Re Estate Morrison

Legislation Cited: Australian Courts Act 1828 (Imp)
Closer Settlement Acts NSW
Imperial Statute 4 George IV
Imperial Statute 9 George IV
Interpretation Act 1987 NSW
Law Reform (Miscellaneous Provisions) Act 1944 NSW
New South Wales Act of 1823
NSW Trustee and Guardian Act 2009 NSW
Probate Act 1890 NSW
Probate and Administration Act 1898
Real Property Act 1900 NSW
Short Titles Act 1896 (UK)
Strata Schemes Development Act 2015 NSW
Strata Schemes Management Act 2015
Succession Act 2006 NSW
Succession Act 1981 Qld
Third Charter of Justice
Wills Act 1837 (Imp)
Wills Act 1839 NSW
Wills Probate and Administration Act 1898 NSW

Cases Cited: Black v Garnock (2007 230 CLR 438
Breskar v Wall (1971) 126 CLR 376
Brown v Heffer (1967) 116 CLR 344
Catholic Parish of St Brigid Marrickville v Habib as Executor of the Estate of the late Tereza Efram [2022] NSWSC 1139
Chang v Registrar of Titles (1976) 137 CLR 177
Cox v Archer (1964) 110 CLR 1
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98
Fairweather v Fairweather (1944) 69 CLR 121
Gilder v Fairweather (1943) 44 SR (NSW) 229; 61 WN 50
Hannan v Whitworth (1884) 5 NSWR (P&D) 11
In re Slater [1907] 1 Ch 665
In re Tarca, Deceased [1981] 29 SASR 152
Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164
Lady Langdale v Briggs (1856) 44 ER 441
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Lysaght v Edwards (1872) 2 Ch D 499
McBride v Hudson (1962) 107 CLR 604
McWilliams v McWilliams Wines Pty Ltd (1964) 114 CLR 656
NSW Trustee and Guardian v Bensley [2012] NSWLR 655
Pohlner v Pfeiffer (1963) 112 CLR 52
Re Daveron [1893] 3 Ch 421
Re Morton [1963] VR 40
Reynolds v Bonnici [2017] NSWSC 828
RL v NSW Trustee and Guardian (2012) 84 NSWLR 263
Saunders v Vautier (1841) 41 ER 482; 49 ER 282
Stern v McArthur (1988) 165 489
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
Walsh v Adrian Sloan as executor of the estate of the late Loretta Dorothy Keddie [2019] WASCA 107

Texts Cited: AC Castles, An Australian Legal History (Law Book Co, Sydney, 1982), page 397
Arthur Underhill, “Changes in the Law of Real Property”, chapter 10 in A Century of Law Reform, published by the Council of Legal Education, MacMillan & Co, London 1901
F Pollock and FW Maitland, The History of English Law before the Time of Edward I (CUP, 2nd ed, 1968), pages 314, 318-319, 320-321, 325-326, 332, 356
Gareth Jones and William Goodhart, Specific Performance (Butterworths, London, 1986), pages 169-171
G E Dal Pont, Law of Succession (Lexis Nexis, Australia, 3rd ed, 2021, paragraphs [6.11], [6.12], [7.32]
JM Bennett, A History of the Supreme Court of NSW (Law Book Co, Australia, 2nd ed, 1949), pages 343-344
Lindsay, “An Australian History of the Law of Succession: From Status to Contract in a Managed Society
PW Young, C Croft and ML Smith, On Equity (Law Book Co, Sydney, 2009)
Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (Lexis Nexis, Australia, 6th edition, 2024)
S Janes, D Liebhold and P Studdert, Wills, Probate and Administration in NSW (Law Book Co, Sydney, 2020), pages 17-18
WJV Windeyer, Lectures on Legal History (Law Book Co, 2nd ed, 1949), page xv
WMC Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, “The Equity of Sir Frederick Jordan” (1991) 12 Sydney Law Review 263
I.J. Hardingham, M.A. Neave and H.A.J Ford, The Law of Wills (Law Book Co, Sydney, 1st ed,1977), paragraph [809]

Category: Principal judgment

Parties: Plaintiff: Ritchie Lyndon Hawley as interim administrator of the estate of Janice Margaret Morrison
First Defendant (Respondent): Streetcare Homeless Support & Crisis Care Inc (ABN 11 720 780 902)
Second Defendant (Respondent): Paying It Forward Homeless Services Inc (ABN 95 314 380 891)
Third Defendant(Respondent): Wounded Heroes Australia Inc (ABN 91 644 109 140)

Representation: Counsel:
Plaintiff: D Flaherty
First Defendant: No appearance
Second Defendant: R Bianchi
Third Defendant: J Lee
Solicitors:
Plaintiff: Caldwell Martin Cox
First Defendant: No appearance
Second Defendant: Armstrong Legal
Third Defendant: HWL Ebsworth

File Number(s): 2025/00356021 and 2025/00437652

JUDGMENT

INTRODUCTION

1. This judgment addresses a question which arises on the application of the interim administrator of a deceased estate as to whether, upon the proper construction of the will of the deceased, a gift of the net proceeds of a sale of land (pursuant to a contract for sale entered into by the deceased as vendor before her death and completed by the administrator under authority of a special grant of administration after her death) has failed, by way of an ademption, so that the net proceeds of sale fall into residue.

THE COURSE OF THE PROCEEDINGS

2. Janice Margaret Morrison (“the deceased”) died on 16 May 2025, a widow aged 86 years, leaving a will dated 1 December 2022 which named as her executors Ritchie Lyndon Hawley (the plaintiff) and Christopher Lance Paul.

3. Mr Paul renounced probate by an instrument dated 25 June 2025.

4. The plaintiff filed a summons for probate on 16 September 2025, dealt with administratively by the Court as an application for probate (and allocated it the number 2025/00356021), which has yet to result in a general grant of probate.

5. There are three outstanding requisitions (respectively dated 7 October 2005, 2 December 2025 and 16 December 2025) which have given rise to a notice of motion (filed by the plaintiff on 24 March 2026) calling for a determination whether a testamentary gift in favour of three named charities (the defendants) has adeemed.

6. Although no general grant of representation has yet been made, the plaintiff did (upon an ex parte application made to the Duty Judge by a summons filed in proceedings numbered 2025/00437652) on 12 November 2025 obtain special letters of administration limited to authorising him:

(a) to obtain/effect a transfer of the legal title of the property comprised in Lot 6, Strata Plan 75075 (being the land comprised in Folio Identifier 6/SP75075) and known as Unit 6, 7-9 King Street, Campbelltown NSW (“the King Street unit”) from the deceased to the plaintiff (as executor and trustee of the deceased’s estate). (b) thereafter, to do all things reasonably necessary to complete the sale of the King Street unit to the purchaser (Susan Murray Clements) in return for the receipt of contracted sales/purchase price of the King Street unit from the purchaser. (c) to receive the sale proceeds of the King Street unit to the estate of the deceased. (d) to pay from the assets of the deceased’s estate, the reasonable costs incurred by the plaintiff in making the application for a special grant.

7. The order for a special (interim) administrator was accompanied by a notation that nothing in the order authorised the plaintiff to make a distribution of the estate without the further leave of the Court.

8. Armed with the interim grant, the plaintiff on 27 November 2025 completed the contract for sale entered by the deceased personally on 14 April 2025, thereby causing the legal title to the King Street unit to be transferred to the purchaser in return for the net proceeds of sale ($489,118.33), received by the solicitors for the plaintiff on behalf of the deceased’s estate. The Memorandum of Transfer executed by the plaintiff in favour of the purchaser (Dealing Number AV652271) was dated and registered on 27 November 2025. It was expressed to be for a consideration of $505,000, the contract price.

9. In an affidavit sworn by the plaintiff on 11 March 2026 the plaintiff deposes that, after the payment of fees and the costs of the current proceedings (numbered 2025/004377652) the sum of $469,818.33 has been retained by his solicitors “awaiting distribution to the beneficiaries of the estate of the deceased”.

10. The King Street unit is a freehold Lot in a Strata Scheme (governed by the Strata Schemes Development Act 2015 NSW, the Strata Schemes Management Act 2015 and the Real Property Act 1900) registered by the Registrar General. As confirmed by the definition of the word “owner” in section 4 of the Strata Schemes Management Act 2015 the registered proprietor of such a Lot is “entitled to an estate in fee simple in the Lot”.

11. At the time she entered the contract to sell the King Street unit and at her death, the deceased was the registered proprietor of an unencumbered estate in fee simple in Lot 6 of the registered Strata Plan numbered 75075.

12. She remained on the register, named as the proprietor of the unit until, on 27 November 2025, the Registrar General registered a Transmission Application (Dealing Number AV652270) made under section 93 of the Real Property Act 1900. The Transmission Application was registered immediately before registration of the Memorandum of Transfer in favour of the purchaser. There was no gap.

13. So far as is material, section 93 is in the following terms:

93 Transmission on death of proprietor

(1) Upon the death of a registered proprietor, the executor, administrator or other person claiming consequent upon the death, will or intestacy of that deceased proprietor, or otherwise, to be entitled to be registered as proprietor may apply in the approved form to the Registrar-General to be registered as proprietor of all or part of the estate or interest of that deceased proprietor.

(2) An application under subsection (1) shall be--

(a) supported by such evidence as the Registrar-General may require, and

(b) accompanied by the consent of the executor or administrator of the deceased proprietor where the applicant claims otherwise than as executor, administrator or trustee unless the Registrar-General thinks fit to dispense with that consent.

(3) The Registrar-General, on being satisfied that an applicant under subsection (1) is entitled to the estate or interest claimed in the application, shall record the applicant in the Register as proprietor of that estate or interest. …”

14. The word “Transmission” is defined by section 3(1) of the Real Property Act to mean “[the] acquirement of title or interest in land consequent on the death, will, intestacy or bankruptcy of a proprietor”.

15. Section 96 of the Real Property Act is in the following terms:

“96 Trusts protected

A fiduciary registered as proprietor pursuant to section 93 shall hold the estate or interest in respect of which the fiduciary is so registered in trust for the persons for whom and purposes for which that estate or interest is applicable by law, but for the purposes of any dealing therewith the fiduciary shall be deemed to be absolute proprietor thereof.”

