Boettcher v Driscoll

Case •

[2014] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BOETTCHER v DRISCOLL AND ANOR

[2014] SASC 86

Judgment of The Honourable Justice David

4 July 2014

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION

The plaintiff is the sister of the first defendant.  They are the two surviving children of their mother who died on 8 July 2007.  Probate of the deceased’s will dated 21 January 1993 was granted on  10 December 2007.  The first defendant now seeks to have an additional unsigned document dated  12 May 1994 admitted to probate, which he contends operates as a codicil to the deceased’s earlier will. 

The principal asset of the deceased’s estate is a property situated at 12 Forrest Avenue, Marino.  The dispute in this matter arises out of the first defendant’s continued occupation of the Marino property without recompense to the deceased’s estate.

The issues to be determined were confined, by order of a Master made on 5 December 2013, to the legal status of the May 1994 document and the proper construction of the will.

In regards to the May 1994 document, the parties are in dispute as to whether it should be admitted to probate pursuant to s 12(2) of the Wills Act and, if that question is answered in the affirmative, what effect, if any, the document has on the terms of the will.

As to the will, the parties are in dispute over the proper construction and application of clause 3[a] of the deceased’s will purporting to give to the first defendant the Marino residence ‘until [the first defendant] has been working and/or employed on a full time basis for a continual period of three [3] years’.  More specifically, the dispute relates to whether the employment period set out in the will is to commence from the date of the will or from the date of the death of the deceased and, having regard to the determination of that issue, whether the period has elapsed. 

Held:

Admission of the May 1994 document to probate:

(1) The May 1994 document exhibits sufficient testamentary intention to be admitted to probate pursuant to s 12(2) of the Wills Act.

Effect of the May 1994 document upon the terms of the will:

(2)     The measure of the gift contained in the May 1994 document is uncertain.  As a result, the entire gift fails and the will stands unaltered.

Proper construction of clause 3[a] of the will:

(3)     The period referred to in clause 3[a] of the will commences to run from the date of the death of the deceased.  Accordingly, the period referred to has not elapsed.

Costs:

(4)     Further consideration stood over until parties have had time to consider these reasons.

Wills Act 1936 (SA) 3(1), 8, 12(2), 27; D M Haines QC, Construction of Wills in Australia  (Lexis Nexis Butterworths, 2007); Williams on Wills (Butterworths, 9th ed, 2008), referred to.
Re Potter, deceased [1970] VR 352, distinguished.
In the Estate of Roberts (1985) 38 SASR 324; Re the Estate of Tkaczuk (deceased); Dobryden v Wagner [2004] SASC 413; King v Perpetual Trustee Co Ltd (1955) 94 CLR 70; Allgood v Blake  (1873) LR Ex 160; Lutheran Church of Australia v Farmers' Co-operative Executors and Trustees Ltd (1970) 121 CLR 628; In the Estate of Gerard, deceased (2007) 251 LSJS 176; [2007] SASC 362; In the Estate of Graham, deceased (1978) 20 SASR 198; In the Estate of Williams, deceased (1984) 36 SASR 423; In the Estate of Ryan, deceased (1986) 40 SASR 305; In the Estate of Gall, deceased [2008] SASC 349; Re Watts [2012] SASC 16; Cropley v Cropley [2002] NSWSC 349; Wood v Smith [1993] Ch. 90 (C.A.); Brennan v Permanent Trustee Co of New South Wales (1945) 73 CLR 404; Jenkins v Stewart (1906) 3 CLR 799; R (on the application of M) v Slough Borough Council [2008] 4 All ER 831; [2008] UKHL 52; Currell v Baldock; Estate of Currell [2012] NSWSC 705; Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; Ritchie v Magree (1964) 114 CLR 17; Seneca Exploration Pty Ltd v Commissioner of State Taxation (2007) 96 SASR 394; Re Exeter (unreported, SC (Qld)  1090 of 1987, 9 March 1988 ; Pead v Pead (1912) 15 CLR 510; Sciacca v Ghidella [2001] QSC 134; Re Cuming [1943] SASR 336; In re Cuming; Nicholls v Public Trustee (1945) 72 CLR 86; Re Hewitt [1926] 1 Ch 740; Perpetual Trustee Co Ltd v Herford (1941) 41 SR (NSW) 169, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"use of the house"; "as long as he needs it."

BOETTCHER v DRISCOLL AND ANOR
[2014] SASC 86

Civil Jurisdiction

DAVID J:

Introduction

  1. These proceedings arise from a dispute concerning the estate of Patricia Driscoll, who died in Adelaide on 8 July 2007 aged 85 years. 

