JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2016
DATE OF JUDGMENT:	30 August 2016
CASE MAY BE CITED AS:	Re Melbourne; Wall v Wathen
MEDIUM NEUTRAL CITATION:	[2016] VSC 514

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SUCCESSION LAW — Wills, probate and administration — Construction of wills — Effect of testamentary disposition — General principles of construction — Ordinary meaning of words — Whether possible intestacy — Effect of legislation — Fell v Fell (1922) 31 CLR 268 — Arnott v Kiss [2014] NSWSC 1385 — Wills Act 1997, s 46(3)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R A Edmunds	Billings Cloak
For the Defendant	Mr M C McKenzie	Prior Law with Allan Jenes

HER HONOUR:

Background

Norma Cathlyn Melbourne (‘the deceased’ or ‘the testatrix’) died on 6 April 2013, leaving a will dated 24 November 2004 (‘the will’). By her will, the deceased appointed the plaintiff as her executor. Probate of the deceased’s will was granted to the plaintiff on 26 June 2013.

The deceased was the only child of her parents, who both predeceased her. She married Wallace Albert Wathen (‘Mr Wathen’) and they had one child, a son, born on 23 May 1965. In 1975, Mr Wathen and the deceased separated and they subsequently divorced. The deceased’s son benefits under her will in the form of weekly payments for the rest of his life and is the defendant in this proceeding.

Attempts to locate the defendant

At the time of the deceased’s death, the whereabouts of the defendant was unknown, with Mr Wathen telling the plaintiff that his son’s last contact with him was in 1995.

Investigations were made to locate the defendant, without success. On the basis that the defendant could not be found, on 9 June 2015, the plaintiff sought an order authorising distribution of the deceased’s estate on the basis that the defendant did not survive the deceased and died without issue.[1] The Court required the plaintiff to make further enquiries and searches in an attempt to locate the defendant. At the same time, orders were made to set aside a sum to cover the estate’s anticipated costs, executor’s commission and other liabilities and for one part of the remainder of the estate to be distributed with the remaining part to be held in trust pending the determination of the proper construction of the will.
[1]Re Benjamin; Neville v Benjamin [1902] 1 Ch 723.

The further enquiries and searches resulted in a person from the Salvation Army contacting Mr Wathen. That person told him he had a person with him who claimed to be the defendant. That person then spoke to Mr Wathen, identifying himself as the defendant. He told Mr Wathen that he had become an…

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 Melbourne; Wall v Wathen

Details

AGLC: Re Melbourne; Wall v Wathen [2016] VSC 514
Case: [2016] VSC 514
Decision Date: 30 August 2016

CaseChat Overview and Summary

The case before the court involved a dispute over the interpretation of a will and the applicability of relevant legislation. The parties involved were Wall, the plaintiff, and Wathen, the defendant. The dispute centred on the interpretation of a testamentary disposition within a will and whether certain assets were to be distributed according to the will or if the legislation necessitated a different distribution. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court had to resolve was whether the ordinary meaning of the words used in the will could lead to a potential intestacy, and if so, how the relevant legislation should be applied. The court had to consider the principles of construction of wills, the ordinary meaning of the words used in the will, and the effect of relevant legislation on the distribution of the estate. In particular, the court had to examine whether the Wills Act 1997, section 46(3), applied to the circumstances of the case and how it might affect the distribution of the estate.

The court found that the ordinary meaning of the words used in the will did indeed lead to a potential intestacy. However, upon examining the relevant legislation, the court concluded that section 46(3) of the Wills Act 1997 did not apply to the circumstances of the case. The court held that the proper interpretation of the will resulted in a valid testamentary disposition, and the estate should be distributed accordingly. The court relied on previous cases such as Fell v Fell and Arnott v Kiss to support its reasoning.

In conclusion, the court held that the distribution of the estate should follow the terms of the will as interpreted, and the relevant legislation did not alter the intended distribution. The court did not find any intestacy and, therefore, did not need to apply the intestacy provisions of the Succession Act 2006 (Vic). The final orders of the court enforced the distribution of the estate as per the will, without any alterations due to the application of the Wills Act 1997, section 46(3).

Orders