Patience v Patience: IMO the Will of Alexander Laudehr Patience, deceased
[2019] VSC 148
•18 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE
S CI 2018 02478
IN THE MATTER of the Will and Estate of Alexander Laudehr Patience
- and –
IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of questions arising in the administration of the said estate and the said trusts
BETWEEN:
| BETH HOPE PATIENCE | Plaintiff |
| v | |
| ANDREW PATIENCE AND OTHERS (according to the Schedule attached) | Defendants |
---
JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers: written submissions filed by the plaintiff on 17 December 2018, by the first defendant on 21 December 2018 and by the second, third and fifth defendants on 23 January 2019 |
DATE OF JUDGMENT: | 18 March 2019 |
CASE MAY BE CITED AS: | Patience v Patience: IMO the Will of Alexander Laudehr Patience, deceased |
MEDIUM NEUTRAL CITATION: | [2019] VSC 148 Revised 9 April 2019 |
---
EXECUTORS AND ADMINISTRATORS – Application by executor pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Plaintiff seeks clarification of the construction of the Will – Whether the Will devised any right or interests of the property of the deceased – Whether property is settled land within the meaning of Settled Land Act 1958 (Vic) (‘Act’) – Whether there is a partial intestacy – General principles of construction of Wills – Fell v Fell (1922) 31 CLR 268, 272-6, applied – Proper construction of the Will to be informed by policy considerations behind the Act – Royal Melbourne Hospital v Equity Trustees Ltd (2007) 18 VR 469, considered and applied – Whether plaintiff is a tenant for life within the meaning of the Act – Re Anderson: Halligey v Kirkley [1920] 1 Ch 175, 182, referred to – Class of beneficiary to enjoy powers of a tenant for life not to be narrowly confined
---
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E Konstantinou | Perry Weston Lawyers |
| For the First Defendant | Mr J K Arthur | Mackinnon Jacobs Lawyers |
| The Second Defendant in person | ||
| The Third Defendant in person | ||
| For the Fourth Defendant | No appearance | |
| The Fifth Defendant in person |
HER HONOUR:
Factual background
The plaintiff is the widow of Alexander Laudehr Patience (‘deceased’). The deceased died on 16 January 2011 leaving a will dated 21 December 2010 (‘Will’). The plaintiff is the executor and Trustee in the Will (‘Trustee’). Probate of the Will was granted to the plaintiff on 14 June 2011.
Five adult children from a previous marriage survived the deceased. All five children are the defendants in this proceeding. They are:
(a) Andrew Patience;
(b) David Alexander Patience;
(c) Elizabeth Lorraine Carbery;
(d) Alison Mary Patience; and
(e) Margaret Ann Robertson.
Andrew is represented separately by his solicitors. David, Elizabeth and Margaret are self-represented. Alison has chosen not to actively participate in the proceeding and has stated to the Court that she will abide by whatever orders the Court makes.
The main asset of the estate is a residential property located in Forest Hill (‘property’). The plaintiff owns a half share interest in the property as a tenant in common in equal shares with the deceased. The deceased’s half share in the property is currently registered in the name of the plaintiff as the legal personal representative of the deceased. Each of the defendants have lodged caveats over the property to protect their remainder interests in the property.
In her submissions, the plaintiff provided the following background information:
The property is the current residence of the plaintiff and was the matrimonial property of her and the deceased. Both lived in the property until the death of the deceased. The plaintiff has continued to reside there on her own. The plaintiff and the deceased bought the property as tenants in common in equal shares. It is currently in the name of the plaintiff as to her half share and also in her name as the Trustee and Legal Personal Representative of the deceased estate as to the deceased’s half share.
And further:
The plaintiff is 80 years old and she finds that as time progresses it is more difficult for her to maintain the property. It is too big for her, and at present she is unable to continue gardening as she once did. She engages a gardener to maintain the garden. It is difficult to attend to maintenance of the property. The property would benefit from maintenance works such as repairing the back timber deck, external and internal painting, removal of a large tree on the fence line, and replacement of the section of the front fence. She has no means to arrange to pay for these maintenance works, and there is no fund in the estate for upkeep of the property. The plaintiff deposes that it is a condition of her living in it that she pays for its upkeep and maintenance. The plaintiff deposes further that she has already undertaken a number of maintenance works to the property since the deceased’s passing. This has included replacing the back and side fences, replacing the broken tiles at the entry to the house which cost approximately $3000, installing a new operating device for the garage roller door, replacing the inverter for the solar panels on the roof, repairing a comer of the house with a rotten window frame plus repainting it, and installation of window locks as required by the insurer.
