Armstrong v Stokell & Anor
[2001] TASSC 132
•20 November 2001
[2001] TASSC 132
CITATION: Armstrong v Stokell & Anor [2001] TASSC 132
PARTIES: ARMSTRONG, Dorothy Margaret
as personal representative of the late
BIRD, Ruth Dagmar
vSTOKELL, Peter John
STOKELL, Craig Andrew Delamere
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: M58/1997
DELIVERED ON: 20 November 2001
DELIVERED AT: Hobart
HEARING DATES: 4 October 2001
JUDGMENT OF: Underwood J
CATCHWORDS:
Succession - Construction and effect of testamentary dispositions - Generally - Condition, forfeiture and gift over - General principles - Uncertainty.
Perpetual Trustees Executors and Agency Co of Tasmania Ltd v Walker (1953) 90 CLR 270, applied. Clavering v Ellison (1859) 7 HLC 707, followed.
Aust Dig Succession [200]
Succession - Construction and effect of testamentary dispositions - Generally - Condition, forfeiture and gift over - Attempt to charge or alienate - What amounts to restriction and effect thereof - What amounts to alienation.
In re Pryor; Woods v Pryor & Another [1923] SASR 199; In re Jones; Richards v Jones [1898] Ch D 438; In re Williams; Williams v Williams [1897] 2 Ch 12, followed.
Aust Dig Succession [206]
Succession - Construction and effect of testamentary dispositions - Generally – Meaning of "families".
In re Thomas McGrath's Will (1899) 20 NSWLR (B & P) 55; Re Nash [1979] Qd R 219, followed.
Aust Dig Succession [173]
REPRESENTATION:
Counsel:
Applicant: A Woodgate
First and Second Respondents: R W Pearce
Third Respondent: B C McManus
Solicitors:
Applicant: Rae & Partners
First and Second Respondents: Douglas and Collins
Third respondent: Public Trustee
Judgment Number: [2001] TASSC
Number of Paragraphs: 37
Serial No 132/2001
File No M58/1997
DOROTHY MARGARET ARMSTRONG
as personal representative of the late
RUTH DAGMAR BIRD v
PETER JOHN STOKELL and
CRAIG ANDREW DELAMERE STOKELL
REASONS FOR JUDGMENT UNDERWOOD J
20 November 2001
The will
Ruth Bird ("the testatrix") was a farmer. She died on 12 November 1991 when she was nearly 80 years old. The testatrix made a will a little more than two years before her death. I infer she made it without the benefit of legal advice. This is what it provides:
"1 To my nephew, Peter John STOKELL all my land at Collins Road SIDMOUTH to erect good buildings on it and live there paying rates and taxes, to maintain in good order occupying it, and upon his death is to be passed on to his family, who will pass it on to their families on these same conditions.
2 To Craig Andrew Delamere STOKELL all my land at Rosevale to be farmed on the same conditions as Per John STOKELL. Also to get two blocks of the land at Phillip Street, Youl Street and Cromwell Street Perth Tasmania. They are industrial blocks of one acre each at a value of twenty five thousand dollars each. If either of the brothers have no family it is to automatically go to the other brother's family. Any children of my nephews who dies before the age of 18 years are to be maintained and educated out of surplus monies in bank.
3 My house at 16 Ryton Street, Kings Meadows, Tasmania is to be sold and the monies from the sale are to be equally divided between my niece Dorothy Margaret ARMSTRONG, Shirley Franics BIRD, Lois Aileen Dawn STOKELL and David George BIRD (nephew, each having one quarter of a share each. Money to be invested in bank (National) and to be paid interest quarterly to each during their lifetime. Dorothy Margaret ARMSTRONG and Shirley Francis BIRD's share - upon their deaths is to then go to the children, Jan BLACKLER, Margaret BARKER, Leslie Grant ARMSTRONG. Lois Aileen Dawn STOKELL and David George BIRD's share of principal, upon their deaths is to go to Peter John STOKELL and Craig Andrew Delamere STOKELL.
4 My sub-division on Main Street, Arthur Street and Youl Street Perth, Tasmania. There are approximately nineteen blocks to be sold. At not less than seven thousand dollars each block as they all have street frontage.
