Share farming & Proprietary estoppel

The fundamental purpose of equitable estoppel is to protect a person from acting to their detriment by preventing the promisor from resiling from their promise or representation; proprietary estoppel applies where a person induces another to adopt an assumption or expectation that the other has or will obtain an interest in the first person’s property, and on the basis of this assumption the other person alters their position or acts to their detriment.

Proprietary estoppel

The two types of proprietary estoppel are:

estoppel by encouragement -where a person relies upon express promises or representations that they will obtain an interest in land, and

estoppel by acquiescence – where a person improves land in the mistaken assumption that they have an interest in the land, and the owner of the land who is aware of the mistake does nothing to dispel this assumption.


David Stone and Harry Kramer entered into an oral share farming agreement in 1975 that David would grow crops and maintain a farming property in Colo; Harry would pay all operating costs except the costs of fuel which would be shared. David would live rent free in one of the houses on the Colo Property, be paid a retainer of $600 per quarter and receive half the gross proceeds from the sale of produce and cattle.

In the early 1980s Harry told David that if he continued with the Share Farming Agreement and with management of the farm he would be left a life interest in the Colo Property in Harry’s will (the First Succession Plan).

In 1987 or 1988 Harry told David that he and Leonie had agreed that He would leave the Colo Property to her in his will, but that she would then leave the Colo Property to David (the Second Succession Plan) if he continued with the Share Farming Agreement and with management of the farm.

Harry died in 1988 Leonie as executor and beneficiary of his estate was obliged to adhere to the Share Farming Agreement, and the First and Second Succession Plans.

Following Harry’s death, Leonie told David that if he continued with the Share Farming Agreement and with management of the farm he would inherit the Colo Property together with $200000.00 (the Third Succession Plan). Leonie died in April 2016.However in her will, made on 11 November 2011 Leonie left the farm to her daughter Hilary and $200,000 to David.

The proceedings

David commenced proceedings against the executors of Leonie’s estate submitting that he had continued with the share farming agreement, and undertook additional tasks on the Colo Property, in the expectation that Leonie would bequeath the Colo property to him, instead of following a different occupation that would have provided a higher income and greater provision for his old age.

The decision

The Court was satisfied that David acted on the faith of that assurance to his detriment by continuing the farming operation on the Colo Property for about 23 years thereafter in the belief that he would inherit that property under Leonie’s will.

The court inferred from an analysis of David’s income that in the period of 1976 to 2003 he had earned roughly one third of the average annual male income.

Consequently, David was entitled to appropriate equitable relief to relieve him of the effect of Leonie’s unconscionable conduct not to have left the Farm to David in her will.

The Musician, the Manager – Administrator Pendente Lite

A Court appoints an administrator pendente lite to impartially manage and preserve a deceased estate for the benefit of those persons who may ultimately be found to be entitled to it.

Section 32 of the Administration and Probate Act (NT) provides that pending any action concerning the validity of a will, obtaining a grant of probate or administration, the Court may appoint a person as administrator of the estate with such powers as the Court thinks fit.

The Will

G died on 25 July 2017, he had prepared a document that he referred to as a will in 2015. The document did not name an executor, G was blind, could not read, or write his signature. On the document below G’s printed name is what appears to be a diagonal line. The Wills Act 2000 (NT), provides that a signature can be a mark if it is placed on the document by the will maker with a view to authenticating it as their will.

Three witnesses signed the document, the first signed below the words “Witness”, the next beneath the words “Mark T Grose”; a third next to a handwritten notation, stating to have witnessed the above being read out and understood. A video recording was made showing that the witnesses were present when G signed the will.

The Court accepted that G had signed the will and it was witnessed by three people.

The application

As the document did not appoint an executor, Mark Grose (the applicant) commenced an application for administration of the will under s 33 of the Administration and Probate Act 1969 (NT).

The will did not contain a residuary provision or make any provision for disposing of assets other than “my income”. Personal property including IP in the recordings made by G does not seem to have been dealt with in the will.

