In re Hood
[2004] VSC 328
•2 September 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 6111 of 2003
IN THE MATTER of the Will and Estate of VIOLET ETHELINE ANNIE HOOD, deceased
AND
IN THE MATTER of an application pursuant to Rule 54.02 of the General Rules of Procedure for the determination of questions arising in the administration of the estate
| STATE TRUSTEES LIMITED (as the Executor of the Will of the deceased) | Plaintiff |
| v | |
| GWENETH ANNIE MARGARET HALL & OTHERS | Defendants |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 June 2004 | |
DATE OF JUDGMENT: | 2 September 2004 | |
CASE MAY BE CITED AS: | In Re Hood | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 328 | |
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Administration of estate – construction of will – meaning of "principal place of residence at the time of my death".
Wills Act 1958 (Vic), s. 22A.
Roddy v Fitzgerald (1858) 6 HL Cas 823, considered.
Re Powell (1982) 31 SASR 361, considered.
Re Baulkhorn (unreported) 26 November 1993, Supreme Court of Queensland [BC 9303071], considered.
Re Willis [1996] 2 Qd R 664, considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Phillips | State Trustees Ltd |
| For the First to Fourth Defendants For the Fifth & Sixth Defendants | Ms C Sparke Mr R Cook | Graeme Bloom Cunningham & Co Purcell & Purcell |
HER HONOUR:
Background
This proceeding has been brought by the executor of the estate of Violet Etheline Annie Hood ("the deceased"), who died on 7 May 2001, aged 98 years. The executor seeks the determination of certain questions arising in the administration of the deceased's estate.
The deceased made her last will on 4 July 1996 ("the will"), when she was a 93 year old widow. By the will, the deceased appointed her nephew, Allan Thomas Hird, and a nephew by marriage, Maxwell Bennett Campbell, to be her executors. Mr Hird subsequently authorised the plaintiff to act as executor. On 31 January 2002 the plaintiff obtained probate pursuant to s.10(1)(a) of the Trustee Companies Act 1984, with leave reserved to Mr Campbell to come in and prove.
By the will, the deceased left her property at 26 Monash St, Footscray ("the Monash St property") "or such property as is my principal place of residence at the date of my death" to be sold and the net proceeds to be divided equally between 2 of her grandsons, Bruce Raymond Hood and Phillip Mark Hood, the fifth and sixth defendants ("the Hoods"). The Hoods are the sons of the deceased's late son, Ray Hood, who died in 1974.
The will provided that her residuary estate was to be divided equally between the Hoods and the deceased's 3 other grandsons, Stuart Hall, Ross Hall and Craig Hall, the second to fourth defendants respectively ("the Halls"). The Halls are the sons of the deceased's daughter, Gweneth Annie Harriet Hall, the first defendant.
Gweneth Hall receives no benefit under the will. In Supreme Court proceeding No 4750 of 2002 Mrs Hall seeks provision out of the deceased's estate, pursuant to Part IV of the Administration and Probate Act 1958. That proceeding, which was issued on 13 March 2002, has been adjourned pending the outcome of the construction summons.
At the time of her death, the deceased was living in an aged care hostel. The only real property which the deceased owned at that time was a property at 2/46 Duncans Road, Werribee ("the Duncans Road property").
The gift of the Monash St property has been adeemed, that property having been sold in late 1996, prior to the deceased's death. The primary question for determination in this case is whether the Duncans Road property was the deceased's "principal place of residence" at her death or not.[1] If it was, then the proceeds of sale of that property will pass to the Hoods. If it was not, then the proceeds will fall into residue and be distributed between the Hoods and the Halls.
[1]The plaintiff's originating motion and summons seek the determination of the following questions:
1. In the events that have happened, and upon the proper construction of the will, does the gift contained in clause [3] of the will entitle the Hoods to the proceeds of sale of the Duncans Road property?
2. In the events that have happened and upon the proper construction of the will, does the gift contained in clause [3] fail?
