GANGEMI v SPARTA - [2021] WASC 441

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   GANGEMI -v- SPARTA [2021] WASC 441
CORAM:   MASTER SANDERSON
HEARD:   16 NOVEMBER 2021
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   CIV 1553 of 2021
BETWEEN:   ADAM PETER GANGEMI
Plaintiff
AND
MANUELA SPARTA
First Defendant
LOREDANA GANGEMI
Second Defendant

Catchwords:

Probate - Advice to administrators as to proper interpretation of will - Turns on own facts

Legislation:

Nil

Result:

Advice given

Representation:

Counsel:

Plaintiff	:	JG Young
First Defendant	:	PDC Robinson
Second Defendant	:	PT Arns

Solicitors:

Plaintiff	:	Zafra Legal
First Defendant	:	Williams & Hughes
Second Defendant	:	Arns & Associates

Case(s) referred to in decision(s):

Fairweather v Fairweather [1944] 69 CLR 121
Jenkins v Jones (1866) LR 2 Eq 323
Moylan v Rickard [2010] QSC 327
Public Trustee of Queensland (as litigation guardian of Ethel May Brigg, also known as Lucy Brigg) v Stibbe as executor of the Will of the late Winifred Deidre Butler [2012] QSC 357
Re Plowright, Deceased [1971] VR 128
Re Viertel [1997] 1 Qd R 110
RL v NSW Trustee and Guardian [2012] NSWSCA 39

MASTER SANDERSON:

The late Anna Maria Zanni (the deceased) made a will on 30 June 2006. She made a subsequent will on 27 March 2013. In 2013 the deceased was diagnosed with dementia. On 11 August 2014 the State Administrative Tribunal appointed the Public Trustee as plenary administrator of the deceased's estate. On 13 October 2017 the Public Trustee, in its capacity as the appointed plenary administrator, sold the deceased's former residence at 222 Morley Drive Dianella (Morley Drive property) for $613,000. The deceased was the sole registered proprietor of the Morley Drive property.
On 17 October 2017 the Public Trustee received $597,932.43 in settlement funds from the sale of the Morley Drive property. On 20 October 2017 the Public Trustee deducted an amount of $500,000 as a refundable accommodation deposit for Aegis Aged Care St Michaels in North Perth. The deceased died on 1 March 2019. At the date of her death, the deceased was a resident of the Aegis Aged Care St Michaels. On 29 May 2020 Justice Tottle made orders revoking the Grant of Probate in respect of a 2013 Will and made a Grant of Probate in respect of the 30 June 2006 Will. His Honour found on the evidence that at the time of making the later Will the deceased did not have testamentary capacity. On 23 July 2020, a Grant of Probate was obtained in respect of the 30 June 2006 Will.
For present purposes, it is cl 4 and 5 of the 2006 Will which are relevant. They read as follows:
I GIVE DEVISE AND BEQUEATH unto my Trustee all my real and personal estate whatsoever to hold UPON TRUST to sell call in and convert the same into money either by public sale or private contract with power to postpone the sale calling in or conversion of the whole or any part of parts thereof and to retain any property existing at my death in its then present condition or state of investment and for so long as my trustee shall think proper without being responsible for any loss occasioned thereby.
MY Trustee shall out of the money to arise from such sale calling in or conversion as aforesaid and out of my ready money pay all my debts, funeral expenses, testamentary expenses and all probate estate and other duties payable on the whole of my estate (both actual and notional) or by reason of my death and shall stand possessed of the said money and the investments for the time being representing the same (hereinafter called 'my residuary estate') UPON TRUST as follows:
(a)the sum of $50,000 cash (fifty thousand dollars) to each of my grandchildren ADAM PETER GANGEMI, MARC PETER GANGEMI, JOSEPHINE ANNE SPARTA and SALVATORE SPARTA as shall survive me and upon attaining the age of twenty one (21) years;
(b)the property known as 222 Morley Drive, Dianella in the State of Western Australia to be sold and the sale proceeds divided equally between LOREDANA GANGEMI and MANUELA SPARTA as tenants in common in equal shares; and
(c)the remainder of all my personal property and all of my real property to my daughter LOREDANA GANGEMI absolutely.