Similarly the balance of G’s bank account/s at the date of death was not dealt with by the will. Therefore a partial intestacy may result depending on what assets the deceased owned and precisely what was meant by “my income”.

Partial intestacy

A partial intestacy occurs where a will distributes only part of a deceased’s estate with the part of the estate not disposed of by the will divided according to the rules of intestacy.

In order to form a view as to the extent of the partial intestacy, the court must ascertain the assets held by the deceased at the date of death – including the type and value of personal property and the balance of any bank accounts. Similarly G’s spouse and de facto spouse had to be served with notice of the application for administration.

The applicant’s affidavit of assets and liabilities set out “all the assets and liabilities of the deceased of which at the date of swearing this affidavit I am aware” and not the assets and liabilities of the estate as at the date of death.

As G was married (though separated) at the time of his death, and also had a de-facto spouse, a partial intestacy would mean that other persons could be entitled to some of the proceeds of the estate under s66 of the Administration and Probate Act both G’s spouse and de facto spouse had to be served with all appropriate notice of the application.

Rule against perpetuities

The rule against perpetuities provides that a trust (which includes a trust created by a will) is invalid unless the property the subject of the trust is certain to vest within the perpetuity period (lifetime plus 21 years or 80 years) depending on what is specified in the instrument creating the trust.

Income from the deceased’s intellectual property was left to G’s daughter and foundation without making provision for the intellectual property to vest in anyone or specifying a perpetuity period. Both of which appeared to infringe the rule against perpetuities that would void the bequest to the foundation and his daughter, depending on the construction of the bequest and the meaning of “my income” in the will.

Intermeddling in the estate

The applicant’s evidence showed that he had been intermeddling in the estate and making distributions without the authority of letters of administration; placing him in a situation of conflict of interest if he were to be appointed as an administrator with a duty to enforce that obligation to account. If G’s daughter, wife nor the de facto spouse don’t want to apply it may be preferable for the Public Trustee to administer the estate.

On 27 October 2021, the Registrar contacted the applicant’s solicitors, seeking further information from the applicant; after several follow up emails the Registrar is yet to receive the requested information. In the meantime, the Court was concerned is that the applicant is continuing to intermeddle in the estate without the authority of letters of administration.

The interim decision

The Court did not consider it appropriate to grant letters of administration before the applicant answered the Registrar; appointing the Public Trustee as administrator pendente lite of the estate under s 32 of the Administration and Probate Act (NT). Additionally, the applicant must serve a copy of the application and supporting documents together with the court’s reasons on the deceased’s spouse and de facto spouse by 16 February 2022.

JobSeeker, COVID-19 & the AAT

The Administrative Appeals Tribunals (AAT) review decisions made by government departments by assessing the relevant facts, law and policy to make the legally correct decision or, where there can be more than one correct decision, the preferable decision.

Following the review of a decision by Centrelink’s Authorised Review officer (ARO) or Subject Matter Expert (SME) about social security pensions, benefits and allowances relating to

  • rejection of a claim;
  • suspension or cancellation of a payment;
  • rate of payment;
  • incurring and recovering a debt

the Social Services & Child Support Division of the AAT can conduct a “first review”, where they may affirm, vary ,or set aside the decision and either substitute its own decision; or return it to Centrelink to make a new decision.


A inherited a 50% share of real property from her mother’s estate. Completion of the sale of real property occurred on 26 September 2018; following which A deposited approximately $738000.00 into a bank account (the Deposit).

The Deposit was a financial asset under the asset test for the JobSeeker benefit exceeding the asset limit of $473,750. However, under the federal government’s COVID-19 measures introduced from March to September 2020, the Deposit was deemed an exempt asset under s 1118(1B) of the Act. (the exemption)

Section 1118(2B) provides that for subsection (1B), the exemption may be extended for up to a total period of 24 months from the date of completion of the sale if:

  • i. a person who has sold his or her principal home is making reasonable attempts to purchase, build, repair or renovate another residence; and
  • ii. the person has been making those attempts within a reasonable period after selling the principal home; and
  • iii. the person has experienced delays beyond his or her control in purchasing, building, repairing or renovating the other residence.

