Carrington & Anor v Carrington & Ors; re Carrington
[2008] VSC 503
•21 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
No. 8357 of 2008
IN THE MATTER of the will and estate of GERALD BENJAMIN CARRINGTON, deceased
- and –
IN THE MATTER of an application by GEORGE EDWARD CARRINGTON and JOHN STUART PEDERSON as executors of the will of the abovenamed deceased
| GEORGE EDWARD CARRINGTON and JOHN STUART PEDERSON who sue in their capacity as executors of the will of the abovenamed deceased | Plaintiffs |
| V | |
| MARK ANDREW CARRINGTON and NATASHA ANN CARRINGTON and OTHERS | Defendants |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2008 | |
DATE OF JUDGMENT: | 21 November 2008 | |
CASE MAY BE CITED AS: | Re Carrington; Carrington v Carrington | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 503 | |
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WILLS – construction of will – gift to children “who are surviving” – whether surviving the deceased or are surviving at the time the disposition takes effect.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Dr I.J. Hardingham QC and Mr S Newton | Riordans |
| For the 1st Defendants | Mr J O’Bryan | Holding Redlich |
| No appearance for the 2nd Defendant | ||
| For the 3rd Defendant | Mr R Waddell | Aitken Partners |
HIS HONOUR:
Gerald Benjamin Carrington died on 1 September 2005 leaving a last will dated 27 July 2004 of which probate was granted to the plaintiffs, George Edward Carrington and John Stuart Pederson, the executors named in it.
The estate is substantial, comprising net assets of nearly $11.5M, as appears in the inventory.
The deceased was survived by his widow, Sheila Ann Carrington, from whom he had been separated for some years; his domestic partner of some years, Rosalyn Mary Hartney; and the firstnamed defendants, the two children of his marriage, Mark Andrew Carrington and Natasha Ann Carrington. It is relevant for my purposes to note that Mark is now aged 45 years and has recently married, and Natasha is aged 41 years and is unmarried. Neither of them has any children.
Other parties before the Court were the thirdnamed defendant, Robert Hugh Davey, who is sued representing the unborn grandchildren and great-grandchildren of the deceased, who may have an entitlement in the event that the children are not survivors ; and the secondnamed defendant, the Royal Society for the Prevention of Cruelty to Animals which is the ultimate residuary beneficiary.
The deceased bequeathed to his partner a legacy of $500,000 and the right of occupancy in a house property.
The residue was to be held by the executors upon rather complicated trusts. For the period of 10 years trustees are to apply income from residue as follows:
·An annuity of $30,000 to his partner;[1]
·Such further support for his partner as may be required to maintain her quality of life;[2]
·An annuity of $13,000 to his widow, commencing 1 January 2005;[3]
·The balance of the net income was dealt with as follows:
6 (a)(iv) In regard to any net income of the fund not expended or distributed to or for the benefit of ROSALYN and SHEILA under this subclause in any year of income (“the surplus”) my executors will allocate the surplus equally between my children, MARK ANDREW CARRINGTON (MARK) of 36 Hunter Street, Camberwell, Victoria and NATASHA ANN CARRINGTON (NATASHA) of 8/1 Lawson Grove, South Yarra, Victoria provided that if MARK or NATASHA has not survived but leaves children, the share of the surplus MARK or NATASHA would have received had they survived is to be allocated to, or for the benefit of, the children of MARK or NATASHA, as the case may be;
(v)I require that the interests of ROSALYN are, for the purposes of the fund created by this clause, to take precedence over any interest or expectancy as to net income or capital of any other beneficiaries of this Will; …
[1]Clause 6(a)(i).
[2]Clause 6(a)(ii), (vi).
[3]Clause 6(a)(iii).
At the end of this 10 year period, the trustees are to divide the capital and net income into three parts:
·One of these parts was to be used to continue the annuities payable to the testator’s partner and to his widow;[4]
·Two parts were to be disposed of pursuant to clause 7.[5]
[4]Clause 6(b)(i).
[5]Clause 6(b)(ii).
The part set aside for the payment of the annuities was itself to be disposed of pursuant to clause 7 on the later of the expiry of the 10 year period and the subsequent death of his widow and his partner.[6]
[6]Clause 6(c).
In terms of the operation of clause 7, therefore, the effect of clause 6(b) and clause 6(c) is to provide for the disposition of the whole of the income and capital of the fund 10 years after the testator’s death, provided that, if either his widow or his partner was then still alive, the disposition of one third of the capital and income was deferred until they were both deceased.
The question which arises in this case is as to the meaning and effect of clause 7(a). This clause and clause 8, containing the gift over in the event that the disposition under clause 7 is not effected, are as follows:
7Subject to the preceding clause, my executors will hold on trust and dispose of such parts as follows:
(a)One part each to such of my children MARK and NATASHA who are surviving;
(b)If any of my children MARK or NATASHA do not survive to attain a vested interest in my estate but leaves children who:
(i) survive me by thirty (30) days;
(ii)are born after my death and are alive at the date their eldest sibling attains eighteen (18) years;
and
(iii) attain the age of eighteen (18) years;
(“the survivors”) then my executors shall divide the part that their deceased parent would have received into equal sections or portions, and the survivors will receive in equal sections the part that their deceased parent would have received had the parent survived to attain the vested interest;
(c)If any of my grandchildren who would otherwise have taken the place of a deceased parent do not survive to attain a vested interest in my estate but leave children who:
(i) survive me by thirty (30) days;
(ii)are born after my death and are alive at the date their eldest sibling attains eighteen (18) years;
and
(iii) and [sic] attain eighteen (18) years;
(“the further survivors”) then the further survivors will receive in equal portions the section that their deceased parent would have received had the parent survived to attain the vested interest.
