Re Laird
[2024] VSC 66
•28 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2023 04056
| LACHLAN JAMES VALLANCE (in his capacity as administrator with the Will of the deceased annexed) | Plaintiff |
| v | |
| NEALE DOUGLAS LAIRD & ORS | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2024 |
DATE OF JUDGMENT: | 28 February 2024 |
CASE MAY BE CITED AS: | Re Laird |
MEDIUM NEUTRAL CITATION: | [2024] VSC 66 |
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WILLS – Application for judicial advice on construction of will – Where deceased provided for alternate clauses in will depending on whether property as defined was owned by her at death – Where property was a farm part of which had sold and to which a portion had been added by adverse possession after the will was executed and prior to death – General or specific gift distinction – Impact of specific reference to the certificate of title – Where concluded that change to boundaries and title details did not mean deceased no longer owned the property as defined as at the time of death - Open to family members to make testator family maintenance claim per pt IV Administration and Probate Act 1958 (Vic) – Laird v Laird [2021] VSC 352 – Laird v Vallance (as Administrator for the Estate of Ellen Douglas Laird, Deceased) [2023] VSCA 138 – ord 54 Supreme Court (General Civil Procedure) Rules 2015 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Aghion KC and Mr P Reynolds | Hicks Oakley Chessell Williams Pty Ltd |
| For the First Defendant | Litigant in person | N/A |
| For the Second Defendant | No appearance | N/A |
| For the Third, Fourth, Sixth and Seventh Defendant | Mr R Wells | Moores |
| For the Fifth Defendant | Litigant in person | N/A |
TABLE OF CONTENTS
A. Introduction................................................................................................................................... 1
B. The terms of the will.................................................................................................................... 2
C. Events between the will and the death of the deceased....................................................... 3
D. Did the deceased, at the time of her death, still own the ‘property’ described in the will? 4
E. Testator’s Family Maintenance................................................................................................ 11
F. The Previous Court of Appeal decision................................................................................. 11
G. Disposition.................................................................................................................................. 12
HIS HONOUR:
A. Introduction
Ellen Laird owned and lived on a farming property known as Harkaway Farm south-east of Melbourne. In her will made on 19 July 2006, she provided that if she still owned that property at the time of her death then it would go to two of her children and her residual estate would go to her other five children, but if she no longer owned that property at the time of her death then her entire estate would go equally to all seven children. Her children are all adults. It will be necessary to consider the precise terms of the will in due course. In 2016, Mrs Laird subdivided the property and sold part of it, and also became the registered proprietor of another smaller piece of land that she had always mistakenly believed was on her property that she had been adversely possessing. On 25 December 2020, Mrs Laird died. I will hereafter refer to her as the deceased or Mrs Laird. The question has arisen as to whether at the time of her death, and for the purposes of her will, the deceased still owned ‘the property’ described in the will. On 16 September 2021, letters of administration, with the will annexed, of the deceased’s estate was granted to the plaintiff. In this proceeding, the plaintiff seeks judicial advice on the proper construction of the relevant clauses of the will.[1]
[1]The application for judicial advice is brought pursuant to ord 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The plaintiff submitted, based on legal opinion obtained by him, that the question as to whether at the time of deceased’s death, and for the purposes of her will, she in fact owned the property, should be answered in the affirmative. Neale and Stuart Laird, the first and second defendants, are the two children who stand to inherit the property if the answer to the question is in the affirmative. Mr Neale Laird, who appeared for himself, also submitted that the question should be answered in the affirmative. Mr Stuart Laird did not appear. Mr David Laird, Mr Eric Laird, Mr Clyde Laird, Ms Susan Laird and Mr Euan Laird, the third to seventh defendants, are the deceased’s children who stand to inherit a share of the property if the answer to the question is in the negative. Mr Clyde Laird observed the hearing but did not make submissions. The others, who were jointly represented, contended that, on a proper construction of the will, the deceased did not still own the property at the time of her death. I will hereafter, for convenience and without meaning any disrespect, refer to the children by their first names.
