Fraser v Fraser
[2001] QSC 490
•19 December 2001
SUPREME COURT OF QUEENSLAND
CITATION: Fraser v Fraser and Anor [2001] QSC 490 PARTIES: BRUCE WILLIAM FRASER
(applicant)
v
ELSIE JEAN LYNETTE FRASER and
CAMERON ARNOLD FRASER
(respondents)FILE NO/S: S 8421/01 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court
DELIVERED ON: 19 December 2001 DELIVERED AT: Brisbane HEARING DATE: 30 October 2001 JUDGE: Philippides J ORDER: 1. It is declared that, upon its proper construction, the condition stated in cl 3(b)(i) of the Will of John William Joseph Fraser deceased dated 1st June 1990, that Cameron Arnold Fraser transfer to Bruce William Fraser by way of gift his one-half share and interest in the property known as “Saltern Creek”, is not void for uncertainty.
2. It is ordered that each party’s costs of and incidental to the application be assessed on an indemnity basis and paid from the estate of John William Joseph Fraser, deceased.CATCHWORDS: WILLS – PROBATE AND LETTERS OF ADMINISTRATION - construction and effect of testamentary disposition – uncertainty – condition subsequent – need for certainty in operation – condition that beneficiary transfer his interest in a specified property – whether condition uncertain as to time – whether reasonable period for performance can be implied – whether condition uncertain in operation because not capable of being fulfilled solely by the beneficiary
Clavering v Ellison (1859) 7 HL Cas 707
Davies v Lowndes (1835) 1 Bing NC 597
Huckstep v Mathews (1685) 1 Vern 362
Miller v Miller (1995) 16 ACSR 73
Morley v Rennoldson (1843) 2 Ha 570
Re Bradley [1994] 2 Qd R 233
Re Burton’s Settlements [1955] 1 Ch 82
Re Corr Unreported, S Ct of Qld, No 5712 of 1996, 15.8.96
Re Denley’s Trust Deed [1969] 1 Ch 373
Re Viscount Exmouth, Viscount Exmouth v Praed (1883) 23 Ch D 158
Watson v Watson [1999] NSWSC 325COUNSEL: G Gibson QC for applicant
D Mullins for respondentsSOLICITORS: Hunt & Hunt for applicant
McCullough Robertson for respondents
PHILIPPIDES J:
The issues raised by this application concern the validity of cl 3(b)(i) of the Will of John William Joseph Fraser, deceased, dated 1 June 1990.
The applicant, Bruce Fraser, is the eldest of two sons, the only children of the testator, John Fraser. The respondents are the applicant’s mother, Mrs Fraser and his brother, Cameron Fraser, each of whom (together with the applicant) are the executors and trustees appointed by the Will.
The testator was, and the applicant and his brother are, graziers at Barcaldine. Members of the family hold, and at all material times have held, interests in three grazing homestead leases at Barcaldine, namely “Bendigo”, “Culburnie” and “Saltern Creek”. In 1989, the lease of “Saltern Creek” was given to the sons, Bruce and Cameron Fraser, in equal shares. It is fenced into two approximately equal areas, each of which is operated by Bruce Fraser and Cameron Fraser respectively. The testator was the lessee of “Culburnie”, on which property he and Mrs Fraser resided and on which Mrs Fraser continues to reside.
The Relevant Provisions of the Will
By cl 3(a) of the Will, the testator devised and bequeathed the testator’s one third share in the family partnership of William Fraser and Son to Mrs Fraser and Cameron Fraser equally.
Clause 3(b) of the Will provides for a life interest in “Culburnie” to Mrs Fraser and that on termination of the life interest, that property is devised as follows:
“(i) For my son CAMERON ARNOLD FRASER on the condition that he transfers by way of a gift his own half share and interest in the property known as Saltern Creek … to my son BRUCE WILLIAM FRASER.
(ii) In the event that if for any reason CAMERON ARNOLD FRASER does not transfer his one half share and interest in Saltern Creek to BRUCE WILLIAM FRASER then for such of my sons BRUCE WILLIAM FRASER and CAMERON ARNOLD FRASER as shall survive me and if more than one in equal shares.”
