Gray v Gray
[2013] WASC 387
•24 OCTOBER 2013
GRAY -v- GRAY [2013] WASC 387
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 387 | |
| Case No: | CIV:2030/2012 | 9 SEPTEMBER 2013 | |
| Coram: | MASTER SANDERSON | 24/10/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Will interpreted | ||
| B | |||
| PDF Version |
| Parties: | LEEANNE GRAY as Executor of the Estate of ROBB BRIAN GRAY ASHLEY ROBERT GRAY as Executor of the Estate of ROBB BRIAN GRAY MURRAY EDWARD GRAY as Executor of the Estate of ROBB BRIAN GRAY ROBERT GRAY as Executor of the Estate of ROBB BRIAN GRAY ASHLEY ROBERT GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY MURRAY EDWARD GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY ROBERT GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY LEEANNE GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY |
Catchwords: | Wills Proper interpretation of clauses in 'home made' will Turns on own facts |
Legislation: | Nil |
Case References: | Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404 Duncan v Cathels (1956) 98 CLR 625 Duncan v Equity Trustees Executors & Agency Co Ltd (1958) 99 CLR 513 In Re Cuming; Nicholls v Public Trustee (SA) (1945) 72 CLR 86 In Re Redfern (1878) 47 LJ Ch In the Will of Dyer (dec) (1910) 12 WALR 155 Lassence v Tierney (1849) 1 Mac & G 551 National Trustees, Executors & Agency Co of Australasia Ltd v O'Connor (1919) 27 CLR 60 Nicol v Chant (1909) 7 CLR 569 Public Trustee v Young (1980) 23 SASR 239 Re Mayo [1943] Ch 302 Re Taylor; Taylor v Tweedie [1923] 1 Ch 99 Ritchie v Magree (1964) 114 CLR 173 Rucker v Scholefield (1862) 1 Hem & M 36 Smidmore v Smidmore (1905) 3 CLR 344 Thomas v Strickland [2001] WASC 156 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ASHLEY ROBERT GRAY as Executor of the Estate of ROBB BRIAN GRAY
First-named First Defendant
MURRAY EDWARD GRAY as Executor of the Estate of ROBB BRIAN GRAY
Second-named First Defendant
ROBERT GRAY as Executor of the Estate of ROBB BRIAN GRAY
Third-named First Defendant
ASHLEY ROBERT GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY
Second Defendant
MURRAY EDWARD GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY
Third Defendant
ROBERT GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY
Fourth Defendant
LEEANNE GRAY as Beneficiary of the Estate of ROBB BRIAN GRAY
Fifth Defendant
Catchwords:
Wills - Proper interpretation of clauses in 'home made' will - Turns on own facts
Legislation:
Nil
Result:
Will interpreted
Category: B
Representation:
Counsel:
Plaintiff : Ms M J Elliott
First-named First Defendant : Dr J J Hockley
Second-named First Defendant : Dr J J Hockley
Third-named First Defendant : Dr P R MacMillan
Second Defendant : Dr J J Hockley
Third Defendant : Dr J J Hockley
Fourth Defendant : Dr P R MacMillan
Fifth Defendant : Ms M J Elliott
Solicitors:
Plaintiff : Elliott & Co
First-named First Defendant : CGL Legal
Second-named First Defendant : CGL Legal
Third-named First Defendant : Corinne Griffin & Co
Second Defendant : CGL Legal
Third Defendant : CGL Legal
Fourth Defendant : Corinne Griffin & Co
Fifth Defendant : Elliott & Co
Case(s) referred to in judgment(s):
Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404
Duncan v Cathels (1956) 98 CLR 625
Duncan v Equity Trustees Executors & Agency Co Ltd (1958) 99 CLR 513
In Re Cuming; Nicholls v Public Trustee (SA) (1945) 72 CLR 86
In Re Redfern (1878) 47 LJ Ch
In the Will of Dyer (dec) (1910) 12 WALR 155
Lassence v Tierney (1849) 1 Mac & G 551
National Trustees, Executors & Agency Co of Australasia Ltd v O'Connor (1919) 27 CLR 60
Nicol v Chant (1909) 7 CLR 569
Public Trustee v Young (1980) 23 SASR 239
Re Mayo [1943] Ch 302
Re Taylor; Taylor v Tweedie [1923] 1 Ch 99
Ritchie v Magree (1964) 114 CLR 173
Rucker v Scholefield (1862) 1 Hem & M 36
Smidmore v Smidmore (1905) 3 CLR 344
Thomas v Strickland [2001] WASC 156
1 MASTER SANDERSON: Home made wills are a curse. Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate. Flaws in the will can be glossed over and the interests of all parties can be reconciled. But where, as here, the estate of the deceased is substantial, the will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.