I should add that at the time the will was made, the deceased’s husband was still alive. He had made a will in similar form in 2006. Both wills left the entire estate to the testator’s spouse if that spouse were to survive them. At the time that those wills were made, the deceased and the deceased’s husband were registered as tenants in common in equal shares. After the deceased’s husband’s death in 2012, the deceased became the sole registered proprietor. As I understand it, the clauses under consideration in this proceeding only took effect if the deceased were to survive her husband. Accordingly, neither party sought to make anything of the fact that, as at the time of the will, the deceased and her husband were tenants in common.
B. The terms of the will
The relevant clause of the will is in the following terms:
3.PROVIDED THAT I own my property known as Harkaway Farm Rowallan Avenue, Harkaway in the State of Victoria being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541 (“the property”) at the time of my death then I DIRECT that clause four of this my Will shall apply. IN THE EVENT that I no longer own my property at the date of my death then I DIRECT that clause five of this my Will shall apply in the alternative.[2]
[2]The [the] in square brackets in the second line is not included in the will, but it is apparent that that was a simple typographical error and the argument proceeded on the basis that the will should be read as if it were included. See, also, Fell v Fell (1922) 31 CLR 268, 274 (Isaacs J).
Clause 4 gave the property together with ‘all of the contents, furniture, fittings in the home erected on the property, all the plant, equipment, machinery and implements stored in or about the property’ to Stuart and Neale as tenants in common in equal shares, and ‘the residue of [the deceased’s] real and personal estate’ to the other children. Clause 5 gave all of the deceased’s ‘real and personal estate’ to her seven children as tenants in common in equal shares.
The evidence established that the farming property formed very much the greater part of the deceased’s wealth both as at the time of her will and at the time of her death. Accordingly, leaving the farm to two of her children favoured them over her other five children.[3] This was addressed in the will itself, which stated:
7.I have made greater provision for my sons, STUART GRAEME LAIRD and NEALE DOUGLAS LAIRD because of the contributions made by my sons to the property during my lifetime.
C. Events between the will and the death of the deceased.
[3]If the farming property formed only a small part of the deceased’ wealth, the will would have disfavoured Stuart and Neale because under cl 4 they did not inherit any of the residual estate.
The property described in Certificate of Title Volume 8059 Folio 541 was approximately 30 hectares and included two dwellings, some farm sheds and cattle yards, three dams[4] and areas of vacant land that could be used for farming purposes. In 2016, a plan of subdivision was registered that divided the land into two lots: lot 3 and lot S2.[5] Lot 3 was just over 8 hectares and was vacant land in the sense that it had no dwelling or buildings on it. Lot S2 was just over 22 hectares and included on it the two dwellings, the three dams and the farm sheds and cattle yards. As part of the subdivision, the parent title Volume 8059 Folio 541 was cancelled and certificates of title Volume 11652 Folio 719 (comprising lot 3) and Volume 11876 Folio 860 (comprising lot S2) were created. Lot 3 was then sold for $2,425,000.
[4]A marked up aerial photograph from 2013 indicated the presence of three dams, but only two of them appeared to have water in them.
[5]The subdivision was envisaged as proceeding in two stages. The second stage would involve lot S2 being further subdivided into two lots, with a dwelling on each.
Due to a quirk in the surveying that took place in the 1880s, a narrow strip of land alongside Rowallan Road was not brought under the Torrens System and was not included in Certificate of Title Volume 8059 Folio 541 (being the title details referred to in the will). That strip of land was 2,390 square metres and at all relevant times had been occupied by the deceased and treated by her as forming part of her farm. Also in 2016, the deceased arranged, with the assistance of Mr Neale Laird, to become the registered proprietor of that strip of land. That strip of land was given Certificate of Title Volume 11876 Folio 860. It has become known as the ‘boundary land’, and I will refer to it as such.