Against that background the executor relevantly seeks the following order:
1.Pursuant to section 45(1) of the Administration Act 1901 (WA), order 58, rule 10 of the Rules of the Supreme Court 1971 (WA) and section 92 of the Trustees Act 1962 (WA), that:
1.1on a proper construction of the Will of Anna Maria Zanni dated 30 June 2006, the gift contained in clause 5(b) of the will has failed by ademption;
1.2on a proper construction of the Will of Anna Maria Zanni dated 30 June 2006, the monies held by the Public Trustee of Western Australia at the date of her death and the monies refundable to her by Aegis Aged Care Group Pty Ltd (ACN 009 048 784) form part of her residuary estate.
Properly considered this application by the executor gives rise to three questions. They are as follows:
1.Was the gift in cl 5(b) of the Will a specific legacy or did it entitle the first and second defendants to an equal share or fund from the sale of the Morley Drive property;
2.If the gift was of a specific property right, does it fail for ademption; and
3.If the gift fails for ademption, do the monies held by the Public Trustee pass to the residuary estate.
The third of these questions does not present a difficulty. If for whatever reason the gift found in cl 5(b) fails, then the funds pass to the residuary estate of the deceased. Were that to occur, the first defendant would receive nothing. As might be expected given this matter has reached the court, the first defendant and the second defendant are at odds and it is their disagreement which is the driving force behind this application.
Dealing first with the interpretation question, it is by no means clear what the deceased intended. This is not one of those cases where there is a clear and specific legacy. For instance, if the deceased had made a specific request of the Morley Drive property, even if she had qualified that gift by saying the property was to be sold and the proceeds equally divided between the first and second defendants, there could be no doubt of her intention. It was the submission of counsel for the first defendant that cl 4 and 5 had to be read together and in interpreting those clauses it had to be borne in mind the Will speaks from the date of death of the deceased. Counsel submitted cl 4 was a catchall provision - that is to say it covered all of the real and personal estate of the deceased. So, the overarching direction to the executor was to convert the whole of the deceased's estate into cash. Once that was done, then cl 5 operated. Clause 5(b) was, properly interpreted, simply a way of specifying what amount of cash was to be paid to each of the first and second defendant. It was not a gift of property or specific proceeds of the sale of the property. It was a mechanism for working out how much would be paid to each of the beneficiaries.
One curious feature of cl 5(b) is the reference to the sale proceeds being divided equally between the first and second defendants as 'tenants in common in equal shares'. That phrase is generally associated with ownership of real estate. So, for instance, if the deceased had given the Morley Drive property to the first and second defendants 'as tenants in common in equal shares', the position would have been entirely clear. If the Morley Drive property had still been owned by the deceased at the date of her death, then the executor would have been obliged to transfer the property to the first and second defendants and presumably they would have then sold the property, and each taken a half share of the net proceeds. If the property was not owned by the deceased as at the date of her death, then the gift would fail for ademption.
As counsel for the first defendant noted, a specific legacy is defined as 'a gift by will of a particular thing forming part of the testator's estate…which is satisfied by the executor by delivery of the particular thing or by appropriate transfer of such interest to the legatee': see Moylan v Rickard [2010] QSC 327 at [41].
A general legacy may be defined as '…a gift of personalty described without reference to any part of the testator's estate: for example a gift of "$1000" or of "a horse". It is a gift of something which must be provided at the expense of the testator's general estate': see Re Plowright, Deceased [1971] VR 128 per Newton J at [132]. A demonstrative legacy is one which 'is to be made primarily out of a particular fund, or from the proceeds of the sale of particular property, but is not to fail if the fund goes out of existence or proves inadequate': see Public Trustee of Queensland (as litigation guardian of Ethel May Brigg also known as Lucy Brigg) v Stibbe [2012] QSC 357 at [20].
It is the first defendant's case that cl 4 and 5 taken together were a general legacy of money to be calculated from the sale price of the property but paid out of the general funds of the estate. As an alternative, it is said it was a demonstrative legacy to be paid from the sale proceeds of the estate. It was not a specific legacy. All parties agreed this was a question of construction.
Counsel for the first defendant placed particular emphasis on the decision of Moylan v Rickard. The relevant facts in that case was as follows:
