FAIRLIE-JONES (DECEASED)
[2013] SASC 59
•26 April 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of FAIRLIE-JONES (DECEASED)
[2013] SASC 59
Judgment of The Honourable Justice Gray
26 April 2013
SUCCESSION - INTESTACY AND DISTRIBUTION ON INTESTACY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXECUTORS ACCORDING TO TENOR - PERSONS CHARGED WITH EXECUTORIAL DUTIES
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - GENERALLY
Application for a grant of probate - the deceased left a will appointing the applicant "to be Executor or Executrix and Trustee of this my Will" - the will contained bequests of particular items of property to the deceased's children and grandchildren - however, the will did not include all of the deceased's property - the will also provided "I WOULD like my daughter … to be in charge of EVERY item I own not mentioned in this will. She can then distribute things after discussion" - whether the deceased's daughter is an executor according to the tenor - whether there is a partial intestacy - whether the words "[s]he can then distribute things after discussion" impose a pre-condition.
Held: Grant of probate made to the applicant, limited to those assets expressly named in the will - grant of probate of all of the deceased's other items of personal property made to the deceased's daughter as executor according to the tenor - the deceased's real property and her money in the bank not included in that grant - the deceased's money in the bank and real property is to be distributed in accordance with the laws of intestacy - the words "[s]he can then distribute things after discussion" did not impose a pre-condition.
Administration and Probate Act 1919 (SA); Probate Rules 2004 (SA) s 77, referred to.
In the Will of James Hollings (1878) 4 VLR (IPM) 46; In the Estate of Williams deceased (1984) 36 SASR 423; In the Estate of Ryan (1987) 139 LSJS 42; In the Will of Anthony Darcy (1885) 11 VLR 339; Re Burton (Deceased), Public Trustee v Burton [1965] NZLR 712; The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney General of Western Australia [2006] WASC 191; In re Hutchinson and Tenant (1878) 8 Ch D 540; Fell v Fell (1922) 31 CLR 268, considered.
In the Estate of FAIRLIE-JONES (DECEASED)
[2013] SASC 59Testamentary Causes Jurisdiction
GRAY J.
This is an application for a grant of probate.
Introduction
Doreen Fairlie-Jones, the deceased, died on 3 January 2012. She was survived by three adult children.
On 19 December 2003, the deceased duly executed a will. The will is printed on a will kit style form and is in the following terms:
This is the last Will and Testament of me,
DOREEN FAIRLIE-JONES (name)
of … NORTH ADELAIDE. SOUTH AUSTRALIA (address)
in the State of
1. I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament.
2. I appoint my son PETER FAIRLIE-JONES (name)
of … Norwood
to be Executor or Executrix and Trustee of this my Will.
3. I give to my eldest son PETER FAIRLIE-JONES the following
items of personal property:
The Victorian antique desk Diamond solitaire ring
The portrait of Captain James Fairlie
The swords used in the Indian Mutiny.
to my son JEREMY FAIRLIE-JONES
The Corner cupboard The Darvel wooden chair
The antique books
The tall brass lamp
The picture of Zurich
The blue Dutch plate given to my father.
to my daughter MADELEINE DEBORAH FAIRLIE-JONES
All my jewellery Brass Oil Lamp
Everything for the table, Limoges china etc.
The painting of a woman by a French painter friend of my father
The sofa.
500 dollars to each grandchild – David, Lucy, Christopher
and James
My records to Christopher and James.
To Lucy the little wooden drawers and my dressing table set.
I WOULD like my daughter, Madeleine, to be in charge of EVERY item I own not mentioned in this will. She can then distribute things after discussion.
Regrettably I have to insist that other than the ring, the desk. All other items of family antiquity must be held by someone else till my son has a house like a fortress. Totally secure. All items must be engraved (sword handles).
We have only temporary custody of my ancestors’ belongings and I would like to think all will be intact for my great-grandchildren.
Dated this 19th day of December in the year two thousand 03
SIGNED by the Testator/Testatrix as an
For his/her last Will and Testament
in the presence of us both
present at the same time who
at his/her request in his/her presence
and in the presence of each
other have hereunto subscribed
our names as attesting witnesses [signed]
[signed] [signed]
Witness Witness
[Emphasis added.]
The issues arising in the present application are primarily concerned with the emboldened clauses in the will.