3.Which person or persons are entitled under the will to the Duncans Road property?
4.What, if anything, is the entitlement of the Hoods pursuant to clause [3] of the will?
The evidence
The executor relied upon the affidavit of Susan Letitia May, a solicitor employed by the executor, sworn 23 May 2003. The Halls relied upon two affidavits of Gweneth Hall, sworn 27 August 2003 and 17 November 2003, respectively, and an affidavit of Stuart Hall apparently sworn 28 August 2003.[2] The Hoods relied upon the affidavits of Phillip Hood sworn 28 August 2003 and 16 June 2004, and Phillip Hood's wife, Meredith Hood, also sworn 16 June 2004. In fact, the Hood and Hall affidavits contained much material which I ruled as inadmissible and did not accept into evidence. None of the deponents of the affidavits were called to give viva voce evidence to replace evidence which had been ruled as inadmissible. Nor were any deponents cross-examined.
[2]The affidavit is irregularly sworn in that the date of swearing does not appear on the affidavit. No party objected to its being used, notwithstanding that irregularity.
The deceased lived at the Monash St property for almost 60 years. She was living there at the time she made the will. By the mid-1990s it appears that the deceased had some problems coping with living there by herself.[3] She moved out in mid-November 1996. On 22 February 1997, she entered into a contract to sell the Monash St property for $115,000. The Monash St property was empty from November 1996, when the deceased moved to the Duncans Road property, until settlement on 20 May 1997.
[3]For example, she was apparently unable to shower herself at Monash Street, due to the shower being over the bath which she could not climb into by herself. There is some dispute about whether she was keeping the place hygienic and was eating properly. She had had several falls and once spent the best part of an afternoon crawling across the yard to her house, as she could not get up after having fallen in the yard.
The deceased also owned a unit at 2/69 Hawdon St, Heidelberg, which she used as an investment property. She sold the Heidelberg property in October 1996, for $132,000.
The deceased purchased the Duncans Road property for $122,000, pursuant to a contract dated 2 October 1996. On 15 November 1996, the deceased moved into the Duncans Road property pursuant to a licence agreement, pending registration of the plan of subdivision which gave her title. It is common ground that the Duncans Road property was the deceased's principal place of residence for the period from November 1996 until April 1997.
The Duncans Road property was several hundred metres away from Phillip Hood's home in Dixon Avenue, Werribee. I accept that the deceased purchased the Duncans Road property so that she could be close to and cared for by her grandson, Phillip Hood, and his family.
In April 1997, the deceased was not well and went to stay with Phillip Hood and his wife at their home. He says that this was always intended to be a temporary arrangement as far as he and the deceased were concerned. He says that his grandmother was a very independent person with strong views, who was used to running her own house, and it became apparent to all that the arrangement would not work out on a long term basis. The deceased stayed there until early August 1997.
On 1 July 1997, the deceased executed an enduring power of attorney by which she authorised Phillip Hood to act as her attorney.
On 7 August 1997, the deceased went to Manor Court Aged Care Hostel in Werribee ("the hostel"). The hostel is a supported accommodation hostel. Residents have private bed sitter accommodation and meals are provided in a common dining room. The deceased paid an accommodation bond of $79,000 in August 1997. She continued to live at the hostel until her death on 7 May 2001. She never returned to live at the Duncans Road property.
Apparently the deceased had been assessed some time prior to her death as requiring a move from a residential hostel to a nursing home, and was on a waiting list for Mephan Street Nursing Home when she died.
The evidence before me indicates that the deceased did not accept the hostel as being her permanent home. Phillip Hood and Stuart and Gweneth Hall all depose to the fact that, whilst she was living at the hostel, the deceased regularly said or indicated that she wanted to "go home". They differ in their evidence as to which property the deceased was referring to when she spoke of "home". Given the way in which both sides' affidavits have been drafted, and in the absence of oral evidence from any deponent, it is not always easy to be certain whether the deponent is referring to words actually spoken by the deceased or to the deponent's understanding of the meaning of the deceased's words.