16. When the plaintiff became registered as proprietor of the King Street unit he did so as a fiduciary bound to “hold the estate or interest in respect of which [he was] registered in trust for the persons for whom and purposes for which that estate or interest [was applicable by law] as between himself and the persons (including, if not only, the charities) with an interest in due administration of the estate of the deceased.

FACTUAL CONTEXT

17. The charities were not given notice of the deceased’s will, their interests in the estate of the deceased or the circumstances culminating in the plaintiff’s completion of the sale of the King Street unit on 27 November 2025 until service of the plaintiff’s notice of motion (filed on 24 March 2026) upon them between 30 March 2026 and 8 April 2026 or thereabouts.

18. As may be inferred from the Memorandum of Advice of counsel dated 8 September 2025 (a copy of which was annexed to an affidavit sworn by the plaintiff on 11 March 2026 in support of the plaintiff’s notice of motion filed on 24 March 2026), the plaintiff made a deliberate decision to obtain a special grant of administration, to complete the contract for sale of the King Street unit without notice to the charities, on notice himself that (as a residuary beneficiary under the deceased’s will) he was favouring his personal interests over those of the charities.

19. There is no evidence explaining why the deceased, having made a will in the terms that she did, chose to sell the King Street unit when she did or upon the terms (including Special Condition 43) that she did. Nor is there any evidence (apart from the will) of what she intended to do with the net proceeds of sale upon an assumption that she would be alive when she received them. She may, or may not, have given the net proceeds of the sale to the charities. She may, or may not, have updated her will. The evidence is silent on these possibilities. Nor is there any evidence as to whether the market value of the King Street unit accorded with the contract price, or was more or less, bearing upon the expediency of completing or rescinding the contract. The questions for the Court’s determination focus attention on the terms of the deceased’s will and the terms of the contract without the benefit of extrinsic evidence beyond an affidavit deposing to the deceased’s engagement with one of the charities and the formal conveyancing documents registered by the Registrar General on 27 November 2025.

THE NOVELTY OF THESE PROCEEDINGS

20. A degree of difficulty attaches to these proceedings because, although one might intuitively (and perhaps over confidently) arrive at a conclusion about what orders should be made for their determination, the reasons for coming to that conclusion are not so simple.

21. They require an appreciation of Anglo-Australian legal history (particularly, why the law of property has at its intersection with the law of succession distinguished between “real” and “personal” property and how the importance of that distinction has diminished); the concept of ademption of a testamentary gift of property; the concept of “ademption by contract”; the equitable concept of “conversion”; the availability, various forms and significance of an order for specific performance of a contract upon the death of a party; principles governing “transmission” of a cause of action or an equitable entitlement upon death; a need to situate problem solving in the context of contemporary legislation (in the present proceedings, essentially the Succession Act 2006 NSW, the Real Property Act 1900 NSW and, incidentally, NSW’s Strata Title legislation); and the significance of departures in the Succession Act 2006 from the English Wills Act 1837 (7 William IV and 1 Victoria chapter 26), an early model for NSW law.

22. Citation of the Wills Act by reference to a traditional designation of the regnal years in which it was enacted often omits reference to King William IV but we have the authority of Sir Victor Windeyer that the attribution to both King William and Queen Victoria is technically correct: WJV Windeyer, Lectures on Legal History (Law Book Co, 2nd ed, 1949), page xv.

23. The English Wills Act of 1837 has exercised a foundational influence on the law of succession in NSW since it was literally adopted, in express terms, by the Wills Act 1839 NSW (3 Victoria No 5) with effect from 1 January 1840. It remained the template for NSW legislation (notably the Wills Probate and Administration Act 1898 NSW) until reforms effected by the Succession Act 2006 as part of steps taken in and about the 1990s towards Uniform Succession Laws throughout Australian States and Territories.

24. The novelty of the questions arising in the current proceedings focuses attention on the facts that the contract for the sale of the King Street unit by the vendor included a right of rescission of the contract upon her death, she died before the time for completion of the contract had arrived, the deceased’s testamentary gift took the form of a direction to sell the unit and to distribute the net proceeds of sale, and these facts need to be assessed in the context of the Real Property Act 1900 and the Succession Act 2006 NSW as the current paradigm for decision.

25. Two recent, authoritative judgments of this Court on ademption of a testamentary gift of land (RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 and Catholic Parish of St Brigid Marrickville v Habib as Executor of the Estate of the late Tereza Efram [2022] NSWSC 1139) concerned the operation of the saving provisions of section 83 of the NSW Trustee and Guardian Act 2009 NSW vis-à-vis the will of an incapable person whose residence was sold by a financial manager during her lifetime to fund her maintenance in a nursing home. Neither case concerned the operation of a will upon the death of an unpaid vendor of land (the subject of a specific testamentary gift) during the period between the making and completion of a contract of sale the terms of which came under consideration of the Court.

26. The judgment of White J in NSW Trustee and Guardian v Bensley [2012] NSWLR 655 provides an example of ademption by contract in which an incapable person’s property was sold (by way of a fully executed contract) before her death without the benefit of the saving provisions of section 83. This is not such a case.

THE HISTORICAL SIGNIFICANCE OF THE DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY IN NSW SUCCESSION LAW

27. An understanding of English legal history remains important to an understanding of Australian succession law (particularly, in the context of these proceedings, NSW law) because:

(a) The “inherent jurisdiction” of the Supreme Court of New South Wales relating to the law and practice of a probate jurisdiction was conferred at the time of the Court’s establishment (on 17 May 2024) by reference to the jurisdiction of an English Ecclesiastical jurisdiction: the Imperial Statute 4 George IV Chapter 96 (Imp) known colloquially as the “New South Wales Act” of 1823, section 10; the Letters Patent of 13 October 1823 issued pursuant to that Act, known colloquially as the Third Charter of Justice for NSW, clauses 14-17; and 9 George IV, Chapter 83 (Imp), known colloquially, and by later designation of the S**hort Titles Act 1896 (UK), as the Australian Courts Act 1828 (Imp), section 12. (b) The date implicitly set by the Australian Courts Act 1828 (Imp), section 24, for the reception of English law in NSW was 25 July 1828: AC Castles, A**n Australian Legal History (Law Book Co, Sydney, 1982), page 397; JM Bennett, A History of the Supreme Court of NSW (Law Book Co, Sydney, 1974), page 30n4 and 218; WJV Windeyer, Lectures on Legal History (Law Book Co, 2nd ed, 1949), pages 343-344. (c) At each of these times the English law of succession, and legal practice, was governed by an historical distinction between succession to land (governed by the Common Law and practice) and succession to personalty (governed by Ecclesiastical law and practice). (d) On passage of the English Wills Act of 1837 the NSW Legislative Council (the legislative authority in NSW before the advent of responsible government in the Colony) followed suit by adoption of the English Act by the Wills Act 1839 NSW. By this legislation succession to real and personal property was, in large measure, assimilated by provision for all wills to be construed at the time of death rather than, as was the case in respect of land (but not in respect of personalty), at the time of execution of a will, leaving after acquired land to be administered upon an intestacy: McBride v Hudson (1962) 107 CLR 604 at 614-615. (e) Nevertheless, until further reformed by legislation (the Probate Act 1890 NSW, sections 15 and 32), a devise of realty vested in the devisee, not (as with a bequest of personalty) passing in the first instance to the deceased’s legal personal representative. The practical operation of this system was described by the Queensland Law Reform Commission in its Report No 22 (dated February 1978) entitled “The Law relating to Succession”, paragraphs [45], which recommended enactment of section 7 of the Succession Act 1981 in a form then noticed by the Victorian parliament’s law reform committee in May 1994 (as to which, see paragraphs 101-102 below). The inconvenience of this old system was forcefully remarked upon by the Court’s Probate Judge, Sir William Manning in Hannan v Whitworth (1884) 5 NSWR (P&D) 11 at 16-17 in aid of reforms (including replacement of the expression “Ecclesiastic jurisdiction” with “probate jurisdiction”) in the Probate Ac**t 1890 NSW, itself a work in progress, replaced by the Wills, Probate and Administration Act 1898 NSW which, in turn, as amended from time to time continued in force until it (rebadged as the Probate and Administration Act 1898) was reduced in scope upon enactment of the Succession Act 2006.

28. Real and personal property now pass to an executor or administrator (subject to a grant of probate or administration) without material distinction. The provisions of the Probate and Administration Act 1898 include section 40 (which confirms that the Court has jurisdiction to grant probate or administration leaving property “whether real or personal” in New South Wales. Section 44 provides that, upon a grant of probate or administration “all real and personal estate” of a deceased person passes to and becomes vested (from the death of the deceased) in the executor or administrator to whom a grant has been made (leaving aside for present purposes the role of section 61 in the interregnum between death and grant). Section 46 provides that “[the] real as well as the personal estate” of a deceased person comprises an asset in the hands of the person’s executor or administrator for the payment of debts and a security for borrowings. Section 47 provides that the real estate of a deceased person the subject of a testamentary gift is held by the person’s executor or administrator “according to the trusts and dispositions” of the deceased’s will. Section 48 provides that an executor to whom probate has been granted has the same rights and is subject to the same duties with respect to real estate of the deceased that executors heretofore had or were subject to with reference to personal assets.

29. Historians of English law trace the distinction between real and personal property in the law of succession as far back as the reign of Henry II (1154-1189) and what appears to the modern mind to have been a constitutional compromise between Church and State developed over time, perhaps not unaffected by Henry’s remorse for his role in the assassination of Archbishop Thomas Beckett in Canterbury Cathedral in 1170.

30. One of many compromises between church and state in old England was that the King’s Courts governed succession to land (a characteristic of feudalism) and the church’s ecclesiastical courts governed succession to personalty. The king was concerned to maintain control of land as a resource essential to economic, political, military and social control. The church was concerned to mediate between the temporal and spiritual spheres of life in management of family wealth.

31. Both king and church stood to benefit financially from discharge of their respective functions. The king extracted feudal dues (taxes) on inheritance of land, so it suited the Crown to have a fixed regime of rules governing transmission of land on death. The church encouraged the dying to ease their passage to heaven, by charitable gifts administered by the church, so it suited the institution to have a regime of rules which allowed clergy to encourage the dying to make a discretionary financial contribution to their work: F Pollock and FW Maitland, The History of English Law before the Time of Edward I (CUP, 2nd ed, 1968), pages 314, 318-319, 320-321, 325-326, 332, 356. See generally, Lindsay, “An Australian History of the Law of Succession*:* From Status to Contract in a Managed Society”(Supreme Court website, Speeches, September 2018).

