DAISY JOYCE JAMES V. STANLEY EGBERT LEMEUL GATES 15/1953

DAISY JOYCE JAMES V. STANLEY EGBERT LEMEUL GATES 15/1953

The provision in the will conferred an enforceable option to purchase on the Plaintiff, not merely a right of first refusal. The clause was sufficiently certain in its terms, the exercise of the right by written notice within the prescribed period was valid, and the provision was not void for uncertainty or for being repugnant to the prior gift. The Plaintiff was accordingly entitled to an order for transfer of the specified property.

Parties
Defendant, Appellant: Daisy Joyce James (as executrix of the will of Edith Catherine May Wilkinson deceased); Plaintiff, Respondent: Stanley Egbert Lemuel Gates
Jurisdiction
Australia
Judgment Date
12 October 1953
Procedural Posture
Appeal / Appeal Struck Out by Consent Before the High Court of Australia; Prior First Instance Judgment in Supreme Court of Victoria
Outcome
Appeal struck out by consent before the High Court;
Legal Topics
Construction of Wills, Options to Purchase Real Property, Repugnancy of Testamentary Provisions, Equitable Interests
Wills and Estates Property Law Construction of Wills Options to Purchase Real Property Repugnancy of Testamentary Provisions Equitable Interests

Case Brief

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Parties

Daisy Joyce James (as executrix of the will of Edith Catherine May Wilkinson deceased)

Defendant, Appellant

Stanley Egbert Lemuel Gates

Plaintiff, Respondent

Procedural Posture

Appeal / Appeal Struck Out by Consent Before the High Court of Australia; Prior First Instance Judgment in Supreme Court of Victoria

Legal Issues

  1. 1 Whether the testamentary provision conferring a 'first right to purchase' created an enforceable legal right;
  2. 2 Whether the term 'wish' in the will created a binding right or merely an expression of intention;
  3. 3 Whether the right to purchase was repugnant to the prior devise of real property;

Ratio Decidendi

The provision in the will conferred an enforceable option to purchase on the Plaintiff, not merely a right of first refusal. The clause was sufficiently certain in its terms, the exercise of the right by written notice within the prescribed period was valid, and the provision was not void for uncertainty or for being repugnant to the prior gift. The Plaintiff was accordingly entitled to an order for transfer of the specified property.

Court Disposition

Appeal struck out by consent before the High Court;

Orders

  • Order that the appeal be and is hereby struck out
  • Order that the sum of £50 paid as security for the costs of the appeal be paid out to the Appellant or her solicitors Cook & McCallum