Fairweather v Fairweather [1944] HCA 11

Fairweather v Fairweather [1944] HCA 11

The devise of Birrell Court to Roy Gilbert Fairweather failed because, by contracting to sell the property to Roy after the date of the will, the subject-matter of the specific devise was adeemed. Confirmation of the will by codicils did not revive the devise, as ademption by the testator's voluntary act removed the property from the operation of the will. At the testator's death, he retained only an interest in proceeds of sale, and the devise could not operate on the property as land. Moratorium legislation did not alter the principles of ademption or justify treating the confirmation by codicil as effecting a different disposition.

Parties
Appellant; Defendant; Son of Testator; Purchaser: Roy Gilbert Fairweather; Respondent; Testator; Estate: Walter Richard Fairweather; Respondent; Defendant: Walter Richard Fairweather (son of testator); Respondent; Nephew; Defendant: Trevor Stanley Fairweather; Respondent; Niece; Defendant: Ailsa Joan Gallie; Respondent; Nephew; Defendant: Clyde Walter Fairweather; Executor; Respondent; Plaintiff: Telford Graham Gilder; Respondent; Daughter; Defendant: Amelia Louisa Hurley; Respondent; Daughter; Defendant: Gladys Airam Crocker
Jurisdiction
Australia
Procedural Posture
Appeal From a Judgment on Originating Summons / High Court of Australia, on Appeal From Supreme Court of NSW
Outcome
Appeal dismissed with costs.
Legal Topics
Specific Devise, Ademption, Wills, Codicil, Contract for Sale of Land, Republishing and Confirmation of Wills, Statutory Interpretation (wills Acts), Doctrine of Conversion, Moratorium Legislation Effect
Succession Law Wills and Estates Property Law Specific Devise Ademption Wills Codicil Contract for Sale of Land +4 more

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Parties

Roy Gilbert Fairweather

Appellant; Defendant; Son of Testator; Purchaser

Walter Richard Fairweather

Respondent; Testator; Estate

Walter Richard Fairweather (son of testator)

Respondent; Defendant

Trevor Stanley Fairweather

Respondent; Nephew; Defendant

Ailsa Joan Gallie

Respondent; Niece; Defendant

Clyde Walter Fairweather

Respondent; Nephew; Defendant

Telford Graham Gilder

Executor; Respondent; Plaintiff

Amelia Louisa Hurley

Respondent; Daughter; Defendant

Gladys Airam Crocker

Respondent; Daughter; Defendant

Procedural Posture

Appeal From a Judgment on Originating Summons / High Court of Australia, on Appeal From Supreme Court of NSW

Legal Issues

  1. 1 Whether the devise of Birrell Court to Roy Gilbert Fairweather was revoked (adeemed) by the contract of sale made by the testator with Roy after the date of the will;
  2. 2 Whether, if not revoked, Roy was indebted to the estate for arrears of purchase money and interest under the contract at the testator's death;
  3. 3 Whether confirmation of the will by codicils republishes the specific devise after sale;

Ratio Decidendi

The devise of Birrell Court to Roy Gilbert Fairweather failed because, by contracting to sell the property to Roy after the date of the will, the subject-matter of the specific devise was adeemed. Confirmation of the will by codicils did not revive the devise, as ademption by the testator's voluntary act removed the property from the operation of the will. At the testator's death, he retained only an interest in proceeds of sale, and the devise could not operate on the property as land. Moratorium legislation did not alter the principles of ademption or justify treating the confirmation by codicil as effecting a different disposition.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed.
  • Appellant to pay costs of the appeal.