32. Something of the complexity of any history of the Anglo-Australian law of succession is conveyed in the following extract from the “Introduction” to WS Holdsworth and CW Vickers, The Law Of Succession: Testamentary and Intestate (Oxford, 1899), with editorial adaption, references omitted and emphasis added:

“The Common Law of England springs from the custom of the King’s Court. The King’s Court dates from the reign of Henry II. The rules adopted by that Court as to the subject matter of the law, and as to the extent of its own jurisdiction have left marks upon all branches of English law which are plainly visible to this day. The law of succession is a striking illustration of this fact. The difference between the law of personal property and the law of real property date from the days of Glanvil and Bracton*; and these differences are nowhere more strongly marked than in the law of succession; for part of the jurisdiction over successions to personal property was abandoned by the King’s Court to the Ecclesiastical Court*. It thus grew up among different surroundings and was fashioned on different principles.

At a later period the equitable jurisdiction of the Chancellor supplemented the deficiencies of the existing law. The law of succession was not left untouched. The chancellors took the existing law as administered both in the Common Law Courts and in the Ecclesiastical Courts as their starting point, and proceeded to develop it on lines all their own. They introduced many new rules into the law itself, and they assumed a jurisdiction which affected both the jurisdiction of the Common Law Courts and of the Ecclesiastical Courts. The Ecclesiastical Courts have not now, it is true, any jurisdiction in cases of succession; but [a secular court] has taken their place.

The law of succession therefore is complicated, not merely by the division into real and personal property, but by the separate existence of three sets of Courts which have all played their part in the development of the law. These are complications which make this subject perhaps one of the most difficult branches of English law. For these different Courts have administered, to some extent, different laws; and they have applied different rules of interpretation to the laws which they have administered. The rules of the present law will often seem merely arbitrary unless we know something of the historical environment in which they have been severally developed. …”

THE QUESTION OF “ADEMPTION BY CONTRACT”

33. The plaintiff contends that, upon the proper construction of clauses 8 and 9 of the will of the deceased, the gift to the charities expressed to have been made by clause 8 (in respect of the King Street unit) failed because that gift must be taken to have adeemed upon, or by reason of, the deceased’s entry into her contract for sale of the unit.

34. I do not accept this contention. In my opinion, the gift to the charities in clause 8 of the will in respect of the King Street unit is not the subject of an “ademption of contract” as alleged. The net proceeds of sale of the King Street unit pass to the charities under clause 8. The gift has not failed. The net proceeds of sale do not pass to the residuary beneficiaries under clause 9 of the will.

35. In summary terms, there are three paths to this conclusion. They offer different perspectives of arriving at the same conclusion. The first focuses attention on construction of the will and characterisation of a gift. The second focuses attention on the nature of property the subject of a contract for the sale of land and the availability of an order for the specific performance of such a contract. The third focuses attention on the current statutory scheme for the making and construction of a will.

36. In deference to the submissions of counsel (who addressed contentious questions in this order) and to accommodate nuanced changes in jurisprudence, this judgment follows the three paths in the stated order, acknowledging that if my analysis of the law is correct the starting point should ordinarily be the current statutory regime, moving swiftly to construction of the will and characterisation of a gift, viewed at the same time as an assessment of the deceased party’s rights and obligations under the subsisting contract said to affect the validity of the gift. As it happens, the first two pathways are subsumed by the third.

37. In Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [53]) the High Court endorsed the judgment of Jacobs J in Chang v Registrar of Titles (1976) 137 CLR 177 where, at 189-190, his Honour wrote the following:

“So long as the rights of the respective parties to a contract for the sale of land rest in contract, that is to say before payment of purchase price on a settlement after which the vendor has no rights of his own outstanding but is a bare holder of the legal estate, none of the provisions of the Trustee Act in relation to vesting orders is a substitute for an action for specific performance.

Moreover, it is doubtful whether a vendor under a contract of sale can properly be described as a trustee within the meaning of the Trustee Act unless settlement has taken place and all that remains to be done is to transfer or convey an outstanding legal estate. It is true that a vendor at the stage of contract where the contract is enforceable by specific performance has at times been described as a trustee: see, e.g. Shaw v. Foster (1872) L.R. 5 H.L. 321*; Lysaght v. Edwards* (1876) 2 Ch. D. 499; and if by that no more is meant than that the purchaser is regarded by equity as the beneficial owner of the estate of which the vendor is the legal owner then there is no difficulty in describing the vendor as a trustee. However, if by such a description it is sought to transpose into the law of vendor and purchaser the law governing the rights and duties of trustees, statutory or otherwise, considerable difficulties arise. The present case is an example of the confusion which can arise from giving this description to a party to a contract for the sale of land assumed to be capable of specific performance simply because he has the obligation under the contract to transfer property to the other party on completion of the contract and because equity regards the other as beneficial owner. Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties.”

THE NATURE OF ADEMPTION

38. The word “ademption”, and principles governing an ademption, depend on context. The word “ademption” derives from the Latin noun ademptio, meaning a taking away.

39. There are several situations in which a valid legacy might “adeem”: eg Reynolds v Bonnici [2017] NSWSC 828 at [39].

40. In the present proceedings the plaintiff relies upon the first of four situations identified in Reynolds v Bonnici at [39](a):

“A gift of specific property prospectively made by a will fails, and is said to have been ‘adeemed’, if (because it has been destroyed or transferred out of the ownership of the will-maker) that property no longer exists in the will-maker at the time, upon his or her death, the will becomes effective: Brown v Heffer (1967) 116 CLR 344 at 348; RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 292-293. …”.

41. This type of ademption involves an alteration of a will-maker’s estate, property taken away from the estate. The will-maker’s intention is sometimes said to be irrelevant (Re Morton [1963] VR 40 at 43-44) but that proposition is directed to the intention of the will-maker in performing an ademptive act, not the will-maker’s testamentary intention as discerned in his or her will: RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at [175]-[177], [192] and [197]. Cf, I.J. Hardingham, M.A. Neave and H.A.J Ford, The Law of Wills (Law Book Co, Sydney, 1st ed,1977; 2nd ed, 1989), paragraph [809].

42. Conventionally, as explained by Campbell JA in RL v NSW Trustee and Guardian at [130]:

“The basis on which ademption occurs is that no property that meets the description of the subject matter of the specific gift is found amongst the property of the deceased at the time of his or her death: Harrison v Jackson (1877) 7 Ch D 339 at 341; Fairweather v Fairweather (1944) 69 CLR 121 at 129, 136, 142; Brown v Heffer (1967) 116 CLR 344 at 348. Subject to a qualification recognised in In re Slater [1907] 1 Ch 665, even if it is possible to identify property into which the specifically given item has been converted, the donee of the gift does not receive that property: Harrison v Jackson at 343-344; Fairweather v Fairweather at 136, 142; In re Bridle (1879) 4 CPD 336.”

43. As noted by Campbell JA, the qualification recognised in In re Slater [1907] 1 Ch 665 was explained and approved by Windeyer J in Pohlner v Pfeiffer (1963) 112 CLR 52 at 74-75:

“In In re Slater; Slater v Slater [1907] 1 Ch 665 at 672 Cozens-Hardy MR said ‘you have to ask yourself, Where is the thing which is given? If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in this sense, that you find something which has been changed in name and form only, but which is substantially the same thing’.”

44. A focus for attention then is on the proper construction of the will the subject of an alleged ademption. In particular, what was the subject-matter of the deceased’s gift to the charities, and could it be found amongst the property of the deceased at the time of her death?

45. These questions, strictly, do not focus on whether “property” has been “converted” from one form to another but on whether, upon the proper construction of a will, the subject matter of a gift can be found.

46. The case advanced by the plaintiff in these proceedings may be characterised (labelled) as an equitable “ademption by contract” involving an alleged conversion (a change in character) of property the subject of a contract for sale, from a vendor’s perspective, from one type of property (an entitlement to land, real estate) to another type of property (an entitlement to purchase monies, personalty) after a contract has been made but before it has been fully performed (“completed”), treating the change in character as of critical significance.

47. The equitable doctrine of conversion, for certain purposes, treats realty as personalty and, conversely, personalty as realty, a doctrine said to be based on the maxim that equity looks on that as done as ought to be done: PW Young, C Croft and ML Smith, On Equity (Law Book Co, Sydney, 2009), paragraph [12.550].

48. The nature and field of operation of that maxim is summarised in the following extract from Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th ed, Australia, 2015 by Heydon, Leeming and Turner), paragraphs [3.185]-[3.215], with emphasis added:

“Equity looks on as done that which ought to be done

[3-185] Meaning

This maxim, the earliest known formulation of which in the above form occurs in Banks v Sutton, is of both great importance and wide application in equity. The five main instances of its application will be briefly noted here. As these instances differ from one another, so do the circumstances in which the maxim is engaged. But these instances have features in common. First, in all of them, equity effectuates a valid legal obligation on the basis that it would be enforced in some way through the award of equitable relief, if that relief were sought. Secondly, in all these instances equity treats a person who owes an obligation to do some positive act as though that person had in fact performed that act. In this way equity holds the obligor to the obligor's obligations of conscience for the benefit of the person or persons entitled to have the obligor perform what is required. Thirdly, equity thus disables the obligor from exploiting the fact that the obligor has for any reason failed to do what the obligor is required to do.

[3-190] Five main instances

The first instance is the doctrine of conversion. It provides that where there is a legal obligation to convert realty into personalty or vice versa, whether that obligation arises out of contract, trust or otherwise, equity will often treat the property as if it were actually converted for the purposes of descent of property upon death. In the case of conversion by trust, the maxim applies from the moment when the obligation to convert arises. Conversion by contract and by option, and other instances in which conversion occurs, depends on different facts but by virtue of the maxim each has the same effects: for the purpose of succession upon death, the nature of the property is altered from personalty to realty, or vice versa, for the purpose of identifying to whom it descends.

