SIBLINGS William and Ken became the registered proprietors of their late mother’s home when she passed-away 15 years ago.
They have both been living in the home since.
Unfortunately, whilst in their 70s, an incident occurs whereby Ken assaults William with a baseball bat, causing him bodily harm.
He is charged and enters into a good behaviour bond for 12 months.
William nonetheless vacates the property, too fearful to continue co-habitation with his brother.
William wants the property to be sold and after obtaining legal advice, commences proceedings against Ken in the Supreme Court.
In his defence, Ken relies on the terms of his late mother’s will, which expresses a wish that he be “permitted to reside in the house until they express a desire to move from the property”.
William’s counsel argue that William was also entitled to reside in the house, subject to an implied condition, that he could “peaceably reside and enjoy the house”.
A technical argument between the parties emerges, in which a declaration is sought as to whether the right to reside in the property, under the terms of the will, is a legal right or merely a non-binding direction.
The Court conducts an exercise of interpreting the provisions of the will, with reference to the “armchair principle”, whereby the late mother’s intentions are deduced from the “surrounding circumstances” at the time she made the will, several decades earlier.
Evidence from the original will drafter is heard.
The Court rules that in the context of the words used in the will, the right to reside in the property, did not create a “legal right”.
Alternatively, the Court rules that the right to reside could not be relied upon by Ken separately as it was a “joint” right, which could be ended by either of the brothers.
Ultimately, the Court makes orders appointing an independent solicitor to proceed with the sale of the property and also orders Ken to vacate the property within 28 days.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
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