Kavanagh v Reardon - [2012] VSC 174

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

S CI 2011 5532

JENNIFER ELIZABETH KAVANAGH (As Executrix for the Estate of Jean Elizabeth Reardon)	Plaintiff
v
ADAM REARDON, LUKE REARDON, JOEL REARDON and RENAE JOHANSEN (Children of the late Reginald Reardon)	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 FEBRUARY 2012
DATE OF JUDGMENT:	9 MAY 2012
CASE MAY BE CITED AS:	KAVANAGH v REARDON
MEDIUM NEUTRAL CITATION:	[2012] VSC 174

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Wills – Construction – Specific gift of real estate property to son – Gift of residue to son and daughter provided that if either predeceased testatrix leaving children the children took equally the share of their parent - Son predeceased testatrix leaving four children - Whether contrary intention within meaning of s 45(3) of the Wills Act 1997 appeared in the testatrix’s will so that real estate property fell into residue.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Bristow	Pat Nagle
For the Defendants	Ms C McOmish	Dimos Lawyers, town agents for McKays Solicitors, Queensland

HIS HONOUR:

Introduction

The testatrix, Jean Elizabeth Reardon, died on 21 February 2010, leaving a will dated 21 February 2007. The testatrix had two children, a son, Reginald Howard Reardon, and a daughter, Jennifer Elizabeth Kavanagh. Reginald Reardon died on 27 August 2009, thereby predeceasing his mother. He was survived by his wife and four children.

Probate of the testatrix’s last will was granted to Jennifer Kavanagh on 9 November 2010. The testatrix’s estate consisted of a property at 12 Hakatere Street, Northcote (“the Northcote property”), valued for probate purposes at $750,000, and bank savings and investments worth $409,496.89.

Clauses 3 to 5 of the testatrix’s last will read as follows:

3.I GIVE DEVISE AND BEQUEATH all my right title and interest in the property situate at and known as 12 Hakatere Street, Northcote or any other dwelling which I have purchased to reside in to my son Reginald Howard Reardon.
4.If at the date of my death I have sold the property at 12 Hakatere Street, Northcote and purchased another property at a lesser price then I give to my son Reginald Howard Reardon an amount of money being difference between the sale price of 12 Hakatere Street, Northcote (after deduction of sale costs) and the purchase price of the other property PROVIDED THAT if I have sold 12 Hakatere Street, Northcote and not purchased another property then I give to my said son a sum of money equivalent to the sale price of 12 Hakatere Street, Northcote (after deduction of sale costs) together with a sum equal to 5% of the sale price calculated annually from the date of sale to the date of my death.
5.I GIVE DEVISE AND BEQUEATH the residue of my Estate both real and personal of whatsoever kind and wheresoever situate to my children Reginald Howard Reardon and Jennifer Elizabeth Kavanagh PROVIDED THAT if any child of mine should die before me…

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 Kavanagh v Reardon

Details

AGLC: Kavanagh v Reardon [2012] VSC 174
Case: [2012] VSC 174
Decision Date: 9 MAY 2012

CaseChat Overview and Summary

The case of Kavanagh v Reardon involved a dispute regarding the interpretation of a will. The deceased, referred to as the testatrix, had left a will that included a specific gift of real estate property to her son and a gift of the residue to her son and daughter, provided that if either predeceased the testatrix leaving children, the children would take equally the share of their parent. The son predeceased the testatrix, leaving behind four children. The issue before the court was whether a contrary intention within the meaning of section 45(3) of the Wills Act 1997 appeared in the testatrix’s will, such that the real estate property would fall into the residue.

The court examined the language of the will and the circumstances surrounding its creation to determine if the testatrix had expressed a clear intention to exclude the son’s children from inheriting the real estate property. The court considered the overall context of the will and the testatrix’s intentions, including any evidence of her wishes and the relationship between the beneficiaries. After thorough analysis, the court found that there was no clear indication of a contrary intention in the will, and thus, the real estate property was to be distributed according to the terms set out.

As a result, the court held that the real estate property would not fall into the residue but would be distributed to the son’s children as per the specific gift in the will. The court’s decision was based on the principle that the will should be interpreted in a way that gives effect to the testatrix’s intentions, and in this case, there was insufficient evidence to suggest that she intended to exclude her grandchildren from inheriting the property. The court’s ruling provided clarity on the distribution of the estate and ensured that the testatrix’s wishes were honoured.

Orders