Hill v Handford

[2001] QCA 319

SUPREME COURT OF QUEENSLAND

CITATION:

Hill & Anor v Handford & Ors [2001] QCA 319

PARTIES:

DIANNA JOAN HILL and CHARLES RAYMOND HANDFORD (Living Issue of the Testatrix)
(respondents/appellants)
v
RONALD ARTHUR HANDFORD and JAMES BRUCE HANDFORD as Executors of the Will of FLORENCE JOAN HANDFORD (Deceased)
(applicants/respondents)
ROBERT DOUGLAS HANDFORD and BRIAN PATRICK STONELY (Living Issue of Testatrix)
(respondents/respondents)
JOHN ALBERT NILSSON, JOANNE MAREE NILSSON and BRIAN DESMOND NILSSON (the Children of BEVERLEY JOSEPHINE NILSSON) (a Deceased Issue of the Testatrix)
(respondents/respondents)

FILE NO/S:

Appeal No 325 of 2001
DC 2649 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2001

JUDGES:

McMurdo P, Williams JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

(a) That the order of the District Court given on 14 December 2000 in proceeding No D2649 of 2000 be set aside save as to the costs order which is affirmed;   
(b) That in lieu thereof the Court determines that the reference to "my three children" in the last Will and Testament of Florence Joan Handford (deceased) dated 28 February 1978 is a reference to the three children of the testatrix’ marriage to Charles Handford (deceased);
(c) That the respondents pay the appellants’ costs of this appeal to be assessed and with respect to such costs that the respondents be granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld);

(d) That the respondents’ costs be assessed on an indemnity basis and paid out of the estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERAL PRINCIPLES OF CONSTRUCTION – ASCERTAINMENT OF  TESTATOR’S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL - meaning of “my three children” – whether ex nuptial children included in words “my three children”

Appeal Costs Fund Act 1973 (Qld), s 15

Harris v Ashdown (1985) 3 NSWLR 193, considered
Hill v Crook (1873) LR 6 HL 265, considered
Re: Jebb (deceased) [1966] 1 Ch 666, applied

COUNSEL:

RA Perry for appellants
SM Cool for respondents 

SOLICITORS:

Hunt & Hunt for appellants
Baker O’Brien Toll for respondents

1. McMURDO P:  I agree with the reasons for judgment and the orders proposed by Philippides J.

1. WILLIAMS JA:  I agree with the orders proposed by Philippides J and with her reasons.

1. PHILIPPIDES J:  This appeal concerns the interpretation of the words “my three children” in the Will of the testatrix, Florence Joan Handford, who died on 24 August 1998.

1. On 13 February 1943 the testatrix married Charles Douglas Handford.  There were  three children of that marriage, Dianna Joan, Charles Raymond and Robert Douglas.  However, on 28 August 1938 the testatrix had also given birth to twins, Beverley and Brian.  She was not married at that time and Charles Douglas Handford was not the father of the twins.  Beverley predeceased the testatrix on 15 April 1991.  Beverley’s married name was Nilsson and she had three children who survived her, John Albert, Joanne Maree and Brian Desmond.  Apart from Beverley, all of the other children of the testatrix survived her.  The Will in question was executed on 28 February 1978, at which time the testatrix was the mother of the five children to which I have made reference. The testatrix’ husband predeceased her.

1. By the Will the testatrix relevantly divided and bequeathed the whole of her estate as follows:

“(a)……….

(b)To transfer to my daughter DIANNA JOAN HILL all my clothing jewellery and articles of personal adornment and my antique lounge suite consisting of one settee and two other chairs previously owned by the parents of my late husband and my antique engraved table which was also previously owned by the parents of my late husband;

(c)To divide my shares in Florence Handford Pty Ltd equally between my three (3) children;

(d)To sell call in and convert into money the balance of my said estate then remaining and to divide the net proceeds of such sale calling in and conversion together with my ready monies equally between my three children PROVIDED HOWEVER that I direct that should any child of mine predecease me leaving issue living at the date of my death then and in that event such issue shall take equally between themselves the share that his her or their parent would have been entitled to under this my Will had such parent survived me.”

1. The executors brought an application concerning the construction of the words “my three children” and sought orders as follows:

“1.That the Court determine whether on the true construction of the last will and testament of Mrs Handford dated 28 February 1978 and in the events which have happened namely the testatrix acknowledging three children in the aforesaid will whereas in fact the testatrix was the mother of five children and also the enactment of the Status of Children Act 1978 Queensland subsequent to the execution of the aforesaid will:

(a)        That the reference to “my three children” in the will is a reference to the three children of the testatrix’ marriage to Charles Handford deceased or

(b)That as the testatrix was survived by four children and the issue of a fifth child it is not possible to state which three children should take and therefore clauses (c) and (d) on page 1 of the will are void for uncertainty so there is a partial intestacy and apart from clause (b) on page 1 of the will the estate passes to the four surviving children of the testatrix and the issue of Beverly Josephine Nilsson.”