2 This application was commenced by originating summons. The plaintiff sought certain orders and directions. The application was supported by an affidavit sworn by the plaintiff on 1 June 2012. In response the fourth defendant filed an affidavit sworn 23 April 2013. The facts in this case are not complicated and are largely agreed. At issue is the proper determination of the homemade will.
3 Robb Brian Gray (the deceased) died 1 March 2003. The deceased had four children Leeanne Gray born 27 August 1957, Ashley Robert Gray born 6 September 1959, Murray Edward Gray born 18 January 1961, and Robert Gray born 27 May 1966. For convenience and without wishing any offence to any party I will refer to each of these persons by their given christen name.
4 The deceased's first wife and the mother of the children died in August 1997. The deceased remarried. Following his death his second wife Roma commenced proceedings under the Inheritance (Family and Dependents Provision) Act 1972 (WA). The proceedings were compromised by way of a deed of family arrangement executed in 2006.
5 At the date of his death the deceased owned three farming properties and a business. The first property is referred to as the 'home property' and is located at lots 2922 and 1779 Warbrook Road, Bullsbrook. I will refer to this as the Warbrook Road property. There were no houses on the Warbrook Road property at the time of the purchase by the deceased. The deceased built a house on the property in 1984. Robert caused a house to be constructed on the property at his own expense in 1988. He presently lives in that property.
6 The second property is a vacant pasture lot located at 16 Warbrook Road, Bullsbrook. I will refer to this as the 'vacant lot'.
7 The third property is lot 1, Cooper Road, Bullsbrook. Murray lived from the time of death of the deceased until approximately two years ago on this property. I will refer to it as the 'Cooper Road property'. There was at the time of purchase by the deceased a house constructed on the Cooper Road property. This became Murray's primary place of residence in 1985. He moved out in 2010. The house is now derelict. A second house was constructed on the Cooper Road property in 1988 by Ashley at his own expense. It is Ashley's primary place of residence when he is in Australia.
8 The deceased conducted a business known as Rangeview Stud (the business). The deceased utilised all three properties in the course of conducting the business. The properties were collectively known as 'Rangeview Stud'.
9 The deceased has now been dead for over 10 years. As might be expected there has been a partial distribution of the estate. This includes a motor vehicle, some personal effects and furniture, and the business. In 2004 Murray and Robert made an agreement in writing pursuant to which Murray sold his interest in the business to Robert. The agreement was settled and the business is now owned and conducted by Robert. Robert runs the business from the Warbrook Road property and has had use of the vacant lot. He has not paid rental on either property. He has paid the rates and taxes on both properties and has serviced an interest only loan in an amount of $180,000 which was a liability of the deceased on his death.
10 The net value of the estate is not really relevant for the purposes of this application. However, it illustrates the nature of the problem. The estimated value comprising the three properties and the undistributed assets of the estate is now put in the region of $7.3 million. This differs substantially from the sum of $1,922,000 being the figure provided in the affidavit of assets and liabilities. This figure was found in an affidavit sworn by the executors then solicitors of record in the Inheritance Act proceedings.
11 The deceased left a will dated 29 September 2001. Probate of the will was granted to Leeanne, Ashley, Murray and Robert as co-executors on 27 May 2003. The will made very limited provision for Roma the deceased's then wife. That led to the family provision proceedings. It is cl 3.2, cl 3.3 and cl 3.4 of the will give rise to the difficulties. They are in the following terms:
3.2 I give devise and bequeath all of my interest in the farming property located at Lot 1, Cooper Road, Bullsbrook (Swan Location 2598, Lot 1 on Diagram 15858, CT Vol. 1135 Fol.622) to my sons ASHLEY ROBERT GRAY, MURRAY EDWARD GRAY and ROBERT BRIAN GRAY as tenants in common in equal shares, subject to the following conditions.