[2]The applicant and the deceased commenced a relationship in 1973. They married in 1979. Although they remained married until the deceased's death, the marriage experienced some difficulties, including on at least one occasion a separation of the parties.
[3]On the commencement of the relationship, the applicant and the deceased lived in a house at 11 Prospect Street, Wilston (Wilston house). The Wilston house was owned by the deceased. It had previously belonged to her father.
[4]On 2 October 1996, the deceased executed her will. On the same date, she executed the EPA.
[5]It about 1999, the deceased began to suffer the effects of Alzheimer's disease. She was diagnosed as suffering from this disease by 2000. Her condition gradually deteriorated.
[6]In late 2004 the applicant suffered a significant heart attack. Until then, he had been living with the deceased in the Wilston house. He was admitted to hospital, and remained in hospital for a period of appropriately six months.
[7]Ms Rickard then arranged for the deceased to come and stay with her. However, she formed the view that, because of the deceased's condition and her own family commitments, she could not continue to care for her. She arranged for the deceased to be admitted to Hill View House at Ashmore in January 2005. At that time the facilities at Hill View House were not adequate for the deceased, and Ms Rickard arranged that she be admitted to the RSL Aged Care Facility at Currumbin, in April 2005.
[8]When the applicant was discharged from hospital, he was unable to care for himself, and stayed with his son Donald.
[9]In the meantime, in early 2005, the respondents formed the view that they did not have sufficient funds available to enable them to maintain the Wilston house, and to pay for the deceased's care. A decision was made to sell the home. It is common ground that at the time of this decision the deceased would not have been capable of understanding that the house was being sold.
[10]The respondents then took steps to prepare the Wilston house for sale. This included painting the house, and carrying out repairs. Until this time, some of the applicant's personal effects had remained at the house, but they were delivered to him. It appears that many of the deceased's personal effects remained at the house until this time
[11]The house was placed on the market in October 2005. The respondents entered into a contract to sell the house dated 7 January 2006. The sale price was $885,000. The contract was completed on 8 March 2006. On settlement, the solicitors acting for the respondents received the sum of $845,116.94.
[12]From the proceeds of sale, and some additional moneys of the deceased, a sum of $600,000 was invested to provide an income to meet the cost of the deceased's care, 4 and other expenses she might incur; $115,000 was given to Mr Allen as a gift; and $129,476.14 was paid to Ms Rickard, of which $115,000 was by way of gift.
[13]The deceased died on 5 April 2008. On 8 October 2008, probate of the deceased's will was granted to the respondents. On 5 November 2008, the sum of $220,224.32 was distributed to Ms Rickard. On 4 December 2008, a sum in the same amount was distributed to Mr Allen. A further sum of $35,067.16 was distributed to Mr Allen, and $28,340.21 was distributed to Ms Rickard. The dates of these distributions are not apparent, but would appear to have been after 30 October 2008. Of the amounts distributed, $442,681.03 represented the proceeds of the investment of $600,000, being part of the proceeds of sale of the house. A sum of $63,407.37 represented the balance in the deceased's account with Suncorp. Income from the investment had been deposited to this account.
Returning to the will of the deceased, the judge noted:
[21]The critical provisions of the will are contained in clause 4, which is as follows:
'4. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind and nature and wheresoever situate UNTO and to the use of my trustees UPON TRUST to sell and convert (but with power to postpone the selling and conversion as my trustees see fit) into money so much thereof as my trustees shall from time to time in their absolute discretion consider necessary or desirable for the purpose of facilitating the administration of my estate and after payment of all probate succession estate death and other duties payable on or in respect of my estate or in respect of any succession arising on my death and of all my debts funeral (which is to include cremation, niche reservation and purchase, niche engravement fees and the like) and testamentary expenses TO HOLD the balance then remaining (hereinafter called 'my residuary trust estate') UPON TRUST as follows: -
(a)as to my piano, my clothing and wearing apparel and my jewellery and articles of personal use and adornment for the said Robyn Shirley Rickard absolutely;
(b)as to any motor vehicle that I may own at the date of my death and my go1d fob watch without chain, engraved with my father's initials and the year 1912, for the said Christopher William Allen absolutely;
(c)as to the land and improvements constituting my principal place of residence at the date of my death ('house property') but not including any of the contents, to be dealt with as follows:
(i)my trustees are to obtain a valuation of the market value of the house property as soon as practicable after the date of my death;
