Farmers should take care when writing a will: Supreme Court

The Supreme Court has sent a clear warning to farmers about drafting a will – choose your words carefully.

In a recent ruling about the estate of deceased East Munglinup farmer Gerhard Frey, Master Craig Sanderson found the “plant and equipment” on a cattle farm did not actually include the cattle.

It also did not include refundable payments that had been made for superphosphate, nor the money in a working bank account.

Master Sanderson had been asked to adjudicate on the wording of the will after Mr Frey’s cousin Wolfgang Klenk claimed that Mr Frey’s bequest to him of the farming property and “all plant and machinery thereon” should include 512 head of Murray Grey Cross cattle, which had since been sold for $236,000.

Mr Klenk’s lawyers also argued the bequest should include an unspecified amount of cash in a Commonwealth Bank account, and the money recovered from Landmark for pre-paid superphosphate.

At the heart of Mr Klenk’s argument was a claim that Mr Frey had intended to leave Mr Klenk a “working farm” when he died in 2014.

Master Sanderson said the entire estate, excluding property in Germany, was worth about $3.6 million. The land was worth about $1.5 million, while there was also $430,000 of shares.

Under the terms of the will, the property in Germany and a property in Esperance were left to unidentified people, while Mr Klenk was to inherit the farm.

Any “residual” estate was to be split between Cherie Rita Graham, Vanessa Kantar, Ross Graham, Wayne Pickersgill, Margaret Pickersgill, June Van Blommenstein, Lorraine Parker, Peter Bower, and Linda Bower.

Master Sanderson was asked by executors Philip William Graham and Cherie Rita Graham to decide whether the cattle, the money in the bank or the superphosphate refund should be given to Mr Klenk.

The executors also asked the court to decide whether cash found at the farm should be given to Mr Klenk.

In making his ruling, Master Sanderson said Mr Frey’s will was drawn by a lawyer. 

"In my view, the proper construction of the will was clear,” he said. “The gift to the first defendant (Mr Klenk) is the gift of the farmland and the ‘plant and machinery'.

“There is no warrant for extending that to the farming business as a whole. To do so would extend the words used beyond their plain and natural meaning.

“In fact it is somewhat difficult to find a definition of the phrase 'plant and machinery'. But given its natural meaning it would not include livestock. Cattle are neither plant nor are they machinery.

“Furthermore, there is nothing to suggest the plaintiff intended to give the first defendant a 'working farm'. Once again if that had been the deceased's intention it would have been easy enough to include words to that effect in the relevant clause.”

Mr Frey was born in 1931 and migrated to Australia in 1953, living for a time in South Australia. He was allocated the land at East Munglinup in 1958 and arrived in the area about 1960.

Master Sanderson said the cattle had been in poor condition when they were sold because Mr Frey had been unable to run the farm properly in his later years.