8.If under the preceding clause no person lives to receive a vested interest in my estate then I give the balance of my estate to the RSPCA of 3 Burwood Highway, Burwood East, Victoria 3151 provided that:
(a)If the organisation cannot receive a gift, then that gift will be made to the charitable organisations in Australia which my executors consider most nearly fulfils the objects I intend to benefit; and
(b)The receipt of the Secretary, Treasurer or public officer for the time being, of each organisation benefiting under this clause will be sufficient discharge to my executors.
The question raised in this proceeding is in these terms:
Having regard to the terms of the will of Gerald Benjamin Carrington deceased and in the events that have happened, have either or both of the first defendants attained a vested interest in the deceased’s estate for the purposes of clause 7 of the will of the deceased dated 27 July 2004?
I raised with counsel whether the application was premature. The 10 year period for the disposition of the first two parts of residue does not arise until September 2015. If on that date each of the children, Mark and Natasha, is still alive, the question does not arise with respect to those parts. The second disposition of residue may not occur until some time later. Again, the question may never arise.
I was informed by all parties that, notwithstanding this, a decision on the question was sought as this would enable the parties to resolve family provision claims which have been brought. In the circumstances, I will embark upon the question.
The precise words for interpretation are “who are surviving” in clause 7(a)(i). Do they mean “who are surviving at the date of death of the deceased”, as the children, supported by the executors, contend; or do they mean “who are surviving at the date of each disposition”, as was contended on behalf of the unborn children and grandchildren?
The will in a number of places requires that a beneficiary survive the deceased. For example, the legacy to his partner is, by clause 4, conditional: “If ROSALYN MARY HARTNEY (ROSALYN) survives me by thirty (30) days …”. The same survivorship condition is attached to her right of occupancy under clause 5 and to the entitlement of the grandchildren under clause 7(b)(ii) and the grandchildren under clause 7(c)(i).
The provision in clause 6(a)(iv) regarding the disposition of surplus income during the 10 year period after the death of the testator is perhaps closer to clause 7(a), for it deals with income payable to the children after the death of one or other of them. In this clause, it seems clear enough that the gift over to the grandchildren would have occurred only where a child of the deceased did not survive the deceased himself.
I turn now to clause 7. In part (b) and part (c) survival is mentioned in two contexts in identical terms. For ease of analysis, I shall refer only to part (b) which provides a gift over to the grandchildren. That paragraph operates only where one of the children “do not survive to attain a vested interest in my estate”. Further, in paragraph (b)(i), the grandchild beneficiary must satisfy conditions including that he or she “survive me by thirty days”.
As I have mentioned, the provision in clause 7(c) for the great-grandchildren also operates only where the relevant grandchild “do not survive to attain a vested interest in my estate”.
Finally, in clause 8, the gift over to the charity is introduced by very similar terms:
If under the preceding clause no person lives to receive a vested interest in my estate …
The interpretation pressed on behalf of the children would have it that these three successive gifts over will come into operation only when a child does not survive the deceased. Notwithstanding the powerful arguments presented by counsel on their behalf and the support of counsel for the executors, I do not consider that this interpretation is correct.
Clause 7 comes into operation on two occasions many years after the death of the testator. On each of these occasions the trustees are directed “to dispose of such parts” in accordance with clause 7. Clause 7 itself picks up this direction when it provides in its opening words “my executors will … dispose of such parts as follows …”. Clause 7, therefore, speaks as from each of those occasions.
The words which are central to this application are attached to a gift at that time to such of the children “who are surviving”. It is inescapable that these words, expressed as they are in present continuous tense or in modern grammar, progressive aspect, mean that the child is or is not surviving at the date of the disposition.
That the expression “who are surviving” cannot be a reference to survival 10 or more years previously, that is, at the date of death of the testator, is further indicated by the reference in paragraphs (b) and (c) to the next in succession having to “survive me”. It is further indicated by the rather quaint expression which introduces each of the gifts over: “do not survive to attain a vested interest in my estate”.
If the testator had intended this to mean “do not survive me”, he might easily have used such an expression, as he did elsewhere in the will.
A less powerful indication, but pointing in the same direction, may be the absence of the 30 days survivorship provision in clause 7(a). Each of the bequests of capital to survivors of the deceased requires 30 days survival. This is also included in the gift over to the grandchildren and the great-grandchildren. If it was intended that the children should take an immediate vested interest upon the death of the testator, consistency might have dictated that they, too, should be required to survive him by 30 days.
The final indication depends upon the facts in existence at the date of the will in 2004. I know nothing of the age of the testator or of his state of health or of his life expectancy. The successive gifts contained in clause 7 suggest that he was looking far into the future, to a time when his unborn great-grandchildren might qualify to take a share in the residue. This is more likely to be the case where the interest of the child did not vest at the date of the death of the testator.
I return, then, to the question for my consideration. This question and my response to it is as follows:
Q.Having regard to the terms of the will of Gerald Benjamin Carrington deceased and in the events that have happened, have either or both of the first defendants attained a vested interest in the deceased’s estate for the purposes of clause 7 of the will of the deceased dated 27 July 2004?
A.No.
I will hear counsel as to the terms of the orders required to give effect to this conclusion, and as to costs.
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