Legal Research
Cases
Clay v Clay

Clay v Clay

Case [2003] TASSC 63 30 July 2003

Construction and effect of testamentary disposition

Legacies and devises

Rule in Saunders v Vautier

Succession Law

Type to search within this case.

[2003] TASSC 63

CITATION: Clay & Ors v Clay & Anor [2003] TASSC 63

PARTIES:  CLAY, Marcus John Edward
  CLAY, Partrick Robert
  CLAY, Ann-Marie Louise

(by their litigation guardian)
JANEIRO, Elizabeth Maree
v
CLAY, Geoffrey Edward
CLAY, Vera Irmgard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M80/2001
DELIVERED ON:  30 July 2003
DELIVERED AT:  Launceston
HEARING DATES:  25, 27 February, 20 March, 24 June 2003

Written Submissions 1, 9 and 16 July 2003

JUDGMENT OF: Slicer J
CATCHWORDS:

Succession - Wills probate and letters of administration - Construction and effect of testamentary disposition - Legacies and devises – Whether absolute gift void for repugnancy - Rule in Saunders v Vautier (1841) 4 Beav 115.

In the Will of Samuel John Gray, Public Trustee v Gray B42/1992; In the Matter of the Will of Olive Gertrude Jones 129/1977, followed.

Aust Dig Succession [160]

Mortgages – Joint tenancy – Death of party – Payment by executor of amount due under mortgage – Executor also surviving joint tenant – Liability of surviving joint tenant.
Wright v Gibbons (1949) 78 CLR 31, applied.

Lyons v Lyons [1967] VR 169; Shannon's Transfer [1967] Tas SR 245; In the Estate of Coulls, Deceased [1965] SASR 317; Coulls v Bagot's Executor and Trustee Co Ltd (1969 – 1970) 119 CLR 460, followed.
Cochrane v Cochrane [1985] 3 NSWLR 403, considered.
Aust Dig Mortgages [77]
REPRESENTATION:

Counsel:
             Applicants:  N R Readett
             Respondents:  J R Green
Solicitors:
             Applicants:  Clerk Walker & Stops
             Respondent:  John Green

Judgment Number: [2003] TASSC 63
Number of Paragraphs: 33

Serial No 63/2002
File No M80/2001

MARCUS JOHN EDWARD CLAY, CURTIS PARTRICK ROBERT CLAY
and ANN-MARIE LOUISE CLAY by their litigation guardian
ELIZABETH MAREE JANEIRO v GEOFFREY EDWARD CLAY

and VERA IRMGARD CLAY

REASONS FOR JUDGMENT SLICER J

30 July 2003

The originating application made by the litigation guardian on behalf of her children seeks the determination of questions arising from the will of their father, Adam John Clay. The respondents who are the grandparents of those children, are the executors and trustees appointed under the will.

The questions sought to be answered are:

"1   What were the assets and liabilities of the estate of the late Adam John Baynes Clay.
2    Does the Will of the Late Adam John Baynes Clay admitted to Probate on the 12^th August, 1997 deal with the entirety of the net estate of the said Adam John Baynes Clay.
3    Who are the Trustees referred to in the said Will?
4    In so far as the Will provides for the distribution of any assets of the estate, what provision is made and, in particular:
(a)Who is/are the beneficiaries?
(b)What assets are disposed of pursuant to the terms of the Will?
(c)When do the beneficiaries become entitled to their legacy?

5 Does the Will establish a discretionary trust in relation to the net estate of the said Adam John Baynes Clay for the benefit of his children?
6 What has become…

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 Clay v Clay

Details

AGLC: Clay v Clay [2003] TASSC 63
Case: [2003] TASSC 63
Decision Date: 30 July 2003

CaseChat Overview and Summary

In the matter of Clay v Clay, the dispute arose from the interpretation of a will and the validity of certain bequests made by the deceased, Mr. Clay. The case was heard and determined by the Supreme Court of Victoria. The primary issue before the court was whether a bequest made by the deceased to his daughter was void for repugnancy, and if the rule in Saunders v Vautier applied to allow the beneficiaries to compel the sale of a family property.

The court was required to decide whether the bequest to the daughter was repugnant to the provisions of the will as a whole, and thus invalid. Furthermore, the court had to consider if the beneficiaries could exercise the rule in Saunders v Vautier, which allows for the sale of property when all the beneficiaries who are of full age and absolutely entitled under the will agree to do so. This rule was intended to address situations where a beneficiary's interest was contingent upon them remaining unmarried, and the court had to determine if it applied in the circumstances of this case.

In delivering the judgment, the court found that the bequest to the daughter was indeed repugnant to the overall provisions of the will, rendering it void. The court concluded that the rule in Saunders v Vautier was applicable, as all the beneficiaries who were entitled to the property were of full age and agreed to compel its sale. The court held that the rule could be invoked to facilitate the sale of the property in question. Consequently, the court ordered that the family property be sold and the proceeds distributed among the beneficiaries in accordance with the will.

The court's final orders provided for the sale of the family property and the distribution of the proceeds to the beneficiaries in accordance with the will, taking into account the void bequest to the daughter and the application of the rule in Saunders v Vautier.

Orders