Fairweather v Fairweather

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.