In the Estate of COX (DECEASED)
[2017] SASC 41
•22 March 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of COX (DECEASED)
[2017] SASC 41
Judgment of The Honourable Justice Bampton
22 March 2017
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WHERE UNCERTAINTY - AS TO PERSON OR OBJECT
The testator made a will using a pre-printed form attached to a will kit. He purported to appoint his wife, Kathleen, and one of his sons, Stephen, as the executors of his will, and his son Sean as a substitute executor. The testator's wife predeceased him. As the testator did not strike out one or more of the alternative provisions in the clause providing for the appointment of executors, a difficulty arose as to whether he intended for Stephen alone, or Sean and Stephen jointly, to be entitled to apply for a grant of probate in the event Kathleen died during his lifetime.
Held:
1. Advice and direction to the Registrar to proceed on the basis that Sean and Stephen are jointly entitled to apply for a grant of probate in the estate of Chetwynd Richard Talbot Cox.
Wills Act 1936 (SA), referred to.
In the Estate of Sumsion (Deceased) [2009] SASC 67; Perrin v Morgan [1943] AC 399; Town v Wentworth (1858) 11 Moo PC 526; 14 ER 794; Allgood v Blake (1873) LR 8 Exch 160, considered.
In the Estate of COX (DECEASED)
[2017] SASC 41Testamentary Causes Jurisdiction
BAMPTON J: Chetwynd Richard Talbot Cox (“the testator”), who died on 29 June 2016, made a will (“the Will”) on 15 April 2007 using a pre-printed will form attached to a commonly available will kit. The Will appears to have been executed in accordance with the Wills Act 1936 (SA).
The testator is survived by his three children Stephen Richard Cox (“Stephen”), Sean Donnald Cox (“Sean”), and Fiona Kathleen Lois Kerr. His wife, Kathleen Anne Cox (“Kathleen”), died during his lifetime.
The will kit
The will kit used by the testator is a booklet entitled “Prepare-Your-Own Legal Will Pack: A simple step-by-step guide to writing your own LEGAL WILL” published by Nation Wise Products Pty Ltd, reprinted in September 2004. It comprises a six part guide, suggestions for storing the will, and a Will Form at the back of the booklet. In a box at the foot of the title page the following words appear; “This Will Pack has been legally approved for use anywhere in Australia”. I note in passing the will kit is peppered with “inspirational” messages, for example: “Where there’s a Will, There’s a way, To protect what you have, For those you love” and “Where there’s no Will there’s no way”.
As the Registrar of Probates noted in referring the matter for advice and direction to me, the Will Form contains a latent difficulty in the appointment of executors and that difficulty has become patent in this case.
The appointment of Executors
By clause 2 of the Will, the testator appointed his wife Kathleen and his son Stephen as the executors of his will as follows:
Executor/Executrix
I appoint Kathleen Anne Cox of 10 Sixth St Orroroo Postcode 5431 in the State/Territory of South Australia and I appoint Stephen Richard Cox of Unit 11 No 30 Bronte St East Perth Postcode 6004 in the State Territory of W.A. to be the Executor(s) of my Will and Trustee(s) of my estate, but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting, then I appoint Sean Donnald Cox of 260 Clovelly Lane Murgon Postcode 4605 in the State/Territory of Queensland.
The testator also purported to appoint his son Sean as a substitute executor. However, he did not select the alternatives that are provided in clause 2. That is, he did not strike out one or more of “he/she/they” or one of “does not/do not” or “is/are”. Had Kathleen and Stephen both survived the testator, this would not have caused any difficulty.
As Kathleen did “not outlive” the testator and because the testator did not select the alternatives in clause 2, the difficulty that arises is who is entitled to the grant of probate?
Is Sean entitled to jointly apply for a grant of probate with Stephen or is Sean’s appointment only to apply in the event that both Kathleen and Stephen do not survive the testator or are unable or unwilling to act as the executors of his estate. Or, is clause 2 simply void for uncertainty?
Stephen has applied for a grant of probate. His solicitors by letter to the Registrar of Probates dated 14 December 2016 contend that Stephen is the only person entitled to apply for the grant.
The solicitors submit that if the testator had intended for Sean to replace either Kathleen or Stephen if either of them had predeceased him or were unwilling or incapable of acting, then the testator would have used the words “if he/she” but by retaining the word “they” he intended that both Kathleen and Stephen had to predecease him or be unwilling or incapable of acting before the appointment of Sean could apply. Had that been the testator’s intention, it could equally be argued that he would have deleted “he/she” and left only “they”.
It could also be said that by retaining the words “he/she” and by not deleting the word “they” the testator intended that Sean’s appointment would apply if either Kathleen or Stephen predeceased him or were unwilling or incapable of acting. The fact is that the testator has not, by his will, said what he intended.
Another potential alternative is that by not deleting any of the words, “he/she/they” the Testator intended that Kathleen, Stephen and Sean were all to be appointed as executors on an equal footing.[1] However, in a shaded box at the top of the reverse of the title page of the will kit the following instruction appears:
[1] In the Estate of Sumsion (Deceased) [2009] SASC 67.