(1) All expenses in relation to the maintenance and upkeep of the property are to be paid by those beneficiaries using the property for the breeding of livestock including horses and the agistment of livestock including horses;
(2) All expenses in relation to the maintenance and upkeep of the property are to be paid by those beneficiaries using the property for the breeding of livestock including horses and the agistment of livestock including horses;
(3) No rental is to be charged by those beneficiaries not involved in operating the property for the purpose of breeding and agistment of livestock including horses;
(4) Maintenance and upkeep of the house commonly known as Ashley Robert Gray's shall unless otherwise agreed be the responsibility of ASHLEY ROBERT GRAY. ASHLEY ROBERT GRAY will have the right to occupy this house free of rental until such time as the property is sold;
(5) Maintenance and upkeep of the house commonly known as Murray Edward Gray's house shall unless otherwise agreed be the responsibility of MURRAY EDWARD GRAY whilst he occupies that house. MURRAY EDWARD GRAY will have the right to occupy this house free of rental until such time as the property is sold;
(6) Sale of the property is to proceed only with majority agreement between the trustees;
(7) Upon sale of the property, ASHLEY ROBERT GRAY shall first receive an amount equivalent to the value of the house commonly known as Ashley Robert Gray's house;
(8) Upon the sale of the property, MURRAY EDWARD GRAY shall next receive an amount equivalent to the value of the house commonly know as Murray Edward Gray's house;
(9) The balance of the proceeds from the sale of the property is to be divided equally between ASHLEY ROBERT GRAY, MURRAY EDWARD GRAY and ROBERT BRIAN GRAY.
3.3 I give devise and bequeath all of my interest in the farming property located at Lot 2922 and Lot 1779, Warbrook Road, Bullsbrook (Swan Locations 2598 and 1779, CT Vol. 1608 Fol.730) to my sons ASHLEY ROBERT GRAY, MURRAY EDWARD GRAY ROBERT BRIAN GRAY and LEEANNE GRAY as tenants in common in equal shares, subject to the following conditions:
(1) All expenses in relation to the maintenance and upkeep of the property are to be paid by those beneficiaries using the property for the breeding of livestock including horses and the agistment of livestock including horses;
(2) No rental is to be charged by those beneficiaries not involved in operating the property for the purpose of breeding and agistment of livestock including horses;
(3) The house occupied by me, ROBB BRIAN GRAY, at the date of this Will shall be provided to MURRAY EDWARD GRAY for him to occupy free of rental until such time as the property is sold. MURRAY EDWARD GRAY shall be responsible for the maintenance and upkeep of the residence whilst in occupation of the residence;
(4) Maintenance and upkeep of the house commonly known as Robert Brian Gray's house shall unless otherwise agreed be the responsible of ROBERT BRIAN GRAY. ROBERT BRIAN GRAY will have the right to occupy this free of rental until such time as the property is sold;
(5) Sale of the property is to proceed only with majority agreement between the trustees;
(6) Upon the sale of the property, ROBERT BRIAN GRAY shall receive an amount equivalent to the replacement value of the house commonly known as Robert Brian Gray's house;
(7) The balance of the proceeds from the sale of the property is to be divided equally between ASHLEY ROBERT GRAY, MURRAY EDWARD GRAY, ROBERT BRIAN GRAY and LEEANNE GRAY.
3.4 I give devise and bequeath all of my interest in the farming property located at Lot 16, Warbrook Road, Bullsbrook (Swan Locations 1423 and 2433, CT Vol. 1854 Fol.831) to my sons ASHLEY ROBERT GRAY, MURRAY EDWARD GRAY, ROBERT BRIAN GRAY and LEEANNE GRAY as tenants in common in equal shares, subject to the following conditions:
(1) All expenses in relation to the maintenance and upkeep of the property including any interest and charges in relation to the debt owing to Challenge Bank for the purchase of the property are to be paid by those beneficiaries using the property for the breeding of livestock including horses and the agistment of livestock including horses;
(2) No rental is to be charged by those beneficiaries not involved in operating the property for the purpose of breeding and agistment of livestock including horses;
(3) Sale of the property is to proceed only with majority agreement between the trustees;
(4) Upon sale of the property, any debt owing to the Challenge Bank in relation to the purchase of the property shall first be cleared from the property from the proceeds of any such sale;
(5) The balance of the proceeds from the sale of the property is to be divided equally between ASHLEY ROBERT GRAY, MURRAY EDWARD.GRAY, ROBERT BRIAN GRAY and LEEANNE GRAY.
