I have posted before about making sure a will is clearly drafted to ensure that your wishes can be swiftly carried out. If your Will is not clear your executors may need to seek directions from the Court, which can add time and expense to an already difficult time.
The deceased, Gerhard Frey, operated a cattle farm in East Munglinup, some 600km south-east of Perth. Gerhard went to his solicitor and instructed him to make a Will leaving his farm including all plant and machinery thereon to his cousin Wolfgang if he survives me for a period of twenty-eight (28) days but if he does not then equally among those of his children who survive me for a period of twenty-eight (28) days and attain the age of eighteen (18) years.
When he died, Gerhard left other substantial assets, including 512 cattle with a value of over $236,000. The net value of Mr Frey’s estate was in excess of $3.5 million.
Gerhard had for many years run cattle on the farm as he grew older he became less able to maintain the property and actually run an effective farming operation. After his death due to overstocking and lack of feed there was a concern for the welfare of the animals and it was necessary to dispose of the cattle with some haste. However Gerhard made no mention of the cattle or the farming business in his will.
Wolfgang sought clarification regarding the meaning of “all plant and machinery thereon or any interest I have in the said real and personal property at my death …’ did it include:
(a) the deceased’s cattle (now proceeds of their sale) that were situated on the said farm property at the date of death?
(b) money in Gerhard’ Cheque Account at the date of death;
(c) money recovered from the provider of pre-paid, but undelivered, superphosphate; and
(d) money found at the farm property prior to distribution and retained by him?
If the answer to any of questions is ‘No’, do those assets form part of the residuary estate the Will?
Wolfgang believed the ‘real and personal property’ was a reference to the farm as a working farm and included the cattle, the cash in the Commonwealth Bank account and money refundable from prepayment for superphosphate as fertiliser. As discussed previously the overriding principle applied by the court is that a Will is to be construed so as to give effect to the Will maker’s written intentions. The executor believed that the will was not ambiguous.
The Court agreed with the executor that the Will was not ambiguous. The gift to Wolfgang was the gift of the farmland and the ‘plant and machinery’, not the farming business as a whole. Using the plain and natural meaning of the words the phrase ‘plant and machinery’ would not include livestock. Similarly the money found on the farm, cannot be defined as plant and equipment and is therefore part of the residuary estate.
The fact that Gerhard left Wolfgang his cattle farm and the plant and machinery needed to work his cattle farm, but not the actual cattle or the business may seem odd however the Court noted there was no mention of the cattle or the farming business in any part of the will and so there was nothing to suggest that Mr Frey intended to give Wolfgang a “working farm”.
heirs & successes 