Rennes & Anor v Death & Ors [2003] NSWSC 708

Rennes & Anor v Death & Ors [2003] NSWSC 708

The paddock devises were valid because the parties shared a common understanding of the paddock boundaries and the will could be given a sufficiently certain meaning. The proviso, as applied to the first defendant, conflicted with the deceased's clear intention to benefit him by giving him lot 3 and contiguous parts of lot 2; deleting the proviso did not alter the meaning of what remained or affect the residuary gifts. The costs required to implement the specific devises were to be borne by the specific devisees, not by the estate as testamentary expenses.

Jurisdiction
Australia
Judgment Date
04 August 2003
Procedural Posture
Construction Summons Concerning a Will / Judgment on Questions of Construction
Outcome
Gifts of paddocks held valid; proviso to the devise of the 9 acre paddock and west of airstrip paddock to be excised; costs of implementing the devises to be borne by the specific devisees; balance of summons stood over.
Legal Topics
['construction and Effect of Testamentary Dispositions' 'devise of Paddocks Within a Lot in a Deposited Plan' 'uncertainty' 'proviso Requiring Devisee to Remain Registered Proprietor' 'rectification of Wills' 'costs of Subdivision and Transfer']
['succession' 'wills, Probate and Administration'] ['construction and Effect of Testamentary Dispositions' 'devise of Paddocks Within a Lot in a Deposited Plan' 'uncertainty' 'proviso Requiring Devisee to Remain Registered Proprietor' 'rectification of Wills' 'costs of Subdivision and Transfer']

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Procedural Posture

Construction Summons Concerning a Will / Judgment on Questions of Construction

Legal Issues

  1. 1 ['Whether the devises of identified paddocks within lot 2 in deposited plan 865709 were void for uncertainty.' "Whether the proviso requiring a devisee to survive and remain the registered proprietor of parts of Castlefields bequeathed by the deceased's late husband prevented the first defendant taking the 9 acre paddock and west of airstrip paddock." 'Whether the inconsistent proviso should be excised from the will or rectified.' 'Who should bear the costs of subdivision and transfer needed to implement the devises.']

Ratio Decidendi

The paddock devises were valid because the parties shared a common understanding of the paddock boundaries and the will could be given a sufficiently certain meaning. The proviso, as applied to the first defendant, conflicted with the deceased's clear intention to benefit him by giving him lot 3 and contiguous parts of lot 2; deleting the proviso did not alter the meaning of what remained or affect the residuary gifts. The costs required to implement the specific devises were to be borne by the specific devisees, not by the estate as testamentary expenses.

Court Disposition

Gifts of paddocks held valid; proviso to the devise of the 9 acre paddock and west of airstrip paddock to be excised; costs of implementing the devises to be borne by the specific devisees; balance of summons stood over.

Orders

  • ['The devises of the paddocks were not void for uncertainty and constituted valid gifts.' 'The proviso to the devise of the 9 acre paddock and the west of airstrip paddock in favour of the first defendant should be excised from the will.' 'The costs of implementing the devises should be borne by the specific...