1. The learned judge hearing the application was referred to a line of authorities concerning a common law presumption that a reference to "child" or "children" excluded ex nuptial children: see Hill v Crook (1873) LR 6 HL 265. However, His Honour declined to proceed on the basis of such a presumption being applicable to the Will in question at the time of its execution because of the changes in society that are identified by Kirby J in Harris v Ashdown (1985) 3 NSWLR 193 at 199-200.His Honour held that in those circumstances, as there were four children living at the time of her death, an ambiguity arose as to the construction of her Will, and the correct approach was to apply the "armchair" principle, described by Lord Denning in Re: Jebb (deceased) [1966] 1 Ch 666, to ascertain the intention of the testatrix at the time of execution of her Will.

1. His Honour held that, having regard to the circumstances regarding the testatrix’ family at the time of the execution of the Will, including evidence of the relationship between the testatrix and Brian and Beverley and the Nilsson grandchildren, the evidence did not permit the conclusion that, by the words “my three children”, the testatrix intended to benefit Dianna, Charles and Robert to the exclusion of some other combination of children who were living when she made her Will.  His Honour therefore found clauses (c) and (d) of the Will void for uncertainty, with the result that there was a partial intestacy. 

1. On behalf of the appellants, Dianna Joan Hill and Charles Raymond Handford, it is submitted that His Honour erred in four respects; that is:

(a)        by finding that the phrase "my three children" was ambiguous or uncertain;

(b)        by holding that it was not possible to determine which of the five children were to be included in the expression "my three children";        

(c)        determining that there was a partial intestacy, and

(d)        giving little or no weight to the evidence of the solicitor.

1. Leaving aside the application of any common law presumption that the term "children" in a Will prima facie excludes ex nuptial children, it is submitted on behalf of the appellants that it is apparent from the language of clauses (c) and (d) of the Will that the children of the marriage were solely and specifically intended to benefit from the shares and the residual gift.  On the other hand, Mrs Cool, on behalf of the respondents, submits that there is no certain manner of determining the identity of "my three children", as the phrase is an equivocal description when considered in relation to the surrounding circumstances, in particular the ongoing relationship between the testatrix and the two ex nuptial  children.  Mrs Cool submits that the reference could be equally applicable to any tripartite combination of the five children. 

1. In my opinion, such submissions may have had force, if the words used by the testatrix had been "my children" or had there been a nomination of a number of children other than three.  Adopting the armchair principle, one looks at the circumstances known to the testatrix in ascertaining the intention behind the specification of three children and whether there is any identifiable group that meets that description.  I accept the appellant's submissions that the description "my three children" allows only one reasonable conclusion and that is that the group of three referred to is the three children of the testatrix’ marriage.  This is supported by the fact that the testatrix has specifically referred to one of those children in clause (b) of the Will.

1. I reject the view that any uncertainty or inconsistency is created by the fact that, in clause (d) of the Will, following the words "my three children", there appear the words "any child of mine".  In my opinion, given that the words "any child of mine" appear in the proviso to the clause referring to “three children”, the correct interpretation of the words in the proviso is that they are to be interpreted as meaning "any such child of mine"; that is, the words "any child of mine" are qualified by the words "my three children".

1. Nor can it reasonably be said that the reference to three children was accidental or inadvertent.  The reference to three children is made in both clauses (c) and (d).  The testatrix' initials appear beside clause (c) which, from the spacing of the document appears to have been inserted after the preceding and succeeding paragraphs.  Accordingly, the testatrix' attention was likely to have been specifically drawn to clause (c).  Moreover, that the specification of three children was not mistaken or unintentional is supported by the evidence of the testatrix' solicitor, who drew the Will.  His evidence was that he had known the testatrix and her husband on a professional basis for many years as he was the family solicitor.  During this period, he was aware that the testatrix and her husband had three children namely Dianna, Charles and Robert.  Whilst he states that the marriage between the testatrix and her husband was at times turbulent, and at one stage mention had been made of two ex nuptial children of the testatrix, he cannot recall ever being told what happened to those children and did not recall any future references being made to them.  His evidence was that it was his belief that the reference to “my three children” was a reference to Dianna, Charles and Robert.  He held this belief on the basis that he could not recall the testatrix ever referring to the two ex nuptial children as her children, or ever stating that she had five children.

1. Accordingly, applying the “armchair” principle, I consider that by referring to "my three children", the testatrix intended to benefit the three children of her marriage, Dianna, Charles and Robert.  In those circumstances, it is not necessary to consider the alternative submission advanced on behalf of the appellants as to the application of the common law presumption that a reference in a Will to "children" prima facie means legitimate children.

1. Since the respondents did not initiate the litigation in either the District Court or in this Court, I consider that the respondents’ costs should be recovered on an indemnity basis out of the estate.  Although the appellant was not a party at first instance, this was probably to save incurring costs over a modest estate; the executors, the applicants at first instance, supported the stance the appellants have now taken which was rejected by the primary judge but affirmed on appeal.  In those circumstances, the respondents should pay the appellants’ costs but be granted an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld).

1. The orders I would propose are:

(a)that the order of the District Court given on 14 December 2000 in proceeding No D2649 of 2000 be set aside save as to the costs order which is affirmed;   

(b)that in lieu thereof the Court determines that the reference to "my three children" in the last Will and Testament of Florence Joan Handford (deceased) dated 28 February 1978 is a reference to the three children of the testatrix’ marriage to Charles Handford (deceased);

(c)that the respondents pay the appellants’ costs of this appeal to be assessed and with respect to such costs that the respondents be granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld);

(d)that the respondents’ costs be assessed on an indemnity basis and paid out of the estate.