Mann v Mann & Ors

Some complicated issues of construction of a Will arose in this matter. The testator held a half share in three sizeable cane farms, together with other assets. Prior to his death, one of the farms had been the subject of a resumption notice, however unexpectedly after he died, the decision to resume was reversed, the resumption notice revoked, and that part of the cane farm (approximately 21 hectares) was not resumed as it was deemed void. The executor (the testator’s wife) and the applicant (one of his adult children) differed as to how the executor should interpret the Will concerning the outcome of those unanticipated events, specifically as to whether the description of a specific gift in the Will (to adult children of the deceased) of land included part of the farm which at the time of the Will had been the subject of the resumption notice. The testator had left the residue to his wife. She claimed this land went to her as part of the residue. The children sought declarations that the land went to them. The application turned upon the construction of clause 4 of the Will which dealt with the disposition of the testator’s interests in the family farm. Ultimately, his Honour dismissed the application, on the basis that the declarations sought were at odds with the proper construction of the Will.

Henry J

28 March 2024

The two dispositive clauses in the Will were clauses 4 and 5. Clause 5 was straightforward. It left the residuary of the deceased’s estate, after meeting the estate’s debts and expenses, to his wife (the executor). [23].

The only other property disposed of by the Will was dealt with in clause 4, headed “Specific gifts”, to the deceased’s children. [24]. The description of the real property in clause 4.1 essentially purported to give all of the deceased’s estate and interest in and to the family farm to his three children. [24]. The obvious and complex issue which arose following his death (and the unforeseen revesting of that part of the farm which had been resumed by the State Government) was exactly what that real property entailed. That exercise was complicated due to specific handwritten annotations containing other associated lots and plan numbers. [26]. In addition, there was a reference in the clause to “proceeds of sale” and “income”, which assumed more significance having regard to the compensation derived from the Council’s resumption of part of the land described in cl 4.1(a) which was received after the deceased’s death. [27]. As matters eventuated his Honour determined that the Council resumption compensation did not fall within the meaning of “proceeds of sale” or “income” as referred to in that clause. [28].

Given the way in which cl 4 had been drafted, and in particular the ambiguous language which purported to describe the real property which the deceased wished to devise, the court held that it was appropriate to resort to the use of extrinsic evidence as an aid to interpreting it. [40].

Was the revested part of the farm which had purportedly been resumed by the State Government part of the property described in cl 4?

Due to the operation of s 17 Acquisitions of Land Act 1967, the resumption of the parcel of land by the State Government was deemed to be absolutely void as if it had not been made at all. [47].

The extrinsic evidence, including the account of one of the solicitors who took instructions from the deceased and his wife in order to draft both of their wills [48] and file notes [49]–[52], [59] revealed that the clear intent of the testator was to gift only the land comprising the farm which had not been resumed at the time he made the Will and to give the proceeds of the resumption to his wife. His Honour clarified that that intention was “not deemed altered by the fact of the resumption revocation after his death or the consequence that worth now manifests in the value of the land itself, rather than its anticipated monetary worth in compensation”. [56].

The applicant contended that the fact that the deceased had used both typewriting and handwriting to describe the real property in cl 4 was indicative that he deliberately intended to generally describe an identifiable class of property, which was pliable and capable of variation in size. [62]. His Honour did not accept that argument. Instead, he noted that it was improbable that the deceased would have anticipated that the property would increase in size in the future – it was enveloped by suburbia. [73]. In his view, the more likely scenario was that the manner in which the deceased had described the property in his Will simply reflected what he believed he owned, namely lots 1 and 4, with the intention of devising his share of that described property to his children. [74].

His Honour held that the revested part of the farm which had been resumed did not come within the property described in cl 4.1 of the will. [79].

Was rectification a remedy of any relevance in the present case?

There was no scope in the current matter for rectification as a possible response to the retrospective consequence of the deeming effect of s 17 Acquisitions of Land Act 1967. It was irrelevant since its application could only arise if, at the time the Will was made, the deceased either knew or understood that its operation was going to be triggered. [84]–[85]. Instead, it was plainly the case that the deceased had no knowledge or belief of the subsequent revocation of the land resumption.

Disposition

The application was dismissed. Justice Henry held the land the subject of the revoked resumption notice fell into residue and went to the wife. In view of the controversy concerning the uncertain impact on the Will’s meaning of the unanticipated consequences of State and local government interference in the testator’s private property, an order was made that the estate would bear the parties’ costs on an indemnity basis.

A Jarro