“An amount equivalent to” a Retirement Village Exit Entitlement in a Will

977803-retirement-villageWith an ageing population and more testators residing in retirement villages with either freehold or leasehold interests at play, I found this case particularly interesting.

The case of Suthers v Suthers [2015] QSC 285 involved a gift to the daughter of the testator of an amount of money equivalent to an amount received by the estate from the sale of the testator’s retirement unit.  The problem was that this unit had been sold during the testator’s lifetime so in fact that estate never received anything in particular from the sale.   This challenge resulted from an assumption of the residence in question being the likely the last residence of the tesator upon death.  [On a side note, this is a good example of why I always say to people that you never know what’s going to happen in the future (moving, relationships, need for care etc) and that wills are not to be set and forgotten; they must evolve with you and your circumstances.]

Both learned Counsel represented different construction arguments before the Court; however the court determined that the amount received by the testator resulting from the disposal of the retirement unit ultimately should be gifted to the daughter.

I found this particular case very interesting and one phrase has stayed with me; when discussing the rules of construction: “[construction should be] sensitive to the factual context of ordinary life and circumstances“. This phrase gives me comfort that legal interpretation is not devoid from ordinary context in one’s life.

You can read the case here.

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