13 In construing a will the first duty of a court is to ascertain if possible what the testator intended by his or her words, expressly or implicitly, and to give effect as far as possible to that declared intention. Griffiths CJ in Nicol v Chant (1909) 7 CLR 569 put the position as follows:
The question to be determined is purely one of construction. In construing a will the first duty of the Court is to examine it, and to discover the meaning of the language of the testator as applied to the circumstances existing at the date of the will, and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion. The inverse process, of first taking up a supposed rule assumed to be prima facie applicable, and then inquiring whether the words of the will exclude the operation of the rule, is, as has often been said, likely to lead to erroneous conclusions (577).
14 If words or phrases in a will are clear and unambiguous effect is to be given to them irrespective of the result.
15 The words of a testator who has made his or her own will may be considered 'less strictly' than in a case where the will is drawn by a skilled professional: see Re Taylor; Taylor v Tweedie [1923] 1 Ch 99, 105.
16 Where a court is able to identify from the will as a whole the purpose and intention of a testator, then if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions are to be discarded or modified. In Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404, Dixon J (as his Honour then was) put the position in this way:
But, to determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expressions which he used, that is, unless a rule of law gives them some fixed operation. When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared (414).
17 Where a direction contains words which are inconsistent with other clearly expressed words in a will and the former words are not sufficiently clear to control the latter a court should disregard the inconsistent words or modify them to give effect to the intention of the testator's intention manifested by the will as a whole. To quote Griffiths CJ again this time from Smidmore v Smidmore (1905) 3 CLR 344:
It is a well known rule that, where words in a will are otherwise not sensible, or seem to be incongruous or irreconcilable with plain provisions, they may be rejected .... But the fact that the testator made use of cumbrous and voluminous expressions to express his intention is no reason for declining to give effect to the words he has used (354 - 355).
18 The spirit of the will is to prevail. The letter is not allowed to kill it. In the case of In Re Redfern (1878) 47 LJ Ch, the Vice Chancellor said:
Now, no doubt, the mere letter of the will ... is not to be adhered to if a contrary signification can be suggested by the whole context of the instrument. The spirit is to prevail, and the letter is not to be allowed to kill. That I take to be plain, clear canon of construction (18).
- This passage was quoted with approval by McMillan J in In the Will of Dyer (dec) (1910) 12 WALR 155, 157.
19 A gift is either absolute or not depending on the intention of the testator. The will must be read as a whole in this respect. A gift on the basis the asset is to be sold and the beneficiary receive the proceeds is an absolute gift: see Public Trustee v Young (1980) 23 SASR 239, 247.
20 It is open to the testator to make in his will a conditional gift. Conditional gifts can be subject either to a condition precedent or a condition subsequent. The approach to be adopted in considering a conditional gift was set out by Latham CJ in the case of In Re Cuming; Nicholls v Public Trustee (SA) (1945) 72 CLR 86. His Honour said:
In order to ascertain whether a condition is precedent, so that it must be performed before a beneficiary takes any interest, or a condition subsequent, so that it operates only in defeasance of an interest given to the beneficiary, it is necessary to look at the precise words of the provision creating the condition. It is a question of the intention of the testator, to be ascertained from the words which he has used (91).
21 If a condition subsequent is held void the initial gift takes effect as an unconditional gift and is freed from the condition. A condition is void if it is repugnant to or inconsistent with other provisions or gifts contained in the will. There must be certainty in the nature of the obligation the subject of the condition.
22 The terms of the will may be such as to require a distribution to a beneficiary in specie. There is no question that an executor may sell assets of the estate to pay the estate's debts. But if a sale is not required for that purpose it is still open to an executor to sell the property. This was the question which arose in Pagels v MacDonald (1936) 54 CLR 519. The facts of the case as taken from the headnote were as follows:
By his will the testator, who died in 1894, devised and bequeathed his real and personal estate, which was situated in Victoria, to his wife for her sole and separate use during her life and directed that at her death it should be 'equally divided' between his youngest son and his six youngest daughters, each to have an equal share. The testator then appointed executors. The executorial duties were completed and the personal representative of the testator desired to sell the land.
- Dixon and Evatt JJ put the position this way:
In the present case, the will requires a division after payment of debts of the whole of an estate which must have been composed of assets of divers descriptions, including live stock, plant and land. This appears to us to imply conversion. ... It is true that there seems to have been no devise to the executors; the duty so to convey would appear to arise out of the office of executor and to be executorial. But the will indicated an intention that the devisees should take in specie (530).