[3-200] A second instance is the rule in Howe v Lord Dartmouth. It states that where residuary personalty is bequeathed to persons who are to enjoy it in succession, the trustees of the will are obliged to convert all such parts of it as are of a wasting or future or reversionary nature, or consist of unauthorised securities, into property of a permanent and income-bearing character. This branch of the rule is a presumption that the testator intended the assets to be so enjoyed. …

[3-205] The third instance to mention is the rule in the law of vendor and purchaser which used to be stated that between contract and conveyance a vendor of land becomes a trustee of the land for the purchaser, who becomes trustee of the purchase money for the vendor. It has long been realised that the legal situation of the parties to a contract cannot be described so simply. Courts often reserve their position on the precisely correct analysis by accepting the narrow point that the purchaser acquires an interest ‘of some sort’ where the contract is specifically enforceable, and decline to go further. But to the extent that a vendor between contract and completion is treated as less than an absolute owner of the subject land, and the purchaser is treated as having some extent of equitable proprietary right in the land as well, their relations furnish an illustration of the maxim.

[3-210] A fourth instance concerns the defective exercise of a power of appointment. Equity will regard a power as properly exercised if its donee has expressed willingness to exercise it but has purported to do so by an ineffective means …

[3-215] A fifth instance is equity's attitude to contracts, where the maxim means that often equity treats a contract to do a thing as if the thing were already done. This application is subtly yet significantly different from the doctrine of equitable conversion. Whereas the conversion doctrine helps to identify the proper destination of a deceased's realty or personalty upon death, the application of the maxim under present consideration applies inter vivos and to different ends. …”

49. The maxim “Equity looks on as done that which ought to be done” may inform the principles that have developed at the intersection between “the equitable doctrine of conversion”, the law of vendor and purchaser and “ademption by contract” in succession law, but it is not itself an operative principle and it must yield to the terms of a particular will, a particular contract and an operative statutory regime. Paraphrasing the High Court in CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 at [52]:

“Equity often regards as done that which ought to be done, but not necessarily that which merely could be done. In any event, what is at stake here is the operation of statutory criteria upon general law concepts of equitable ownership.”

50. The principles governing “ademption by contract” apply to all types of property the subject of a specific gift: Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (Lexis Nexis, Australia, 6th edition, 2024), paragraph [13.1]. However, a specific gift of land in a will, in combination with a contract for the sale of the land entered into, but not completed, before the death of the vendor, provides a fertile field for an examination of the interplay between property law, contract law and the Court’s equity jurisdiction: Is the subject gift to the charities a gift of the King Street unit itself (real property) or the net proceeds of sale of real property, a gift of money (personalty)? Although the vendor of the unit remained the registered proprietor of the unit (the legal owner) at the time of her death did she hold it as a “trustee” for the purchaser pending payment of the purchase price, recognising the purchaser as the “beneficial owner” of the unit and depriving a testamentary gift of the unit of the character of real property in the administration of her deceased estate? Was the gift itself always a gift of personalty because, properly construed, it was predicated upon a direction for sale?

51. Conceptually, the “equitable doctrine” of “ademption by contract”, in the setting of the Succession Act 2006 (and incidentally the Probate and Administration Act 1898 NSW as now in force and the Torrens system of land title registration embodied in the Real Property Act 1900 NSW, sections 41-43A, 93 and 96) is not so much concerned with a notional “conversion” of real property into personal property (or any process of “reconversion” that may, arguably, occur if a contract is specifically enforceable at the time of death but rescinded after death) as upon regulating the rights and obligations of a purchaser of land vis-à-vis a deceased vendor, his or her estate and beneficiaries who may lay competing claims to the land or the proceeds of its sale.

52. An illustration of a need to look beyond descriptive labels in this area of the law, to examine underlying concepts, their field of operation and the context in which they are called upon is use of the expression “reconversion” in contradistinction to the word “conversion”.

53. Whether, in the context of the equitable doctrine of “ademption by contract” a determination that property the subject of a notional “conversion” (for example, from real estate to personal estate) may be reversed by a finding of a “reconversion” (notionally returning the character of property to its original characterisation) is ostensibly the subject of controversy in established equity texts.

54. Young, Croft and Smith, On Equity (2009) at paragraph [12.570], contemplate that it can happen. Meagher, Gummow and Lehane (5th ed, 2015), at paragraph [35-045] suggests not. On closer examination, the text writers are not necessarily at odds.

55. On Equity records that a prior notional process of conversion can be reversed (for example) “if a person entitled to land under a trust for sale elects to take the land in specie, or else the arrangement under which the conversion takes place is brought to an end unconsummated”. Critical to the first limb of that statement is the expression “a person”.

56. Meagher, Gummow and Lehane’s treatment of that topic (by reference to R**e Daveron [1893] 3 Ch 421 at 425; Cox v Archer (1964) 110 CLR 1 at 5 and Saunders v Vautier (1841) 41 ER 482; 49 ER 282, focuses on the inability of one of multiple beneficiaries to effect a conversion (putting an end to a trust for sale of land by taking the land in specie) without the concurrence of all affected beneficiaries. Meagher, Gummow and Lehane also notes that “[where] a beneficiary has received the property into the beneficiary’s own hands it is said to be ‘at home’, and once it is ‘at home’ the notional conversion is ended and the property belongs to the owner, as realty or personalty according to its actual state in the beneficiary’s hands”.

57. A lesson to be drawn from these references (not intended to be exhaustive) is that broad propositions about the operation of the equitable doctrine of conversion (such as found in the judgment of Latham CJ in Fairweather v Fairweather (1944) 69 CLR 121) need to be approached with caution and to be tested in the context of particular facts and circumstances of a particular case.

58. It must also be remembered that the Torrens system of registered title under the Real Property Act 1900 NSW is a system of title by registration, not a system of registration of title: Breskar v Wall (1971) 126 CLR 376 at 385. That is a fundamental proposition to be borne in mind when construing and applying the provisions of the Succession Act (as to the making and construction of a will) and the Probate and Administration Act (as to the passing of a deceased estate to an executor or administrator upon a grant of representation). The administration of a deceased estate with respect to land has particular constraints governed by the indefeasibility of title underlying a Torrens system. They are regulated by legislation, not an inherent distinction between real and personal property.

59. In any event, the field of operation of a “conversion” of “real and “personal” property may differ depending on context. Nothing in this judgment, for example, bears upon the allocation of risk between a vendor and a purchaser pending completion of a contract for the sale of land. The field upon which the parties have fought these proceedings is confined to the competing rights to estate property as between specific and residuary beneficiaries

60. Conceptually, the point should also be noticed that an assumption underlying “ademption by contract” in a case such as the present is that a contract for the sale of land is generally, at least implicitly, binding on the parties to the contract, their successors and assigns rather than on the vendor and purchaser alone: Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 at 64-65; Meagher, Gummow and Lehane, paragraph [35-060]. The vendor’s assets, contractual rights and contractual liabilities devolve on the vendor’s personal representative unless, unusually, contractual rights and obligations are, upon the proper construction of a contract, personal in character: Gareth Jones and William Goodhart, Specific Performance (Butterworths, London, 1986), pages 169-171. That the rights and obligations under the current contract were not merely personal, incapable of surviving the death of a party, is confirmed by Special Condition 43 and clause 20.6.3 of the contract which contemplate contractual rights and obligations operating after death of a party (defined by clause 1.1 as the vendor or the purchaser).

THE TERMS OF THE DECEASED’S WILL AND CONTRACT OF SALE

61. The plaintiff’s contention that the deceased’s gift to charities referable to the King Street unit failed must be measured against the terms of the deceased’s will (particularly clause 8) and the terms of the contract for sale of the King Street unit, particularly Special Condition 43.

The Deceased’s Will

62. The impugned gift to the charities relates to only two of eight real estate properties the subject of specific gifts in the deceased’s will, and only one of those two properties is the subject of the plaintiff’s contention.

63. In passing, it should be noted that the plaintiff (a nephew of the deceased) is named in the will as an executor, as the beneficiary of a specific gift of real property and as a residuary beneficiary.

64. Clauses 8 and 9 of the will are in the following terms (with emphasis added):

“8. I DIRECT my Trustee to sell my property known as 6/7-9 King Street Campbelltown in the State of New South Wales and my property known as 10/16 Letitia Street Oatley in the State of New South Wales after payment of expenses, taxes and other debts arising from the sale of the properties to divide the net balance of the sale proceeds into three (3) equal shares as follows:

a. I LEAVE one (1) equal share to STREETCARE HOMELESS SUPPORT & CRISIS CARE INCORPORATION (ABN 11 720 780 902);

b. I LEAVE one (1) equal share to PAYING IT FORWARD HOMELESS SERVICES (ABN 95 314 380 891; and

c. I LEAVE one (1) equal share to WOUNDED HEROES AUSTRALIA INC (ABN 91 644 109 140).

9. I LEAVE the rest and residue of my Estate to STEWART MORRISON, KARIN PENTECOST, MICHELLE HAWLEY, RITCHIE HAWLEY and EMMA HAWLEY conditionally upon them surviving me and if more than one in equal shares as tenants in common.”

The Contract for Sale

65. The contract was dated (by an exchange of counterparts) 14 April 2025. Clause 15 of the contract provided for a date of completion being the 42nd day after the contract date (namely 26 May 2025), a period within which the deceased died, on 16 May 2025.

66. The contractual time for completion of the contract had not arrived at the time of the deceased’s death. Nor was she, at any time, in default of her contractual obligations or threatening non-performance of those obligations. There was no basis for the intervention of equity in the ordinary working out of a conveyancing contract (whether by way of an order for specific performance, an injunction or otherwise) or for disregarding the right of rescission available to her estate upon the deceased’s death.

67. In standard terms, clause 16 of the contract provided that the legal title to the property did not pass before completion, at which time the purchaser came under an obligation to pay the balance of the purchase price, allowing for a 10% deposit paid on exchange of contracts, the total purchase price being $505,000.

68. Clause 20.6.3, also in standard terms, provided that any document under or relating to the contract could be served on a party’s solicitor “even if the party has died or any of them has died”.

69. Special Condition 43 was in the following terms:

“43. Death or Incapacity

If, prior to Completion, the Purchaser and/or the Vendor (or either or any of them if more than one):

(1) dies;

(2) becomes incapable of managing their affairs within the meaning of the Mental Health Act 2007 (NSW); or

(3) becomes subject to an Insolvency Event,

the Vendor may rescind this Contract.”

CONSTRUCTION OF THE DECEASED’S WILL: The Subject Matter of the Gift

70. The question in every case of a specific (as opposed to a general) gift of property is whether, upon the true construction of the will, a thing in existence at death is the specific thing, or thing of the genus (kind), that the words of the will described when they were written: Pohlner v Pfeiffer (1964) 112 CLR 52 at 79 per Windeyer J.