Following the deceased’s death, her son Peter applied for a grant of probate as the sole executor named in the will. However, the statement of assets and liabilities for the deceased’s estate contains a number of substantial assets which are not mentioned in the will. The issue arises as to whether the deceased intended for her daughter Madeleine to administer any of those assets. If so, a grant made to Peter should be limited to the assets named in the will and a grant as to other assets should be made to Madeleine as executor according to the tenor of the will. It must also be considered whether there is a partial intestacy, causing some of the deceased’s assets to be distributed in accordance with the intestacy provisions of the Administration and Probate Act 1919 (SA).
The application was referred by the Registrar of Probates for consideration pursuant to rule 77 of the Probate Rules 2004 (SA).
Legal Principles
It is settled that in certain circumstances a person can be appointed as an executor even if the term “executor” is not used in the will. In In the Will of James Hollings, Molesworth J observed:[1]
It is not necessary that the word “executors” should be used to constitute such; it is sufficient if it appears by the will that the persons named have to perform duties of the office.
Accordingly, an executor can be appointed expressly or by construction.[2] In order for the latter to occur, the construction of the whole document must be considered.[3] An executor appointed by construction is known as an “executor according to the tenor”.
[1] In the Will of James Hollings (1878) 4 VLR (IPM) 46, 47.
[2] See In the Estate of Williams deceased (1984) 36 SASR 423, 435; In the Estate of Ryan (1987) 139 LSJS 42, 43.
[3] In the Estate of Ryan (1987) 139 LSJS 42, 43.
In In the Estate of Ryan,[4] Legoe J summarised the considerations applicable to the appointment of an executor according to the tenor of the will. His Honour observed:[5]
[4] In the Estate of Ryan (1987) 139 LSJS 42.
[5] In the Estate of Ryan (1987) 139 LSJS 42, 43-45.
The basic approach of the court has been to consider whether on a proper construction of the document constituting the testamentary dispositions of the deceased satisfies the various tests for the persons so named to be nominated as the one or one of several to carry out the functions of an executor. … First, a simple direction to persons to pay debts, funeral and testamentary expenses is usually necessary to show that a person has been appointed an executor according to the tenor of the document … Secondly, In the Estate of William … I referred to the proposition that in order to constitute persons as executors according to the tenor of a will it must appear, on a reasonable construction thereof, that the testator intended that they should collect the assets, pay the debts and funeral expenses and discharge the legacies contained in the will …
…
Thirdly, a person not required to carry out the duties above referred to or any of them cannot be an executor according to the tenor, … Fourthly, although a simple direction by a testator to a named person to pay the debts or funeral or testamentary expenses and debts is usually sufficient to constitute such person an executor according to the tenor, such a direction is not indispensible to such an appointment, but unless it can be discerned from the terms of the document that the testator intended that the named persons should pay the debts, he cannot be constituted an executor according to the tenor.
…
Fifthly, where there is an express appointment of an executor it is less likely that there should be an indirect appointment to the same office, …
…
Sixthly, however where the duties imposed on a named person do not refer to the entire property of the deceased, such a person has been held, not to be constituted an executor according to the tenor; …
Seventhly, it must be quite clear from the intentions of the testator and on a proper construction of the documents that the duties imposed on the named person or persons are that of an executor otherwise such a person should not be granted probate, …
As stated above this is basically a question of construction in each case, …
[Emphasis omitted.]
The Application
The statement of assets and liabilities identifies the deceased’s estate as comprising real property in North Adelaide valued at $475,000.00, furniture and household effects estimated to be valued at $15,000.00, money in a bank totalling $38,173.05, jewellery estimated to be valued at $5,000.00 and a set of swords estimated to be valued at $3,000.00. No liabilities were disclosed. Accordingly, the net value of the deceased’s estate as disclosed by the statement of assets and liabilities totals $536,173.05. The real property, some of the furniture and household effects, and most of the money in the bank are not disposed of by the deceased’s will. As noted above, the issues to be considered are whether Peter’s duties as executor are limited to those assets named in the will, whether Madeleine is an executor according to the tenor of the will in respect of the assets which are not expressly identified in the will and whether any assets are to be distributed in accordance with the intestacy provisions.
