Equity Trustees Limited v Wilson
[2003] VSC 302
•28 August 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4394 of 2003
| EQUITY TRUSTEES LIMITED (ABN 46 004 031 298) (which sues as Executor and Trustee of the Will and Estate of Curtis Henry Wilson (Deceased) | Plaintiff |
| v | |
| IAN HARVEY WILSON AND OTHERS | Defendants |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 JUNE 2003 | |
DATE OF JUDGMENT: | 28 AUGUST 2003 | |
CASE MAY BE CITED AS: | EQUITY TRUSTEES LIMITED v WILSON | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 302 | |
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Will – Construction – One of residue remaindermen predeceased surviving residue life tenant – Whether partial intestacy, implied gift over to surviving residue remaindermen or gift over to charity – Testator did not intend partial intestacy – No implied gift over – "And" twice read as "or" – Gift over to charity of share of residue remainderman who died.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.T.A. Waddell | Bullards |
| For the First and Second Defendants | Mr P. Bravender-Coyle | Madgwicks |
| For the third Defendant | Dr I.J. Hardingham QC | Abbott Stillman & Wilson |
| For the fourth Defendant | Mr S. McNab | Bruce M. Cook & Associates |
HIS HONOUR:
The Proceeding
This is an application by originating motion filed on 5 February 2003 pursuant to which the plaintiff, Equity Trustees Limited, seeks answers from the Court concerning the proper construction of the will of the late Curtis Henry Wilson. The plaintiff sues as the Executor and Trustee of the Will and Estate of Curtis Henry Wilson, deceased ("the testator"), who died on 1 July 1981, leaving a will dated 17 January 1979.
By his will, the testator gave certain pecuniary legacies and real estate properties to specified friends and relatives. Clause 6 of the will provided as follows:
"I GIVE DEVISE AND BEQUEATH the remainder of my real estate and the remainder of my personal estate of whatsoever nature and wheresoever situated (hereinafter called 'the residue of my estate') unto my trustees UPON TRUST as follows:
(a)-(c)…
(d)to hold the balance of the residue of my estate UPON TRUST to pay the income therefrom
(i)as to one half hereof to my said brother ERIC HARVEY WILSON during his life
(ii)as to one half thereof to my said sister GRACE MARION WILSON during her life
(iii)to pay the whole of the income from the balance of the residue of my estate to the survivor of my said brother ERIC HARVEY WILSON and my said sister GRACE MARION WILSON during his or her life and on the death of the survivor of myself and of my said brother Eric Harvey Wilson and of my said sister Grace Marion Wilson
(e)to hold the balance of the residue of my estate in four equal parts or shares; two such parts or shares for my nephew the REVEREND RAYMOND ARTHUR HARVEY WILSON one such part or share for my nephew IAN HARVEY WILSON and one such part or share for my niece JANET MARY HARVEY VALLEE as shall survive the survivor of myself and of my said brother ERIC HARVEY WILSON and of my said sister GRACE MARION WILSON PROVIDED HOWEVER should the said The Reverend Raymond Arthur Harvey Wilson and the said Ian Harvey Wilson and the said Janet Mary Harvey Vallee predecease the survivor of myself and of my said brother ERIC HARVEY WILSON and of my said sister GRACE MARION WILSON then upon trust to hold the balance of the residue of my estate for the BERRY STREET CHILD AND FAMILY CARE of 1 Berry Street East Melbourne …"
The testator's brother, Eric Harvey Wilson ("Eric Wilson"), died on 20 August 1980. His sister, Grace Marion Wilson ("Grace Wilson"), the surviving life tenant, died on 7 November 2001. However, one of the testator's nephews, the Reverend Raymond Arthur Harvey Wilson ("Raymond Wilson"), predeceased the surviving life tenant, dying on 30 September 2000.
The plaintiff considered that the wording of the proviso to clause 6(e) of the will was ambiguous as to whether the gift to the Berry Street Child and Family Care took effect when either any one or only all of the residuary beneficiaries predeceased the surviving life tenant. If the balance of the residue of the estate passed to the charity only if all three of the residuary beneficiaries predeceased the survivor of the life tenants, then there would be a partial intestacy in respect of that part of the estate left to Raymond Wilson.