5 My share of sixteen and a half acres - to be sold in one acre blocks. This land is to be shared with Maxwell Henry BIRD.} They are to pay survey fees, sewerage etc. Water is on the block. Children R D Bird
[5 This land my share is to be divided between the children of my newphew [sic] Mr H Bird
signed RD Bird
Hand written on page 2]
6 Pay all death duties and funeral expenses.
7 Any interference by an in-law will automatically disinherit its beneficiary concerned.
8 All deeds to be kept in safe custody; by Craig Andrew Delamere STOKELL.
9 Three Hundred dollars to be invested in Bank and interest used for up keep of family graves.
10 As Craig STOKELL is living at Queenstown, Tasmania his brother Peter John STOKELL and Mrs Dorothy ARMSTRONG, my sub-division money is to buy more land for my nephews Peter STOKELL and Craig Andrew Delamere STOKELL.
11 All monies and investments in my name to be banked (principal) and interest are to be equally divided between Peter John STOKELL and Craig Andrew Delamere STOKELL."
Not surprisingly, difficulties have arisen over the testatrix's meaning as expressed by her in her will and the Court is now required to answer certain questions that have been raised by the applicant.
The family
The testatrix never married. She had no children. For many years, she and her brother, Andrew Bird, farmed properties near Perth in the north of Tasmania. Andrew died in about 1980. The testatrix had three brothers and a sister. All her siblings pre-deceased her. Two of them died childless. The other two siblings had eight children between them but one died aged about 10 years. The remainder are the testatrix's nieces and nephews and are entitled to take the estate in the event of there being a partial intestacy.
The respondents, Peter and Craig Stokell, are the children of one of those nieces. They are referred to in pars1 and 2 of the will. Peter is the elder. He is now 39 and Craig is 37. At the date of the testatrix's death, both respondents were married, but only Peter then had children.
The respondents were particularly close to the testatrix. As children, they spent a lot of time with her and her brother until his death. For a couple of years after he left school, Peter lived with the testatrix and helped on the farm. After he left school, Craig spent most weekends at the testatrix's property.
The properties
The testatrix's estate includes a property at Sidmouth and a property at Rosevale. Some time before her death, the testatrix told both respondents that she wanted to buy each of them a farm. In 1985, she bought the property at Sidmouth for $35,000. She told Peter that it was his and that she wanted him to build a home on it "as he could afford it". Ever since its purchase, Peter has used the property to run stock on it and although he has not built a house, he estimates that over the years he has spent about $20,000 maintaining and developing the land. According to Peter's affidavit, the testatrix did not put this property in his name when she bought it because she did not want him "to borrow money from the bank".
The Rosevale land was bought by the testatrix in 1988. It, too, cost $35,000. The testatrix contributed $28,000 and Craig paid the balance, as well as the transfer costs. Over a period of time, Craig and his wife built a house on this land. They have lived in that house since 1991. According to Craig's affidavit, the testatrix did not put the title to this land in Craig's name because she wanted to "give" him something when she died and she also wanted to protect the land from his creditors should he fall upon hard financial times. Craig deposed in his affidavit that he has expended something in the order of $200,000 developing the land and building the house.
The problem
All the adult members of the extended family have agreed that Peter should have the Sidmouth property and that Craig should have the Rosevale property. All the nieces and nephews of the testatrix have entered into a deed of family arrangement to ensure that this happens should the Court conclude that the will makes no valid bequest of the two properties. However, this deed does not solve all the difficulties associated with the Sidmouth property and the Rosevale property.
The problem arises out of the terms of the purported bequests in pars1 and 2. Those problems are:
(a) with respect to par1 ¾ the Sidmouth property:
· what is the effect of the words "to erect good buildings on it and live there paying rates and taxes, to maintain in good order occupying it …";
· what is the effect of the words "and upon his death is to be passed on to his family, who will pass it onto their families on these same conditions".
(b) with respect to par2:
· what is the meaning of the words "to be farmed on the same conditions as Per John Stokell".
