IN THE ESTATE OF OLIVE DEANE PEPPER (DECEASED)
[2025] SASC 103
•23 June 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF OLIVE DEANE PEPPER (DECEASED)
[2025] SASC 103
Judgment of the Honourable Justice Hughes
23 June 2025
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 - GENERALLY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - READING WILL AS A WHOLE
The executors of an estate, being three of the deceased’s children, applied for advice and directions from the Court with regard to her Will. This decision considered the first of the two questions posed to the Court. The Will was executed by the deceased in 1992. This was in ‘mirror’ form to that made by her husband. The three applicants are children of both the deceased and her husband.
The respondent is a daughter of the deceased who was adopted out at birth. She does not share the same father as the applicants. She contended that she had reconnected with her mother in the late 1980s, that their families had maintained a loving relationship for over thirty years, and that the deceased acknowledged the respondent as her daughter. This familial connection between the respondent and the deceased was unknown to the applicants until recently.
The deceased did not alter her will after 1992. The relevant clause of the will for this determination provided that the residue of the estate was to be “held for the benefit of such of my children …”. The question was whether, for the purposes of the will, the deceased intended to include the respondent within the definition of ‘my children’ for the purposes of the relevant clause.
Accordingly, the Court was required to determine:
1. Is the respondent, for the purposes of the Will, a child of the deceased, and accordingly entitled to share in the residue of the estate in accordance with clause 4(c) of the Will?
Held
1. The respondent, for the purposes of the Will, is not a child of the deceased, and accordingly not entitled to share in the residue of the estate in accordance with the relevant clause.
2. Considering the Will as a whole, and in particular the express reference to each of the Applicants by name, in the appointment of her executors, and the lack of any express reference to the respondent, did not evince a testamentary intention to benefit the respondent.
3. The fact that in the disposition clause the deceased did not refer to her children as her said children, as a textual indicator of reference to the named children, is insufficient to indicate an intention to benefit the respondent.
4. None of the evidence of inter vivos circumstances adduced by the parties as to how the deceased used the phrase “my children” in their presence contributed significantly to the proper interpretation of those words in the Will.
Administration and Probate Act 1919 (SA) s 69; Succession Act 2023, referred to.
Perrin v Morgan [1943] AC 399; Farrelly v Phillips (2017) 128 SASR 502, applied.
Gale v Gale 18 CLR 560; Pringle v Pringle [2010] WASC 206; v Buckeridge (as executor of the estate of Buckeridge) (No 3) [2023] WASC 42; Fell v Fell (1922) 31 CLR 268; Nichol v Chant (1909) 7 CLR 569; Re Heidenreich (1981) 27 SASR 455; Allgood v Blake (1873) LR 8 Ex 160; Doe d. Hiscock v Hiscock (1839) 115 ER 154, considered.
IN THE ESTATE OF OLIVE DEANE PEPPER (DECEASED)
[2025] SASC 103Testamentary Causes Jurisdiction
HUGHES J:
Olive Deane Pepper (Mrs Pepper) died on 27 December 2023, aged 100 years.
Mrs Pepper’s estate was comprised of a Refundable Accommodation Deposit, cash at bank and personal possessions of limited monetary value, totalling $879,275.96 at the date of her death.
Mrs Pepper’s husband, Ray Pepper (Mr Pepper), pre-deceased her.
Mrs Pepper left a will executed on 31 August 1992 (‘the Will’),[1] appointing three adult children as her executors: Debra Sue Donaldson (Debra), Alan Raymond Pepper (Alan) and Brian James Pepper (Brian) (together: ‘the Applicants’).
[1] Exhibit DSD-1 to the affidavit of Debra Sue Donaldson affirmed on 18 October 2024.
Relevantly, the Will:
·Provided that if Mr Pepper did not survive Mrs Pepper for 30 days, then the balance of her estate was to be held for the benefit of “such of my children and their issue as survive me by thirty days and attain the age of twenty-one years and if more than one in equal shares”;[2] and
·Provided that if any of Mrs Pepper’s children pre-deceased her but was survived by a child or children, then that child or children was to take or share in the entitlement that their parent would have received.[3]
[2] Ibid cl 4(c).
