In the Estate of Koppie
[2019] ACTSC 106
•2 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Koppie |
Citation: | [2019] ACTSC 106 |
Hearing Date: | 28 November 2018 |
DecisionDate: | 2 May 2019 |
Before: | McWilliam AsJ |
Decision: | See [105] |
Catchwords: | SUCCESSION – WILLS – Section 31 of the Wills Act 1968 (ACT) – construction and effect of testamentary dispositions – child of testatrix predeceased leaving issue – whether statutory substitution of the surviving issue should be made – whether contrary intention apparent from words of the will or extrinsic evidence |
Legislation Cited: | Succession Act 2006 (NSW) s 41 Succession Act 1981 (Qld) ss 32, 33 Wills Probate & Administration Act 1898 (NSW) s 29 |
Cases Cited: | Bassett v Hall [1994] 1 VR 432 Burman v Burman [1998] QCA 250 Hives v Machin [2017] EWHC 1414 Kavanagh v Reardon [2012] VSC 174 Pohlner v Pfeiffer (1964) 112 CLR 52 Public Trustee of Queensland v Jacob [2006] QSC 372; [2007] 2 Qd R 165 Towns v Wentworth (1858) 14 ER 794 |
Texts: Parties: | Law Reform Committee, Parliament of Victoria, Reforming the Law of Wills (1994) Michael Vincent Koppie (Plaintiff) Scott Keenan (First Defendant) Julian Keenan (Second Defendant) Naomi Keenan (Third Defendant) John Koppie (Fourth Defendant) Catherine Mary Koppie (Fifth Defendant) |
Representation: | Counsel Dr D Hassall (Plaintiff) Mr R Williams (Defendants) |
| Solicitors Capon & Hubert Lawyers and Mediators (Plaintiff) Farrar Gesini Dunn (Defendants) | |
File Number: | SC 389 of 2018 |
McWilliam AsJ:
This matter concerns how to construe a will left by an 88 year-old woman, who died in 2016. She bequeathed the residue of her estate to her four children in equal shares. One of those four children (the eldest daughter) had died before her mother in 2014. However, the eldest daughter left three surviving children, who are the first, second and third defendants in this proceeding.
The question before the Court is whether, on the terms of the will in question and the application of the relevant provisions of the Wills Act 1968 (ACT) (the Wills Act), the estate should be distributed between the three remaining living beneficiaries only, with the consequence being that the living issue (that is, the children) of the eldest daughter receive nothing. The alternative construction is that the estate should still be divided into four, and the quarter share that would have been paid to the eldest daughter, but for the fact that she predeceased her mother, instead be paid to the first, second and third defendants in equal shares.
For reasons that follow, I have found that the latter alternative is the proper construction of the relevant will.
Background facts
Kathleen May Constance Koppie (the Testatrix) died on 29 October 2016, aged 88. She had executed a will on 15 January 1982 (Will), with a codicil dated 13 December 2001 (Codicil). The terms of the Will left her estate to such of her children as survived her and attained the age of 18 years.
The Testatrix’s four children were:
(a) Ms Margaret Koppie, the eldest daughter who died in 2014, aged 62 years;
(b) The plaintiff, Mr Michael Koppie and the executor named in the Will;
(c) Mr John Koppie, the fourth defendant in these proceedings; and
(d) Ms Catherine Koppie, the fifth defendant in these proceedings.
For convenience and without intending any lack of respect, I will refer to them by their first names: Margaret, Michael, John and Catherine.
The Testatrix was married to Francis George Koppie (Francis), who predeceased her, on 30 December 2008.
Probate was granted to Michael in respect of the Will on 5 March 2018. On the agreed statement of facts filed by the parties, the total net distributable estate is approximately $1,500,000.
The present application
By the Originating Application filed 28 August 2018, Michael as the executor seeks alternative forms of declaratory relief. First, a declaration is sought that the estate is to be divided equally among himself, John and Catherine.
10. Alternatively, a declaration is sought that in addition to those three beneficiaries, the first to third defendants are to receive gifts by way of statutory substitution for their mother, as provided for by s 31 of the Wills Act, equating to what would have been their mother’s quarter share of the estate.
11. The clause of the Will giving rise to the need for construction is clause 5, which provides (emphasis added):
I give devise and bequeath the whole of my estate unto my trustee upon trust to pay thereout my just debts funeral and testamentary expenses and to hold the balance then remaining for the benefit to such of my children as shall survive me and attain the age of eighteen (18) years and if more than one in equal shares as tenants in common.
12. The Codicil was in the following terms:
THIS IS A CODICIL to the last will of me KATHLEEN MAY CONSTANCE KOPPIE… which will bears date the 15th day of January 1982.
1. WHEREAS by Clause 4 of my said will I have appointed my daughter MARGARET FRANCES KEENAN to be the executrix and trustee therefore if my husband does not survive me for a period of thirty (30) days.
2. NOW I APPOINT my son MICHAEL VINCENT KOPPIE to be the executor and trustee thereof jointly with my said daughter if my husband does not survive me for a period of thirty (30) days.