Counsel were all of the view that the words "Per John Stokell" were a reference to the respondent Peter John Stokell and that either "Per" was a mistype for Peter, or that "John Stokell" was a mistype for Peter Stokell. It is clear that the reference to John Stokell in cl 2 of the will must be a reference to Peter John Stokell. However, after taking into account the evidence that showed that during her lifetime, the testatrix treated Peter and Craig Stokell equally, I have reached the conclusion that there is no error or mistype with respect to the word "Per", other than the use of an upper case P. At the time the testatrix made her will, neither of the respondents had built a house on "their" land. According to the affidavit evidence, at that time, Peter was, or had been, living in a caravan on the Sidmouth property, and Craig had just drawn up, or was in the process of drawing up, plans for a house on the Rosevale property. In all these circumstances I conclude that by the use of the word "Per" the testatrix intended to make the bequest to Craig in cl 2 of her will upon the same terms as she made the bequest to Peter in cl 1 of the will. It is unlikely that by her will, the testatrix would have intended to treat those two beneficiaries differently, not having done so during her life time. Further, this construction gives a sensible meaning to the words "on the same conditions as Per John Stokell". Accordingly, the problem has to be addressed upon the basis that both the Sidmouth and the Rosevale properties are bequeathed upon the conditions "to erect good buildings on it and live there paying rates and taxes, to maintain in good order occupying it, and upon his death is to be passed on to his family, who will pass it on to their families on these same conditions."
It may be noted that there is no provision in the will for the residue, so upon any view of this matter, there is a partial intestacy.
For the respondents, Mr Pearce contended that:
· the words in both clauses were sufficiently certain to save the bequests; and
· the clauses conferred an outright gift upon each of the respondents.
For the applicant, Mr Woodgate did not submit to the contrary. However, he very properly adduced additional argument in the event that the Court was satisfied that the gifts were sufficiently certain but did not confer absolute gifts. Mr Woodgate submitted that in that event:
· the bequests infringed the rule against perpetuities; and
· accordingly, the bequests were to the respondents for life and then to "family", but thereafter failed; and
· it was necessary to construe the meaning of the word "family".
Mr Pearce supported Mr Woodgate's argument with respect to the rule against perpetuities in the event that I did not accept his primary submission that cls 1 and 2 conferred outright gifts upon the respondents.
The Public Trustee was appointed to represent the respondents' children, for Craig now has three children, the eldest of whom was born six months after the testatrix's death. Her counsel, Mr McManus, submitted that cls 1 and 2 bequeath the properties to the respondents for life and thereafter to the "family" of the respondents. He joined with other counsel in their submissions with respect to the rule against perpetuities and contended that "family" meant the children of the respondents, whom his client represented.
The net result of all this can be expressed as follows:
· if, as Mr Pearce submitted, there are outright gifts to the respondents, they obtain fee simple titles to the properties;
· if, as no-one submitted, the gifts are void for uncertainty, the properties will form part of the residue, but the respondents will still obtain fee simple titles via the deed of family arrangement;
· if the gifts are sufficiently certain, but not outright, and if they breach the rule against perpetuities, the properties will pass to the respondents for life and thereafter to their families. In this event the Court is required to construe the meaning of the word "families".
At the outset, I would like to record my appreciation to counsel for the very valuable assistance they gave me by well prepared and well presented arguments.
The principles for interpretation
The Court's task is to ascertain the intention of the testator as expressed in the will, read in the light of the surrounding circumstances in which it was made. In Perrin v Morgan [1943] AC 399, Lord Simon LC said, at 406:
"The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case ¾ what are the 'expressed intentions' of the testator."
The task of the Court is not what the testatrix ought to have said in her will, nor what she meant to do when she made her will. The question is, what the testatrix meant by the words written in the will. This principle was well expressed by Lord Romer in Perrin when he said, at 197:
"My Lords, I take it to be the cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. In order to understand the language employed the court is entitled, to use a familiar expression, to sit in the testator's armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said; that he was, in fact, one of those persons of whom Knight Bruce LJ, said that they spoke as if the office of language were to conceal their thoughts. In many of the cases to be found in the books the court is reported to have said that the construction it has put on a will has properly defeated the testator's intention. If this means, as it ought to mean, that the court entertains the strong suspicion to which I have just referred no sort of objection can be taken to it. But, if it means that the court has felt itself prevented by some rule of construction from giving effect to what the language of the will, read in the light of the circumstances convinces it was the real intention of the testator, it has misconstrued the will."
These principles have been previously applied in this Court, eg, by me in Re the Will of Alice Button A103/1991 and by Wright J in Re the Will of Elizabeth Duffy 10/1997.
With respect to the issue of certainty, it is impossible to resist citing the following passage from the first edition of Jarman on Wills at 315:
"In the construction of wills, the most unbounded indulgence has been shown to the ignorance, unskilfulness, and negligence of testators: no degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; but if, after every endeavour, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence."
