PUBLISHED JUNE 2020
Thomas Marlow made a homemade will in 2002 with the following: “I give the residue of my estate to MY WIFE VIOLET MARLOW AND TO STAY AT [Blacktown property] TILL SHE DIES THE HOUSE OR BELONGINGS NOT TO BE SOLD UNTIL THE DEATH OF MY WIFE VIOLET MARLOW ALSO ALL MONEY IN BANK GOES TO MY WIFE But if he/she/they predecease me then I give the residue of the estate to” his three children from an earlier marriage.
Marlow died in 2016 survived by Violet. Shortly after his death, Violet went to Queensland for four months. After she returned, she had a fall and was injured. She left the Blacktown property and moved in with her niece in Queensland. Probate was granted to the executors who had been Marlow’s neighbours of many years. The executors transferred the Blacktown property to the three children because that is what they understood the deceased wanted. The children entered into a contract for sale of the property. Violet lodged a caveat and bought proceedings for the construction of the will. She argued that the will gave her the Blacktown property whilst the children argued that it conferred a lesser interest which she had abandoned.
The Court averted to the ‘logical inconsistency between the deceased’s giving the residue of his estate to [Violet], and then separately making a statement that the Blacktown property was not to be sold until [Violet’s] death, and she had a right to stay there until she died. The gift of the residue would make [Violet] absolutely entitled to the Blacktown property, so the additional words would not have any effect. That position creates a choice as to whether the deceased actually intended to make an absolute gift of residue to [Violet], with his next gift being ineffective or meaningless, or whether all that he intended to do was create some right in [Violet] for her life in respect of the Blacktown property’ (Marlow v Croft  NSWSC 251 (Robb J) at  – ).
Because Marlow had not disposed of a remainder interest, the second choice required a conclusion that ‘the deceased intended the remainder after the end of [Violet’s] life interest to be dealt with on intestacy (at ). The Court concluded ‘the true effect of… the deceased’s will was, in the events that have happened, to make an absolute gift of the Blacktown property to’ Violet. This conclusion is consistent with constructions where there is no gift of remainder interest, especially if it’s a homemade will. (Another example is Re Islik; Kimmer v Kaynak  VSC 59.) However, the Court observed that the conclusion left open other issues such as the priority between competing equitable interests (being Violet and the purchaser), whether Violet’s conduct had amounted to estoppel by encouragement, and whether her having made a ‘mirror’ will to Marlow evidenced an unexpressed contract for mutual wills. Further, the executors’ action may have given rise to personal liability.
The advice in this article is general in nature and you should consult your solicitor for specific advice.