Re: Leaver

The matter before the court is an application by the executor and trustee of the will and codicil of Colin William John Leaver, who passed away on 9 September 1992. The primary issues for the court to determine are the proper construction of Clause 8 of the codicil dated 7 September 1992 and the appropriate price at which the executor and trustee may sell a specified parcel of land to William Ross Johnston, as stipulated in Clause 8. The court's judgment, delivered by Justice Mackenzie on 14 February 1997, addresses these issues in detail.

Justice Mackenzie first examines the handwritten codicil, noting the context in which it was executed and the testator's health concerns. The court considers the phrase "honor the proposed sale" in Clause 8, concluding that it implies an advanced but not yet binding agreement. The court admits extrinsic evidence to understand the testator's intentions, finding that there were discussions about the sale and payment terms between the testator and Dr Johnston. However, the court finds that the upper limit of the payments was not finally settled.

The court finds that Clause 8 should be interpreted as giving Dr Johnston a preferential opportunity to purchase the land, contingent on his interest upon returning from overseas. If Dr Johnston does not wish to proceed, the trustee is to sell the land at a price consistent with his duties as trustee. The court also notes the testator's intent to preserve the land's natural vegetation, which influences the trustee's decision on the sale price. The court declares that the price should reflect the trustee's duty to act in the best interests of the beneficiaries.

The court makes the following declarations: Clause 8 should be construed to give Dr Johnston a preferential opportunity to purchase the land. If Dr Johnston declines, the trustee should sell the land at a price consistent with their duties as trustee. The court will hear the parties regarding costs.