It is not necessary for me to resolve the various assertions made by Phillip Hood and Gweneth Hall that they each visited or cared for the deceased more, or that they knew her intentions better, than the other of them. I accept that they are both able to give some evidence as to things the deceased said to them whilst she was living at the hostel. They cannot give evidence or speculate as to what they believe the deceased told the other one of them when they were not present.
I accept that Phillip Hood saw his grandmother on a regular basis throughout her time at the hostel. He says in a number of places in his affidavits that the deceased "constantly" told him that she wanted to go home to Duncans Road and that she referred to the Duncans Road property as "my home" or "my place."
"23. When she first moved to Manor Court, I would have seen her probably about weekly. Towards the end of her life it would have been once or twice a month. She was constantly asking me at this time to take her out of there because she did not want to live there. Even though she thought the place was nice, the food was nice and the people were lovely she said she still wanted to get out to 'her home' at Duncans Road. In about the last month of her life I observed that she was in a lot of pain with her leg and she was being heavily drugged. She did not recognise me the last couple of times that I went to see her.
24.Mrs Hood was told by me and was fully aware of the fact that the property was only being let for 12 months and 6 months at a time and she was very happy with that because that fitted in with her concepts of being able to return to the property when she was able to do so."[4]
[4]From Phillip Hood's first affidavit.
On the other hand, Phillip Hood concedes that the deceased did have a short term memory problem "and she sometimes did forget selling Monash Street and buying the unit in Duncans Road or even living with me and my family for 5 months."[5]
[5]Paragraph 36(v) of Phillip Hood's first affidavit.
Stuart Hall confirmed that he observed his grandmother having short term memory problems commencing in the early 1990s, and would repeatedly go over the same ground in conversations. His mother, Gweneth Hall, thought that the dementia problems began to set in after the deceased was released from hospital after suffering a stroke in early 1995.
Stuart Hall's evidence as to the deceased's intentions was very brief and in the following terms:
"6.After Nan moved to Manor Court her condition continued to deteriorate. She would often ask me to 'take her home' by which I understood she meant Monash Street. She would also ask me where she was and when told Werribee, she would need to be reminded that Phillip lived in Werribee and that she had lived with him and in the Unit that she still owned."
Gweneth Hall says that she was estranged from the deceased for a period of approximately 18 months, ending in about November 1996. She and her mother were reconciled to some degree and she visited the deceased at the Duncans Road property, at Phillip Hood's house and at the hostel. She says she visited the deceased at the hostel once and often twice per week. Although she expresses the opinion that the Duncans Road property was never really "home" to her mother, in part because it was unable to compete with a home of some 60 years, it is conceded (quite properly on the evidence) by the Hall's counsel that the Duncans Road property was the deceased's principal place of residence from November 1996 until April 1997. Her direct evidence is in the following terms:
"10. I can clearly recall how my mother never ever mentioned the Duncans Road unit at all. [next sentence deleted as inadmissible] She constantly pleaded with me to be taken home to Monash Street. She never seemed to grasp the fact that Monash Street had been sold, even though I continually reminded her of this. She just did not believe it was sold. When I did not agree to her demands to be taken home or to live with me, she would turn nasty and say to me 'if you're not going to take me, don't bother coming at all.'[6]
"15. My mother wanted to leave Manor Court, and she always talked about wanting to go 'home to Monash Street' or 'when are you going to take me home' meaning Monash Street because she never mentioned Duncans Road once. Every time she did this I would tell her she had sold Monash Street, but she wouldn't believe me. She just looked amazed when told her Monash Street was sold."[7]
[6]Gweneth Hall's first affidavit.
[7]Gweneth Hall's second affidavit.
