BARBARA DOROTHY BOWER [2024] SASC 146

Applicant: BARBARA DOROTHY BOWER Counsel: MR M TAYLOR - Solicitor: ADELTA LEGAL First Respondent: VICKI MARIE BOWER In Person via Telephone Second Respondent: TANIA MICHELLE BOWER In Person Hearing Date/s: 14/05/2024 File No/s: CIV-23-009262 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BOWER v BOWER & ANOR [2024] SASC 146 Judgment of the Honourable Justice Stanley 16 December 2024 SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - WHAT INTEREST PASSES - LICENCE, LIFE ESTATE OR FEE SIMPLE SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WHERE UNCERTAINTY SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - INTEREST OF BENEFICIARY IN PARTICULAR PROPERTY This is an application for directions and advice pursuant to section 69 of the Administration and Probate Act 1919 (SA). The dispute relates to the proper construction of the will of Rex Bower (the deceased) dated 5 June 2003. The applicant is the widow of the deceased and the sole executrix and trustee of his will. The applicant and the deceased purchased a property in Wynn Vale (Wynn Vale property) in July 2002 as joint tenants. In April 2003 they effected a transfer of the property to change the ownership to tenants in common in equal shares. By his will, the deceased bequeathed his half-share of the property to the applicant upon trust for her lifetime subject to certain conditions and cessation factors. The applicant now wishes to sell the Wynn Vale property and to utilise the proceeds to purchase a smaller residence. The respondents are children of the deceased and residual beneficiaries of the deceased’s will. The applicant and the respondents are in disagreement as to the how the proceeds of the sale of the Wynn Vale property ought to be used. -- 1 of 12 -- The issue before the Court is whether the applicant can use the trust share of the proceeds of sale of the property to purchase alternative accommodation and live in that accommodation or purchase further alternative accommodation, during her lifetime. Held: 1. The deceased’s will cannot deal with the half interest that is held by the applicant as a tenant in common. The deceased had no basis when making his will to make any provision for that half interest as it did not form part of his estate. 2. Words in a will cannot be made to bear a meaning which on the face of the will they are incapable of conveying. 3. The applicant is entitled to sell the Wynn Vale property and employ the proceeds of sale to purchase a new property for her accommodation. The applicant is under no obligation to use her own resources for the purposes of purchasing subsequent accommodation. 4. The applicant in her capacity as executor of the deceased’s estate is to divide the net proceeds of any sale of the Wynn Vale property with one portion to be paid to the applicant in her personal capacity and one portion (trust share) to be paid to the applicant in her capacity as executor of the deceased estate. 5. The applicant, in her capacity as executor of the deceased's estate is to register the title of any new property: i. In her name as executor of the deceased’s estate; ii. In her personal capacity enjoying a life interest in the estate; and iii. In the event she was to use her own funds to purchase any subsequent property, in her personal capacity, as distinct from the trust share and her life interest. 6. The proportions on the title are to reflect the contribution from the trust share to the purchase of such new property and the contribution by the applicant in her personal capacity as distinct from the trust share and her life interest. 7. The applicant’s costs of and incidental to this application are to be paid by the respondents. 8. The parties are granted liberty to apply. Real Property Act 1886 (SA) s 64; Administration and Probate Act 1919 (SA) s 69, referred to. Farrelly v Phillips (2017) 128 SASR 502, applied. -- 2 of 12 -- BOWER v BOWER & ANOR [2024] SASC 146 Civil - Application STANLEY J: Introduction 1 This is an application for directions and advice pursuant to section 69 of the Administration and Probate Act 1919 (SA). On 5 June 2003 Rex Bower (the deceased) of 17 Sauvignon Court, Wynn Vale (the Wynn Vale property) made his last will. The applicant Barbara Bower (Barbara) was his wife when he made his will and at his death on 2 June 2007. Barbara was appointed as executrix and trustee of his will. The will included the following provisions: 2. IF my wife BARBARA DOROTHY BOWER shall survive me for the period of twenty-eight (28) days then but not otherwise the following provisions shall apply: a) I APPOINT my said wife to be the sole executrix and trustee of this my Will. b) I GIVE DEVISE AND BEQUEATH free of all duties, death, estate, succession or otherwise State of Federal my real estate situate at and known as 17 Sauvignon Court, Wynn Vale in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume 5444 Folio 678 (hereinafter referred to as “the Wynn Vale property”) to my trustee UPON TRUST for my said wife for her life subject to my said wife paying all