In Re the Will of W a G Luck

[1992] TASSC 71

Serial No 17/1992
List “A”

CITATION:              In re the Will of W A G Luck [1992] TASSC 71; A17/1992

PARTIES:  IN RE THE WILL OF W A G LUCK

COURT:  SUPREME COURT OF TASMANIA                   

FILE NO/S:  M45/1991
DELIVERED ON:  15 April 1992
JUDGMENT OF:  Wright J

Judgment Number:  A17/1992
Number of paragraphs:  48

Serial No 17/1992

List "A"

File No M45/1991

IN RE THE WILL OF W A G LUCK

REASONS FOR JUDGMENT  WRIGHT J

15 April 1992

1. By his will dated 15th March 1990 William Archibald Geddes Luck left the whole of his real estate and the residue of his personal estate to Thomas G Chaplin upon trust, after conversion thereof into money and payment of debts expenses and duties "for 20th Thaxted Pty Ltd, as Trustee of the GAW Luck Family Trust."

1. Mr W A G Luck died on 15 August 1990. His executor and trustee Mr T G Chaplin has filed an originating application seeking answers to the following questions:

"1Whether upon the true construction of the said will of the Testator and in the events which have happened:

(a)The trust in respect of the residue of the estate referred to in Clause 3 of the said will is a valid and complete trust,

(b)If the answer to question (a) is yes, whether the said residue is to be held by Twentieth Thaxted Pty. Ltd. as trustee of the G.A.W. Luck Family Trust: –

(i)upon the trusts created by the Deed of Settlement relating to the G.A.W. Luck Family Trust dated the 2nd day of March 1990, or

(ii)       upon any other, and if so what, trust or trusts,

(c)If the answer to question (a) is no, whether there is a partial intestacy in respect of the said residue."

1. Several affidavits were filed on behalf of the applicant.

1. The respondents, Twentieth Thaxted Pty Ltd, Maxwell Arthur Luck, the surviving son of the testator and Jason Anthony Luck and Cassandra Joy Luck, the children of Anthony Geddes Luck deceased who was the other son of the testator and who predeceased him, did not file affidavits.

1. Objection has been taken by the third and fourth named respondents to substantial portions of each of the applicants afffidavits but for the purposes of the argument before me I was invited to admit the evidence objected to de bene esse and to rule upon its admissibility before resolving the questions raised in the originating application.

1. I will rule upon those objections now.

(a)       As to the affidavit of Thomas Geoffrey Chaplin.

Paragraph 9

1. Mr Chaplin exhibits a copy of the Deed of Settlement dated 2 March 1990 "relating to the trusts known as the GAW Luck Family Trust". Mr Chaplin did not prepare or witness the execution of this document which was supplied to him by a firm of Victorian solicitors. It is objected that the document cannot be incorporated into the will of the deceased testator so as to amplify or explain his dispositions as it was not identified by him as an existing document in the will itself. It is further said in a notice of objection to affidavit material filed by the third and fourth respondents on 24 March that objection will be taken on the grounds of "relevance and hearsay re attempt to incorporate a document by reference". Although not stated in oral argument, I take the "hearsay" component of this objection to mean that the deponent is relying upon hearsay to identify the document.

1. It is plain that under the provisions of RSC Order 41 affidavits based upon information and belief are not admissible in proceedings of this kind. It is plain that Mr Chaplin has no personal knowledge of the authenticity of the Deed of Settlement which he refers to. It may be that it can be authenticated by Lindsay George Tipping, the deponent of another affidavit and as the hearsay argument was not developed before me and as I have no doubt that the authenticity of the document is capable of being established, I propose to deal with it as though its authenticity is not in question. Insofar as may be necessary I will give leave to the applicant to file supplementary affidavits by Mr Tipping or some other appropriate deponent for this purpose, but in light of paragraph 3 of the joint memorandum signed by solicitors for all parties addressed to the Registrar and dated 12 March 1992, this would appear to be unnecessary. This, of course, does not get over the principle objection that the contents of this document cannot be incorporated into the will so as to give efficacy to an invalid or incomplete testamentary disposition but it is more appropriate to deal with this issue as a matter of substance rather than admissibility of evidence and I will return to the document for this the purpose in due course.

