Kempson v Haydon - [2022] VSC 30

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 04795

PETER RUSTON KEMPSON (AS ADMINISTRATOR AND TRUSTEE OF THE ESTATE OF JILL NGARITA HALL, DECEASED)	Plaintiff
v
STEPHANIE LYN HAYDON	First Defendant
-and-
ANDREW GEORGE HALL	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2021
DATE OF JUDGMENT:	4 February 2022
CASE MAY BE CITED AS:	Kempson v Haydon & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 30

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PROBATE – Administration of Will – Administrator and Trustee of deceased Estate – Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 54 – Judicial Direction – Construction of Will – Will described gift of transfer of real property – Registered proprietor of land a company in which Testatrix held 50% share – Whether Testatrix intent is to gift her share in company - Whether purported gift valid - Hendry v The Perpetual Executors & Trustees Association of Australia (1961) 106 CLR 256 – Re Bowcock [1968] 2 NSWR 697 - Re O’Callaghandeceased [1972] VR 248 – Re Lewis’s Will Trusts [1985] 1 WLR 102 – Salier v Angius [2015] NSWSC 853.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Rizzi	Sinisgalli Foster Legal
For the First Defendant	Mr P. Cawthorn QC Mr J. McKay	Belleli King & Associates
For the Second Defendant	Mr L. Glick QC Mr V. Murano	Clayton Utz

HER HONOUR:

Jill Ngarita Hall (the Testatrix) died on 30 May 2015 leaving a will dated 13 June 2000 (the Will). She was survived by her husband Bruce Chandler Hall and their three adult children Stephanie Lyn Haydon, Andrew George Hall and Jennifer Robyn Cowie.[1] Jennifer subsequently died on 6 November 2018. The plaintiff[2] as administrator and trustee of the estate seeks judicial direction under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Both Andrew and Stephanie have been joined as necessary and proper parties to the proceeding.[3] By the Further Amended Originating Motion dated 28 July 2021, direction was sought on four issues, together with costs and other consequential orders. This judgment deals with the first issue only. A separate hearing will be listed for determination of the remaining three issues. The issue with which I am concerned deal with the construction of the Will and in particular the clauses that gift land to Andrew.
[1]For clarity, I will use first names only to describe the various members of the Hall family, meaning no disrespect to any.
[2]The plaintiff was granted leave to apply for a grant of administration of the Will and the executors named in the Will renounced their right to obtain probate. Letters of Administration with the Will annexed were granted on 3 November 2017
[3]Order of Judicial Registrar Keith in Kempson (as Administrator and Trustee of the Estate of Jill Hall) v Haydon (Supreme Court of Victoria, S ECI 2020 04785, 29 April 2021).

At the time 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 Kempson v Haydon

Details

AGLC: Kempson v Haydon [2022] VSC 30
Case: [2022] VSC 30
Decision Date: 4 February 2022

CaseChat Overview and Summary

The case of Kempson v Haydon was heard in the Supreme Court of Victoria. The dispute arose from the interpretation of a will, specifically concerning the validity of a gift of a property held by a company. The deceased, referred to as the testatrix, owned a 50% share in a company that was the registered proprietor of certain land. The primary issue before the court was whether the testatrix intended to gift her share in the company or if the purported gift was valid.

The legal issues revolved around the construction of the will and the testatrix's intent in making the gift. The court had to determine if the gift was a valid transfer of her share in the company or merely a gift of the property. The court considered relevant case law, including Hendry v The Perpetual Executors & Trustees Association of Australia, Re Bowcock, Re O’Callaghan deceased, Re Lewis’s Will Trusts, and Salier v Angius, to aid in its interpretation of the will.

The court concluded that the testatrix intended to gift her share in the company rather than the property itself. The court's reasoning was based on the language of the will and the surrounding circumstances. The Supreme Court held that the gift was valid as it pertained to the testatrix's share in the company, not the property held by the company. The court found that the testatrix's intent was to transfer her 50% share in the company to the beneficiaries named in the will.

The final orders of the court directed that the administrator and trustee of the deceased estate should proceed with the administration of the estate in accordance with the court's interpretation of the will. The beneficiaries named in the will were to receive the testatrix's 50% share in the company as per the court's decision.

Orders