By cl 3(c) of the Will the residue of the estate is left to Mrs Fraser.
The Validity of the Condition in Cl 3(b)(i) of the Will
The applicant seeks a declaration that upon its proper construction, the condition in cl 3(b)(i) of the Will, that Cameron Fraser transfer by way of a gift his one half share and interest in “Saltern Creek”, is not void for uncertainty.
The application proceeded upon the basis that the condition in cl 3(b)(i) is a condition subsequent, rather than a condition precedent. Accordingly, if the condition in cl 3(b)(i) were held to be void, the devise to Cameron Fraser of “Culburnie” would take effect free from the condition.[1]
[1]See Morley v Rennoldson (1843) 2 Ha 570; Re Bradley [1994] 2 Qd R 233; see also Williams on Wills, 7th Ed, Vol 1, at 326.
On behalf of the respondents, it was contended that the condition in cl 3(b)(i) of the Will is void for uncertainty for two reasons: firstly, because no time limit is specified for performance, and secondly, because the condition is not one capable of being fulfilled solely by Cameron Fraser.
(a)Is the condition void for uncertainty because it does not specify a time period for performance?
A condition subsequent must be clear and certain. That includes not only certainty of expression, but also certainty in its operation. It must be so framed that it may be capable of ascertainment, at any given moment, whether or not it has taken effect.[2] The classical statement of principle as to the requirement of certainty in respect of a condition subsequent, such as that in question here, is that of Lord Cranworth in Clavering v Ellison[3] that:
[2]Re Viscount Exmouth, Viscount Exmouth v Praed (1883) 23 Ch D 158 at 164.
[3](1859) 7 HL Cas 707 at 725.
“… where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.”
Accordingly, a condition subsequent will fail for uncertainty in operation if it employs a formula which makes it impossible to ascertain its operation on any view of the facts for an indefinite period.[4] However, as Lord Evershed MR stated in Re Neeld deceased, it does not follow that:
[4]Re Denley’s Trust Deed [1969] 1 Ch 373 at 389; see also Theobald on Wills, 15th ed, at 643.
“… the language used must be of so exactly precise a character that no question can ever sensibly thereafter arise on the particular facts as they have occurred, whether, according to the terms of the instrument, a divesting has or has not taken place. … So long as the concept expressed in the will … is clear and can be precisely formulated, then it is no objection to the validity of the clause that on occasion its application may give rise to difficulty.”[5]
[5][1962] Ch 643 at 666 cited approvingly in Re Denley’s Trust Deed at 390.
Counsel for the applicant referred to the statement of the principle found in certain classic texts that, where the testator has not prescribed a period within which a condition must be performed, and persons other than the donee are benefited (as, in this case, is the applicant) the period allowed is, as a rule, a reasonable period. [6] The principle has recently been applied in Miller v Miller[7] and in Watson v Watson[8], both decisions of the Supreme Court of New South Wales.
[6]Williams on Wills, 4th Ed at 291; Halsbury’s Laws of England, 4th Ed Vol 50 at para 387. See also Jarman on Wills, 8th Ed at 1466; Theobald on Wills, 15th ed, at 314.
[7](1995) 16 ACSR 73 at 79.
[8][1999] NSWSC 325 at [18].
The authorities cited in support of this principle are Davies v Lowndes[9] and Huckstep v Mathews[10]. Davies v Lowndes concerned a condition requiring a beneficiary to change his name, but which failed to specify any time period for performance. It was held that while no period for performance was specified, the beneficiary had complied with the condition. Although it was not specifically held that the beneficiary had a reasonable time in which to comply, that appears to be the basis on which the decision was made. In Huckstep v Mathews, the Court considered a provision in a will whereby certain property was devised on condition that “if any of the name of Huckstep would purchase them for his own use, then [the executors] should sell the same to him for [a specified amount]”. The plaintiff, being of the name of Huckstep, sought to purchase the property some 25 years after the testator’s death, the question for determination being whether the plaintiff’s performance satisfied the condition. It was held that the plaintiff’s claim, being brought 25 years after the testator’s death, was unreasonable and it was accordingly dismissed.