In the circumstances, the question to which the plaintiff sought answers was as follows:
"Upon the proper construction of the will of … Curtis Henry Wilson and in the events which have happened, does the:
(1)two quarters of the balance of the residue of the estate given to the Reverend Raymond Arthur Harvey Wilson devolve:
(a) as upon an intestacy;
(b)upon Ian Harvey Wilson and Janet Mary Harvey Vallee and if so in what portions;
(c) upon the Berry Street Child and Family Care;
(2)whole of the balance of the residue of the estate devolve upon Berry Street Child and Family Care."
The inventory of the assets and liabilities of the testator's estate dated 10 November 1981 disclosed that its net value was just over $600,000. I was informed that the size of the estate had approximately doubled to $1.2 million.
When the proceeding commenced, Mr Ian Wilson, Mrs Janet Vallee and Berry Street Child and Family Care were named as defendants. Ian Wilson and Janet Vallee were, together with their brother Raymond Wilson, the children of Eric Wilson. In 1992, Berry Street Child and Family Care was incorporated under the Associations Incorporation Act 1981 with the name Berry Street Inc. Following amalgamation with another charity in 1994, that body changed its name to its current name, Berry Street Victoria Inc ("Berry Street").
By a summons filed on 25 June 2003, the day before the hearing, the plaintiff sought an order that one or more persons be appointed to represent any person who is, or may be, interested in or affected by the proceedings pursuant to r.16.01 of the Supreme Court (General Civil Procedure) Rules 1996 ("the Supreme Court Rules"). This step was belatedly considered necessary because if the correct construction of the will was that the two quarters of the balance of the residue of the testator's estate given to Raymond Wilson devolved as upon an intestacy then Grace Wilson (the deceased's sister) and Raymond Wilson, Ian Wilson and Janet Vallee, taking as representatives of Eric Wilson (the deceased's brother), would be the deceased's intestate successors (see s.52(1)(f) of the Administration and Probate Act 1958). I was informed that not all of the relevant persons (the beneficiaries of the estate of Grace Wilson and the beneficiaries of the estate of Raymond Wilson) were before the Court. Although I considered that such persons could have been easily ascertained, I was prepared to make the order sought in order to save the further expense which would have been incurred by adjourning the hearing until the persons possibly interested in or affected by the proceeding were notified (see r.16.01(2)(c) of the Supreme Court Rules). Accordingly, I ordered that Pauline Anne Baxter, an experienced probate practitioner who had consented to act, be added as the fourth defendant to represent any person who is, or may be, interested in or affected by this proceeding, in the event of an intestacy and that the originating motion be amended accordingly.
A Summary of the Submissions of the Parties
As the question in the originating motion discloses, there are various possible outcomes depending on how the will is construed. In respect of the two parts of residue which would have gone to Raymond Wilson had he survived Grace Wilson, there could be a partial intestacy, an implied gift over to Ian Wilson and Janet Vallee or a gift over to Berry Street. Not surprisingly, the parties adopted varying positions on the proper construction of the will.
The plaintiff's submission was that the Court should substitute "or" for "and" between the names of each of the residuary beneficiaries and read in by necessary implication whatever words were necessary to ensure that the proviso to clause 6(e) had the effect that the share of the balance of the residue of the estate which would have passed to the remainderman, Raymond Wilson, had he survived the surviving life tenant, would go to Berry Street.
The third defendant, Berry Street, also submitted that the Court should substitute "or" for "and" between the names of each residuary beneficiary, although it submitted that it was not necessary to read in further words by implication. Once the conjunctions had been changed, it was clear, it submitted, that the share which would have passed to Raymond Wilson should go to it.
The primary submission of the first and second defendants, Ian Wilson and Janet Vallee, was that there was a partial intestacy in respect of the portion of the estate which would have passed to Raymond Wilson. Alternatively, they submitted that if the will was to be rewritten to the extent contended for by the plaintiff and the third defendant, then the scheme of the will showed that the testator intended to benefit them before Berry Street.
The representative fourth defendant's submission was that the share of the balance of the residue of the estate which would have passed to Raymond Wilson should devolve as upon an intestacy.
