Lempens v Reid

Case [2009] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

LEMPENS v REID & ORS

[2009] SASC 179

Judgment of The Honourable Justice Gray

2 July 2009

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - UNCERTAINTY AND FAILURE TO DISPOSE - IN RESPECT OF OBJECT OF GIFT

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GIFTS TO A CLASS - WHAT IS A CLASS

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - PRESUMPTION AGAINST INTESTACY

Application for direction pursuant to Rule 206 of the Supreme Court Civil Rules 2006 (SA) - construction of clause of will regarding gift of residue of estate - whether gift "to such of them my friends who resided with me from overseas" void for conceptual uncertainty - whether void for evidential uncertainty - consequence of uncertainty - application of hotchpot - whether costs of matter to be met from that half of residuary estate the subject of the application.

Held: gift of half of residue void for conceptual uncertainty - gift void for evidential uncertainty - half of residuary to be distributed to next of kin under an intestacy - hotchpot applies - beneficiary of other half of residuary precluded from recovery under partial intestacy -costs of application to be met from whole of residuary estate.

Supreme Court Civil Rules 2006 (SA) r 206; Wills Act 1936 (SA) s 25AA; Administration and Probate Act 1919 (SA) s 72B, s 72G, s 72J and s 72K, referred to.
Re Newman deceased [1967] VR 201; Lewis v O’Loughlin (1971) 125 CLR 320; Re Harrison (1885) 30 Ch D 390; In the Estate of Rigg, Deceased [1960] SASR 197; Fell v Fell (1922) 31 CLR 268; In the Estate of Tkaczuk (deceased); Dobryden vWagner and Association of Ukrainians in SA Inc (2004) 90 SASR 515; In re Lloyd’s Trust Instruments (Megarry J, unreported, 24 June 1970); In Re Edwards [1906] 1 Ch 570; In re Baden’s Deed Trusts [1971] AC 424; In re Gulbenkian’s Settlements [1970] AC 508; Coogan v Haydn (1879) 4 LR IR 585; In re Gibbard’s Will Trusts; Public Trustee v Davis [1967] 1 WLR 42; In re Barlow’s Will Trusts [1979] 1 WLR 278; Re Connor (1970) 10 DLR (3d) 5 (Supreme Court of Alberta); Re Benjamin; Neville v Benjamin [1902] 1 Ch 723; Re Eden deceased [1957] 2 All ER 430; In re Baden’s Deed Trusts (No 2) [1973] 1 Ch 9, considered.

LEMPENS v REID & ORS
[2009] SASC 179

Testamentary Causes Jurisdiction

GRAY J.

  1. This is an application for direction pursuant to Rule 206 of the Supreme Court Civil Rules 2006 (SA) as to the construction of the will of Walter Ronald James, the deceased.

  2. By summons filed 17 July 2008, and subsequently amended on 22 April 2009, the plaintiff Robert Lempens, the executor of the…

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AGLC
Lempens v Reid [2009] SASC 179
Case
[2009] SASC 179
Decision Date

CaseChat Overview and Summary

Lempens v Reid was an application for directions pursuant to Rule 206 of the Supreme Court Civil Rules 2006 (SA) concerning the construction of a clause of a will regarding the gift of the residue of the estate. The deceased intended to gift half of the residue of his estate to his brother, Bryne Clifford James, and the other half to four friends who had resided with him from overseas. The second defendant, the deceased’s brother, sought directions that the persons described in the gift were not entitled to any portion of the estate, and that the costs of the matter, including the legal costs of the parties incidental to the action, be met from that portion of the estate left to those "friends" who resided with the deceased from overseas.

The court was required to decide whether the gift "to such of them my friends who resided with me from overseas" was void for conceptual uncertainty, whether it was void for evidential uncertainty, and what the consequences of such uncertainty would be. The court also needed to determine whether the principle of hotchpot applied and whether the costs of the matter should be met from the half of the residuary estate that was the subject of the application or from the whole of the residuary estate.