On 13 June 1997, the deceased appointed an agent to lease the Duncans Road property. The Duncans Road property was first let out in August 1997 on a short term lease. Thereafter it was let out on a series of residential tenancies with terms of either 6 or 12 months. Phillip Hood says that the property was let out to protect it and to provide some additional financial support for the deceased. Phillip Hood also says that the deceased concurred in this arrangement, wishing to retain her unit so she could move back there when circumstances permitted.
The affidavits contain lengthy and sometimes emotive allegations as to the entitlement of different family members to take or retain possession of various items of the deceased's furniture and jewellery. Most of those allegations are not relevant to the issues before me and I make no findings in relation to them. However, the parties argued that the location of the deceased's furniture at various times may be relevant in considering the deceased's intentions. For that reason, I have regard to the following evidence as to furniture.
When the deceased first moved to the Duncans Road property, she furnished the unit with part of her furniture from the larger Monash St property. She stored the balance of the furniture in the garage at Duncans Road.
When the deceased moved into Phillip Hood's house, she brought some personal items of furniture with her.[8] The rest of her furniture was left where it was at the Duncans Road property.
[8]Principally bedroom furniture, but also a crystal cabinet which she did not want to leave unattended and a grandfather clock.
After she moved into the hostel, she wanted to continue storing her furniture in the garage at Duncans Road. However, according to Phillip Hood, "the letting agent was adamant that that could not happen as a tenant would want use of the garage", so he arranged for storage of her furniture, partly at his house and the balance in commercial rental storage.
The parties' contentions
As the two conflicting parties were before me, and there were no absent or unascertained beneficiaries to be concerned about, the executor quite properly adopted a position of impartiality before me.
The Hoods argued that the Duncans Road property remained the deceased's principal residence, notwithstanding that she spent the last 4 years of her life in the hostel. In the alternative, the Hoods argued that if the hostel had become her principal residence, then they are entitled to the refund on the basis that it represents the proceeds of the deceased's interest in the hostel.
On the other hand, the Halls argued that the deceased did not have a "principal residence" at the date of death that she could leave by will. As previously mentioned, they conceded that the Duncans Road property had been the deceased's principal place of residence, at least from November 1996 until April 1997. They argued that the hostel had become her "principal residence", and the Duncans Road property had lost its "principal residence" status and formed part of the residue.
Construction of the will - general principles
The relevant provision in the will is as follows:
"I devise my freehold property known as 26 Monash Street, Footscray or such property as is my principal place of residence at the date of my death to my trustees in fee simple upon trusts to sell the same and to hold the net proceeds of sale and the net rents and profits until sale (if any) upon the following trusts:
(a)subject to subparagraph (b), to divide it equally among those of my grandsons Bruce Raymond Hood and Philip Mark Hood who survive me;
(b)[gift in remainder]."
After explaining why the deceased made no provision for her daughter, Gweneth Hall, the will goes on to say:
"In assessing the size of the estate I have available for distribution I have decided that my grandchildren are in greater need of provision from my estate than my daughter and that in particular my grandsons Bruce Raymond Hood and Phillip Mark Hood need particular assistance as both of them only have one household income each whilst my other grandchildren are married to wives who also work."
My first task is to ascertain, from the words used in the will, the deceased's intention. In Roddy v Fitzgerald[9], Lord Wensleydale said:
"The first duty of the Court expounding the will is to ascertain what is the meaning of the words used by the testator. It is very often said that the intention of the testator is to be the guide, but that expression is capable of being misunderstood, and may lead to speculation as to what the testator may be supposed to have intended to write, whereas the only and proper enquiry is 'what is the meaning of that which he has actually written.' That which he has written is to be construed by every part being taken into consideration according to its grammatical construction, and the ordinary acceptance of the words used, with the assistance of such parol evidence of the surrounding circumstances as is admissible to place the court in the position of the testator."
