IN THE MATTER of Rule 54.02 of the General Rules of Procedure in Civil Proceedings 2005 v CHRISTINE MARKS

Supreme Court of Victoria|2009-05-08|Before: FORREST J

WILLS - Construction - s 34 Wills Act - Specific and general legacies - Application of principle of ademption to specific legacies - Income on legacies - Applicable interest rate.

1 Violet Blake died at 102 years of age on 14 October 2007. She was a widow with no children. She executed her last Will and Testament on 19 March 2004 and subsequently executed two codicils, one on 19 August 2005 and the other on 24 February 2007.

2 Three substantive issues have now arisen in relation to the Will and the codicils.

3 First, as to the construction of a purported gift of the proceeds of the sale of Mrs Blake's interest in a unit in a retirement village. Subsequent to the execution of the Will, Mrs Blake's health declined and she moved to alternative accommodation in a nursing home; a question arises as to whether the accommodation bond refund subsequent to her death is covered by the original testamentary provision.

4 Secondly, whether a purported gift of the funds remaining in a number of IOOF accounts at the time of Mrs Blake's death and held in her name fall within the terms of the Will.

5 Thirdly, assuming an affirmative answer to the second question, what was the nature of that gift and whether the amounts outstanding in the IOOF accounts been adeemed by the withdrawal of a significant portion of those funds by the executors, who at that time were acting under a Power of Attorney from Mrs Blake.

6 In addition, the executors, her solicitor Mrs Christine Marks and Ms Margaret Foxton, have posed several questions relating to payment of income or interest on certain gifts made by Mrs Blake.

7 The executors also seek, pursuant to s 31 of the Wills Act 1997 (Vic), rectification of the Will. As will be seen, it is unnecessary for any part of the Will to be rectified.

8 Mrs Blake's Will provides for a number of gifts and legacies. Of significance to the determination of the questions are the following clauses.

9 Clause 4 of the Will gives to Francis Chan and Agatha Chan -

"(i) My camphorwood box and its contents;

(ii) All moneys standing to my credit in my IOOF account number 236299 as at the date of my death together with any interest and bonuses that accrue on this account from the date of my death."

In fact, no such account number existed. However, 236299 is Mrs Blake's investor number with IOOF, which had 11 accounts linked to that investor number.

10 Clause 9 provides for six gifts to Ms Margaret Foxton, who held a Power of Attorney and was an executor of the estate. The first five are gifts of identified chattels. The gift in cl 9(a)(vi) is in the following terms:

"The proceeds of the sale of my interest in the said unit 182 at Cumberland View Retirement Village or any other accommodation facility occupied by me as my residence at my death".

Mrs Blake did not have a proprietary interest in Unit 182. There was no "sale" in the true legal sense. Rather, she held a licence to occupy the unit as she did when she was a resident of the nursing home. A proportion of her initial payment was refunded rather than there being any true proceeds of sale.

11 Both Ms Foxton and the Chans were, in addition to the gifts, given general legacies of $100,000, as were 13 others in varying amounts:

By clauses 11(g), (h) and (i), relatives of Mrs Blake were provided with general legacies payable to them upon attaining the age of 25 years. Those moneys were to be held on trust for them until they attained that age, at which time the capital and accumulated income was to be paid to each such relative.

The beneficiaries of the balance of the residue after the gifts and the residuary legacies were a number of charitable and cultural institutions in Victoria.

12 On 16 November 2008, the originating motion came on before me in the Practice Court. I directed that notice be given to a number of the beneficiaries who were likely to be affected by any order the Court may make. None of those persons who were given notice have elected to join in the proceeding.

13 On 10 December 2008, Ms Englefield, counsel for the executors, appeared and I heard argument concerning the first issue, the refund of the nursing home bond. In relation to the third issue, the ademption point, I considered it necessary to have further evidence, if possible, as to the capacity of Mrs Blake at the time that the executors used much of the IOOF funds for her accommodation and, effectively, eliminated the substantive entitlement of the Chans to that gift if the principle of ademption applied.

14 On 30 January 2009 I heard further submissions from Ms Englefield in relation to the question of ademption and the further evidence was adduced as to Mrs Blake's capacity. At this time, the second issue, the need for construction of the IOOF gift, became apparent, further inquiries having been made as to the detail of the IOOF accounts.

