Watson v Ralph [1982] HCA 35

High Court of Australia Gibbs C.J. Mason, Aickin, Wilson and Brennan JJ. Watson v Ralph [1982] HCA 35

ORDER Appeal dismissed. Order that the costs of the parties be paid out of the estate.

Cur. adv. vult.

The following written judgments were delivered:—

June 8 Gibbs C.J.

The appellants are the daughters of Lilian Ralph deceased ("the testatrix") who died on 23 September 1970, survived by her husband, three sons (the present respondents) and two daughters (the appellants), and having made, on 13 February 1958, her last will and testament. At the date of the will, and at the date of the death, the testatrix and her husband were registered as the proprietors of an estate in fee simple in land at Whittlesea in the State of Victoria. The testatrix had for many years conducted in partnership with her husband a farm on the land, sharing profits and losses equally. At the date of her death, the property of the partnership comprised the land and improvements thereon, together with money in a bank, cash on hand, stock, plant, machinery, equipment and furniture. The partnership property was of considerable value, and the testatrix left other assets also of considerable value. The husband of the testatrix died in 1977 and the appellants, as plaintiffs, later commenced proceedings in the Supreme Court of Victoria seeking the determination upon the proper construction of the will of the testatrix of certain questions as to the disposition of her interest in the partnership.

The dispositive provisions of the will, which are contained in cl. 3, commence as follows:

I give devise and bequeath unto my Trustees the whole of my real and personal estate of which I shall die possessed upon trust (subject to the provisions hereinafter contained as to my freehold property at Whittlesea and the plant and other items and moneys associated therewith hereinafter mentioned) to sell call in collect and convert the same into money at such time or times and in such manner and upon such terms and conditions as to title credit or otherwise as my Trustees shall think fit Then, after conferring certain powers on the trustees, including a power to postpone sale and conversion, the clause continues: and I direct my Trustees out of the proceeds of such sale calling in and conversion to pay all my just debts funeral and testamentary expenses and all probate estate death and/or succession duties payable in respect of my estate or any part thereof and to stand possessed of the net proceeds thereof upon trust to invest the same in any of the securities hereinafter authorized and to hold the same and the securities representing the same and the part (if any) of my estate for the time being remaining unconverted (hereinafter called "my residuary estate") upon trust to pay the income arising therefrom to my said husband during his lifetime and subject thereto to stand possessed of my residuary estate as to both capital and income upon trust if at the time of my death I shall be the owner of the freehold property situate at Whittlesea in the State of Victoria owned at the date hereof jointly by my said husband and myself to transfer and/or to convey the same and any freehold property held in conjunction therewith to such of my daughters corinne furnell and Judith Watson as shall be living at the death of the survivor of my said husband and myself as tenants in common in equal shares and to transfer and/or hand over to them the whole of the plant machinery implements stock and other items of personal property of whatsoever kind which shall be at or on the said property at the date of my death or which shall have been purchased or acquired either in addition to or in substitution for such items between the date of my death and the date of the death of my said husband and also all moneys upon deposit or in any bank or wherever the same shall be (if its identity can be established) deposited or banked or utilized or in any way appropriated for use in connection with such property and the conduct thereof and subject thereto my Trustees shall stand possessed of my residuary estate upon trust as to both capital and income for such of my sons as shall be living at the death of the survivor of my said husband and myself as tenants in common in equal shares.