David Macdonald Johnston as executor of the will of Patricia Kay Creasey Also Known as Patricia Kaye Creasey Deceased v Green

[2022] WASC 393

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   DAVID MACDONALD JOHNSTON as executor of the will of PATRICIA KAY CREASEY ALSO KNOWN AS PATRICIA KAYE CREASEY - DECEASED -v- GREEN [2022] WASC 393

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   21 NOVEMBER 2022

PUBLISHED           :   21 NOVEMBER 2022

FILE NO/S:   CIV 1709 of 2022

BETWEEN:   DAVID MACDONALD JOHNSTON as executor of the will of PATRICIA KAY CREASEY ALSO KNOWN AS PATRICIA KAYE CREASEY - DECEASED

First Plaintiff

KATIE ELIZABETH TIMMS as executor of the will of PATRICIA KAY CREASEY ALSO KNOWN AS PATRICIA KAYE CREASEY - DECEASED

Second Plaintiff

AND

BETHWYN LOUISE GREEN

Defendant

Catchwords:

Will and probate - Proper interpretation of will - Turns on own facts

Legislation:

Wills Act 1970 (WA)

Result:

Directions given

Category:    B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Thompson Commercial Law
Second Plaintiff	:	Thompson Commercial Law
Defendant	:	Kyle & Company

Case referred to in decision:

National Australia Bank Ltd v Blacker [2000] 104 FCR 208

MASTER SANDERSON:

1. The plaintiffs in their capacity as executors of the estate of the deceased seek direction in relation to the distribution of the deceased's estate.  The difficulty arises with respect to clause 4 of the will and in particular, clauses 4.1 and 4.2.  These two clauses read as follows:

   4.1I give my principal place of residence, currently 45 Bottlebrush Drive, Greenwood, Western Australia ("Principal Residence") to my sister Carmel Marie Watkins but if she shall fail to survive me, then to my niece Bethwyn Louise Green.

   4.2I give all of my furniture, fixtures, fittings, personal effects, jewellery and my vehicle located at my Principal Residence to my niece Bethwyn Louise Green but if she shall fail to survive me, then to my sister Carmel Marie Watkins.

2. The difficulty really relates to clause 4.2 and the reference to 'fixtures'.  By clause 4.1, the deceased left her 'Principal Residence' to her sister Carmel Maree Watkins.  But by clause 2, she purported to leave the 'fixtures' in the Principal Residence to her niece Bethwyn Louise Green.  As a general rule 'fixtures' run with the land.  Of course, that is not always the case and the executors here are uncertain as to just how to proceed.  That being the case, they issued an originating summons in the following terms:

   (1)A declaration that:

   (a)the gift of the principal residence under clause 4.1 of the will of the deceased to Carmel Marie Watkins is made without words of limitation and is to be construed as passing the whole estate or interest of the testator therein as provided in Section 26(1)(e) of the Wills Act 1970; and

   (b)the gift of household fixtures to the Defendant under clause 4.2 of the will of the deceased is of no effect as the fixtures have merged with the gift of the principal residence under clause 4.1 of the will of the deceased.

   (2)Alternatively, a declaration that:

   (a)the Defendant has lawfully disclaimed her entitlement in distribution under clause 4.2 of the will of the deceased, of household fixtures and fittings comprised in the estate of the deceased; and

   (b)the gift of household fittings and fixtures to the Defendant under clause 4.2 of the will of the deceased, has lapsed.

   (3)The Plaintiff’s costs of the application be paid by the Defendant.

3. The plaintiffs say the position is quite clear.  They say that the general principle as set out in Butt's Land Law 7^th Edition at par 2.370 provides a clear statement of principle.  Conti J cites with approval in National Australia Bank Ltd v Blacker [2000] 104 FCR 208 at [10]:

   Whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place.  The two considerations which are commonly regarded as relevant to determining the intention with which the item has been fixed to the land are first, the degree of annexation, and secondly, the object of the annexation.

4. The plaintiffs say the fixtures in the property are described in a valuation report provided to the defendant's solicitors dated 22 April 2022.  The fixtures are household fixtures permanently affixed to the land 'in the sense of furthering the use to which the land is put for the better use and enjoyment of the land'.  It is said therefore they have become part of the land.  The plaintiffs further note the gift of the principal residence under clause 4.1 is made 'without words of limitation' and 'is to be construed as passing the whole estate or interest of the testator therein' as provided in s 26(1)(e) of the Wills Act 1970 (WA). As a consequence, the plaintiffs say the gift of household fixtures to the defendant under clause 4.2 of the will is of no effect as the fixtures have merged with the gift of the Principal Residence under clause 4.1 of the will of the deceased.

5. On behalf of the defendant, it is said the will which was drafted by solicitors should be construed on the basis it correctly identifies the intention of the deceased.  The defendant says it is reasonable to assume the deceased had been advised by her solicitor it was possible to sever what are referred to as 'fixtures' in clause 4.2 and to deliver those fixtures to the defendant.  In other words, the defendant submits the plain and clear intention of clause 4.2 ought be implemented. 

6. In my view, the proper approach in this case is to make an order as sought in par 1 of the originating summons.  I accept it is difficult to understand how solicitors could have drafted a will in which the well understood expression 'fixtures' could have been gifted independently of the real property.  Nonetheless, I am satisfied the gift of the property consistent with legal principle, includes fixtures and there is no warrant for a departure from the usual principle.  That means clause 4.2 has at least in part no operation.  That approach is I think most likely to give effect to the intention of the deceased. 

7. Accordingly, I will make orders in terms of par (1)(a) and (b) of the originating summons.  As to costs, while it was entirely proper for the plaintiffs to seek directions as to the proper interpretation of the will, it would be unreasonable and unfair to visit any costs occasioned by the application on the defendant.  The plaintiffs faced with the will as drafted really had no option but to seek directions whether or not the defendant took a position opposed to the plaintiffs.  I would order the plaintiffs' costs be paid out of the estate on a full indemnity basis and the costs of the defendant on a party basis be paid by the estate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AH

Associate to Master Sanderson

21 NOVEMBER 2022