15 I should, at this point, acknowledge my gratitude to Ms Englefield for her assistance and diligence in the preparation of submissions both oral and written which have greatly assisted me in the determination of these issues.

16 In January 1983, Mrs Blake and her husband took up residence at the Cumberland View Retirement Village. To obtain residence, it was necessary to enter into a purchase agreement and an occupation agreement.[1] Neither agreement gave the Blakes a proprietary right in the unit. Rather, they were given a licence to occupy the unit. The occupation agreement provided that the retirement village would retain the purchase price for the duration of their residence and receive all income on its investment. Whilst the occupation agreement was in force, the Blakes, as licensees, were obliged to pay a monthly charge and a deferred management fee.

17 Notwithstanding the nature of the Blakes' interest, both the purchase agreement and the occupation agreement used terms consistent with the existence of a proprietary interest. For example, the payment akin to an in-going contribution[2] as later defined in the Retirement Villages Act 1986 was described as the purchase price. Under the occupation agreement, there is reference in schedules E and F respectively to "Procedure for sale" and "Disposal of proceeds of sale". The proceeds of sale were to be calculated by reference to a formula. Upon termination, the retirement village was entitled to "sell" the right to occupy the unit and was able to retain any capital growth with all costs deducted from the amount to be refunded to the terminating licensee.

18 From January 1983 to 8 November 2004, Mrs Blake resided at the unit in the retirement village. Her husband died in 1998.

19 On 19 March 2004, Mrs Blake granted an enduring Power of Attorney to Mrs Marks and Ms Foxton. On that day, she executed her Will and named both Mrs Marks and Ms Foxton as her executors.

20 At the time of making the Will, part of the funds on deposit included moneys held in 11 separate IOOF accounts in the deceased's name with investor number 236299. As at 30 June 2004, $133,263.74 was held in total in the 11 separate accounts.

21 During 2004, Mrs Blake's physical and mental condition deteriorated. She suffered confusion and agitation and was hospitalised. On 8 November 2004, she moved from the retirement village to the Brighton Gardens Nursing Home, which required an accommodation bond of $300,000 to be paid as a condition of entry.

22 Dr Madeline Philip was responsible for her medical care once she entered the retirement village. She reported in early 2005 that:

"Mrs Blake suffers from dementia, in particular has consistent loss of short term memory and is unable to remember events and people ... and is therefore unable to adequately manage her own financial and business affairs."[3]

23 To finance the accommodation bond, Mrs Blake's licence to occupy the unit at the retirement village was disposed of with the "sale proceeds" of $160,062.50 which, apparently in accordance with the agreements, was received in two tranches, the first on 20 June 2005 and the second on 7 February 2006.

24 On 24 June 2005, Mrs Marks and Ms Foxton made a part payment of $188,000 towards the bond required for the nursing home. This was made up of $80,000, being half of the "sale proceeds" from the disposal of the interest in the retirement village, and $108,048.19 withdrawn from four accounts held in Mrs Blake's name with IOOF. Those four accounts were then closed.

25 In December 2005, a unit belonging to Mrs Blake in Coffs Harbour was sold for a net sum of $138,000, which was used to pay the balance of $132,000 outstanding on the nursing home bond.

26 The second payment of the "sale proceeds" from the retirement village was received on 7 February 2006 and applied to Mrs Blake's general needs.

27 On 19 August 2005, Mrs Blake executed a codicil to her Will which provided for an additional gift of $40,000; by a further codicil made 24 February 2007 a gift of $20,000 was made by her.

28 In May 2006, Dr Philip was asked by Mrs Marks to report as to Mrs Blake's condition. She confirmed that Mrs Blake continued to suffer from dementia, with severe short term memory loss and some confusion. She then said:

"I have been requested to give my opinion regarding Mrs Blake's cognitive capacity to make changes to her will. In my opinion Mrs Blake has significant dementia, which is severe enough to interfere with this capacity. To enable her to make any changes to her will I consider she requires a formal of psychogeriatric assessment by a psychiatrist".[4]

29 Mrs Blake died on 14 October 2007. At the date of her death, Mrs Blake had funds on deposit with a number of institutions, including the seven separate accounts with IOOF under investor number 236299, with total funds of $28,245.49.