[9](1858) 6 HL Cas 823 at 876-7
Section 22A of the Wills Act 1958 provides that "acts, facts and circumstances touching intention of the testator shall be considered and evidence of such acts, facts and circumstances shall be admitted accordingly but evidence of a statement by the testator declaring the intention to be effected or which had been effected by the will or any part thereof shall not be received in proof of the intention declared unless the statement would apart from this section be received in proof of the intention declared."[10]
[10]S.36 of the Wills Act 1997 does not apply in the present case, as that section only applies to wills made on or after 20 July 1998 (s.52(1)).
"Principal residence"
The ordinary meaning of "residence", according to dictionary definitions, includes "the place of a person's home or habitation; the place where he abides"[11] or "to have one's usual dwelling-place or abode; the circumstance of having one's permanent or usual abode in or at a certain place."[12]
[11]Osborn's Concise Law Dictionary.
[12]The Shorter Oxford English Dictionary.
Courts have been required to consider the concept of "residence" in various different contexts. The connotation of some "permanence"[13] or "settled purpose"[14] seems to be inherent in the concept of residence. However, the precise meaning of expressions such as "residence" and "principal residence" must depend heavily on the context in which they are used.[15]
[13]Ashe v Sorrento Hotel Pty Ltd [1951] VLR 214 per Lowe A C-J, Gavan Duffy and Dean JJ, considering the question in the context of liquor licensing legislation.
[14]Morley v R (1999) 166 ALR 487 per Ipp J.
[15]Re Rowell (1982) 31 SASR 361 at 369.
Counsel for the Halls submitted that I would be assisted by a consideration of cases on the meaning of "principal place of residence" or "principal residence" in the context of taxation and other revenue legislation. Various factors are considered in that context, including: whether it is the place the person actually resides; how often the person is present at the premises and spends the night there; whether the premises are used as a business; what connection they have with any other place of residence; where the person "eats and sleeps and has a settled abode"; continuity of living arrangements; use of electricity and services; the presence of furniture.[16] In stamp duty cases at least, it appears that the intention of the relevant person is a relevant, although not a dominant, factor in deciding the factual question as to whether or not a place can be described as a person's principal place of residence.[17] In determining the issue, the Court "has to make a common sense assessment taking into account a number of varying and even conflicting circumstances."[18]
[16]AAT Case 8769 (1993) 26 ATR 1051; Deane v Commissioner of Stamp Duties (Qld) [1996] 2 Qd R 557 at 567. Some of these factors are expressly set out in the relevant legislation or Tax Determinations.
[17]Deane v Commissioner of Stamp Duties (Qld) at 566.
[18]AAT Case 8769 at 1052.
Factors that may be relevant in the interpretation of revenue legislation may be less relevant in the context of interpretation of a will. Obviously, death often occurs at times when a person is seriously ill or incapacitated. At such a time, they may be in hospital or some other form of care. They may have been absent from their principal place of residence and in such care for a short or long time prior to their death. They may have lost full mental capacity at some time prior to their death. It would be undesirable if a testator's otherwise clearly expressed testamentary intention could be thwarted by the mere fact of hospitalisation or relocation from their customary abode prior to death.
There have been a few first instance decisions that have considered what is meant by expressions such as "my principal place of residence at the date of my death".
In Re Rowell[19] the testatrix made a will in 1974, by which she made a gift of "my principal place of abode at the time of my death." In 1976 she was admitted as a patient to a psychiatric hospital, suffering from personality disorder and neurotic depression. In January 1977 her affairs came under the control of the Public Trustee, who administered them until her death. She remained in the hospital continuously until her death in 1979. At the time of her death, she owned one house which she had apparently never actually moved into. The house remained unoccupied throughout her period of hospitalisation.
[19](1982) 31 SASR 361.
Wells J held that the house fell within the description "my principal place of abode." His Honour concluded that the testatrix had intended the house to be her abode, but said that her mental illness was "a trick of fate" which prevented her from ever actually going into occupation of the house. He said he would be loath to hold that her 3-year presence in the hospital, and her receipt of sustenance and treatment there, had the effect of making the hospital her abode.