  2. Annemarie Boettcher and Michael Driscoll, the plaintiff and first defendant respectively, are the deceased’s surviving children.  Nicole Rickard, the second defendant, is the deceased’s grandchild (her mother having pre-deceased the deceased) and neither appeared nor was represented in these proceedings.

  3. The deceased executed her last will and testament on 21 January 1993.  The will is in the following terms:

    THIS IS THE LAST WILL AND TESTAMENT of me PATRICIA DRISCOLL of 12 Forest Avenue, Marino in the State of South Australia, Retired Nursing Sister.

    1.I REVOKE all former Wills.

    2.I APPOINT my daughter ANNEMARIE SARA BOETTCHER and my son MICHAEL DRISCOLL to be the Executors and Trustees of this my Will.

    3.SUBJECT to the payment of all my just debts funeral and testamentary expenses I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate unto my said Trustees and direct my Trustees to stand possessed of my estate as aforesaid upon and subject to the following trusts:

    [a]     I give my residence as at the time of my death to my executors on trust for my said son MICHAEL DRISCOLL until he has been working and/or employed on a full time basis for a continual period of three [3] years [excluding leave taken in the normal course of employment or at the choice and discretion of my said son], he being responsible for paying all rates and taxes and keeping the said residence insured against loss and damage from fire, storm and tempest in an amount and in an insurance office, approved by my executors and in the same state of repair as at my death;

    [b]     As to the proceeds of any financial institution accounts maintained by me at the time of my death for my said son MICHAEL DRISCOLL for his own sole use and benefit absolutely;

    [c]     as to the residue then remaining for such of my said children ANNEMARIE SARA BOETTCHER and MICHAEL DRISCOLL and my daughter SUSAN PETA DRISCOLL as shall survive me in equal shares, share and share alike for their own respective use and benefit absolutely BUT if any child of mine should die before me or before attaining a vested interest leaving issue them surviving then such issue shall on attaining the age of twenty one [21] years take equally the share which his, her or their parent would otherwise have taken, such shares to be in trust until they respectively attain the said age of twenty one [21] years.

    5.IF any beneficiary pursuant to this my Will is under the age of twenty one [21] years at the time of my death I EMPOWER my Trustees to make such advance or advances as they deem fit for the maintenance, education, welfare and advancement in life or otherwise of such beneficiary until he, she or they attain the said age of twenty one [21] years.

    6.After my death I wish my body to be used for medical education or research by the Anatomy Department of the University of Adelaide.

  4. On 12 May 1994, the deceased executed a handwritten document (the May 1994 document) in the following terms:

    I Patricia Driscoll wish to amend my will to read – Michael may have the use of the house for as long as he needs it.

    Dated this 12th day of May 1994

    [signed P. Driscoll]

  5. The provenance of the May 1994 document is not disputed and the plaintiff and first defendant agreed that it was written and signed by the deceased.  However, after the death of the deceased no action was taken in respect of the May 1994 document and probate was obtained in respect of the will only on 10 December 2007.   

  6. The principal asset of the deceased’s estate is a property situated at 12 Forrest Avenue, Marino (the residence).  It is common ground that the residence is the property referred to in the will and the May 1994 document as ‘my residence’ and ‘the house’, respectively. 

  7. The dispute in this matter arises out of the first defendant’s continued occupation of the residence without recompense to the deceased’s estate. 

  8. By her second statement of claim, the plaintiff sought to have the Court determine the proper construction of clause 3[a] of the will.  More specifically, the plaintiff asks the Court to determine whether:

    1.   the calculation of the period of the first defendant’s employment contemplated in clause  3[a] of the will commences to operate from the date of death of the deceased; the date of the execution of the will; or, some other date; and

    2.   having regard to the determination of the question set out above, has the period of employment contemplated in clause 3[a] of the will been completed such that the residue of the estate falls to be distributed amongst the beneficiaries?

  9. By his second defence, the defendant sought an order pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act) that the May 1994 document be admitted to probate as a codicil to the will with the result that clause 3[a] of the will is revoked. In the alternative, the defendant submits that if the May 1994 document is not admitted to probate or is otherwise held to be void, that in answer to question 1 set out above, the period contemplated in clause 3[a] of the will commences to operate from the date of death of the deceased.

  10. Additional causes of action were raised by cross-action filed by the first defendant; however, by order of a Master made on 5 December 2013 the trial before me was limited to the interpretation of the will and the determination of the legal status of the May 1994 document. 

    The Evidence

  11. Both the plaintiff and first defendant gave evidence.  A number of affidavits and other documents, including the file in which the will and May 1994 document were located, were also tendered. 