[9](1835) 1 Bing NC 597 at 618.
[10](1685) 1 Vern 362.
The concept of a reasonable period for the performance of a condition is one with which the courts are not unfamiliar in the context of the construction of wills. By way of an illustration of the application of such a condition, counsel for the applicant referred to the decision of Re Burton’s Settlements.[11] The issue in that case was whether a time limit in a condition, which specified that certain settlements be executed within six calendar months after the failure of the issue of the testator’s second marriage “or then such further period as my trustees shall think reasonable”, was void for uncertainty, on the basis that “what is a reasonable period is a difficult matter of degree, and is too uncertain in its operation to give the requisite definition to a condition subsequent.” After referring to the requirement that a condition subsequent will be invalid “unless the court and the parties concerned can see from the beginning precisely and distinctly upon the happening of what event it is that the preceding vested estate is to determine”, Upjohn J concluded[12] that:
[11][1955] 1 Ch 82.
[12]At 95.
“the concept that a person is to have six months from attaining a certain age or a reasonable time thereafter to do a particular act seems to me sufficiently certain for the doctrine in question. An obligation to do something within a reasonable time is one of the most familiar concepts in our juris prudence, and it cannot possibly now be suggested that such an obligation is void for uncertainty. The time must be reasonable having regard to what the appointee has to do and to all the surrounding circumstance of the case. That is known from the moment that the testamentary appointment is made effective by the death of the testator, and I cannot see that there is any uncertainty about it. It may be that different minds may come to a different conclusion as to what, when the condition comes into operation possibly (as in this case) years later, would be a reasonable extension of time; but that is readily determined by the court or by the trustees where (as here) that matter is expressly confided to their discretion. Accordingly, in my judgment, this point fails.”
It was submitted on behalf of the applicant that the abovementioned statements of principle and authorities are sufficient to dispose of this ground of invalidity of the condition.
However, as counsel for the applicant acknowledged, support for the respondents’ assertion of invalidity is to be found in Re Bradley,[13] in which case Derrington J held that a condition which obliged the beneficiaries of a farm property to enter into a deed of partnership in respect of the property was void for uncertainty, because “the material time as to when it is to take effect [was] not capable of reasonably precise ascertainment”.[14] His Honour rejected the submission that a term should be implied into the condition requiring each son to enter into the partnership within a reasonable time in order to retain his interest. In so doing, his Honour observed that, while the implication of such a term would be appropriate in the case of contracts, no authority was cited in support of the implication of such a term in a condition in a will.[15] In reaching this conclusion his Honour was influenced by the view that, “whereas a reasonable time is a practicable enough standard in the case of contract, where if necessary the Court may at the end determine whether the relevant act was performed in a reasonable time”, in the case “of a condition subsequent the emphasis of the controlling principle demands that such a result should be known beforehand”.
[13][1994] 2 Qd R 233.
[14]At 236.
[15]At 237.
His Honour further concluded[16] that, even if such a term were to be implied, it would not save the provision as it would not meet the criterion that it provide the beneficiary with the capacity to ascertain his position with reasonable precision at any given time. In this regard, his Honour observed that, in the circumstances of that case, it was easy to recognise factors which made it difficult for a beneficiary to know when the limitation of time would expire.
[16]At 237.
However, as I have mentioned, the authorities indicate that whether a given concept or formula is certain in operation, involves an inquiry as to “whether it can be applied in fact with certainty even if with difficulty”.[17] Unfortunately, his Honour did not have the benefit of being referred to the authorities and texts to which counsel have referred me and of which I have already made mention. They indicate that, where no time is specified for the performance of a condition subsequent and where persons other than the donee are to be benefited, a reasonable time is allowed for performance and that the concept of a reasonable time for performance is one that qualifies as being certain. Accordingly, Re Bradley should not be regarded as an impediment to upholding the validity of the condition in issue in this case.