Construction of the Will
Dr Hardingham QC, who appeared on behalf of Berry Street, commenced his persuasive submissions by emphasising that no intestacy was intended by the deceased. He referred to the clear and comprehensive opening words of clause 6 of the will in respect of the residue of his estate. As Barwick CJ said in McClymont v Hooper, a gift of residue "is generally indicative of an intention not to die intestate".[1]
[1](1972) 128 CLR 147 at 152
Dr Hardingham submitted that where a residuary clause is being construed, the Court will show a strong inclination to construe the clause in such a way as to avoid an intestacy: Gibb-Maitland v The Perpetual Executors Trustees and Agency Company (WA) Limited[2]. Barwick CJ in McClymont v Hooper described the approach as "the general disinclination to favour intestacy where a will has solemnly been made", particularly where it was evident that the testatrix "was intending to deal exhaustively with her whole estate".[3] In the words of Lord Esher MR, the rule is that:
"Where a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he had gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy."[4]
[2](1947) 74 CLR 579 at 590-1 per Dixon J citing Romilly MR in Pearman v Pearman (1864) 33 Beav 394; 55 ER 420
[3](1972) 128 CLR 147 at 154
[4]Re Harrison (1885) 30 Ch D 390 at 393
Mr Waddell of counsel, who appeared for the plaintiff, submitted that there was a presumption that a testator does not intend to die totally or partially intestate, provided that on a fair and reasonable construction there is no ground for a contrary conclusion: Sidle v Queensland Trustees Limited[5]. He further submitted that the intention of the testator as expressed by the whole will was to provide that in the event of the death of any or all of the remaindermen before the death of the surviving life tenant, that part of the balance of the residue of the estate which would have gone to the non-surviving remaindermen should go to Berry Street and that there should not be an intestacy.
[5](1915) 20 CLR 557
Whilst Mr Bravender-Coyle of counsel, who appeared for the first and second defendants, accepted that there was a presumption against intestacy, he submitted that the rules of construction were no more than guidelines to be used if the intention of the testator was not absolutely clear and that for this reason a rule of construction would always yield to a contrary indication in the will. He submitted that where the language of a will admits of a plain and grammatical construction which is consistent with the apparent intention of the testator and does not deprive the devisee of all estate conferred upon him by the will, the Court will not have resort to the canons of construction framed for the interpretation of wills in cases of difficulty: Lynch v Johnson[6]. Mr Bravender-Coyle further submitted that words must be read in their natural or ordinary meaning: Fell v Fell[7]. Thus, he submitted that the words in the proviso to clause 6(e) of the will ought to be given their ordinary meaning, even though this would mean a partial intestacy. As Mr Bravender-Coyle, no doubt correctly, pointed out a testator may well intend to die partly intestate, in which case the presumption obviously would not apply: Re Edwards, Jones v Jones[8].
[6](1878) 4 VLR(l) 263
[7](1922) 31 CLR 268
[8][1906] 1 Ch 570 at 574 per Romer LJ
In argument, Mr Bravender-Coyle submitted that "it is hard to imagine … what other words the testator would have used to give a meaning that the Berry Street Clinic would only get it at a later event." I do not agree. One possible wording which would have made his intention clear was to say in the proviso "should all of Raymond Wilson, Ian Wilson and Janet Vallee predecease" the surviving life tenant.