  12. It is important to clarify at the outset the use that can be made of the evidence presented by the parties.  On the issue of whether the May 1994 document ought to be admitted to probate, evidence extrinsic to the document itself of the circumstances in which it was created and the subjective intentions of the deceased is relevant and admissible[1].  That is, evidence can be adduced to prove that the deceased intended the May 1994 document to have testamentary force. 

    [1]    See In the Estate of Roberts (1985) 38 SASR 324 at 326.

  13. However, when determining the proper construction of the May 1994 document and the will, the court is to consider issues of construction from the position of the testator at the time of the making of each of those documents.  Evidence may be called to remove ambiguity and provide context, that is, to explain what the deceased has written[2].  However, extrinsic evidence is not admissible for the purpose of showing merely what the deceased intended to write[3].    

    [2]    Re the estate of Tkaczuk (deceased); Dobryden v Wagner [2004] SASC 413; King v Perpetual Trustee Co Ltd (1955) 94 CLR 70; Allgood v Blake (1873) LR Ex 160.

    [3]    Lutheran Church of Australia v Farmers’ Co-operative Executors and Trustees Ltd (1970) 121 CLR 628 per Windeyer J at 648.

  14. The evidence of the plaintiff and first defendant focussed predominantly on each of their relationships with their mother, the deceased, and on their limited knowledge as to the circumstances surrounding the creation of both the will and the May 1994 document. 

  15. The evidence of the plaintiff and first defendant was not contradictory.  Both spoke of having good relationships with the deceased.  That said, and this is in no way a criticism, it is apparent that the first defendant spent more time with the deceased as, unlike the plaintiff, he has remained in South Australia for the majority of his life.  Indeed, he gave evidence that for most of the time between 1990 and 1993, from 1997 until 2002 and from 2004 until the death of the deceased, he resided with her in the residence at Marino.  Although she lived interstate, the plaintiff kept in regular contact with the deceased, who would travel to stay with her for up to four months at a time.

  16. Neither the plaintiff nor the first defendant were contemporaneously aware that the deceased had instructed solicitors to prepare her will.  Similarly, neither were contemporaneously aware that the deceased had prepared the May 1994 document. 

  17. The plaintiff first became aware of the will and the May 1994 document when she was assisting the deceased to prepare a tax return in 2003.  Both the will and May 1994 document were located together in a concertina file and were filed in the section marked ‘W’.  However, the plaintiff stated that after first sighting them in 2003, she never discussed the will or the May 1994 document with the deceased. 

  18. The first defendant only became aware of the will after having been told about it by the plaintiff after the death of the deceased.  Similarly, he only became aware of the May 1994 document after being told about it by the plaintiff.  It was only then that the first defendant found the will and May 1994 document in a manila file marked ‘citizenship, passport, will, certificates + birth, death, marriage, brewery’ (which file was tendered as exhibit D3) located in a filing cabinet in the deceased’s lounge room.

  19. The first defendant gave evidence of the deceased approaching him and commencing a conversation in around late 1992, during which he discussed how long, on his estimate, he would have to be working full time before he would be in a position to purchase the residence from the deceased.  The first defendant said he had a desire at that time to purchase the house from the deceased and that he was unaware whether the deceased had a will, or of any intention on her part to prepare one.

  20. Importantly, the first defendant also gave evidence as to his employment history.  From that evidence, it is apparent that subsequent to the creation of the will and prior to the death of the deceased, he was employed full time for a period of at least three years.  However, between 2005 and October 2012 he was unemployed.  Since October 2012, he has worked an average of three days per week as a part-time chauffeur.  Accordingly, since the death of the deceased the first defendant has not been in full time employment for a period of at least three years.  Given the issues that fall to be determined in relation to clause 3[a] of the will, these facts are of particular importance.

    The May 1994 document

  21. The May 1994 document raises two questions for determination. First, does it exhibit sufficient testamentary intention to be admitted to probate under s 12(2) of the Act, and, if that question is answered in the affirmative, what is the proper construction of the gift contained therein? I deal with each question in turn.

    Is the May 1994 document entitled to proof pursuant to s 12(2)?

  22. It is clear, having regard to the definition of ‘will’ in s 3(1) of the Act, that a codicil may be admitted to probate as a will under s 12(2)[4]. 

    [4]    See also, In the Estate of Taylor, deceased (1994) 175 LSJS 430; In the Estate of Gerard, deceased (2007) 251 LSJS 176; [2007] SASC 362.