There is no uncertainty in the present case with respect to the subject of the dispositions, nor with respect to the identity of the primary beneficiaries of those dispositions. Any uncertainty in this case arises out of the nature and effect of the conditions attached to the dispositions.
It is settled law that a testator may attach conditions to a devise or bequest, and such conditions take effect provided they are not void for repugnancy, uncertainty, illegality or for being contrary to public policy. If the gift is accepted, the beneficiary takes it with all the benefits and burdens that are attached to that gift. See Messenger v Andrews (1828) 4 Russ 478. A condition may be a condition precedent or subsequent. A failure to fulfil a condition subsequent will result in forfeiture of the gift. See In Re Boulter, Capital and County Bank v Boulter [1922] 1 Ch 75. With respect to conditions subsequent, the following general principle, expressed in Clavering v Ellison (1859) 7 HLC 707 at 725, has application:
"Where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning precisely and distinctly upon the happening of what event it was that the preceding vested estate was to determine."
The principle was applied in Perpetual Trustees Executors and Agency Co of Tasmania Ltd v Walker (1953) 90 CLR 270 at 279, et seq. Each will falls to be construed upon the words used by the testator or testatrix and those charged with this task might do worse than bear in mind the following passage in the judgment of Adam J in In re Ferguson deceased; Froomes v Ferguson [1957] VR 635 at 636:
"The temptation to construe one will according to the construction given by a Court to another will in terms not obviously dissimilar is always present, but in a will such as this where slight differences may well signify a different intention, it is essential to recall the oft repeated injunction, one expression of which was given by Joyce J, in Re Sandford, [1901] 1 Ch 939, at p 941: 'It has been said by the Court of Appeal that the true way to construe a will is to form an opinion apart from the decided cases, and then to see whether these decisions require any modification of that opinion; not to begin by considering how fare the will in question resembles other wills upon which decisions have been given'."
Assuming that the words "to erect buildings on it and live there paying rates and taxes, to maintain in good order occupying it, …" amount to a condition subsequent attached to the gift of the realty, it is, in my opinion, plainly void for uncertainty. The word "good" is of uncertain quality. The word "buildings" refers to more than one but is imprecise as to the exact number. The word is also imprecise in that it does not specify size, type of construction and so on. The expression "maintain in good order" involves a subjective value judgment by some unidentified person or persons and, finally, the word "occupying" is similarly uncertain as to its nature and extent. It would be impossible to determine whether, at any given point in the future, there has been a failure of the condition precedent resulting in the forfeiture of the gift. Accordingly, if the words "to erect buildings on it and live there paying rates and taxes, to maintain in good order occupying it, …" amount to a condition subsequent and not just a wish on the part of the testatrix, they fail for uncertainty.
That leaves the words "and upon his death is to be passed on to his family, who will pass it onto their families on these same conditions". In In re Thomas McGrath's Will (1899) 20 NSWLR (B & P) 55, Walker J said, at 57 - 58:
"That brings me to the second question. Who constituted the 'families,' declared by the testator to be the parties who are to take after his wife's death, and whether James McGrath and Michael Costelloe and their wives are members of the families of James McGrath and Michael Costelloe. In my opinion, the words 'families of James McGrath and Michael Costelloe' mean, and mean only, the children of those persons.
As was laid down by Sir George Jessel, MR, in Pigg v Clarke 3 Ch D 622 (and not laid down for the first time, but following various authorities there cited ¾ on of them being MacLeroth v Bacon 5 Ves 158 ¾ the primary meaning of the word 'family' is children. If it be intended by the testator to give the word 'family' some meaning other than its primary meaning there must be some indication of such intention shewn in the will itself."
In Re Nash [1979] Qd R 219, Hoare J said, at 220:
"Because of the differing principles which apply to the descent of real estate and personal estate there was formerly a sharp distinction in the meaning of the term 'family' depending on whether it applied to real estate or to personal estate. For example in Woods v Woods referred to in Jarman (7th ed at p 1555) it was made clear that the meaning to be applied to the term 'family' related to a bequest of personalty. Later it was held that where there is a mixed gift of realty and personalty, the primary meaning of 'family' is 'children' and indeed it would seem now that the use of the term 'family' has been recognised by the courts as being in such popular use that it will be construed as meaning 'children' even in devises of real estate if the context requires ¾ see Jarman (7th ed p 1555). The more recent cases in which the term 'family' has been interpreted are Pigg v Clarke [1876] 3 Ch D 672 and In re Makein, Decd, Makein v Makein [1955] 1 Ch 194 and Lambe v Eames [1871] LR Ch App 597."