A was granted JobSeeker allowance from 26 June 2020, (the date she applied) until the expiration of the exemption on 25 September 2020.

The hearing

In DFRP and Secretary, Department of Social Services (Social services second review) [2021] AATA 5080 A sought to review the decision of the Social Services and Child Support Division of the AAT made on 9 July 2021, which affirmed the decision of Services Australia to cancel A’s JobSeeker payments as her assets exceeded the allowable limit for JobSeeker payments under the Social Services Act 1991 (Cth).

Section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that the prescribed time for lodging an application with the AAT is within 28 days after notice of a decision is given to an Applicant.

A lodged application’s for a Second Review of Decision and an Extension of Time for Making an Application for Review of Decision with the AAT on 9 September 2021.

The application for review of the Decision was required to be lodged with the AAT by 23 August 2021 therefore the application was 17 days out of time.

However, s 29(7) provides that the AAT may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.

Where the respondent is opposed to the extension of time, s 29(10) of the AAT Act requires the AAT to give the parties a reasonable opportunity of presenting their respective cases.

The decision

The AAT held that prescribed time limits should be complied with, however, in this case, given A’s circumstances, the length of the delay, wouldn’t cause prejudice to the Respondent or infringe on the interests of the public.

A provided no evidence that she met s1118(2B). Importantly as the maximum period permitted for the extension is 24 months from the completion of the sale of real property an extension to the exemption under s 1118(2B) would have expired on the day following the cancellation of A’s JobSeeker benefits.

The Folly of the homemade will

It has been said that a residuary clause is the most important clause in a will as it sets out who will inherit the remainder of the deceased’s assets once any debts, funeral expenses, inheritance tax and legacies have been paid, and any of the items specifically bequeathed have been distributed to the appropriate beneficiaries.

A simple will may only have a single clause setting out the residuary beneficiary or beneficiaries.

Importantly where an executor is unwilling or unable to act, then the residuary beneficiaries can apply for a ‘grant of letters of administration with the will annexed’.

An effective residuary clause avoids assets passing under the rules of intestacy, potentially to any family members who are not of the deceased’s choosing; alternatively, if there are no family members, then the assets would pass to the Crown, which many people might also wish to avoid.


Angela Thompson (the deceased) prepared a homemade will dated 3 October 2015 naming her husband Trevor as executor. The deceased estate was valued at approximately $511,000. The main assets of the estate were the Boyup Brook property with an estimated value of $130,000 and the Kelmscott property with an estimated value of $370,000.

Angela had two children, Sarah and Laura. The will provided that the Kelmscott Property

‘not be sold until majority of the residing tenants agree to the action. I wish my children to remain in abode as long as it is deemed reasonable’

However, a later clause ( cl 4) empowered the executor

‘to sell, exchange or otherwise dispose of assets in my estate on such terms as he considers expedient as though he were the absolute beneficial owner’

Additionally, cl 3 made several specific dispositions that appear to be entirely overlooked by cl 4. Although the will had no residuary clause reference was made to the residuary estate in cl 5

Trevor obtained probate of the will on 20 November 2017. The deceased estate was valued at approximately $511,000.

Trevor requested that Sarah and Laura vacate the Kelmscott property; they refused only vacating following the threat of eviction proceedings. After agreeing to vacate the property they consented to its sale.

The proceedings

Trevor made an application under s 45 of the Administration Act 1903 (WA) which provides for executors, and administrators to apply to the Supreme Court to make binding orders on

“..any question arising in respect of any will or administration..”.

Counsel for Sarah and Laura disputed the necessity for Trevor to seek directions from the court. In dismissing this argument the Court held that as the will lacked clarity, Trevor as executor of the estate was acting appropriately in seeking directions.

