Waddell v Waddell

Background Facts 6The Notice of Appeal does not challenge any of the primary facts that were found by the primary judge. 7For simplicity, I shall refer to the various members of the Waddell family by their first names, without intending any disrespect in doing so. 8Ron and his wife Vera had four children. They were the Appellant, known as Bill, born in 1942, Ken, who was born in 1944, Len, born in 1946, and Diane, born in 1953. 9Ron's father, William Waddell ("William"), had owned the 10 acre block until his death in January 1981. This piece of land was sometimes referred to as "Grandpa's Block". For many years prior to William's death, Ron had owned a block of 46 acres that was immediately adjacent to the 10 acre block. Ron conducted an orchard on the properties, working the two blocks together as though there were a single property. 10Ken left school in November 1959 at the age of 15, to work on his father's farm. He has worked there ever since. Upon leaving school, the other three of Ron's children pursued careers other than full-time work on the farm, though from time to time various of them assisted with work there until their early adulthood. 11William came to live on the 10 acre block in 1963. From that time, Ken had close contact with his grandfather. The judge found: "During his lifetime William Waddell encouraged Ken to stay on the farm. It was William's direct encouragement along with Ken's sense of duty that kept Ken on the farm until William's death in 1981. About 10 years before William's death I accept Ken's evidence that William said to him words to the effect 'Ken, I really want you to have my property but I think we should leave it to Ron first so that he can continue to farm the property as a whole.' William's statements kept Ken interested in staying on the farm in the long term but Ron did not repeat or reinforce them before William died in 1981." 12When William died in January 1981, his last Will left his entire estate to Ron. Ron's 1981 Will and his Statements About It 13On 16 July 1981, Ron made a Will that remained unchanged until 11 November 2005. He appointed Vera as sole executrix, and gave her all his property. If she predeceased him or failed to survive him by 30 days, he appointed Bill and Ken as executors, there was a specific gift of the 10 acre block to Ken, and the residue was to be divided between Ron's four children and Ms Tinkler in unequal shares. In particular, Ken was to receive one-third of the residue. As it happened, Vera predeceased Ron. 14In 1981, after Ron had made the 1981 Will, Bill said to Ken: "Dad got the solicitor to come out to the farm and Dad asked me to be present so I was. You're definitely getting grandpa's 10 acres and you're getting one-third of the rest of the property." 15The judge found: "This seems to have been quite a solemn statement. Bill had been present when the 1981 will was made. By saying this to Ken, Bill was deliberately conveying Ron's 1981 testamentary intentions to Ken. It is unclear on the evidence whether Ron specifically asked Bill to convey this information to Ken. But the evidence of later statements made in Ron's presence and that he conveyed to third parties who he (Ron) knew had contact with Ken, means in my view that he must have expected this information to be conveyed to Ken and he must have known soon after it was conveyed that it had been conveyed." 16The judge found that Ron "was a man with an open and friendly nature ... when Ron found himself with a person ready to talk he enjoyed what would be commonly called 'a good yarn'." Consistent with his character, Ron spoke about his testamentary intentions with various people outside the family. Four of them gave evidence and were cross-examined. The judge accepted their evidence. He found: "The number of persons with whom I find that he shared such information is an indication, in my view that he had strong and well-formed testamentary intentions." 17Mrs Iris Black knew the Waddell family from 1966. In about 1976, William said to her: "I would like my property to go to Ron after I pass away but then my property to go [to] Ken." 18In about 1980, Ron said to her: "Grandpa's property will be left to me but I will eventually leave grandpa's property to Ken, because that's what grandpa wanted." 19Mrs Black, and various friends including Ron, would go to the Dural Country Club "every Friday night" in the early 1990s. Her evidence was that at those occasions: "... Ron would always say, 'I've got no problems with what I want to do because Ken is entitled to 10 acres of grandpa's and part of the farm because that was always grandpa's wish that Ken have that 10 acres after I passed away." 20On numerous occasions, Ron said to her: "Ken is entitled to more than the other family because he came to the farm at the age of 15 and I think he should get more than the rest of family." 