(ii)if the house property has neither been sold nor contracted to be sold within three (3) months of the date of my death, then my trustees are to pay a legacy equal to fifteen (15) per cent of the market value of the house property (from which market value, however, is to be deducted sales commission at the rate of five per cent on the first EIGHTEEN THOUSAND DOLLARS ($18,000.00) and two and half per cent on the balance, as if the house property had been sold) and to pay such legacy to my husband LESLIE PATRICK MOYLAN if he outlives me for thirty (30) days;
(iii)if the house property is sold within such three (3) month period, then my trustees are to pay to the said Leslie Patrick Moylan (if he outlives me for thirty (30) days) a legacy equal to 1 See s 33B of the Succession Act. 6 fifteen (15) per cent of the proceeds of sale net of sales commission;
(iv) once the legacy for the said Leslie Patrick Moylan has been quantified pursuant to (ii) or (iii), no later event is to be the basis for any alteration in the amount of such legacy;
(v)the legacy for my said husband, whether it is payable pursuant to (ii) or (iii), is not payable to him any earlier than three (3) months from the date of my death;
(vi) as to the house property, or what remains of the proceeds of sale of same, to be distributed as part of my net residuary trust estate;
(d)as to my net residuary trust estate for such of the said Robyn Shirley Rickard absolutely and Christopher William Allan absolutely (and in both cases, in addition to other benefits derived hereunder) who outlive me and if both then equally as tenants in common but subject to what follows;
(e)if either of my two children predecease me leaving a child or children ('grandchildren') alive at my death who have then attained or thereafter attain the age of twenty-one (21) years then those grandchildren are to take and if more than one then equally as tenants in common the beneficial entitlement that his, her or their parent would have taken if he or she had outlived me.'
Before dealing with the issues, the learned trial judge summarised the principles applying to the construction of the will. With respect, his Honour's summary is comprehensive and is worth repeating:
[34]A number of principles of construction are potentially relevant. I make particular reference to the following:
(a)The first principle of construction is to give effect to the intention of a testator as expressed in the words of the will;
(b)The intention of the testator is collected from the whole will, with reference to such extrinsic evidence as the rules allow, and the meaning of the will and every part of it is determined according to that intention; (c) Under the general law, statements of, or explanatory of, intention made by a testator are not admissible except in a case of latent ambiguity;
(c)If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the court is to supply the defect by implication; and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which the court considers the testator has, on the whole will, sufficiently declared;
(d)An inference cannot be made that does not necessarily result from the whole of the will, taken together;
(e)The court should lean towards a construction of an instrument which preserves, rather than destroys its effect. Where the question is not one of choosing between two rival constructions, but, on reading an instrument one may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by supplying words in the way in which there is every reason to believe the maker of it intended that it should stand, and thus preserving the effect of the instrument, that approach is to be preferred;
(f)In determining whether, as a matter of construction, a legacy is a specific legacy or a general legacy, the court leans against finding the legacy to be a specific one
(g)The question whether a gift has been adeemed depends upon the apparent intention of the testator;
(h)Legal technical terms in a will should be given their technical meaning unless the context of the will otherwise indicates;
(i)Nevertheless, the circumstances may be such that a will should not be construed in a strictly technical or legalistic sense, and its construction should be sensitive to the factual context of ordinary life and circumstances.
Against that background his Honour concluded:
[43]As I have indicated, the gift made to the applicant in cl 4(c) is not a specific legacy. It bears some analogy with a demonstrative legacy, for, if the property were sold within three months of the deceased’s death, then the sale price provides a measure for the amount of the gift; and it seems likely that it would constitute the source of funds for that gift. However, the gift is intended to take effect even if a sale of the property does not occur within three months of the death. In that case, the source of the funds is not specified in the will, whether directly or indirectly.
[44]A demonstrative legacy is not adeemed by the total or partial failure at the testator’s death of the fund out of which it was to be paid.
[45]The gift to the applicant found in cl 4(c) of the will is clearly not a specific gift or legacy. Indeed, its connexion to the property referred to in that clause as a source of funds for the gift is not as close as the connexion between a demonstrative legacy, and the property which provides the source of funds for such a legacy.

