ANZ Executors and Trustee Co (SA) Ltd v Therese Mary Gotzheim

[1993] SASC 3994

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Wills, probate and letters of administration construction and effect of testamentary dispositions - intestacy (partial) - distribution of estate.
Testator died having left "all (his) monies and personal belongings" to three sisters - one sister predeceased testator - testator purchased real estate after making of will - whether realty passed under will - whether partial intestacy. Held: "money" may include interest in land - testator intended to leave all his worldly goods - all of deceased's assets fell within bequest - each of surviving sisters entitled as tenants-in-common to one-third of estate - intestacy as to portion of estate bequeathed to deceased sister.
Administration and Probate Actss72j(b)(3); 72k(i)(6). In re Harrison
(1885) 30 ChD 390; Fell v Fell (1922) 31 CLR 268 at 276, 280-284 and Perrin v Morgan (1943) AC 399 at 406-408, 412-413, applied. In re Gebhardt (1943) SASR
350; Public Trustee v Young(1980) 23 SASR 240; In re East deceased (1964) QWN
16; Robertson v Fraser (1871) 6 Ch App 696 and Swan v Holmes (1854) 19 Beav 471, considered.

HRNG ADELAIDE, 10 June 1993 #DATE 10:6:1993
Appearance information not available.

ORDER
Questions on summons answered.