rates, taxes and other outgoings thereon and keeping the Wynn Vale property in a good state of repair and insured against fire to the satisfaction of my trustee and subject to payment by her during such life estate of all instalments of principal and interest payable under any mortgage secured thereon. c) I EMPOWER my trustee at the request of my said wife to sell the Wynn Vale property and to employ the proceeds of such sale in the purchase of another residence including but not limited to a home unit, serviced apartment, hostel, nursing home or other such assisted accommodation with such residence to be held upon the same trusts including the trust for sale and repurchase as hereinbefore declared in respect of the Wynn Vale property. d) I DIRECT that the life estate of my said wife shall cease upon the death of my said wife, upon my said wife remarrying, entering into a de facto relationship or vacating the property for a continuous period of no less than three calendar months whichever shall first occur. e) UPON the cessation of my said wife’s life estate the Wynn Vale property or such place of residence purchased in substitution thereof shall be divided between my nominated beneficiaries in accordance with paragraph 3(b) hereunder subject to the provisions of paragraphs 3(d) and (e) hereunder. f) I GIVE DEVISE AND BEQUEATH the rest and residue of my estate both real and personal of whatsoever nature and whatsoever situate to my said wife for her sole use and benefit absolutely. -- 3 of 12 -- [2024] SASC 146 Stanley J 2 3. IF my said wife shall not survive me for the aforesaid period then the following provisions shall apply: … b) I GIVE DEVISE AND BEQEATH free of all duties death estate succession or otherwise State or Federal the Wynn Vale property or such place of residence purchased in substitution thereof to my trustee UPON TRUST to divide the same into ten (10) equal parts and to distribute the same to the following persons in the following manner: i) as to three (3) equal parts to such o the children of my wife BARBARA DOROTHY BOWER, namely DAMIEN MARC HEFFERNAN, TODD MICHAEL HEFFERNAN and WADE MATTHEW HEFFERNAN as shall be living at my death and if more than one in equal shares as tenants in common for their sole use and benefit absolutely; and ii) as to the remaining seven (7) equal parts to such of my children, namely, PHILLIPS JOHN BOWER, VICKI MARIE BOWER and TANIA MICHELLE BAYRE as shall be living at my death and if more than one in equal shares as tenants in common for their sole use and benefit absolutely. PROVIDED ALWAYS that if any of my said children or said step-children named in paragraph 3(b)(i) and (ii) hereof die during my lifetime leaving a child or children living at my death then such last mentioned child or children shall take and if more than one equally between them the share of which his, her or their father or mother would have taken under this my Will if he or she had been living at my death. 2 Barbara was granted probate of the deceased’s will on 9 August 2007. 3 The respondents, Vicki Marie Bower (Vicki) and Tania Michelle Bower (Tania), are children of the deceased1 and residual beneficiaries of the deceased’s will, along with their sibling Phillip Bower (Phillip) and Barbara’s children, Damien Marc Heffernan (Damien), Todd Michael Heffernan (Todd) and Wade Matthew Heffernan (Wade). 4 The Wynn Vale property was purchased by the deceased and Barbara in July 2002 as joint tenants. Before the deceased made his will, he and Barbara effected a transfer of the Wynn Vale property to change the ownership from a joint tenancy to tenants in common in equal shares. Apart from the trust established by the will granting Barbara a life interest in the property, the will leaves the residue of the deceased’s estate to Barbara. 1 I note that the second respondent Tania Michelle Bower is not a named beneficiary in the will. I further note that the will names Tania Michelle Bayer as a beneficiary. I have assumed that both are the same person. No submission to the contrary was put to the Court. -- 4 of 12 -- [2024] SASC 146 Stanley J 3 5 Barbara now wishes to sell the Wynn Vale property and to utilise the proceeds to purchase a smaller residence. 6 The position is complicated by the fact that Barbara owns a one-half share of the Wynn Vale property in her own right as a tenant in common, and holds the other half of the Wynn Vale property on trust as a life interest in accordance with clause 2(b) of the deceased’s will. Pursuant to clause 2(c) Barbara as the trustee of the life interest trust is empowered to sell the property and to transport the life interest trust to another property at her request subject to certain conditions which dissolve the life interest. None of those conditions have occurred. The deceased’s will provides that the remainder interest in the half share of the Wynn Vale property held as a life estate by Barbara is held on trust by her for her children and stepchildren including Vicki and Tania. 