30 Subsequent to Mrs Blake's death, the nursing home provided an accommodation bond refund of $286,479.19 to the Estate. The other assets of the estate were funds on deposit including the remaining funds in the IOOF accounts.

31 In Perrin v Morgan,[5] Lord Romer said:

"I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the Court is entitled, to use the familiar expression, to sit in the testator's armchair."

32 In Fell v Fell,[6] Isaacs J set out principles in relation to the construction of a Will which, I think, still hold good today. I set out those relevant to the construction of this Will (with citations omitted):

"(2) The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.

(3) If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared.

(4) An inference cannot be made 'that did not necessarily result from all the will taken together'. A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed.

(5) We cannot give effect to any intention which is not expressed or plainly implied in the language of the will. You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication.

(6) If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made.

(7) When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy.

(8) There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity. following the law in this respect (for it is a rule of common sense ...), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which, instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention.

(9) If on reading the will you can see some mistake must have happened, that is a legitimate ground in construing an instrument, because that is a reason derived, not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself."[7]

33 With those principles in mind, I turn to the construction of the terms of the Will in relation to the gifts to Ms Foxton and to the Chans.

34 The terms of this gift are set out at [10]. Mrs Blake clearly intended to confer a significant benefit upon Ms Foxton. She had also provided for a general legacy of $100,000 and desired to direct the "proceeds of sale" of the retirement village unit to Ms Foxton. If Mrs Blake had remained in the retirement village unit, then the reference to proceeds of sale would have been tolerably clear. It referred to those amounts calculated under schedule F "disposal of proceeds of sale" of the occupation agreement. I think it clear that what was intended, absent Mrs Blake leaving the retirement village, was that the money standing to Mrs Blake's credit under her agreement with the retirement village, would have been gifted to Ms Foxton.

35 In my view, the clear intention of Mrs Blake by use of the words "or any other accommodation facility occupied by me as by residence at my death" was to ensure that the gift did not fail in the event of her moving to another facility. The manner in which the bond refund operates under the nursing home agreement was, in general terms, similar to that in which the retirement village proceeds of sale were determined. Both provided for a debt under contract, although with the nursing home arrangement a statutory remedy is also applied.[8] In essence, each agreement provided for the payment of a sum of money to the former occupier after termination of the licence to occupy the retirement village unit or the nursing home respectively. It is not necessary to resort to any analysis of the legal meaning of the "proceeds of sale" as the intention can be clearly gleaned from the whole of the terms of the gift.

36 The executors also made submissions founded on s 36 of the Wills Act 1997 which permits extrinsic evidence to be adduced where a Will is uncertain or ambiguous.[9] Evidence was available as to handwritten notes prepared by the deceased and provided to the solicitor, Mrs Marks. I do not think it is necessary to have recourse to the application of the Wills Act as the intention of Mrs Blake is clear, applying the "armchair" test: Ms Foxton was to have the benefit as a gift of any amount refunded to the Estate by reason of Mrs Blake's death causing her to cease to occupy an accommodation facility.

The gift to the Chans of moneys in the IOOF accounts

37 The terms of clause 4(ii) of the Will are set out at [9]. The problem is, as I have said, that no IOOF account number 236299 exists in the name of Mrs Blake. Rather, the number is her "investor number" as designated by IOOF. The Chans also received $100,000 by way of a general legacy.

38 Ten of the eleven IOOF accounts were opened in December 1983, around the time Mrs Blake and her husband moved into the retirement village. The other account was opened in 1998, when Mr Blake died. Each account has a separate account number.

39 Bearing in mind the principles of construction that I have already set out, the primary task is to identify the intention of Mrs Blake in the context of the terms of the Will as a whole. If one was to treat the identity of the account as being confined only to an account bearing that number, then the gift was meaningless. Mrs Blake did not hold any account bearing that number. The numbers of her accounts bore no resemblance whatsoever to the investor number; the only number to which there is an IOOF reference is that investor number, to which all the IOOF accounts were linked. There is no suggestion in the terms of the Will that Mrs Blake sought to distinguish between one account or another in terms of her gift to the Chans. I think it clear that she was intending to provide a gift to the Chans of the total funds contained in all accounts held by her with IOOF under the investor number.