The decision

The Court held that the questions raised by Trevor are unanswerable with the gift of property in cl 3(b) being void for uncertainty. Additionally, the Court found cl 4 to be so broad that it is simply not possible to give a construction of the will which makes sense; as a consequence of this partial intestacy, Trevors inheritance as the deceased’s spouse was enlarged.

The court was concerned that a good part of a modest estate would be consumed expressing the case

illustrates the folly of persons making homemade wills

and that in the circumstances money spent on having a will professionally drafted is a sound investment.



“Ruinous” Family Provision Claims

In a recent case, the Supreme Court of New South Wales court of appeal observed the ruinous nature of family provision claims by adult siblings. This included the financial burden of the litigation, embittered family relationships, adverse health consequences and the breakdown of relationships due to the pressure of the proceedings. Highlighting the importance of legal practitioners emphasising that their clients fully appreciate the benefits of early mediation at the outset of family provision litigation.

The background

Elaine Jill Bassett (Jill) died on 21 March 2007, William Bassett (Bill) who died on 22 January 2014, aged 85, married in 1953 and had four children – Merilyn, Sue, Geoff and Bruce. Bill and Jill, were farmers who conducted their farming business through a series of rural partnerships.

Geoff was the only child to take up a career as a farmer working alongside his parents over the years. 

In 1998, Bill and Jill gifted Geoff a rural property known as “Pindaroi”- referred to by family members as his “early inheritance”. Pindaroi was sold by Geoff in 2009 for approximately $4.2 million.

At the time of his death, Bill and Geoff had a 50% share in a rural property, known as “The Springs”. In his will Bill left Geoff his share in any farming plant and equipment machinery, implements and livestock however Bill expressly excluded any real estate which he may have owned with Geoff. Merilyn, Sue and Bruce were residuary beneficiaries under both their parents Wills.

The Proceedings

 In 2015, Geoff made a claim under proprietary estoppel to Bill’s 50% interest in The Springs; alternatively, Geoff made a family provision claim from Bill’s Estate. 

 Merilyn and Bruce, as representatives of Jill’s Estate brought a cross-claim to recover money said to have been the subject of maladministration of Jill’s estate against Bill’s Estate and Geoff as executors of Jill’s Estate. Jill’s Estate had been fully administered well before the commencement of these proceedings and was seen to be

“an attempt to trawl through accounting documents (many years after Jill’s death) in order to see what could be recovered for their ultimate benefit.”

Additionally, Merilyn and Bruce sought indemnity from Bill’s Estate.

Geoff was unsuccessful in the proprietary estoppel claim. However, at first instance, the Court awarded Geoff a family provision of $600,000.  Additionally, as  Merilyn and Bruce had rejected Geoff’s Offer of Compromise on 31 May 2019 they were ordered to pay the costs of Geoff’s estoppel and family provision claims from 1 July 2019 on an indemnity basis. Importantly the Costs decision the court remarked it was outrageous, extraordinary be deplored that the deceased’s estate was worth between $3.5 m and $4,274,518 yet total costs of the parties were in the order of $2.5 to $3 million.

The appeal

Merilyn and Bruce appealed against the award of family provision to Geoff, the rejection of their cross-claim and the costs orders. Sue also sought to appeal from the primary judge’s decision on costs.

In dismissing Geoff’s family provision claim the Court of Appeal held that there was no basis in concluding that adequate provision had not been made for Geoff’s proper maintenance and advancement in life when the court had failed to take into account the “early inheritance”.

The court ordered that Geoff pay the Estate’s costs of the family provision and his estoppel claim until 28 June 2019, and that  Merilyn and Bruce pay Geoff’s costs of the First Cross-Claim on the ordinary basis and not out of the Estate.

In discussing it’s discretion factors the court may consider when deciding the impact of legal costs in assessing the needs and financial circumstances of applicants for family provision orders under the Succession Act.

