FAIRLIE-JONES (DECEASED) - [2013] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of FAIRLIE-JONES (DECEASED)
[2013] SASC 59
Judgment of The Honourable Justice Gray
26 April 2013
SUCCESSION - INTESTACY AND DISTRIBUTION ON INTESTACY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXECUTORS ACCORDING TO TENOR - PERSONS CHARGED WITH EXECUTORIAL DUTIES
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - GENERALLY
Application for a grant of probate - the deceased left a will appointing the applicant "to be Executor or Executrix and Trustee of this my Will" - the will contained bequests of particular items of property to the deceased's children and grandchildren - however, the will did not include all of the deceased's property - the will also provided "I WOULD like my daughter … to be in charge of EVERY item I own not mentioned in this will. She can then distribute things after discussion" - whether the deceased's daughter is an executor according to the tenor - whether there is a partial intestacy - whether the words "[s]he can then distribute things after discussion" impose a pre-condition.
Held: Grant of probate made to the applicant, limited to those assets expressly named in the will - grant of probate of all of the deceased's other items of personal property made to the deceased's daughter as executor according to the tenor - the deceased's real property and her money in the bank not included in that grant - the deceased's money in the bank and real property is to be distributed in accordance with the laws of intestacy - the words "[s]he can then distribute things after discussion" did not impose a pre-condition.
Administration and Probate Act 1919 (SA); Probate Rules 2004 (SA) s 77, referred to.
In the Will of James Hollings (1878) 4 VLR (IPM) 46; In the Estate of Williams deceased (1984) 36 SASR 423; In the Estate of Ryan (1987) 139 LSJS 42; In the Will of Anthony Darcy (1885) 11 VLR 339; Re Burton (Deceased), Public Trustee v Burton [1965] NZLR 712; The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney General of Western Australia [2006] WASC 191; In re Hutchinson and Tenant (1878) 8 Ch D 540; Fell v Fell (1922) 31 CLR 268, considered.

In the Estate of FAIRLIE-JONES (DECEASED)
[2013] SASC 59
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of probate.
Introduction
Doreen Fairlie-Jones, the deceased, died on 3 January 2012. She was survived by three adult children.
On 19 December 2003, the deceased duly executed a will. The will is printed on a will kit style form and is in the following terms:
This is the last Will and Testament of me,
DOREEN FAIRLIE-JONES   (name)
of      … NORTH ADELAIDE. SOUTH AUSTRALIA                 (address)
in the State of
1.   I revoke…

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.

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Details

Case: [2013] SASC 59
Decision Date: 26 April 2013

CaseChat Overview and Summary

The deceased left a will that appointed the applicant as the executor or executrix and trustee of the will. The will included specific bequests to the deceased's children and grandchildren but did not encompass all of the deceased's property. The will also stated that the deceased would like her daughter to be in charge of any items not mentioned in the will, with the ability to distribute these items after discussion. The court was tasked with determining whether the deceased's daughter was an executor according to the tenor of the will, whether there was a partial intestacy, and whether the phrase "she can then distribute things after discussion" imposed a pre-condition.

The court first considered the explicit appointment of the applicant as the executor or executrix and trustee of the will, and whether this appointment was limited to the assets specifically named in the will. The court held that the grant of probate should be limited to those assets expressly named in the will. The court then examined the phrase in the will that instructed the daughter to be in charge of the items not mentioned in the will and to distribute them after discussion. The court found that this phrase did not impose a pre-condition but rather an executorial duty according to the tenor of the will. Consequently, the court granted probate to the applicant for the assets expressly named in the will and to the deceased's daughter for the remaining personal property.

The court further ruled that the deceased's real property and money in the bank were not included in the grant of probate to the applicant or to the deceased's daughter. Instead, these assets were to be distributed according to the laws of intestacy. The court's reasoning was that the will did not explicitly include these assets, and therefore, they were not subject to the control of the executors appointed in the will. The court concluded that the deceased's daughter was to be the executor according to the tenor of the will for the personal property not specifically mentioned in the will.

The court's final orders were to grant probate to the applicant for the assets expressly named in the will and to the deceased's daughter for the remaining personal property. The deceased's real property and money in the bank were to be distributed according to the laws of intestacy. The court's decision clarified the scope of the executorial duties and the distribution of the deceased's assets in accordance with the will and the laws of intestacy.

Orders