3. IN ALL OTHER RESPECTS I confirm my said will.
The WillsAct
13. Section 31 of the Wills Act is the provision that deals with the circumstances in which statutory gifts to issue will arise. It was enacted in its present form in 1991. It is important to set out the words because they subtly differ from other statutes which are the subject of consideration in the authorities discussed below (underlining added):
Gifts to issue
(1) If—
(a) a testator by will devises or bequeaths property to, or appoints property in favour of, a person (the original beneficiary) (whether individually or as a member of a class) who is a child or other issue of the testator for an estate or interest not determinable before or on the death of the original beneficiary; and
(b) the original beneficiary dies in the lifetime of the testator and is survived by issue; and
(c) any such issue survive the testator for a period of 30 days (the specified period);
then, unless a contrary intention appears from the will or from evidence admitted under section 12B, the will has force and effect as if the devise or bequest were to, or the appointment were in favour of, any issue of the original beneficiary who survive the testator for the specified period, to be distributed—
(d) if only 1 issue of the original beneficiary survives for that period—to that issue; or
(e) if 2 or more issue of the original beneficiary survive for that period—in accordance with subsection (2).
(2) If 2 or more issue of an original beneficiary survive the testator for the specified period, the property the subject of the devise, bequest or appointment shall be divided into a number of equal shares equivalent to the total number of the nearest issue of the original beneficiary who—
(a) survive the testator for the specified period; or
(b) …
and those equal shares shall be distributed as follows:
(c) each of the nearest issue of the original beneficiary who survives the testator for the specified period is entitled to 1 share;
(d) …
(e) ….
(3) …
(4) A general requirement or condition in a will that an original beneficiary survive the testator or attain a specified age shall not be taken to be an expression of a contrary intention for this section.
(5) This section does not apply if an original beneficiary has not fulfilled a contingency required by the will as a condition of attaining the vested estate or interest, other than a contingency of surviving the testator or attaining a stated age.
14. The omitted parts of the above section refer to circumstances where the issue of the ‘original beneficiary’ (Margaret in this case) does not survive. As all three of Margaret’s children survived her, those parts are immaterial here.
15. Evidence in the case was admitted under s 12B of the Wills Act, referred to in the passage underlined. That section provides for the taking into account of extrinsic evidence as follows:
Extrinsic evidence
In proceedings to construe a will, evidence, including evidence of the testator's dispositive intention, is admissible to the extent that the language used in the will renders the will, or any part of the will—
(a) meaningless; or
(b) ambiguous or uncertain on the face of the will; or
(c) ambiguous or uncertain in the light of the surrounding circumstances;
but evidence of a testator's dispositive intention is not admissible to establish any of the circumstances referred to in paragraph (c).
16. The effect of s 31 of the Wills Act is that where a testator leaves property to her children under a will, and one dies before the testator but is survived by her own issue, the share that the original beneficiary would have received is given instead, in equal parts, to those surviving issue. This statutory gift applies ‘unless a contrary intention appears from the will or from evidence admitted under section 12B’ of the Wills Act.
Has a contrary intention been expressed?
17. The words that have been underlined in s 31 above are the focus of the Court’s task on this application. The issue is whether a contrary intention has been expressed either on the face of the will or from extrinsic evidence.
18. Whether or not a contrary intention appears depends upon (Pohlner v Pfeiffer (1964) 112 CLR 52 at 77 per Windeyer J):
(a)the meaning of the will construed according to ordinary principles of construction; and
(b)in the light of any extrinsic evidence properly admissible of facts, known to the testator, that existed at the time the will was made.
19. It is convenient to deal with the extrinsic evidence first.
Extrinsic Evidence
20. The plaintiff also relied on extrinsic evidence under s 12B of the Wills Act. This was affidavit evidence of the youngest daughter of the Testatrix, Catherine, about a conversation she had with her father, Francis, at around the time the Testatrix executed the Will.
21. Catherine deposes to her father telling her that he and the Testatrix had been to the solicitors to ‘get our wills done’. Catherine (being younger and without children at that time) asked her father about the grandchildren and was told by her father ‘I will look after my children – it is up to the parents of my grandchildren to look after them’.
22. Catherine recalls her mother being present during that conversation and that her mother did not appear to oppose or disagree with that statement. Francis died on 30 December 2008.
23. This evidence does not really assist. The conversation was not with the Testatrix, even though she was present. Moreover, the topic was really addressing whether separate provision had been made for the testator’s grandchildren in Francis’s will, the terms of which were similar to the Testatrix’s Will. That is not the issue in this case. I have inferred that the broader context to that conversation – given it was being held with the youngest daughter who had not yet had children of her own – was fairness. It is implicit from Catherine’s question that she would not have considered it fair for provision to be made for the children of her siblings, when she had not yet reached a similar stage in her life, due to her younger age.
24. Even if I accept that Francis was voicing the view of his wife, a proposition about which I have serious doubts, the conversation occurred before Margaret died. There is nothing to suggest that the Testatrix had at that time turned her mind to the possibility that a child of theirs would predecease either her or her husband.
25. If anything, the comments of Francis suggest that he expected to look after his children and for that benefit to then flow on to his grandchildren in due course. He did not expect his grandchildren would not be ‘looked after’ at all, which would be the result if the plaintiff succeeds on the primary relief sought in his application.