JUDGE1 PRIOR J John Robert Giles died on 16 September 1990. He made a Will on 28 June 1975. It said:
    "This is the last will and testament of Mr John Robert Giles of
    Karoonda South Australia. I appoint Douglas Keith Bird of
    Halidon South Australia, the executor of my will. I leave all
    my monies and personal belongings to be equally divided amongst
    my three sisters, Therese Mary Mullens of 170 King William Road
    Hyde Park South Australia, Patricia Margaret Sharp of Newcastle
    New South Wales, and Betty Joan Gunning of 11 Clare Street Athol
    Park South Australia, after all my debts and funeral expenses
are paid." 2. One of the deceased's sisters, Patricia Margaret Sharp predeceased her brother. Mr Giles never married. His parents predeceased him. At the time of his death Mr Giles was living in a house at Railway Terrace Karoonda. He was then a retired railway worker. He purchased the house in 1980, some five years after the making of his will. This Court is asked to determine the true construction of the will and in particular to say what assets are comprised in the expression "all my monies and personal belongings" in the will. 3. The value of the deceased's estate is presently $142,495.02. The house at Karoonda has been sold. Besides being the registered proprietor of an estate in fee simple in the Karoonda property, the deceased had furniture and household effects, a motor vehicle and some $80,000 in bank accounts when he died. Some taxation credits, refunds on driver's licence fees and medical benefits contributions and a small sum due as an accrued pension from the State Superannuation Office completed his estate. 4. There is a presumption against intestacy. There is a presumption that a person making a will intended by the will to dispose of all of his property. In re Harrison (1885) 30 ChD 390, Fell v Fell (1922) 31 CLR 268, at 276, 280-284 "Monies" is a word that has a primary meaning. It also has other meanings. In this case it is not just what is meant by the word "monies" appearing in the will that matters as much as what the testator meant by saying that he left all his monies and personal belongings to be equally divided amongst his three sisters. I have no doubt that in saying that the testator intended to dispose of all his worldly goods, whatever they were at the date of his death. All his worldly goods were left in equal shares to his three sisters. His worldly goods included an estate in fee simple in land. That property is capable of being identified by the phrase used in the will by the word "monies" being given a particular meaning even if fee simple estates are not personal belongings whatever meaning is given to those words in the will. The meaning of "personal belongings" is also variable. See In re Gebhardt (1943) SASR 350 and Public Trustee v Young (1980) 23 SASR 240 and 248. In this case the meaning could be narrow particularly if that given to "monies" is broad. In Perrin v Morgan (1943) AC 399 at 406-408 and 412-413, Viscount Simon LC said:-
    "In the case of an ordinary English word like 'money', which is
    not always employed in the same sense, I can see no possible
    justification for fixing on it, as the result of a series of
    judicial decisions about a series of different wills, a
    cast-iron meaning which must not be departed from unless special
    circumstances exist, with the result that this special meaning
    must be presumed to be the meaning of every testator in every
    case unless the contrary is shown. I agree, of course, that, if
    a word has only one natural meaning, it is right to attribute
    that meaning to the word when used in a will unless the context
    or other circumstances which may be properly considered show
    that an unusual meaning is intended, but the word 'money' has
    not got one natural or usual meaning. It has several meanings,
    each of which in appropriate circumstances may be regarded as
    natural. In its original sense, which is also its narrowest
    sense, the word means 'coin.' Moneta was an appellation of Juno,
    and the Temple of Moneta at Rome was the mint. Phrases like
    'false money' or 'clipped money' show the original use in
    English, but the conception very quickly broadens into the
    equivalent of 'cash' of any sort. The question: 'Have you any
    money in your purse?' refers presumably to bank notes or
    Treasury notes, as well as to shillings and pence. A further
    extension would include not only coin and currency in the
    possession of an individual, but debts owing to him, and cheques
    which he could pay into his banking account, or postal orders,
    or the like. Again, going further, it is a matter of common
    speech to refer to one's 'money at the bank,' although in a
    stricter sense the bank is not holding one's own money and what
    one possesses is a chose in action which represents the right to
    require the bank to pay out sums held at the call of its
    customer. Sums on deposit, whether with a bank or otherwise,
    may be included by a further extension, but this is by no means
    the limit to the senses in which the word 'money' is frequently
    and quite naturally used in English speech. The statement: 'I
    have my money invested on mortgage, or in debentures, or in
    stocks and shares, or in savings certificates,' is not an
    illegitimate use of the word 'money' on which the courts are
    bound to frown, though it is a great extension from its original
    meaning to interpret it as covering securities, and, in
    considering the various meanings of the word 'money' in common
    speech, one must go even further, as any dictionary will show.
    The word may be used to cover the whole of an individual's
    personal property - sometimes, indeed, all of a person's
    property, whether real or personal. 'What has he done with his
    money?' may well be an inquiry as to the general contents of a
    rich man's will. Horace's satire at the expense of the
    fortune-hunter who attached himself to childless Roman matrons,
    has its modern equivalent in the saying: 'It's her money he's
    after.' When St. Paul wrote to Timothy that the love of money
    is the root of all evil, he was not warning him of the risks
    attaching to one particular kind of wealth, but was pointing to
    the dangers of avarice in general. When Tennyson's Northern
    Farmer counselled his son not to marry for money, but to go
    where money is, he was not excluding the attractiveness of
    private property in land. These wider meanings of 'money' are