So, to summarise:
(a) As at the time of making her will, the deceased owned and lived on approximately 30 hectares of farming property with two dwellings and farming infrastructure on a single certificate of title and also occupied the boundary land that, unbeknown to her, was not on her certificate of title. She and others referred to that farming property as Harkaway Farm and its address was Harkaway Farm, Rowallan Avenue, Harkaway;
(b) As at the time of her death, the deceased still owned 22 of the 30 hectares of the previous farming property including the two dwellings, the three dams, the farm sheds and cattle yards, still lived in the same house, now formally owned the boundary land, but no longer owned the other 8 hectares of farm land. She and others still referred to the property as ‘Harkaway Farm’ and its address was still Harkaway Farm, Rowallan Avenue, Harkaway; and
(c) As at the time of her death, the certificate of title referred to in the will had been cancelled and the land the deceased owned was described in new certificates of title.
D. Did the deceased, at the time of her death, still own the ‘property’ described in the will?
The question of construction is whether the words in the will:
… my property known as Harkaway Farm Rowallan Avenue, Harkaway in the State of Victoria being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541 …
should be interpreted as applying to that which the deceased owned at the time of her death.
The deceased’s will is to be construed so as to give effect to her intention. That intention is to be ascertained from the language of the will read in the light of the circumstances in which the will was made.[6] Although in this sense and for the purpose of ascertaining intention the Court sits ‘in the testator’s armchair’,[7] the intention must emerge in that manner and it is not the role of the Court ‘to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said’.[8] Only if the will is uncertain or ambiguous on its face may evidence may be led of the deceased’s actual intention.[9]
[6]Perrin v Morgan [1943] AC 399, 420 (Lord Romer); Fell v Fell (1922) 31 CLR 268, 273 (Isaacs J).
[7]Ibid
[8]Ibid.
[9]See Wills Act 1997 (Vic) s 36.
The deceased and her husband became registered proprietors of the farming property on Rowallan Avenue in 1973 and ‘Harkaway Farm’, as it was called, thereafter, their home. They also owned other land, not contiguous with Harkaway Farm, on which they conducted their farming business. By 2006, at the time the will was made, David, Eric, Clyde, Susan and Euan had left Harkaway Farm and were living elsewhere. Stuart was not living at Harkaway Farm but was carrying on a business on the farm property, and Neale continued to live at Harkaway Farm with his aging parents. Also by 2006, Mrs Laird and her husband had retired from active farming and had sold all or most of their other land. They funded their lifestyle in retirement largely from the sale of those properties.
There is a distinction between a ‘specific gift’ and a ‘general gift’. Much of the argument presented concerned this distinction. If a testator leaves a specific gift in their will, but disposes of the subject of the gift before death, then the bequest has no effect. This is because the subject of the gift could not form part of the estate. The gift is ‘adeemed’. If a testator leaves a general gift, then that bequest may take effect even if the precise subject of the gift at the time of death is different from the precise subject of the gift at the time of the will. An example makes the point more clearly than any description. If a testator leaves ‘my car’ to a person, then that person would ordinarily inherit whatever car the testator happens to own at the time of death. The bequest of the car would be a general gift. On the other hand, if a testator leaves ‘my 1978 Ford Mustang’ to a person, but then sells that car and starts to drive instead a Mazda, that person may not inherit the Mazda. In those circumstances, it might be concluded that the bequest of the 1978 Ford Mustang was a gift of a specific item of property that was no longer in the ownership of the deceased and was not a bequest of whatever car the deceased happened to own at the time of death. The question as to whether a gift is a general or specific gift is a matter of construction and so is determined having regard to the words of the will and the circumstances as they existed at the time that the will was written.
Associated with these concepts is the rule that a will, unless the contrary intention appears, takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator.[10] That permits a general gift to operate to dispose of a specific item that the deceased did not in fact own as at the time of the making of the will.[11]
[10]Wills Act 1997 (Vic) s 34.
[11]Prior to legislative intervention, a ‘fee simple acquired after the date of a will could not be carried by a devise contained in the will’: McBride v Hudson (1962) 107 CLR 604, 614 (Dixon J).