26. Assuming the sentiments expressed by Francis also represent the view of the testatrix at the time she executed the Will, to my mind, they accord more with a construction of the Will that favours a statutory gift being made to the first to third defendants.
Is a contrary intention apparent from the words of the Will?
27. It was submitted by the plaintiff that the following words of clause 5 of the Will express a contrary intention:
…to such of my children as shall survive me and attain the age of eighteen (18) years and if more than one in equal shares.
28. Part of the consideration of whether a ‘contrary intention’ appears from the Will is determining whether the extracted words of clause 5 are deemed merely a general requirement that an original beneficiary survive the testator or attain a specified age, and therefore s 31(4) of the Wills Act applies, or, are instead to be construed as a specific condition evincing a contrary intention to which s 31(4) of the Wills Act does not apply.
29. If the words fall within s 31(4) of the Wills Act, the consequence is that Margaret’s quarter share does not lapse but is instead to be paid to her children. If the words do amount to a ‘contrary intention’ apparent from the Will notwithstanding s 31(4), then they must be given their full meaning and effect as the express wishes of the Testatrix, and Margaret’s children will receive nothing under the Will.
30. In my view, the words “to such of my children as shall survive me and attain the age of eighteen (18) years” are plainly a general requirement and are therefore not to be taken as words of contrary intention, so as to defeat the operation of s 31(1) of the Wills Act.
31. Support for that construction is seen in part from the terms of the Codicil, which is of contextual importance to considering the Will as a whole, because the will of a testator is the aggregate of his or her testamentary intentions as expressed in valid wills and codicils. As the will and the codicil are all one testament, the language of a will may be interpreted by that of a codicil: Jenkins v Stewart (1906) 3 CLR 799 at 806.
32. By the terms of the Codicil set out above, the Testatrix appointed two of her children to be joint executors, rather than her eldest daughter Margaret as sole executor, but in all other respects confirmed the terms of the Will. At the time Will was executed, Catherine, her youngest daughter, was not quite 18 years old.
33. However, by the time the Codicil was executed in 2001, Catherine was over 18. There was no longer a need for the words “to such of my children as … attain the age of eighteen (18) years” in clause 5 of the Will, as all of the Testatrix’s children had attained the age of eighteen years. This suggests that at least part of the critical sentence under consideration was a general requirement, as the condition of attaining 18 years was plainly otiose at the time the Testatrix confirmed the terms of the Will in 2001. They do not evince any conscious decision to express a contrary intention so as to defeat the operation of s 31 of the Wills Act.
34. In saying that, it is to be accepted that there is no requirement for the Court to search in the words of the Will for an apparent conscious decision of a contrary intention: In re Meredith [1924] 2 Ch 552 at 556 per Romer J, cited in Hives v Machin [2017] EWHC 1414 (Hives v Machin) at [25]. Nor would I go so far as to say that for a testator to evince an intention to exclude the operation of s 31 of the Wills Act in the terms of the Will, he or she must do so expressly.
35. The difficulty is that, if the words used by the Testatrix do no more than merely state a condition of attainment of a certain age, such a statement is expressly deemed, by s 31(4) of the Wills Act, not to constitute a contrary intention. As a consequence, something more is required, either in other words in the Will or by reference to extrinsic evidence, before a finding of ‘a contrary intention’ can be made.
36. In Hives v Machin, Fancourt QC was of the view (at [25]) that what appears to be necessary for a finding of ‘contrary intention’ is language of the will to show that the devise or bequest in question should not take effect, in the specified circumstances, as a devise or bequest to the living issue of the deceased’s beneficiary. An express provision for a different substitution (or none) in the event of death would be sufficient, but the mere fact that the will would otherwise have a different effect will not suffice, as that is merely the trigger for the application of the statute. I respectfully adopt this reasoning as a general principle regarding where a contrary intention might arise.
37. It must be noted that in Hives v Machin, the relevant provision of the English statute was s 33 of the Wills Act 1937 (UK) and although the anti-lapsing effect of that section is the same as s 31 of the Wills Act, it does not contain an additional deeming provision in terms similar to s 31(4) of the Wills Act. However, such a provision might be seen as an example of what the legislature has deemed to be insufficient to amount to a contrary intention. It does not affect the general principle.
38. The construction of the condition that each child of the Testatrix attain 18 years has consequences for the remainder of that sentence in clause 5 of the Will. The sentence must be read as a whole, and I see no reason to construe the context differently, as the remaining words are also no more than a bare statement as to a condition of survivorship. Thus, the phrase “to such of my children as shall survive me” should also be construed as part of the same general requirement, rather than a specific contrary intention being expressed by the Testatrix.
39. On the words of the Will here, s 31(4) of the Wills Act is critical to the issue of whether a contrary intention exists. Apart from those words, there is nothing else in the words of the Will or the extrinsic evidence from which the Court might infer a contrary intention on the part of the testatrix.
40. I have given consideration to whether a contrary intention can be discerned from the words that follow the general condition: “and if more than one in equal shares as tenants in common”, as some of the authorities discussed below have looked to similar words. Such general words do not affect the deemed construction of the general condition of survivorship and attaining 18 years. They speak to how the estate is to be apportioned if the general condition is satisfied. They do not say anything from which a Court could infer an intention (conscious or otherwise) that the bequest not take effect as a bequest including the living issue of the Testatrix’s beneficiary.
