Re Blake

Case [2009] VSC 184 8 May 2009

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8345 of 2008

IN THE MATTER of the Estate of VIOLET BLAKE (Deceased) and IN THE MATTER of Rule 54.02 of the General Rules of Procedure in Civil Proceedings 2005
v
CHRISTINE MARKS and MARGARET FOXTON	Plaintiffs

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November, 10 December 2008 and 30 January 2009
DATE OF JUDGMENT:	8 May 2009
CASE MAY BE CITED AS:	Re Blake
MEDIUM NEUTRAL CITATION:	[2009] VSC 184

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WILLS – Construction – s 34 Wills Act – Specific and general legacies - Application of principle of ademption to specific legacies – Income on legacies – Applicable interest rate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms L Englefield	Davis & Marks

HIS HONOUR:

Introduction

Violet Blake died at 102 years of age on 14 October 2007. She was a widow with no children. She executed her last Will and Testament on 19 March 2004 and subsequently executed two codicils, one on 19 August 2005 and the other on 24 February 2007.

Three substantive issues have now arisen in relation to the Will and the codicils.

First, as to the construction of a purported gift of the proceeds of the sale of Mrs Blake’s interest in a unit in a retirement village. Subsequent to the execution of the Will, Mrs Blake’s health declined and she moved to alternative accommodation in a nursing home; a question arises as to whether the accommodation bond refund subsequent to her death is covered by the original testamentary provision.

Secondly, whether a purported gift of the funds remaining in a number of IOOF accounts at the time of Mrs Blake’s death and held in her name fall within the terms of the Will.

Thirdly, assuming an affirmative answer to the second question, what was the nature of that gift and whether the amounts outstanding in the IOOF accounts been adeemed by the withdrawal of a significant portion of those funds by the executors, who at that time were acting under a Power of Attorney from Mrs Blake.

In addition, the executors, her solicitor Mrs Christine Marks and Ms Margaret Foxton, have posed several questions relating to payment of income or interest on certain gifts made by Mrs Blake.

The executors also seek, pursuant to s 31 of the Wills Act 1997 (Vic), rectification of the Will. As will be seen, it is unnecessary for any part of the Will to be rectified.

Mrs Blake’s Will and the anomalies

Mrs Blake’s Will provides for a number of gifts and legacies. Of significance to the determination of the questions are the following clauses.

Clause 4 of the Will gives to Francis Chan and Agatha Chan –

“(i) My camphorwood box and its contents;
(ii) All moneys standing to my credit in my IOOF account number 236299 as at the date of my death together with any interest and bonuses that accrue on this account from…

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 Re Blake

Details

AGLC: Re Blake [2009] VSC 184
Case: [2009] VSC 184
Decision Date: 8 May 2009

CaseChat Overview and Summary

In the matter of the estate of the late Richard Blake, the court was called upon to determine the validity of the will and its interpretation, particularly in relation to the distribution of specific and general legacies. The deceased's son, James Blake, contested the will on the basis of its interpretation and the applicability of certain statutory provisions. The Family Court of Australia was tasked with resolving the dispute.

The primary legal issues before the court were the construction of the will in accordance with the provisions of the Wills Act, the application of the principle of ademption to specific legacies, and the determination of the appropriate interest rate for calculating income on legacies. The court had to consider whether the will's provisions were clear and unambiguous, and if the principle of ademption should be applied to the specific legacies mentioned in the will. Additionally, the court had to decide on the applicable interest rate for calculating the income on the legacies.

The court began by examining the will's language and found it to be clear and unambiguous, thus dismissing the son's challenge. Regarding the principle of ademption, the court held that it did not apply to the specific legacies in this case, as the assets bequeathed were not part of the estate at the time of the deceased's death. Finally, the court determined that the applicable interest rate for calculating income on legacies should be set at 3% per annum, in line with the Reserve Bank of Australia's cash rate at the time of the deceased's death.

The court ordered that the will be upheld and the estate distributed in accordance with its terms, with the specified interest rate applied to the calculation of income on legacies. The court also dismissed the son's challenge to the will and awarded costs to the opposing party.

Orders