"Furthermore, I am of the opinion that the testatrix's inability, and consequent failure, to enter into occupation of her intended home makes no difference to the operation of the disputed passage in the will. Where a person has established a place of abode, mere physical absence from it does not, in his or her contemplation of it, change its status. It would require the sort of choice or decision referred to above to effect such a change."[20]
[20]at 370.
Counsel for the Halls submitted that In Re Rowell was distinguishable from the present facts on two bases. Firstly, it was said that the testatrix's house was left vacant throughout the period of hospitalisation, whereas in the present case the Duncans Road property was let out. That may be so, but there is nothing in the reasoning of Wells J to suggest that the vacancy of the property was a factor or a significant factor in his decision. I will consider the significance of the letting out of the Duncans Road property later in these reasons. The second point of distinction was said to arise from the concept of voluntariness. His Honour held that the concept of "abode" connoted an element of choice or, at least, decision; accordingly, the testatrix in that case did not choose or decide to make the hospital her abode. In the present case, it is common ground that the deceased entered the hostel for medical reasons, rather than psychiatric reasons. It is not clear to me that Wells J's concept of voluntariness was restricted by reference to psychiatric considerations.
In Re Baulkhorn[21] Derrington J considered a gift expressed in terms of "my principal place of residence." The testatrix made her last will in April 1992 and a codicil to that will in September 1992. At the time of execution of her will and codicil, the testatrix owned the Silver Bridle property. She had lived at that property for some years prior to execution of her will, but moved out of it in July 1992 to live in a hostel in Ashmore. As in the present case, the testatrix's agreement with the hostel involved the provision of a room and the supply of meals and access to personal support and care, social activities and security. She sold the Silver Bridle property at the end of 1992. In January 1993, she bought some vacant land at Chisholm Road and then entered into a contract to have a residence built on the land. On 11 March 1993 she had a serious stroke and was taken from the hostel to a nursing home, where she lapsed into a coma and died on 17 March 1993. The house was constructed to "lock up" stage at the date of her death. She never occupied the Chisholm Road property. The Chisholm Road property was the only real property owned by the testatrix at the time of her death.
[21](unreported) 26 November 1993, Supreme Court of Queensland per Derrington J [BC9303071].
Derrington J concluded that the Chisholm Road property was not the testatrix's principal place of residence, because it was never actually her place of residence and only represented a place of "intended future residence". Had it been her principal place of residence, his Honour's reasoning seems to be that it would not have lost that character merely by reason of her residence at the hostel or the nursing home.
Derrington J considered the issue again in the case of Re Willis.[22] The testatrix devised "the house property in which I shall be residing at the time of my decease." At the time of her death she owned a house property in which she had last resided 13 years before. During the intervening period she lived only in a psychiatric hospital and nursing homes. The house was left vacant throughout that period and her personal belongings were left there. For most of the 13 years she lacked the capacity to have any intention whether to reside in the house or not. Immediately prior to her death she was incapable of residing in the property or of having the intention to do so.
[22][1996] 2 Qd R 664.
His Honour held that a will should not be construed in a strictly technical or legalistic sense, but with sensitivity to the factual context of ordinary life and circumstances, and according proper influence to special personal circumstances of the testator having a bearing on the meaning of an expression used in the will. Accordingly, the will should be construed as referring to the "house which I shall keep and maintain as my residence though I cannot physically be there."
Derrington J arrived at that conclusion notwithstanding that for 13 years prior to her death it would have been practically impossible for the testatrix to physically return to the property, initially for medical reasons and later for psychiatric reasons. His Honour noted the evidence that, until her mental incompetence overtook her, the testatrix intended to reside in the property whenever she could and so intended the relevant devise to apply to it. I agree in particular with the following observations:
"It is a matter of general experience that some people suffer total incapacity in institutions away from their normal home for a long period immediately prior to death and the concept of their residence must be sufficiently flexible to accommodate this.
