Introduction
What did a farming widow mean to give her eldest son when referring in her will to “Dinga Dee”? She owned 21 lots of land which were roughly bisected by the main road from Stroud to Dungog. The lots north of the road contained one particular lot known as “Dingadee” but, together with several others, were collectively referred to as “the Dingadee lots.” Why was it spelt wrongly in her Will? Had there been a mistake? If so, who had got it wrong – the elderly testatrix, or her solicitors in misdescribing what she had intended to gift? What should the will – however it was meant to look – be construed to mean? And finally, what about the fact that this particular son had, on the faith of promises from his parents that he would inherit variously, “half the farm”, “Dingadee”, or (after all the Dingadee lots plus a few others were leased out later in the testatrix’s life), “the leased lots”, given up several personal and professional opportunities to stay nearby the farm and help his parents work it for several decades, only to find that in her final will his mother had apparently left him only the one Dingadee lot, one other lot and 1/3 of residue?
The trained eye recognises that this is a classic of the genre in farming cases. It involves Meek J’s tilt at principles of rectification, construction and proprietary estoppel. It runs to 829 paragraphs, which we summarise here.
This explanation of the case is broken into several parts, including a ‘guided tour’ of the judgment at the end. This is to give pointers to those interested in navigating it themselves to the points of particular legal or factual interest.
References to farming properties, propensity to confuse
As Spigelman CJ says in Harris v Digital Pulse, “Inexact use of terminology is here, as so often, prone to cause confusion of thought”. People refer to the things they own, especially land, in many different ways. This is particularly so in the case of farming properties. Problems are amplified if an initial farm is enlarged in piecemeal fashion by the acquisition of neighbouring properties. If you bought your neighbour’s land from, for example, Mr and Mrs Yates, which was next to your own, for example, ‘Dingadee paddock’, you might call that land ‘the Yates block’ for decades afterwards. But if you asked your son to tend to ‘the Dingadee lots’, both of you would know it was intended to include the Yates block as well.
Virtually the first 100 paragraphs of this judgment is devoted to figuring out just what the parties meant when they referred to various bits of their farm, for various purposes in different contexts over decades, spanning relevantly the 1960s to the 2020s. For consistency, an agreed map, together with a schedule explaining ownership, acquisition and nicknames for the various lots, was used throughout the hearing (and in fact appended to the judgment as a PDF link). So grateful was Meek J for the assistance of this document that he devoted a separate segment of his catchwords to this feature alone, commending the practitioners for its utility.
Facts
Conceptually, the 21 lots acquired by the farming couple Jim and Gloria Reeves were in two groups. Roughly, those North of Stroud Hill Road were referred to as ‘Dingadee’ and those South of Stroud Hill Road were referred ‘Kenilworth’.
Gloria and Jim had two sons. Russell was the plaintiff in this case. The other, Kevin, was executor of Gloria’s will. Russell had worked mainly on Dingadee throughout his life, Wayne Kenilworth. Surely Gloria, who survived Jim by roughly 15 years, had intended to dispose of her farm consistently with these arrangements.
A note on evidence – admissibility in will construction v will rectification
Note at this point the different purposes for which any analysis of evidence is directed. Firstly, in construing a will, extrinsic facts are admissible only to assist in understanding the context in which any ambiguous words in the will may be properly understood. That is, the Court looks to the text of the will itself, its scheme as a whole, and the context in which it was made – importantly, not any extrinsic evidence of a testatrix’s intention – to determine what it should mean. That is, construction is ‘text plus context’.
Rectification, on the other hand, permits the admission of extrinsic evidence to ascertain the testatrix’s true intent.
Facts relevant to Gloria’s intention also necessarily overlapped with those relevant to Russell’s estoppel claims. This is because what Russell thought Gloria must have intended when sitting down to make her last will was wrapped up in the promises both she and Jim had made to him about what he could expect to inherit.
Accordingly, it is necessary to set out in some detail the history of Russell’s life, and the promises made to him, which (spoiler alert) ultimately led the Court to accepting his claim that Gloria’s estate was estopped from denying his entitlement to a much larger proportion of the Will (spoiler alert), when rectified and properly construed, actually gave him.