24 An executor does have the power to postpone the sale of assets or leave assets unconverted. Again the powers of the trustees will depend on the terms of the will. The usual rule is subject to any direction the property is to be converted within one year of the testator's death. The power to retain is subject to the rule against perpetuities - that is, no interest is valid unless it must vest no later than 21 years after the date of a life in being: see s 114 of the Property Law Act 1969 (WA).
25 Where there is a power to postpone sale if the executors or trustees disagree among themselves, then, prima facie the property must be sold. This will be so in the absence of agreement from all executors as to the need to postpone sale: see Re Mayo [1943] Ch 302.
26 Section 26(1)(e) of the Wills Act 1970 (WA) provides that:
[A] disposition of property without words of limitation whether to a person beneficially or as executor or trustee is to be construed as passing the whole estate or interest of the testator therein.
27 If a gift is absolute and later words comprise an attempt to control that disposition the later words or super-added gift is void. In Ritchie v Magree (1964) 114 CLR 173, a testator included in this will the following provision:
I also direct that my wife is to have full use of my [named real] property and that upon her death the [named real] property is to become the property of my daughter. The remainder of my real and personal possessions is to become the property of my wife. I also direct that my wife is at liberty to dispose of any portion of my estate if she thinks it is advisable with the exception of course the [named real] property. I also direct that upon the death of my wife all of that portion of my possessions remaining is to become the property of my daughter.
28 The High Court held that the widow of the testator took an absolute interest in his residuary estate and the gift over to the daughter was void. Dixon CJ put the position as follows:
I think that to ascertain with any certainty the precise intention of the testator from the language he has used is not really possible. I do not think there is any doubt that by the initial sentence of the provisions I have set out he meant to give the property in the remainder of his assets to his widow and intended that the gift should be of the full duration, let us say, of an estate in fee simple. That is what a layman means by 'property' and that is what the words would naturally convey in the context. I do not think the word 'also' in the next sentence is any indication to the contrary. That word occurs in the will three times before the word 'direct'.
I think the case should be decided by an application of the venerable but simple rule that 'where a legacy is given absolutely, and a gift over is superadded in the event of the legatee dying without having disposed of his legacy, the gift over is void, and the legacy is absolute' (176).
29 Where it is uncertain whether the gift is absolute but the words of the gift are clear the words giving rise to a subsequent gift must be sufficiently certain to defeat the primary gift. There are a number of authorities which support this statement of principle. The most recent is National Trustees, Executors & Agency Co of Australasia Ltd v O'Connor (1919) 27 CLR 60. The High Court was dealing with a clause in the following terms:
I give devise and bequeath unto [his youngest son, his wife and three daughters] equal shares and I hereby appoint [A & B] or the survivor of them executors of this will. In the event of the decease of any of the parties herein mentioned their portion to revert to the remaining survivors equally. Neither of the parties herein mentioned shall have power to dispose of their interest in the said property.
30 The High Court held that each of the beneficiaries who survived the testator took an indefeasible interest in the real and personal estate. Rich J put the position as follows:
The dispositive clause of the will is clear and definite. It is an immediate gift, and provides for the complete and final distribution of the testator's real and personal property. The specific provision for the payment of the debts to be followed by distribution points strongly to the finality of the distribution. The clause gives certain named persons absolute interests in the property in equal shares. It is a well-known rule of construction that if there be a clear gift, subsequent words, in order to defeat such a gift, must be reasonably clear or sufficiently certain and it must not be forgotten that the court is 'naturally in favour of vesting'. The question, then, is whether the subsequent clause in this will indicates with reasonable certainty the intention of the testator to cut down the absolute gift already made (69).
31 A life interest will be found where there are no words of disposition effective during the lifetime of the principal beneficiary. Any trust created by a gift over must be certain as to exactly what is left and when the secondary beneficiary is to receive it. Where a trust fails either from lapse or invalidity or for some other reason such as a change of intention on the part of a testator or a change in the circumstances such that the trust cannot take effect the absolute gift to the primary beneficiary takes effect insofar as the trusts have failed. In Duncan v Cathels (1956) 98 CLR 625, Fullagar J was dealing with the question of whether or not the words of a disposition in a will amounted to an absolute gift. His Honour pointed out that if the words in a will were 'to Susan Drake I give two fifths of my residuary estate' then it is clear whatever else may follow there is an absolute gift in the first instance. That is the so-called rule in Lassence v Tierney (1849) 1 Mac & G 551. His Honour then went on to say with respect to this rule:
For that rule really means, I think, that the gift 'in the first instance' must prima facie be read as a gift subject only to such qualifications as do in fact follow and are in law capable of taking effect. If no qualification, or no qualification capable of taking effect, follows, then the initial gift takes effect without qualification - in other words as an absolute gift.