41. Those words are not mere surplusage on a construction of the Will that favours statutory substitution of living issue. Such words mean that if Margaret died leaving no children, the residue is to be divided into 3 equal shares which could then be passed on to whomever each chooses (as opposed to a joint tenancy). As Margaret has surviving children, the words operate to divide the residue into 4 equal shares.
42. Alternatively, if those words are considered to be relevant to the specific intention of the Testatrix as to the condition that a child of the Testatrix also reach the age of 18, then I would have found that the words confirm the operation of s 31 of the Wills Act, rather than giving any indication of a contrary intention. The apportionment is of equal shares ‘as tenants in common’ rather than joint tenants. Such an arrangement allows the beneficiary to pass the benefit or bequest to his or her issue, or someone else of the beneficiary’s choosing. Dividing the residue as tenants in common is therefore inconsistent with the benefit only being made to the living issue of the Testatrix and no further.
43. Further support for applying s 31(4) to those words is also found in the explanatory memorandum to the Wills Act. The mischief the Legislative Assembly was attempting to address in enacting the section is first described by reference to the previous version of s 31 of the Wills Act. It had effectively provided that if a child of the testator was a beneficiary under a will, but predeceased the testator, the gift did not lapse but instead was paid to the estate of the child by deeming the death of the child to have occurred immediately after the death of the testator.
44. The problem with this approach was that the gift would be paid to the child’s estate, and then distributed among the beneficiaries named in the child’s will, which may include people that the original testator did not know. To remedy the possibility of a gift of a testator being paid to a stranger, the current version of s 31 was introduced.
45. The explanatory memorandum goes on to state:
New subsection 31(4) provides for two matters which are not to be considered to be an expression of a contrary intention as would oust the operation of the rule contained in the section. They are statements made in a will to the effect that the original beneficiary must survive the testator, or attain a specified age, before being entitled to take under that will.
46. It is difficult to imagine what the Legislative Assembly was intending when enacting s 31(4), if not language of the kind used by the Testatrix in clause 5 of the Will. On the plain and ordinary meaning of the phrase, the language is such as to attract the operation of s 31(4) of the Wills Act.
Consideration of the authorities in other jurisdictions
47. The parties have drawn attention to a number of authorities in other jurisdictions which address the issue and on the plaintiff’s submission, require this Court to find to the contrary. It is thus necessary to deal in detail with a number of the authorities in other jurisdictions, which were traversed by the parties during the hearing.
48. What follows is a discussion of what I consider to be the salient cases bearing on the questions and the facts of the case before this Court. It does not represent the totality of the cases or jurisdictions to which reference was made by the parties in their diligent attempts to put before the Court any Australian or UK authority where similar words of a will had been considered and construed in light of the words of the applicable statute.
49. All of the relevant statutory provisions in some way refer to a gift not lapsing but instead being paid to the issue of the person who predeceased the testator, subject to a contrary intention in the will. The words of s 31(4) of the Wills Act also appear in equivalent provisions of the statutes applying in some of the other jurisdictions, these being Queensland, Tasmania, Victoria and Northern Territory.
50. However, none of the cases have had cause to grapple with the combination of the precise form of words used in s 31(4) of the Wills Act as applied to the words used in the Will under consideration, including the context of the subsequent Codicil. Having analysed the legislation and the clauses of the particular wills under consideration in these authorities, I do not consider there to be any directly binding authority which would affect or disturb my initial finding as to the application of s 31 of the Wills Act to the facts of this case.
The Victorian authorities
In re King, deceased [1953] VLR 648
51. The first authority, chronologically, is In re King, deceased [1953] VLR 648 (Re King). This was a single instance decision in the Supreme Court of Victoria. The relevant clause of the will under consideration in that case provided (at 649):
In the event of my said husband predeceasing me as aforesaid I give devise and bequeath the whole of my property aforesaid to such of them my two sons Sydney Oliver King and Walter Randall King as shall be living at the date of my death and if both shall then be living as tenants in common in equal shares.
52. The applicable statute was the Wills Act 1928 (Vic), which had been amended by the Wills (Amendment) Act 1947 (Vic) (Victorian Act). Section 31 relevantly provided (emphasis added):
(1) Subject to the provisions of the next succeeding sub-section –
(a) Where a testator…bequeaths…any real or personal property to or in favour of any of his issue (whether individually or as a member of a class) for some estate or interest not determinable at or before the death of such issue; and
(b) Such issue dies in the lifetime of the testator, …leaving issue living at the death of the testator –
the issue of the deceased issue who are living at the death of the testator and attain the age of twenty-one years…shall take, if more than one as tenants in common in equal shares, the real or personal property or share or interest therein which the deceased issue of the testator would have taken is such deceased issue had survived the testator and attained a vested interest; …
(2) This section shall not apply –
(a) Where a contrary intention appears by the will; or
(b) where the deceased issue was, as a condition of attaining a vest interest, required by the will to fulfil any contingency (other than that of surviving the testator or of attaining some specified age) but had not fulfilled such contingency at the time of his death –
But (subject to any contrary intention appearing by the will) this section shall apply notwithstanding that the deceased issue was, as a condition of attaining a vested interest, required by the will to fulfil some contingency, if the only such contingency unfulfilled at the time of his death was either or both of the following, namely, surviving the testator or attaining a specified age.