The court found that the gift of half of the residue was void for conceptual uncertainty. The court further considered that if conceptual certainty were to be established, the gift would fail for evidential uncertainty. This resulted in a partial intestacy, where one half of the residuary estate was to be distributed according to Part 3A of the Administration and Probate Act. The court held that the principle of hotchpot applied, precluding Bryne James from sharing in the division of the residuary estate under the partial intestacy. The costs of the application were to be met from the whole of the residuary estate.

Orders

Orders of the court

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Background

Background to the litigation

The second defendant, the deceased’s brother Bryne Clifford James, sought directions that the persons described in the subject gift are not entitled to any portion of the estate, and that the costs of the action including the legal costs of the parties incidental to the action, be met from that portion of the estate that is left to those “friends” who resided with the deceased from overseas.Background Facts On 22 June 2005, the deceased instructed his solicitor Robert Lempens of Camatta Lempens, to prepare his will. The following day, Mr Lempens recorded the deceased’s instructions in the form of a statement, which included the following:I then want with the Will all of my debts to be paid and with the residue I want one half to go to my brother Brian [sic] Clifford James who lives in England.As to the other half I wish to give to four of my friends whose details I will drop off to my solicitor next Thursday. On 28 June 2005, Mr Lempens wrote to the deceased confirming the instructions whereby half of the deceased’s estate was to be given to Bryne Clifford James, and the other half to four friends whose names and addresses were to be provided shortly. A will was prepared and duly executed by the deceased on 7 July 2005. When the deceased attended to execute the will, Mr Lempens asked if the details of the friends from overseas were available. As they were not, Mr Lempens asked the deceased to sign the document which had been prepared, on the understanding that the deceased would provide the details of the friends from overseas on his next visit. On the same day, Mr Lempens wrote to the deceased requesting the full names and addresses of the “friends” to whom the deceased wished to leave half his estate. No response was received from the deceased before his death on 14 February 2007. On 31 May 2007 probate of the will was granted to Mr Lempens. Mr Lempens, as executor, has caused investigations to take place in an attempt to ascertain the existence of any member of the class of beneficiary designated in the will as “such of them my friends who resided with me from overseas”. On 26 April 2007, the solicitor for Mr Lempens caused to be entered in the public notices section of the Advertiser newspaper, a notice as to the death of the deceased, requesting all interested persons, debtors and creditors to contact the office of the solicitors with any information. On 2 May 2007, the solicitor spoke with John Ferme Reid, the other executor named in the will. Mr Reid was unable to provide any information about persons who might be within the subject category. On 17 February 2009, the solicitor again spoke with Mr Reid regarding information as to “friends from overseas”, but aside from naming two possible persons, Mr Reid was unable to provide further information. On 5 October 2007, the solicitor sent a letter to 32 possible beneficiaries from names and addresses gleaned from private diaries, notebooks and address books obtained from the deceased’s possessions. The letter requested each of the recipients to provide evidence of their claim should they wish to assert their position as a beneficiary, and to provide any information in relation to other people from overseas who might be potential candidates. Eight responses were received. Many of the letters sent were “returned to sender”. The recipients who replied to the correspondence provided information in relation to whether they would be able to fit the category of beneficiary as described in clause 4. The responses primarily indicated that the recipients did not consider themselves to be a person whom the deceased intended to benefit under his will. Several of the recipients provided further details of possible persons whom the deceased intended to benefit, however none of these candidates have come forward with evidence of the testator’s intention.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
The costs of all parties in these proceedings are a proper expense arising from the administration of the estate and should be met from that estate. Conclusion Having regard to the foregoing, I am satisfied that the gift of the residuary estate of the will of the deceased intended to benefit “such of them my friends who resided with me from overseas”, fails for conceptual uncertainty. I further consider that if conceptual certainty were to be established, the gift would fail for evidential uncertainty. The failure of this gift results in a partial intestacy. As a consequence, one half of the residuary estate is to be distributed according to Part 3A of the Administration and Probate Act. Having regard to the terms of clause 4, I consider that the principle of hotchpot applies. As a consequence, Bryne James is precluded from sharing in the division of the residuary estate under the partial intestacy.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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