binding. The grandchildren were required to comply with the settlement terms as agreed upon.

Orders