In such cases, an expression in a will referring to a house in which the testator is residing at the time of death clearly could not be construed as applying only to a house in which there was continuing active daily occupation as a residence. A person of ordinary understanding and knowledge of the factual context would understand that, used in such circumstances in a will, a testator meant the words to carry more than the narrow meaning of the house in which he was or would be in physical occupation.
… It follows that the concept connoted by the word 'residing' should if possible be given such breadth as to accommodate what would seem from all the available material to coincide with the wishes and intent of the testatrix. It is not insignificant that if this is not done the gift would fail because of circumstances outside the control of the testatrix which did not exist at the time when she had her last testamentary capacity."[23]
[23]At 667
I do not disagree with the statements of principle or conclusions expressed in those cases. Obviously each case will depend on its own facts. I turn to consider the current facts in the light of those cases. It is conceded that the Duncans Road property was the deceased's principal place of residence at least between November 1996 and April 1997. Did it lose that characterisation between April 1997 and the deceased's death in May 2001?
I accept that the property did not lose that characterisation by reason of the deceased's residence at her grandson's house between April and August 1997.[24] The Duncans Road property remained vacant and furnished[25] and I accept the evidence that her stay there was only intended to be temporary.
[24]The contrary proposition was not effectively argued before me.
[25]Save for a few personal items such as bedroom furniture.
Although the deceased never moved back to the Duncans Road property after she entered the hostel, the clear evidence from both sides is that she did not regard the hostel as her "home".
Counsel for the Halls submitted that I should find that it was never objectively likely that the deceased would in fact be able to go home. I do not believe that I have clear evidence before me sufficient to make that finding, even if some such test of "objective likelihood" were able to be applied. The evidence indicates that at some stage the deceased's mental capacity due to dementia was such that she could no longer remember that she had sold Monash Street and bought the Duncans Road property. On the evidence before me, and in the absence of any medical evidence, I am not able to conclude precisely when that occurred. As in the re Rowell and re Willis cases, I must consider the meaning of the words at the time when the deceased last had a capacity for intention.
Whilst it is true that the Duncans Road property was let out when the deceased was in the hostel, that is not a fact that existed in any of the cases I have just considered. However, it was only let out on short term tenancies and I find that, for so long as she had the mental capacity to have an intention, the deceased intended to move back there at the end of a tenancy if her health improved. The fact that the property was occupied for security purposes and for some additional income does not necessarily indicate that the deceased had abandoned the property as her principal place of residence.
The deceased did not dispose of her furniture from the Duncans Road property, rather she paid to store some of it in commercial storage. That fact might not carry much weight in itself. However, had she decided to make the hostel her permanent home, it may be thought likely she might have sold or given away furniture which was clearly surplus to her needs at the hostel.[26]
[26]At least during such period as she had the mental capacity to make such a decision.
The mere fact that she spent almost 4 years in the hostel does not of itself lead to the conclusion that her residence there had become permanent, as the re Willis case demonstrates.[27] Nor does the fact that it perhaps became increasingly unlikely that the deceased's medical condition would be such as to permit her to leave the hostel.
[27]The period of residence in a hostel in that case was 13 years. I do not accept that the 2 year period imposed by some revenue legislation can be applied by analogy here, as suggested by the Halls' counsel.
Although the state of the evidence is somewhat unsatisfactory, for reasons which I have already explained, I conclude that the evidence does not establish that the Duncans Road property lost its acknowledged status as the deceased's principal place of residence.
The refund
It is not necessary for me to consider the Hoods' alternative submission, namely that if the hostel had become her principal residence, then they are entitled to the refund on the basis that it represents the proceeds of the deceased's interest in the hostel. I doubt, but do not decide, whether that submission could succeed, given the wording of the gift in the will.
Proposed orders
I propose to answer the four questions posed by the executor in the following terms:
1. Yes.
2. No.
3. The fifth and sixth defendants are entitled to the proceeds of sale of the Duncans Road property.
4. The second to fourth defendants have no entitlement pursuant to clause [3] of the will.
I will hear from the parties as to the precise formulation of my orders and as to costs.
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