The facts continued – Russell’s early years
Russell and Kevin were raised on their parents’ dairy farm. It turned out Russell was bright. Very bright. He did exceptionally well at school and was offered a place to study medicine at the University of Sydney in 1969. However, his parents prevented him from accepting it. They said he needed to study at a university closer to their farm so that he could continue assisting them with farming operations. Newcastle University was closer. It didn’t offer a degree in medicine (then). Accordingly, Russell contented himself with a science degree. At that early juncture, Jim told Russell that “Your place is here on the farm. Half of it will be yours one day.”
Russell did as he was told. He made a life for himself at Newcastle University and on the farm. But, being bright, he ended up blitzing Newcastle Uni, taking his degree with honours and doing a PhD on scholarship, which was accepted without amendment in 1977 – a startlingly rare feat. On the strength of this momentum, he was offered postdoctoral fellowship to continue his research in bioorganic chemistry at the University of Tallahassee, Florida. Meek J notes in the judgment that this appears to be the only time Russell was “genuinely thrilled.”
However, again, Jim and Gloria panicked. They forbad him from accepting. Again, Russell’s evidence of the conversation he had with Jim was “You have worked so hard to help build up the farm. Half of it is going to be yours. We want you to stay. We need you here. Your future is on the farm.”
Russell then contented himself with making a go of research into renewable energy and ethanol fuels (note – in chemical engineering, a completely different scientific field from bioorganic chemistry). This was essentially a not-for-profit enterprise, which did not much more, in money terms, than keep his scientific eye in while he continued to assist his parents on the dairy farm.
The facts continued – Kevin
It was apparent from the evidence that Russell and his brother Kevin very much disliked each other. Throughout this tract of time, Kevin was also staying on the farm. However he was continually on the south side of Stroud Hill Road, on the Kenilworth lots. Whilst Jim and Gloria owned both Dingadee and Kenilworth, the dairying operations on both were largely separate. They occasionally expanded each farm by acquisition of neighbouring land, also subdividing to create more lots on which homesteads were built, but at all times with Kevin assisting on Kenilworth and Russell assisting on Dingadee.
The brothers kept separate lives. Accordingly, when Russell gave evidence of statements Jim had made to him whilst working the Dingadee lots that (for example) “Keep going. What we are doing is worthwhile. This will all be yours one day”, Kevin was not in a position to deny them. Russell’s case, in Kevin’s mind, was uncorroborated by independent witnesses and entirely self-interested.
Russell (continued)
In time, Russell married. He and his wife Barbara had moved onto a property created by subdivision of one of the Dingadee lots, acquired from his parents with Russell’s life savings. They had three children, Andrew, Stuart and Angela, who in time also helped around the farm. This meant each child could also give evidence of things Jim had said about how the properties they were working would one day be Russell’s, such as “Russ, you, Stuart, Andrew and Angela have done a wonderful job here. It will be yours one day.”
Jim died in 2005. At about the same time, the dairy industry was going through some upheaval. In order to cope, the decision was made to close the Kenilworth dairy and lease out the farm for a beef cattle operation. All Dingadee lots, plus a couple of the Kenilworth lots, were leased out. Russell and his children continued to work them to keep them in good condition for the tenant farmers. At this point, when Gloria talked to Russell about what he could expect to inherit, she began referring to “the leased lots” – meaning all Dingadee lots plus two Kenilworth lots. As before, when Russell said Gloria was making these representations, Kevin was not present and was in no position to deny they occurred.
Gloria’s last will
Gloria made her last will in October 2010. Crucially, she gifted to Russell:
“the real estate in my property known as “Neilsons” … and more particularly described as Lot [XX] in DP [XXXXXX] and my property known as “Dinga Dee” more particularly described as
Lot [X] in DP [XXXXXX] together with improvements thereon.”
Note “Dinga Dee” was spelt with two words rather than one. Both it and “Neilsons” were given a particular title reference.