21Mr John Millauro is a fruit salesman who was involved in the selling of the Waddell family's fruit at Flemington Markets. He visited the Waddell family about five times a week between 1975 and when Ron and Vera passed away in 2009. In about 1983 he had a conversation with Ron: "Ron Waddell: I have a bloke who's interested, wants to buy the place. He's got 9 kids, loves the farm, wants to buy it. Mr Millauro: Ron, at the end of the day, you've got 5 kids, you love the farm, where are you going to go? Not only that, Ken knows the farm and he'll look after it for you. Ron Waddell: I promised Ken the 10 acres up the top for staying on the farm with me." 22In mid-1985, Ron said to him: "I promised that 10 acres to Ken because he stayed on with me." 23In about 1988, Ron said to him: "I've promised that 10 acres to Ken for being on the farm with me and staying on the farm and working." 24Mr Gerard Hill was a plumber who regularly did plumbing and drainage work at the Waddell's orchard. In 1995, Mr Hill was requested to do some plumbing work on the fibro house situated on the 10 acre lot. In the course of Ron and Mr Hill inspecting a pipe that was leaking and needed repair, the following conversation occurred: "Ron Waddell: What do we do about this? Mr Hill: You'll have to renew the whole lot. Ron Waddell: Bloody Ken should be paying for this one. Mr Hill: Why? Ron Waddell: Because when I die, this is his joint, Mr Hill: How come it's his. Ron Waddell: Because I promised it to him as he's been with me from the beginning and without Ken I would have had to shut shop years earlier because I can't do this work any more." 25Later in 1995, Mr Hill, Ron and Ken were on the 10 acre lot, inspecting a blocked sewer. The following conversation occurred: "Mr Hill: Well, it's going to cost you more money mate. Ron Waddell: Yeah, I know that. Mr Hill: Well, do you want me to bill Ken? Ken Waddell: No, it's not mine yet, he's [referring to Ron] not dead yet. Mr Hill: To make it cheaper, let's get Ronnie Keel up to dig the trench that way you can get some of the rent he owes you. Ron Waddell: Beauty" 26Mr Harold Cranston was an old friend of Ron, in regular contact with him. He recalled a conversation with Ron in the mid-1980s. Upon asking Ron how Ron's family were going, he received the following reply: "Ron Waddell: It's hard times, well, they're very hard times, but you've got to work through them. Mr Cranston: Well, how are all your lot going? Ron Waddell: They're all doing pretty well, Len's with Qantas, he's doing extremely well, Billy is with Johnny Allan, [he's] liking that and doing well, Ken is helping Vera and me on the farm, we couldn't do without him. As far as we're concerned, we're doing well but the old man took a particular interest in Ken and wants Ken to have the block on the hill." 27The "block on the hill" was the 10 acre block. Mr Cranston and Ron had conversations to similar effect on a further five or six occasions from the mid-1980s to the year 2000. 28Affidavits were read from two witnesses who were not cross-examined because one had died and the other was ill. The primary judge accepted their evidence, though he accorded it less weight than that of witnesses who had been cross-examined. One of them, Mr Robert Tunks, gave evidence of conversations with Ron in the early 1990s, about 1995 and about 1997, in each of which Ron said that Ken was going to get the 10 acre block. In the 1997 conversation, Ron said that Ken was going to get the 10 acres "for his loyalty and the work that he's done for many years." 29Mrs Dorothy Keel rented a property on the Waddell family farm in about 1980, and worked on the farm periodically. She gave evidence of an occasion in 1995 when she asked Bill what would happen after Ron's death. Bill told her: "He's covered all bases and made out a will and I'm a witness to the will...and Ken gets Grandpa's 10 acres and the rest of us are well looked after. For all that Ken's put into the farm, he gets the majority of the estate." Ken's Knowledge of Ron's 1981 Testamentary Dispositions 30Ken's information about Ron's testamentary dispositions did not only come from the conversation he had with Bill soon after the July 1981 Will was made ([14] above). Over the years that Ken and Bill were working on the property together, they often had conversations in which Bill would say "you'll get grandpa's block plus a third of the balance". On several occasions in the 1990s, Mr Millauro told Ken: "Your dad