53. In Re King, O’Bryan J found (at 650) that s 31 of the Victorian Act did not apply because a contrary intention appeared in the will itself. His Honour was of the view that s 31 was not intended to interfere with the disposing power of a testator. O’Bryan J found (at 651) that the testatrix had not only made it a condition of her sons taking the gift that they shall survive her, but she had gone on to provide what is to happen to the gift in favour of one if he predeceases her and the other survives. His Honour went on to state:
In effect, having said generally that the section shall not apply where a contrary intention appears by the will, it goes on to say that the mere presence in the will of an express condition requiring the done to survive the testator if he is to attain a vested interest is not to be taken of itself as the expression of an intention that the section shall not operate. But something more may appear which may indicate a contrary intention, in which case the section will not operate.
Now in this case the testatrix has said: (1) survival is a condition of the gift I have given to both of you my sons; (2) if one survives and the other does not, my will is that the property shall go to the survivor; (3) if both of you predeceased me I make no direction as to where the property is to go.
…
In my opinion, one cannot get away from the fact that the testatrix’s will is that she is giving the property to such of these two sons as shall be living at her death, and that being her plainly expressed will, the section does not operate to effect a different disposition.
54. The decision in Re King was raised as an issue of concern in the report produced by Law Reform Committee, Parliament of Victoria, Reforming the Law of Wills (1994) (Victorian Report).
55. At 279 of the Victorian Report, the following was stated (emphasis added):
The Working Party notes that the decision in Re King deceased [1953] V.L.R. 648, in which it was held that a gift to such of two sons as was living at the testator's death indicated a contrary intention for the purposes of Section [31] of the Wills Act 1958, has been the subject of a good deal of criticism. The Working Party is of the view that, when the proposed new section is drafted, care needs to be taken to ensure that wording such as that considered in Re Kingdeceased is not held to constitute a "contrary intention".
56. Earlier at 148 of the Victorian Report, the background to the recommendation is set out (emphasis added, references omitted):
…If a testator leaves property "to my children" the rule will apply and issue of children who predecease the testator should take the shares they would have taken had the testator died intestate leaving only issue surviving. If the testator leaves property to "my children, but if they predecease me, then to Y" the statutory rule would appear to be displaced and issue of the children could not displace Y. The wording is an attempt to meet the problem which occurred in Re King. The Committee considers that it would be better to use the usual language and say:
The provisions of this section do not apply if a contrary intention appears in the will
but to add:
but a general requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purpose of this section.
This is the provision in Queensland and should have the effect that Re King would not be decided in the same way in future.
Bassett v Hall [1994] 1 VR 432
57. Before the publication of the Victorian Report and the proposed reform of the legislation in Victoria, the Victorian Court of Appeal delivered Bassett v Hall [1994] 1 VR 432 (Bassett v Hall) on 19 October 1993.
58. The same version of s 31 of the Victorian Act applied as that in Re King. In Bassett v Hall, the relevant clause of the Will under consideration was (at 433):
4 (a) I GIVE DEVISE AND BEQUEATH unto my trustee the whole of my estate of whatsoever nature…to hold the same upon trust:
(i) to pay thereout all my just debts, funeral and testamentary expenses and any probate or estate duties payable;
(ii) to hold the balance thereof for the benefit of my two sons VICTOR ROBERT HALL… and LEWIS PONSFORD HALL…as shall be alive at the date of my demise. I direct that my estate shall be divided into two equal undivided parts or shares and each son of mine is to receive one equal undivided part or share.
59. The Victorian Court of Appeal recorded the finding of the trial judge:
The learned judge rejected a claim by the appellants that they should take a half interest in the estate pursuant to s 31 of the Wills Act. His honour found that there was a sufficient contrary intention in the will, and in particular, in the terms of cl. 4 of the will to exclude its operation. …
In his reasons for judgment the learned judge found that cl. 4 of the will called for the implication of the words “such of” before the words “my two sons” in sub-cl (a)(ii). His honour concluded that once these words were implied into the will then the disposition was closely analogous to that discussed in Re King [1953] VLR 648.
60. The Victorian Court of Appeal was called upon to consider what a contrary intention meant, but in the context of a particular argument made by the appellant that the testator must evince a specific intention that the children of her deceased issue shall not take (or benefit).
61. The Court of Appeal stated (at 434) that it will be a question in each case as to whether a contrary intention is disclosed in the will and that there was no reason for reading into the statute a requirement that there must be manifested in specific terms an intention to exclude known issue of any beneficiary who does not survive the testator.
62. The Court of Appeal acknowledged the criticism the reasoning in Re King had received (at 435). It nevertheless expressed the opinion that the decision was no more than a reasonable example of what was found to be, in the context of that will, a sufficient indication of a contrary intention.
