Day v Perpetual Trustee Co Ltd - [1999] NSWSC 149

CITATION: Day v Perpetual Trustee Co Ltd [1999] NSWSC 149

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4106/98

HEARING DATE(S): 22/02/99

JUDGMENT DATE:
22 February 1999

PARTIES :

Lucie Jane Day by her tutor Jill Anne Day (Plaintiff)
Perpetual Trustee Company Limited as Executor of the Estate of Valmai Grafton Marshall deceased (Defendant)

JUDGMENT OF: Young J

COUNSEL : Plaintiff: J E Thomson
Defendant: W Haffenden

SOLICITORS: Plaintiff: P A Keith
Defendant: Cutler Hughes & Harris

CATCHWORDS: Succession [152]; Extrinsic evidence; To identify beneficiary; "Grandchildren"; Equivocation; Evidence admissible; Succession [183]; Gift to grandchildren; Prior reference to "only child"; In fact testatrix had three children

DECISION: See paras 30 and 31

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG, J
MONDAY 22 FEBRUARY 1999
4106/98 - LUCIE JANE DAY by her tutor JILL ANNE DAY V PERPETUAL TRUSTEE COMPANY LIMITED as Executor of the Estate of Valmai Grafton Marshall deceased
JUDGMENT
1 HIS HONOUR : These proceedings are to construe the will of the late Valmai Marshall, who died on 5 January 1998.
2 Mrs Marshall made her last will and testament on 4 May 1990.
3 Clauses 3, 4 and 5 of the will are as follows:
"3. I GIVE all my furniture, pictures, prints, musical instruments, television receivers, video recorders, radio receivers, electrical appliances, furnishings, jewellery, clothing, ornaments, china, glass, books and other household effects to my only child, my daughter JILL ANNE DAY provided that she shall survive me by more than thirty (30) days.
4. I GIVE DEVISE AND BEQUEATH the residue of my real and personal estate whatsoever wheresoever unto my Trustee UPON TRUST to pay thereout all my debts funeral and testamentary expenses and all duties and taxes payable in consequence of my death and I direct my Trustee TO HOLD the residue thereof (herein called my "residuary estate") upon the following trusts:
A. TO PAY the income arising from three-fifths of my residuary estate to my said daughter JILL ANNE DAY during her lifetime and TO HOLD the capital comprising the said three-fifths of my residuary estate, subject to the said life interest of my said daughter UPON TRUST for such of my grandchildren as shall survive me and attain the age of twenty one (21) years if more than one in equal shares absolutely.
B. To hold two-fifths of my residuary estate UPON TRUST for such of my grandchildren as shall survive me and attain the age of twenty one (21) years, if more than one, in equal shares absolutely.
C. If no grandchild or grandchildren of mine shall survive me and attain the age of twenty one (21) years my Trustee shall hold the whole of my residuary estate UPON TRUST for my said daughter JILL ANNE DAY absolutely provided she shall have survived me by more than thirty (30) days and be living at the date of death of my last surviving grandchild.
5. IF neither my said daughter nor any grandchild of mine shall attain a vested interest in my…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 149
Decision Date: 22 February 1999

CaseChat Overview and Summary

In the case of Day v Perpetual Trustee Co Ltd, the dispute arose in the Supreme Court of New South Wales. The testatrix, Mrs Day, left her estate to her "grandchildren" under her will. The key issue was whether the will was ambiguous in naming the grandchildren, given that the testatrix had three children, not one, and the term "grandchildren" could be interpreted differently. The court needed to determine if the term "grandchildren" was ambiguous and, if so, whether extrinsic evidence could be used to resolve the ambiguity.

The legal issues before the court included whether the term "grandchildren" was equivocal and if extrinsic evidence could clarify the testatrix's intention. The court examined whether the prior reference to the testatrix's "only child" could be considered in determining the meaning of the term "grandchildren." The court had to balance the principles of testamentary freedom with the need to give effect to the testatrix's intentions as accurately as possible. The court also needed to decide if the evidence provided was sufficient to resolve the ambiguity in the will.

The court held that the term "grandchildren" was equivocal because it could be interpreted in more than one way. The court allowed the admission of extrinsic evidence to resolve the ambiguity, considering the prior reference to the testatrix's "only child" and the actual number of children she had. The evidence showed that the term "grandchildren" was intended to include all of the testatrix's grandchildren, not just those of a single child. The court concluded that the term was equivocal and that extrinsic evidence was admissible to resolve the ambiguity. The final orders were made in favour of the plaintiffs, ensuring that all grandchildren were included in the distribution of the estate according to the testatrix's intentions.

Orders