In the recent judgment of Re Fanning  VSC 222, the Court had to determine whether or not an Executor had exercised his option under the deceased’s Will to purchase some of the deceased’s properties.
At the date of his death on 24 December 1977, the deceased’s estate comprised primarily of various parcels of land valued at $62,000.
Probate of the deceased’s Will was granted on 9 August 1974. The Will:
- left the deceased’s real and personal estate to his wife;
- gave some of the deceased’s children (including the defending Executor) an option to purchase some of the deceased’s parcels of land within 3 months of the grant of probate; and
- left the residue of the estate to be divided in equal shares among the deceased’s children.
The deceased’s wife subsequently died on 12 March 2011.
The defending Executor claimed that he exercised the option to purchase the parcels of land and paid for the land within 3 months of the grant of probate of the deceased’s Will.
The other surviving children of the deceased disputed the Executor’s claims and pointed to a lack of contemporaneous documentary evidence that the Executor purchase the parcels of land in the manner required by the terms of the deceased’s Will.
Having regard to the lack of documentary evidence such as land transfers in support of the Executor’s claims, the Court found that the Executor did not purchase any part of the land referred to in the Will in the manner required by the terms of the Will. The Court declared that the Executor personally held the land upon trust for the estate of the deceased.
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