In a letter to the plaintiff’s solicitors dated 15 March 2018, Mr Grant Lynch of McGrath opined that in the current market, the property would be expected to fetch a sale price of approximately $1,100,000.
Questions have arisen in the administration of the Will, and the plaintiff seeks direction from the Court pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 in relation to how certain clauses in the Will are to be construed and what is the true meaning and effect of the relevant clauses.
In her originating motion filed 28 June 2018, the plaintiff, among other things, asserted that the property was settled land, and that the Will gives the plaintiff a life interest in the deceased’s half share of the property. She says that she is a person for whom the deceased had a responsibility to make adequate provision for her proper maintenance and support. Paragraphs M and N of the original originating motion state as follows:
The Plaintiff says that clauses 2(c)(i) and 2(c)(ii) of the said Will are ambiguous and confusing, such that it is unclear what portion of funds she may apply towards her future maintenance and support. Accordingly, the Plaintiff seeks judicial advice from this Honourable Court in construing the said clauses under the will.
Subject to the proper construction of the operation of the said clauses of the will, the Plaintiff says that the distribution of the deceased’s estate by that Will is such as to not make adequate provision for her proper maintenance and support. In that event, the Plaintiff seeks leave pursuant to s 99 of the Administration and Probate Act 1958 (Vic) (as amended) (‘the Act’) to bring a claim pursuant to Part IV for her proper maintenance and support.
The originating motion also identified a number of questions concerning the construction of the Will, which were subsequently amended following consultation between the parties and directions by the Court. The judge in charge of the Trusts, Equity and Probate List determined that these questions would be dealt with by the Court ‘on the papers’.
Issues for determination
By orders made on 23 November 2018, McMillan J identified the following questions for determination:
(a) Does clause 2(a) of the Will devise any right or interest of the property of the deceased?
(b) If so, what is the right or interest devised?
(c) In light of the answer to the foregoing question what is the proper meaning of clauses 2(b) and (c) of the Will?
(d) In light of the answers to the foregoing questions, is there a partial intestacy?
The plaintiff awaits the determination of the Court regarding the above questions in order for her to form a view as to whether she should seek an extension of time to bring an application for further provision from the estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic).
The Will
Under the Will after appointing the plaintiff as the Trustee (clause 1 of the Will), clause 2 of the Will provides as follows:
(a)I GIVE AND DEVISE to my Trustee my interest as tenant-in-common in my property known as 63 Menin Road, Forest Hill (or if I do not have such interest in that property at my date of death such interest in such property as is my principal residence at my death) UPON TRUST for the use and occupation of my wife BETH HOPE PATIENCE until such time as she ceases personally to occupy the said property or she dies she paying all rates taxes and other outgoings from time to time payable in connection with my said property and keeping the same in good order and condition to the satisfaction of my Trustee and insured against such risks and for such amounts as my Trustee shall reasonably require with an insurance company approved by my Trustee and after the right to occupy of the said BETH HOPE PATIENCE comes to an end UPON TRUST for each of my children as shall be then living and if more than one in equal shares between them.
(b)AT the written request of the said BETH HOPE PATIENCE my Trustee shall sell the house (or a residence or property substituted under this clause) and buy another residence or an interest in or right to accommodation, whether freehold, leasehold, contractual licence, right of occupation, right to residential care or otherwise; to be held for the benefit of the said BETH HOPE PATIENCE on the same provisions as those expressed in this clause.
(c) IN the case of a sale under this clause:
(i)my Trustee may only use a maximum of the proceeds of sale of the house to acquire any substituted property (including any acquisition costs); and
(ii)if there is any amount remaining from the proceeds of sale of the house after acquisition of any substituted property, such amount that represents my interest in common shall be distributed to each of my children as shall be then living and if more than one in equal shares between them.