The court observed that it is doubtful that a “wise and just testator” in whose shoes the Court notionally stands in considering questions of adequate provision for proper maintenance of an eligible applicant, would look favourably upon an adult child whose financial position has been diminished as a result of unsuccessful legal proceedings commenced against their siblings concerning the estate

Revocation, Rectification & International Wills

Section 33(1) of the Succession Act 1981(QLD) enables the court to rectify a will if it is satisfied that it does not carry out the testator’s intentions because-

(a)     a clerical error was made; or

(b) the will does not give effect to the testator’s instructions.”

Having ascertained the testator’s instructions, if there is a discrepancy between the will as it is construed by the court and its effect, an order may be made that the will be remedied so that it reflects the testator’s ‘intentions’.

The background

Michael John Perry instructed an Australian solicitor to draft a Will (“the Australian will”) that was executed on 10 October 2019, which left the residue of his estate after administration to his partner Pathichaya Yotchutuukan and daughter Chayanud.

Clause 1 of  the Australian will provided:

“I hereby revoke all former wills and testamentary dispositions previously made by me and declare this to be my last will and testament.”

However, Michael had made a will that dealt specifically with his property in Thailand on the 13th of September 2018 leaving a condominium to Chayanud with the residue of his estate to Pathichaya – who owned a home that Michael had bought for her.

Additionally, on the 21st of September 2018, Michael made a will that dealt specifically with his UK property providing a life interest in the Perry family home and money in a bank account held on trust for Micheal’s handicapped brother, Barry, with the remainder to go to Michael’s siblings that survive Barry.

In his instructions to his Australian solicitor, Micheal listed only his Australian assets and, made no mention of his UK and Thai assets. However now that Michael is deceased, it would appear that he did not intend to revoke the wills relating to the assets he held in the United Kingdom and Thailand.


The unintended effect of the Australian will is the revocation of the UK and Thai wills, resulting in a material change to the intended disposition of the deceased’s international assets; more concerning is that it would deprive Barry of his life estate and financial support. Additionally, it would deprive his siblings in due course of their interest in their family’s home.

There is no evidence Micheal instructed that his UK and Thai wills should be revoked. Micheal’s solicitor did not correct his lay impression that his Australian will would only revoke his earlier Australian will because she was unaware of the assets subject to the UK and Thai wills.

It is clear that in making the Australian will, the deceased intended that the UK and Thai wills would remain in place to regulate the distribution of his property in the United Kingdom and Thailand.

Court order

Michael’s actual intention that his Australian will would not affect his UK and Thai wills construed in light of his lay misconception and unbeknown to the lawyer drafting the revocation clause did not give effect to those instructions. Therefore the court was satisfied the will did not carry out the testator’s intentions because it did not give effect to his instructions.

The Court ordered the will of Michael John Perry of 10 October 2019 be rectified by adding the words “except for my wills of 13 September 2018 and 21 September 2018” to cl 1 following the words “previously made by me”.

Squatters Rights & Vacant land

In New South Wales s27 of the Limitation Act 1969 (NSW) provides for a claim of adverse possession – colloquially known as ‘squatters’ rights’ – allowing someone to legally take ownership of land they have occupied exclusively for at least 12 years

The claim must be sufficient to extinguish the legal owner’s title — and must be

“open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”.

Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 per Bowen CJ.

The Plaintiffs

Australian Retirement Holdings Pty Ltd (”the plaintiff”) is the latest proprietor of a retirement village on land at Gilead having occupied land situated at 72 Glendower Street, since 4 November 2013 although construction commenced on the land in 2006.

The plaintiff sought to establish that it and its predecessors in title exercised exclusive possession over the land for a continuous period of 12 years and that the acts that constituted possession of the land were done to enjoy that possession.

The plaintiff’s submitted that since 2013, it had cleared vegetation and weeds, obtained approval from the local council to construct roads for construction access, and located skip bins for the household waste of residents of the retirement village on the land. Additionally, an entrance gate was constructed which the plaintiffs kept locked unless construction was taking place. In 2019, the plaintiff’s hired a security company to patrol the road and property.