Paragraph 10

1. In this paragraph Mr Chaplin states his belief that the company referred to as "20th Thaxted Pty Ltd" in the will is the same company as "Twentieth Thaxted Pty Ltd" referred to in the Deed of Settlement. It is said that this is inadmissible opinion based upon hearsay–the hearsay emanating from a letter from Victorian solicitors. I agree with the submission. However, insofar as the Deed is relevant, the opinion expressed by Mr. Chaplin accords with the inference which I would be prepared to draw unaided by the inadmissible material. The name of the company is an unusual one. There is no suggestion that there are two companies, one being Twentieth Thaxted Pty. Ltd., one being 20th Thaxted Pty. Ltd, and it is inherently improbable that if there were two such companies they would both be involved in some way with "the GAW Luck Family Trust". Identity is a question of fact and so far as I am concerned, the fact is established that "20th Thaxted Pty Ltd" referred to in the will is the same company as is referred to as "Twentieth Thaxted PL" in the Deed of Settlement.

(b)       As to the affidavit of Raymond Frederick Bailey

Paragraph 2

1. The written objection to this material does not accurately reflect the objection taken by counsel which was that the stated contents of a will allegedly made by Mr. Luck deceased in December 1988 was an attempt to give secondary evidence of the contents of a document. I uphold the objection and the third sentence in this paragraph will be deleted from the affidavit. I think the balance of the paragraph is admissible. It does not seek to inform me of the testator's intention, in which case it would be inadmissible (Jarman on Wills 8th Edn, p502). I do not take it to prove that Maxwell Luck was in fact in serious financial difficulties but I simply take it that words to that effect were uttered by Maxwell Luck and this in turn explains the conversation which then ensued. As Mr Maxwell Luck has also filed an affidavit a nexus is established between this conversation and the subsequent execution of the will from which it may be possible to infer the testator's state of mind insofar as it is relevant to an interpretation of the will.

Paragraph 3

1. This paragraph, which recites a telephone conversation between Mr Bailey and Mr Max Luck regarding the stated purpose of Mr W A G Luck in changing his will and what Mr. Max Luck had instructed Victorian solicitors to do on his behalf, is plainly hearsay and is inadmissible except for the first sentence.

Paragraphs 4 & 5

1. These paragraphs except for the first sentence in paragraph 4 are inadmissible for similar reasons.

Paragraph 6

1. No objection is taken to the first and last sentences which are plainly admissible. The second sentence reads "When the Testator kept that appointment I informed him of the information given to me by Maxwell Luck and Mr Tipping". Objection is taken to this and the remainder of the paragraph with the two exceptions which I have mentioned. It is submitted by the applicant, supported by the first and second respondents that the sentence quoted above effectively incorporates the substance of paragraphs 3, 4 and 5 of the affidavit so as to make the material therein contained admissible – ie, as going to the state of the testator's knowledge and understanding of relevant facts before executing his will – the so–called "armchair" rule. (See In the Matter of the Will of Button, Serial No. 10/291 per Underwood J, at p3). I cannot accept these submissions. The reference to "information" is much too vague to enable me to determine just what it was that Mr Bailey said to the testator at the relevant meeting.

1. The sentence after that quoted above is plainly hearsay and directly offends against the rule excluding parol evidence as to the testator's declared intention. The objections must be upheld and only the first and last sentence will be admitted.

1. If Mr Bailey's conversation with the testator on the occasion in question had a crucial bearing upon the outcome of this application, I would entertain an application to file a supplementary affidavit by Mr Bailey. However in light of the views I have formed this course has become unnecessary.

(c)       Affidavit of Lindsay George Tipping

Paragraph 3

1. This concerns Mr Tipping's discussion with Mr Max Luck. It is objected to as being both irrelevant and hearsay. I uphold both objections.

