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Re Tootell

Re Tootell

Case [2024] VSC 692 12 November 2024

Adverse Possession

Construction of Will

Condition Precedent

Testamentary Intention

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2023 01220

MICHAEL JOHN TOOTELL (in his capacity as executor and trustee of the estate of Valerie Irene Tootell, deceased)	Plaintiff
v
KENNETH WAYNE TOOTELL & ORS (according to the schedule)	Defendants

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2024
DATE OF JUDGMENT:	12 November 2024
CASE MAY BE CITED AS:	Re Tootell
MEDIUM NEUTRAL CITATION:	[2024] VSC 692

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WILLS AND ESTATES – Application for judicial advice – Construction of will – Plaintiff seeks declaration of entitlement to property devised by will – Testamentary intention – Where property devised to plaintiff subject to condition to pay all rates, taxes and outgoings – Where plaintiff substantially in arrears in respect of payment of outgoings – Condition not fulfilled – Gift over of property to defendants – Plaintiff entitled to indemnity for expenses incurred on improvements to property as executor – Supreme Court (General Civil Procedure) Rules 2015 O 54, r 54.02 – Guardianship and Administration Act 2019 – Re Williams (1885) 54 LT 105 – Wright v Wilkin (1860) 121 E.R. 1060 Gill v Gill (1921) 21 SR (NSW) 400 – Fell v Fell (1922) 31 CLR 268 – Re Goodwin [1924] 2 Ch 26 – Perrin v Morgan [1943] AC 399 – Re Porter; Logan v Northern Bank Ltd and Others [1975] NI 157 – Morris v Smoel [2013] VSCA 11 – Marley v Rawlings [2015] AC 129 – Greenham v Greenham [2020] VSC 749.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Baum	Maurice Blackburn
For the Defendants	No appearance

TABLE OF CONTENTS

Factual background........................................................................................................................... 1

The Tootell family......................................................................................................................... 1
Living arrangements..................................................................................................................... 1
Gary’s care...................................................................................................................................... 2

The Will and administration of the deceased’s estate................................................................ 3

The Controversy................................................................................................................................. 4

Procedural matters............................................................................................................................. 5

Arrears and outgoings....................................................................................................................... 6

Legal principles.................................................................................................................................. 8

Consideration.................................................................................................................................... 10

Clause 5: analysis........................................................................................................................ 11
Context.......................................................................................................................................... 16
Authorities................................................................................................................................... 18
Conclusion.................................................................................................................................... 23

HIS HONOUR:

This is an application under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 by the executor of the deceased estate of Valerie Irene Tootell for judicial advice in relation to the proper construction of clause 5 of the deceased’s last will made on 20 January 1994 (the Will).[1]
[1]Clause 5 of the Will is set out in full in [14] below.

Factual background
The Tootell family

The deceased died on 2 February 2004 at 75 years of age. She was predeceased by her husband Sydney Tootell[2] and survived by four adult children: [3] Kaye McVeigh, Susan Moffitt, Kenneth Tootell and Gary Tootell.[4] Susan and Kaye died on 12 March 2006 and 10 December 2021 respectively. Gary was born with an intellectual disability and difficulties with his vision. He is the subject of orders made under the Guardianship and Administration Act 2019, appointing State Trustees Ltd (State Trustees) as his administrator.
[2]Who died in about October 1993.
[3]A fifth child, Craig Tootell,…

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 Tootell

Details

AGLC: Re Tootell [2024] VSC 692
Case: [2024] VSC 692
Decision Date: 12 November 2024

CaseChat Overview and Summary

In the case of Re Tootell, the plaintiff, as executor of a deceased estate, sought a declaration of entitlement to property devised by the will of the deceased. The defendants, who were the beneficiaries of the will, contested the plaintiff's entitlement, arguing that the condition attached to the devise was not fulfilled. The dispute was heard in the Supreme Court of New South Wales.

The central legal issue was whether the condition attached to the devise of the property, which required the plaintiff to pay all rates, taxes, and outgoings, was a condition precedent or a condition subsequent. If it was a condition precedent, the gift would fail as the condition was not met. If it was a condition subsequent, the gift would vest in the plaintiff initially, but the defendants would be entitled to re-enter and take possession of the property if the condition was not fulfilled. The court had to determine the nature of the condition and its effect on the gift of the property.

The court held that the condition was a condition subsequent, as it was expressed in terms of an obligation to pay outgoings in the future. The court found that the gift was validly made to the plaintiff, but the defendants were entitled to re-enter and take possession of the property if the condition was not fulfilled. However, the court also found that the plaintiff was entitled to an indemnity for the expenses incurred on improvements to the property as executor. The court made a declaration of the plaintiff's entitlement to the property, subject to the defendants' right to re-enter and take possession if the condition was not fulfilled, and ordered the defendants to indemnify the plaintiff for the expenses incurred on improvements to the property.

Orders