See also The Notion of 'Family' in Law (1982) 14 UWAL Rev 416. In the circumstances of the present will, it would be perverse to construe the intention of the testatrix by the use of the word "families" as meaning anything other than the children of the primary beneficiary and, in turn, their children. Counsel did not contend to the contrary. This construction is reinforced when regard is had to par7 of the will, by which the testatrix expressly excludes the wives of the respondents from any benefit.
It follows then that if, as I have found, the expression "who will pass it on to their families on these same conditions" is a bequest to the children of Peter Stokell's children, it fails by reason of it being in breach of the rule against perpetuities. Again, no counsel contended to the contrary.
Mr Pearce's primary argument was that the clear intention of the testatrix was to create an absolute interest in favour of the respondents. He submitted that the words, "and upon his death is to be passed to his family" were:
· a mere wish or expectation on the part of the testatrix; and
· did not operate to cut down the absolute gift created by the words "to my nephew, … all my land at …".
The competing arguments are encapsulated in the following passage taken from In re Pryor; Woods v Pryor & Another [1923] SASR 199 at 201 - 202:
"The real difficulty in the construction of this will is to determine which of two conflicting rules should be applied. The first rule is that where an estate in fee-simple is given any limitation by way of remainder is void, and where an absolute interest in personal property is given it cannot be given over to any other person in succession (In re Wilcocks's Settlement, (1876) 1 Ch D 229; Watkins v Williams, (1851) 3 Mac & G 622; Theobald on Wills, 7 ed, p 648). The second rule is that an absolute gift can be cut down by anything in the will which indicates with reasonable certainty the intention of the testator to cut it down, or, in other words, that though a particular passage in a will, taken by itself, would give an absolute interest, the whole will is to be regarded and the intention of the testator gathered from the whole. (In re Bagshaw's Trusts, (1877) 25 WR 659)."
In In re Jones; Richards v Jones [1898] Ch D 438, Byrne J said, at 441:
"There are one or two rules which the Court is obliged to observe in construing wills containing gifts of this class. It is clear that if a gift is made in terms to a person absolutely, that can only be reduced to a more limited interest by clear words cutting down the first estate. There is a principle also which one must observe ¾ represented in a class of cases like Constable v Bull 3 De G & Sm 411 ¾ that, although the words are absolute in the first instance, you may find subsequently occurring words sufficiently strong to cut down the first apparent absolute interest to a life interest. Then there have been a great many decisions ¾ although I do not propose to refer to more than one of them ¾ in cases in which the testator has given an absolute interest in the first instance and has superadded words indicating that the person taking that interest is to have a power of disposition, and then has followed that up by purporting to give what shall remain, or what may not have been disposed of by the first taker. After all, in all these cases it is a question of construction; but the law requires that if there is an absolute gift in the first instance, you must have clear words to cut down that estate."
Although I am prepared to accept that even the words, "to erect good buildings on it and live there paying rates and taxes, to maintain in good order occupying it," are insufficient to create a precatory trust, the words "and upon his death is to be passed on to his family" are a different matter. In In re Williams; Williams v Williams [1897] 2 Ch 12, Lindley LJ said, at 18 - 19:
"There can be no doubt that equitable obligations, whether trusts or conditions, can be imposed by any language which is clear enough to shew an intention to impose an obligation, and is definite enough to enable the Court to ascertain what the precise obligation is and in whose favour it is to be performed. There is also abundant authority for saying that, if property is left to a person in confidence that he will dispose of it in a particular way as to which there is no ambiguity, such words are amply sufficient to impose an obligation. Nothing can be plainer than Lord Eldon's statement to this effect in Wright v Atkyns T & R 157. The books are full of cases decided in accordance with this doctrine: see Shovelton v Shovelton (1863) 32 Beav 143; Curnick v Tucker (1874) LR 17 Eq 320; Le Marchant v Le Marchant (1874) LR 18 Eq 414, in all of which the devise or bequest was to the devisee or legatee absolutely. See also other cases cited in Lewin on Trusts, 9th ed p 137. But still in each case the whole will must be looked at; and unless it appears from the whole will that an obligation was intended to be imposed, no obligation will be held to exist; yet, moreover, in some of the older cases obligations were inferred from language which in modern times would be thought insufficient to justify such an inference.
