ESTATE OF FERRALL (DECEASED) - [2011] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
ESTATE OF FERRALL (DECEASED)
[2011] SASC 187
Reasons for Ruling of The Honourable Justice Gray
25 October 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - ASCERTAINMENT OF TESTATOR'S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - IN GENERAL
Referral by the Registrar of Probate pursuant to Rule 77 of the Probate Rules 2004 (SA) - where will made bequest of entire estate to two minor children, Lia and Gianna Rodda, and contained the following words "As the above children are minors at the date of this will, I appoint their father and mother, STEPHEN JOHN RODDA and ANNA STELLA RODDA, sole Executor and Executrix to above bequest in trust use at their discretion [sic] on behalf of their two children" - this is the only mention of an executor in the apparently home-made will - where Stephen and Anna Rodda applied for probate of the will - whether on its true construction, the words above appoint the applicants for a limited time; namely until the children attain their majority.
Held: consider that the deceased intended the trust created to continue until the children attained their majority - the deceased appointed the applicants as his executors and trustees to the intent that they would attend to the usual responsibilities immediately following his death and would hold on trust the property the subject of the bequests, until the children attained their majority - accordingly, not prepared to infer that the applicants' appointment as executors and trustees extended beyond the youngest child attaining her majority - it follows that the applicants are not entitled to grant of probate, and that instead, Lia and Gianna Rodda are entitled to a grant of letters of administration with the will annexed.
Probate Rules 2004 (SA) r 77; Will Act 1936 (SA), referred to.

ESTATE OF FERRALL (DECEASED)
[2011] SASC 187
Testamentary Causes Jurisdiction
GRAY J.

On 16 September 2011, the Registrar of Probates referred this matter to me pursuant to Rule 77 of the Probate Rules 2004 (SA).
The deceased, Clifford Arthur Peter Ferrall, died on 18 June 2011, leaving a will dated 25 May 1983. The will relevantly provides:
I GIVE, DEVISE AND BEQUEST TO LIA DANIELLE RODDA and GIANNA OLIVIA RODDA of Coober Pedy, in the State of South Australia ALL my property both real and personal and wherever situate. As the above children are minors at the date of this will, I appoint their father and mother, STEPHEN JOHN RODDA and ANNA STELLA RODDA, sole Executor and Executrix to above bequest in trust use at their discretion [sic] on behalf of their two children.
Stephen Rodda and Anna Rodda have applied for probate of the will. Both Lia and Gianna Rodda survived the deceased and both are now over the age of 18.
In the Registrar’s referral, doubts were expressed as to the applicants’ entitlement to a grant on the basis that the following construction of the will was open: namely, that the appointment of the applicants is only for the time that “their two children” are minors. I note that a contrary submission has been put by the applicants.
Before coming to discuss the applicants’ submissions, it is to be observed that the will bears the hallmarks of a home made will. It might be inferred that some use was made of a professionally prepared precedent, however, it is to be observed that there is no apparent appointment of executors and trustees of the will as one might expect. Further, there is no specific provision for the common powers of executors such as power to make the payment of debts and to meet funeral and other testamentary expenses.
The only reference to executors is found in the following words of the will:
… As the above children are minors at the date of this will, I appoint their father and mother, STEPHEN JOHN RODDA and ANNA STELLA RODDA, sole Executor and Executrix to above bequest in trust use at their discretion [sic] on behalf of their two children.
One difficulty that arises is that these words would appear to appoint the applicants’ executors for a limited and discreet purpose; namely, to hold the property the subject of the bequests in trust on behalf of the two children. Another difficulty is that the trust is not expressly limited until the children attain their majority.
Taking the terms of the will on their face, I consider that the deceased intended the trust created to continue until the children attained their majority. I am prepared to infer from the words used that the deceased appointed the applicants as his executors and trustees to the intent that they would attend to the usual responsibilities immediately following his death and would hold on trust the property the subject of the bequests, until the children attained their majority. I am not prepared to infer that the applicants’ appointment as executors and trustees extended beyond the youngest child attaining her majority. To my mind, the deceased limited the role of the parents to that time.
This conclusion is strengthened by the fact that the deceased disposed of his entire property in the bequests to the children and that this entire property was the subject of the trust created by the terms of the will.
I turn now to the specific submissions advanced by the applicants. It was initially contended that the use of the words “in trust use at their discretion” are a reference to the assets of the deceased, and not to the appointment of executors. I disagree. In my view, the appointment is only made because Lia and Gianna were minors at the date of the will.
