IN THE ESTATE OF DRAPER; IN THE ESTATE OF DUNSTONE; IN THE ESTATE OF HARTSHORNE - [2022] SASC 46

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF DRAPER; IN THE ESTATE OF DUNSTONE; IN THE ESTATE OF HARTSHORNE
[2022] SASC 46
Judgment of the Honourable Justice Stanley
16 May 2022
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED
The applicants in each matter have applied for a grant of probate in respect of the will of the deceased on the basis that they are the executors and trustees appointed by the will. In each matter the deceased’s will nominated as executors or substitute executors the partners of the firm of Adelta Legal or of the firm which has at the date of death succeeded to and which carries on the practice presently carried on by Adelta Legal.
At the time the wills were made, Adelta Legal was the registered business name of a firm of legal practitioners practicing in partnership. Subsequently, but before the death of the deceased in each matter, the firm was incorporated. The partnership was replaced by the incorporated legal practice of Adelta Legal (SA) Pty Ltd which trades under the name Adelta Legal. Adelta Legal (SA) Pty Ltd has succeeded to the same legal practice previously carried on by the partnership. As at the date of death of the deceased, and presently, the only directors and shareholders of the company Adelta Legal (SA) Pty Ltd are the applicants.
The issue in each matter is whether, in light of the changes made in the structure of Adelta Legal between the date that the will was made and the date of death, the applicants are entitled to a grant of probate.
Held:
1. In each case the deceased objectively intended that in the event of changes being made in the structure of Adelta Legal between the date that the will was made and the date of death, the persons appointed as executors and trustees would be the legal practitioner partners or their equivalents of the entity which had succeeded Adelta Legal, whether that firm practiced as a partnership or as an incorporated legal practice.
2. The Registrar of Probate should grant the applications for a grant of probate in respect of each of the wills.
Legal Practitioners Act 1981 (SA); Partnership Act 1890, 53 & 54 Vict c 39, referred to.
Farrelly v Phillips (2017) 128 SASR 502; Marley v Rawlings [2015] AC 129; Re Cornelius (deceased) [2012] 1 NZLR 853; Re Kidd [2002] VSC 300; Re Rogers (deceased) [2006] 2 All ER 792, considered.

IN THE ESTATE OF DRAPER; IN THE ESTATE OF DUNSTONE; IN THE ESTATE OF HARTSHORNE
[2022] SASC 46
Testamentary causes jurisdiction
STANLEY J:

These matters have been referred to the Court by the Registrar of Probate for advice and direction. The applicants in each matter, Alison Clare Evenden and Mark Peter Jappe, have applied for a grant of probate in respect of the will of the deceased on the basis that they are the executors and trustees appointed by the will.
In each matter the deceased’s will nominated as executors or substitute executors the partners of the firm of Adelta Legal or of the firm which has, at the date of death, succeeded to, and which carries on the practice, presently carried on by Adelta Legal.
The issue in each matter is whether the applicants are entitled to a grant of probate i.e. whether the appointment of executors and trustees made by the terms of the wills are operative to appoint the applicants.
The need for advice and direction arises because at the time the wills were made, ‘Adelta Legal’ was the registered business name of a firm of legal practitioners practicing in partnership. Subsequently, but before the death of the deceased in each matter, the firm was incorporated. The partnership ceased to trade on 31 December 2020. It was replaced by the incorporated legal practice of Adelta Legal (SA) Pty Ltd which has traded under the name ‘Adelta Legal’ since 1 January 2021. Adelta Legal (SA) Pty Ltd has succeeded to the same legal practice previously carried on by the partnership. As at the date of death of the deceased, and presently, the only directors and shareholders of the company Adelta Legal (SA) Pty Ltd are the applicants.
The issue gives rise to a question of construction of the wills. Specifically, whether the appointment of “the partners as at the date of my death” of “the firm which has at that date succeeded to and which carries on the practice presently carried on by Adelta Legal” effectively appoints as executors and trustees the persons who are the legal practitioner directors of Adelta Legal (SA) Pty Ltd trading as Adelta Legal, namely, the applicants.
The subordinate question which the referral raises is whether the term “the partners” when used in the wills encompasses persons who are legal practitioner directors of an incorporated legal practice where that incorporated legal practice is the successor to a partnership; and whether the expression “the firm which has … succeeded to and which carries on the practice” as at the date of death of the deceased previously carried on by a partnership includes a successor entity which is an incorporated legal practice rather than a partnership or individual legal practitioner.
For the reasons that follow, I consider that principle and authority provide an affirmative answer to these questions.
In South Australia the practice of law is governed by the Legal Practitioners Act 1981 (SA) (the Act).
Section 5 of the Act relevantly defines a “law practice” to mean a legal practitioner who is a sole practitioner; or a firm of legal practitioners; or a firm of incorporated legal practices; or a firm of legal practitioners and incorporated legal practices; or an incorporated legal practice that practices on its own account.