  23. Section 12(2) of the Act is a dispensing provision of remedial intent[5] allowing for the court to dispense with the formal requirements for a valid will demanded by s 8. The criteria for applying s 12(2) of the Act have been considered by the Courts on a number of occasions[6], and are three-fold.  The document for proof must be one that embodies testamentary intentions; has not been executed with the formalities required by the Act; and the court is satisfied that it is a document in respect of which there can be no reasonable doubt that the deceased intended the same to constitute a codicil to the deceased’s last known will. Notwithstanding these general criteria, each application must be considered on its own facts.[7] 

    [5]    In the Estate of Graham, deceased (1978) 20 SASR 198 per Jacobs J at 201-202.

    [6]    In the Estate of Williams, deceased (1984) 36 SASR 423 at 433; In the Estate of Ryan, deceased (1986) 40 SASR 305 at 309; In the Estate of Gall , deceased [2008] SASC 349, [19].

    [7]    In the Estate of Smith, deceased (1985) 38 SASR 30 at 33 (Bollen J).

  24. In this instance, the May 1994 document offends s 8 of the Act insofar as it is signed by the deceased only and not also by the requisite attesting witnesses. Accordingly, s 12(2) may, subject to the satisfaction of the three criteria set out above, be called in aid to admit the May 1994 document to proof given the defect of the absence of witnesses.[8]

    [8]    See Re Watts [2012] SASC 16, [16]; In the Estate of Gall, deceased [2008] SASC 349, [18].

  25. Given that no evidence was adduced from any person who was present when the May 1994 document was created, the questions regarding it must be answered principally by reference to the terms of the document itself.  In my view, the May 1994 document exhibits sufficient testamentary intention and must have been prepared by the deceased with the intention of it constituting a codicil to her earlier will.

  26. At the commencement of the May 1994 document, the deceased writes, ‘I, Patricia Driscoll ...’ This of itself implies a degree of formality and raises the status of the May 1994 document above that of a mere note or scribble. 

  27. Next, the deceased’s intention behind the drafting of the May 1994 document is written in plain English, ‘I ... wish to amend my will to read ...’  This could only have been clearer if the deceased had actually used the term ‘codicil’.  Given that she was not a lawyer; such an omission is easily excused. 

  28. The deceased both signed and dated the May 1994 document at its foot.  This is a further indicator that the deceased intended the May 1994 to have operative force[9] and testamentary effect[10]. 

    [9]    Similar observations were made by Barrett J in Cropley v Cropley [2002] NSWSC 349, [25]. In that case, the Court was asked to determine whether a document entitled ‘Codicil’, which had been signed by the deceased in the presence of two persons (but signed by only one of those persons), exhibited sufficient testamentary intention.

    [10]   As to the implications that follow from a signature being placed at the foot of testamentary document, see Wood v Smith [1993] Ch. 90 (C.A.) at 111.

  29. I find further support for the inferences that the May 1994 document exhibits testamentary intentions and was intended to constitute a codicil, by the fact that it was located in a file containing other testamentary papers.  On the other hand, because the deceased held onto papers and documents that were clearly out of date or of no use, I have drawn little support from the fact that she had stored the May 1994 document for 13 years until her death. 

  30. In the circumstances, I am satisfied that the May 1994 document expresses the testamentary intentions of the deceased and that the deceased intended the May 1994 document to constitute a codicil to her will. I find that the May 1994 document is capable of being admitted to proof as a will of the deceased pursuant to section 12(2) of the Act.

    What is the effect of the May 1994 document?

  1. I turn to the question of construction, namely, whether there is an effective gift in the May 1994 document to the first defendant.  For convenience, I again set out the terms of the May 1994 document:

    I Patricia Driscoll wish to amend my will to read – Michael may have the use of the house for as long as he needs it.

  2. The first defendant contends that the words, ‘may have the use of the house for as long as he needs it’, exhibit an intention to provide Michael with a life interest in the residence.  Conversely, the plaintiff contends that the gift fails as it is uncertain and that, in those circumstances, it is not open to the Court to remedy the defect by implying any further terms and conditions.   

  3. I have considered the terms of the May 1994 document carefully.  In doing so, I have considered whether there exists any extrinsic evidence that can shed light upon the background facts and context in which the May 1994 document was prepared.  Unfortunately, in this case there is virtually no extrinsic evidence of any probative value that assists me in construing what the deceased has written in the May 1994 document.  Indeed, on their own evidence the plaintiff and first defendant did not become aware of the May 1994 document until after it had been written and, in the plaintiff’s case, did not discuss it with the deceased after having learnt of its existence.  In those circumstances, I am left to construe the terms of the May 1994 document by reference to the established rules of construction[11], the will[12] and the May 1994 document itself.

    [11]   Brennan v Permanent Trustee Co of New South Wales (1945) 73 CLR 404 per Rich J at 409-410.

    [12]   Jenkins v Stewart (1906) 3 CLR 799 per Griffith CJ, Barton and O’Connor JJ at 805-806.