63. The argument considered by the Court of Appeal as to the requirement for something in the words of a will or its extrinsic context to indicate that the testator had turned her mind to the issue and decided that her deceased issue shall not take was not made here. Even if it had been raised, the reasoning of Bassett v Hall was in the context of applying a statute in terms different from those of the Wills Act here.
64. I accept that the words of the Victorian Act might be thought to be similar in their effect. However, s 31(4) of the Wills Act is in more clear and direct language. The language, context and purpose of the provision, assisted by the explanatory memorandum, all result in a clearer intention to be imputed to the Legislature in the Territory as to what constitutes a contrary intention, or more importantly, what the Legislature has deemed not to constitute a contrary intention.
65. Accordingly, Bassett v Hall does not assist with either the construction of the Wills Act or its application to the words of the Will (in the context of the Codicil) being considered here.
Kavanagh v Reardon [2012] VSC 174
66. Kavanagh v Reardon [2012] VSC 174 (Kavanagh v Reardon), considered the amended legislation, being the Wills Act 1997 (Vic) (1997 Victorian Act), s 45(1) of which provided that dispositions did not fail merely because a child or other issue of the testator predeceased the testator. Instead, where the predeceased child or other issue leave issue of their own, those issue stand in the place of the deceased child or other issue and take the benefit.
67. Section 45(3) of the 1997 Victorian Act was in the following terms:
Subsection (1) does not apply if a contrary intention appears in the will, but a general requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purposes of this section.
68. The words of the will under consideration in Kavanagh included the following:
I GIVE DEVISE AND BEQUEATH all my right title and interest in the property …[located in Northcote]…to my son Reginald Howard Reardon…
…
I GIVE DEVISE AND BEQUEATH the residue of my Estate both real and personal of whatsoever kind and wheresoever situate to my children Reginald Howard Reardon and Jennifer Elizabeth Kavanagh PROVIDED THAT if any child of mine should die before me or before attaining a vested interest leaving children then such children shall take equally the share which their parent would otherwise have taken.
69. The issue in Kavanagh v Reardon was whether s 45(1) of the 1997 Victorian Act applied to the property located in Northcote. Habersberger J surveyed a number of authorities in different jurisdictions, including those considered above and below. His Honour found (at [30]) first, that it was not the case that a ‘contrary intention’ would only be found where a testator or testatrix dealt with the situation where an issue predeceased him or her, and stated what is to happen apart from property being left to his or her issue. His Honour described this as the ‘strict view’ of where a contrary intention would arise.
70. I broadly agree that the language of a will in question does not have to be so express in order for a contrary intention to be found, but for the reasons given at [34]-[36] above, there nevertheless does need to be either in the language used or in the extrinsic evidence available (as provided by the Wills Act) something that sufficiently demonstrates an intention to the contrary.
71. Secondly, his Honour found (again at [30]) that the authorities are merely illustrative of the construction exercise undertaken of the will in question in deciding whether the words of the will disclose a contrary intention so as to preclude the operation of the s 45(1) of the 1997 Victorian Act.
72. Habersberger J went on to find (at [31]) that in the particular will in question, the express consideration by the testatrix of what was happen to the bequest of the residue should any of the two children pre-decease her demonstrated that she had turned her mind to the question. The absence of similar wording with respect to the property located in Northcote demonstrated the testatrix intended the gift to lapse if the testatrix’s son predeceased her, rather than pass to the living issue of her son through the application of s 45(1).
73. The facts of the case for resolution before me are manifestly different due to the different wording of the Will and the lack of any reference to a child predeceasing the testatrix in the Will or the Codicil. Here, the Testatrix plainly contemplated her husband predeceasing her, but not her children.
The Queensland authorities
Burman v Burman [1998] QCA 250
74. There are two Queensland authorities that bear upon the question. The first in time is that of Burman v Burman [1998] QCA 250 (Burman). The relevant statute was s 33 of the Succession Act 1981 (Qld) (Qld Act). Section 33(1) provided (relevantly):
Unless a contrary intention appears by the will, where any beneficial disposition of property is made to any issue of the testator…for an estate or interest not determinable at or before the death of that issue and that issue is dead at the time of the execution of the will or does not survive the testator for a period of 30 days, the nearest issue of that issue who survive the testator for a period of 30 days shall take in place of that issue and if more than 1 nearest issue so survive, shall take in equal shares…
75. S 33(2) of the Qld Act provided:
A general requirement or condition that such issue survive the testator or attain a specified age is not a contrary intention for the purpose of this section.
76. This section is in terms that I consider to be to the same effect as s 31(4) of the Wills Act.
77. McPherson JA (with whom Pincus JA and Helman J agreed) made obiter comments (at [6]) querying whether the expression “such of my sons as shall survive me” was neither a requirement nor a condition but rather an essential element in the description of the beneficiaries. His Honour referred to the Victorian authorities of Re King and Bassett v Hall as support for the view that it was not the intention of a section such as s 33(2) of the Qld Act to restrict a testator’s full testamentary freedom.
78. However, detailed consideration was expressly not given to the point (and no consideration was given to the different language between the two statutes) because of a finding of fact which meant that it did not arise for consideration in the case before the Queensland Court of Appeal. As such, it does not provide any real assistance for resolution of the present issue.
