WALSH v ADRIAN CORY SLOAN as executor of the estate of THE LATE LAURETTE DOROTHY KEDDIE

[2019] WASCA 107

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Wills
2. › Construction
3. › Ascertainment of testator's intention
4. › Gift of 'principal place of residence at my death'
5. › Whether gift effective where testatrix absent from property due to deteriorating health at date of death
6. › Armchair principle
7. › Will speaks from death as to property comprised in it
8. › Wills Act 1970 (WA), ss 26, 28A
1. Wills
2. › Construction
3. › Meaning of 'principal place of residence'
4. › Distinction between construction of gift in a will and abstract determination of residence
5. › Whether physical presence required
6. › Fixed connotation and changing denotation
1. Evidence
2. › Objections to affidavit evidence
3. › Practice and procedure
4. › Responsibility of parties to take objections at hearing
5. › Whether filing schedule of objections without pressing them at hearing constitutes proper objection

Quick Take

A testamentary gift of 'my principal place of residence at my death' is properly construed as meaning 'the house that I own for my residence (and if there be more than one, the main one) though I cannot physically be there'. Physical absence from the property due to deteriorating health or admission to aged care does not defeat the gift. The correct question of construction is what thing the testator intended to give, not the abstract question of what was the testator's principal place of residence. Separately, the practice of filing schedules of objections to affidavit evidence without pressing them at hearing is discouraged; objections not properly taken should generally be treated as withdrawn.