In 2019, Tracey Higgins (the first defendant) became aware that the land remained in the name of Arthur and Monica Pritchard; She sent a letter requesting the plaintiffs cease and desist using the land. After receiving no response, she affixed a sign on the property stating “Private. Keep Out.” with details of her lawyer. The plaintiff responded by commencing legal action claiming adverse possession.

The defendants

The first defendant is the administrator of the estate of her grandmother, Monica Pritchard. Monica and her husband, Arthur, who predeceased her, are recorded as the registered owners of the land which shares a border with the land owned by the plaintiff.

Arthur died in February 1990, and Monica died in April 1993. At the date of her death, Monica was the legal owner of the land which was bequeathed to her son, James, and the first defendant.

James was named executor, but died without fully administering Monica’s estate; including the transmission of title to him as legal personal representative of the estate to distribute it under Monica’s will.

Where a sole executor dies before completing administration, the executor’s executor will become the executor of the original estate and the second estate. This common law position is called the “chain of representation” and goes back over several centuries. Following James death, his wife inherited his estate which included his interest in the land.

The first defendant obtained a grant of letters of administration of the deceased’s estate in April 2020. Subject to the validity of the plaintiffs claim the first defendant is entitled to the transmission of the land as registered proprietor as the administrator of the estate of her grandmother.

The plaintiff’s evidence of exclusive possession was disputed by several members of the local community. The land had been in frequent use for recreational purposes with the residents unable to recall a gate being in place, or if it was, it had remained open; aside from the gate, the boundary fences were in poor repair or, non-existent. Additionally, there was evidence of established trails on the land.

The decision

The Court held that due to the sporadic nature of the development’s construction and proof of a different road being used for access in earlier years the plaintiff’s had failed to demonstrate that it and its predecessors had exercised adverse possession for the required 12-year period ordering the plaintiff to pay the defendants legal costs.

Importantly the court stipulated that the plaintiff was not required to relinquish possession until it applies for an order granting easements over the land enabling it to complete construction, and for any other potential purposes related to the safety of the retirement villages residents.

Banks v Goodfellow – the Fourth Limb

At common law there are at least three different types of capacity best illustrated in the context of making a will:

legal capacity – being 18 years or older (although there are exceptions).

physical capacity- the testator must sign the will in the presence of two competent witnesses (although, there are exceptions.)and

mental capacity – known as ‘testamentary capacity’.

Mental Capacity

The Marquess of Winchester’s Case in 1572 held that a valid will can only be made by a person of sound mind; however, the test for mental capacity for a will was settled in Banks v Goodfellow in 1870 where a testator must

understand the nature of making a Will and its effects;

understand the extent of the property of which he is disposing;

be able to comprehend and appreciate the claims to which they ought to give effect; and

that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusions shall influence his will in disposing his property and bring about a disposal of it which, if the mind had been sound, would not have been made

The fourth limb

Clitheroe v Bond [2021] EWHC 1102 (Ch) is a case about testamentary capacity that turns on the fourth limb of the test.

Following the death of one of her daughters the testatrix developed a severe grief disorder giving rise to several beliefs about her surviving daughter that turned the testatrix against her.

The testatrix believed the surviving daughter:

  • was a shopaholic and that she would fritter away any inheritance she received – there was little evidence to support this assertion; and
  • had lied about the sexual abuse she had suffered at the hands of her own father when she was young, even though there was overwhelming evidence that the abuse had taken place.

As a result of these beliefs, the testatrix in her penultimate will largely excluded her surviving daughter and completely cut her out of her final will, leaving the bulk of her estate to her son.

The decision

At first instance, the court held that the final two wills were invalid as the testatrix’s grief disorder had resulted in delusions against her surviving daughter.

The appeal

 On appeal the son argued that testamentary capacity should be determined by reference to the Mental Capacity Act 2005 (“The Act”) rather than the test in Banks v Goodfellow.

The High Court held that the trial had proceeded on the basis that both parties agreed that Banks v Goodfellow was the correct test of testamentary capacity. Further, there wasn’t a sufficiently good reason to depart from well-established case law; as the estate was worth £400000 it would be cost disproportionate and against the interests of justice to permit this ground of appeal.