The applicants next submitted that the effect that the words “[a]s the above children are minors at the date of this will” are words by way of commentary only. The suggestion was advanced that with the approval of this Court, those words should be deleted from the will. I reject this contention. On its face, the document was executed in accordance with the provisions of the Will Act 1936 (SA). There is no basis to suggest that any terms of the will were simply matters of commentary. In my view, the words were words intended to have testamentary effect and should be given that effect. Those words allow the inference to be drawn that the trust continued only until the youngest child attained her majority. I do not consider that the words were included in the will by way of commentary.
It was next submitted that there was nothing in the will, either express or implied, to suggest that when Lia and Gianna attained their majority, that their parents would retire as executors. The submission suggested through a rhetorical question, I infer, that a construction that involved the parents retirement as executors and trustees upon Lia and Gianna attaining their majority, could not reasonably be said to have been the intent of the deceased. It was further contended that as the will was prepared in an “appropriate form” and was correctly executed, any ambiguity contained in the will should be resolved in favour of upholding the appointment of the applicants, rather than to interpret the will so that the appointment of the applicants fails. It was further contended that the phrase “as the above children are minors at the date of this will” explained why the deceased did not appoint Lia and Gianna as executors and trustees.
For the reasons mentioned above, I do not accept that the will was prepared in an appropriate form. It is true that aspects of the will appear to follow the form of a conventional will. However, as discussed above, on closer examination, the words used in material respects lack the clarity of expression expected of a testamentary document. There is simply no attempt to appoint executors and trustees in the conventional manner. By way of contrast, the will relevantly provides “[a]s the above children are minors at the date of this will, I appoint their father and mother, STEPHEN JOHN RODDA and ANNA STELLA RODDA, sole Executor and Executrix to above bequest in trust use at their discretion [sic] on behalf of their two children”. It would seem that the deceased intended to have the property the subject of the bequests held in trust for the children until they attained their majority. This appears to be the limited purpose for which he made the appointment of the applicants as executor and executrix.
At the time the deceased executed his will, it is plain that he understood that the beneficiaries named were both minors. It may be inferred that he understood that as minors they would be unsuitable persons to be named as executors and trustees. In those circumstances, it is readily understandable that he would appoint their parents during the beneficiaries’ minorities. It does not follow that the deceased intended their parents to continue as executors and trustees. Once the beneficiaries attained their majority they would be competent to manage their own affairs.
An appointment for a limited period of time is not unknown to the law. The 17^thedition of the text Williams, Mortimer & Sunnocks, Executors, Administrators and Probate is instructive. That text refers to “qualified” appointments of executors, including those qualified as to time. Citing a number of old texts, the following passage from the authors is particularly relevant:
The time may be limited when the person appointed may begin, or when he shall cease, to be executor. Thus if a testator appoints a man to be his executor at a certain time, as at the expiration of five years after his death, or at an uncertain time, as upon the death or marriage of his son, this is a good appointment. … So, if a man appoints his son to be executor when he shall come to full age, such qualified appointment is good; and in the meantime he has no executor. Again the testator may appoint the executor of A to be his executor, in which case, if he dies before A, he has no executor till A dies. So a man may make A and B his executors, and appoint that A shall not intermeddle during the life of B. In such a case they will be executors successively, and not jointly.
Likewise the testator may appoint a person to be his executor for a particular period only, as during five years next after his decease, or during the minority of his son, or the widowhood of his wife, or until the death or marriage of his son. …
[Footnotes omitted.]
The emphasised passages in the above text cite two apposite references. First, a passage in the 17^thedition of Swinburn on Wills, printed in 1803, is referred to for the proposition that the “law of this realm” recognises that an executor may be appointed either from a certain time or for a certain time, which reference in turn refers to earlier texts. Second, a passage in the 14^thedition of Thomas Wentworth’s The Office and Duty of Executors, published in 1829, is cited for the proposition that if a person appoints their child to be their executor when that child attains their majority, such qualified appointment is good. Wentworth’s text, under the heading “How an Executor, or his executorship, may be limited or qualified in special manner different from the general”, provides:
…at first, the time may be limited when he shall first begin to be executor; and that either certainly, or with some contingency. Second, the creation may be conditional. Thirdly, it may be partial or dividedly, and not entirely.
Having regard to all of the above, it follows that the applicants are not entitled to a grant of probate, and that instead, Lia and Gianna Rodda are entitled to a grant of letters of administration with the will annexed.