I will begin by considering the first two issues and, in doing so, I propose to address the considerations identified by Legoe J in In the Estate of Ryan.[6] It is to be recalled that whether a person is an executor according to the tenor of the will, is a question of construction which turns on the facts of the particular case.
[6] In the Estate of Ryan (1987) 139 LSJS 42.
The first four considerations discussed by Legoe J are concerned with the duty of the executor to pay the debts and funeral expenses. The second consideration is concerned with the collection and distribution of assets, in addition to the payment of debts and funeral expenses. The terms of the will, as a matter of reasonable construction, suggest that the testator intended Madeleine to be responsible for the collection of the items owned by the deceased not expressly mentioned in the will. Further, Madeleine is charged with the responsibility of the distribution of the “things” not mentioned in the will. However, the deceased does not appear to have contemplated the payment of debts and funeral expenses. She has not directed anyone, including the named executor, to perform these duties. Accordingly, in the circumstances of the present proceeding, little weight can be given to the first four considerations, save for the part of the second consideration concerned with the collection and distribution of assets.
The fifth consideration is applicable to the within proceeding; that is, as there is an express appointment of an executor – in this case, Peter – it is less likely that there should be an indirect appointment to the same office. In my view, this consideration is to be borne in mind, however, it does not preclude the appointment of an executor according to the tenor of the will in circumstances where it is clear from the construction of the will that such an appointment was intended by the testator.
It is to be recalled that the sixth consideration identified by Legoe J was that where duties imposed on a named person do not refer to the entire property of the deceased, such a person has been held not to be constituted an executor according to the tenor of the will. Legoe J appears to have drawn this consideration from In the Will of Anthony Darcy.[7] In that decision, the deceased’s entire estate was disposed of in his will, but the persons proposed to be named as executors according to the tenor were only to manage part of the deceased’s estate. This can be distinguished from the present proceeding where Peter, the named executor, was appointed to deal with all of the property expressly mentioned in the will.
[7] In the Will of Anthony Darcy (1885) 11 VLR 339.
I turn now to the seventh consideration. It is to be recalled that in respect of Madeleine’s duties, the will provides:
I WOULD like my daughter, Madeleine, to be in charge of EVERY item I own not mentioned in this will. She can then distribute things after discussion.
In my view, the duties imposed on Madeleine are that of an executor. When read in its entirety, it is evident from the terms of the will that Peter’s appointment as executor is limited to the items of property listed in the will. The deceased intended for Madeleine to perform the duties of an executor in respect of items of the deceased’s property not listed in the will. To my mind, when the deceased formulated the terms of her will, she was only concerned with her items of personal property. This is evidenced by the use of the words “item” and “things” in the clause relating to Madeleine’s duties. This is supported by the fact that all of the assets listed in the will are items of personal property. The deceased recognised this in the opening to clause 3 which provides “I give to my eldest son PETER FAIRLIE-JONES the following items of personal property”. The two final clauses of the will also demonstrate that the deceased’s mind was firmly fixed on the disposition of her items of personal property. It is to be recalled that they are in the following terms:
Regrettably I have to insist that other than the ring, the desk. All other items of family antiquity must be held by someone else till my son has a house like a fortress. Totally secure. All items must be engraved (sword handles).
We have only temporary custody of my ancestors’ belongings and I would like to think all will be intact for my great-grandchildren.
[Emphasis added.]
In my view, the deceased did not intend to bequest her real property or her money in the bank through her will. Although a court of probate is to strive to adopt a construction which avoids an intestacy or partial intestacy,[8] in the present proceeding, the most plausible construction is a partial intestacy in respect of those items. It is a case of an elderly woman whose major concerns were the family “antiquities” and other items of personal property which were important to her.
[8] See Fell v Fell (1922) 31 CLR 268, 279; see also, David M Haines QC, Construction of Wills in Australia (LexisNexis Butterworths, 2007) [3.3].
I note that by her will, the deceased left a gift of $500.00 to each of her four grandchildren and that Peter was to attend to this bequest. This, to my mind, confirms that the deceased was not intending to address her other monies. It also confirms the unlikelihood of the instruction to Madeleine extending to the other monies of the deceased.
Accordingly, I have reached the conclusion that there is a partial intestacy in respect of the deceased’s real property and her money in the bank. However, in respect of the deceased’s items of personal property not listed in the will, such as her other furniture and household effects, I conclude that Madeleine has been appointed as an executor according to the tenor of the will in respect of those items. In my view, the intention conveyed by the words of the will outweighs any of the considerations identified by Legoe J which point against an appointment of Madeleine as executor according to the tenor of the will.