40 Accordingly, the gift to the Chans is that of all the funds within all accounts held at IOOF and linked to the investor number. I now turn to the question of whether Mrs Blake intended the funds in her IOOF accounts at the time of executing the Will, or at the time of death, to be the subject of the gift. If it was the former, then the principle of ademption will need to be considered.

41 At or about the time of the execution of the Will, an amount of $133,000 was held in the IOOF accounts under investor number 236299. At the time of Mrs Blake's death, she held $28,245 in the IOOF accounts. The differential is explained by the withdrawal by her attorneys, also her executors, of the sum of $108,000, which was applied to the purchase of the nursing home bond.

42 The question that is now posed by the executors is whether the gift to the Chans is the subject of ademption by reason of that diminution of the funds in the IOOF accounts.

43 The gift to the Chans is specific. It identifies a particular and severable asset. [10] Ademption must be of a specific, not a general gift. It occurs where the subject matter of the gift no longer exists at the date of death.[11] Ademption does not occur where the subject matter of the gift has changed in name or form only, yet is substantially the same thing.[12]

44 In Brown v Heffer,[13] the principle of ademption was explained by the High Court as follows:

"Ademption of a specific gift by will occurs where the property the subject of the gift is at the testator's death no longer his to dispose of .... An obvious case of ademption is that in which the testator has completely divested himself of the property in his lifetime so that at his death there is in his estate nothing which even substantially ... answers the words of gift."

45 To determine whether the principle of ademption has application to the gift, two questions must be answered by the Court. First, what is it that has been bequeathed by the specific gift and, secondly, having identified the nature of the gift, does the subject matter of the bequest exist as at the death of the testator.

46 The gift of the IOOF funds to the Chans was that of moneys standing to Mrs Blake's credit "at the time of her death". My initial and, ultimately, concluded view, was that once funds were identified as being within the accounts as a whole, then the terms of the Will were clear. Mrs Blake's intention was to leave to the Chans the amount standing to her credit in the IOOF accounts as at the date of her death. Therefore, no question of ademption arises. However, given the helpful and detailed submissions made by counsel for the executors, it may be of assistance if I explain my reasoning.

47 Section 34 of the Wills Act provides:

"(1) A Will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator.

(2) Sub-section (1) does not apply if a contrary intention appears (whether in the Will or elsewhere)."[14]

48 But, where the gift is of specific property, that presumption may be rebutted:

"If on the other hand, the gift is of specific property, then it is agreed the provision of the Wills Act does not apply, for such a gift is itself regarded as an indication of contrary intention."[15]

"By virtue of s22 of the Wills Act 1958 every will is to be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears by the will. But if there is a specific legacy set out in the will, it is taken, by its reference to the subject-matter existing at the date of the will, to import a contrary intention. ... Such a specific bequest will be adeemed by its subject-matter being disposed of by the testator before death, and its no longer being found to exist at the time of death. This will be brought about, if the thing bequeathed is totally destroyed or changed into something entirely different."

50 The question then is whether, in the circumstances, taking into account both s 34 of the Wills Act and the presumption that may arise from the provision of a specific gift, Mrs Blake's intention was to provide a gift of the funds standing to her credit at the time of death or, alternatively, at the time of the execution of the Will. In the event that it was at the time of the execution of the Will, then it being a specific legacy, the principle of ademption may come into play.

51 In McBride v Hudson, [17] Taylor J said:

"The problem is, of course, one only to be resolved by a close consideration of the circumstances of each particular case and of the precise provisions of the Will".

52 Mrs Blake executed the enduring Power of Attorney on the same day that she made her Will. She had testamentary capacity at that time and I think it can be readily inferred that she intended to enable her attorneys to manage her affairs by having access to the various accounts held in her name, including the IOOF accounts. Mrs Blake's intention was, in my view, clear. She intended to provide a specific gift to the Chans of the balance outstanding to her credit in her IOOF accounts at the time of her death. This was understandable, given that the funds held by her in various accounts, including those in the IOOF accounts, were to be used for her maintenance in her last years. Her executors, as her attorneys pursuant to the enduring Power of Attorney, were entitled to use those funds as they saw fit, particularly given that the funds were applied to ensure that her remaining years were as comfortable as possible.