    referred to in some of the reported cases as 'popular' meanings,
    in contrast to the 'legal' meaning of the term, but for the
    purpose of construing a will, and especially 4 a home-made will,
    a popular meaning may be the more important of the two. The
    circumstance that a skilled draftsman would avoid the use of so
    ambiguous a word only confirms the view that, when it is used in
    a will, the popular as opposed to the technical use of the word
    'money' may be important. I protest against the idea that, in
    interpreting the language of a will, there can be some fixed
    meaning of the word 'money', which the courts must adopt as
    being the 'legal' meaning as opposed to the 'popular' meaning.
    The proper meaning is the correct meaning in the case of the
    particular will, and there is no necessary opposition between
    that meaning and the popular meaning. The duty of the court, in
    the case of an ordinary English word which has several quite
    usual meanings which differ from one another is not to assume
    that one out of several meanings holds the field as the correct
    meaning until it is ousted by some other meaning regarded as
    'non-legal', but to ascertain without prejudice as between
    various usual meanings which is the correct interpretation of
    the particular document."
    "The word 'money' has more than one meaning, and it is, in my
    opinion, a mistake to pick out one interpretation of the word
    and to call it the 'legal' meaning or the 'strict legal' meaning
    as though it had some superior right to prevail over another
    equally usual and not illegitimate meaning. The context in
    which the word is used is, of course, a main guide to its
    interpretation, but it is one thing to say that the word must be
    treated as having one particular meaning unless the context
    overrules that interpretation in favour of another and another
    thing to say that 'money', since it is a word of several
    possible meanings, must be construed in a will in accordance
    with what appears to be its meaning in that document without any
    presumption that it bears one meaning rather than another.
    While disclaiming any idea of interpreting a document which is
    not before me, I should have thought that the mere fact that a
    will in a single sentence disposed of 'all the money of which I
    die possessed' was a reason for interpreting 'money' in a very
    wide sense, though there is no positive context. In choosing
    between 'popular' meanings, it seems to me that an
    interpretation which includes realty as well as personalty in
    the word 'money' may often be going too far, though, of course,
    everything turns on the language and circumstances of the
    particular will. An amateur will-maker, though using the word
    'money' loosely, may be drawing a distinction between 'my money'
    and 'my land' and, indeed, may mean to include leaseholds as
well as freeholds in the latter expression, if he owns both." 5. It has been put to me that whilst Viscount Simon acknowledges that "money" may include interests in land, that is an exceptional and rare case. In this case the reference to all monies included any interest in land. So too in In re East deceased (1964) QWN 16. At the date of making his will, without legal assistance, the testator there possessed no real property. Before his death he acquired an interest in realty. In his will he said that he gave, devised and bequeathed "all (his) monetary and personal possessions." Gibbs J. decided that the words of the will were imprecise and ambiguous and that it should be assumed that the words were used in the widest sense of which they were capable so as to dispose of the whole of the property owned by the testator at his death and avoid a partial intestacy. He held that the words "all my monetary and personal possessions" referred to the whole estate, real and personal, of the testator. 6. At 44 of (1964) QWN 16, Gibbs J said:-
    "In the present case the testator made one gift. He must have
    either intended that the words would describe all the property
    that he might own at the date of his death or he might die
    intestate as to part of the property. I presume that the words
    of the will were used in the widest sense of which they are
    capable so as to dispose of the whole of the property owned by
the testator at his death and avoid a partial intestacy." 7. I do the same in this case and hold that the words "I leave all my money and personal belongings to be equally divided amongst my three sisters" disposed of the deceased's entire estate both real and personal. The language used by the testator is sufficient to make plain that by his will he left all that he had on this earth to his three sisters, whatever form his worldly goods were then. 8. In answer to the first of the questions raised in the summons, all of the assets fall within the specific bequest of "all monies and personal belongings". 9. As to the question as to what persons in the events which have happened are entitled to the estate, I answer that each of the surviving sisters are entitled as tenants in common to one third of the entire estate. If authority be needed as to that I refer, as counsel have done, to Theobold on Wills, 14th Edition at p.467-469 and to the authorities cited in Williams on Wills, 6th Edition, Chapter 85 at p.653. The cases there cited include Robertson v Fraser, (1871) 6 Ch App 696; Swan v Holmes (1854) 19 Beav 471. 10. The third question was whether the deceased, in the events that happened died intestate wholly or as to any part of his estate. There was an intestacy as to that portion of the estate left to his sister, Patricia. That portion is one third of the entire estate. I have rejected the argument for the next of kin that there was an intestacy as to the testator's real estate. 11. The next question was if the deceased died partially intestate, did s.72k(1)(b) of the Administration and Probate Act 1919 apply to the distribution of the estate of the deceased. That portion of the estate left to the deceased sister is governed by Part IIIA of the Administration of Probate Act. The consequence is that the surviving sisters must account for their share under the will before distribution of the intestate portion of the estate. Besides s.72k(1)(b), particular reference should be made to s.72j(b)(3). 12. It is unnecessary to answer the fifth question raised in the summons. The costs of all parties are to be taxed and paid out of the estate.