Public Trustee of Queensland v Jacob [2006] QSC 372; [2007] 2 Qd R 165
79. Although the Victorian Report had considered the wording of the statutory provision in Queensland to be preferable in order to avoid outcomes such as those in Re King, the perceived (or hoped for) outcome from the wording in the Qld Act does not appear to have been borne out in the decision of Public Trustee of Queensland v Jacob [2006] QSC 372; [2007] 2 Qd R 165 (Jacob).
80. Again, the relevant statute was s 32 of the Qld Act, the terms of which are set out at [74] and [75] above. The terms of the will under consideration were (Jacob at [2]):
I DEVISE AND BEQUEATH the rest and residue of my estate both real and personal UNTO such of them my children LESLIE RAY WALKER WILLIAM HUGH ARTHUR WALKER the said MARGARET ADA JOCOB LEONARD GOUGH WALKER the said ROBERT JOHN WALKER as shall survive me for a period of thirty (30) days and if more than one in equal shares.
81. White J noted (at [2]) that Margaret Jacob was the same person as the respondent Margaret Jacob in the proceeding before her Honour. White J surveyed a number of authorities, including those discussed above. Her Honour held at [48]:
The words “if more than one in equal shares” cannot be surplusage. Without s 33(2) the plain meaning is that the testatrix wished to benefit survivors. The mischief sought to be remedied by the inclusion of s 33(2) is also plain. But the meaning contended for, namely, that the words are descriptive of the size of the gift is not compelling. Anything other than equality of shares would need to be specified not the reverse. Whatever the commentators might wish and what might be the practice and without adhering to form over substance, when a testatrix says “to those of my children [who are named] as shall survive me for a period of thirty (30) days and if more than one in equal shares” she must intend to benefit by those words only her surviving children and not their issue. This conclusion is amply supported by the authorities to which I have referred.
82. This single instance decision in a different jurisdiction is not binding upon this Court, and I must respectfully disagree with this aspect of her Honour’s reasoning for three reasons.
83. First, as stated above at [63]-[64], I am of the view that at least in the Territory, the intention of the legislature having regard to the plain words of s 31(4) of the Wills Act, its context and its purpose, aided by reference to the explanatory memorandum, did bring about a relevant change to the legislation under consideration in Bassett v Hall, insofar as it applies to interpreting a bare statement in a will such as ‘to such of my children as shall survive me’.
84. Second, a will is not drafted as if it were a statute and is not to be construed as such. It is accepted that a court of construction does not ignore words within the document before it interprets all of the intentions of a testator: see Re Croxon; Croxon v Ferrers [1904] 1 Ch 252 at 258; Heasman v Pearse (1871) LR 7 Ch 275 at 283. However, in interpreting clauses or words in a will, a court of construction may ignore certain words to give effect to the testator’s true intentions: Towns v Wentworth (1858) 14 ER 794 at 800. There may be words that a court construes as surplusage or more relevantly, as not speaking to the intention of the testator.
85. Importantly however, for reasons already given at [41] above, I do not consider that the words “if more than one in equal shares” evince an intention to only benefit survivors to the exclusion of the living issue of a child. It does not follow from a construction favouring statutory substitution of the living issue that such words would be mere surplusage.
86. Where an intention is not expressed explicitly or plainly implied, the Court must not speculate on that intention: Fell v Fell (1922) 31 CLR 268 at 274. In my view, it is not to be plainly implied from the words ‘if more than one in equal shares’ that the Testatrix had a contrary intention that the living issue of one of her children are not to benefit in the event of Margaret’s death.
87. Third, having reviewed the authorities, for the reasons I have endeavoured to set out above and below, they do not amply support a construction of the words in question as evincing a contrary intention. In some cases, the legislation was different and did not contain a deeming provision of the kind found in the Queensland legislation. In other cases, there were additional words in the will from which it was it was an implied contrary intention was inferred.
Macaudo, Re the Will of [1993] 2 Qd R 269
88. For completeness, I note that the earlier decision of Macaudo, Re the Will of [1993] 2 Qd R 269 (Macaudo) applied s 32 of the Qld Act and the deeming provision to the words: “to such of them my sons…as shall be living at the date of my death”, finding (at 271) that such words did not indicate an intention contrary to the operation of the section.
89. The language of the will there under consideration by Derrington J also included the words “if more than one in equal shares as tenants in common”. His Honour considered (at 272) that there was a difference between the question of whether a gift should vest at all and the manner in which it is to be held when it does vest, and the difference may have influenced the testator.
90. A succinct description of the issues in Macaudo was provided by White J in Jacob at [36], who went on to note at [37] that Derrington J did not expressly advert to the phrase “if more than one in equal shares”. Her Honour inferred from that omission that Derrington J did not consider that these words evinced an intention contrary to the operation of s 32 of the Qld Act.
91. While the two aspects of the reasoning in Macaudo to which I have referred are broadly supportive of the conclusion I reached earlier, the arguments advanced before Derrington J were in other respects different to those advanced before this Court, due to the presence of other language in the will being considered by his Honour. The authority is also not binding on this Court and given that more recent authorities such as Jacob have taken a different course, it is unnecessary to go into further detail here.