[17]Re Denley’s Trust Deed at 389.
The failure to specify a time period for performance of the condition in cl 3(b)(i) of the Will does not render it void for uncertainty. It is appropriate that a term is implied that the condition is to be performed within a reasonable period. What is a reasonable period will necessitate a consideration of all the circumstances of the case, and may be a difficult question to determine. Nonetheless, the concept is one that can be applied in fact with certainty, even if with difficulty.
I note that I am not asked in this application to determine the question of what a reasonable time is for the purposes of the condition in issue.
(b)Is the condition void because it is not capable of being fulfilled by Cameron Fraser solely?
It was submitted on behalf of the respondents that the condition in cl 3(b)(i) of the Will was uncertain, because it was not one which was within Cameron Fraser’s sole ability to fulfil, since any transfer of the half interest of Cameron Fraser to Bruce Fraser could only occur with the latter’s consent. In support of this submission, Counsel for the respondents sought to rely on the decision of Williams J (as he then was) in Re Corr.[18] However, in that case, Williams J had regard to the fact that the condition there in issue was not within the beneficiary’s sole ability to fulfil, for the purpose of determining whether the condition should be categorised as a condition subsequent, rather than for the purpose of determining its uncertainty. Accordingly, Re Corr does not support the construction for which the respondents contend.
Moreover, the Will, by cl 3 (b)(ii), caters for the contingency raised by counsel, that is, that the condition might not satisfied because of the applicant’s lack of cooperation, by specifying what is to occur, “if for any reason”, the condition is not fulfilled. Therefore, the fact that the condition is not within Cameron Fraser’s sole ability to fulfil does not render it uncertain.
[18]Unreported, S Ct of Qld, No 5712 of 1996, 15 August 1996.
(c)Other matters said to give rise to uncertainty
A further matter raised by the respondents in written submissions, although not greatly pressed in oral submissions was that uncertainty arose because the Will failed to address the issue of who bore the costs burden associated with the transfer contemplated in cl 3(b)(i). In this regard, reliance was also placed on the decision in Re Corr. That case, however, involved circumstances which differ from those in this case and is therefore of no assistance on this issue. Since the clause imposes an obligation on Cameron Fraser to transfer the specified property, it also impliedly imposes on him the costs of such transfer. Of course he may choose not to transfer the property and thus not to incur those costs, but that does not affect the issue of the operational certainty of the clause. In my opinion, no uncertainty arises.
Orders as to the validity of cl 3(b)(i)
Accordingly, upon its proper construction the gift provided by cl 3(b)(i) of the Will takes effect subject to the condition stated in that clause, which condition will be satisfied by Cameron Fraser transferring his one-half share and interest in the property known as “Saltern Creek” within a reasonable period after the death of Mrs Fraser.
I declare that upon its proper construction, the condition stated in cl 3(b)(i) of the Will of John William Joseph Fraser deceased dated 1st June 1990, that Cameron Arnold Fraser transfer to Bruce William Fraser by way of gift his one-half share and interest in the property known as “Saltern Creek”, is not void for uncertainty.
Costs
On behalf of the applicant it was submitted that in this case, as in Re Bradley,[19] the appropriate order, given that an issue has arisen as to the proper interpretation of a will, is that the costs of all parties to the application be ordered to be assessed and paid on the indemnity basis from the estate of the deceased.[20] It is submitted by the respondents that such an order should not be made because it would have the effect of imposing an unfair burden on the sole residual beneficiary, Mrs Fraser. I note that Mrs Fraser was a respondent to the application, and that her position as co-executor was not simply one of abiding the decision of the Court, but that together with her co-respondent she sought to advance the same unsuccessful construction of the Will.
[19]At 238.
[20]See Williams, Mortimer and Sunnucks, Executors Administrators and Probate, 17th Ed at 438.
Accordingly, I order that each party’s costs of and incidental to the application be assessed on an indemnity basis and paid from the estate of John William Joseph Fraser, deceased.
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