said to me that he's going to leave you the 10 acres for your loyalty and service and all the work that you've done." 31In the 1990s Mr Tunks said to him: "Your father said to me you'll get grandpa's block." He also heard the information from other people who he could not specifically identify. The 1995 conversation between Ken, Ron and Mr Hill ([25] above) is explicable only if Ken knew of Ron's intended testamentary dispositions and had them in mind at the time of the conversation. Work on the Farm 32When Ken first worked on the farm he was paid no wage at all. Instead, he took small amounts of money to meet particular needs such as fuel and food. He married in April 1967, after which "income became more regular but still wasn't enough to get by". He made extra money by running a roadside stall with his mother. Even by 1981, the farm was not generating a sufficient income to employ someone to work the hours that Ken worked. 33There is no dispute that Ken worked hard on the farm. The judge found that he "was working on the farm approximately a 60 hour week (7am - 5pm six days a week) plus other duties which became especially intense during the picking season." There is undisputed evidence that Ron realised the amount of work that Ken was doing, regarded the work as useful and effective, and approved of the way Ken worked. He made remarks to that effect to various friends. 34Vera's brother, Dave Johnson, had for many years carried out work on the orchard for wages and the right to occupy a cottage. However, he became ill, and in 1986 he retired. The judge found: "When Mr Johnson retired the family needed to restructure the working arrangements. They could not afford to employ someone else full time. So Bill was approached to assist in running the farm." 35Though Bill had not been involved in regular daily work at the orchard prior to 1986, on 1 November 1986 a partnership agreement was entered between Ron, Bill and Ken concerning the running of the orchard business. In 1987, Bill started working on the farm on a regular basis. The partnership agreement had provision for the partners being paid a weekly salary. Initially a salary of $1,000 per month was paid to each partner. It was incrementally adjusted upwards thereafter, until by the time Ron died in 2009 a salary of $2,400 per month was being paid to each partner. The judgment says that these salaries were respectively $1000 per week and $2400 per week, but that does not accord with the evidence and must be a slip. 2005 Events Re Ron's Will 36The only time there was a direct conversation between Ron and Ken about Ron's testamentary intentions was in April 2005. The following conversation occurred: "Ken Waddell: Dad, I feel as if maybe Bill has not been properly looked after as he's given up his career to assist us on the farm. Ron Waddell: In what way? Ken Wadell: I know that you have left him in the same position as Lenard I know that you've left me Grandpa's Block and one-third of the balance. I would be prepared to give up part of my share to assist Bill. Ron Waddell: Whatever you reckon. Ken Waddell: That will be fine with me." 37Mr Joseph Francis is a solicitor who had acted for members of the Waddell family for many years. He saw Ron and Vera together on 29 June 2005. (The judgment at [80] puts that conversation as occurring in January 2005, but that is a clear typographical error.) The following conversation occurred: "Joe: Ron, what do you want to do in your Will? Ron: I want to leave the 10 acres to Ken. Joe: When you say the 10 acres, do you mean [the 10 acre block]? Ron: Yes. Joe: I'm concerned because the provision in the old Will leaves [the 10 acre block] to Vera in the first instance and not Ken. Vera: I don't want that property, I just want 391 Galston Road. Ron: [The 10 acre block] is for Ken because he's always worked on the farm." 38In that conversation Ron said at least twice 'the 10 acres is for Ken because he has always worked the farm". Immediately after the meeting Mr Francis made a typed file note that summarised the addresses and title references of various parcels of real estate that Ron owned. Concerning one address and title reference it said: "XXX-XXX Galston Road - Volume XXXX Folio XXX, Lot 1 in DP XXXXXX - 10 Acres (This is the property that has always been promised by Ron to Ken) in appreciation for Ken's loyalty and efforts in working the farm for so many years." 39Ron did not have any further discussion with Mr Francis about making a Will. He made the Will dated 11 November 2005 with the assistance of a different solicitor. Despite the communication recorded by Mr Francis, the Will did not specifically devise the 10 acre block to Ken.