As well as those specific properties, Russell received 1/3 of residue only. The particular lots referred to in the gifts of “Dinga Dee” and “Neilsons” were not the entirety of what had either been known variously as “the Dingadee lots”, or even “the leased lots” – it was the Dingadee lot (singular) only. Even more curiously, the “Neilsons” lot, being north of Stroud Hill Road, would ordinarily have been understood to be included in references to “the Dingadee lots” or “the leased lots”. However it was separately identified as forming part of Russell’s gift.
The implications of Gloria’s will
Gloria had apparently done Russell very dirty. After her and Jim having insisted he alter the course of his life on the promise of a particular inheritance, Gloria apparently sat down with solicitors and made a will giving him a fraction of what he had coming. More bizarrely, the failure to gift other “Dingadee lots” to Russell meant Kevin acquired one lot which was completely landlocked by the “Dinga Dee” lot passing to Russell. It just didn’t seem to make sense.
Russell’s claim – rectification, construction, estoppel
Russell’s lawyers argued either that the gift of “Dinga Dee more particularly described as Lot [X] in DP [XXXXXX]” should be:
- Rectified, so as to refer to a gift of either the ‘leased lots’ or ‘the Dingadee lots’ in their entirety, to make good Gloria’s true intention of gifting not just the 2 individual lots; or
- Construed so as to mean, on its true construction, all of the Dingadee lots or the leased lots.
Russell also argued that his detrimental reliance on the promises made to him about his inheritance meant Gloria’s estate was estopped from giving him only the 2 lots.
The evidence – curiosities, difficulties, and Russell’s case theory
Substantial evidence was adduced from those who had known Jim and Gloria throughout their lives and could inform the Court about their habits of reference concerning farm properties. The evidence of Gloria’s solicitor and financial planner, who were with her when the last will was drafted, was vital. Adding a degree of difficulty was the fact that the solicitor’s firm had been hacked in March 2019, meaning the electronic version of Gloria’s Will file had been lost. His firm also had a practice of destroying a physical file once a digital copy had been made. All up, he was able to locate only three documents relating to the matter, being two letters and an invoice.
Between the solicitor and financial planner, the odd email was produced which may have showed that, at the time they met with Gloria to prepare her final will, they had discussed which of the lots were to go to Russell with some specificity. It was clear that a map similar to the one annexed to the judgment had been sent by the financial planner to the lawyer after their first meeting. Russell’s lawyers hoped to show that that map had not been there at the initial meeting when specific lots were discussed; that Gloria had said something like ‘Russell is to get Dingadee’; and that the solicitor, with reference to maps and lot numbers only after that meeting, had mistakenly inserted the lot number for Dingadee only, which was not picked up when the will was signed. However, despite the absence of written records, the solicitor and financial planner both held to their evidence of recalling a map being at their initial conference, and that Gloria reached over the table and pointed at the particular lots she wanted Russell to inherit.
Finding on rectification – Gloria meant what she said
In addition to accepting the solicitor’s evidence that Gloria pointed at particular lots on a map at the time instructions were given, Meek J found that the use of the expression “Dinga Dee, more particularly described as Lot X etc” precisely circumscribed the boundaries of the land to which she intended to refer. Further, given that it was accepted that the other lot gifted to Russell, “Neilson’s”, was otherwise understood to ordinarily form part of the “Dingadee lots”, to specifically refer to it in addition to “Dinga Dee” must have meant she had intended to gift the single “Dinga Dee” lot, not the collective “Dingadee lots”.
Construction – dead issue
The rectification case being found against Russell, left little for the construction case to do. Nonetheless, the Court did make a small change to the Will, altering the reference to “Dinga Dee” to the single “Dingadee”, its conventional spelling.
Estoppel
The estoppel case was a different proposition. Russell’s detrimental reliance was clearly in the category of “life-changing decisions and irreversible consequences of a profoundly personal
nature” category (Emmett AJA, Priestley v Priestley). Making a special mention of the quality and effectiveness of Russell’s cross-examination by Kevin’s counsel, Meek J noted that, despite that thorough examination, he was impressed with Russell’s evidence of the promises made to him and generally believed him.