Please fill in the boxes below after you have fully read your Will Pack and finished writing your Will.
Below this instruction appear two further boxes. The first apparently records that the booklet contains the last will of the testator. It records in handwriting the name and address of the testator. The second box contains the words “The Executor(s) of my Will is:” and provides space only for the names and addresses of two executors. The Testator has apparently recorded in his handwriting in the two spaces provided that his executors are:
Name: Kathleen Anne Cox
Address: 10 Smith St
Orroroo SA Postcode 5431
Name:Stephen Richard Cox
Address:Unit 11, No 30 Bronte St
East Perth Postcode 6004
If the testator had intended for Kathleen, Stephen, and Sean to all to be appointed jointly as his executors it is logical to conclude that he would have written Sean’s name and address on this page.
Construction of the Will
It is to be noted that the step-by-step guide in the will kit does not draw attention to the need to select or strike out the alternatives in clause 2.
Another difficulty is that at Part 4 of the guide, under the heading “The Executor”, the following instruction is given:
Decide who you want to be your executor/executrix.
This can be one or more persons (the maximum is four)…
Despite stating that up to four executors can be appointed, the pre-printed Will Form provides sufficient space only for the appointment of two executors and one substituted executor.
As I am sitting as a court of probate and not as a court of construction, I bear in mind that I should only consider the construction of the Will to determine whether the Will should be admitted to probate and to whom probate should be granted.[2]
[2] In the Estate of Kavanagh (1977) 16 SASR 342 at 345 (Jacobs J).
Evidence which enables the Court, when construing a will, to place itself in the position of a testator is admissible.[3] As the authors of Wigram on Extrinsic Evidence in aid of the Interpretation of Wills state, “…any evidence is admissible, which, in its nature and effect, simply explains what the testator has written”.[4]
[3] David M Haines, Construction of Wills in Australia (Lexis Nexis, 2007) 64.
[4] Sir James Wigram, An examination of the rules of law respecting the admission of extrinsic evidence in aid of the interpretation of wills (Sweet & Maxwell, 5th ed, 1914) 8-9.
In Perrin v Morgan,[5] Lord Simon explained that the task of a court of construction is to discover the expressed intentions of the testator:
[T]he fundamental rule in construing the language of a will is to put upon the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case—what are the “expressed intentions” of the testator.
[5] Perrin v Morgan [1943] AC 399 at 406.
In order to ascertain the testator’s expressed intentions, it is appropriate to consider the whole of the Will and not simply the part of the Will where there is doubt as to its meaning.[6] As stated by Blackburn J in Allgood v Blake:[7]
[T]he general rule, we believe, is undisputed, that, in trying to get at the intention of the testator, we are to take the whole of the will, construe it altogether, and give the words their natural meaning …
[6] Town v Wentworth (1858) 11 Moo PC 526; 14 ER 794.
[7] (1873) LR 8 Exch 160 at 163.
In this matter, clause 5 of the Will is of assistance in ascertaining the testator’s intention. Clause 5 commences with the following typed words:
Residuary / Residue of my Estate
I direct my Executor(s) to pay all my debts and then I give the residue of my estate to
The balance of clause 5 is handwritten:
my wife, Kathleen Anne Cox. If Kathleen Anne Cox dies before me, I direct my executors to divide the residue of my estate equally between our sons Stephen Richard Cox and Sean Donnald Cox and our daughter Fiona Kathleen Lois Kerr.
(Emphasis added)
It is clear that the testator had turned his mind to the possibility of Kathleen predeceasing him. By including the word “executors” it is clear that the testator intended to appoint more than one executor to administer his estate in the event that Kathleen did not survive him.
As Gray J stated In the Estate of Sumsion (Deceased):[8]
An express appointment of one or more persons as executor in an appointment clause does not necessarily mean that another person is not appointed as executor by another clause of the will.[9]
(Footnote in original)
[8] [2009] SASC 67 at [10].
[9] Mackie & Burton, Outline of Succession, 2nd ed, 2000, par [11.10], citing Grant v Leslie (1819) 161 ER 1274, re Wright (1908) 25 TLR 15 (see also Williams on Wills, 7th ed, p219 and In the Goods of Brown (1877) 2 PD 110).
I note that page 24 of the will kit provides suggested wordings which can be used for “typical” situations “to make it easier” for the testator making the will for example the situation:
One spouse gifting everything to the other spouse and in turn to his/her children
“… my wife/husband (write full name of wife/husband) if she/he outlives me for 30 days but if she/he does not then equally among my children who outlive me.”
The testator did not simply copy the suggested wording verbatim, rather he applied the concept of the precedent and amended it to reflect his particular circumstances.
Having regard to the entirety of the Will, I have arrived at the conclusion that the testator intended for Sean and Stephen to be jointly entitled to apply for a grant of probate in the event that Kathleen died during his lifetime. I should point out that Sean’s attitude to this matter is not known.
My advice and direction to the Registrar is to proceed on the basis that Sean and Stephen are jointly entitled to apply for a grant of probate in the estate of Chetwynd Richard Talbot Cox.
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