Paragraph 4 & 5

1. Similar objections were taken to these paragraphs. Paragraph 4 deals withy discussions between Mr Tipping and Max Luck. Paragraph 5 concerns discussions between Mr Tipping and Mr Bailey. As mere matters of historical fact unconnected with the testator or his state of knowledge these conversations are irrelevant.

1. Additionally, insofar as the material contains statements as to the testator's intent as recounted by Max Luck it is inadmissible under the rule discussed above and in any event is hearsay.

Paragraph 6

1. If Mr Tipping had stated anywhere in his affidavit that he prepared the Deed of Settlement of 2nd March 1990, that it was executed as it appears to be and if the Deed was exhibited to his affidavit the information which he seeks to place before me in paragraph 6, would be unobjectionable (subject to the comments I have made above as to paragraph 9 of Mr. Chaplin's affidavit). As it is, it seems to me that paragraph 6 suggests that the information therein contained is either secondary evidence of an undisclosed document or hearsay. On either basis it would be inadmissible. I reject paragraph 6.

Paragraphs 7, 8 and 9

1. These paragraphs may be dealt with together. The written objection to each is on the following basis "Relevance and hearsay re evidence of the testators intention". I agree that these paragraphs are not admissible. They purport to give a hearsay account of historical facts (paragraph 7) irrelevant discussions between solicitors and inadmissible opinion as to the content and meaning of the proposed will of the testator (paragraph 8). No real attempt was made by opposing counsel to justify any part of paragraph 9. It is plainly inadmissible as going to the declared intent of the testator as to the testamentary dispositions.

(d)       Affidavit of Maxwell Arthur Luck

Paragraph 2

1. Counsel agree that the final part of the first sentence from "appointing" to "Estate" should be deleted.

Paragraph 3

1. This is objected to as irrelevant. I think the first sentence is relevant and admissible. The rest is not so clear. However, on balance, I think it has some peripheral relevance and I will allow it.

Paragraph 4

1. The penultimate sentence is objected to. It goes only to the testator's intention I think and on this basis cannot be admitted.

Paragraph 5

1. The fourth and final sentences are not direct declarations by the testator as to his testamentary intent. It might be said that they amount to declarations as to what he wished not to achieve. However, I think this would be a distinction without validity or substance. The fourth and final sentences are inadmissible, dealing as they do with the testator's parol declarations as to his testamentary intentions. The final sentence may have limited relevance to rebut the presumption of a resulting trust to the testator's estate if and when that issue requires consideration.

Paragraph 6

1. If properly drawn (excluding the concluding reference to the testator's agreement) this material would be admissible. It is plainly important in the context of the present matters in issue. However, apart from the first sentence the balance of paragraph 6 appears to relate to the inadmissible final sentence in paragraph 5. If paragraph 6 is read ignoring paragraph 5, it distorts the meaning of what Mr Max Luck told his father. Accordingly, whilst I think that paragraph 6 is admissible omitting "and he said that he agreed with that" it is of little, if any, weight.

Paragraph 7

1. Part only of this paragraph is objected to. However, I think it is all admissible. It does not amount to a direct pronouncement by the testator as to his testamentary intention. It is permissible as historical material which may assist circumstantially in the formation of a view as to his intention.

Paragraph 8

1. For reasons similar to those just expressed this is also admissible. It is not hearsay as suggested.

Paragraph 9

1. For similar reasons the first sentence is admissible. The statement in the second sentence however is not manifestly based upon personal knowledge and the only inference I can draw is that, in the absence of explanation it is hearsay. It is therefore inadmissible and will be excluded.

Paragraph 10

1. The first seven words of the first sentence are excluded as they refer to the inadmissible part of paragraph 9. The balance of that sentence and the next sentence are admissible. The last two sentences appear to be irrelevant. They will be excluded.