For their part, the plaintiff and the second defendant relied upon the decision in Public Trustee of Queensland (as litigation guardian of Ethel May Brigg, also known as Lucy Brigg) v Stibbeas executor of the Will of the late Winifred Deidre Butler [2012] QSC 357. Relevant facts in that case were straight forward and summarised by the Lyons J as follows:
[5]The Applicant in BS No. 2683 of 2012 is a solicitor and the executor of the Will of the late Mrs Butler. Mrs Butler died on 1 November 2010 aged 92 and the executor obtained probate of the deceased’s last Will, dated 4 March 2002, on 10 December 2010.
[6]The assets and liabilities of the estate indicate that the assets essentially comprise funds received from the Public Trustee, a refund of a nursing home bond, a small amount of money held in a Credit Union Australia Account, jewellery and personal effects.
[7]One of the beneficiaries named in Mrs Butler’s Will, Lucy Brigg, was unable to be located by the executor. Accordingly the executor filed an originating application to obtain orders as to the advertising in relation to her. On 11 April 2012, Martin J made an order for the placement of the advertisements in accordance with the application. The advertising required by the order was effected on 12 and 13 April 2012.
The relevant terms of the will as follows:
[10]The Testatrix appointed, as executor, a solicitor with the firm Files Stibbe & Associates and pursuant to clause 3 she directed that her executor hold her estate on trust. Clauses 3.3 to 3.6 of the Will provided:
'3.3 TO GIVE all of my jewellery and any cash I have in my bank accounts at the time of my death to my Friend LUCY BRIGG of Foley Street, Bribie Island in the State of Queensland;
3.4TO SELL my house and TO DIVIDE the net proceeds of sale as follows:
3.4.1TO GIVE fifty percent (50%) to my Husband ALEXANDER WILLIAM BUTLER;
3.4.2TO GIVE fifty percent (50%) to my said Friend LUCY BRIGG
3.5SHOULD any of the persons referred to in Clause 3.4 have predeceased me then TO GIVE the share to which they were otherwise entitled to the AUSTRALIAN RED CROSS SOCIETY, Queensland Division of GPO Box 917, Brisbane in the State of Queensland;
3.6TO GIVE the rest and residue of my Estate to the AUSTRALIAN RED CROSS SOCIETY, Queensland Division of GPO Box 917, Brisbane in the State of Queensland.'
Her Honour concluded at [21]:
I consider that the gift to Ms Brigg in clause 3.4.2 was a specific gift and therefore subject to the rules of ademption. It was a specific gift of a percentage of the proceeds of sale of her house. Significantly, McPherson JA in Romano & Anor v Ladewig & Anor[4] held that if the gift in the will 'were of the land itself or alternatively the proceeds of its sale, it would be a specific bequest of that land or those proceeds.' The specific gift in the present case is to be contrasted with the gift in Moylan v Rickard,[5] where the will in question intended that there be a gift of a sum of money but that the sum of money was to be calculated in reference to a property described as the deceased’s principal place of residence at the date of her death….
It has to be said that attempting to interpret a particular will with reference to decided cases is problematic. The differences in the bequests, although apparently subtle, may have a significant impact. However, in this instance the position is very close to that which applied in the Moylan decision. A fair reading of the will, taken together with the rules of construction which I have set out above, leads me to the conclusion the reference to the Morley Drive property was simply for the purposes of calculating the amount to be received by each of the first and second defendants. It was a general legacy rather than a specific legacy. Accordingly, the first and second defendants are entitled to half of the proceeds referable to the sale of the Morley Drive property.
Having reached that conclusion, it is not strictly speaking necessary for me to deal with the issue of ademption. However, the matter was fully argued and it is appropriate I deal briefly with the matter. The principle of ademption was set out by Rich J in Fairweather v Fairweather [1944] 69 CLR 121 where his Honour said at [136]:
It is well settled if a testator gives something to a person by his will, and afterwards, in his lifetime, sells or otherwise disposes of it, the thing itself is necessarily removed from the operation of the will, and the action of the testator is a sufficient indication of intention that the donee is not to have it…Furthermore, the donee is not entitled to receive anything which the testator may have acquired in substitution for the thing with which he has parted, unless, of course, the will or some subsequent testamentary instrument so provides, expressly or by implication…
As I have indicated above, if the first and second defendants were left the Morley Drive property as tenants in common in equal shares then the gift would have been adeemed, at least on the face of it. The first defendant says that this particular legacy is subject to what is known as 'loss of capacity or the Re Viertel exception'. This is exception which comes from the decision in Re Viertel [1997] 1 Qd R 110 can be expressed as follows: a specific legacy does not fail by ademption upon the sale of a property by a person other than a testator at a time when a testator is incapable of selling the property or altering an existing will to give effect to the testator's intentions in the changed circumstances.
The loss of capacity exemption arose in Queensland and has only been applied in this state in one case - Re Hartigan; ex parte the Public Trustee (WASC, Parker J, 9 December 1997, unreported). The reasoning in Re Hartigan was criticised by the New South Wales Court of Appeal in RL v NSW Trustee and Guardian [2012] NSWSCA 39 where Campbell JA with whom Young JA and Sackville AJA in agreement found that :