32 If the limitations imposed by the gift over are inoperative the court will uphold the primary gift and strike out the limitations: Rucker v Scholefield (1862) 1 Hem & M 36, 41. In these circumstances there is no intestacy. The gift reverts to the principal beneficiary. The word 'fails' simply means that a gift over 'be incapable of taking effect': see Duncan v Equity Trustees Executors & Agency Co Ltd (1958) 99 CLR 513, 518.
33 Pursuant to s 26(1) of the Wills Act a will takes effect in respect of property disposed of in the will as if it had been executed immediately before the death of the testator.
34 Section 28A of the Wills Act provides for the admission of extrinsic evidence. The section only applies to the will of a person who died on or after 9 February 2008. Accordingly it is not applicable in this case. The admission of extrinsic evidence is therefore governed by common law rules. The armchair principle provides that where words used in the will are clear or unambiguous the court may have regard to extrinsic evidence of the testator's circumstances and the circumstances surrounding the making of the will in order to interpret the will. The court is to place itself in the testator's position at the time he or she made the will: see Thomas v Strickland [2001] WASC 156.
35 There is a wide divergence between what the plaintiff says is the proper interpretation of the will and the interpretation proposed by the remaining beneficiaries. It is the plaintiff's position the will anticipates all three properties are to be sold and adjusted for some of the conditions which are not gifts. The plaintiff contends the properties are not gifts in specie. To reach that conclusion counsel was forced to perform some truly impressive logical gymnastics. First it was said the words of each gift did not in fact vest in the named beneficiary an interest in tenants in common in equal share of the property. So taking cl 3.2 of the will, the plaintiff submits the introductory words of the clause do not actually represent an interest in property. Rather, it deals with the sale proceeds of the property once the conditions found in subparagraphs (1) - (9), or some of them, are taken into account. It is instructive to see how counsel deals with each of the conditions found in cl 3.2. It is said with respect to maintenance expenses that is a condition precedent which is wide but sufficiently certain to be valid. Much the same is said with respect to condition (2). It is said these are conditions precedent but are sufficiently certain to be valid. With respect to condition (3) it said the right to use the properties and the houses and not pay rent are interim gifts.
36 It is unnecessary for me to go through each and every condition and the plaintiff's views on them. But there is an obvious difficulty with condition (6). It is clear from the evidence there is unlikely to be in the foreseeable future 'majority agreement' between the trustees as to sale of the property. It is difficult to see how this clause does not breach the rule against perpetuities. The plaintiff submits the executors have an immediate obligation to sell the properties and further postponement of the sale is not justified. How that arises given the interpretative approach of the plaintiff is not clear. Nor is it entirely clear how effect is to be given to certain provisions. For instance, under condition (8) Murray is to receive an amount equivalent to the value of the house. That is presumably the value of the house as at the date of death of the deceased. But then the will anticipated sale being delayed until there was majority agreement between the trustees. So it is not clear whether those clauses of the will speak from the date of death of the deceased or from the date when the trustees resolved to sell the property.
37 On the other hand it is the position of the defendants other than the plaintiff that the three clauses provide an absolute interest in the properties to the named beneficiaries as tenants in common in equal shares. What follows attempts to control the disposition and/or super-add other gifts. Those provisions are therefore void. There is no disposition to the personal representatives; the property is transferred to the beneficiaries.
38 In my view the position of the defendants is to be preferred. I am not satisfied it is possible from the way the will is drafted to ascertain precisely what the testator had in mind. He may not have had a clear idea of the concept of an absolute interest in property. He may have assumed he could give ownership of the property to a party or parties and then seek to control the way in which they used or disposed of the property. The idea of a conveyance with all the rights and liabilities in relation to the property passing to the transferee may not have entered his conscience.
39 Be that as it may it seems to me the conditions which are imposed on each of the gifts is nothing more or less than an attempt to control the disposition. To attempt to give effect to these conditions would in fact be unworkable. The proper approach is to interpret the will in the way proposed by the defendants other than the plaintiff. Accordingly I would propose making orders in terms of paragraphs 1(a), 2(a) and 3(a) of the minute of orders prepared by the fourth defendant. The solicitors for the parties will be provided with a copy of these reasons prior to judgment. They can then give some consideration as to the form of orders and as to costs.
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