7 By clauses 2(e) and 3(b) of the will, upon Barbara’s death, the Wynn Vale property should be divided into 10 equal parts and distributed as follows: • three equal parts for Damien, Todd and Wade; and • seven equal parts for Phillip, Vicki and Tania. 8 Tania and Wade’s shares are subject to deductions of $40,000 and $6,300 respectively gifted to them by the deceased inter vivos. 9 Vicki and Tania represented themselves in the proceedings. It is not entirely clear whether they initially opposed the sale of the Wynn Vale property but, whatever their initial position, as I understand it, they no longer object to the sale of the Wynn Vale property. If the Wynn Vale property is sold, they wish that any new property to be purchased for Barbara’s accommodation should be paid on the basis that 50 per cent of the purchase price should be paid from the proceeds of sale of the Wynn Vale property and the other 50 per cent should be purchased by Barbara from her own resources. In the alternative, they want the surplus left after the purchase of a replacement property, utilising the proceeds of sale of Barbara’s life interest, distributed to the children in accordance with the terms of the will. 10 Barbara does not agree with their position. As a result, Barbara has applied to the Court for advice and direction. 11 Barbara seeks an order that Vicki and Tania should pay the costs of this application. Vicki and Tania contend that the costs should be paid from the residue of the estate rather than the specific gift portion of the Wynn Vale property. 12 The issue before the Court is whether Barbara can use the trust share of the proceeds of sale of the Wynn Vale property to purchase alternative accommodation and live in that accommodation, or purchase further alternative accommodation, during her lifetime. 13 The issue is a question of the true construction of the deceased’s will. -- 5 of 12 -- [2024] SASC 146 Stanley J 4 Principles of construction of wills 14 In Farrelly v Phillips2 I discussed the principles applicable to the construction of wills as follows:3 The task of a court when construing a will is to discover the intention of the testator. In Perrin v Morgan, Lord Romer said: “I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.” Lord Simon said: “ … [t]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case — what are the ‘expressed intentions’ of the testator.” In Fairbairn v Varvaressos Campbell JA cited with approval the dicta of Bryson J in Perpetual Trustee Co Ltd v Wright, where his Honour said: “ … one's task is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.” In Muir v Winn Bryson AJ observed: “It is necessary to seek to understand the scheme of a testator's dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important.” The appellant seeks to rely upon the so-called “armchair principle”. This was described in Allgood v Blake by Blackburn J as follows: “The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words … the meaning of words varies according to the circumstances of and concerning which they are used.” There are two qualifications to the armchair principle. First, when the court considers the circumstances known to the testator, it is only the circumstances existing at the time the testator made his will that may be considered. Second, extrinsic evidence cannot be used to make words in a will bear a meaning which on the face of the will they are incapable of conveying. This is sometimes described as the “incapable meaning rule” or the “plain 2 (2017) 128 SASR 502. 3 Farrelly v Phillips (2017) 128 SASR 502 at 508-511. -- 6 of 12 -- [2024] SASC 146 Stanley J 5 meaning rule”. In relation to the armchair principle, Lord Romer observed in Perrin v Morgan, that when seated in the armchair the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he plainly said. In Marley v Rawlings, the Supreme Court of the United Kingdom has recently approached the construction of wills on the same basis as the interpretation of contracts. The Court adopted the objective theory to ascertaining the testator's intention, which it found to be consistent with the armchair principle. Lord Neuberger, with whom Lord Clarke, Lord Sumption and Lord Carnwath agreed, said: “When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd, ‘No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.’ To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan that ‘courts will never construe words in a vacuum’. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd. … [T]he approach to the interpretation of contracts … is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th ed (2010), chapter 15 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty to Animals v Sharp). Indeed, the well known suggestion of James LJ in Boyes v Cook that, when interpreting a will, the court should ‘place [itself] in [the testator's] arm-chair’, is consistent with the approach of interpretation by reference to the factual context.” Marley v Rawlings has been applied in a number of single judge decisions in Australia. This approach is conducive to coherence in the law of construction of instruments consistent with the approach taken in the joint reasons of Heydon and Crennan JJ in Byrnes v Kendle. While the task of the Court in construing the will is to ascertain the intention of the testatrix, the Court must take care to avoid interpreting the will on the basis of some a priori assumption about the testatrix's intentions. The surest guide to the testatrix's intention is the language of her will. Her expressed intentions are embodied in its text read in light of the surrounding circumstances in accordance with the armchair principle. The search is for her expressed intentions, not what she meant to say, but what she actually said. In that context, a question arises as to whether, in construing the will, the Court can have regard to earlier drafts of the will. In my view it is open to the Court to consider evidence -- 7 of 12 -- [2024] SASC 146 Stanley J 6 of earlier drafts of the will in order to assist in ascertaining the testator's expressed intention. I consider that such evidence is admissible as part of the surrounding circumstances. While it was once the case at common law that evidence of draft contracts was not admissible for constructional purposes, that no longer appears to be the position. In Royal Botanic Gardens and Domain Trust v South Sydney City Council the High Court had regard to various drafts of a deed that passed between the parties in order to construe the concluded deed. The drafts were admitted as evidence of surrounding circumstances. In accordance with the approach in Marley v Rawlings the Court should apply those principles applicable to the construction of contracts to the construction of a will for the purposes of ascertaining the expressed intention of the testator. In Marley v Rawlings Lord Neuberger said it was open to the court to consider evidence of drafts of a will which the testator may have approved or caused to be prepared for the purposes of interpreting the will or a provision of the will. However, his Lordship reached that conclusion on the basis of an express statutory provision in the Administration of Justice Act 1982 (UK) which permitted the court to receive extrinsic evidence of the testator's intention to assist in interpretation. No equivalent provision is to be found in the Wills Act 1936 (SA). Nonetheless, notwithstanding the absence of an equivalent statutory provision I am satisfied that it is permissible to receive draft wills as evidence of surrounding circumstances for the purposes of ascertaining the testator's expressed intention. In Byrnes v Kendle Heydon and Crennan JJ held that evidence of pre-contractual negotiations is admissible for the purpose of drawing inferences about what the contract meant where it demonstrates knowledge of surrounding circumstances. In relation to the constitution of wills, that would require, however, evidence that the draft will was approved by the testator or that the testator caused the draft to be prepared in particular terms so as to throw some light on his intention. So the evidence of draft wills, like pre-contractual negotiations, is only admissible where it demonstrates knowledge of surrounding circumstances. [Citations omitted]. 15 Barbara contends that the will should be construed to provide that the applicant enjoys the deceased’s 50 per cent interest in the Wynn Vale property during her lifetime. If she wishes, the will empowers her to direct the executor of the deceased’s estate to sell the land and utilise the entirety of the trust’s interest in the land to purchase a new property, and any subsequent property in which she may reside for her own use and benefit during her lifetime. In that event, Barbara will hold any subsequent property on trust pursuant to the same trust as is established by the will. Consideration 16 At the time the will spoke and at the time of executing the will the deceased’s estate owned a 50 per cent interest in the Wynn Vale property as tenant in common. The other 50 per cent interest in the Wynn Vale property was, and is, owned by Barbara as tenant in common. 17 Clause 2(b) of the will gifts to Barbara a lifetime interest in the Wynn Vale property subject to certain prescribed conditions being satisfied by her. Those conditions are that Barbara pays all rates, taxes and other outgoings and keeps the Wynn Vale property in a good state of repair and insured against fire to the satisfaction of her as trustee and subject to payment by Barbara during such life estate of all instalments of principal and interest payable under any mortgage. -- 8 of 12 -- [2024] SASC 146 Stanley J 7 18 Clause 2(c) empowers Barbara as trustee on Barbara’s request to sell the Wynn Vale property and employ the proceeds of sale in the purchase of another residence which shall be held upon the same trusts including the trust for sale and repurchase as declared in respect of the Wynn Vale property. 19 The verb “employ” in clause 2(c) in the context of the will means to make use of the proceeds of sale and the purchase of another residence which includes but is not limited to a home unit, serviced apartment, hostel, nursing home or other such assisted accommodation. 