Clause 3 of the Will provides as follows:
SUBJECT TO AFORESAID I GIVE DEVISE AND BEQUEATH the balance of my real and personal estate to my Trustee UPON TRUST to sell collect and convert into money so much thereof as shall not consist of ready money AND I DECLARE my Trustee shall not be responsible for any failure to sell collect or convert any of my said estate during the course of the administration of my estate and after payment thereout of all my debts funeral and testamentary expenses including my estate’s liability for income tax in respect of the disposal of any asset of my estate and all Probate and other duties payable on the whole of my estate of by reason of my death and in respect of any notional estate deemed for duty purposes to form part of my estate all of which duties shall be paid as a debt of my estate and shall not be apportionable nor recoverable from any beneficiary or beneficiaries under this my Will nor from any person or persons who may be deemed to have benefited in respect of any notional estate and to hold the balance remaining (herein called ‘my residuary estate’) for such of them my children as shall be living at the expiration of thirty days after the date of my death and if more than one in equal shares between them.
General principles of construction in relation to wills
In Fell v Fell,[1] Isaacs J set down some established principles of judicial construction of Wills (and other deeds and instruments) which remain relevant today. They are summarised in the plaintiff’s written submissions, as follows:
[1](1922) 31 CLR 268, 272-6.
Firstly, by reason of the requirement that a Will must be in writing it follows that the necessary meaning of the Will must be discovered from that document. Extraneous evidence is necessary only to enable the Court to understand the words which the testator has used.
Secondly, the Will must be construed according to the plain meaning of the words and sentences therein contained. In order to do that, the Court must look at the Will as a whole. Where there is any inaccuracy or inconsistency in the Will, then it is for the Court to ascertain what is the meaning of the Will, taken as a whole, in order to give effect to the testator’s intentions.
Thirdly, if the Will evinces an intention on the part of the testator to devise an interest which in the words of the Will it has not expressly devised, then the Court is entitled by implication to make good that defect by using the language of the testator to carry out his or her intentions as far as is possible having regard to the terms of the Will as a whole. The Court however does not have the power to rewrite the will for the testator to order to improve upon it or even to seek to achieve a different result that the Court considers more sensible.
Fourthly, inferences can only be drawn when taken from the Will as a whole.
Fifthly, the court cannot give effect to any intention, which is not expressed within the plain meaning of the language of the Will.
Sixthly, if words can be shown to have been omitted or added incorrectly, and it can be demonstrated to the Court that without the addition or omission of a particular word the construction of the Will does not fulfil the intention of the testator, then the addition or omission of the word may be justified.
Finally, the Court has the power to omit certain words or to add certain words if on the face of the Will it can clearly be said to be necessary and so as to avoid intestacy. The so-called ‘golden rule’ of construction of Wills states that a court should adopt an interpretation which will not lead to intestacy or partial intestacy and which will assist the Court to construe the Will so as to preserve rather than destroy the gifts under it.
In Re Melbourne; Wall v Walter,[2] McMillan J stated as follows (citations omitted):
If, in the context of the will read as a whole and the surrounding circumstances, the ordinary meaning of the words in the will does not make sense, extrinsic evidence is admissible in a court of construction under the 'armchair principle'. This principle allows the court to place itself in the position of the testator at the time of executing the will and take into account all of the circumstances actually known to the testator when the will was made.
This approach was succinctly stated by Fullagar J in ANZ Executors & Trustee Co Ltd v McNab:[3]
The search for testamentary intention must be a search for intention disclosed by the words used, and in this search words must prima facie be given their ordinary meanings and, if the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must prima facie be given. Nevertheless, the intention is to be gathered from a study of the will as a whole, and in the light of any relevant and admissible evidence of surrounding circumstances.[4]
[2][2016] VSC 514.
[3](1999) 3 VR 666.
[4]Re Melbourne; Wall v Walter [2016] VSC 514 (21]-[22].
Further, the Court will lean towards preserving and effectuating gifts in a will. As stated in Halsbury's Laws of Australia:[5]
the court of construction will construe testamentary instruments in a manner which preserves rather than destroys the gifts and dispositions contained in them. This principle is an extension of the presumption that the testator intended his or her will to be effective. Where a liberal construction of a will would be effective and meaningful, and a strict literal construction would destroy a gift or disposition, the court will apply the principle so as to favour the liberal construction of the will. The principle enables a court to supply words to a will which have been omitted so that it will read in a way intended by the testator.
[5]LexisNexis, Halsbury’s Laws of Australia [395-965].
The parties filed written submissions with respect to the questions identified by her Honour. The second, third and fifth defendants’ submissions sought to put before the Court additional evidence regarding the intentions of the deceased, and the plaintiff’s knowledge of those intentions, but otherwise joined in with the submissions of the first defendant.
The parties’ submissions and my conclusions on each of the questions follow.
Question (a): Does clause 2(a) of the Will devise any right or interest of the property of the deceased?
