Re Lapalme; Daley v Leeton - [2019] VSC 534

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 04625

IN THE MATTER of the will and estate of ROBERTA CLAIRE LAPALME, deceased

-and-

IN THE MATTER of an application pursuant to Rule 54.02 for directions in relation to the administration of the estate

ROBERT JAMES DALEY (a minor, by his litigation guardian JAMES DAVID DALY)	Plaintiff
v
GEOFFREY DAVID LEETON (who is sued as the executor of the will and estate of abovenamed deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 August 2019
CASE MAY BE CITED AS:	Re Lapalme; Daley v Leeton
MEDIUM NEUTRAL CITATION:	[2019] VSC 534

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SUCCESSION LAW — Construction of will — Whether grandchildren not born at date of death to be included in class of beneficiaries — Meaning of the word ‘survive’ — Extrinsic evidence — The ‘armchair principle’ — Fell v Fell (1922) 31 CLR 268 — Crane v Crane (1949) 80 CLR 327 — Re Laird [1982] 2 NZLR 325 — Wills Act 1997 (Vic) ss 36, 46.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	McKean Park
For the Defendant	Mr A Cassidy	Campbell and Shaw

HER HONOUR:

Introduction

Roberta Claire Lapalme died on 13 September 2015. Probate of the deceased’s last will dated 17 May 2004 was granted to Geoffrey David Leeton (‘the defendant’) on 7 September 2016. The deceased’s estate consists of real property in Oakleigh South valued at $1,000,000, real property in Canada valued at $355,000, money in the bank of $245,921.53 and personal chattels valued at $6,000.

The will bequeaths monetary legacies totalling $330,000 and some pieces of jewellery, with the balance falling into the residue of the estate.

The plaintiff is a minor grandchild of the deceased, represented by his litigation guardian, James David Daly. The plaintiff seeks judicial advice as to the construction of clause 9 of the will, specifically, as to who is eligible to be considered within the class of beneficiaries created by the words ‘those of my grandchildren as shall survive me and attain the age of eighteen (18) years’.

Clause 9 of the will provides:

I GIVE DEVISE AND BEQUATH the rest and residue of my estate both real and personal whatsoever and wheresoever situate to my Trustees UPON TRUST to sell call in collect and convert the same into money at such time or times and in such manner as my Trustees shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property (including leaseholds or other property of a terminable hazardous or wasting nature) during such period as my Trustees shall think proper and my Trustees shall out of the moneys arising therefrom pay all my just debts funeral and testamentary expenses and all duties and taxes payable in respect of my estate both actual and notional or occasioned…

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.

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Details

Case: [2019] VSC 534
Decision Date: 13 August 2019

CaseChat Overview and Summary

In the matter of the estate of the late Lapalme, the dispute arose between Daley and Leeton, each asserting claims to the estate based on differing interpretations of the deceased's will. The case was heard in the Supreme Court of Victoria. The central issue was whether grandchildren of the deceased, who were not born at the time of the testator's death, should be included in the class of beneficiaries under the will. This hinged on the interpretation of the term 'survive' in the context of the will's language and whether extrinsic evidence could be used to clarify the testator's intention.

The court had to determine whether the word 'survive' in the will meant that the beneficiaries had to be alive at the time of the testator's death or if it could include those born after the testator's death. The court considered the relevant statutory provisions, particularly sections 36 and 46 of the Wills Act 1997 (Vic), and examined precedents such as Fell v Fell, Crane v Crane, and Re Laird. These cases provided guidance on the application of the 'armchair principle' in interpreting wills and the admissibility of extrinsic evidence to ascertain the testator's intention.

The court held that the word 'survive' should be interpreted in a manner consistent with the testator's presumed intention, and that extrinsic evidence could be considered if it did not contradict the expressed wishes in the will. In applying these principles, the court concluded that the grandchildren who were not born at the time of the testator's death could be included as beneficiaries. The court's interpretation was based on the testator's likely intention to provide for all descendants, and the use of extrinsic evidence did not alter the clear wording of the will. The decision was thus in favour of including the grandchildren within the beneficiary class.

The court ordered that the estate be distributed according to the will, with the grandchildren of the deceased being included as beneficiaries. The specific details of the distribution were left to the executors to implement, with the understanding that the grandchildren would receive their entitled shares. This decision underscored the importance of interpreting wills in light of the testator's presumed intention and the application of extrinsic evidence where appropriate.

Orders