It would, however, be an entire mistake to suppose that the old doctrine of precatory trusts is abolished. Trusts ¾ ie, equitable obligations to deal with property in a particular way ¾ can be imposed by any language which is clear enough to shew an intention to impose them."
In this will, there are, on the one hand, no words in cl 1 such as "absolutely" or "for him to deal with as he wishes" to make it plain that the testatrix intended to confer an interest in fee simple in the first instance. On the other hand, the testatrix does not impose a trust by the use of words such as "and upon his death to his family". Are the words "and upon his death is to be passed on to his family" sufficiently imperative to create a trust? Does that expression, "is to be passed on", indicate that the testatrix intended the event to occur, not by her will, but by the will of the primary beneficiary? Is that expression no more than a request that the primary beneficiary pass the estate by his will? In Pyke v Walters 40/1983, the testamentary instrument devised and bequeathed the whole of the testator's estate to his wife "absolutely" subject only to payment of debts, etc. The will went on to provide "at the death of my wife the estate is to be sold … [and divided amongst the children]". Cosgrove J referred to the principles to which I have referred and concluded that the testator's intention was to create only a life interest at first instance, notwithstanding the use of the word "absolutely".
However, as I have observed earlier, each will falls to be construed upon its own language. Little help in ascertaining the testatrix's meaning in cls 1 and 2 is to be gleaned from reading the remaining clauses of the will. Some of the provisions make no sense at all, eg, "any children of my nephews who dies before the age of 18 years are to be maintained and educated out of surplus monies in the bank". However, it is clear from cl 3 that the testatrix was well aware that property could be bequeathed for life with the remainder to another.
In the absence of any word or words that expressly indicate that the initial devise was intended to be absolute, and in the presence of the clear and firm expression "and upon his death is to be passed on to his family", I have come to the conclusion that by cl 1, and thus by cl 2, the testatrix only conferred a life interest upon the respondents with the remainder passing to their children.
I answer the questions raised by the originating application (as amended) as follows:
| "Whether on the true construction of the said Will of the Testator and in the events and circumstances which have happened: a) the gift intended to be made by the words 'and upon his death is to be passed on to his family' in paragraph 1 of the Will fails: i) because it is void for uncertainty and further, or in the alternative; ii) for any other reason; | No |
| b) the gift intended to be made by the words 'who will pass it on to their families on these same conditions' in paragraph 1 of the Will, fails: i) because it is void for uncertainty and further, or in the alternative; ii) by reason of the rule against perpetuities and further, or in the alternative; iii) for any other reason; | Yes |
| c) insofar as the words 'To Craig Andrew Delamere Stokell all my land at Rosevale to be farmed on the same conditions as per John Stokell' ('the said words') in paragraph 2 of the Will contains a gift to the family of Craig Andrew Delamere Stokell upon his death, the said gift fails: i) because it is void for uncertainty and further, or in the alternative; ii) for any other reason; | No |
| d) insofar as the said words in paragraph 2 of the Will contain a gift to the families of the family of Craig Andrew Delamere Stokell, the said gift fails: i) because it is void for uncertainty and further, or in the alternative; ii) by reason of the rule against perpetuities and, further or in the alternative; iii) for any other reason. | Yes |
| 2 (a) Whether, on the true construction of the will of the testator, paragraph 1 of the will gives an absolute interest in the property at Collins Road, Sidmouth to the first respondent Peter John Stokell. | No |
| (b) If the answer to part (a) of this question is 'no', what interest in the property at Collins Road, Sidmouth is given by the will to: (i) Peter John Stokell; (ii) the children of Peter John Stokell | A life interest to Peter John Stokell with the remainder to his children. |
| (c) Whether on the true construction of the will of the testator paragraph 2 of the will gives an absolute interest in the property at Rosevale to the second respondent Craig Andrew Delamere Stokell. | No |
| (d) If the answer to part (a) of this question is 'no' what interest in the property at Rosevale is given by the will to: (i) Craig Andrew Delamere Stokell; (ii) the children of Craig Andrew Delamere Stokell. | A life interest to Craig Andrew Delamere Stokell with the remainder to his children. |
| (e) Whether on the true construction of the word 'family' in paragraph 1 of the will means 'children'." | Yes |
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