Re Troy

Case [2025] VSC 123 24 March 2025

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 05036

RODNEY JOHN TROY	Plaintiff
v
DEBORAH MAREE TROY (who is sued in her capacity as Administrator of the Estate of the deceased, FLORIDA TROY)	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 November 2024
DATE OF JUDGMENT:	24 March 2025
CASE MAY BE CITED AS:	Re Troy
MEDIUM NEUTRAL CITATION:	[2025] VSC 123

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WILLS AND ESTATES – Application for judicial advice – Construction of will – Plaintiff seeks declaration that devise of real estate includes water shares – Specific gift indicating contrary intention to s 34(1) of Wills Act 1997 – Will to be construed in relation to property as at time made – Armchair principle – Will prepared by solicitor – Legal background in which will made including nature of common law riparian rights – Consideration of text of will and extrinsic circumstances – Declaration that water shares are part of a gift of interest in identified land – Water Act 1989 s 33F, 33S & 33AV – Wills Act 1997 ss 34 & 36 – Supreme Court (General Civil Procedure) Rules 2015 O 54 – Boyes v Cook (1880) 14 Ch D 53 – Evans v Powell (1909) 1 Ch 784 - Perrin v Morgan [1943] AC 399 – McBride v Hudson (1962) 107 CLR 604 – Gartner v Kidman (1962) 108 CLR 12 – Elders Rural Finance Ltd v Westpac Banking Corporation (1989) 6 BPR 13439 - Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 – Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 – Marley v Rawlings [2015] AC 129 – Farrelly v Phillips (2017) 128 SASR 502 – Greenham v Greenham [2020] VSC 749 – Kinloch v Manzione [2022] ACTSC 76.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Donald	SMR Legal Pty Ltd
For the Defendant	Mr A Panna KC	John Boundy Legal

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Legal principles: construction of wills........................................................................................... 2

Circumstances surrounding the making of the Will................................................................... 5

Legal principles: water...................................................................................................................... 7

Deborah’s submissions..................................................................................................................... 9

Consideration.................................................................................................................................... 14

HIS HONOUR:

Introduction

This is an application under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial advice in relation to the proper construction of clause 4(a) of the last Will of Florida Troy made on 22 November 2006 (the Will).

Florida died on 5 May 2019 at 91 years of age. [1] She was predeceased by her husband, Thomas Frederick James Troy, who passed away on 1 April 2015. Florida was survived by two adult children, Rodney John Troy and Deborah Maree Troy, who are the parties to this proceeding
[1]In the interests of clarity and without intending any disrespect, I will generally refer to the members of the Troy family by their first names.

The Will was prepared by a solicitor and is in simple…

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 Troy

Details

AGLC: Re Troy [2025] VSC 123
Case: [2025] VSC 123
Decision Date: 24 March 2025

CaseChat Overview and Summary

The plaintiff in this case sought judicial advice regarding the interpretation of a will, specifically whether a devise of real estate included water shares. The matter was heard in the Supreme Court of South Australia. The central issue for the court was whether the will's language indicated an intention to include the water shares within the property gift, given the specific gift appeared to contradict section 34(1) of the Wills Act 1997.

The court examined the will's text and relevant extrinsic circumstances to determine the testator's intention. The court found that the will, prepared by a solicitor, needed to be interpreted in the context of the legal background at the time, including the nature of common law riparian rights. The court considered various authorities, including Boyes v Cook, Evans v Powell, and Marley v Rawlings, which emphasised the importance of construing the will in light of the property as it existed at the time the will was made. The court also applied the "armchair principle," which requires the will to be interpreted as a reasonable person would have understood it at the time it was made.

The court concluded that the testator intended the water shares to be part of the gift of interest in the identified land. The court noted that the Water Act 1989 and relevant sections of the Wills Act 1997 supported this interpretation. The court granted the plaintiff's application for a declaration that the water shares were part of the gift. This decision was consistent with the authorities and the specific language of the will, which, when read in its entirety and in context, indicated the testator's intention to include the water shares within the real estate gift.

Orders