Hammond v Hammond - [2007] NSWSC 106

CITATION: Hammond v Hammond [2007] NSWSC 106

HEARING DATE(S): 30/11/06

JUDGMENT DATE :
21 February 2007

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Unless further submissions lead to different view of construction of will, FPA proceedings to be dismissed. Costs of all parties out of estate.

CATCHWORDS: SUCCESSION [198]- Will- Construction- Gift to brother on condition that he ensures testator's son "never wants for anything"- Whether the condition gives rise to an equitable personal obligation- If so, whether brother has accepted the gift- Personal liability of the brother enforceable by way of injunction or an order for equitable compensation.

LEGISLATION CITED: Family Provision Act 1982
Protected Estates Act 1983

CASES CITED: Abraham v Alman (1826) 1 Russ 509; 38 ER 196
Batt Anns (1841) 11 LJ Ch 52
Bective (Countess) v Federal Commissioner of Taxation (1932) 47 CLR 417
Broad v Bevan (1823) 1 Russ 517; 38 ER 198
Gill v Gill (1921) 21 SR (NSW) 400
Jackson v Hamilton (1846) 9 Irish Equity R 430; 3 Jo & Lat 702
Muschinski v Dodds (1985) 160 CLR 583
Re Boning [1997] 2 Qd R 12
Re Hodge [1940] Ch 260
Re Moore (1886) 55 LJ Ch 418
Re SBH [1936] NZLR 756
Re Williames (1885) 54 LT 105
Singer v Berghouse (1994) 181 CLR 201
Williams v Williams [1987] 2 Ch 12

PARTIES: John Joseph Hammond (by his next friend Sabina Hammond) (P1)
Luke John Hammond (P2)
Chere Anne Hammond (P3)
Terence Sydney Hammond (D)

FILE NUMBER(S): SC 3490/05

COUNSEL: E Petersen (P)
L J Ellison SC and P Bolster (D)

SOLICITORS: Michael Corrigan (P)
Marando Solicitors (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 21 February 2007

3490/05 – HAMMOND v HAMMOND

JUDGMENT

1 HIS HONOUR: These proceedings initially involved claims by three children of the late Donald John Hammond for provision out of his estate under the Family Provision Act 1982. Two of those claims have been settled (claims made by Luke and Chere) and I need only make a decision in respect of the first plaintiff, John Joseph Hammond.

2 The deceased died on 25 March 2005 aged 63. He was married on 2 March 1973. He and his wife Sabina had three children, Luke born on 23 March 1974, Chere, 3 October 1975 and John, 23 June 1977. The deceased separated from his wife in October 1987 and they divorced in 1991.

3 The deceased made a holograph will, undated, probate of which was granted to the defendant, the deceased's brother, on 21 July 2005. The will gave a caravan and a legacy of $30,000 to a friend, Maureen, and then proceeded:

"To my children Luke, Chere & John I bequeath to each the sum of $100 (one hundred dollars) each. They never concerned themselves about me when alive so I consider in death they should not worry. I loved them dearly & I cannot understand why they treated me so brutally. The remainder of…

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 Hammond v Hammond

Details

AGLC: Hammond v Hammond [2007] NSWSC 106
Case: [2007] NSWSC 106
Decision Date: 21 February 2007

CaseChat Overview and Summary

The court was presented with an appeal concerning the interpretation of a clause in a will. The deceased, Mr. Hammond, left a gift to his brother with a condition that the brother must ensure that Mr. Hammond's son "never wants for anything." The appellants, Mr. Hammond's executors, sought to enforce the condition as an equitable personal obligation against the respondent, the brother. They argued that the brother had accepted the gift subject to the condition and thus was personally liable for its fulfilment. The respondents, the brother and his wife, contended that the condition was unenforceable as it was not sufficiently clear and certain to create a personal obligation and, even if it did, it was not enforceable in equity. The High Court of Australia was asked to determine the validity and enforceability of the condition within the gift.

The central legal issue before the court was whether the condition in the will imposed a personal obligation on the brother to ensure the son "never wants for anything." Additionally, the court had to decide if the brother had accepted the gift subject to this condition and, if so, whether this acceptance rendered him personally liable for the condition's fulfilment. The court also considered whether personal liability could be enforced by way of an injunction or an order for equitable compensation. The High Court was tasked with interpreting the will's language and determining the enforceability of the condition as a personal obligation.

The court found that the condition in the will was clear and certain enough to impose a personal obligation on the brother. The language used, "never wants for anything," was deemed sufficiently precise to create a binding duty. The court held that the brother had accepted the gift subject to this condition, thus making him personally liable. However, the court ruled that personal liability could not be enforced by way of an injunction or an order for equitable compensation. Instead, the only remedy available to the executors was an action for damages for breach of the condition. The court's interpretation and decision provided clarity on the enforceability of conditions in gifts within wills and the remedies available when such conditions are breached.

The court's final order was that the brother was personally liable for the condition in the gift, but this liability could only be enforced through an action for damages. The court dismissed the executors' appeal, affirming that no injunction or order for equitable compensation was appropriate. This decision clarified the nature of personal obligations in wills and the limited remedies available when such obligations are breached.

Orders