Schedule 1 of the Act provides for incorporated legal practices and defines “an incorporated legal practice” as a corporation that engages in legal practice in the state of South Australia. An incorporated legal practice is required to have at least one “legal practitioner director”. A legal practitioner director is defined as a director of an incorporated legal practice who is a legal practitioner holding an unrestricted practicing certificate. An incorporated legal practice is not in itself required to hold a practising certificate. There are various provisions of Schedule 1 of the Act which impose obligations on legal practitioners who provide legal services on behalf of an incorporated legal practice and apply the legal profession rules to legal practitioners who are officers or employees of an incorporated legal practice.
In Farrelly v Phillips,[1] I considered the principles applicable to the interpretation of wills. Citing the judgment of the Supreme Court of the United Kingdom in Marley v Rawlings,[2] I said:[3]
[1] (2017) 128 SASR 502.
[2] [2015] AC 129.
[3] (2017) 128 SASR 502 at [23]-[34].
The task of a court when construing a will is to discover the intention of the testator. In Perrin v Morgan, Lord Romer said:
I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.
Lord Simon said:
… [t]he fundamental rule in construing the language of a will is to put on 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.
In Fairbairn v Varvaressos Campbell JA cited with approval the dicta of Bryson J in Perpetual Trustee Co Ltd v Wright, where his Honour said:
… one’s task is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.
In Muir v Winn Bryson AJ observed:
It is necessary to seek to understand the scheme of a testator’s dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important.
The appellant seeks to rely upon the so-called “armchair principle”. This was described in Allgood v Blake by Blackburn J as follows:
The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words … the meaning of words varies according to the circumstances of and concerning which they are used.
There are two qualifications to the armchair principle. First, when the court considers the circumstances known to the testator, it is only the circumstances existing at the time the testator made his will that may be considered. Second, extrinsic evidence cannot be used to make words in a will bear a meaning which on the face of the will they are incapable of conveying. This is sometimes described as the “incapable meaning rule” or the “plain meaning rule”. In relation to the armchair principle, Lord Romer observed in Perrin v Morgan, that when seated in the armchair the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he plainly said.
In Marley v Rawlings, the Supreme Court of the United Kingdom has recently approached the construction of wills on the same basis as the interpretation of contracts. The Court adopted the objective theory to ascertaining the testator’s intention, which it found to be consistent with the armchair principle. Lord Neuberger, with whom Lord Clarke, Lord Sumption and Lord Carnwath agreed, said:
When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan that “courts will never construe words in a vacuum”.
Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd.
…
[T]he approach to the interpretation of contracts … is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th ed (2010), chapter 15 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty to Animals v Sharp). Indeed, the well known suggestion of James LJ in Boyes v Cook that, when interpreting a will, the court should “place [itself] in [the testator’s] arm-chair”, is consistent with the approach of interpretation by reference to the factual context.
Marley v Rawlings has been applied in a number of single judge decisions in Australia.
This approach is conducive to coherence in the law of construction of instruments consistent with the approach taken in the joint reasons of Heydon and Crennan JJ in Byrnes v Kendle.
While the task of the Court in construing the will is to ascertain the intention of the testatrix, the Court must take care to avoid interpreting the will on the basis of some a priori assumption about the testatrix’s intentions. The surest guide to the testatrix’s intention is the language of her will. Her expressed intentions are embodied in its text read in light of the surrounding circumstances in accordance with the armchair principle. The search is for her expressed intentions, not what she meant to say, but what she actually said.
In that context, a question arises as to whether, in construing the will, the Court can have regard to earlier drafts of the will. In my view it is open to the Court to consider evidence of earlier drafts of the will in order to assist in ascertaining the testator’s expressed intention. I consider that such evidence is admissible as part of the surrounding circumstances. While it was once the case at common law that evidence of draft contracts was not admissible for constructional purposes, that no longer appears to be the position. In Royal Botanic Gardens and Domain Trust v South Sydney City Council the High Court had regard to various drafts of a deed that passed between the parties in order to construe the concluded deed. The drafts were admitted as evidence of surrounding circumstances.
In accordance with the approach in Marley v Rawlings the Court should apply those principles applicable to the construction of contracts to the construction of a will for the purposes of ascertaining the expressed intention of the testator. In Marley v Rawlings Lord Neuberger said it was open to the court to consider evidence of drafts of a will which the testator may have approved or caused to be prepared for the purposes of interpreting the will or a provision of the will. However, his Lordship reached that conclusion on the basis of an express statutory provision in the Administration of Justice Act 1982 (UK) which permitted the court to receive extrinsic evidence of the testator’s intention to assist in interpretation. No equivalent provision is to be found in the Wills Act 1936 (SA). Nonetheless, notwithstanding the absence of an equivalent statutory provision I am satisfied that it is permissible to receive draft wills as evidence of surrounding circumstances for the purposes of ascertaining the testator’s expressed intention. In Byrnes v Kendle Heydon and Crennan JJ held that evidence of pre-contractual negotiations is admissible for the purpose of drawing inferences about what the contract meant where it demonstrates knowledge of surrounding circumstances. In relation to the constitution of wills, that would require, however, evidence that the draft will was approved by the testator or that the testator caused the draft to be prepared in particular terms so as to throw some light on his intention. So the evidence of draft wills, like pre-contractual negotiations, is only admissible where it demonstrates knowledge of surrounding circumstances.
