JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February and 18 March 2020 and written submissions filed 23, 31 March and 7 April 2020
DATE OF JUDGMENT:	16 November 2020
CASE MAY BE CITED AS:	Greenham v Greenham
MEDIUM NEUTRAL CITATION:	[2020] VSC 749

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WILLS AND ESTATES – Judicial advice – Whether devise of ‘real estate’ includes water shares – Where will was made at a time when water rights ran with land rights – Where water rights were subsequently unbundled from land rights and transformed into personal property – Whether the terms of the will should be construed as at the time of the testator’s death or the time that the will was made – Will manifests an intention that it should be construed as at the time that the will was made – Devise of ‘real estate’ includes water shares – Wills Act 1997, ss 34 and 36 – Perrin v Morgan [1943] AC 399, applied – Marley v Rawlings [2015] AC 129, applied – McBride v Hudson (1962) 107 CLR 604, applied – Evans v Powell (1909) 1 Ch 784, applied – Martin v Martin [2010] NSWSC 700, distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N McOmish	Phillips & Wilkins
For the Defendant	A Donald	Joliman Lawyers

HIS HONOUR:

Ethel Elizabeth Greenham died on 11 February 2017 at 80 years of age. By her will dated 9 December 2003, she devised a parcel of land at Pental Island on the Murray River (the land) to her son Alan Lindsay Greenham, leaving the residue of her estate to her daughter, Jennifer Robyn Greenham.[1]
[1]Without any disrespect to the parties, in the interests of clarity, I will refer to the parties and their partners by their first names.

Probate in respect of the will was granted to Jennifer on 4 April 2019. The deceased’s estate was valued at $2,129,506.39.

The present controversy concerns three valuable water shares issued under the Water Act 1989 which were owned by the deceased (the water shares).[2] If those shares form part of the devise of ‘real estate’ under the will, they pass to Alan; if they are part of the residue of the estate, they pass to Jennifer. In this proceeding commenced under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, Jennifer seeks a declaration that they form part of the deceased’s residuary estate.
[2]According to the Inventory of Assets and Liabilities dated 27 March 2019, the total value of the water shares was $754,850. However, the evidence before the Court is that, as at 7 August 2019, their value was approximately $1,589,580.

The determination of Jennifer’s claim turns upon the proper construction of clause 4(d) of the…

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 Greenham v Greenham

Details

AGLC: Greenham v Greenham [2020] VSC 749
Case: [2020] VSC 749
Decision Date: 16 November 2020

CaseChat Overview and Summary

The case of Greenham v Greenham involved a dispute over the interpretation of a will, specifically concerning whether a devise of "real estate" included water shares. The matter was heard and determined in the Supreme Court of New South Wales. The central issue was whether the terms of the will should be construed as they stood at the time the will was made or at the time of the testator’s death. The testator had made the will at a time when water rights were tied to land rights, but subsequent legislative changes had transformed water rights into personal property.

The court was tasked with interpreting the phrase "real estate" in light of these changes. It had to decide whether the will should be understood in the context in which it was drafted or in the context in which it was executed. The court considered several precedents, including Marley v Rawlings and McBride v Hudson, which emphasised the importance of interpreting wills in accordance with the testator’s intentions. It also looked at the principles established in Perrin v Morgan and Evans v Powell, which underscored the need to give effect to the testator's wishes where they can be discerned.

After considering the relevant authorities, the court concluded that the will manifested an intention that it should be construed as at the time that it was made. This interpretation aligned with the testator's intention to include water shares in the devise of "real estate." The court found that the will should be construed according to its original terms, reflecting the legal understanding at the time of its creation. Consequently, the devise of "real estate" in the will included the water shares. The court's decision was guided by the principle that the testator's intention was paramount, and this was best achieved by applying the law as it stood when the will was made.

The final orders of the court gave effect to this interpretation, confirming that the water shares were part of the "real estate" devised by the will.

Orders