State Trustees Limited v Linnett - [1999] VSC 308

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 4252 of 1999

STATE TRUSTEES LIMITED Plaintiff
v

DOUGLAS LINNETT (in his capacity as the 1st Defendant
executor of the will of Albert Bruce Membrey)
AND
WAYNE DUNN (in his capacity as the executor 2nd Defendant
of the will of Barry Alfred Membrey)
AND
DAVID JAMES HUGHES (in his capacity as 3rd Defendant
representing the interests of the unascertained
next of kin of Albert Bruce Membrey & Barry
Alfred Membrey)

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JUDGE: Warren J
WHERE HELD: Melbourne
DATE OF HEARING: 5 August 1999
DATE OF JUDGMENT: 27 August 1999
CASE MAY BE CITED AS: State Trustees Limited v. Linnett & Ors
MEDIA NEUTRAL CITATION: [1999] VSC 308

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Will construction – whether life tenancy or absolute interest – risk of intestacy – personal history of beneficiaries known only to testatrix – intention of testatrix construed from fact of adoption of beneficiaries and secrecy of surrounding circumstances.

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APPEARANCES: Counsel Solicitors
For the Plaintiffs Mr R.R. Boaden State Trustees Ltd
For the 1st & 2nd Defendants Mr R.J. McInnes Mahony Galvin Rylah
For the 3rd Defendant Ms C.H. Sparke Lawson Hughes McComas

HER HONOUR:

Elsie May Membrey ("the testatrix") died on 29 December 1975. At the time of her death the testatrix was a widow and lived at her home at 45 Mills Street, Hampton ("the property"). The testatrix lived with her two adult sons, Albert Bruce Membrey and Barry Alfred Membrey at the property. She was survived by both sons.
The testatrix left a will dated 19 December 1973. On 2 April 1976 probate of the will was granted to the Public Trustee for Victoria. The plaintiff, State Trustees Limited, is the successor in law to the Public Trustee. The will was a holograph will and leaving aside the usual formal matters provided:
"I give devise and bequeath unto Albert Bruce Membrey of 45 Mills Street, Hampton and Barry Alfred Membrey of 45 Mills Street, Hampton all my real and personal property to be equally divided between them.
I empower my trustees to sell any property held by me for payment of my expenses.
Should there be any dwelling house to be jointly owned by Albert Bruce Membrey and Barry Alfred Membrey for their own use during life.
Should one brother be deceased his share is for the surviving beneficiary for his life. Should the property need to be sold for payment of my expenses the balance of the money derived from the sale to be spent on a dwelling house to be held jointly by Albert Bruce Membrey and Barry Alfred Membrey, the expenses to be equally shared by both.
Upon the death of the two beneficiaries the property to be sold and equally shared by their next of kin."
Albert Bruce Membrey died in July 1992. Barry Alfred Membrey died on 19 June 1998.
The application comes before this court by way of originating motion in which the plaintiff seeks answers to questions arising in the administration of the…

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 State Trustees Limited v Linnett

Details

AGLC: State Trustees Limited v Linnett [1999] VSC 308
Case: [1999] VSC 308
Decision Date: 27 August 1999

CaseChat Overview and Summary

In the case of State Trustees Limited v Linnett, the court was called upon to interpret the terms of a will to determine the nature of certain interests left to the beneficiaries. The deceased had adopted two children and left them specific interests in her estate, while keeping the personal circumstances of the adoption secret. The dispute arose as to whether these interests constituted life tenancies or absolute interests in the property. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to resolve was whether the bequests to the adopted children were intended to be life interests or absolute interests. This hinged on the interpretation of the will and the intention of the deceased. The court needed to consider whether the secrecy surrounding the adoption and the personal history of the beneficiaries indicated an intention to create life interests, or whether the terms of the will and the nature of the bequests suggested otherwise.

The court examined the will and the surrounding circumstances, including the secrecy and the fact of adoption. It concluded that the deceased's intention could be discerned from the manner in which the adoption was handled and the bequests were structured. Given the secrecy and the personal nature of the adoption, the court found that the deceased intended the interests to be life interests, thereby avoiding the risk of intestacy in the event of the pre-decease of the adopted children. The court thus ruled in favour of the interpretation that the interests were life tenancies.

In light of the above, the court ordered that the interests left to the adopted children were to be treated as life interests, with the remainder interests to vest in the State Trustees Limited upon the death of the adopted children. This decision ensures that the adopted children receive the intended benefits during their lifetimes, while also providing for the remainder interests in accordance with the deceased's wishes.

Orders