  4. With that in mind, the first question that falls to be decided is whether the disposition sought to be made in favour of the first defendant is by way of a condition, limitation or trust.  Though very little is certain about the nature of this gift, it is, at the very least, clear to me that this is a gift by way of limitation.  More specifically, it is a gift of the ‘use’ of the residence, the commencement of which is fixed and the duration of which is defined.

  5. The commencement date of the gift is clearly set out in clause 3[a] of the will and is certain, namely, ‘the time of [the deceased’s] death’.  The duration is also set out in the May 1994 document, namely, ‘for as long as [the first defendant] needs it’, and is, however, less certain. 

    Interpretation of ‘need’

  6. The first defendant contends that the word ‘need’ should be construed in a more colloquial sense, that is, as a synonym for ‘want’ and not in a more strict sense relating to necessity.  Conversely, the plaintiff contends that the expression ‘for as long as he needs it’ bears no objectively ascertainable meaning.

  7. In the circumstances of this case, the expression ‘for as long as he needs it’ is, without more, entirely uncertain.  The manner in which the first defendant’s ‘need’ for the residence is to be ascertained has not been articulated such that there are criteria by which it can be determined. 

  8. A number of questions inevitably arise.  For example, how is the first defendant’s ‘need’ for the residence to be determined?  Is it based upon purely utilitarian considerations, such as a need for shelter?  Is regard to be had to the first defendant’s financial situation and are emotional factors, such as sentimentality, to be considered also?  Depending upon the nature of the first defendant’s interest in the residence, would a ‘need’ include the need for rent derived from the residence, which is in turn used to finance a car or second house?  Further, who is to determine the ‘need’ of the first defendant and are they to be objective, subjective, or perhaps both?  Is the first defendant’s need to be determined by an independent arbitrator or by the first defendant himself?

  9. Such questions are not the product of an over-inquisitive or overzealous contrarian.  Rather, they are questions that I consider any reasonable beneficiary would be remiss not to ask, particularly where the ultimate realisation of their bequest depends upon their answer.  They also serve to highlight the ambiguity in the expression used by the deceased in the May 1994 document.

  10. Further, I am not satisfied to the requisite degree that the deceased intended to gift the residence to the first defendant for, as he contends, so long as he ‘wants’ it.  The latent difference between the words ‘want’ and ‘need’ was illustrated by Lord Neuberger of Abbotsbury, now President of the Supreme Court of the United Kingdom, who stated in R (on the application of M) v Slough Borough Council[13] at [54]:

    ‘Need’ is a more flexible word than it might first appear.  ‘In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.

    [13] [2008] 4 All ER 831; [2008] UKHL 52.

  11. ‘Need’ is not so synonymous with ‘want’ such that the two are interchangeable.  The difference between ‘need’ and ‘want’ is significant and to substitute one for the other in the May 1994 document would do it considerable violence.

  12. The first defendant refers to a number of cases which he says provide support to his contention that the May 1994 document is not uncertain of meaning. 

  13. The first was Re Potter, deceased [1970] VR 352, in which Menhennitt J upheld a gift to ‘reside in the said house as long as he so desires’. The difference in language between the two gifts is immediately apparent – ‘reside’ as opposed to ‘use’ and ‘as long as he so desires’ as opposed to ‘as long as he needs it’.  The words used by the testator in Potter are inherently more certain of meaning, and the case is distinguishable on that basis alone.  Indeed, Menhennitt J’s finding that the gift was certain of meaning appears largely to have been premised on his earlier determination that the gift amounted to a personal right of residence[14].  Further, a person’s desire, as opposed to need, is a far more subjective consideration that is best and most readily determined by the person professing the desire.  The ‘needs’ of a person are largely objective and, without more, questions such as those identified in paragraph 38 above are inevitable.

    [14]   Re Potter, deceased [1970] VR 352 at 355 – 256.

  14. In the circumstances, I am unable to give precise meaning to the expression, ‘as long as he needs it’, and therefore the duration of the limitation of the gift is uncertain.  I am not prepared to make any presumptions to remedy the ambiguity. 

  15. Interpretation of ‘use’

  16. The position is further complicated by the expression used by the deceased in the May 1994 document, ‘[the first defendant] may have the use of the house’ (emphasis added).  Given my finding set out in the preceding paragraph, it is not altogether necessary for me to deal with this issue.  However, I do so for completeness.

  17. The word ‘use’ is not a concept of any fixed or definite meaning.  That said, and as the case law shows, the word ‘use’ is capable of certainty of meaning.  The interpretation of this expression bears upon the nature of the interest that, but for the uncertainty surrounding the measure of the gift, would have been gifted to the first defendant. 

