GRAHAM v Klenk
[2017] WASC 342
•24 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRAHAM -v- KLENK [2017] WASC 342
CORAM: MASTER SANDERSON
HEARD: 15 NOVEMBER 2017
DELIVERED : 15 NOVEMBER 2017
PUBLISHED : 24 NOVEMBER 2017
FILE NO/S: CIV 1351 of 2017
BETWEEN: PHILIP WILLIAM GRAHAM (as co-Executor of the Estate of GERHARD ANTON FREY)
First Plaintiff
CHERIE RITA GRAHAM (as co-Executor of the Estate of GERHARD ANTON FREY)
Second PlaintiffAND
WOLFGANG KLENK
First DefendantPHILIP WILLIAM GRAHAM
Second DefendantCHERIE RITA GRAHAM
Third DefendantVANESSA GRAHAM (now KANTAR)
Fourth DefendantROSS GRAHAM
Fifth DefendantWAYNE PICKERSGILL
Sixth Defendant
MARGARET PICKERSGILL
Seventh DefendantJUNE ALLISON (now VAN BLOMMENSTEIN)
Eighth DefendantLORRAINE PARKER
Ninth DefendantPETER BOWER
Tenth DefendantLINDA BOWER
Eleventh Defendant
Catchwords:
Probate - Directions as to meaning of will - Turns on own facts
Legislation:
Administration Act 1903 (WA)
Result:
Directions given
Category: B
Representation:
Counsel:
First Plaintiff : Ms W F Gillan
Second Plaintiff : Ms W F Gillan
First Defendant : Mr A P Rumsley
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Solicitors:
First Plaintiff : E W Gray Lawyers
Second Plaintiff : E W Gray Lawyers
First Defendant : Western Legal
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
MASTER SANDERSON: This was the plaintiffs application for directions pursuant to s 45 of the Administration Act 1903 (WA). It concerns the will of the late Gerhard Anton Frey (the deceased). At the special appointment on 15 November 2017 I indicated questions 1(a), (b), (c) and 2 asked in the originating summons would be answered as proposed by the plaintiffs and I would further consider question 1(d) and publish reasons. These are those reasons.
Probate of the will was granted to the plaintiffs on 11 September 2014. The will was drawn by a legal practitioner and it is the starting point in explaining what directions were sought by the plaintiffs.
The first four paragraphs of the will revoke all previous wills and appoints the plaintiffs the deceased's executor. There then follows cl 5 and it is that clause which has led to this application. It is in the following terms:
I GIVE the property known as Oldfield Location 707, Fuss Road, East Munglinup, more particularly described as Lot 707 on Deposited Plan 207892 being the whole of the land in Certificate of Title Volume 1793 Folio 9 including all plant and machinery thereon or any interest I have in the said real and personal property at my death to my cousin WOLFGANG KLENK of 10 Halfstrasse, Aspach near Stuttgart in the Republic of Germany if he survives me for a period of twenty‑eight (28) days but if he does not then equally among those of his children who survive me for a period of twenty‑eight (28) days and attain the age of eighteen (18) years or all to the survivor of them.
By cl 6 the deceased made a specific bequest of a property in Esperance. By cl 7 he made a specific bequest of a flat in Germany. Clause 8 is the residuary clause. It effectively distributes the residue estate to the third through eleventh named defendants.
The estate is of substantial value. The East Munglinup property was valued for probate purposes at $1.5 million. There was cash in various bank accounts of just over $1.5 million. There were shares worth over $430,000 and 512 Murray Grey Cross cattle with a value of just over $236,000. In total and leaving to one side property held overseas the net value of the estate was said to be just over $3.6 million.
Against that background the plaintiffs seek answers to the following questions.
1.Does the testator's gift to the First Defendant of 'the property known as Oldfield Location 707, Fuss Road, East Munglinup, more particularly described as Lot 707 on Deposited Plan 207892 being the whole of the land in Certificate of Title Volume 1793 Folio 9 including all plant and machinery thereon or any interest I have in the said real and personal property at my death …' (Clause 5 of the Will), include:
(a)the deceased's cattle (now proceeds of their sale) that were situated on the said farm property at the date of death?
(b)money standing to the credit of the Commonwealth Bank of Australia Overdraft Cheque Account 06 6511 00220256 at the date of death;
(c)money recovered from Landmark for pre-paid, but undelivered, superphosphate; and
(d)money found by the First Defendant at the said farm property prior to distribution and retained by him?
2.If the answer to any of questions 1(a)(i), (ii), (iii) or (iv) is 'No', do those assets so described in the negative, form part of the residuary estate under clause 8 of the Will?
It was the plaintiffs' position that cl 5 of the will in referring to 'all plant and machinery' was not intended to refer to any of the items in pars 1(a) to (d) referred to above. Following on from that it was submitted all of the funds mentioned in those paragraphs should fall into the residuary estate. It was the first defendant's position the reference to 'real and personal property' was a reference to the farm as a working farm and included the cattle, the cash in the Commonwealth Bank account and any money refundable as prepayment for superphosphate. It was not contended by defendant that the will was ambiguous. So the differing interpretations came down to what was actually meant by the words used.
The evidence that was led showed that the deceased had for many years run cattle on the farm. As years passed he became less and less able to maintain the property and actually run an effective farming operation. He did not follow good husbandry practises and after his death it was necessary to dispose of the cattle with some haste - the property was overstocked and consequently there was a lack of feed. There was real concern for the welfare of the animals. But the fact remains the deceased was running a cattle farm. Yet he made no mention of the cattle or the farming business in his will.
In my view the proper construction of the will was clear. The gift to the first defendant is the gift of the farmland and the 'plant and machinery'. There is no warrant for extending that to the farming business as a whole. To do so would extend the words used beyond their plain and natural meaning. In fact it is somewhat difficult to find a definition of the phrase 'plant and machinery'. But given its natural meaning it would not include livestock. Cattle are neither plant nor are they machinery. Furthermore, there is nothing to suggest the plaintiff intended to give the first defendant a 'working farm'. Once again if that had been the deceased's intention it would have been easy enough to include words to that effect in the relevant clause. That was not done and the words should be given their plain and obvious meaning.
As to the money found on farm, that too in my view falls into the residuary estate. It cannot fall within the definition of plant and equipment.
For these reasons I answer questions 1(a) to (d) 'no'. Consequent upon that decision the assets form part of the residuary estate under cl 8 of the will.
Subject to hearing from counsel the costs of the plaintiffs and the first defendant ought be paid out of the assets of the estate.
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