Mr McNab of counsel, who appeared for the fourth defendant, also submitted that whilst the Court militates against a person dying intestate, this was only a presumption. The primary rule of construction was to look at the words of the will and the will as a whole to discern the intention of the testator: Perrin v Morgan[9]. He further submitted that if the wording of the will was clear and unambiguous, effect must be given to the intestacy: Fell v Fell[10]. He referred me to the following passage from that case:
"I think the true rule is that when a man makes a will he intends to die testate only in so far as he has expressed himself in his will. … Where the will contains a residuary gift or otherwise shows an intention on the part of the testator to dispose of the whole of his real and personal estate, but, as regards the interests created, admits of two constructions, the Court inclines to take the words in the sense which will enable them to operate as a complete disposition; but this so-called presumption against intestacy is not enough to satisfy the Court that intestacy was not intended: in order to oust the title of the persons claiming on intestacy it must be shown distinctly that there are words in the will sufficient to constitute a gift of the property in question expressly or by implication to some donee, and the burden of proof is on the alleged donee to that extent … ."[11]
[9][1943] AC 399
[10](1922) 31 CLR 268
[11](1922) 31 CLR 268 at 271 per Knox CJ
Mr McNab noted that the will was professionally drawn. He submitted that it was clear on its face what it meant and did not need to be altered. Doing so would be giving effect to a supposed intent of the testator not to die intestate which, he submitted, was not warranted. He submitted that a reading of the will revealed that the testator intended to benefit his family members and only if the gifts to them failed then to provide a gift over to charity. He further submitted that there was no inconsistency in the intestacy rules applying because this meant his brother and sister would take in the first instance. The intestacy rules gave effect to the scheme of the will looked at as a whole. Whilst it is perhaps correct to say that the intestacy rules meant that the family members benefited in the first instance, in my opinion there is an air of unreality about the submission, in the particular circumstances of this case. In 1979 when the will was drawn, the deceased would have known that his sister was never going to have children. Thus, in the events which have happened and which could have been anticipated by the testator as a possible outcome, instead of benefiting his family members or a charity of his choice, a partial intestacy means that half of the estate would go to the beneficiaries of the estate of his sister Grace Wilson, whoever they might be. This does not appear to me to be a sensible construction of the will.
Mr Waddell submitted that to construe the will as involving a partial intestacy led to a "capricious" or unreasonable result in that Berry Street, a donee which the testator had specifically provided for, would only take any of the residuary estate in the unlikely event that all of the residue remaindermen died before whichever of their uncle or aunt was the surviving residue life tenant. Even if "capricious" was overstating it, Mr Waddell submitted that there was an internal inconsistency in the will, in the sense that an attempt had been made to dispose of the entire residue and yet on a literal reading there was a deliberate possible partial intestacy.
Mr Bravender-Coyle criticised the use of the word "capricious". He submitted that there was no evidence that Berry Street had any moral claim on the testator's bounty. In those circumstances, he submitted, there was nothing surprising about the limited gift over to Berry Street. It was only included in the will to prevent bona vacantia, Mr Bravender-Coyle submitted, and referred to an affidavit of Mr John Henry, an experienced probate practitioner. However, what Mr Henry said in his affidavit, as Dr Hardingham pointed out, was that clause 6(e) of the will was commonly included:
"to ensure that, in the unlikely but possible event that all named individual beneficiaries (usually relatives or close friends) predecease or die with the willmaker, the residuary estate devolves to a named charity rather than to the next of kin of the testator."
This evidence, which was admitted without objection, hardly supported Mr Bravender-Coyle's submission, as he subsequently acknowledged.
Dr Hardingham further submitted that an intestacy would contradict the deceased's expressed intention in that it would see Raymond Wilson participating in the balance of the residuary estate despite his failure to survive all of Eric, Curtis (the deceased) and Grace Wilson.
I accept the submission that the deceased did not intend to die intestate. Therefore, I am of the view that, if at all possible, the proviso to clause 6(e) should be construed in a way which does not bring about this unintended result. I shall consider whether or not this can be done in this case in due course.
Another possible outcome dealt with by Dr Hardingham was that Raymond Wilson's two parts accrued to Ian Wilson and Janet Vallee. However, he submitted that there was no co-ownership and therefore no joint tenancy of any piece of property as between Raymond Wilson, Ian Wilson and Janet Vallee. Each was intended to the separate owner of their part of the residuary estate.
Dr Hardingham further submitted that there could be no implication of an appropriate cross-limitation, even putting aside for the moment the gift over in favour of Berry Street. Both he and Mr Bravender-Coyle drew my attention to the provision in s.46(3) of the Wills Act 1997, to the effect that if any part of a residuary disposition which is in fractional parts fails, then, subject to a contrary intention appearing in the will, the part that fails passes proportionately to the parts which do not fail. This relatively recent legislative change to the common law, which followed a recommendation in the Final Report of the Victorian Law Reform Committee on "Reforming the Law of Wills", was not applicable to this will.
