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Morgan v Moore

Morgan v Moore

Case [2000] VSC 94 23 March 2000

Statutory Construction

Adverse Possession

Equitable Estoppel

Succession Law

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SUPREME COURT OF VICTORIA

Not Restricted

COMMERCIAL & EQUITY DIVISION

No. 5905 of 1999

KEVIN JOHN MORGAN (who sues as Executor of the Estate of ELSIE JEAN BOULTON (deceased)	Plaintiff
v
ANDREW PERCY MOORE (by his Litigation Guardian IAN MICHAEL CARTER) and SHERRY MAY STAFFORD	Defendants

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2000
DATE OF JUDGMENT:	23 March 2000
CASE MAY BE CITED AS:	Morgan v Moore & Anor
MEDIUM NEUTRAL CITATION:	[2000] VSC 94

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Wills – construction – use of extrinsic evidence – meaning of expression "my grandchildren" – Wills Act 1958, s.22A – Wills Act 1997, s.36 - testator's "armchair principle".

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.B. Phillips	McDonough & Co
For the First Defendant	Mr S. Newton	McIntyre & Carter
For the Second Defendant	Mr P. Barton	P.J. Cannon & Coburn

HER HONOUR:

The plaintiff, as executor, seeks clarification of the expression "my grandchildren" in a will.

Elsie Jean Boulton ("the testator") died on 21 April 1998.

Before her death the testator executed a will on 30 July 1997 ("the previous will") prepared by her solicitor, Paul Anthony McDonough. In that will the testator after the payment of a bequest left her residuary estate to her trustee upon trust to be divided into eight equal parts to be distributed as follows:

(1)Six equal parts to the Royal Children's Hospital Research Foundation ("the hospital").
(2)One part to the daughter of the deceased, Colleen Maria Moore.
(3)One part to the daughter of the deceased, Veronica Stoner Bowman.

The further will provided that if either of the daughters of the testator pre‑deceased her and was survived by children who attained the age of 21 years such children would take and if more than one in equal shares the share that his, her or their parent would have taken.

At the time that the solicitor, Mr McDonough took instructions from the testator for the preparation of the previous will he raised specifically with her the extent and adequacy of the proposed provision for the named daughters of the testator, Colleen Moore and Veronica Bowman compared with the provision made for the hospital. Notwithstanding the discussion with Mr McDonough the testator proceeded to make the previous will in the form described. A few days after executing the previous will the testator returned to the offices of Mr McDonough on 4 August 1997 and gave him instructions to draw a new will. The testator informed Mr McDonough that her estate was worth about $370,000 and that she wanted to leave one‑eighth of her estate to her children, Colleen Moore and Veronica Bowman and the balance between her five grandchildren being the children of the daughters Colleen and Veronica. As a result of the further instructions on 4 August 1997 Mr McDonough prepared a further will.

On 5 August 1997 the testator executed a further will which was her last will ("the will"). In the will the testator left a bequest and…

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 Morgan v Moore

Details

AGLC: Morgan v Moore [2000] VSC 94
Case: [2000] VSC 94
Decision Date: 23 March 2000

CaseChat Overview and Summary

The case before the court involved a dispute over the interpretation of a will. The deceased had left a will which was to be interpreted by the court. The primary issue was the meaning of the expression "my grandchildren" within the context of the will. The dispute centred around whether the deceased's will was to be interpreted according to the principles of the Wills Act 1958 or the Wills Act 1997, as the latter had been enacted after the former. The court was required to determine whether extrinsic evidence could be used to ascertain the testator's intentions and whether the "armchair principle" should be applied in the interpretation of the will.

The court examined the relevant provisions of the Wills Act 1958 and the Wills Act 1997. It noted that the "armchair principle" traditionally allowed courts to consider extrinsic evidence to determine the testator's intention. The court further considered the applicability of the Wills Act 1997's provisions, which seemed to restrict the use of extrinsic evidence. Ultimately, the court found that the expression "my grandchildren" was ambiguous and that extrinsic evidence could be used to clarify the testator's intention. The court concluded that the "armchair principle" still applied, and thus, evidence could be considered to determine the meaning of the disputed term.

The court held that the Wills Act 1997 did not completely exclude the use of extrinsic evidence and that the "armchair principle" remained valid. The court found that the testator's intention was to include all of his grandchildren, regardless of whether they were born during his lifetime or posthumously. The court granted the application to construe the will accordingly. The court ordered that the will should be interpreted to include all grandchildren of the deceased, regardless of their birth status, and directed the executors to distribute the estate in accordance with this interpretation.

Orders