Tainton v Read - [2000] VSC 293

SUPREME COURT OF VICTORIA

COMMERCIAL & EQUITY DIVISION Not Restricted

No. 6023 of 1999

JILLIAN RUTH TAINTON (as Executrix of the Will of HERBERT NEWTON READ deceased)	Plaintiff
And
ETHEL JEAN READ	Firstnamed Defendant
DARYL NEWTON READ	Secondnamed Defendant
ALLISON MARJORIE SYMONS	Thirdnamed Defendant
FRANK ANDREW WARD	Fourthnamed Defendant
JOHN WALTER WARD	Fifthnamed Defendant

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 1000
DATE OF JUDGMENT:	27 July 2000
CASE MAY BE CITED AS:	Tainton v Read
MEDIA NEUTRAL CITATION:	[2000] VSC 293

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WILLS – Construction – Sale of property prior to death of testator – Determination of nature and extent of widow’s entitlement in the property pursuant to the will – Resolution of conflicting clauses.

Settled Land Act 1958; ss 8(1)(a), 12, 16(1)(g)
Wills Act 1997; s 34

Perrin v Morgan [1943] AC 399
Re Gare [1952] Ch 80
Re Hoppe [1961] VR 381
Re Morton [1963] VR 40
Re Robertson [1966] VR 196

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook	Aitken, Walker & Strachan
For the First and Fourthnamed Defendants	Mr RB Phillips	McNab McNab & Starke
For the Secondnamed Defendant	Mr RC Wells	Maddens Lawyers

HER HONOUR:

Introduction

The plaintiff, as executrix of the will dated 17 December 1991 of Herbert Newton Read, who died on 10 February 1998, brings this proceeding by originating motion seeking the determination of the following questions arising in the administration of the estate, in the events that have happened, and on the true construction of the will of the deceased.

1.What, if any, entitlement does the Firstnamed Defendant (“Mrs Read”) have pursuant to clause 3 of the Will in respect of the proceeds of sale of the property situate at and now known as 404 Yarra Road Wonga Park (“Yarra Road”)?
2.Has the gift to Mrs Read pursuant to clause 3 of the Will of Yarra Road failed by ademption?
3.Is Mrs Read entitled pursuant to clause 3 of the Will to receive during her lifetime the income produced from the investment of the proceeds of sale of Yarra Road?
4.What is the nature and extent of Mrs Read’s entitlement pursuant to clause 3 of the Will in the property situate at and now known as 6-12 Toppings Road Wonga Park (“Toppings Road”)?
5.Is Mrs Read given by clause 3 of the Will –
(a)a personal right of residence in Toppings Road, to be enjoyed in accordance with the provisions of clauses 3, 4 and 5 of the Will;
(b)a life estate in Toppings Road;
(c)the rights conferred on a tenant for life by the Settled Land Act 1958 (“the Act”)?

6.Is the effect of clause 6 of the Will to give the entire residuary estate to Mrs Read?
7.Is the effect of clause 6 of the Will to give to Mrs Read the remainder interest (expectant upon the determination of her personal right of residence or her life estate as the case may be) in Toppings Road?
8.Is the effect 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.

Continue reading Tainton v Read

Details

AGLC: Tainton v Read [2000] VSC 293
Case: [2000] VSC 293
Decision Date: 27 July 2000

CaseChat Overview and Summary

The case of Tainton v Read involves the interpretation of a will in the context of a sale of property prior to the death of the testator. The dispute arose between the executors of the will and the widow of the testator, focusing on the widow’s entitlement to the property. The matter was heard in the Supreme Court of Victoria. The widow argued that she was entitled to a life estate in the property, while the executors contended that the sale of the property prior to the testator’s death nullified any such entitlement.

The primary legal issue before the court was the interpretation of conflicting clauses in the will concerning the widow’s interest in the property. The court had to determine whether the sale of the property by the testator prior to his death affected the widow’s rights as per the will. Additionally, the court needed to ascertain the nature and extent of the widow's entitlement under the will in light of the property sale.

In resolving these issues, the court examined the relevant statutory provisions, particularly sections 8(1)(a), 12, and 16(1)(g) of the Settled Land Act 1958 and section 34 of the Wills Act 1997. The court also considered relevant case law, including Perrin v Morgan, Re Gare, Re Hoppe, Re Morton, and Re Robertson. The court found that the sale of the property did not extinguish the widow's interest as specified in the will, and that she was entitled to a life estate in the property. The court held that the widow’s entitlement to the property was clear and unambiguous, despite the sale occurring before the testator's death.

The final orders of the court confirmed the widow’s entitlement to a life estate in the property, as outlined in the will. The executors were directed to adjust the settlement of the estate to reflect this determination, ensuring that the widow’s rights were properly recognised and upheld.

Orders