Lang v Davey

The applicants in the Lang v Davey case have brought proceedings under the Inheritance (Family Provision) Act 1972 (SA), alleging they have been left without adequate provision and seeking an order for further provision from the deceased’s estate. The deceased, Jean, passed away on 23 July 1976, leaving a will and codicil that named her as the sole executor and trustee and sole beneficiary. Administration of the estate was granted to Jean on 29 September 1976. The applicants claim that the contingency in clause 5 of the will was not satisfied, and duties would have been payable on any gifting of property to Jean under the Succession Duties Act 1929-1975 (SA), thus the estate never passed to Jean under clause 5. Instead, they argue that the gift over took effect, and Jean was acting as trustee of the whole estate held on testamentary trusts created under clause 6 of the will.

The legal issues before the court were whether the applicants had been left without adequate provision and, if so, whether the court should make an order under the Family Provision Act. Additionally, the court had to determine the admissibility and use of extrinsic evidence in aid of construction of the will, specifically a letter written by Mr Malcolm Playford to Jean shortly after the deceased's death. The executors sought to tender this letter as proof of its contents, while the applicants objected, arguing that it was not a business record within the meaning of the Evidence Act 1929 (SA). The court had to decide whether the letter could be admitted and, if so, what its permissible use would be.

The court concluded that the central scheme of the deceased's will was for Jean, as sole executor, to pass as much of the estate as possible to herself as beneficiary free of death duties. The words of clauses 3, 5, and 6 were to be interpreted in light of this central scheme and purpose. The court found that the whole of the estate was devised to Jean in her capacity as trustee of the deceased estate to hold upon the trusts declared in clause 5 of the deceased's will. The court further determined that the executors could tender the Playford letter as extrinsic evidence to assist in interpreting the will, and its permissible use was to show knowledge of relevant surrounding circumstances at the time of making the will, not to show intention.

The court ultimately found that the applicants had not been left without adequate provision and declined to make an order under the Family Provision Act. The court's decision was based on the proper construction of the deceased's will, taking into account the central scheme and purpose of passing as much of the estate as possible to Jean free of succession duty. The deemed operation of the amending Act meant that succession duty was abolished before republication of the deceased's will, before her death, and before the administration of her estate had begun. Therefore, no succession duty was payable on any property derived from the deceased by Jean.