after date of will-Subsequent confirmation of will by codicils-Contract executory at date of death of testator-Intention of testator-Wills, Probate and Adminis. tration Act 1898-1940 (N.S.W.) (No. 13 of 1898-No. 32 of 1940), 88. 4, 16, 17, 20, 21-Moratorium and Interest Reduction (Amendment) Act 1931 (N.S.W.) (No. 66 of 1931)-Moratorium Act 1932 (N.S.W. (No. 57 of 1932), S. 35 (4).

By his will made in 1927, a testator devised his "property known as 4 Birrell Court'' to his son subject to a mortgage thereon. In 1928, the testator con- McTiernan and tracted to sell the devised real estate to his son on terms providing for payment of the purchase money by instalments and interest. The testator executed a first codicil in 1929 and a second codicil in 1936, neither of which in terms will. He died in 1941. The contract was then still executory, the son being considerably in arrears with his payments thereunder.

Held, by Latham C.J., Rich, McTiernan and Williams JJ. (Starke J. dissent- ing), that the devise of the real estate failed. By Latham C.J., Rich and McTiernan JJ. (Williams J. contra) on the ground that, having been adeemed by the contract of sale, it did not form part of the will as confirmed and republished by the codicils by Williams J. on the ground that by the con- firmations in the codicils the testator did not intend to make the gift of the real estate operate in a different manner, that is as a gift of the proceeds of sale, and that at the date of his death the only beneficial interest of the testator was in the proceeds of sale.

Effect of the Moratorium and Interest Reduction (Amendment) Act 1931 (N.S.W.) and S. 35 (4) of the Moratorium Act 1932 (N.S.W.) considered by

69 CLR 122

Decision of the Supreme Court of New South Wales (Roper J.) Gilder V. Fairweather, (1943) 44 S.R. (N.S.W.) 229; 61 W.N. 50, by majority, affirmed,

APPEAL from the Supreme Court of New South Wales.

The will made by Walter Richard Fairweather on 25th October 1927, contained, inter alia, the following provisions " I direct my Trustees to forgive my son Stanley Fairweather moneys owing by him to me at the time of my death I likewise direct my Trustees to forgive my son Walter Fairweather any money owing by him to me at the time of my death I give devise and bequeath to my son Roy Fairweather my property known as Birrell Court' Birrell Street Waverley for his own absolute use and benefit subject however to the mortgage of One thousand pounds secured thereon."

At that date the property known as Birrell Court was owned by the testator subject to a mortgage of £1,000.

On 21st December 1928, the testator entered into a contract with his son Roy Gilbert Fairweather, referred to in the will as Roy Fairweather,…

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 Fairweather v Fairweather

Details

AGLC: Fairweather v Fairweather [1944] HCA 11
Case: [1944] HCA 11
Decision Date: 11 May 1944

CaseChat Overview and Summary

The case of *Fairweather v Fairweather* concerned the interpretation of a testator's will and codicils in light of a subsequent contract for the sale of a specifically devised property. The testator, Walter Richard Fairweather, made his will in 1927, devising his property known as "Birrell Court" to his son, Roy Fairweather, subject to an existing mortgage. In 1928, the testator entered into an executory contract to sell this same property to Roy Fairweather for a sum payable by instalments. The testator later executed two codicils in 1929 and 1936, which confirmed his will in general terms without specifically mentioning the property or the contract of sale. The testator died in 1941, with the contract still executory and the son in arrears with payments.

The central legal issue before the High Court was whether the devise of "Birrell Court" to Roy Fairweather remained effective despite the testator's prior contract to sell the property. Specifically, the court had to determine if the codicils, by confirming the will, republished the devise in a manner that would pass the testator's interest as vendor under the contract to Roy, or if the devise had been adeemed by the contract of sale. The court also considered the effect of moratorium legislation on the contractual obligations.

A majority of the High Court, affirming the decision of the Supreme Court of New South Wales, held that the devise of "Birrell Court" had failed. The reasoning, particularly from Latham C.J., Rich, and McTiernan JJ., was that the contract of sale constituted an ademption of the devise. They applied the principle that a codicil confirming a will republishes the will only in so far as its dispositions remain operative and have not been removed by the testator's subsequent actions or events. The court found that the testator's act of selling the property indicated a change of intention, effectively removing the devise from the operation of the will. Therefore, the subsequent confirmations by codicil did not revive the adeemed devise, but rather confirmed the will as it stood at the time of the codicils, which no longer included the devise of "Birrell Court" as a testamentary disposition of the land itself.

The High Court dismissed the appeal, upholding the decision that the devise of "Birrell Court" was adeemed by the contract of sale and did not pass to Roy Fairweather under the will. Consequently, Roy Fairweather was not entitled to the property by way of devise, and his rights and obligations were governed by the executory contract for sale, subject to the moratorium legislation.

Orders