Walsh v Sloan

Case [2019] WASCA 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WALSH -v- ADRIAN CORY SLOAN as executor of the estate of THE LATE LAURETTE DOROTHY KEDDIE [2019] WASCA 107

CORAM:   QUINLAN CJ

MURPHY JA

SOFRONOFF AJA

HEARD:   17 JULY 2019

DELIVERED          :   2 AUGUST 2019

FILE NO/S:   CACV 90 of 2018

BETWEEN:   LIAM WALSH

Appellant

AND

ADRIAN CORY SLOAN as executor of the estate of THE LATE LAURETTE DOROTHY KEDDIE

First Respondent

ANDREW BALDREY

Second Respondent

KAY LORRAINE GARDINER

Third Respondent

TOBY BALDREY

Fourth Respondent

SAM BALDREY

Fifth Respondent

MARCIA JILL WALSH

Sixth Respondent

ELISE WALSH

Seventh Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MASTER SANDERSON

Citation: ADRIAN CORY SLOAN as executor of the estate of the late LAURETTE DOROTHY KEDDIE -v- BALDREY [2018] WASC 206

File Number             :   CIV 2992 of 2017


Catchwords:

Wills - Construction - Meaning of 'principal place of residence at my death' - Whether intention on part of deceased to gift property

Evidence - Objections - Responsibility of parties in relation to objections

Legislation:

Wills Act 1970 (WA)

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant : Mr P J Hannan
First Respondent : No Appearance
Second Respondent : Dr J J Hockley
Third Respondent : No Appearance
Fourth Respondent : No Appearance
Fifth Respondent : No Appearance
Sixth Respondent : No Appearance
Seventh Respondent : No Appearance

Solicitors:

Appellant : Hale Legal
First Respondent : Arns & Associates
Second Respondent : Hammond Legal
Third Respondent : In Person
Fourth Respondent : In Person
Fifth Respondent : In Person
Sixth Respondent : In Person
Seventh Respondent : In Person

Case(s) referred to in decision(s):

Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404

In Re Hood [2004] VSC 328

In Re Rowell (1982) 31 SASR 361

Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998)

Perrin v Morgan [1943] AC 399

Re Willis [1996] 2 Qd R 664

Street v Queensland Bar Association (1989) 168 CLR 461

JUDGMENT OF THE COURT:

  1. This appeal concerns the construction of one clause of the last Will of the late Laurette Dorothy Keddie (Ms Keddie).

  2. Clause 2 of Ms Keddie's Will provided:

    I give my motor vehicle, my household chattels and my principal place of residence at my death to my friend Diana Elaine Davies of 83 Drabble Road, Scarborough, in the State of Western Australia.

  3. The issue in the appeal is whether, properly construed, cl 2 was effective to gift to Diana Elaine Davies (Ms Davies), Ms Keddie's house at Unit 2, 1 Kilpa Court, City Beach (the Kilpa Court property).  If it did not, the Kilpa Court property falls into Ms Keddie's residuary estate.

Surrounding circumstances at the time of the making of the Will

  1. Ms Keddie made the Will on 25 January 2005.  There is no dispute as to the validity of the Will.

  2. As at the time that Ms Keddie made the Will, the following facts…

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Walsh v Sloan [2019] WASCA 107
Case
[2019] WASCA 107
Decision Date

CaseChat Overview and Summary

In the case of Walsh v Sloan, the matter was heard in the Supreme Court of Western Australia. The case revolves around the interpretation of a clause in the will of the late Laurette Dorothy Keddie, specifically concerning the expression "my principal place of residence at my death." The deceased bequeathed this to her friend, Diana Elaine Davies. The primary dispute is whether this clause effects a valid gift of property, and if so, what the subject matter of that gift is. The beneficiaries of the estate of the late Diana Elaine Davies are contesting this interpretation.

The legal issues before the court were the construction of the will and determining the intention of the deceased regarding the phrase "principal place of residence at my death." The court had to decide whether the phrase effectively gifted any property and, if so, identify the specific property involved. The case also addressed the responsibility of the parties in relation to objections and the admissibility of evidence presented by the parties.

The court found that the appeal should be allowed, setting aside the order made by Master Sanderson on 29 August 2018. It answered the questions raised in the Originating Summons by determining that the expression "I give... my principal place of residence at my death to my friend Diana Elaine Davies" in the will effects a valid gift of the property commonly known as Unit 2, 1 Kilpa Court, City Beach, Western Australia. The court also ordered that the costs of the appeal be paid out of Ms Keddie's estate, a matter not contested by the respondent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

None of these remarks should be taken as a particular criticism of those acting for the appellants in the proceedings before the learned Master in the present case. It has become, after all, something of a Western Australian 'house style'. Nevertheless, it is not helpful.Conclusion For the foregoing reasons: 1.The appeal should be allowed; and2.Order 1 of the orders made by Master Sanderson on 29 August 2018 should be set aside and in its place an order that:'The questions raised in the Originating Summons dated 22 November 2017 be answered as follows:(a) Whether the expression "I give... my principal place of residence at my death to my friend Diana Elaine Davies" in clause 2 of the Will of the late Laurette Dorothy Keddie effects a valid gift of any property to the beneficiaries of the estate of the late Diana Elaine Davies.Answer: Yes. (b) If the answer to question (a) is yes, what is the subject matter of that gift?Answer: The property commonly known as Unit 2, 1 Kilpa Court, City Beach, Western Australia.' The appellants sought, if the appeal were successful, to have the costs of the appeal paid out of Ms Keddie's estate.[23] That was not disputed by the respondent, and the court would also make that order.[23] Appeal ts 21 - 22.I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.BCPrincipal Associate to the Honourable Chief Justice Quinlan1 AUGUST 2019

Ratio Decidendi

Legal Principle Established

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