[174]Re Hartigan; ex parte the Public Trustee (WASC, Parker J, 9 December 1997, unreported) is a decision on an ex parte application for advice to the administrator of an incapable person's estate. The likely last will made a specific devise of the incapable person's house. The house was her only asset of significance. Parker J noted that the case before him differed from Re Viertel in that in Hartigan the administrator who was proposing to sell the house knew of the terms of the will. However he held that "heart of" the reasoning in Re Viertel "turns on the sale of property by a person other than the testator at a time when the testator is incapable of selling the property or of altering and existing will to give effect to the testator's intentions in the changed circumstances". He held it was not a material distinction whether or not the person effecting the sale knew of the terms of the will. I agree with that aspect of the decision. Parker J advised the administrator that if the proceeds of sale of the house were paid into a separate fund the sale would not adeem the devise. No mention was made of there being any legislation in Western Australia analogous to s 83 of the 2009 Act. In my view this decision is mistaken, for the same reasons that Re Viertel is mistaken. It is because the sale of the house by a person with authority to do so would have the effect of adeeming the specific devise that legislation like s 83was enacted.
So the issue then comes down to this. Is is the law in Western Australia as set out by Parker J in Re Hartigan, or is that decision wrong and the better view is that the Re Viertel exception does not apply in this state. The difficulty is of course that Parker J's decision has stood for 24 years and presumably solicitors have advised their clients based upon that understanding of the law. While no cases have arisen which have considered the issue, there must have been numerous incidences where Re Hartigan was applied in practice. On the other hand, the reasoning of Campbell JA is compelling. In all other states bar Western Australian the effect of ademption has been abrogated by legislation.
In my view, the reasoning of Campbell JA is to be preferred. His Honour's analysis of the law is thorough and detailed. That said, there are a number of factors highlighted by counsel for the first defendant which weigh against accepting Campbell JA's view. First, as Campbell JA acknowledged, the loss of capacity exception has no ongoing relevance in New South Wales because of the subsequent statutory developments. His Honour's views are therefore obiter and in no way binding in this jurisdiction. Second, his Honour's analysis focused on whether or not Re Viertel had properly applied Jenkins v Jones (1866) LR 2 Eq 323. His Honour was not concerned with whether the loss of capacity exception had arisen as a full line of authority
This decision has recently been the subject of academic criticism. It is said the defect in Campbell JA's reasoning was his failure to properly recognise the development of the Re Viertel exception was no longer an extension of Jenkins v Jones but a discreet exception to the ademption principle: see Collins A W, How should a Queensland Court respond when a specific gift has been adeemed by an attorneys lawfully exercising their powers? (2013) 20 James Cook University Law Review 61.
Third, counsel noted that in Re Hartigan, Parker J matters the loss of capacity exception to include cases in which the plenary administrator was aware of terms of the will - the original formulation in Re Viertel was limited to cases which the administrator was not aware. Counsel noted that Parker J's extension has since been adopted in Victoria and Queensland.
A number of points can be made about these matters. First, Campbell JA's analysis really did focus on whether or not the loss of capacity extension can properly be said to arise. Hargreave J has, on Campbell JA's analysis simply wrongly applied Jenkins v Jones. To say then that Re Viertel is nonetheless good law and has developed a life of its own is to miss the point. If Re Viertel was wrongly decided then cases which rely upon it were also wrongly decided. That is the point of Campbell JA's analysis.
Further, to say that Re Hartigan has been applied in jurisdictions where by statute the essential principle of ademption has been modified is not to the point. What is put in issue by submissions of the plaintiff and the second defendant is the correctness of Re Hartigan as to the fundamental principle, not necessarily the extension. Of course, if Re Hartigan was wrongly decided then the extension to persons who knew the content of the will would have no effect. But the decision may be relevant in those jurisdictions where ademption would not apply and the question of the knowledge of the attorney was relevant.
In summary, the position is this. I am satisfied on its proper interpretation cl 5(b) is a specific legacy which has not been adeemed. It is therefore unnecessary for me to determine whether or not the loss of capacity exception applies. I simply note that if I have been called upon to answer that question I would have answered in the negative.
On publication of these reasons the parties should confer as to the proper form of orders. If no agreement can be reached, then each party should file a minute within seven days. My preliminary view is the costs of all parties ought be paid out of the estate on a solicitor and own client basis. Any party who seeks an alternative costs order should file submissions on that question within seven days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Court Officer
9 DECEMBER 2021