GRAHAM v Klenk - [2017] WASC 342

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 Plaintiff
AND
WOLFGANG KLENK
First Defendant
PHILIP WILLIAM GRAHAM
Second Defendant
CHERIE RITA GRAHAM
Third Defendant
VANESSA GRAHAM (now KANTAR)
Fourth Defendant
ROSS GRAHAM
Fifth Defendant
WAYNE PICKERSGILL
Sixth Defendant
MARGARET PICKERSGILL
Seventh Defendant
JUNE ALLISON (now VAN BLOMMENSTEIN)
Eighth Defendant
LORRAINE PARKER
Ninth Defendant
PETER BOWER
Tenth Defendant
LINDA 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…

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 GRAHAM v Klenk

Details

AGLC: GRAHAM v Klenk [2017] WASC 342
Case: [2017] WASC 342
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

The case of Graham v Klenk involved a dispute over the interpretation of a will. The deceased, Mrs. Graham, left a will that was to be interpreted in the context of specific directions provided within the document. The executor of the will, Klenk, was responsible for administering the estate in accordance with the deceased's wishes. The court was tasked with determining the precise meaning of certain terms and phrases used in the will, particularly those that could be construed in more than one way.

The primary legal issue before the court was the interpretation of ambiguous terms within the will. The court needed to decide how to apply the directions provided within the will to resolve these ambiguities. The case hinged on whether the court should interpret the will strictly according to the literal meaning of the words or whether it should consider the broader context and intentions of the deceased. The court also had to consider the principle that the meaning of a will must turn on its own facts, ensuring that the interpretation was consistent with the specific circumstances and language used by the deceased.

The court found that the will contained specific directions that were crucial in interpreting its ambiguous terms. The directions were seen as a guide to the deceased's intentions, and the court held that the will's meaning must be derived from these directions. The court emphasised that the interpretation should not stray from the precise language used by the deceased, and any ambiguity should be resolved by considering the specific context provided within the will itself. The court's decision underscored the importance of adhering to the deceased's own directions when interpreting a will, ensuring that the estate was distributed in accordance with her wishes. The court's ruling confirmed that the will's interpretation must turn on its own facts, and any ambiguity must be resolved by applying the directions provided within the document.

Orders