In her amended originating motion, the plaintiff stated that the property is settled land: that is, property within the meaning of the Settled Land Act 1958 (‘Act’). However, the plaintiff, by her written submissions, has withdrawn that contention, and now argues to the contrary. The first defendant submitted that the property is settled land within the meaning of the Act. Sub‑section 8(1) of the Act provides as follows:
What constitutes a settlement
(1)Any deed, will, agreement for a settlement or other agreement, Act of Parliament, or other instrument, or any number of instruments, whether made or passed before or after, or partly before and partly after, the commencement of this Act, under or by virtue of which instrument or instruments any land, after the commencement of this Act stands for the time being—
(a) limited to or in trust for any persons by way of succession; or
(b) limited to or in trust for any person in possession—
(i) for an entailed interest;
(ii)for an estate in fee-simple or for a term of years absolute subject to an executory limitation, gift, or disposition over on failure of his issue or in any other event;
(iii) for a determinable fee;
(iv)being a minor, for an estate in fee-simple or for a term of years absolute; or
(c)limited to or in trust for any person for an estate in fee-simple or for a term of years absolute contingently on the happening of any event; or
(d)limited to or in trust for a married woman of full age in possession for an estate in fee-simple or a term of years absolute or any other interest with a restraint on anticipation; or
(e)charged, whether voluntarily or in consideration of marriage or by way of family arrangement, and whether immediately or after an interval, with the payment of any rentcharge for the life of any person, or any less period, or of any capital, annual, or periodical sums for the portions, advancement, maintenance or otherwise for the benefit of any persons, with or without any term of years for securing or raising the same—
create or is for the purposes of this Act settlement and is in this Act referred to as a settlement, or as the settlement, as the case requires:
Provided that, where land is the subject of a compound settlement, references in this Act to the settlement shall be construed as meaning such compound settlement, unless the context otherwise requires.
Section 9 of the Act provides that a trust for sale of a property is not a ‘settlement’ for the purposes of the Act. Neither party contended that s 9 of the Act applies to the property.
The plaintiff submitted that the nature of the interest devised to her by clause 2(a) of the Will is a personal right to reside in the property, not a life interest in the deceased’s half share of the property. The devise of the deceased’s interest to the trustee to hold on trust ‘for the use and occupation’ by the plaintiff until such time as the plaintiff ‘ceases personally to occupy the said property’ or until she dies, supports the plaintiff’s contention is that all that was devised was a personal right to reside in the property.[6] As such, clause 2(a) is ineffective, as it does no more than confer upon the plaintiff a right which she already has as a co‑proprietor of the property, being an indefeasible right to possession of the property. As such, clause 2(a) has no work to do, and there is a partial intestacy.
[6]Re Potter, Deceased [1970] VR 352.
The first defendant submitted that, notwithstanding the limitation in the Will to confer the right to reside upon the plaintiff until she ‘ceases to personally occupy’ the property by electing to live at the property, the plaintiff is a tenant for life within the meaning of the Act.[7] The trustee is empowered to sell the property upon the request of the plaintiff. As such, no immediate binding trust for sale is created by the Will, such that the Act is not excluded from operation by reason of s 9 of the Act.
[7]See Re Anderson; Halligey v Kirkley [1920] 1 Ch 175, 182.
In my view, the property is settled land within the meaning of the Act, and the plaintiff has the rights and powers of a tenant for life within the meaning of the Act. Notwithstanding that the plaintiff may lose the right to use and occupy the property should she cease to occupy the property prior to her death, she has, to date, exercised her option to occupy the property.[8] Further, given that the Will also provides for a gift of the deceased’s interest in the property to the defendants after the death of the plaintiff, or after she ceases to occupy the property, there is a ‘settlement’ within the meaning of s 8 of the Act. Accordingly, the property is ‘settled land’ within the meaning of the Act.
[8]Ibid.
In Royal Melbourne Hospital v Equity Trustees Ltd (‘RMH’),[9] Bell AJA undertook, among other things, a comprehensive review of the authorities and the policy behind the Act, including s 106 of the Act, which he described as containing ‘strong measures’ to prevent wills and other settlements destroying the powers given to tenants for life under the Act. His Honour also observed that the Act should be construed with ‘wise and reasonable liberality’ in order to give effect to the policy considerations underlying the Act.[10] While the Court of Appeal was not required to decide the matter, his Honour agreed with the conclusions of two single judges in relation to the same property that a devise in terms that a class of beneficiaries was provided with the right ‘to use occupy and enjoy [the property] free of charge according to such arrangements as my trustees shall decide’ meant that the relevant property was settled land within the meaning of the Act, and that the beneficiaries had the powers of a tenant for life.