20 By its terms the deceased’s will does not impose any other limitation concerning the use of the trust’s share of the proceeds of sale. 21 It is tolerably clear that in making his will in the terms he did the deceased intended that Barbara be able to utilise his interest in the land, or the proceeds of sale thereof, during her lifetime subject to compliance with the prescribed conditions in clause 2(b) and (c). 22 This construction is reinforced by the terms of clause 2(d) which prescribes the circumstances by which Barbara’s life interest in the Wynn Vale property trust terminates and the interest in the Wynn Vale property, or subsequent land, passes to the remaindermen. Those circumstances are: (i) Barbara’s death; (ii) Barbara remarrying; (iii) Barbara entering into a de facto relationship; or (iv) Barbara ceasing to reside on the property for a continuous period of three months. 23 Barbara refers in her submissions to these matters as the cessation factors. 24 If any of those circumstances occur, clause 2(e) is enlivened, and Barbara’s life interest in the Wynn Vale property or subsequent accommodation ceases and the 50 per cent share of the Wynn Vale property or subsequent accommodation passes to the remaindermen. I accept Barbara’s submission that the expression “cease” in clause 2(d) and the term “cessation” in clause 2(e) convey the same meaning. 25 Accordingly, the only way the remaindermen receive 50 per cent of the Wynn Vale property is if one of those cessation factors prescribed by clause 2(d) occurs. 26 On 1 April 2003 when Barbara and the deceased effected a transfer of the Wynn Vale property to change the basis of their tenancy of the property from joint tenants to tenants in common, there were two separate and different interests in the property. One was held by Barbara in her own right and the other was held by -- 9 of 12 -- [2024] SASC 146 Stanley J 8 Barbara as both an executor and as trustee of the life interest estate granted to her by the will. The deceased’s will cannot deal with the half-interest that is held by Barbara as a tenant in common as his estate had and has no interest in the interest held by Barbara as a tenant in common. There was no basis for the deceased when making his will to make any provision for that half-interest as it did not form part of his estate. He only had the right to dispose of the other 50 per cent interest. He did that, in part, by the establishment of a testamentary trust. 27 The life interest trust established by the deceased’s will is a single trust. The 50 per cent share of the Wynn Vale property held by Barbara in her own right as a tenant in common has nothing to do with the trust property or its operation. 28 This is fatal to the respondent’s submission that there is some requirement for Barbara to purchase a new property with 50 per cent of the trust share and 50 per cent of her own funds. There is no basis to construe the will in this way. To construe the will as imposing on Barbara a condition that she funds the purchase of any subsequent property from her own resources would be contrary to the plain meaning rule. Words in a will cannot be made to bear a meaning which on the face of the will they are incapable of conveying. Barbara’s interest as a tenant in common of the Wynn Vale property is a separate interest from the deceased’s estate’s interest in the property. For that reason, the terms of the deceased’s will make no provision for Barbara’s interest in the Wynn Vale property as a tenant in common. 29 However, Barbara, as a trustee of the deceased’s 50 per cent interest in the Wynn Vale property, and any alternate accommodation that may be acquired subsequently, is the trustee of that interest in the Wynn Vale property. As such, Barbara is under a duty as trustee to protect the interests of the beneficiaries under the deceased’s will, including not only their own interests, but that of the remaindermen. That should be reflected on the title. Barbara holds the deceased’s 50 per cent share in the Wynn Vale property as trustee for the protection of the beneficiaries under the deceased’s will, recognising that she enjoys a life interest over that property and any subsequent property that might be purchased for her accommodation. 30 Tania and Vicki sought to invoke equitable principles in support of their position. Those principles relied on the maxims that the intention of the testator must prevail as the paramount consideration and that equity is a sort of equality. However, that does not assist their cause. For the reasons explained, the first principle does not assist them. The proper construction of the will supports Barbara’s position. First, the will permits her to sell the Wynn Vale property and purchase another property for the purposes of her accommodation using the proceeds of sale without her necessarily having to use her own financial resources for that purpose, subject only to the transfer of the life interest to a new property. That is why their concern about a ‘surplus’ is misplaced. There is no surplus. Once the proceeds of the sale