  18. Of some relevance is the case of Currell v Baldock; Estate of Currell [2012] NSWSC 705. In that case, an informal document was admitted to probate, which read as follows:

    To my daughter ... I will to her my ... Home and Contents for as long as she needs them.

    I do not want anyone else to live here other than Tanya and her partner.  If this happens she will forfeit the right to live here ...

  19. In Currell, White J was assisted in his interpretation by the more substantive nature of the informal document, namely, the restrictions placed upon the beneficiary’s use of the home. His Honour states at [76]:

    It is clear from the restrictions that Tanya was not to have the right to let the property to others. She was not to have the right to sell the property and to retain all of the proceeds beneficially. She was not to have the right to mortgage it. I think it confers only a right of residence.

  20. No such restrictions are contained in the May 1994 document.  The first defendant submits that as a result, and given that the May 1994 document provides that he may ‘have the use of the house’, the interest gifted to him in the residence is a life interest.  Conversely, the plaintiff contends that the expression, ‘the use of the house’, does not bear a clear and definite meaning.

  21. Notably, in Currell there appears to have been no consideration of the meaning of the expression, ‘as long as she needs them’.  I hasten to add that this does not placate the concerns that I have regarding the certainty of the similar expression contained in the May 1994 document[15].   

    [15]   I also note that authority as to how other wills have been construed is of limited utility: Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; Ritchie v Magree (1964) 114 CLR 17.

  22. In Seneca Exploration Pty Ltd v Commissioner of State Taxation[16], Gray J had occasion to consider the meaning of the term ‘use’, albeit in a different context.  His Honour stated[17]:

    [27]The word “use” generally has a wide meaning. It is defined by the Macquarie Dictionary to include the following:

    to employ for some purpose; to put into service; turn to account

    to avail oneself of; apply to one’s own purposes

    the act of employing or using, or putting into service

    a way of being employed or used; a purpose for which something is used

    [28]The word “use” is not confined to physical use. It extends to and includes a “purpose, or object or end, especially of a useful or advantageous nature”.

    [16] (2007) 96 SASR 394.

    [17] Ibid at [27] – [28].

  23. The word ‘use’ is clearly of wide import.  However, in Re Exeter[18], McPherson J stated:

    Trusts or directions concerning the use of residential property after the death of its owner are not uncommon in wills in Australia ... they may assume one of several forms which are capable of giving rise to either a life interest or not more than a personal right to reside in the house.  Because the result depends very much on the words used in the context of the will or other instrument, it is not really possible to arrive at binding rules of construction based on decided cases.  Nevertheless, it is a useful starting point to treat a disposition to “use and enjoy” or “use and occupy” as suggesting an intention to confer a life interest.

    [18]   (unreported, SC (Qld), 1090 of 1987, 9 March 1988); see also Sciacca v Ghidella [2001] QSC 135 at [27].

  24. Of course, in this instance the testator has written ‘use’ only.  I consider that, in the circumstances of this case, the ‘starting point’ identified by McPherson J is pertinent notwithstanding the absence of the additional words ‘and enjoy’ or ‘and occupy’.

  25. In Pead v Pead (1912) 15 CLR 510, Higgins J provided an example at 515, which is somewhat analogous to this case:

    If it were simply a case of "I give and bequeath all my estate, real and personal, to my wife for her own use" then sec. 28 would operate fully and give her the fee simple; but the will says she shall have it merely until the youngest child attains twenty-one years. These words qualify the gift; and that kind of estate is well known to the law - it is an estate for life determinable before death upon some previous event.  

  26. A further example is provided by the learned author of Construction of Wills in Australia[19], who writes at paragraph 23.5:

    Similarly, the life tenancy may be granted on condition that it remains extant until the life tenant gives notice in writing of his or her intention to cease to reside on the land.  If the event occurs, the life interest terminates and the interests of the remaindermen will vest in possession.

    [19]   D M Haines QC, Construction of Wills in Australia (Lexis Nexis Butterworths, 2007)

  27. The cases referred to by McPherson J in Exeter and also by Jones J in Sciacca v Ghidella [2001] QSC 134 at [27], acknowledge that there exists a clear distinction between ‘use and occupy’ and ‘reside’.

  28. In the circumstances of this case, and though given my earlier finding it is a matter of no consequence, I consider that the words ‘may have the use of the house’ exhibit an intention to gift a life interest to the first defendant.  However, this finding does nothing to remedy the uncertainty as to the measure of the gift.

    Conclusion as to the May 1994 document

  29. For the reasons given, the May 1994 document exhibits sufficient testamentary intention to be admitted to probate pursuant to s 12(2) of the Act. However, the gift is by way of limitation, the duration of which is so uncertain as to make it void. It is the measure of the gift that is uncertain and therefore the gift fails entirely[20]. 