71. Ultimately, attention focuses on the proper construction of clause 8 of the deceased’s will. Reduced to its fundamental character, the plaintiff characterises the gift relating to the King Street unit as a gift “of the unit” which, he contends, no longer existed in “substantially the same” form at the time of death because it was the subject of a contract for sale which converted the deceased’s alienable property from a right to real property to a right to personal property, ostensibly something very different.

72. The nature of the problem (before legislative reforms that culminated in the Succession Act 2006 NSW) was identified in I.J. Hardingham, M.A. Neave and H.A.J Ford, The Law of Wills (1st ed,1977; 2nd ed, 1989) at paragraph [812], extracted here (with emphasis added, footnotes omitted):

“****[812] Testator contracts to sell property but sale not completed at his death. Ademption can occur where the property has been so dealt with by the testator after making his will that by the rules of equity it must be considered as having been·converted into other property, such as a right of money, which the words of the gift are not apt to comprehend. Thus, if the testator devises Blackacre and it is found at his death that after making the will he became bound by a contract to transfer Blackacre to another, and the contract still subsisting, so that when he died he was in a sense a trustee of the land for the purchaser, and entitled only to money in its place there is no property in respect of which the words of devise are capable of taking effect. The person named as devisee is not entitled to the outstanding purchase money or the vendor's lien merely by virtue of a devise of the land. Even if the right to the unpaid purchase money is secured on the land by way of mortgage the right to the purchase money will not pass to the devisee by force of the devise. The charge over the land is not in itself anything other than a means of implementing recovery of the debt. Unless it can be seen that on a proper construction the will gives the devisee the right to the proceeds the devisee cannot advance his position by saying that the testator's interest in the land as mortgagee devolves upon him.

For a devise to be adeemed by entry by the testator into a contract of sale in that way the contract must be such that before the testator’s death the purchaser was entitled to specific performance of the contract in the sense that the testator was liable to be ordered to transfer his title to the purchaser. In Brown v Heffer the testator devised·land under the Closer·Settlement Acts (N.S.W.) and subsequently contracted to sell it to a third party. The land could not be transferred without the consent of the Minister of Lands. Under the terms of the contract the testator was obliged to secure that consent. Whilst the application for consent was pending, the testator died. The Minister subsequently consented to the transfer. The High Court held that the devise was not adeemed by the contract of sale. The interest of the vendor could not be converted into a right to receive money in place of land until the Minister consented. If before death the purchaser had obtained a decree for specific performance the decree would have directed that proper steps be taken for the purpose of obtaining consent and, if consent were obtained, to transfer the land. Until consent was obtained the vendor could not be obliged by order to transfer. …

Even where the testator has entered into a contract of sale in such a way as to deprive himself of the equitable ownership of the property sold the words of gift in the will may be wide enough to carry the right to the proceeds of sale. The question is one of construction of the particular will.

In Estate of Stanley the testator gave to his wife all his “right title and interest as tenant in common with my wife” in certain land. Subsequently he joined with his wife in contracting to sell part of the land. At his death the contract had not been carried out. Napier C.J. held that the widow was entitled to receive the purchase money when it was received by the executors. He held that the gift was not simply a devise of the land: because the testator had used the word "interest" the gift extended to the right to the proceeds of sale. This case is, one of a number in which courts have gone to great lengths to find that the words of gift extend to the proceeds. …”

73. The plaintiff’s contention mischaracterises the gift to the charities relating to the King Street unit. It was not a gift of the real estate but a gift of net proceeds of sale of the property, coupled with a direction to the plaintiff to sell the property. The testamentary intention of the deceased was never that the charities would receive the King Street unit in specie. It was specifically that they would share the net proceeds of a sale of the unit which the deceased directed be effected. There was a close identity between the subject matter of the gift to the charities and the property specifically available to satisfy the gift. This involved no tracing exercise. There was, in substance, an identity between the testamentary gift and, as the deceased intended, the property available to meet it.

74. Clause 8 of the will imposed upon the Trustee (the plaintiff) a direction in the nature of a trust for sale, attracting the maxim that “equity looks on that as done as ought to be done” (as explained by FW Maitland, “Equity” Cambridge University Press; 1st ed 1910, Lecture 17; 2nd ed, 1936 Lecture 18) so that the subject matter of the gift was personalty (if that characterisation matters), the same character that would have attended the King Street unit viewed through the spectrum of a contract susceptible to an order for specific performance.

75. The plaintiff’s contention also suffers from a failure to give effect to the right in the estate of the deceased (represented by the plaintiff as interim administrator) to rescind the contract. Upon the death of the deceased the right of rescission accrued to her estate so that the effective decision to sell the King Street unit (the title to which remained under the control of the vendor’s interest) was made by the plaintiff as interim administrator after the vendor’s death. The plaintiff could have rescinded the contract made by the deceased and immediately thereafter re-sold the property on substantially the same terms for an outcome that, one might think, should be no different.

76. Upon the proper construction of clause 8 of the will, the gift to the charities is a gift of the net proceeds of sale of the King Street unit, not the unit itself. The object of the clause was to divide a money sum between three separate entities, not to confer upon them title to real property in co-ownership.

77. That characterisation carries with it a finding that the property the subject of the deceased’s testamentary gift was found amongst her property (her estate) at the time of her death, whether the King St unit is taken to have been sold at the time of contract before her death or the date of completion of the contract after her death.

THE NATURE OF PROPERTY AND THE AVAILABILITY OF AN ORDER FOR SPECIFICAL PERFORMANCE

78. The characterisation of the gift as a gift of the net proceeds of sale (if correct) leaves no space for the operation of the equitable doctrine of “conversion by contract” (in its operation upon succession to land) that, upon entry into a contract for the sale of land, a vendor holds the land as “trustee” for the purchaser if, when and to the extent that the contract is amenable to an order for specific performance (requiring the vendor to transfer legal title to the purchaser upon payment of the purchase price) at the suit of the purchaser: Brown v Heffer (1967) 116 CLR 344; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [53]; Black v Garnock (2007) 230 CLR 438 at [32]. An equitable conversion by contract does not commence simply at the time of entry into the contract: Meagher, Gummow and Lehane, paragraph [35-065]; Chang v Registrar of Titles (1976) 137 CLR 177 at 181, 182, 185, 189 and 190.

79. The expression “trustee for the purchaser” does not of itself import a “trust” in the strict sense. It is rather a convenient label for describing the relationship between vendor and purchaser between the time a contract is entered and the time of completion of the contract.

80. If (contrary to my view) the equitable doctrine of ademption by contract has space for operation in respect of the clause 8 gift, it is not the subject of ademption because the purchaser could not have succeeded, at the time of the deceased’s death or immediately before that time, in obtaining an order for specific performance (conditional on nothing more than payment of the purchase price) without waiver of the contractual entitlement of the deceased (or, upon her death, her estate) to rescind the contract under special condition 43 of the contract: Brown v Heffer (1967) 116 CLR 344; In re Tarca, Deceased [1981] 29 SASR 152 at 159-160. Furthermore, the contract’s specified time for completion had not arrived by the time of the deceased’s death and the contract (by clause 16) specifically provided that the legal title to the King Street unit did not pass before completion, at which time the purchaser came under an obligation to pay the balance of the purchase price, allowing for a 10 percent deposit paid on exchange of contracts.

THE EFFECT OF A CONDITIONAL CONTRACT WITH A VENDOR’S RIGHT OF RESCISSION UPON DEATH

81. The deceased’s death activated a contractual right of rescission exercisable by her legal personal representative. That right, of itself, would have stood in the way of the purchaser obtaining an order for specific performance of the contract for a transfer of title to the purchaser upon tender of the purchase price immediately before or at the time of death or, at least, for a reasonable time thereafter, unless the right was waived by a duly authorised representative of the deceased’s estate.

82. Any order for “specific performance”, if any such order could have been made in the immediate aftermath of the deceased’s death, would probably have been limited to securing representation of her estate to put the estate to an election to rescind the contract or not: McWilliams v McWilliams Wines Pty Ltd (1964) 114 CLR 656 at 660-661; WMC Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, “The Equity of Sir Frederick Jordan” (1991) 12 Sydney Law Review 263 at 270-271 and 273-274”. The plaintiff’s special grant of administration served that purpose, though not any form of an order for specific performance.

83. The vendor’s contractual right of rescission means that the contract was “not so binding upon the deceased (or her estate) as to effect a notional conversion of [the King Street unit] into money” so as to effect an ademption of the clause 8 gift (assuming that the subject matter of the gift is characterised as the unit, real property, not the proceeds of a sale of the real property, characterised as personalty).

84. The following extract from the judgment of Barwick CJ and McTiernan, Kitto and Owen JJ in Brown v Heffer (1967) 116 CLR 344 at 348-350 demonstrates (by reference to a requirement for ministerial consent to a transfer of land) demonstrates the point (with citations omitted and emphasis added). It also serves to illustrate a subtle change to the paradigm for decision effected by the Succession Act 2006:

“[348] The appellant then asserted that by reason of the testator's contracts with respect to the settlement purchase leases the gift of the leases to the respondent was adeemed and the proceeds of sale thereof fell into residue. The question thus raised was submitted to the Supreme Court by originating summons, and Hardie J. held that the devise was not adeemed. With respect we agree. 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: Stanley v. Potter. 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 (see McBride v. Hudson) answers the words of gift. But ademption occurs also where the property has been so dealt with that by the rules of equity it must be considered at the death as having been converted into other property, such as money, which the words of gift are not apt to comprehend: Watts v. Watts; McArthur's Executors v. Guild; In re Edwards dec'd; Macadam v. Wright. Thus, in the case of a simple devise of land, if it is found at the testator's death that after making the will he became bound by a contract to convey or transfer the land to another, and the contract is still subsisting, so that when he died he was, in the sense of Lysaght v. Edwards, a trustee of [349] the land for the purchaser and entitled only to money in its place, there is no property in respect of which the words of devise are capable of taking effect: Bennett v. Tankerville (Earl); Farrar v. Winterton (Earl). It is true that in such a case the testator still held the legal estate at his death, and under the old law that estate would have passed to the devisee though only as a trustee for the purchaser and without any right to retain the purchase money when received; but now that the legal estate passes on the death to the personal representative there is no subject matter at all to which the words of gift can apply—in the absence, that is to say, of a sufficient special context as in In re Lewis's Will Trusts; O'Sullivan v. Robbins [1937] Ch 118. What is meant by a contract being so binding upon the testator as to effect a notional conversion of the land into money is that the state of affairs existing immediately before his death was such that a court of equity if applied to at that time would have ordered specific performance by him of his obligation under the contract to convey or transfer the land to the purchaser upon performance of such of the purchaser's obligations as the contract required to be performed at or before settlement: Re Thomas; Thomas v. Howell. As Lord Parker of Waddington observed for the Privy Council in Central Trust and Safe Deposit Co v. Snider: “It is often said that after a contract for the sale of land the vendor is a trustee for the purchaser … But it must not be forgotten that in each case it is tacitly assumed that the contract would in a Court of Equity be enforced specifically … Their Lordships (in Howard v. Miller) … came to the conclusion that, though the purchaser of real estate might before conveyance have an equitable interest capable of registration such interest was in every case commensurate only with what would be decreed to him by a Court of Equity in specifically performing the contract, and could only be defined by reference to the relief which the Court would give by way of specific performance”.

