The 2003 will left an irrigation property on the Murray River to a son and the residue of the estate to a daughter.
The estate was valued at $2.129 million, but a question arose as to whether the water right was part of the “real estate” bequeathed to one or part of the residual of he state left to another party.
The will was drawn up before changes to the water act in 2007, which enabled water shares to exist and be traded separately, a process known as unbundling.
In his finding Justice Steven Moore stated that at the time the will was made there was no question that the water rights ‘went with the land’ and were incapable of being transferred separately to the land.
The son submitted that the intent of the will was to leave him the entire "kit and caboodle", including the water, which, at the time the will was made, included the water attached to the land.
Section 34 of the Wills Act provides that, subject to any contrary intention, a "will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator".
Justice Moore said in contrast to the situation that pertained when she made the will, immediately before her death the deceased owned the water shares, which were capable of being transferred independently of the land.
Within the family the issue of water was never discussed after the legislative changes that allowed unbundling and separated water from the land.
Justice Moore found that “properly construed” the reference to “my real estate” in the will included the water shares, which the court heard were last valued at $1.5 million.
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