Taking into account the gift over to Berry Street, Dr Hardingham submitted that again the relevant cross-limitation should not be implied. It was not enough to speculate that, had the testator turned his mind to the problem, he may have provided expressly for the relevant cross-limitation. This was not a necessary inference from the will. On the other hand, Mr Bravender-Coyle submitted that if the will were to be substantially rewritten, then the scheme of the will showed that the testator intended to benefit his nephews and niece before Berry Street. I can find no justification in the will for this submission. To follow it, would suggest that the introduction of s.46(3) was unnecessary.
Dr Hardingham also considered and distinguished the approach to cross-limitations taken in Scott v Bargeman[12].
[12](1722) 2 P Wms 69; 24 ER 643
In my opinion, there is no proper basis for construing the will in such a way that Raymond Wilson's two quarters should devolve upon Ian Wilson and Janet Vallee. I accept all of Dr Hardingham's submissions against this approach.
The last possible outcome is that clause 6(e) of the will is construed as requiring that Raymond Wilson's putative share go to Berry Street. Dr Hardingham accepted that, at first glance, the use of the conjunctive "and" between Raymond Wilson and Ian Wilson and between Ian Wilson and Janet Vallee in the proviso appeared inapt to produce a result in Berry Street's favour. However, he relied on the following observation from Jarman, A Treatise on Wills:[13]
"… by far the most numerous class of cases, exhibiting the change of a testator's words are those in which the disjunctive 'or' has been changed into the copulative 'and' and vice versa."
Dr Hardingham therefore submitted that the substitution of "or" for "and" resulted in a reasonable scheme of distribution, instead of an unreasonable and unintended one. Both Dr Hardingham and Mr Waddell relied on two cases in which this substitution of "or" for "and" had been allowed.
[13]8th ed, vol. 1 at p.608
The first of these cases was In Re MacMullen. The Trustees Executors and Agency Company Limited v Noble[14], where the Court was concerned with the interpretation of the phrase "die unmarried and without lawfully begotten children" in a codicil to the testator's will. The beneficiary in question, Hugh Arthur MacMullen, died leaving a widow but no children. Mann CJ said that if the phrase were read literally, the testator had done "an extraordinary and meaningless thing" by introducing as a second condition of the gift over that Hugh Arthur MacMullen die unmarried as well as without children, with the result that there would be an intestacy, rather than the estate passing under the will to the sister of Hugh Arthur MacMullen. In deciding that the will should be read by substituting "or" for "and", Mann CJ held that this would fulfil "the obvious purpose of the will and codicil as deduced from the whole of both documents". His Honour accepted the argument that "the testator has fallen into the common error of using the conjunction 'and' when he meant 'or'."[15]
[14][1937] VR 1
[15][1937] VR 1 at 5
The second case was Aboud v Aboud[16]. In that case a testator gave, devised and bequeathed his estate to trustees in the following terms:
"Upon trust during the lifetime of my said wife to pay to her the net income to arise therefrom, and from and after the death of my said wife I direct my trustees to hold my said estate and the income thereof upon trust for such of my children as shall be living at the date of my death or the death of my said wife, whichever shall be the later, if more than one in equal shares as tenants in common, or if only one for that one absolutely. Provided always that should any child of mine predecease me and my said wife leaving a child or children him or her surviving who shall then have attained or shall thereafter attain the age of 21 years then such child or children shall take the share as well original or accruing which his her or their parent would have taken had he or she survived me and my said wife if more than one in equal shares or if only one for that one only."
McLelland CJ in Equity held that in order to give effect to the true intention of the testator, the word "and" in the phrase in the proviso "should any child of mine predecease me and my said wife" should be construed as "or". His Honour decided that this was a case in which it appeared from the context that if he gave the word "and" its literal meaning he would be giving the word "a meaning different to that in which the testator intended to use it".[17]
[16][1960] NSWR 498
[17][1960] NSWR 498 at 500
Mr Bravender-Coyle referred to two other authorities where the opposite conclusion had been reached. The first was In Re Sharp. The Perpetual Trustees, Executors and Agency Company of Tasmania Ltd v Sharp[18], where the phrase in the will to be construed was "dying unmarried and without lawful issue". Morris CJ stated that the question:
"depends upon whether 'and' a plain word should be construed otherwise than according to its plain meaning, i.e., whether it should be construed 'or'. I do not think any consideration of leaning against intestacy can enter into it."[19]
The double event did not occur because the beneficiary left a wife. Accordingly, the gift over did not take effect and there was an intestacy.