Paragraph 11

1. This is said to be objectionable as it relates directly to the testator's testamentary intent. Counsel for the first and second respondents submits that it has a secondary relevance as it goes to explain the testator's understanding as to the terms of the family trust which he had discussed with his son. I have considered this argument but do not consider it valid. I think the objection is sound. Paragraph 11 will be deleted.

Paragraph 12

1. It is objected that this is irrelevant. I agree.

1. In coming to the conclusions which I have expressed above, I have been mindful of the admonition of McLelland J, in Thompson v Thompson (Unreported 31.10.1990 – Supreme Court of New South Wales) – that the "Court must be vigilant that evidence...is really evidence of an objective nature material to the meaning of the relevant expression as used in the will, and not merely disguised evidence of the subjective intention or motives of the testator".

1. The evidence which I have held to be admissible establishes (inter alia) that Maxwell Luck, the sole surviving child of the testator began to experience financial difficulties in 1989 and acquainted his father with this fact.

1. These difficulties continued up to and possibly beyond the date on which the testator made his will.

1. In February 1990 after the death of his stepmother Maxwell Luck discussed the issue of his financial problems and his father's will with the testator. They discussed the formation of a family trust and the appointment of a company as the trustee thereof. Subsequently, Maxwell Luck arranged for this course to be undertaken by his Victorian solicitor, Mr Lindsay Tipping. On or about 2nd March 1990, he advised his father that the trust and company had been established. The Deed of Settlement dated 2nd March 1990 created the GAW Luck Family Trust. The settlor was Mr Peter Tyler a solicitor who was then Mr Tipping's partner. (Paragraph 7 of Mr Tipping's affidavit although generally inadmissible may be relied upon, I think, to establish this fact). The trustee of the settlement was Twentieth Thaxted Pty Ltd Its registered office has the same address as Mr Tipping's legal firm. The Trust Fund created by the Deed was defined to mean "the said settled sum" (a nominal amount of $20.00 settled at the time of execution of the Settlement Deed) "and all moneys investments and property paid transferred to or accepted by the trustees as additions to the Trust Fund held by them pursuant to this Deed ..." Specified and general beneficiaries were designated by the Deed. A new will, the subject of the present application was prepared by Mr Ray Bailey, a Launceston solicitor, and on 15th March 1990 it was duly executed by the testator.

1. In these circumstances, I suspect that a layman who was told that the residuary estate under the testator's will was to pass to Mr Chaplin as executor and trustee "upon trust for 20th Thaxted Pty. Ltd, as trustee of the GAW Luck Family Trust" would say "What is all the fuss about – surely the testator intended that the fund derived from his residuary estate is to become part of the Trust Fund constituted by the Deed of Settlement of 2nd March 1990 and is to be held on the trusts provided for in that Deed".

1. This is the construction for which the applicant and the first and second respondents contend but the third and fourth respondents say the gift is incomplete because the trusts upon which the residuary estate is to be held are not specified in the will and cannot be ascertained except by resort to a non–testamentary document. Accordingly, it is argued, there is a resulting trust back to the estate, the benefit of which goes to those persons who would be entitled to take upon a partial intestacy.

1. Considerable reliance was placed upon Tatham v Huxtable (1950) 81 CLR 639 but in my opinion the present case is entirely distinguishable. In Tatham's case, the executor was authorized to distribute the residuary estate to the specified beneficiaries "who in [his] opinion have rendered service meriting consideration by the testator". Not surprisingly this purported disposition was held by a majority of the High Court not to provide a sufficiently definite criterion for ascertainment of the beneficiaries and that it constituted an invalid attempt by the testator to delegate his testamentary power. If the proper inference in the present case is that the testator appointed Twentieth Thaxted Pty Ltd to take the residuary estate upon the same trusts as provided for in the Deed of Settlement neither of the impediments to a successful disposition which existed in Tatham v Huxtable (supra) would arise.