53 Mrs Blake's express intention is to be contrasted to the facts in McBride v Hudson, Re Grieve and Daniels v Scrivenor where there was no stated intention on the part of the testator that the subject of the gift be treated as that which was in existence at death. For instance, in Daniels v Scrivenor, Gray J said:

"It is clear that the subject matter of this gift was in existence at the date of the Will and the proper inference from the circumstances is that the intact fund was the intended subject of the gift."[18]

54 Here, there is no such inference available. Indeed, to the contrary, the clear words of Mrs Blake and the circumstances in which the Will and the Power of Attorney were executed demonstrate that it was her intention to leave to the Chans the money remaining within the accounts, notwithstanding that the executors, exercising their powers under the enduring Power of Attorney, may have diminished the available funds. The evidence is that the sum remaining at death was $28,245.

55 The principle of ademption has no application given the terms of the Will. However, in passing I note the following issues which would have arisen if I had been required to consider the question of ademption:

(a) determining whether the substantial reduction of the moneys standing in the account amounted to an ademption[19] or whether an ademption only worked upon an extinction of funds within the accounts;[20]

(b) in the event that the reduction of the funds gave rise to ademption, then in circumstances where the testator lacked testamentary capacity at the time of the reduction, and the reduction was effected lawfully by her attorney, does the principle of ademption apply? In this regard there are diverging views of Courts in the United States[21] and that of the United Kingdom.[22] In Australia, single judges have followed the United States approach to the effect that the disposal of the subject matter of a gift in a Will, by attorneys under power at a time when the donor/testator lacks testamentary capacity, does not give rise to ademption.[23]

56 Questions have also been posed by the executors concerning interest and income relevant to a number of the gifts.

57 Clause 11 provides general legacies of specific sums to great nephews and nieces of Mrs Blake to be paid when each turns 25. The rule is that interest on a pecuniary legacy will start to run only at the expiration of one year from the date of the death of the testator and such interest is payable out of the residue.[24] But where a legacy is contingent and payable at a future point of time, it only carries interest from the time at which it vests.[25] That rule may, however, be rebutted in certain circumstances, such as where it can be inferred that the intention of the testator is that the income or interest be paid from the date of death. Here, each of the legacies in clauses 11(g), (h) and (i) provide for "any accumulated income" to be paid to the legatee upon turning 25 years of age. There is no stated starting point for the calculation of such accumulated income. There is, I think, only one tenable inference; the "common sense"[26] interpretation of these legacies is that accumulated income refers to that which has been earned from the date of Mrs Blake's death to the date of payment to the legatee.

58 The gift of the bond refund by clause 9(a)(vi) to Ms Foxton and the moneys standing to the credit of the Chans in IOOF accounts by clause 4(ii) are both specific legacies. In Re West; West v Roberts, Swinfen Eady J said: [27]

"In the case of a specific legacy it is well established that immediately after the executors' assent the legacy vests in the legatee, and he can maintain an action at law in respect of it. If the plaintiff has a legal right to the shares as from the testatrix's death, it seems to me that he has also a legal right to the interest or dividends."

That principle should be applied. The Chans are entitled to any income earned on the IOOF moneys and Ms Foxton to any income earned upon the refund of the nursing home bond.

59 Finally, there is the question of what rate of interest should be paid on the remaining gifts within clause 11. There is no statutory provision for the calculation of such a rate.[28] It is noted in Wills Probate and Administration Service Victoria (Butterworths, 2003 Boaden, Collins, Phillips and Sparke)[29] that:

"There is a surprising lack of modern authority as to what the interest rate should be. Historically, the interest rate was taken to be 4%". (See Re Parry [1947] Ch 23, 46).[30]

60 I propose to adopt the authors' suggestion that the prudent course is to allow interest at a rate of 4% per annum.[31]

61 I now set out my answers to the questions posed in the originating motion.

Q1. In the events that have happened, and having regard to its terms, does the true construction of the gift in Clause 9(a)(vi) of the Will of Violet Blake, deceased (the Deceased), made on 19 March 2004 (the Will) mean that the refund of a nursing home bond from the nursing home occupied by the Deceased at her death is given by the Will to one of the executors of the Estate, Margaret Foxton?