[9](2007) 18 VR 469.
[10]Ibid, 518 [254].
Similarly, in Re Hoppe,[11] the Full Court of this Court held that a clause in a will which permitted his widow and daughter to reside in a property or any substitute property meant that the relevant property was settled land within the meaning of the Act. In that case, the Court did not disturb the trial judge’s finding that the widow and daughter were not tenants for life within the meaning of the Act, as it was not necessary to do so for the purposes of the relief sought by the plaintiffs in that proceeding.
[11][1961] VR 381.
In my view, there is no doubt that the property is settled land within the meaning of the Act. The question not conclusively answered by the authorities is whether the plaintiff has the powers of a tenant for life under the Act. In contrast with the findings made with respect to the entitlements of the class of beneficiaries in RMH, there are a number of authorities where the Court has found that a person with a right of personal occupancy was not a tenant for life within the meaning of s 12 of the Act.[12] The divergent authorities suggest that whether or not the beneficiary of a right to residence under a will is a tenant for life depends very much on the construction of the instrument concerned.[13] In my view, that construction should be informed by the policy considerations under the Act, such that the class of persons able to exercise the powers of a tenant for life under the Act ought not be narrowly confined.
[12]See Re Hoppe, Deceased [1961] VR 381, per Pope J; Re Potter, Deceased [1970] VR 352.
[13]RMH [233].
Section 12 of the Act provides as follows:
Who is a tenant for life.
The person of full age who is for the time being beneficially entitled under a settlement to possession of settled land for his life shall for the purposes of this Act be the tenant for life of that land and the tenant for life under that settlement.
In the current case, the plaintiff has the right to use and occupy the property for life, although that right terminates when she ceases to occupy the property. She has exercised that right by remaining in the property. While the reference to the interest terminating upon her ceasing to occupy the property suggests something short of a life estate in the property, this clause needs to be read with clause 2(b) of the Will, which confers upon the plaintiff the power to compel the Trustee to purchase a substitute property, in which she would hold the same right of residence. Accordingly, read together, clauses 2(a) and (b) do not diminish the plaintiff’s interest: rather, they provide a mechanism to facilitate the transmission of the plaintiff’s interest from one property to another. This is entirely consistent with the clear intention of the deceased to ensure that the plaintiff has secure, appropriate accommodation for the rest of her life. In that regard, the interest conferred upon her is arguably more expansive than that conferred upon the beneficiaries in RMH,[14] who were found to be tenants for life within the meaning of the Act.
[14](2007) 18 VR 469.
I do not accept the submissions advanced on behalf of the plaintiff that, because the practical effect of clause 2(a) of the Will is to devise to the plaintiff a right to reside in the property of which she is a co‑owner (thus having an indefeasible right to possession), clause 2(a) of the Will must ‘fail’. Clause 2(a) of the Will does have work to do. First, it confers upon the plaintiff a right to exclusive possession of the property, which she would not have in the absence of clause 2(a) of the Will. Secondly, and importantly, it deprives the estate of the deceased a right which, in the absence of clause 2(a) of the Will, it otherwise would have as the co‑proprietor of the property, such as the right to apply to sell the property under Part IV of the Property Law Act 1958 (Vic), as long as the plaintiff chooses to personally occupy the property.
Accordingly, clause 2(a) of the Will is valid and efficacious in accordance with its terms.
Question (b): If so, what is the right or interest devised?
Consistent with the answer to question (a), given that the plaintiff has elected to reside at the property, the right devised is an interest as a tenant for life within the meaning of the Act.
Question (c): In the light of the answer to the foregoing question what is the proper meaning of clauses 2(b) and (c) of the Will?
I agree with the submissions advanced by the plaintiff that clauses 2(b) and (c) are confusing in their terms, and appear to reflect a mistaken presumption on the part of the drafter of the Will that the interest being dealt with in the Will was an interest of the deceased in the entirety of the property. I also note that s 106 of the Act provides that, to the extent that the terms of the Will are inconsistent with the terms of the Act, and in particular, the rights of a tenant for life under the Act, the provisions of the Act prevail.