1. Reliance was also placed upon Re Vandervell's Trust (1974) 1 All ER 47 where a settlor granted an option on trust but never declared what those trusts were to be. In these circumstances Megarry J held that the company to which the option was granted held it on a resulting trust for the settlor. That case was not like the present case. Here we have reference to a trust which, if one is permitted to look at the constituting Deed, has a clearly defined structure with designated beneficiaries. In any event, the will itself makes it clear that Twentieth Thaxted Pty Ltd is to take "as trustee of the GAW Luck Family Trust". How in these circumstances it could be said to hold on a resulting trust whether "automatic" or "presumed" in favour of the residuary estate, is very difficult to understand.

1. Much reliance was also placed upon the fact that there is no evidence that the testator had ever seen or "adopted" the Deed of Settlement. However, to my mind this is not of great materiality. From the admissible evidence it is plain that the testator and his son discussed the establishment of the family trust. I think it can be inferred that the testator was aware of its basic structure. Whilst courts place barriers in the way of receiving hearsay or secondary evidence of documents there is no reason to suppose that average members of the community do not inform themselves of relevant matters pertaining to their affairs in this way.

1. It was submitted that for a document external to the will itself to have testamentary effect, it must (a) be in existence at the time the will was made and (b) be sufficiently identified by description in the will (see Stuart v Clemons [1951] Tas SR 23). In the present case it is said that the Deed of Settlement establishing the GAW Luck Family Trust was not identified by the will. However I think this is a situation in which the words of Lord Greene MR, in Re Edward's Will Trusts (1948) 1 Ch 440 at 445 – 6 are apt:

"The testator makes quite clear what his testamentary wishes are. He is directing that those concerned with the administration of his estate shall turn to the document, namely, the settlement, in order to find what those wishes are. The identification of that document is a perfectly simple matter. There is no question what the document is, and there is no rule of law which makes it impossible to lead evidence to identify it."

1. Certainly the testator did not refer to the Deed of Settlement itself but he referred to the GAW Luck Family Trust which is shown to have been established by that Deed. In my opinion by referring in this way to the beneficial object of his bounty the testator has not only identified that object but has also rendered it permissible to look at the constituting document in the same way that one could look to the incorporating instruments of a company or association for the purpose of understanding its objects or structure (see also Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60). This is not a case in which it is necessary to refer to an unidentified or unidentifiable document for the purpose of understanding the testator's intended disposition of his estate. Consequently, cases such as Stuart v Clemons (supra) and Allen v Maddock (1858) 14 ER 757 have only marginal relevance to the present problem.

1. The central issues are:

(a)Whether there has been a manifest intention on the part of the testator to impress his residuary estate with a trust? The answer to this question is plainly "yes".

(b)Whether the trustee to administer that trust has been sufficiently identified? The answer to this question is also "yes". Twentieth Thaxted is clearly identified as the entity to fulfil this function.

(c)Whether the intended beneficiaries are identifiable. Again, the answer must be "yes". The GAW Luck Family Trust is intended to take beneficially.

1. By reference to the Deed of Settlement of 2nd March 1990, the GAW Luck Family Trust can be identified as "the trusts created by this Deed". In the context of what follows in the Deed that compendious description can only be a reference to the settled fund and the administrative structure provided for conferring its beneficial enjoyment upon the beneficiaries designated in the Deed.

1. Twentieth Thaxted Pty Ltd is the trustee of the family trust and it is to take "as" trustee. I can only interpret this as meaning that the residue is to form part of the relevant fund and is to be administered as part of the scheme provided for in the Deed of Settlement for the same beneficiaries as designated in that Deed.

1. Obviously these objects could and should have been expressed with greater clarity in the will but notwithstanding the alternative arguments so persuasively put by Mr Douglas for the third and fourth respondents, I entertain no real doubt that the testator's intent was as I have described it.

1. In the result therefore, I answer the questions posed in the application as follows:

(a)       Yes.

(b)       (i)        Yes.

(ii)       Unnecessary to answer.

(c)       Unnecessary to answer.

1. I will hear from counsel before making any order as to costs.