    [20]   See Re Cuming [1943] SASR 336 per Napier CJ at 338; affirmed by the High Court: In re Cuming; Nicholls v Public Trustee (1945) 72 CLR 86

  30. I am not persuaded by the plaintiff’s contention that, notwithstanding its uncertainty, the admission of the May 1994 document to probate has the effect of revoking the gift contained in clause 3[a] of the will.  In preparing the will and the May 1994 document, the deceased clearly intended to gift the residence to the first defendant at least for a period of time.  The plaintiff’s contention is akin to having one’s cake and eating it and would result in an outcome plainly contrary to the intentions of the deceased.  In the circumstances, the most preferable way forward is that which does as little violence to the will as possible.  Accordingly, the will stands unaltered. 

  31. I now turn to the proper construction of the will.

    The Will

  32. I note from the outset that there is no dispute as to the nature of the gifts contained in the will.  Rather, the issue at trial regarding the will was limited to the proper construction of clause 3[a].  Again, for convenience, I set out clause 3[a] of the will:

    I give my residence as at the time of my death to my executors on trust for my said son MICHAEL DRISCOLL until he has been working and/or employed on a full time basis for a continual period of three [3] years [excluding leave taken in the normal course of employment or at the choice and discretion of my said son], he being responsible for paying all rates and taxes and keeping the said residence insured against loss and damage from fire, storm and tempest in an amount and in an insurance office, approved by my executors and in the same state of repair as at my death.

  33. More specifically, the issue is whether, on the proper construction of clause 3[a], the period of employment referred to therein commences from the date of the will, the date of the death of the deceased, or some other time.  Just as with the interpretation of the May 1994 document, any relevant extrinsic evidence is admissible only to shed light on the context and circumstances surrounding the creation of the will.

  34. It is important to note section 27 of the Act and observe that the provision does not regulate the issue in question here as to the date from which clause 3[a] of the will speaks.

  35. Section 27 of the Act provides:

    27 - A will to speak from the death of the testator

    Every will is to be construed with reference to the real estate and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention appears by the will.

  36. It is well recognised that section 27 and its counterparts in other jurisdictions do not require the will to be construed in every respect as if it were made on the day of the testator’s death.  Section 27 requires only that a will be construed as to the property comprised in it as at the death of the testator.  It has no application beyond that.  In any event, the will in this case reflects the statutory position.

  37. However, it is a matter of construction of the whole will whether a particular clause is intended to speak from the death of the testator, or the date of the will or other time[21].

    [21]   Williams on Wills (Butterworths, 9th ed, 2008) [54.1].

  38. In this case, clause 3[a] contains words of futurity that define the point at which the interest given to the first defendant determines or ceases.  However, the deceased has used the words of futurity without clearly stating when the time until the defined event begins to run.  The authors of Williams on Wills discuss such a situation at [54.2][22]:

    When a testator uses words of futurity without showing clearly the time which he is contemplating, those words must in the first place be read, as speaking from the date of the will and not as from the date of his death.    (citations omitted)

    [22]   Ibid at [54.2].

  39. The passage set out above is consistent with the decision of Lawrence J in Re Hewitt[23], who stated at 745:

    It is of course obvious that no will becomes operative until after the death of the testator; and, therefore, all directions for realization of the testator’s estate are necessarily referable to what is to happen after his death; but that does not, in my opinion, in the least conflict with the admitted rule that words of futurity in a gift contained in a will are ordinarily speaking referable to the date of the instrument in which they are contained.

    [23] [1926] 1 Ch 740.

  40. Similarly, in Perpetual Trustee Co Ltd v Hereford[24], a question arose as to whether a forfeiture clause applied to events in the lifetime of the testatrix and after the date of her will, as well as the happening of the event after her death. Roper J stated at 171 and 172:

    In my opinion the clause applies to the happening of the events in the lifetime of the testatrix and after the date of her will, as well as to the happening of the event after her death.

    ...

    Prima facie the will has to be construed except as to the property comprised in it as at the time when it was made; and I think that the words of futurity refer to the future as from that time, and consequently they cover the happening of an event after that time but before the death of the testatrix.

    71             With those general propositions in mind, the plaintiff contends that the period of employment set out in clause 3[a] of the will commenced to run as at the date of the will, namely, 21 January 1993.  The plaintiff submits that there is nothing in the words used in clause 3[a] or in the context of the creation of the will that displaces the prima facie position described by Roper J in Perpetual Trustee Co Ltd v Hereford.  The plaintiff seeks support for the maintenance of the prima facie position from the words of clause 3[a] and from her evidence as to the conversations that she had with her mother, the deceased. 