The son argued the test for delusions was ‘misapplied’ at trial; additionally, the testamentary capacity test was either misapplied, and that findings on delusions were made that were not open to the court to make, or both.

Unlike the test for testamentary capacity, there are varying definitions for delusions in case law. The Court held that a false belief needs to be irrational and fixed in nature. To assess if someone was suffering from a ‘fixed’ delusion the Court was required to,

“take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.”

The High Court affirmed that there was clear evidence that the testatrix held a fixed belief, formed without evidential basis of the and maintained in the face of contrary evidence.

It was held that the parties should attempt to reach an agreement, via mediation or otherwise, to avoid a further hearing.

Aboriginal Objects, Defect of Title & the Court of Appeal

The appellants, (the vendors), and the first to fourth respondents, (the purchasers), entered into a contract for the sale of land in Byron Bay in July 2015. The fifth respondent, guaranteed the performance of the purchasers under the contract.

Although the land has total size of 30 acres, zoning constraints limit its commercial development potential to a lot of around 7 acres situated on which was a memorial stone and plaque placed by the NSW Government as part of the Australian Bicentenary celebrations in 1988 referring to a nearby burial site of two Aboriginal elders. Whether any Aboriginal remains were buried on the land, and the precise location of any such remains, was not known.

The special conditions of the contract provided that completion of the sale was subject to preconditions; and if completion did not occur “by the completion date, without default by the vendor” the purchasers were liable to pay default interest.

Between July and September 2015, the purchasers raised a number of objections and requisitions on the basis that Aboriginal remains located on the land being “Aboriginal objects” within the meaning of the National Parks and Wildlife Act 1974 (NSW), constituted a defect in the vendors’ title.

The vendors sought further information from the purchasers about their claim that there were any Aboriginal objects on or in the land nominating 5 August 2015 as the date for completion.

Settlement did not take place on that date. The vendors then issued two notices to complete and demanded payment of default interest calculated from 5 August 2015.

In response, the purchasers gave a notice to perform challenging the validity of the vendors’ notices and requiring the vendors to submit corrected settlement figures and making time of the essence. The vendors did not comply with the purchasers’ notice to perform.

On 25 September 2015, the purchasersw gave notice purporting to terminate the contract for repudiation. On 6 October 2015, the vendors purported to terminate the contract on the basis that the purchasers’ notice of termination amounted to repudiation of the contract

At first instance the court held the purchasers were entitled to terminate the contract on the following grounds: the vendors had repudiated the contract by failing to adequately address the purchasers’ requisition; by erroneously insisting on payment of default interest. Additionally the presence of Aboriginal objects on the land entitled the purchasers to terminate the contract

The Court of Appeal in allowing the vendors’ appeal held that the purchasers had repudiated the contract. The vendors had not displayed an intention to no longer be bound by the contract through their response to the purchasers’ requisitions. As the requisitions, were invalid and based on the “plausible contention” that there were Aboriginal objects on the land, they were sufficient to address the requisition.

There were no Aboriginal objects on the land, and in light of the development constraints already affecting the land, even if the memorial stone and plaque were an “Aboriginal object” their presence was not a material or substantial matter giving the purchasers the right to terminate.

Additionally the vendors had a reasonable basis for maintaining their claim for default interest and did not erroneously insist on completion in the face of a clear explanation of the true position
Having found that the purchasers were not entitled to terminate the contract, the Court held that the purchasers had repudiated the contract and gave judgment for the vendors.

The Court determined that the purchasers were not entitled to a return of their deposit under s 55 of the Conveyancing Act 1919 (NSW) as they had not demonstrated any injustice. The fifth respondent, as guarantor of the purchasers’ performance under the contract, was also liable to the vendors.