The South Australian position
92. The relevant legislation in South Australia is s 36 of the Wills Act 1936 (SA). It provides that “unless a contrary intention appears by the will”, gifts to children or other issue who leave issue living at the testator’s death do not lapse. However, that section does not include an additional provision as to what does not constitute a ‘contrary intention’.
93. Although the parties referred the Court to Farrelly v Phillips [2017] SASCFC 111, that case concerned very different wording of a will and no consideration by the Full Court of the Supreme Court as to what might constitute a ‘contrary intention’ in the context of a deeming provision such as s 31(4) of the Wills Act. Accordingly, it does not assist in resolving the present issue of construction.
The NSW authorities
94. The current equivalent provision concerning the saving of dispositions where issue have died before the testator/testatrix is s 41 of the Succession Act 2006 (NSW) (NSW Act). The current terms of s 41 of the NSW Act do not contain a provision in terms similar to s 31(4) of the Wills Act.
95. Before the NSW Act was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2007 (NSW), s 41 of the NSW Act did contain a provision which was broadly equivalent to s 31 of the Wills Act. It was in the following relevant terms (emphasis added):
(1) This section applies if:
(a) A testator makes a disposition of property to a person,… who is the issue of the testator (the original beneficiary), and
…
(b) the original beneficiary does not survive the testator for 30 days;
(2) The issue of the original beneficiary who survive the testator for 30 days take the original beneficiary’s share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving;
(3) Subsection (2) does not apply if:
(c) the original beneficiary does not fulfil a condition imposed on the original beneficiary in the will, or
(d) a contrary intention appears in the will.
(4) A general requirement or condition that issue survive the testator or reach a specified age does not indicate a contrary intention for the purposes of subsection (30(b).
(5) A gift to persons as joint tenants on its own indicates a contrary intention for the purposes of subsection (3)(b).
96. The emphasised words have now been deleted and there is no authority that has had cause to consider what constituted a ‘contrary intention’ either under the current version of s 41 of the NSW Act or the earlier iteration set out above.
Estate of Elizabeth Jenkinson [2000] NSWSC 495
97. The only two cases in NSW which might have had some application to the present case both concern the predecessor to the NSW Act, being s 29 of the Wills Probate & Administration Act 1898 (NSW) (WPA Act). It provided:
Where any person being a child or other issue of the testator to whom any real or person estate is devised or bequeathed…dies in the lifetime of the testator, leaving issue, and any such issue of such person is living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will.
98. In Estate of Elizabeth Jenkinson [2000] NSWSC 495 (Jenkinson), Young J (as his Honour then was) observed at [9] that there were not many cases on the question as to what constituted a sufficient contrary intention. His Honour considered the ‘strict view’, also considered in Bassett and Kavanagh, and held (consistently with those two authorities) that a ‘contrary intention’ did not only arise where the testator states what is to happen to the property if a legatee predeceases him, leaving issue who survived the testator.
99. His Honour considered (at [14]) that it is ordinarily a sufficient contrary intention if the testator has in the will made a gift over in the event that a particular child does not survive the testator, which is consistent with a similar statement made in Hives v Machin, referred to above at [36].
100. Again however, the case may be of little assistance here, as the legislation under consideration did not contain any words equivalent to s 31(4) of the Wills Act, a provision which I have found to be critical on the facts of the case before me.
Longmore v Longmore [2018] NSWSC 90
101. The same applies to the later decision of Slattery J in Longmore v Longmore [2018] NSWSC 90 (Longmore), also considering the application of s 29 of the WPA Act. The terms of the will considered by his Honour in Longmore included language very similar to that of the present case:
IN THE EVENT of my said husband not so surviving me for the said period of thirty days I give the whole of me Estate equally between such of my children as survive me in equal shares as tenants in common.
102. Again, I consider the critical distinguishing feature to be the lack of a deeming provision as to a general condition not constituting a contrary intention in the NSW legislation. In finding that those words did evince a contrary intention, his Honour referred (at [49]) to what was described as a considerable weight of authority in following Jenkinson, Jacob, Bassett v Hall, and Kavanagh v Reardon. All of those authorities have been individually considered above and in my view, none dictate a different outcome from that which I have found in construing the language of this particular Will, for the reasons already given in respect of each case.
Conclusion
103. The parties raised the possibility of rectification under s 12B of the Wills Act. Given my finding as to the proper construction of the Will, it is unnecessary to consider that issue.
104. As to costs, as the issue was one of construction properly brought by the Executor, and as the first to third defendants have also been successful in their arguments (with the fourth and fifth defendants not playing an active role in the proceedings), it is appropriate that the costs be paid from the Estate.
105. The following orders are made:
(1) The Court declares that, upon the proper construction of the will dated 15 January 1982 and codicil dated 13 December 2001 of Kathleen May Constance Koppie, deceased, the persons entitled to the gift made by clause 5 of the said will are:
(a) The first, second and third defendants, each as to a one-twelfth share;
(b) Michael Vincent Koppie, as to a one-quarter share;
(c) The Fourth Defendant, as to a one-quarter share; and
(d) The Fifth Defendant, as to a one-quarter share;
as tenants in common.
(2) The costs of the parties to the proceedings are to be paid out of the estate on an indemnity basis.
| I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 02 May 2019 |
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