    [24] Perpetual Trustee Co Ltd vHerford (1941) 41 SR (NSW) 169.

  41. Notably, the first defendant concedes that the words in clause 3[a] are to first be read as speaking from the date of the will.  However, he contends that there is sufficient evidence to displace that prima facie position and that the deceased intended the period of employment set out in clause 3[a] of the will to commence as at the date of her death.  In putting that submission, he relies heavily upon the words of clause 3[a], ‘as at the time of my death’ and ‘as at my death’, and also upon conversations that he had with the deceased relating to the amount of time it would take him to save enough money to purchase the residence from the deceased.

  42. I have considered carefully the submissions put to me by both parties, the will as a whole, and the evidence of the plaintiff and first defendant given both in the witness box and by affidavit.  I have also considered the prima facie position as to how words of futurity are to be construed, which was put to me by the plaintiff.  Ultimately, I am of the view that upon the proper construction of clause 3[a], the period of employment referred to therein must have been intended to commence as at the date of the death of the deceased.  In reaching this decision, I have relied predominantly upon the words of the will itself and the evidence of the first defendant as to his conversation with the deceased regarding his desire to purchase the residence[25].

    [25]   For the avoidance of doubt, I note that when considering the first defendant’s evidence I have been careful to ensure that I do not use it for the purpose of determining the deceased’s intentions when preparing the will.  Indeed, the first defendant in his evidence stated expressly that he did not know what the deceased’s intentions were or that she was in fact preparing a will. 

  1. First, the gift itself speaks of being ‘as at the time of my death’ and ‘as at my death’.  This of itself is indicative of an intention by the deceased for her will to be operative from her death.  The plaintiff contends that those words are referable only to the deceased’s property, namely the residence, and confirm the statutory position that the will be construed as to the property comprised in it as at the death of the testator.  However, it would, without express words to that effect, be an odd construction for a single sentence in a will to refer to property as at the date of death and then deal with the disposition of that property by reference to the date of the will, before turning again to additional matters by reference to the date of death.  If the deceased had such an intention then she could easily have manifested it by the insertion of the words, ‘from the date of this my will’. 

  2. The evidence of the first defendant is also compelling and provides some much needed context to the time period stipulated by the deceased in clause 3[a] of her will.  The first defendant gave evidence that he discussed with the deceased in late 1992 his desire to purchase the residence from her.  He told her that he would need to be employed full time for a period of 3 years before he would be in position to purchase the residence.  The importance of this is that it follows that the three year period was likely included in the will to allow the first defendant sufficient time to obtain funds to purchase the residence and not, as was suggested, to ensure that the first defendant had a place to live whilst unemployed.

  3. With that context in mind, it necessarily follows that the period of employment set out in clause 3[a] is to commence from the date of death of the deceased.  To find otherwise would defeat the purpose of including the three year period as the first defendant, who on his own evidence did not become aware of the will until after the death of the deceased, would not have had an opportunity to take steps to save enough money to purchase the residence.  

  4. The nature of the limitation imposed upon the gift also suggests that the deceased intended the employment period to commence from the date of her death.  The event contemplated by the deceased, namely, the first defendant being in continual full time employment for a period of three years, is something that could occur a number of times over her lifetime[26].  It must have been in the deceased’s contemplation at the time of preparing her will that the first defendant may fall in and out of employment.

    [26]   This situation can be contrasted with the cases of Perpetual Trustee Co Ltd v Herford (1941) 41 SR (NSW) 169 and Re Hewitt [1926] 1 Ch 740 in which the relevant events, respectively, being declared of unsound mind and taking the veil, are likely to only occur once.

  5. For these reasons, I am of the opinion that, as a matter of construction, clause 3[a] of the will must be read such that the period of employment referred therein commences from the date of the death of the deceased.

    Conclusion

  6. The issues raised in this matter, and my conclusions in respect of each of them, are therefore as follows:

    1. Should the May 1994 document be admitted to probate under section 12(2) of the Act?

    Yes.

    2.   What, on its proper construction, is the gift contained in the May 1994 document?

    It is gift of a life interest by way of limitation, the measure of which is uncertain.  The entire gift fails as a result of the uncertainty.

    3.   Having regard to the proper construction of the gift contained in the May 1994 document, what parts of the will are revoked?

    The will stands unaltered.

    4.   On the proper construction of the will, does the period referred to in clause 3(a) commence from the date of the will or the date of the death of the deceased?

    The period referred to in clause 3(a) of the will commences to run from the date of the death of the deceased.

    5.   Has the period referred to in clause 3(a) of the will elapsed?

    No.


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