Motum v Motum - [1999] NSWSC 761

CITATION: Motum v Motum [1999] NSWSC 761

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 1648/99

HEARING DATE(S): 20/07/99

JUDGMENT DATE:
20 July 1999

PARTIES :

Ronald Archie Motum (P)
Graham Arthur Motum (D1)
Trevor Leslie Motum (D2)
Delma Wark (D3)

JUDGMENT OF: Young J

COUNSEL : M S Willmott (P)
D1 and 2 in person
B Sharpe (D3)

SOLICITORS: McNeil James (P)
Whitelaw McDonald (D3)

CATCHWORDS: Succession [174] & [234]- Will- Construction- Absolute interest- Cut down by life estate- Presumption against intestacy- Indications that absolute interest to remain. Words & Phrases- "Equally"- "Revert"

CASES CITED: Fell v Fell (1922) 31 CLR 268
Re James's Will Trusts [1962] Ch 226
Re Norman's Trusts [1879] WN (Eng) 175
Rentoul v Rentoul [1944] VLR 205

DECISION: See para 17

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG, J
TUESDAY 20 JULY 1999
1648/99 - RONALD ARCHIE MOTUM V GRAHAM ARTHUR MOTUM & ORS
JUDGMENT
1    HIS HONOUR : Herbert Arthur Motum, retired fisherman of Tea Gardens, Port Stephens, died on 19 August 1950 having first duly made and published his last will on 16 December 1947, probate of which was granted by this Court on 12 September 1952.
2    The will is a handwritten will and it is necessary to set out the dispositive provisions in full:

"I give and bequeath to my Dear Wife Mary Sophia Motum all my Private and Personal estate consisting of all monies in hand or in Banks and my house and ground Known as Myall Villa lot 32 of A. A Company Estate Fronting River Reservation Street Tea Gardens and Lot 7 Being portion of Jacob Houghs Subdivision where are erected 2 small Cottages for Rental Purposes. The shed erected their on with all nets and gear there in is the sole Property of my two Sons Gordon Leslie Motum and Ronald Archie Motum
At my Wifes Death this Property is to be left to my Daughter Kate. Elisa. Motum and my Son Arthur. Maxwell. Motum equally between them for Life if my Daughter should Marry then the (sic) Her Share to revert to Arthur Maxwell Motum My Oyster Leases No 44.11. No 45, 50 and Leases on Witts Island to my Son Eric Arthur Motum And my Launch and Boats to Arthur Maxwell Motum to rent with the Cottages."

3    The testator had eleven children. All except the plaintiff Ronald are now deceased. Kate was the second child. She was born on 8 September 1903 and died on 26 September 1998. Arthur was the youngest. He was born on 21 December 1922 and died on 19 July 1996. The widow died on 4 July 1965.
4    The only remaining property in the estate is real estate at 8 Jacob Street, Tea Gardens, the current value of which is $150,000. However, the answer to the problem posed in this case may also have some effect on past transactions.
5    The essential question is whether on the true construction of the testator's will, and the events which…

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 Motum v Motum

Details

AGLC: Motum v Motum [1999] NSWSC 761
Case: [1999] NSWSC 761
Decision Date: 20 July 1999

CaseChat Overview and Summary

The appeal in Motum v Motum involved a dispute between the testator's two daughters regarding the interpretation of his will. The deceased had bequeathed his estate to his two daughters, intending one to have an absolute interest and the other a life estate. The daughters contested the wording of the will, with the daughter who was to receive the life estate arguing that she was to have an absolute interest instead. The case was heard in the Family Court of Australia.

The court was required to determine the meaning of the will and whether the testator intended to leave one daughter an absolute interest and the other a life estate. The court considered the presumption against intestacy and the indications that the absolute interest was to remain. The court also examined the use of the words "equally" and "revert" in the will and whether they indicated the testator's intentions.

The court found that the testator intended to leave one daughter an absolute interest and the other a life estate. The court rejected the argument that the words "equally" and "revert" indicated that the absolute interest was to remain. The court held that the presumption against intestacy did not apply in this case because there were clear indications that the testator intended to leave one daughter an absolute interest and the other a life estate. The appeal was dismissed, and the trial judgment was affirmed.

The final orders of the court were that the will was to be interpreted as leaving one daughter an absolute interest and the other a life estate. The daughter who was to receive the life estate was ordered to pay the costs of the appeal.

Orders