Although these concepts are important and fundamental, they are really reasoning processes used to discern or to elucidate the nature of a bequest and the ultimate task remains to ascertain the true meaning of the will rather than to allocate a particular bequest into one category or the other. Further, the concepts are of less utility where the subject of the gift is not replaced by a different but related item or property but is instead altered. Take the example of a bequest of, say, ‘my 100 shares in BHP’. That may be seen as a specific gift, in that if the testator later sells those BHP shares, the gift may be adeemed and it is difficult to see why the potential beneficiary should receive instead some other shares that the testator might incidentally own. But what is to happen if, after the will but prior to death, the testator sells two of those shares and retains 98 of them? It could hardly be argued, in my view, that in ordinary circumstances this would invalidate the bequest on the grounds that the gift was a specific gift of a bundle of 100 shares which bundle was no longer owned. The intended gift could be characterised as a gift of 100 shares or so many of them as have not already been disposed of. I return to this example in para 22 below. Particularly in such circumstances, a statement that the gift is ‘general’ rather than ‘specific’ is really a way of expressing an anterior conclusion that the gift was intended to take effect notwithstanding the changes that have occurred after the will but before the death, rather than step in the process of reasoning to that conclusion.[12]
[12]See also McBride v Hudson (1962) 107 CLR 604, 631-632 (Windeyer J).
Also, it must be recalled that because of the way the will is structured the question in this case is not whether a particular bequest has been adeemed. That would be the question if the deceased had simply left the property, defined in the same manner, to Stuart and Neale. The deceased has instead created two possible bequests depending on whether she ‘owns’ the property referred to in the will at the time of death.
For the above reasons, this case turns not so much on whether the gift of the property is a specific or a general gift but rather turns on whether, on a proper reading of the will in context, the deceased, at the time of her death, still owned:
my property known as Harkaway Farm Rowallan Avenue, Harkaway in the State of Victoria being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541
The deceased used two concepts to define the ‘property’. The first was the general description of the property known as Harkaway Farm Rowallan Avenue in Harkaway. The second was the certificate of title. If the certificate of title were to be the defining concept, then the first description was, strictly, otiose. If the general description were to be the defining concept, then the reference to the certificate of title was, equally, strictly unnecessary. A constructional choice has to be made.
Had the deceased simply used the phrase ‘my property known as Harkaway Farm Rowallan Avenue, Harkaway in the State of Victoria’ and not used the additional words ‘being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541’, there could be little doubt that the land would pass to Neale and Stuart. The only proper conclusion would be that she still owned, at the date of her death, her property known as Harkaway Farm Rowallan Avenue, Harkaway in the State of Victoria, notwithstanding that the farm did not have the same landholdings that it had previously had. In ordinary parlance, a person’s farm does not cease to be that farm because some land is sold or some additional land is bought. In Castle v Fox,[13] a testator made a gift of his ‘mansion called Cleeve Court’. After the will had been executed but prior to the testator’s death, the testator acquired additional properties that he treated as ‘additions to Cleeve Court’. Sir R Malins, VC, said:
Therefore, it appears to me that, whether it be a particular description, or whether it be a general description, if a testator, as in the present case, gives property by a particular name, the question is, not what was known by that name when he made his will, but what was known by that name and treated by him as coming under that description at any time during his life.[14]
[13](1871) LR 11 Eq 542.
[14]Ibid 550.
As counsel for the plaintiff put it, the question then becomes whether the words ‘being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541’ define or limit the concept of ‘my property’, or whether they act ‘parenthetically’ better to identify the farm referred to. Put another way, the question reduces to whether, by including the additional words ‘being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541’, the deceased intended to narrow the definition of ‘my property’ so that it indivisibly meant all the land forming the farm that she owned as at the time of the making of her will, with the result that the disposition of any part of that land by her would mean that what she thereafter owned was no longer ‘my property’ within the terms of the will and so would no longer go to Neale and Stuart but would instead be divided among all her children. Similarly, the addition of the Boundary land might mean that the deceased no longer owned the same property, or, perhaps, that the Boundary land was not included in the property that was to go only to Stuart and Neale.