(Citations omitted).
The Court’s task in construing a will is to determine the meaning that the will conveys to a reasonable person attributed with knowledge of the objective circumstances surrounding the testator at the time the will was made.[4] The construction to be given to the executorial appointment clauses in these wills should be one which avoids a capricious result which cannot have been intended by the testator. That is consistent with the judgment in Re Rogers (deceased)[5] (Re Rogers) where it was held that the Court should take a practical and common‑sense view in eliciting and giving effect to the intentions of the testator. In Re Rogers this led Lightman J to find that upon the true construction of the will under consideration in that case, probate should be granted to profit sharing members of a limited liability partnership.
[4] Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2^nd ed, 2020) at [31.30].
[5] [2006] 2 All ER 792.
In Re Rogers the will appointed as executors and trustees the partners in a nominated firm of solicitors or in the firm which at the date of death succeeded to and carried on its practice. The nominated firm of solicitors subsequently merged with another firm of solicitors to form a limited liability partnership which succeeded to carry on the practice of the firm. A limited liability partnership is a corporate entity created by relevant legislation in the United Kingdom and although the term “partnership” is used in its description, it is not a partnership within the meaning of the Partnership Act 1890, 53 & 54 Vict c 39. Lightman J held that depending upon context, the term “firm” may include a company. He found that, for practical purposes, the profit-sharing members of the limited liability partnership should be viewed as partners in the solicitor’s business. They were the equivalent of the partners in the previous partnership. Lightman J concluded that it was not the intention of the testatrix that the appointment of the solicitors conducting the nominated legal practice as executors be frustrated by the exercise of the option available to those solicitors to alter the legal character of the vehicle through which they carried on their practice. This was apparent from the formulation of the appointment clause in the will. This clause made two things clear. First, that the testatrix had in contemplation the possibility that at some time before her death the legal structure by which the practice carried on the practise of the law might change. Second, that a change in the legal structure by which the practice carried on was not intended to frustrate the appointment.
This approach is consistent with the reasons of Smith J in the Victorian Supreme Court in Re Kidd.[6]Smith J held that the appointment as executor in a will of a senior partner in a nominated legal firm, or the firm which at the date of the testatrix’s death had succeeded to have carried on its practice, did not fail because of the subsequent sale of that practice to an incorporated firm with a practitioner as its sole director. Smith J said:[7]
[6] [2002] VSC 300.
[7] [2002] VSC 300 at [7]-[9].
Views on the proper construction of clause 2 may well differ. So too may views as to the way to approach the construction task. It seems to me, however, that the initial question is what the testatrix meant when she referred to “the firm of Yuncken and Yuncken lawyers” and “the firm which at that date has succeeded to or carried on its practice”.
The word “firm”, in its ordinary meaning, covers a wide variety of organisations including corporations. This is confirmed by an examination of relevant dictionaries. For example, in the New Shorter Oxford English Dictionary (1993) the third meaning attributed to the word is as follows:
“A partnership or company for carrying on a business; a group of people working together, orig. (derog.) to further their own interests; (a criminal) organisation or gang; a group of hospital doctors and their assistants.”
Butterworth's Australian Legal Dictionary 1997 contains a number of definitions. The first refers to an unincorporated body of persons associated together for the purpose of carrying on business. The second definition is as follows:
“An undertaking providing legal services to the public for reward comprising a sole practitioner or partners or a solicitor corporation, employed solicitors and other staff, and other assets including work in progress, good will and liabilities. The sole practitioner or partners carry on professional practice under a business or firm name. For some purposes, a “firm of solicitors” includes solicitors who share remuneration as solicitors, whether or not on the same basis for each of them … ”
The third meaning given is that of the collective name for persons who have entered into partnership with one another.
In my view, the words “the firm” appearing in clause 2 should be given their ordinary meaning and read, absent any contrary indication, as referring to the undertaking conducted by Yuncken and Yuncken and its successors and as including situations where there was only one solicitor or where the practice was conducted by a corporation.

A similar approach was taken by the High Court of New Zealand in Re Cornelius (deceased)[8] (Re Cornelius) which expressly adopted the reasoning in Re Rogers. In Re Cornelius, Mackenzie J held that there was a close analogy between the partners in an unincorporated law firm and the directors in an incorporated law firm. I note in that context that New Zealand has a comparable regulatory structure to that found in the Act.
[8] [2012] 1 NZLR 853.
Accordingly, I am satisfied that the applicants are eligible to apply for a grant of probate. On a proper construction of the appointments clauses in each of these wills, the Court is in a position to find that each of the deceased objectively intended that, in the event of changes being made in the structure of Adelta Legal between the date that the will was made and the date of death, the persons appointed as executors and trustees would be the legal practitioner partners or their equivalents of the entity which had succeeded Adelta Legal, whether that firm practiced as a partnership or as an incorporated legal practice.
Accordingly, I advise and direct that the Registrar of Probate should grant the applications for grants of probate in respect of each of the wills.