In my view, it is possible to construe the terms of the Will in a manner to give effect to the intentions of the testator expressed in the Will, without any recourse to extraneous evidence, and in a manner which does not diminish the plaintiff’s rights under the Act, save in one minor respect, to which I will return later in these reasons. This approach is consistent with the principles of construction referred to in paragraph 14 of these reasons, and, in particular, the ‘golden rule’ that the Court should avoid, where possible, adopting a construction which would lead to intestacy or a partial intestacy.
Further, I note that the general principles of construction permit, on occasion, the ‘reading-in’ of words into a will. As noted by Barwick CJ in Butlin v Butlin (omitting footnotes):[15]
The occasions when a court supplies words when it is clear that words have been omitted, whether single words or words in the form of a sentence importing an additional provision into the will, are all, in my opinion, occasions for the discovery of a necessary implication, for a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived to be by, the testator. In supplying the omitted words or the omitted gift, where it is certain that there has been an omission, it is the disclosed intention, expressed or necessarily implied in what he has said, that is the only relevant factor. The Court is not authorized to supply the gift he might reasonably have made but the gift he has indicated that he did actually intend to make: see Fell v Fell, per Isaacs J, and authorities there cited.[16]
[15](1966) 113 CLR 353.
[16]Ibid, 357.
The intentions of the testator are tolerably clear from a reading of the Will as a whole: that is, his intention that, to the extent that his assets comprised his interest in the property (but no more), they were to be utilised during the lifetime of the plaintiff to provide her with secure and appropriate accommodation, but to the extent those assets were not required for that purpose, they were to pass immediately to the remainder beneficiaries. In my view, those intentions can be given effect by replacing the words ‘house’ in clauses 2(b) and 2(c) of the Will with the words ‘my interest in the property’. I do not consider that the inclusion of these words has the effect of altering the gift made by the deceased under the Will, or supplying a gift under the Will that he did not intend to give.
The practical consequence of such a construction of the Will is that the plaintiff has the power to direct that, upon the sale of the house, the entirety of the deceased’s half share of the property could be deployed for the purposes of her obtaining alternative accommodation, leaving her free to deploy the proceeds of her share of the property in whatever manner she chooses. If, for example, the property sold for $1,000,000, but the plaintiff wished to ‘downsize’ to an apartment worth $750,000, she would obtain the rights of a tenant for life with respect to that property, save that, upon her death, her estate would only hold a one‑third share of that property. How she deals with her estate, which would include her one‑third share plus any surplus proceeds of sale not utilised by her for the purchase of the substitute property or other expenses is of course a matter for her, save that her obligation to maintain, insure, and pay outgoings upon the substitute property remains.
The construction proffered above is entirely consistent with the plain language of clause 2(b) of the Will. While this clause contains a reference to the Trustee selling ‘the house’, the clear intent of this clause is to, in effect, compel the Trustee to agree to a sale of the property, and to direct the manner in which the proceeds of the estate’s share of the proceeds are to be applied. It imposes no obligation upon the plaintiff to contribute to the cost of the acquisition of a substitute property. It does not require that the Trustee only contribute, say, a half share of the value of a substitute property.
Clause 2(c) is somewhat more problematic. However, in my view, all that is intended by clause 2(c)(i) is to confirm that, for the avoidance of doubt, the plaintiff has no right to call upon any other assets of the estate (if indeed there are any) to purchase or contribute to the purchase of a substitute property or aged care accommodation bond.
Having regard to my preferred construction of clause 2(b) of the Will, the practical consequence of the terms of clause 2(c)(ii) of the Will only arises if the value of any substitute property to be purchased is less than half of the value of the property, such that there is a surplus after the estate purchases the substitute property. While I expect that such a scenario is unlikely, I have not received any submissions from the parties as to the effect of clause 2(c)(ii) in such circumstances. However, my preliminary view is that sub‑clause may well be void pursuant to s 106 of the Act. I will seek further submissions on that issue prior to making final orders, as well as upon the question of costs.
Question (d): In light of the answers to the foregoing questions, is there a partial intestacy?
No.
SCHEDULE OF PARTIES
S CI 2018 02478
| BETH HOPE PATIENCE | Plaintiff |
| - and - | |
| ANDREW PATIENCE | First Defendant |
| DAVID ALEXANDER PATIENCE | Second Defendant |
| ELIZABETH LORRAINE CARBERY | Third Defendant |
| ALISON MAY PATIENCE | Fourth Defendant |
| MARGARET ANNE ROBERTSON | Fifth Defendant |
0
2
0