Lines v Lines & Ors No. Scciv-01-964 - [2003] SASC 173

LINES v LINES & PERMANENT TRUSTEE COMPANY LTD
[2003] SASC 173
Civil

BESANKO J: This is a summons for the determination without administration of certain questions relating to the will of Mrs Peggy Lines (“the testatrix”) who died on 19 August 1994.
The Facts
The testatrix was married to Mr Raydon Ayers Lines. In 1994 the testatrix owned the land and buildings at 163 Main North Road, Nailsworth in the State of South Australia (“the Nailsworth property”). There is a showroom, office, warehouse complex and facilities for carparking on the Nailsworth property.
The testatrix made a will on 1 July 1994. By clause 2 of her will the testatrix appointed Mr Lines and her daughter, Ms Virginia Lines (a daughter by a previous marriage), to be the executors and trustees of her will. By clause 3, she disposed of certain items of personal use and adornment. By clause 4, she purported to dispose of the Nailsworth property. Clause 4 is of central importance to the issues in this action. It provides as follows:
“4. I GIVE AND DEVISE my real property situate at 163 Main North Road Nailsworth and being the whole of the land comprised in Certificates of Title Register Book Volume 3066 Folio 197 and Volume 4167 Folios 891, 892 and 893 and being allotments 473, 476 and portion of allotment 474 and 475 of part Section 346 in the Hundred of Yatala County of Adelaide to my Trustees UPON TRUST to sell the same with full power to postpone the sale for such period or periods as my Trustees in the absolute discretion of my Trustees shall think fit and to hold the same or the proceeds thereof as the case may be (hereinafter called “my Nailsworth property investment”) upon the following trusts namely:
(a) During the joint lives of my said husband and my said daughter and during the life of the survivor of them to pay or apply the income of my Nailsworth property investment to or for the benefit of or set aside and appropriate the same as and to a separate fund for the benefit of the following namely:- my said husband, my said daughter and such charitable purposes as my Trustees shall in the absolute discretion of my Trustees (without being liable to account for the exercise of that discretion) think fit.
(b) From and after the death of the survivor of my said husband and my said daughter to stand possessed of the capital and income of my Nailsworth property investment or the balance then remaining upon trust for PERMANENT TRUSTEE COMPANY LTD ACN 000 000 993 of 23/254 O’Connell Street Sydney in the State of New South Wales to be held by it as trustee for the Raydon Ayers Lines Charitable Trust and applied by it for the purposes set out in the instrument establishing the same namely the last Will and testament of my said husband whenever executed.”
By clause 5, the testatrix disposed of her residuary estate.…

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.

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Details

Case: [2003] SASC 173
Decision Date: 5 June 2003

CaseChat Overview and Summary

The case of Lines v Lines & Ors, No. Scciv-01-964, involves a dispute over the interpretation and validity of a clause in the will of Mrs Peggy Lines, who passed away on August 19, 1994. Mrs Lines, who owned the Nailsworth property, left a will that included a clause concerning the disposition of this property. Her husband, Mr Raydon Ayers Lines, and her daughter, Ms Virginia Lines, were appointed as executors and trustees of her will. The crux of the case is Clause 4 of the will, which aims to dispose of the Nailsworth property to the trustees, instructing them to sell it and apply the income to certain beneficiaries and charitable purposes during the joint lives of Mr Lines and Ms Lines, and to the survivor of them. After the death of the survivor, the capital and income are to be held by the Permanent Trustee Company for the Raydon Ayers Lines Charitable Trust. The primary issue the court had to decide was whether Clause 4 of the will was valid and, if not, what the consequences would be for the disposition of the Nailsworth property.

The court considered whether Clause 4 was validly expressed and whether it constituted a valid disposition of the property. The court found that Clause 4 did not effectively dispose of the property, resulting in the clause failing. Consequently, the Nailsworth property falls into the residuary estate of the testatrix. The reasoning was grounded in the legal principle that a gift must be certain and effectively expressed to be valid. Since Clause 4 did not achieve this, it was deemed ineffective. The court's conclusion was that Clause 4 was not a valid disposition, and thus, the property would not be transferred as intended by the will.

In light of these findings, the court answered the questions posed in the summons as follows: (a) Yes, Clause 4 is invalid; (b) because of the invalidity of Clause 4, it was unnecessary to address other parts of the question; (c) No, Clause 4 does not constitute a valid disposition; (a) No, the property does not vest in the Raydon Ayers Lines Charitable Trust; and (b) Yes, the property falls into the testatrix’s residuary estate. The court indicated it would hear from the parties if any further orders were sought.