Kevin went on to submit that the relief Russell sought by his estoppel – i.e. the leased lots in their entirety – was disproportionately large. He also submitted that, otherwise, the “countervailing benefits” received in the course of his decades of reliance meant that, in all the circumstances, equity did not require the conscience of Gloria’s estate to transfer additional lots to Russell.
Despite no large amount of evidence being lead on this issue, which I consider understandable, Meek J readily accepted – which I also consider understandable – that in giving up a career in medicine or the opportunity for postdoctoral research in a United States university, Russell had not found himself in a better position by remaining on a dairy farm in Dungog making cheap ethanol fuel.
Accordingly, Russell was entitled to the bits of the farm he was promised. That required a determination as to just what those bits were. His Honour settled on the ‘leased lots’ – the maximum result for Russell – being all of the Dingadee lots plus two of the Kenilworth lots south of Stroud Hill Road.
Guided tour of the judgment
Meek J’s pronouncements on the law of construction, rectification and estoppel in this case are some of the best going around. For ease of reference, a guided tour of the judgment follows (at the paragraphs indicated):
1-32: Introduction, family relationships, working and professional relationships
35–84: Descriptions of farming operations
85-94: Descriptions of the real property and their value
95–107: Leasing of lots
108–116: Gloria and Jim’s Wills
131–137: The estate
144: The eight issues formulated for resolution are set out
147–155: His Honour sets out the Court’s approach to assessing the necessarily self-interested evidence of a plaintiff seeking to enforce testamentary promises.
156–249: His Honour’s assessment of the witnesses is set out here in sequence. Of note is his Honour’s favourable impression of Kevin’s estates barrister, Ms Fendekian. However, despite her excellent work eliciting a special mention from his Honour, the Court’s overall impression was that Russell withstood her searching cross-examination. See 158 and 159 for these exchanges.
250–283: The description issue, being how various lots were referred to.
284-360: The instructions issue. For me, this was the most significant part of the evidence. It involved the Judge’s parsing of the evidence of Mr Doyle and Mr Gowing, Gloria’s solicitor and financial planner respectively. Large extracts of their cross-examination is set out in full in these passages, in which the Judge shows they adhered to their evidence that Gloria had a map when she gave her instructions, and pointed to particular lots she wished to go to Russell.
361-412: The construction issue, including the old chestnut of which comes first, construction or rectification (traditionally construction, then rectification, however, it is acknowledged as all of just, quick and cheap to dispose of both simultaneously).
413-460: The rectification issue, including a fantastic illumination of the principles between 415 and 436. Ultimately, as mentioned, his Honour was prepared simply to change the spelling of “Dinga Dee” to one word, “Dingadee”.
461 – His Honour’s thorough and illuminating setting-out of the principles of proprietary estoppel, including:
466 – The representation being made in a family context;
470 – Reliance;
472 – Considering the counterfactual position;
481 – Proof of reliance;
482 – Knowledge by the representor that the representation was being relied on (the issue in Stone v Kramer);
489 – Detriment; and
493 – Relief, including proportionality and the significance of countervailing benefits.
Next, his Honour applied those principles to the facts in this case, as follows:
499-583 – The “inheritance issue”, being the promises regarding the inheritance Russell was expected to receive;
584-604 – The “binding effect issue” – whether Jim and Gloria’s representations were mere statements of revocable intention or binding promises;
605-669 – The reliance issue – for me, the strongest part of Russell’s case;
670-695 – The “knowledge issue”, touched on earlier;
696-708 – The “detriment issue”, where the defendant’s arguments that Russell had received countervailing benefits as a result of his reliance, and that the relief he now sought was out of proportion to his detriment;
709-815 – The relief sort and granted is here discussed at length (see in particular his Honour’s detailed review of the significance of countervailing benefits at 740, and proportionality at 781)
The conclusion, including relief and costs, is at 816–828.
This article was written by Guy Moloney, Partner.
