Fraser v. Sack
[2009] QSC 78
•9 April 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Fraser v Sack [2009] QSC 78
PARTIES:
PATRICIA ANN FRASER
(applicant)
v
DAVID COLIN GEORGE SACK (as Executor of the Will of ERIC JOHN FRASER dec’d)
(respondent)FILE NO/S:
SC No 2590 of 2009
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
9 April 2009
DELIVERED AT:
Brisbane
HEARING DATE:
6 April 2009
JUDGE:
Chief Justice
ORDER:
1. That the last will of Eric John Fraser, dated 30 August 2007, be read and construed as if the following words appeared at the commencement of clause 4.2: “Upon the death of my wife Patricia Ann Fraser or”
2. That clause 4.2 be read as if the expression “step-“ were deleted, and as if the reference in clause 4.2.3 to “Christopher Eric Fraser” were read as a reference to “Eric William Fraser”
3. That the costs of all parties be paid from the estate, on an indemnity basis
CATCHWORDS:
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 – construction of will – supplying obvious omission – discerning intent of testator – avoidance of partial intestacy
Succession Act 1981 (Qld), s 33C
Fell v Fell (1922) 31 CLR 268, considered
Butlin v Butlin (1966) 113 CLR 353, consideredCOUNSEL:
M F Wilson for the applicant
D Morgan for the respondent
T Biggar for the children of the deceasedSOLICITORS:
Crawford Law for the applicant
Crilly Lawyers as Town Agents for Colin Fleming & Co Solicitors for the respondent
BM Law for the children of the deceased
CHIEF JUSTICE: Eric John Fraser died on 11 September 2008. His last will is dated 30 August 2007. It has not yet been admitted to probate. I am asked to construe it.
The deceased was survived by his wife, Patricia Ann Fraser, who is the present applicant, and two adult children, Kim Patricia Mundt and Christopher Eric Fraser.
The testator appointed a friend, David Sack, to be his executor, and another friend, Edward Holley, as alternate executor.
The present problem arises from clauses 4.1 and 4.2:
“DISPOSAL OF ESTATE
4.1I give the whole of my estate (‘my Trust Estate’) to my Trustee upon trust for the use and benefit of my wife PATRICIA ANN FRASER absolutely for her lifetime. My wife will be responsible for all maintenance and payment of outgoings and in that event will be entitled to all income.
4.2If my wife predeceases me or upon her earlier relinquishment of her life interest then I give my Trust Estate, including the proceeds of any superannuation funds to my Trustees upon the following trusts, namely:
4.2.1I give to my step-daughter KIM PATRICIA MUNDT 1/10 (ONE TENTH) of my Trust Estate;
4.2.2I give to my step-son CHRISTOPHER ERIC FRASER 1/10 (ONE TENTH) of my Trust Estate;
4.2.3I give to my step-grandchild CHRISTOPHER ERIC FRASER 1/10 (ONE TENTH) of my Trust Estate;
4.2.4I give to my step-grandchild BROOK LOUISE FRASER 1/10 (ONE TENTH) of my Trust Estate;
4.2.5I give to my friend EDWARD AUBREY HOLLEY 3/10 (THREE TENTHS) of my Trust Estate; and
4.2.6I give to my friend DAVID COLIN GEORGE SACK 3/10 (THREE TENTHS) of my Trust Estate.”
I at once note in passing that in clause 4.2, the children and grandchildren are wrongly termed “step” children and “step” grandchildren, and that the grandchild referred to in clause 4.2.3 is wrongly named “Christopher Eric Fraser”: he should be named Eric William Fraser. All of this was common ground, and warrants a remedial direction, to which I will come.
The obvious gap, or as we have tended to say lacuna, is the absence of any provision for the disposition of the “remainder”, the interest immediately expectant on the natural determination of the life interest (Cheshire’s Modern Real Property, 10th, 218). The testator has not said what is to happen to his estate when his widow dies.
The applicant’s contention is that the will should be read literally, so that there is, as to that remainder, an intended partial intestacy. The children of the deceased and the applicant, Kim and Christopher, support that construction. On that basis, they would become the sole beneficiaries, under the intestacy rules, upon the death of their mother.
The deceased’s executor, Mr Sack, submitted that the will should be read as if the following words were inserted at the commencement of clause 4.2: “Upon the death of my wife Patricia Ann Fraser or”. He thereby promotes the view that in 4.2, the testator intended to deal with the remainder, as well as the situations he specified.
It is clear that the testator did not countenance an intestacy, partial or otherwise, and it is assumed no reasonable testator would. His failure to deal in terms with the fate of the remainder was clearly a mistake. It seems highly unlikely that he would have intended that the careful dispositions expressed in clause 4.2 take effect only in circumstances where the applicant had predeceased him or had earlier relinquished her life interest, with in consequence, a disposition limited to Kim and Christopher by intestacy, in the event of the applicant’s surviving him and taking the life interest. Why would the testator have intended to achieve, by omission, and so indirectly, what he could have put beyond doubt by direct provision? The obvious answer is that he did not intend that, and the patent insufficiency of the will was simply a mistake.
In addition as to one particular aspect, it is inconceivable that the testator intended three tenths of the estate go to each of David Sack and Edward Holley, but only if the applicant predeceased him. They were his professed friends, whom he wished to benefit. But where in the will is there basis to conclude that depended on his wife pre-deceasing him? There is none.
I consider the conclusion compelling that the deceased’s intention, apparent from the face of the will, was that the disposition detailed in clause 4.2 apply also in the event of the subsequent death of the applicant.
I have had regard to the principles discussed in Fell v Fell (1922) 31 CLR 268, 273-6 and Butlin v Butlin (1966) 113 CLR 353, 357, to which Mr Morgan (for the executor) helpfully referred me.
It has not been necessary for me to have recourse to extrinsic evidence, and I note that s 33C of the Succession Act 1981 (Qld) would not authorize such recourse in this case anyway. This is not a case where the will is “meaningless” or “ambiguous” in the sense in which those words are used in that provision.
As to costs, the fair position is that the estate bear them. No party has acted unreasonably to the point where he or she should suffer a costs penalty.
I make the following orders:
1. that the last will of Eric John Fraser, dated 30 August 2007, be read and construed as if the following words appeared at the commencement of clause 4.2: “Upon the death of my wife Patricia Ann Fraser or”;
2. that clause 4.2 be read as if the expression “step-“ were deleted, and as if the reference in clause 4.2.3 to “Christopher Eric Fraser” were read as a reference to “Eric William Fraser”; and
3. that the costs of all parties be paid from the estate, on an indemnity basis.
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