In my view, the addition of the words ‘being [the] whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541’ was not intended to limit the ‘property’ in a manner that meant any change to the boundaries or title details of the farm meant that what remained was no longer to be gifted to Neale and Stuart. I consider that, on a proper construction of the will, those words did not act as a confining limitation on the deceased’s ‘property known as Harkaway Farm Rowallan Avenue, Harkaway’ but instead operated only as a means of better identifying the farm to which reference was being made. I accept the submission of the plaintiff that those words were, in reality, ‘parenthetical’. The property did not cease to be the ‘property’ as defined because it ceased to encompass all of the land described on that certificate of title, so long as it remained, in substance, the deceased’s property known as Harkaway Farm Rowallan Avenue, Harkaway. The words, in context, do not evince an intention that any change, however small, to the boundaries of the farm would mean that the deceased no longer owned ‘the property’ with which the will was concerned. Having decided to leave Harkaway Farm to two of her children, because, as clause 7 of the will set out in para 6 above establishes, the deceased believed that they had a greater claim to the farm, the deceased did not intend that any alteration to the boundaries of that farm would mean the farm would no longer go to them.
To return to one of the questions raised in para 15 above, in my view the situation is similar to a situation where a testator refers to a bundle of shares they own (including by number) and states that if they still own that bundle of shares at the time of death then they are to go to a particular person. It seems clear that if there is then some form of restructuring engaged in by the company that has the result of substituting a new bundle of share for the old, the new bundle of shares will go to the identified person.[15] Equally, however, one would ordinarily expect that if the testator prior to death had sold some but not all of those shares, then the remaining shares would still go that person. It would be surprising if some other result were intended. The fact that the bundle of shares was described by, say, a reference to the total number held at the time of the making of the will or the particular identifying numbers on the share certificates would not ordinarily mean that the later sale of some of those shares would cause the entire gift to fail. There would have to be, in my view, some clear indication, beyond the method used to describe the extent of the asset held at the time of the making of the will, before an intention were found that the sale of any part of the asset would mean that the condition that the testator still own the asset at the time of death was not met.
[15]‘The subject-matter of the bequest remains in substance, though changed in name and form’: McBride v Hudson (1962) 107 CLR 604, 613 (Dixon J), quoting from In re Clifford; Mallam v McFie [1912] 1 Ch 29, 35 (Swinfen Eady J).
Similarly, the formal incorporation into the farm of the Boundary land by the formalisation of the deceased’s possession of that land does not mean that the deceased at the time of death no longer owned her farm. Equally, however, it follows that the Boundary land forms part of the farm that the deceased owned at the time of the death and so it, too, should pass under clause 4 of the will.
I acknowledge that the siblings have been in dispute as to the extent to which Neale and Stuart contributed to the management or care of the property and of their mother, and the extent to which they benefited from doing so. These matters have been the subject of considerable litigation (some of which is referred to below). I am not able, now, to resolve those issues. But clause 7 of the will, set out in para 6 above, demonstrates that, at the time that she executed her will, the deceased took the view that Stuart and Neale were entitled to the farming property, at the expense of her other children, because of what she saw as the contributions made by Stuart and Neale to the property. Her statement in clause 7 that leaving them the farm would amount to a ‘greater provision’ for them than for her other children reflected the reality that, as at the time of the making of the will, it was anticipated that the farm would make up the majority, or at least a substantial part, of her estate; were the farm thought likely to be only a small part of the estate, leaving Stuart and Neale the farm but excluding them from the residuary estate might work to their disadvantage. Seen in that context, the deceased’s decision to subdivide and to sell part of the property could only work to the immediate detriment of Stuart and Neale because it would reduce the extent of the real property they might inherit and, unless the money were otherwise spent, could increase the residual estate in which they would have no interest. In circumstances where the will as created was designed to advantage Stuart and Neale over the other children, because of what the deceased perceived to be their contributions to the property, it would likely not be intended by her that a sale of part of the farming land, or change to the boundaries or title details, not only acted against Stuart’s and Neale’s interests in the way identified, but also had the effect of removing entirely the ‘greater provision’ made for them in the will.