Orders

Orders of the court

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Background

Background to the litigation

BESANKO J: This is a summons for the determination without administration of certain questions relating to the will of Mrs Peggy Lines (“the testatrix”) who died on 19 August 1994.The Facts The testatrix was married to Mr Raydon Ayers Lines. In 1994 the testatrix owned the land and buildings at 163 Main North Road, Nailsworth in the State of South Australia (“the Nailsworth property”). There is a showroom, office, warehouse complex and facilities for carparking on the Nailsworth property. The testatrix made a will on 1 July 1994. By clause 2 of her will the testatrix appointed Mr Lines and her daughter, Ms Virginia Lines (a daughter by a previous marriage), to be the executors and trustees of her will. By clause 3, she disposed of certain items of personal use and adornment. By clause 4, she purported to dispose of the Nailsworth property. Clause 4 is of central importance to the issues in this action. It provides as follows:“4. I GIVE AND DEVISE my real property situate at 163 Main North Road Nailsworth and being the whole of the land comprised in Certificates of Title Register Book Volume 3066 Folio 197 and Volume 4167 Folios 891, 892 and 893 and being allotments 473, 476 and portion of allotment 474 and 475 of part Section 346 in the Hundred of Yatala County of Adelaide to my Trustees UPON TRUST to sell the same with full power to postpone the sale for such period or periods as my Trustees in the absolute discretion of my Trustees shall think fit and to hold the same or the proceeds thereof as the case may be (hereinafter called “my Nailsworth property investment”) upon the following trusts namely:(a) During the joint lives of my said husband and my said daughter and during the life of the survivor of them to pay or apply the income of my Nailsworth property investment to or for the benefit of or set aside and appropriate the same as and to a separate fund for the benefit of the following namely:- my said husband, my said daughter and such charitable purposes as my Trustees shall in the absolute discretion of my Trustees (without being liable to account for the exercise of that discretion) think fit.(b) From and after the death of the survivor of my said husband and my said daughter to stand possessed of the capital and income of my Nailsworth property investment or the balance then remaining upon trust for PERMANENT TRUSTEE COMPANY LTD ACN 000 000 993 of 23/254 O’Connell Street Sydney in the State of New South Wales to be held by it as trustee for the Raydon Ayers Lines Charitable Trust and applied by it for the purposes set out in the instrument establishing the same namely the last Will and testament of my said husband whenever executed.” By clause 5, the testatrix disposed of her residuary estate. In the events which have occurred (ie Mr Lines survived the testatrix for 30 days) it is sufficient to note that Mr Lines is entitled to the residuary estate. It is unnecessary for me to refer to the other clauses in the will. Mr Lines also made a will on 1 July 1994. He no longer has a copy of that will. However, in an affidavit tendered on the hearing of the action, he said that there were clauses in that will which purported to establish the Raydon Ayers Lines Charitable Trust. The most important clause identified by Mr Lines is as follows:“1.MY TRUSTEES shall if and when each and every aforesaid trust shall determine by reason of no person attaining a vested interest therein hold the assets comprised in the same UPON TRUST to pay transfer and vest the same to and in PERMANENT TRUSTEE COMPANY LTD ACN 000 000 993 of 23/25 O’Connell Street Sydney in the State of New South Wales (“the said Company”) to be held by it as a perpetual charitable trust to be called the RAYDON AYERS LINES CHARITABLE TRUST UPON TRUST to pay or apply the income derived therefrom or so much thereof as the said company in its absolute discretion from time to time determines to or for the benefit of such authorised charities as are hereinafter defined as authorised charities and in such shares as the said Company shall determine namely:-Authorised Charities means any purpose, hospital, institution, society, organisation, body or fund as the case may be which:a) is a charitable purpose, hospital, institution, society, organisation, body or fund as the case may be in the technical legal sense of the word “charitable”;b) is a purpose, hospital, institution, society, organisation, body or fund gifts to which are deductible for income tax purposes under the provisions of the Commonwealth Income Tax Assessment Acts, as amended;c) is within the Commonwealth of Australia.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The gift fails and the Nailsworth property falls into the testatrix’s residuary estate (Sherrin and Ors, Williams on Wills (7th ed, 1995) at p 503).Conclusions I would answer the questions as follows:1(a) Yes1(b) In view of the answer to 1(a), unnecessary to answer.1(c) No2(a) No2(b) Yes I will hear the parties as to whether they seek any further orders.

Ratio Decidendi

Legal Principle Established

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