Beattie v Sainsbury

[2003] NSWSC 499

CITATION:	Beattie v Sainsbury [2003] NSWSC 499
HEARING DATE(S):	04/06/03
JUDGMENT DATE:	4 June 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	No contrary intention shown therefore s 29 operates to prevent lapse of gift.
CATCHWORDS:	SUCCESSION [156]- Will- Construction- Gift to children- Child predeceased testator- Whether lapse- Whether contrary intention to principle in s 29 of the Wills Probate and Administration Act 1898
LEGISLATION CITED:	Wills Probate & Administration Act 1898, s 29
CASES CITED:	Bassett v Hall [1994] 1 VR 432 Davies v The National Trustees Executor & Agency Co of Australasia Ltd [1912] VLR 397 Ex parte Ray; Re May (1815) 1 Maddocks 199; 56 ER 74 Re Harrison (1885) 30 Ch D 390 Re Jenkinson [2000] NSWSC 495 Re Meredith [1924] 2 Ch 552
PARTIES :	Paul Stephen Beattie (P1) Jennifer June Beattie Allen (P2) Ian Noel Beattie (P3) Ronald Bruce Sainsbury (D)
FILE NUMBER(S):	SC 4367/02
COUNSEL:	Ms J Needham (P) J Wilson (D)
SOLICITORS:	Hunt & Hunt (P) Philip J King (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 4 June 2003

4367/02 – BEATTIE v SAINSBURY

JUDGMENT

1 HIS HONOUR: Henry Holmes Sainsbury died on 23 February 2002. Probate of his will, made 1 September 2000, was granted to the defendant on 11 December 2002.

2 The testator's will contained only one dispositive clause and that is cl 4, which reads as follows:

“ I GIVE the whole of my estate subject to the payment of my debts to my trustee upon trust to divide as follows:
(i) As to a one half share thereof to my said son RONALD BRUCE SAINSBURY but if my said son dies before attaining a vested interest leaving a child or children then such child or children shall take in equal shares if applicable the share which his her or their parent would otherwise have taken.
(ii) As to a one half share thereof to my daughter ZELMA JUNE BEATTIE for her sole use and benefit absolutely.”

There was no residue clause in the will.

3 Zelma June Beattie predeceased the testator: she died on 21 June 2001. Zelma June Beattie left a will, by which she appointed the first plaintiff as her executor and made benefactions to the other plaintiffs. Probate of that will was granted to the first plaintiff on 18 September 2001.

4 The point of construction which has divided the parties, and which has brought the matter before the court, is as to whether s 29 of the Wills Probate and Administration Act 1898 applies to the moiety left to Zelma June Beattie.

5 Section 29 provides:

“Where any person being a child or other issue of the testator to whom any real or personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of such person dies in the lifetime of the testator, leaving issue, and any such issue of such person is living at the time of the death of the testator, such devise or bequeath shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will".

6 The vital words for present purposes are those last words "unless a contrary intention appears by the will".

7 In the instant case the plaintiffs, by Ms Jane Needham, their counsel, say that s 29 applies in this case so that the plaintiffs take the one half share given to Zelma June Beattie.

8 However, the defendant executor, by Mr John Wilson, his counsel, says that there is a contrary intention shown in the will. It is agreed between the parties that should I be of that view then there is an intestacy as to that one half share.

9 The will has its strange points, not the least of which is the lack of a residue clause. It also tends to use phrases which it is difficult to see how they can bear upon the interest given to the various beneficiaries. For instance, in cl 4.1 the words "before attaining a vested interest" are employed, but it is hard to see how there could be any problem with vesting of interests in the will at all, as the son is to take immediately upon the death of the testator.

10 Again, in respect of the daughter, the words "for her sole use and benefit absolutely" are employed. Before the Married Women's Property Act 1893, later consolidated and known as the Married Persons' Property and Torts Act 1901, these words were commonly put in wills. The reason was because, at law a married woman's property passed to her husband in accordance with the old common law doctrine that a husband and wife were one at law (and the husband was that one). However if a formula like that were used, equity would declare that the husband held the property on trust for the wife. In equity, married women were able to hold property. This is illustrated by cases such as Ex parte Ray; Re May (1815) 1 Maddocks 199; 56 ER 74 and see Story on Equity 13th edition (1886) vol 2 p 710.

11 Mr Wilson's principal argument is that if one looks at the words of the will one can see that the testator made express provision for the contingency that his son might die before attaining his interest, and if that were to happen, then there was a gift over to his child or children as purchasers. This is a contrary provision to s 29 because under s 29 the property would not pass to the child or children as purchasers, but rather would pass to the son's executor as if the son had survived the testator and then died.

12 There is no similar provision with respect to the daughter. However, Mr Wilson says the words "for her sole use and benefit absolutely" tend to show that she was only to take if she could enjoy the estate. Accordingly, the rule applied that existed before 1837, when the predecessor of s 29 was introduced into the law, that a person is presumed not to make a benefaction in favour of a deceased person.

13 Mr Wilson appreciates that the words "for her sole use and benefit absolutely" were a standard formula used before 1893 to make sure that a married daughter would take in equity the property beneficially, and it would not go to her husband. However, he says that that was over one hundred years ago and that no-one would use those words in that sense since 1893. Accordingly, the only sense one can give to those words is the one that he put, namely, that the half share was to go to the daughter to be enjoyed by her personally. Accordingly, there is a contrary intention shown with respect to s 29.

14 There was discussion before me as to the way in which one approaches problems as to what comprises a contrary intention within the meaning of s 29. Jarman on Wills, the latest, 8th ed (1951) p 466 indicated that there was little authority on the point and very little has happened since, as I indicated in my decision in Re Jenkinson [2000] NSWSC 495.

15 In that case I reviewed the authorities up to that point and indicated that the approach to what was a contrary intention was not any strict rule, but that one looked to see indications in the will as to what the testator meant, such as ordinarily a sufficient contrary intention would be shown if a testator has in the will made a gift over in the event that a particular child did not survived him. The same approach was taken in Victoria in Bassett v Hall [1994] 1 VR 432.

16 Some guidance is, I think, to be obtained from Davies v The National Trustees Executor and Agency Co of Australasia Ltd [1912] VLR 397 and Re Meredith [1924] 2 Ch 552, which carry the flavour that even though the testator might have excluded the operation of s 29 with respect to some benefaction to a propositus, the section may still operate with respect to other benefaction. It does not appear to me that these cases are completely on point, but they do point in that direction.

17 Ms Needham also points out the court's reluctance to find that a testator who has gone to the trouble of making a will would intend that any part of his estate would pass as on intestacy; see eg Re Harrison (1885) 30 Ch D 390, 393.

18 The submissions that Mr Wilson puts up do have weight. However, it seems to me that when one sees that the will is drafted without a residual clause and with otiose expressions in it, such as "vested interest" and "sole use and benefit", that there is insufficient in the document to show any contrary intention and that the statutory avoidance of lapsing provisions in s 29 of the will must apply. It follows then that the plaintiffs are entitled to the relief they seek.

19 The form of the declaration mentioned in Ms Needham's written submissions is more technically correct than that stated in the statement of claim.

20 Accordingly, I declare that the first plaintiff is entitled, as executor of the estate of the late Zelma June Beattie, to a one half share of the estate of the late Henry Holmes Sainsbury to be distributed in accordance with the will of the late Zelma June Beattie dated 12 April 2001.

21 I order the costs of each party be paid on the indemnity basis out of the one half share of the estate devised to Zelma June Beattie under the will of the late Henry Holmes Sainsbury.

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Last Modified: 06/12/2003