The argument submitted for the appellant in the present appeal relied upon cases such as Egan v. Ross for the proposition that under such contracts as those with which we are here concerned specific performance will be granted in favour of the purchaser even before the Minister's consent has been obtained, and that therefore the land is notionally converted into money at the [350] date of the contract notwithstanding that unless the consent be given no effectual conveyance or transfer under the contract can ever be made. The first part of the proposition, however, is too widely stated and the second cannot be maintained. The specific performance which will be granted before the Minister's consent has been obtained is not specific performance of the obligation to convey or transfer, for that obligation has not yet arisen: McWilliam v. McWilliams Wines Pty Ltd. As Harvey C.J. in Eq. made clear in Egan v. Ross the decree that will be made will go no further than directing that the proper steps be taken for the purpose of obtaining the Minister's consent and, “if that is obtained”, to transfer the land to the purchaser: see also the more explicit form of order made by this Court in Kennedy v. Vercoe. Accordingly until the consent has been obtained the purchaser's interest, being “commensurate only with what would be decreed to him”, does not extend to ownership of the land and the interest of the vendor is not yet converted into a right to receive money in place of the land. Many authorities on the topic are discussed in the valuable judgment of Callan J. in In re Rudge; Curtain v. Rudge.

In the present case it is clear that the contracts for the sale of the settlement purchase leases, though absolute in so far as they bound the parties to do what was necessary for obtaining the Minister's consent, were inchoate in so far as they provided for sale and transfer. Not until, after the testator's death, consent was obtained so that transfers having legal operation could be made did any contract of sale emerge from the inchoate stage (to adopt language used in Roach v. Bickle). It follows that the land, not having been converted into money under the principles of equity during the testator's lifetime, was still his to dispose of at his death, though it was even then bound by a contract which, if the Minister's consent should thereafter be obtained, would become a contract of sale with the result that the respondent as devisee would in the end receive only the purchase money. …”

85. Brown v Heffer concerned two purchase leases under the provisions of the Closer Settlement Acts NSW, not land under the Real Property Act 1900 NSW, the Torrens title system of land ownership, whereby a deceased registered proprietor remains on the title (ostensibly as the owner of an estate in fee simple) until his or her personal representative is registered on the title pursuant to a Transmission Application.

86. Section 4(3)-4(4), read with section 4(1)-4(2), in turn, read with sections 29-30, of the Succession Act displace what appears in Brown v Heffer at page 349 (commencing “It is true …”) when it is appreciated that a vendor retains legal title at death, together with contractual rights of a proprietary character governed by sections 29-30 of the Succession Act, the definition of “property” in section 4 of the Act and the definition in section 3(3) and the Dictionary in Schedule 4 of the Interpretation Act 1987 NSW.

87. The legislative history of sections 4, 29 and 30 of the Succession Act (so far as it can be discerned in oblique references to these provisions), the course of law reform reports leading to their enactment, and concerns about a perceived need to generalise the concept of property, all point to a reduction in the significance of a binary distinction between real and personal property in the construction and operation of a testamentary disposition of specific property.

88. The Succession Act is not in terms, constrained by a dichotomy between “real” and “personal” property. It does not in any sense abolish the distinction between the two concepts but it does diminish the significance of the distinction by removing it from centre stage. In a resolution of tension between the nature of property, contractual rights and obligations, and testamentary intention, the historical distinction between real and personal property is no longer a safe guide to testamentary intention.

89. Although it does not arise for consideration in the present proceedings section 32 of the Succession Act (another innovation of that Act) could bring to bear evidence of a testator’s intention extrinsic to a will and materially closer to death but falling short of an “informal will” admissible to probate pursuant to section 8 of the Act. Section 32 reads as follows:

“32 Use of extrinsic evidence to construe wills

(1) In proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will—

(a) meaningless, or

(b) ambiguous on the face of the will, or

(c) ambiguous in the light of the surrounding circumstances.

(2) Despite subsection (1), evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c).

(3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.”

THE STATUTORY SCHEME FOR THE MAKING AND CONSTRUCTION OF WILLS: THE SUCCESSION ACT 2006 NSW, Chapter 2

90. Section 4 of the Succession Act (found in Part 2.1 Division 1 of the Act under the heading “Making a Will”) provides as follows:

“4 What property may be disposed of by will?(cf WPA 5)

(1) A person may dispose by will of property to which the person is entitled at the time of the person’s death.

(2) Subsection (1) applies whether or not the entitlement existed at the date of the making of the will.

(3) A person may dispose by will of property to which the person’s personal representative becomes entitled, in the capacity of personal representative, after the person’s death.

(4) Subsection (3) applies whether or not the entitlement existed at the time of the person’s death.

(5) A person may not dispose by will of property of which the person is trustee at the time of the person’s death.”

91. Sections 29 and 30 of the Succession Act (found in Part 2.3 Division 1 of the Act under the heading “General Rules about Construction of Wills”) are in the following terms:

“Division 1 General rules about construction of wills

29 What interest in property does a will dispose of? (cf WPA 20)

If—

(a) a testator has made a will disposing of property, and

(b) after the making of the will and before his or her death, the testator disposes of an interest in that property,

the will operates to dispose of any remaining interest the testator has in the property.

30 When a will takes effect (cf WPA 21)

(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) This section does not apply if a contrary intention appears in the will.”

92. These sections are to be read with the following definitions found in section 3(1) of the Act:

“will includes a codicil and any other testamentary disposition”;

“property includes any valuable benefit”; and

“disposition includes the following—

(a) any gift, devise or bequest of property under a will,

(b) the creation by will of a power of appointment affecting property,

(c) the exercise by will of a power of appointment affecting property.”

93. By virtue of section 3(3) and the Dictionary in Schedule 4 of the Interpretation Act 1987 NSW the word “property” may be taken to mean “any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description, including money, and includes things in action”. The word “estate” is defined to include “interest, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity.” In so far as it may be incidentally relevant the expression “land” is defined as including “messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein.”

94. In construing the Succession Act, reference might also be made to the Interpretation Act 1987, section 33 (which mandates a purposive construction of legislation) and section 34 (which authorises use of extrinsic material in the interpretation of legislation).

95. They are in the following terms:

“33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision—

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes—

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as published on the NSW legislation website,

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d) any treaty or other international agreement that is referred to in the Act,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to—

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”

96. The legislative history of the subject provisions of the Succession Act, the course of law reform reports and parliamentary records leading to their enactment and concerns about generalising the concept of “property” all point to a reduction in the significance of a binary distinction between “real” and “personal” property in the law of succession.

97. As the section headings record, sections 4, 29 and 30 of the Succession Act respectively have their immediate antecedents in sections 5, 20 and 21 of the Wills, Probate and Administration Act 1898 NSW. The Succession Act incorporated, and replaced, provisions of the Wills, Probate and Administration Act 1898 relating to the making and construction of wills as a consequence of which the 1898 Act was renamed the Probate and Administration Act 1898 and continues in force under that name.

98. The legislative history of sections 4, 29 and 30 of the Succession Act is such that they can be traced back to the English Wills Act 1837, 1 Victoria chapter 26.

99. Until recent times it was not uncommon for Australian judges to describe local succession legislation by reference to the 1837 Act. That was historically justifiable because, as has been noticed, in New South Wales the English Act was literally adopted, in express terms, by the Wills Act 1839 NSW and it became foundational to probate law and practice.

100. In a condensed and revised “plain English” version, section 4 of the Succession Act echoes section 3 of the English Wills Act. Section 29 of the Succession Act echoes section 23 of the Wills Act. Section 30 of the Succession Act echoes section 24 of the Wills Act. There is an echo, but only that.

101. The Succession Act embodies change as well as continuity. The absence of an exhaustive definition of “property” may be taken to have been embraced to allow the word property “to have the present wide meaning and any future change to that meaning which the law may generate”: Parliament of Victoria Law Reform Committee, Reforming the Law of Wills (May 1994), page 69, paragraph [s.3.25].

102. The novelty of section 4 of the Succession Act may be taken to be illustrated by the following extract from that same Victorian Law Reform report (which fed into later reports and ultimately to the Succession Act (with emphasis added, omitting footnotes):

“S.4—What property may be disposed of by will?

Wills Act 1958 [Vic], s.5—All property may be disposed of by will.

s.4.1 In 1984 the Wills Working Party recommended that section 5 of the 1958 [Victorian] Act be replaced with a provision based on section 7 of the Succession Act 1981 (Qld). Section 4 of the 1991 Draft Wills Bill [prepared by the Victorian Law Reform Committee] attempts to rewrite existing precedent, without departing from it.

s.4.2 No Australian legislation has attempted to reconsider the detail of the original English Wills Act 1837 provision, s.3, although references to contingent, executory and future interests in property and rights of entry for condition broken or any other right of entry have historical connotations. The basic rule, that a person may dispose of any property to which the person is entitled at the time of death, was introduced by the 1837 Act to overcome limitations in the law relating to what type of property could be disposed of by will. The principal limitation was that a person could only dispose of property in the form to which he or she was entitled at the time of the making of the will. For example, if X owned Blackacre in fee simple and made a gift of that to Y in his will, and at a subsequent time X converted his interest to a leasehold interest, that latter interest would not pass to Y on the death of X.

s.4.3 The difficulty about attempting to draft a similar provision in more generalised language is that someone may argue that pre-1837 rules about the disposable nature of future interests have been revived. Nevertheless an attempt is made in the 1991 Draft Wills Bill to express this section in more contemporary language.

s.4.4 The Committee considers it desirable to make it clear that a testator may by will dispose of any property, including that to which he or she was not entitled either at the date of the making of the will or even at the date of his or her death. Thus an award of damages may perhaps not be finalised until after the death of the testator; or another person may by will leave property to the deceased but that gift may not be effective during the lifetime of the beneficiary but accrues, by virtue of his or her office, to the personal representative of the beneficiary–testator subsequently. The existing legislation does not make this clear.