A Further Matter
The terms of the appointment of Madeleine as an executor – namely, “I WOULD like my daughter, Madeleine, to be in charge of EVERY item I own not mentioned in this will. She can then distribute things after discussion” – raises an issue as to whether Madeleine’s entitlement to do anything as executor is conditional upon “discussion”. The use of the words “[s]he can then distribute things after discussion” could be seen as imposing a pre-condition. Alternatively, those words could simply express the deceased’s hope that the family will talk to each other and get along. These circumstances suggest that the words are precatory rather than binding.
In Re Burton (Deceased), Public Trustee v Burton, Hardie Boys J remarked “it must always be the case that, if words in a will are precatory only, effect cannot be given to them.”[9]
[9] Re Burton (Deceased), Public Trustee v Burton [1965] NZLR 712, 713.
In The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney General of Western Australia, Templeman J relevantly observed:[10]
I return to cl 4(b) of the Will. It continues in the following way:
"AND IT IS MY WISH that no part of the said moneys shall be expended in the erection of buildings but shall be devoted towards the objects set out in clause 4(b) of this my Will and in developing the property known as 'Boys' Town' Mt Pleasant at Bindoon by ways of pasture improvement/growing of crops/purchase of stock and plant and general agricultural operations and if considered necessary the employment and payment of salary to a manager."
In my view, two points emerge from this part of the clause. First, the introductory words "AND IT IS MY WISH" are precatory words. That is, they express a wish or a hope, rather than establishing a trust. I acknowledge that in some cases, what might appear to be precatory words have been held to impose trust obligations. However, each case must turn on its unique construction; and where, as here, a clear distinction appears to be drawn between the disposition of the testratrix' residuary estate "upon trust", followed by precatory words, I consider that the distinction must have been intended.
[10] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney General of Western Australia [2006] WASC 191, [10]-[11].
In In re Hutchinson and Tenant,[11] Jessel MR was concerned with whether the words “with full power for her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so”[12] constitute a trust. His Honour relevantly observed:[13]
… In my opinion these words, standing by themselves, independently of authority, are not intended to impose any obligation on the widow. They are merely an expression of the testator's wishes and belief, as distinguished from a direction amounting to an obligation. His widow is to have power to give the property to any one she may think fit: she is to be complete owner of the property, but he expects her to dispose of it among his family, that is, his children. There is no occasion to tell her that she is to provide for herself, there being already a prior absolute gift to her. If you make the power override the absolute gift, the wife gets nothing, for you could then only give her an interest by inserting in the power something which is not there, namely, the word "wife." If you do not put in that word, you make her a trustee for the testator's family, that is, his children only; for there is no reported case in which the word "family," when used by a married man, has been held to include his wife as well as his children.
… Here is a gift by a testator to his wife absolutely, with something which looks like a superadded power, …
…
Both on principle and in consonance with the most modern authorities, I decide that the widow took absolutely, and therefore that the title is good.
[Emphasis added.]
It is evident that the words with which Jessel MR was concerned were treated as precatory and did not impact on the gift which had been given to the testator’s wife. In my view, the proper construction of the phrase “[s]he can then distribute things after discussion” falls into the same category. Those words are not a pre-condition to Madeleine’s appointment as an executor according to the tenor of the will. Instead, they express a hope or desire of the deceased that Madeleine have discussions with her family and that they get along. Madeleine’s appointment as executor according to the tenor of the will is not, therefore, limited by those words.
[11] In re Hutchinson and Tenant (1878) 8 Ch D 540.
[12] In re Hutchinson and Tenant (1878) 8 Ch D 540.
[13] In re Hutchinson and Tenant (1878) 8 Ch D 540, 542-543.
Conclusion
Peter is entitled to a grant of probate, limited to those assets expressly identified in the deceased’s will of 19 December 2003.
Madeleine is entitled to a grant of probate as executor according to the tenor of the will of all of the deceased’s other items of property. This does not include the deceased’s real property and money in the bank. The deceased’s real property and money in the bank is to be distributed in accordance with the laws of intestacy.
I direct the applicant to prepare minutes of order to give effect to these reasons.
0
3
1