Worden v Worden - [2004] SASC 350

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WORDEN v WORDEN AND ORS
Judgment of The Honourable Justice Perry
10 November 2004
WILLS, PROBATE AND LETTERS OF ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS
CONSTRUCTION OF OPTION TO PURCHASE REAL ESTATE GIVEN IN A WILL
The plaintiff, one of the residuary beneficiaries of the estate of the testator, sought a declaration that an option to purchase the testator's real property made in favour of another beneficiary had been repudiated by that beneficiary, who had declined the trustee's offer of the property but then sought to retract, and accept it - held that in the circumstances, once declined, the offer could not then be accepted and the option to purchase could not be revived - declaration accordingly.
O'Neill v O'Connell and Anor [1945] 72 CLR 101; In re Cranstoun, deceased; Gibbs v Home of Rest for Horses [1949] 1 Ch D 523, considered.

WORDEN v WORDEN AND ORS
[2004] SASC 350
Civil

PERRY J. The plaintiff, Kevin Lloyd Worden (“Kevin Worden”), is one of three sons of Jack Worden deceased (“the deceased”), late of Wasleys, who died on 7 November 1994.
In his last will, the deceased directed his trustees to offer to another of his sons, John Elliott Worden, an option to purchase the whole of the real property forming part of the deceased’s estate, being farm land (“the land”) comprised in two parcels, one at Wasleys and the other at Reeves Plains, on terms which I will explain in due course.
In the proceedings, Kevin Worden claims a declaration that his brother John Worden has “repudiated” the option to purchase. He seeks consequential orders that the administrators of the deceased’s estate sell the land by public auction and distribute the proceeds on the footing that they form part of the residuary estate of the deceased.
John Worden disputes the entitlement of Kevin Worden to a declaration in those terms, and maintains that he has validly exercised the option.
The third son, Robert Worden, died on 5 December 2002. The administrators of his estate, Tower Trust Ltd (previously Executor Trustee Australia Ltd) (“Tower Trust”) and his widow, Alice Margaret Worden, are together named as the second defendant to the proceedings. Tower Trust did not appear at the trial, but intimated that it would abide the outcome of the action.
Alice Worden did not appear at the trial. In an affidavit received in evidence she said that she supported the plaintiff Kevin Worden’s claim.
In earlier proceedings instituted in this Court by the executors of the estate of Robert Worden,[1] the plaintiffs claimed that the clause of the will providing for the option to purchase now in question, was void for uncertainty. Doyle CJ dismissed the claim, holding that the clause was not void for uncertainty.[2]
[1] Tower Trust Ltd and Worden v Worden and Worden, action No SCCIV-04-392.
[2] Judgment No [2004] SASC 159, 8 June 2004.
At the trial both Kevin and John Worden gave evidence.
Family…

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 Worden v Worden

Details

AGLC: Worden v Worden [2004] SASC 350
Case: [2004] SASC 350
Decision Date: 10 November 2004

CaseChat Overview and Summary

Worden v Worden was a case before the Supreme Court of New South Wales, involving a dispute between Kevin Worden and John Worden over the interpretation and execution of a will, specifically regarding the sale of certain land. The will of Blanche Worden stipulated that the trustees should offer to sell the land to her son, John Worden, at a price determined by a licensed valuer, within twelve months of her death. Kevin Worden, as the executor of the will, was tasked with this responsibility. The central issue was whether the trustees had made a valid offer to John Worden and whether John had declined the offer in accordance with the will’s provisions.

The court had to decide whether the delivery of a valuation report by a licensed valuer to John Worden constituted a valid offer in writing as required by the will. Additionally, the court needed to determine if John's subsequent actions and correspondence amounted to a declination of this offer within the will's timeframe and conditions. The court examined the conduct of the parties, the communication between them, and the legal requirements set out in the will.

The court concluded that while there was no formal written offer in the precise terms required by the will, the delivery of the valuation report and subsequent discussions effectively constituted an offer. This interpretation was supported by the conduct of both parties, who treated the valuation report as an offer. Furthermore, the court found that John Worden's actions, including a letter dated 8 May 2003, constituted a declination of the offer, thereby meeting the requirements of the will. The court rejected the notion of repudiation, focusing instead on whether an offer was made and subsequently declined.

In summary, the court held that the trustees had made a valid offer to John Worden and that John had effectively declined the offer. Consequently, the court's decision affirmed that the terms of the will had been followed, and no further action was required regarding the sale of the land.

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

PERRY J

If Kevin Worden’s contentions are correct, the land stands to be sold and is likely to fetch on sale an amount which is almost double that figure. A valuation by another valuer, Lindsay Wapper dated 4 December 2003, which was tendered in evidence, valued the land at $923,600.Conclusions Mr Costello for the plaintiff put his client’s case forward on the basis that in the circumstances, the delivery of Mr Clarke’s valuation to John Worden in August 1999 amounted to an offer to sell the land to him at the amount of the valuation, and that the offer was rejected at the meeting at Mr Bills’ office on 21 September 1999. He further contended that if it was not rejected then, it was rejected by the letter from Boltons dated 8 May 2003. In the first place, I do not think that it is right to speak in terms of “repudiation” of the option, which is the language used in the statement of orders sought, in some of the correspondence, and in some of the submissions put to me by counsel. It is not a question of repudiation of the option to purchase. Rather, it is a question as to whether an offer was made in accordance with the provisions of the will, and whether it has been declined. Essentially, the case gives rise to two issues:(a)Did the trustees make an offer in writing to John within twelve months after the death of Blanche Worden, as required by clause 7 of the will?(b)If so, has John Worden declined the offer within the meaning of clause 8 of the will? I will address each of those issues in turn.Was an offer made complying with clause 7 of the will? It must be accepted that there was no offer made which complied literally, in the sense that there is no document which answers to the description of an “offer … made in writing” to John Worden to purchase the land at a price fixed by the licensed valuer, Wayne Clarke. However, Mr Clarke’s written valuation was delivered to John Worden, and discussions then took place between the parties as to whether he was prepared to purchase the land at the amount of the valuation. In those circumstances, it would be pedantic to hold that there had been a failure to comply with this aspect of the direction made by the deceased. It was always open to the parties to waive strict compliance, at least as to the manner in which the offer was to be conveyed. In my view, by their conduct the parties must be taken to have waived the requirement in the sense that they treated the delivery of the written valuation as amounting to the offer in writing. That Kevin and John Worden later thought that in order to comply with the directions in the will a further communication was necessary, as a result of which the letter of 10 May 2000 was written by Kevin Worden to John Worden and delivered to the latter, does not deflect me from that conclusion. The letter was not expressed in terms of an offer, and the offer had effectively been made much earlier, in the manner in which I have indicated.Has John Worden declined the offer within the meaning of clause 8 of the will?

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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