E. Testator’s Family Maintenance
This decision concerns the proper construction of the will and not whether the deceased complied with any moral duty that she might have owed to any of her children. For the avoidance of doubt, my finding that, on a proper construction of the will, Harkaway Farm is left to Stuart and Neale and not to their other siblings does not prevent those siblings from maintaining, if they wish to do so, claims under pt IV of the Administration and Probate Act 1958 for provision out of the estate for their ‘proper maintenance and support’.[16] Nor is it intended to encourage them to do so.
F. The Previous Court of Appeal decision
[16]It appears there may be an extant testator’s family maintenance claim that was commenced in 2022.
In 2020, the person appointed by the Victorian Civil and Administrative Tribunal as administrator of the deceased’s estate commenced a proceeding against Neale and Stuart for summary possession of the Harkaway Farm under ord 53 of the Supreme Court (General Civil Procedure) Rules 2015 (The deceased was then alive but was 93 years old and in ‘cognitive decline’). The administrator wanted to sell the property to fund the deceased’s care needs. Separately, Neale and Stuart each commenced proceedings against the administrator in which they asserted equitable interests in the property. Neale asserted that Harkaway Farm was held on a constructive trust for him, and Stuart asserted that Harkaway Farm was held on a constructive trust for him and Neale. The three proceedings were heard by McMillan J. She dismissed both claims that the property was held on a constructive trust.[17] Both Neale and Stuart appealed. The Court of Appeal dismissed their appeals.[18] It concluded that McMillan J was right to conclude that no representations had been made to Neale that he would be given the whole of Harkaway. However, in the course of dismissing Stuart’s appeal, the Court of Appeal said:
[102]Noting that Ellen [the deceased] died after the commencement of the trial but before its conclusion, the promises alleged by Stuart were ultimately fulfilled by the provisions of Ellen’s will leaving Harkaway to Stuart and Neale as tenants in common in equal shares. In other words, the promises alleged by Stuart were ultimately fulfilled. Good conscience required nothing more. (citation omitted).
[103]As there was no failure by Ellen to adhere to the promises alleged by Stuart, there was no occasion to invoke the intervention of equity based on proprietary estoppel on Stuart’s behalf. Accordingly, there was no error in her Honour’s order dismissing Stuart’s proceeding.
[17]Laird v Laird [2021] VSC 352.
[18]Laird v Vallance (as Administrator for the Estate of Ellen Douglas Laird, Deceased) [2023] VSCA 138. As the title to this case reveals, Mrs Laird had died in the meantime.
Stuart submitted that this amounted to a finding by the Court of Appeal that the will left him a half share in Harkaway Farm, and that this finding was binding on me.
Stuart’s submission was made shortly prior to the hearing of this matter and the other parties were not in a position to deal with it. With the agreement of the parties, I determined that, rather than adjourn the hearing, I would decide the construction issue, but, if I concluded that the will did not leave Harkaway Farm to Stuart and Neale, I would not pronounce orders to that effect but would reconvene so that submissions could first be made, by all parties, on the effect of the Court of Appeal decision. In the circumstances, there is no need for this to occur.
G. Disposition
I will make an order to the effect that the plaintiff should administer the land more particularly described in Certificate of Title Volume 11652 Folio 720 (lot S2) and Certificate of Title Volume 11876 Folio 860 (the Boundary land) in accordance with clause 4 of the deceased’s will.
I will hear the parties on the precise form of order, and on the question of costs.
SCHEDULE OF PARTIES
S ECI 2023 04056
| LACHLAN JAMES VALLANCE (in his capacity as administrator of Ellen Douglas Laird, deceased) | Plaintiff |
| -and- | |
| NEALE DOUGLAS LAIRD | First Defendant |
| STUART GRAHAM LAIRD | Second Defendant |
| DAVID KEITH LAIRD | Third Defendant |
| ERIC JOHN LAIRD | Fourth Defendant |
| CLYDE WILLIAM LAIRD | Fifth Defendant |
| SUSAN ELIZABETH LAIRD | Sixth Defendant |
| EUAN CRAIG LAIRD | Seventh Defendant |
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