Q6. In the events that have happened and having regard to its terms, has the gift in Clause 4(ii) of the Will of the Deceased been adeemed?

A. No, however the gift is of the amount of $28,245.00.

Q7. Is interest payable on the gift in Clause 9(a)(vi), and if so at what rate and from what date ought it be calculated?

A. Yes, the income derived from the gift in Clause 9(a)(vi) is payable to Ms Foxton from the date of the death of Mrs Blake to the date of payment.

Q8. If the answer to 3 and 6 is no, and if any gift under Clause 4(ii) survives, is interest payable on this gift and if so at what rate and from what date ought it be calculated?

A. Yes. The income derived from the gift under Clause 4(ii) is payable to Francis and Agatha Chan from the date of death of Mrs Blake to the date of payment.

Q9. Do the gifts in Clause 11(g), (h) and (i) carry the actual income earned on investment of the capital of each of the gifts from the date of the death of the Deceased and no interest is payable from residue with respect to them?

Q.10 If the remaining gifts of Clause 11 are not paid in advance of 14 October 2008, what rate of interest may apply to these gifts from that date?

62 I also propose to order that leave be granted to the plaintiffs to amend the originating motion of 14 August 2008 to seek construction of the gift to Francis Chan and Agatha Chan in clause 4(ii) of the Will, which is answered as follows:-

The gift in clause 4(ii) means all moneys standing to the credit of Mrs Blake in her IOOF accounts assigned the investor number 236299 as at the date of her death.

[1] Exhibits "CM4" and "CM5" to the affidavit of Mrs Christine Marks sworn 13 August 2008.

[3] Report of Dr Madeline Philip, Exhibit "CM16" to the affidavit of Christine Marks sworn 29 January 2009.

[4] Report of Dr Madeline Philip, Exhibit "CM16" to the affidavit of Christine Marks sworn 29 January 2009.

[5] [1943] AC 399, 420. See also Re Edwards [1981] VicRp 76; [1981] VR 794.

[7] See also Boyes v Cook (1880) 14 ChD 53, 56.

[8] Aged Care Act 1997 (Cth), s 57-21.

[9] See Morgan v Moore [2000] VSC 94 [22] in relation to similar provisions within s 22A of the Wills Act 1958.

[10] Re Plowright [1971] VicRp 13; [1971] VR 128, 131.

[12] McBride v Hudson [1962] HCA 5; (1962) 107 CLR 604, 613, Pohlner v Pfeiffer [1964] HCA 8; (1963) 112 CLR 52, 79.

[14] Formerly s 22 of the Wills Act 1958.

[15] McBride v Hudson [1962] HCA 5; (1962) 107 CLR 604, 629.

[16] [1968] VicRp 58; [1968] VR 465, 466-467. See also Daniels & Anor v Scrivenor [1997] 2 VR 595.

[19] Daniels v Scrivenor [1997] 2 VR 596, 597.

[20] Slater v Slater [1907] 1 Ch 665.

[21] See The Restatement of the Law, 3rd, Property (Wills and Other Donative Transfers) 5.2, American Law Institute, 1999.

[22] See Banks v National Westminster Bank PLC [2005] EWHC 3479; [2006] WTLR 1693.

[23] Mulhall v Kelly [2006] VSC 407, Re Viertel [1996] QSC 66; [1997] 1 QdR 110, Re Hartigan Supreme Court of Queensland, Parker J, 9 December 1997 unreported. In Re Viertel there is a comprehensive discussion by Thomas J of the English and United States authorities. His Honour's conclusion was subsequently adopted in Re Hartigan and Mulhall v Kelly.

[24] Walford v Walford [1912] AC 658.

[26] Walford v Walford [1912] AC 658, 664.

[27] [1909] 2 Ch 180, 185; see also In Re Marten [1901] 1 Ch 370.

[28] Contrast New South Wales Probate & Administration Act 1898 (NSW) s 84A(1) which provides a rate on legacies of 6%.

[31] In Re Parry [1947] Ch 23, evidence was adduced as to relevant yields on investments. However, Romer J. noted "the salutary rule" of 4% and the uncertainty in administration and practise in the event of departure from it.

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