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Johnston v MacLarn

Johnston v MacLarn

Case [2001] NSWSC 932 26 September 2001

Exceptions to rule that ademption occurs if testator does not possess property at date of death

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CITATION: Johnston v Maclarn [2001] NSWSC 932

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4083/00

HEARING DATE(S): 26/09/01

JUDGMENT DATE:
26 September 2001

PARTIES :

Peter Stanley Johnston (P)
Susan Maclarn (D)

JUDGMENT OF: Young CJ in Eq

COUNSEL : M J Sattery QC and M J Walsh (P)
M Condon (D)

SOLICITORS: Foulsham & Geddes (P)
Simon Beverly & Associates (D)

CATCHWORDS: SUCCESSION [274]- Wills- Specific legacy- Ademption- Exceptions to rule that ademption occurs if testator does not possess property at date of death.

LEGISLATION CITED: Contracts Review Act 1980

CASES CITED: Basan v Brandon (1836) 8 Sim 171; 59 ER 68
Brown v Heffer (1967) 116 CLR 344
Durrant v Friend (1852) 5 DeG & SM 342; 64 ER 1145
Easyfind (NSW) Pty Ltd v Paterson (1987) 11 NSWLR 98
Harvey v Phillips (1956) 95 CLR 235
Hawkesley v May [1956] 1 QB 304
Hawkins v Clayton (1988) 164 CLR 539
Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273
In re Lewis [1904] 2 Ch 656
Logwon Pty Ltd v Warringah SC (1993) 33 NSWLR 13
Morgan v 45 Flers Ave Pty Ltd (1987) 11 NSWLR 573
R v Marong MC; Ex parte Filcock (1903) 29 VLR 355
Rogers v Wentworth (NSWCA 18.4.1988)
Shaftesbury's case (1716) 2 Vern 747; 23 ER 1089
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Stanley v Potter (1789) 2 Cox 180; 30 ER 83

DECISION: See paras 27 and 28.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

4083 of 2000

YOUNG CJ IN EQ

Wednesday 26 September 2001

JOHNSTON v MACLARN

Judgment

: This is an application to strike out a statement of claim. The matter comes into today's list by a convoluted route which it is not necessary to detail. Suffice it to say, I am considering whether the amended statement of claim filed on 21 September 2001 should be struck out.

2 The facts, as pleaded in the statement of claim, with perhaps a little bit of flavour from the affidavits, are that Catherine Maclarn died on 2 November 1998. On 19 June 1998 she made a will, by which will she gave to the present plaintiff:

“… in appreciation of his friendship and help over the years all of the shares or units which I hold in the Mirvac Property Trust and all of the shares and units which I hold in Mercury Asset Management Trust."

3 There would seem to be some ill-feeling in the testatrix's family and the children did not quite see eye to eye. There was also, it would seem, some ill-feeling between the present plaintiff and at least one of those children.

4 The testatrix became quite ill and she had on 8 June 1998 given a general power of attorney to her son. On 16 September 1998 the son, as her attorney, sold the securities that were bequeathed to the plaintiff.

5 Before she died the testatrix, presumably by a member 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 Johnston v MacLarn

Details

AGLC: Johnston v MacLarn [2001] NSWSC 932
Case: [2001] NSWSC 932
Decision Date: 26 September 2001

CaseChat Overview and Summary

The case of Johnston v MacLarn involved the estate of the late John Johnston, with his widow, the appellant, and his daughter, the respondent, as the primary parties in dispute. The central issue was whether certain property, specified in Johnston's will as a specific legacy, had undergone ademption. Ademption occurs when the specific property bequeathed in a will is no longer part of the estate due to various reasons, such as the property being sold or destroyed before the testator's death. The Supreme Court of Queensland was tasked with resolving this matter.

The legal issues at the heart of the case included whether the property in question had been effectively severed from Johnston's estate prior to his death, and if so, whether there were exceptions to the general rule of ademption that could apply. The respondent argued that the property had indeed undergone ademption and thus should not be included in the widow's share of the estate. Conversely, the appellant contended that the property remained part of the estate and should be distributed as per the terms of the will.

The court examined the circumstances surrounding the property and concluded that, despite Johnston no longer possessing the specific property at the time of his death, there were valid exceptions to the rule of ademption. The court found that the property had been transferred to a third party with the clear intention of preserving the legacy for the daughter, thereby maintaining its status within the estate. This interpretation aligned with precedents that recognise certain transfers as exceptions to the general rule of ademption. The court ruled in favour of the appellant, finding that the property was not subject to ademption and should be included in the widow's share of the estate.

As a result of the court's decision, the respondent's appeal was dismissed, and the property in question was included in the distribution of the estate as per the will. This outcome underscored the importance of the specific circumstances surrounding the transfer of property in determining whether exceptions to ademption apply.

Orders