Recommendation 9

The Committee recommends that it should be stated in the most general terms that a testator may include in a will any property to which he or she is entitled at death, or which accrues to his or her personal representative after death

s.4.8 For the reasons given in the consideration of s.3, which concluded with the recommendation that no definition of "property" should be included in that section, reference to future property is necessary for the particular purposes of s.4. A main objective of this more generalised approach to the description of future property is that the earlier precedents had probably been influenced by old law that there could be no devise of realty unless the realty was vested in the testator at the date of the will.”

103. Section 7 of the Succession Act 1981 (Qld) at the time of the publication of the Victorian Law Reform Committee Report (May 1994) was in the following terms:

“What property may be disposed of by will

7.(1) A person may, by will, devise, bequeath or dispose of any property to which the person is entitled at the time of the person’s death, not being property of which the person is trustee and in respect of which the person has no power of disposition by will, whether the person became entitled to the property before or after the execution of the will.

(2) Without limiting the generality of subsection (1), a person may, by will, dispose of—

(a) property that, if not disposed of by will, would devolve on the executor of the person’s will or the administrator of the person’s estate; and

(b) a contingent, executory or future interest in property, whether the person becomes entitled to the interest by virtue of the instrumentbyvirtueofwhichtheinterestwascreatedorbyvirtueofadisposition of the interest by deed or will and whether the person has or has not been ascertained as the person or 1 of the persons in whom the interest may become vested; and

(c) a right of entry for condition broken and any other right of entry.

104. Sections 4, 29 and 30 of the NSW Succession Act and the expansive definition of property seemingly do for the law of succession what section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 NSW did for the survival of a cause of action in tort upon death, focusing attention on contractual rights rather than characterisation of property as “real” or “personal”. I take that as an inference to be drawn from paragraph [s.4.4] of the report of the Law Reform Committee.

105. A distinguishing feature of the English Wills Act and equivalent NSW legislation, up to and including the Wills, Probate Administration Act 1898 was that the equivalents of sections 4, 29 and 30 of the Succession Act (unlike those sections themselves) referred not to “property” but to “real and personal estate which [a testator] is entitled to either at law or in equity at the time of his death”.

106. Section 3 of the 1898 Act, since amended to accommodate the Succession Act, has retained a complex definition of both “personal estate” and “real estate” (accommodating provisions such as section 73 which empowers the Court to appoint “an administrator of the personal estate and the same or any other person to be receiver of the real estate” of a deceased person) characteristic of, but not as complex as, section 3 of the English Wills Act, a marginal note to which read “all property may be disposed of by will”.

107. The original purpose of the English Wills Act was to overcome impediments to the due administration of a deceased estate attending the inheritance of land (governed by the common law in a feudal society) and the inheritance of personalty (administered by Ecclesiastical Courts) with a will disposing of land speaking at the date of the will (treating a will as bearing the character of a conveyance) and treating after-acquired land as passing on intestacy (Arthur Underhill, “Changes in the Law of Real Property”, Chapter 10 in A Century of Law Reform, published by the Council of Legal Education, MacMillan & Co, London 1901, page 321), in contrast with a will disposing of personalty, treating the will as speaking as at the time of death: McBride v Hudson (1962) 107 CLR 604 at 614-615.

108. As noted in Young, Croft and Smith, On Equity (Law Book Co, Sydney, 2009) at [12.560] FW Maitland in his classic lectures published posthumously under the title “Equity” (Cambridge University Press 1910; revised 1936) wrote (1st edition, page 215; revised edition, page 277):

“The equitable doctrine of conversion is the outcome of the fact that we [in England] have two systems of intestate succession, the one for realty the other for personalty: but for that unfortunate fact, there would have been no need of this doctrine”.

109. This sentence speaks only of intestate succession. Maitland’s text nevertheless goes on to discuss the operation of “the equitable doctrine of conversion” in the context of a devise of land to a trustee upon trust to sell the land and to apply the proceeds of sale for the benefit of a beneficiary.

110. In that context he wrote:

“The equitable doctrine of conversion has its root in this simple principle that when property has been given to a trustee, it must not be in the power of that trustee to alter the devolution of the beneficial interest by committing a breach of trust”.

111. Later, in the same chapter (entitled “Conversion”; 1st ed, pages 250-251; revised edition, pages 314-315) he noticed the seminal case of Lysaght v Edwards (1872) 2 Ch D 499 in the following terms:

“… And so when [a] contract [for the sale of land] is signed the purchaser has rights that he can convey to another; they are not treated as a mere chose in action; for the purpose of conveyance he has already an equitable estate in the land, though one which is subject to the vendor’s lien for the unpaid purchase money. But the vendor has yet the legal estate in the land, and any one who purchases from the purchaser must purchase subject to those legal rights. Unless in the case of some very peculiar agreement, the vendor may keep the legal estate, and may keep possession of the land until he is paid his price. If you say that the contract passes ownership, be careful to say that it does so only in equity.

So again it is common enough to say that the vendor becomes a trustee for the purchaser. And for certain purposes this is true enough. For example a man contracted to sell land, the title was accepted, but before conveyance he died, having by his will devised his real estate to X, and all real estate held by him upon any trust to Y; it was held by Jessel M.R. that the legal estate in the land sold passed under the latter devise and not under the former (Lysaght v. Edwards, 2 Ch. D. 499). He had become a trustee of the land that he had contracted to sell. Still the trusteeship of the unpaid vendor is a very peculiar trusteeship; one that stands by itself. In some respects he is rather in the position of the mortgagee than of the trustee. He can say I will not part with this land, I will not give up the legal estate, I will not deliver possession until I am paid. Then if the purchaser will not pay he has a right resembling that of foreclosure. He can go to the Court; the Court will order the purchaser to pay within a reasonable time, and in default of payment the purchaser will lose his right to the land under the contract, and the vendor will be in the same position as that in which he was before the contract was made, he will be owner at law and in equity.

Then again we may say that in another respect the purchaser, so soon as the contract is made, is treated as though he were the owner, provided that the contract is enforceable specifically. In the absence of agreement to the contrary the risk of loss is with him. …”

112. The plain English version of the English Wills Act found in the Succession Act is the product of law reform proposals that appear to have originated in Queensland and travelled to Victoria before adoption in NSW: NSW Legislative Assembly, 19 September 2006, page 1858 (Second Reading Speech on Succession Bill); Victorian Law Reform Committee, Reforming the Law of Wills (1994) paragraph [s41.1]; Succession Act 1981 (Qld), section 7; Queensland Parliament, Hansard, 14 April 1980, page 3215 (Second Reading Speech); Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, pages 29-31 and Draft Bill clause 7; S Janes, D Liebhold and P Studdert, Wills, Probate and Administration in NSW (Law Book Co, Sydney, 2020), pages 17-18.

113. In my opinion:

(a) At the time of the deceased’s death she was entitled, at least, to property in the form of the legal title to the King Street unit (as registered proprietor of an estate in fee simple in Torrens title land), coupled with rights (and obligations) under the contract of sale she had made with an unrelated purchaser: Succession Act, section 4(1). She was the registered proprietor of an estate in fee simple which was paramount: Real Property Act, section 42. Upon her death (subject to obtaining a grant of probate or administration in respect of her deceased estate) the plaintiff was entitled to apply to the Registrar General, by way of a Transmission Application, to be registered as proprietor of her estate or interest in the King Street unit: Real Property Act, section 93. Like any dealing under the Real Property Act, a transmission application is not effective to pass any estate or interest in land until registered: Real Property Act, section 41. Once registered as proprietor of land forming part of the deceased estate the deceased’s personal legal representative (whether an executor or administrator), such as the plaintiff, being “a fiduciary registered as proprietor pursuant to section 93 [of the Real Property Act]”, holds “the estate or interest in respect of which the fiduciary is so registered in trust for the persons for whom and purposes for which that estate or interest is applicable by law, but for the purposes of any dealing there with the fiduciary [is] deemed to be absolute proprietor thereof”: Real Property Act, section 96. This is consistent with the provisions of the Probate and Administration Act 1898 governing the administration of a deceased estate earlier noticed. (b) The deceased was entitled to dispose by will of that property to which the plaintiff, as her personal representative, became entitled upon a grant of representation (albeit an interim grant): Succession Act, section 4(3)-(4). (c) Although an unpaid vendor of land may loosely be described as a “trustee” of the land for the purchaser that relationship is not, of itself, a relationship of trust sufficient to engage the Succession Act, section 4(5); Chang v Registrar of Titles (1976) 137 CLR 177 at 181, 182, 185, 189, 190; Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164 at 191-192; Stern v McArthur (1988) 165 489 at 521-522; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [53]. (d) Upon an assumption that, by her entry into the contract of sale of the King Street unit, she had disposed of an interest in the property (a beneficial interest of the type contemplated by the definition of “property” in Schedule 4 of the Interpretation Act 1987), her will operated to dispose of any remaining interest she had in the property (a legal title to the King Street unit and a chose in action referable to her rights under the contract): Succession Act, section 29. (e) The deceased’s will operated to dispose of any remaining interest she had in respect of the property disposed of by her contract for sale; namely, her chose of action to enforce the contract, including a right to rescind the contract or receive the purchase price: Succession Act, section 29. (f) The deceased’s will took effect, with respect to the property disposed of by the will, as if the will had been executed immediately before the death of the testator (conferring on the charities a right, as tenants-in-common in equal shares, to the net proceeds of sale of the King Street unit): Succession Act, section 30. (g) The property the subject of the deceased’s testamentary gift referable to the King Street unit was found amongst her property (her estate) at the time of her death whether the King Street unit is taken to have been sold at the time of contract before her death or the date of completion of the contract after her death. There is no disparity between the property rights held by the deceased at the time of her death and the subject matter of her gift of the unit to the charities. That conclusion follows from a view of the factual matrix through the prism of the Succession Act 2006, the Probate and Administration Act 1898 and the Real Property Act 1900, noting that the contract for the sale of the unit contained rights which were capable of transmission upon death (not simply personal to the parties to the contract) and which specifically contained a right of rescission accruing to the deceased’s estate on death (so that the operative determination to sell the land by this contract, or not, arose on death), that the contract was not amenable to an order for specific performance at or about the time of death, and that the plaintiff (as legal personal representative of the deceased) retained control of whether, in view of the deceased’s death, the contract should or should not proceed to completion.