[18][1946] Tas SR 13
[19][1946] Tas SR 13 at 16
Substituting "or" for "and" was also rejected by the Full Court of the Supreme Court of Queensland in Re Hamilton, Deceased. Queensland Trustees Limited v Clark[20]. The phrase in question in that case was "in the event of any of my brothers predeceasing me and my said husband leaving a widow and/or children". One of the testatrix's brothers survived her but predeceased her husband, the life tenant. The Full Court (Mansfield SPJ, Townley and Mack JJ) held that there was no valid reason for reading the word "and" in other than its natural meaning.[21]
[20][1953] St R Qd 48
[21][1953] St R Qd 48 at 53
The Full Court also stated, in a passage relied on by Mr Bravender-Coyle, that:
"The cases in which the word 'and' has been construed as 'or' fall within the following propositions:
1.Where one member of the compound sentence is included in the other and would be superfluous unless disjoined.
2.In order to favour the vesting of a legacy and not in order to divest it …
3.To avoid some obvious inconvenience or incongruity which would result from construing the word in its natural sense … ."[22]
Mr Bravender-Coyle submitted that none of these examples were apposite. However, in my opinion, this case could fall within either or both of propositions 2 and 3.
[22][1953] St R Qd 48 at 52-53
Mr Bravender-Coyle said that he had been unable to find any reported case where the Court had construed two successive conjunctives ("and" twice in succession) as two successive disjunctives ("or" twice in succession). He submitted that it was quite unusual for the alleged error to occur twice. Dr Hardingham submitted that In Re MacMullen was an example of the same error being repeated in succession in a professionally drawn will. In any event, I do not consider that the repetition of the word "and" is of significance. Once the error was made between Raymond Wilson and Ian Wilson, if error it be, then it was going to be repeated between Ian Wilson and Janet Vallee.
Although counsel referred me to the warning by Windeyer J in Lutheran Church of Australia South Australia District Incorporated v Farmers' Co-operative Executors and Trustees Limited[23] not to decide a case "by choosing among decisions by other judges as to what other testators meant by words used in other contexts", I do prefer the approach taken in In Re MacMullen[24] and Aboud v Aboud[25] to that adopted in the contrary two cases. In the context of the will as a whole, to give the word "and" in the proviso its literal meaning would be, in the words of McLelland CJ in Equity, giving it "a meaning different to that in which the testator intended to use it."[26] Therefore, in my opinion, "and" should be construed as "or".
[23](1970) 121 CLR 628 at 646
[24][1937] VR 1
[25][1960] NSWR 498
[26][1960] NSWR 498 at 500
Dr Hardingham submitted that it was not necessary to add any words, as had been submitted by counsel for the plaintiff. He declined to advance the argument that if "and" was changed to "or", on the death of one of the remaindermen, everything went to Berry Street. He submitted that the expression "the balance of the residue of my estate", which was used in several other parts of the will, was ambulatory. The content of what was covered in the ambulatory or changeable expression in the proviso to clause 6(e) was different to what was covered by the expression at an earlier stage in the will. I agree with this submission. In my opinion, if "and" is changed to "or" in the proviso, it is clear that Berry Street takes only that part which would have passed to the remainderman, had he or she not predeceased the surviving life tenant, and not the whole of the balance of the residue. Accordingly, I consider that it is not necessary to read into the will any other words.
Conclusion
In my opinion, the testator did not intend to provide for a partial intestacy. He intended to deal with the whole of his estate. Therefore, I do not consider that the will should be construed in a way that would bring about a partial intestacy. Sense can be made of the gift over provision to Berry Street by substituting the word "or" in the proviso for the word "and". I am satisfied that this is how the will should be read.
I therefore answer the question in the originating motion as follows:
1. (a) No.
(b) No.
(c)Yes, the two quarters of the balance of the residue of the estate given to the Reverend Raymond Arthur Harvey Wilson devolve upon Berry Street Victoria Inc.
2.No.
I will hear counsel on the appropriate form of orders.
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