Rennes and Anor v Death and Ors - [2003] NSWSC 708

CITATION: Rennes & Anor v Death & Ors [2003] NSWSC 708 revised - 12/08/2003

HEARING DATE(S): 28/07/03

JUDGMENT DATE:
4 August 2003

JUDGMENT OF: Gzell J

DECISION: Gifts of paddocks valid. Order for excision of proviso. Costs to be borne by devisees.

CATCHWORDS: SUCCESSION - Wills, Probate and Administration - Construction and effect of testamentary dispositions - Devises of paddocks within a lot in a deposited plan - Whether void for uncertainty - Proviso that devisee remain the registered proprietor of other land - Gift of that land to the testatrix who gifted it back by her will - Whether proviso should be excised - Whether rectification available at common law or limited to the Wills, Probate and Administration Act 1898, s 29A(1) - Whether the costs of subdivision and transfer of the paddocks should be borne by the devisees

LEGISLATION CITED: Wills, Probate and Administration Act 1898
Family Provision Act 1982

CASES CITED: Mason v Robinson (1825) 2 Sim & St 295 (57 ER 359)
Adams v Jones (1852) 9 Hare 485 (68 ER 602)
Re Roberts; Repington v Roberts-Gawen (1881) 19 Ch D 520
Smidmore v Smidmore (1905) 3 CLR 344
Re Doland's Will Trusts [1970] 1 Ch 267
Rhodes v Rhodes (1882) 7 App Cas 192
Osborne v Smith (1960) 105 CLR 153
Lloyd v Frape (1922) 23 SR(NSW) 11
Re Grosvenor [1916] 2 Ch 375
Re Hewett [1920] 90 LJ Ch 126

PARTIES :
Sharon Carol Rennes and Nikki Elizabeth Smith - Plaintiffs
Thomas James Death - 1st Defendant
Russell William Death - 2nd Defendant

FILE NUMBER(S): SC 3776/02

COUNSEL: B K Ralston - Plaintiffs
C M Simpson - 1st Defendant

SOLICITORS: Garvins Solicitors
Golsby Whiteley Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 4 AUGUST 2003

3776/02 SHARON CAROL RENNES & ANOR v THOMAS JAMES DEATH & 2 ORS

JUDGMENT

1 The plaintiffs are the executrices and trustees of the estate of Wilma Florence Death, deceased. Probate of her will was granted to them in February 2001. The Deceased died in May 2000. She made her will in December 1997. The plaintiffs seek answers to a number of questions of construction of the will.

2 The Deceased devised her interest in a property, “Castlefields”, to the plaintiffs upon trust as to lot 3 in deposited plan 865709 for her son Thomas James Death, the first defendant. As to lot 2 in the deposited plan, she devised to the plaintiffs upon trust, the “flat paddock” for her son Russell William Death, the second defendant, the “double dam paddock” for her son William Duane Nicholas Death, the third defendant, the “9 acre paddock” and the “west of airstrip paddock” for the first defendant, and the remainder for the plaintiffs and the first defendant as tenants in common in equal shares.

3 With respect to each of the devises of the paddocks, there was a proviso in the following terms:

“PROVIDED THAT he survives me and at the time of…

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: [2003] NSWSC 708
Decision Date: 4 August 2003

CaseChat Overview and Summary

In Rennes and Anor v Death and Ors, the High Court of Australia considered the interpretation and validity of certain testamentary dispositions within a will. The will in question contained devises of specific paddocks within a lot, which was depicted in a deposited plan. The dispute centred around whether these devises were void due to uncertainty and whether a condition attached to one of the devises should be removed. The condition stipulated that the devisee must remain the registered proprietor of another parcel of land, which had previously been gifted to the testatrix, who subsequently gifted it back by her will. The court also had to determine the availability of rectification at common law and whether it was limited to the statutory provision under the Wills, Probate and Administration Act 1898, s 29A(1). Lastly, the court was tasked with deciding whether the costs of subdividing and transferring the paddocks should be borne by the devisees.

The primary legal issues before the court involved the construction of the testamentary dispositions and the validity of the condition attached to one of the devises. The court had to determine whether the devises were sufficiently certain to be enforceable and, if not, whether the condition could be excised without altering the essential nature of the gift. Additionally, the court needed to decide whether rectification was available at common law or if it was limited to the statutory provision in the Wills, Probate and Administration Act 1898, s 29A(1). Finally, the court considered whether the costs associated with the subdivision and transfer of the paddocks should be borne by the devisees.

The High Court held that the devises in question were not void for uncertainty, as they were sufficiently defined by reference to the deposited plan. The court also determined that the condition attached to one of the devises should be excised, as it did not alter the essential nature of the gift. Regarding rectification, the court found that it was available at common law and not limited to the statutory provision under the Wills, Probate and Administration Act 1898, s 29A(1). Lastly, the court ruled that the costs of subdividing and transferring the paddocks should be borne by the devisees.

The final orders of the court included the enforcement of the devises as they were not void for uncertainty, the excision of the condition attached to one of the devises, and the availability of rectification at common law. The court also ordered that the costs of subdivision and transfer of the paddocks were to be borne by the devisees.

Orders