114. On this analysis there is little, if any, scope for an equitable “ademption by contract”, based upon an equitable doctrine of conversion or the equitable maxim that Equity looks on as done that which ought to be done. Legislation instead operates according to its terms. Those terms which do not, on the face of the Succession Act, recognise an operative distinction between real property and personal property.

115. This analysis requires construction of three types of text (the legislation governing the particular case, the will of the deceased and the contract for sale which she entered before her death), each according to its own context and purpose. That common feature, a purposive construction, serves the coherence of the law.

116. In the context of the Succession Act the equitable doctrine of conversion is not required to mediate between concepts of real and personal property; to superimpose upon an analysis of contractual rights and obligations a general maxim about what “ought to be done”, distracting attention from what has been done, and remains to be done, in the performance of a contract; or generally to inform an assessment of testamentary intention with regard to the disposal of property.

THE PLAINTIFF’S SUBMISSIONS REVIEWED

117. The authorities relied upon by the plaintiff in support of his contention of ademption by contract (principally, Fairweather v Fairweather (1944) 69 CLR 121, Re Morton [1963] VR 40 and Lysaght v Edwards (1872) 2 Ch D 499) do not get him home. None of them were decided in the context of the statutory regime of which Chapter 2 of the Succession Act 2006 NSW currently provides, if that matters. Moreover:

(a) Although Fairweather v Fairweather (at 129, 135 and 142 remains in standard texts (for example, G E Dal Pont, Law of Succession (Lexis Nexis, Australia, 3rd ed, 2021, paragraphs [6.11], [6.12], [7.32]; Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (Lexis Nexis, Australia, 6th ed, 2024, paragraph [13.11c]) a primary authority for a statement of “propositions” put forward as guidelines to a finding of ademption by contract upon succession to land, those propositions (distilled by Latham CJ rather than expressly enumerated by the judgment of Roper J in Gilder v Fairweather (1943) 44 SR (NSW) 229 at 231) do not focus attention upon a conditional contract (between the deceased and a non-beneficiary) such as the contract for the sale of the King Street unit or on the need, in each case, to ground a finding of ademption upon the terms of a particular will, the terms of a particular contract, identification of the subject matter of a testamentary gift and consideration whether property the subject of the gift can be found in the estate of the deceased. The reasoning of Roper J underlying the “propositions” distilled by Latham CJ was based upon a simplistic assumption that “on entering into [a contract for the sale of land] the interest of the testator is in equity entirely changed [from realty to personalty]. Thereafter, he is merely a trustee of the legal estate which he still holds, and his real rights are the contractual rights to receive the purchase price”. No reference to the seminal judgment of Sir George Jessel MR in Lysaght v Edwards (1872) 2 Ch D 499 for this proposition can be found in the judgments of the High Court or Roper J. (b) Lysaght v Edwards remains authority for a more nuanced characterisation of the relationship between a vendor and purchaser between the time of contract and the time of completion, but it cannot be analysed otherwise than in the context of the availability of an unconditional order for specific performance (as recognised in judgments of the High Court including Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [53]) and, in terms, it requires for a finding of conversion a “valid contract”, meaning a contract binding on both parties without “a ground for setting it aside as between vendor and purchaser” (Lysaght v Edwards at 507; Meagher, Gummow and Lehane, paragraphs [35-060]-[35-080]). (c) The judgment of Pape J in Re Morton [1963] VR 40 rises no higher than Lysaght v Edwards. (d) The current statutory scheme for the construction of wills particularly sections 29 and 30 of the Succession Act 2006 NSW (informed by the definitions of “will”, “disposition” and “property” in section 3(1), and section 4, of the Act) undermine the premise in Fairweather that an “ademption by contract” is effected at the time of contract, rather than at the time of death.

118. In Catholic Parish of St Brig**id Marrickville v Habib as Executor of the Estate of the late Tereza Efram [2022] NSWSC 1139 at [64]-[86] Slattery J explained the significance and operation of section 30 by reference to the judgment of Dixon CJ in McBride v Hudson (1962) 107 CLR 604, the judgment of Windeyer J in Pohlner v Pfeiffer (1964) 112 CLR 52 and the judgment of the Western Australian Court of Appeal in Walsh v Adrian Sloan as executor of the estate of the late Loretta Dorothy Keddie [2019] WASCA 107, reconciling the “armchair principle of construction of a will” (which requires the Court to place itself in the position of the will-maker at the time of execution of a will) and the general proposition adopted by section 30(1) that 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.” As section 30(2) provides, the general rule does not apply “if a contrary intention appears in the will.”

119. The words of a will are conventionally taken to be read as at the date when the testator wrote them in order to see to what property they refer, remembering that words of general description include after-acquired property. That having been done, the will so construed is read as at the date of death of the testator to see to what property the testator was referring: McBride v Hudson at 615-616; Pohlner v Pfeiffer at 75-79; Walsh v Sloan [28]-[29].

120. As Windeyer J wrote in Pohlner v Pfeiffer at 79: “The question in every case is whether, upon the true construction of the will, a thing in existence at death is the specific thing, or a thing of the genus [kind], that the words of the will described when they were written”.

PROCEDURAL STEPS

121. What is clear from the evidence before the Court is that the plaintiff gave no notice of his application for an interim grant to the charities, still less notice of his contention that the gift “of the King Street unit” had adeemed or his intention to complete the contract despite having a contractual right of recission.

122. The plaintiff, on legal advice, took it upon himself to waive the right of recission by completing the contract (in circumstances in which he must be taken to have known that his duty as an administrator and his personal interests as a residuary beneficiary were in conflict) without consulting the interests of the charities or seeking judicial advice about the course of action he proposed to take in completing the contract.

123. The plaintiff’s contention that the gift “of the King Street unit” had adeemed came to the attention of the Probate Registry who, in my view correctly, expressed scepticism about the case advanced by the plaintiff.

124. In his notice of motion, the plaintiff seeks, essentially, the following relief:

(a) A declaration that the gift of the property known as 6/7-9 King Street, Campbelltown in clause 8 of the will of the deceased to each of the charities fails. (b) An order that the net proceeds of sale of the King Street unit be distributed by the plaintiff pursuant to the terms of clause 9 of the deceased’s will.

125. The interests of the three charities on a hearing of the plaintiff’s notice of motion are identical. That the first defendant did not participate in the hearing does not preclude it from taking advantage of the submissions of the second and third defendants in opposition to the notice of motion.

126. The third defendant invites the Court to dismiss the plaintiff’s notice of motion and, instead, to make a declaration to the following effect:

“DECLARE that on the proper construction of the will of the deceased the defendants [the charities] are equally entitled to the net balance of the proceeds of sale of the [King Street unit].”

CONCLUSION

127. Having concluded that the gift to the charities in clause 8 of the deceased’s will is not the subject of an ademption arising from her entry into a contract for the sale of the King Street unit, I propose to make a declaration substantially in the form proposed by the third defendant.

128. That determination, in itself, does not dispose of the questions in dispute between the parties.

129. The question of costs requires case management in several respects.

130. First, attention needs to be given to quantification of the net proceeds of sale of the King Street unit because, it seems, the plaintiff has drawn on the proceeds of the sale in the payment of “fees” and “costs” of “the current proceedings”.

131. Secondly, although the costs of all parties to “the current proceedings” (which I take to be costs referable to the plaintiff’s notice of motion filed 24 March 2026) might ordinarily expect their costs to be paid out of the residuary estate of the deceased, the residuary estate is said to be insufficient to satisfy the costs of the charities, let alone the plaintiff.

132. Thirdly, the charities contend, and I accept, that they should not be burdened with costs of proceedings imposed upon them by the plaintiff’s contentions insistence that the gift in clause 8 of the will relating to the King Street unit had adeemed, meaning (they submit ) that they should be paid their costs assessed on the indemnity basis and their testamentary entitlements should not bear any burden of the costs orders.

133. Fourthly, in considering what provisions should be made for the charities’ costs (both in the allocation of the burden of costs and in determination of the basis for assessment), the charities contend, and I accept, that the plaintiff made the decision to waive the deceased estate’s right of rescission, and to advance a case for ademption, in his own interests as a residuary beneficiary and without consultation with them or judicial advice. (It is not necessary to dwell on the question whether, had the gift to the charities been held to have adeemed by reason of the plaintiff’s self-interested determination to effect an ademption at their expense, they would have had a remedy, at law or in equity, in the form of a claim for compensation against him. It is sufficient, the allegation of ademption having been dismissed, to take his conduct into account on the question of costs.)

134. Fifthly, there is no evidence before the Court as to whether the plaintiff acted as he did with the knowledge and approval of other beneficiaries (particularly other residuary beneficiaries) to whom he might look for an indemnity for any costs that might otherwise have to be borne by him.

135. Sixthly, the fact that the plaintiff is the recipient of a specific gift of real estate under the will of the deceased, as well as a residuary beneficiary, invites consideration of the possibility that any obligation on him to pay costs might be charged against the property specifically gifted to him.

136. Seventhly, consideration might appropriately be given to the availability of lump sum costs orders in favour of the charities in order to facilitate the due administration of the deceased’s estate.

137. Prima facie, I am of the view that the costs of the charities of and incidental to the plaintiff’s notice of motion should be paid, on the indemnity basis, by the plaintiff personally without recourse to the property referred to in clause 8 of the deceased’s will; that he be indemnified out of the residuary estate (so far as it is available), reserving such, if any, right of indemnity he may have against other beneficiaries (if, for example, they approved the course he followed in initiation and maintenance of these proceedings); and that the plaintiff’s obligation to pay the charities their costs be charged against his interest in the estate of the deceased.

138. Before making final orders I will allow the parties an opportunity to bring in draft short minutes of orders that address the unresolved questions of the quantum of the net proceeds of sale and orders for costs.

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