Great Grand Children & the Armchair Principle

Charlotte Brown (the plaintiff) is the executor of Betty Hunt’s (the deceased) estate. The deceased died on 22 June 2018 leaving a Will (“the Will”) dated 6 October 2014 naming her grandson Mathew Hunt (the defendant) as executor.

Before making the Will, the defendant had one child Nathaniel and told the deceased that he did not intend to have any more children.  However, following the deceased’s death the defendant re-partnered and has since fathered a daughter, Matilda, with his new partner.

Clause 9 of the Will stated:

I give the sum of one million dollars ($1,000,000) to such biological child or children of my said grandson Matthew Alec Hunt (being my great-grandchild or great-grandchildren) as survive me and if more than one in equal shares upon attaining the age of thirty (30) years.

The defendant is:

(a) the residuary beneficiary in the deceased’s Will;

(b) the deceased’s only biological grandchild;

(c) the plaintiff’s son;

(d)       Nathanial Hunt’s father. Nathanial Hunt was born on 12 November 2012 and is the eldest of the deceased’s great-grandchildren.

(e)        Matilda Charlotte Hunt’s father. Matilda Hunt was born on 15 November 2020, and is the deceased’s second and only other living great-grandchild; and

(f) the only person who can produce the deceased’s biological great-grandchildren.

The Proceedings

The defendant renounced his appointment as executor. Probate of the Will was granted to the plaintiff as substitute executor on 27 August 2018.

Following the distribution of bequests, transfer of real property and payment of expenses, the balance of the estate funds held in trust by the plaintiff’s solicitor as at 17 September 2021 was $1,086,736.15.

The plaintiff was granted leave to file an amended originating motion seeking the Court’s answers in relation to the construction of clause 9 of the Will.

In interpreting clause 9 the Court must take into account the words of the clause, the Will as a whole, and the surrounding circumstances of its execution. Importantly the rigid application of a uniform meaning throughout the Will may risk distorting the testator’s intention in respect of some relationships.

Construction of the Will

 The Court held that on its proper construction the class of beneficiary that cl 9 applies to includes all great-grandchildren of the deceased born before the first great-grandchild reaches the age of 30 years. That class of beneficiaries closes when the eldest great-grandchild reaches the age of 30 years. As a corollary the trust monies will be distributed to all great-grandchildren then alive at that time regardless of their age.

Amending the Trust

The plaintiff sought a variation to the trust established by by clause 9 of the Will to reduce

‘the age of the beneficiaries who are born at the time of this application’. 

It was submitted that the deceased was concerned that the beneficiaries of her estate had gained a level of maturity before any distribution was made. The court held that by reducing the age to 25 balanced the deceased’s testamentary intentions and the beneficiaries. Critically, it will reduce the extent to which the funds are depleted through trust management fees.

The Court was obliged to consider all persons who cannot consent to the variation which includes Nathanial and Matilda and any unborn children of the defendant who may be born prior the eldest great-grandchild turning 30.

In considering the impact on any unborn great-grandchildren, the court considered the low likelihood of their coming into existence together with uncertainty of the defendant’s present intention about fathering further children.

Under s 63A(1)(a) of the Trustee Act 1958 (Vic) the Court approved a variation to the trust established by clause 9 of the Will substituting the age of 25 years for the age of 30 years.

Appointing a Professional Trustee

Under the current terms of the Will, the plaintiff (now 70 years’ old) is required to manage the estate for the benefit of the deceased’s great-grandchildren until the oldest turns 30. The Court accepted in the interests of the beneficiaries, the security, investment and management of the trust monies, and the efficient, sound and faithful exercise of trustees powers, it is appropriate that the plaintiff be discharged from her role as trustee, and replaced by a professional trustee under s 48 of the Trustee Act 1958 (Vic).


The Court accepted that due to the inadequate framing of the questions in the summons and general preparation of the case by the plaintiff unnecessary costs have been incurred by the defendant. Therefore the defendant should have his costs paid from the estate on an indemnity basis. The court accepted that as the plaintiff’s application was necessary and appropriate that her costs be paid from the estate on a standard basis.