Daw v Daw - [2010] WASC 293

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DAW -v- DAW [2010] WASC 293

CORAM: MASTER SANDERSON

HEARD: 2 SEPTEMBER 2010

DELIVERED : 26 OCTOBER 2010

FILE NO/S: CIV 1264 of 2010

MATTER :In the matter of s 45 of the Administration Act 1903 (WA)
and
In the matter of the Will of CLARENCE CHARLES DAW late of 12 Carlisle Street, Ravensthorpe in the State of Western Australia, retired merchant/farmer, deceased

BETWEEN: RODNEY CLARENCE DAW as Executor of the Will of CLARENCE CHARLES DAW
Plaintiff
AND
RODNEY CLARENCE DAW
First Defendant
MERVYN FRANCIS DAW
Second Defendant
WESLEY JOHN DAW
Third Defendant
LINLEY ETHEL JAMIESON
Fourth Defendant
MURRAY ERNEST DAW
Fifth Defendant
RITA DAWN CATHERINE McLEAN
Sixth Defendant

Catchwords:

Wills - Executor of will seeking directions as to disposition of estate - Turns on own facts

Legislation:

Nil

Result:

Directions given

Category: B

Representation:

Counsel:

Plaintiff:     Mr S E Bruce
First Defendant            :     Mr R C Daw & Mr I T Blatchford
Second Defendant        :     No appearance
Third Defendant           :     Mr R C Daw & Mr I T Blatchford
Fourth Defendant         :     Mr R C Daw & Mr I T Blatchford
Fifth Defendant            :     No appearance
Sixth Defendant           :     Mr R C Daw & Mr I T Blatchford

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant            :     Haynes Robinson
Second Defendant        :     No appearance
Third Defendant           :     Haynes Robinson
Fourth Defendant         :     Haynes Robinson
Fifth Defendant            :     No appearance
Sixth Defendant           :     Haynes Robinson

Case(s) referred to in judgment(s):

Dalton v Dalton [2008] WASC 56
Re Hodgson; Nowell v Flannery [1936] Ch 203

MASTER SANDERSON: Probate of the will of the late Clarence Charles Daw was granted to the plaintiff on 10 January 2002. By originating summons issued 24 February 2010 the plaintiff in his capacity as executor of the estate sought directions as to the proper interpretation of the will.
The will itself is dated 15 August 1999. It was a hand written will and is quite succinct. I will quote the operative parts of the will in full:
I give devise and bequeath all my possessions of monies, shares and any properties and or valuables of any nature to my trustees for the purpose of distributing to members of my family in equal shares as to monies not required for the conduct of deriving income from dividends which income shall firstly be deposited in the Challenge Bank as arranged between my executors and the management of the bank.
The share of minor controlled on my behalf by Lester James of JB Ware & Sons of 140 St George's Terrace, Perth.
And I recommend my executors to continue this arrangement which has been in operation for many years.
My home on lots 1 and 2 being part of the estate I herewith request that the title deed in my name of Clarence Charles Daw be t/fd [transferred] to Rodney Clarence Daw or to any other member or members of my family
Lots 1 and 2 are in Carlisle Street, Ravensthorpe.
The originating summons sought determination of two questions. In the originating summons they are expressed as follows:
1.Do the words 'MEMBERS OF MY FAMILY' in the will mean, wherever they appear, the following:
(a)the deceased children all of whom survived the deceased namely Rodney Clarence Daw, Mervyn Frances Daw, Wesley John Daw, Linley Ethel Jamieson, Murray Ernest Daw and Rita Dawn Catherine McLean; or
(b)do they have any other meaning?
2.Do the words 'my home on lots 1 and 2 being part of the estate I herewith request that the title deed in my name of Clarence Charles Daw be t/fd [transferred] to Rodney Clarence Daw or to any other member or members of my family' lots 1 and 2 are in Carlisle Street, Ravensthorpe'.
Meaning one of the following namely:
(a)that the property situated on lots 1 and 2 Carlisle Street, Ravensthorpe, Western Australia ('the property') is given absolutely to Rodney Clarence Daw if he survives the deceased and that the words 'or to any other member or members of my family' are only intended to apply if Rodney Clarence Daw predeceased the deceased; or
(b)that whether or not Rodney Clarence Daw survived the deceased the property is given either to Rodney Clarence Daw or to any other member of the deceased's family and if so then is the discretion as to which of those persons is to be given the property to be exercised by the executor or by some other person or persons; or
(c)do they have any other meaning.
At the hearing of the originating summons the plaintiff was represented by solicitors who filed detailed submissions. Mr Rodney Clarence Daw, the first defendant, appeared personally in his own right. The third, fourth and sixth defendants were represented by counsel. The second and fifth defendants did not appear and took no part in the proceedings.
The submissions filed on behalf of the plaintiff were detailed and very helpful. They set out the law on construction of wills generally. Counsel for the second, fourth and sixth defendants agreed with the plaintiff's analysis of the law and took no issue with any of those submissions. However, counsel did draw particular attention to the decision of Farwell J in Re Hodgson; Nowell v Flannery [1936] Ch 203, 206. His Honour said that the first step in any case where the proper interpretation of the will is in issue is to give the words used in the will their primary and proper meaning. That statement of principle is to be implied in this case.
It was the position of the third, fourth and sixth defendants that the third and fourth lines of the will of the deceased (except the last two words of the fourth line being 'as to') show the deceased clearly intended all his estate as specifically described in the first two lines of the will was to pass to his trustee on trust for 'members of my family'. In my view there is no doubt that this is a reference to the deceased's six children. There is nothing in the will to suggest it could refer to anyone else. The plaintiff in his submissions agreed this was the likely proper interpretation.
That being so the answer to the first question ought be in terms of par 1(a) of the originating summons.
The remaining question then is whether the deceased's Ravensthorpe property is to go to Rodney Clarence Daw in his own right or whether it is to be divided between the six defendants.
On behalf of the third, fourth and sixth defendants it was submitted that the first part of the deceased's will clearly evinced an intention to leave all of his possessions including any real estate to 'members of his family' in equal shares. It was said that the remainder of the will did not have a dispositive effect. Rather, it was an attempt to give the executors directions to assist in administration of the estate. That submission was supported by reference to particular references in the will. For instance, the whereabouts of certain shares.
I accept that submission. In my view it is plain that the first part of the will represents the deceased's intention with respect to his estate. What remains of the will is an attempt to guide the executor in dealing with the estate. That being so I am satisfied the proper disposition of the Ravensthorpe property is it be divided equally between the defendants.
If I am wrong in that conclusion it still seems to me that the first part of the deceased's will clearly discloses the deceased's 'main purpose and intention'. If there is an inconsistency between the first part of the will and the balance of it the balance should be discarded: see Dalton v Dalton [2008] WASC 56 [76] ‑ [77] (Beech J).
Having reached that conclusion I am satisfied that the will requires the executor to distribute the interest in the Ravensthorpe property equally between the defendants. To the extent that was not one of the options posed in question two in the originating summons the orders to be made as a consequence of these reasons are not presently reflected in the summons. A minute of orders should be brought in by the plaintiff's solicitors.
The costs of all parties ought be paid out of the proceeds of the estate.