of the Wynn Vale property have been realised and used to purchase a subsequent property any funds that remain are the subject of the -- 10 of 12 -- [2024] SASC 146 Stanley J 9 testamentary trust. Second, the maxim that equity is a sort of equality cannot override the first principle based on the proper construction of the will, at least not on the basis that Tania and Vicki are attempting to do so. 31 Accordingly, Barbara is entitled to sell the Wynn Vale property and employ the proceeds of sale to purchase a new property for her accommodation. I do not accept that Barbara is under any obligation to use her own resources for the purposes of purchasing subsequent accommodation. It follows that the Court will not direct her to do so. Barbara is entitled to the orders she seeks. Those orders now include advice that Barbara, in her capacity as executor of the deceased’s estate, should register the title of any new property, and any subsequent property, in her name, first as the executor of the deceased’s estate, second in her personal capacity enjoying a life interest in the estate and third, in the event that she was to use her own funds to purchase any subsequent property, that proportionate interest. The proportions attributed to each, ought to reflect the contribution from the trust share for the purchase of such property and the contribution by Barbara in her personal capacity to the purchase of that property. 32 This is appropriate. The life interest granted to Barbara under the will is held by her on trust. The life interest is transferrable to any other property she acquires for her need for accommodation. Nonetheless, as the trustee of that life interest, she is under a duty to protect the interests of the remaindermen and that should be recognised on the title. The trust continues for the protection of the remaindermen under the will over the Wynn Vale property and any subsequent property purchased for the purposes of her accommodation. 33 Barbara seeks an order that the costs of and incidental to the application be paid by Vicki and Tania or, in the alternative, be paid out of the Trust’s share. Vicki and Tania seek an order that the costs should be paid out of the residue of the estate. Unfortunately, the stance taken by Vicki and Tania has been misconceived. These proceedings resulted from the approach they took in response to Barbara exercising her legitimate rights under the will. The need for these proceedings was not that the terms of the will were poorly drafted so as to require the intervention of the Court. Their approach has been self-interested. While I do not doubt that their subjective belief was that they were acting in accordance with what they understood to be their father’s testamentary intentions, they are mistaken. Barbara should not be prejudiced by their mistake. In the circumstances I would order that the costs of the application be paid by Vicki and Tania. Conclusion 34 I would make the following orders: 1. Pursuant to s 64 of the Real Property Act 1886 upon the lodgement of any instruments required to affect the transfer of the Land comprised in Certificates of Title Register Book Volume 5997 Folio 135 and Volume 5997 Folio 136 and Volume 5997 Folio 137 and the improvements on it (“the -- 11 of 12 -- [2024] SASC 146 Stanley J 10 Land”) in fee simple and payment of all necessary fees, the Registrar-General subject to any normal examination requirements is to affect the transfer of the Land in fee simple. 2. The applicant (in her capacity as the Executor of the deceased’s estate) is to divide the net proceeds of any sale of the Land after the deduction of all proper expenses (“the Net Proceeds”) into two equal portions with: 2.1 One portion to be paid to the Applicant in her personal capacity; 2.2 One portion (“Trust Share”) to be paid to the Applicant in her capacity as the Executor of the deceased estate with such share to be held on trust pursuant to the terms of the will (“the Will”) executed by the deceased on 5 June 2003. 3. The Applicant (as Executor of the deceased estate) may employ the entirety of the Trust Share for the purchase of a new property (and any subsequent property) in which the Applicant may reside for her own use and benefit during her lifetime pursuant to the same trusts as contained in the Will. 4. The Applicant (in her capacity as Executor of the deceased’s estate) is to register the title of any new property (and any subsequent property) in the name of the Applicant as the Executor of the deceased’s estate and the Applicant in her personal capacity enjoying a life interest in the estate and, in the event she was to use her own funds to purchase any subsequent property, that proportionate interest in such proportions as reflect: 4.1 the contribution from the Trust Share to the purchase of such new property; and 4.2 the contribution by the Applicant in her personal capacity to the purchase of such new property; 5. The applicant’s costs of and incidental to this application are to be paid by the respondents. 6. The parties are granted liberty to apply. -- 12 of 12 --