[3] Ibid cl 5.
The Applicants seek the Court’s advice and direction on several issues concerning the construction of Mrs Pepper’s will. This decision addresses the first of the questions posed: Is Janette Marie McBride, for the purposes of the Will, a child of Olive Deane Pepper, and accordingly entitled to share in the residue of the estate in accordance with clause 4(c) of the Will?[4]
[4] The wording of the first question was modified to these words by consent in the hearing on 16 May 2025.
The application was brought in November 2024 under s 69 of the Administration and Probate Act1919 and by virtue of the transitional provisions of the Succession Act2023, the proceedings are to be continued under the Administration and Probate Act 1919.
The Applicants were represented by Mr Belperio of counsel and the respondent was represented by Mr White KC of counsel.
Brief overview
Janette Marie McBride (Janette) is the respondent to these proceedings. The respondent contended that she is Mrs Pepper’s child for the purposes of clause 4(c) of the Will. The executors entertain doubt as to the proper construction of the Will but invited the Court to find that the Will should not be construed to include Janette as Mrs Pepper’s child for the purposes of the Will.
On the unchallenged affidavit evidence of the respondent, she is the biological child of Mrs Pepper and Mr Frederick Melville. She was born in 1954 during Mr and Mrs Pepper’s marriage. She was adopted by the Roberts family when she was about six months old. Janette reestablished a relationship with Mrs Pepper in the late 1980s. By then, Janette was a married woman with children of her own. Thereafter, she maintained a relationship with Mr and Mrs Pepper. This remained a secret from Mrs Pepper’s other children until, at least, 2017.
The evidence
The Applicants proceeded upon the affidavit of Debra Sue Donaldson affirmed on 18 October 2024.[5] Though of greater relevance to other questions posed by the Applicants about the construction of the use of the term “issue”, it is convenient to set out the Applicants’ family tree (excluding Janette) insofar as it is relevant to the Will.
[5] Affidavit of Debra Sue Donaldson affirmed on 18 October 2024.
Debra has two children: Timothy Donaldson born 11 November 1983 and Christopher Donaldson born 27 November 1986. Debra also has two step-children.
Her brother Alan has two step-children.
Her brother Brian has two children: Guy Pepper born on 25 May 1984 and Kate Pepper born on 29 March 1986.
Her nephew Guy Pepper has two children: Avril Pepper born on 4 September 2015 and Zander Pepper born on 25 May 2018. Her son Christopher Donaldson has three children: Penelope Donaldson born 18 April 2020, Isla Donaldson born on 30 November 2021, and Thomas Donaldson born 29 August 2024 (after Mrs Pepper’s death).
I have also had regard to the respondent’s affidavits of:
·Janette Marie McBride affirmed on 21 March 2025 and 28 April 2025;
·Deanna Pamela Smith affirmed on 28 April 2025; and
·Peter Grant McBride affirmed on 28 April 2025.
I accept the content of the affidavit evidence except where otherwise indicated.
Background of the relationship between the respondent and Mrs Pepper
The circumstances of the respondent’s birth
The respondent was born on 19 January 1954, and given the name Suzanne Pepper. Her birth certificate discloses that her mother was Olive Deane Pepper. No father is disclosed on the birth certificate. She was adopted by William Allen Roberts and Brenda Merle Roberts on 28 July 1954.
The respondent found Mrs Pepper
The respondent searched for, identified, and initiated contact with Mrs Pepper in the “late 1980s”, first by telephone and then in person. She learned from Mrs Pepper that Mr Pepper was not her father, and that Mr and Mrs Pepper already had two sons at the time of her birth (Brian and Alan). She learned from Mrs Pepper that friends and family had been told that she (Janette) died at birth. She also learned from Mrs Pepper that Mr and Mrs Pepper had fostered two daughters, and then had their own daughter, Debra.
In her affidavit affirmed on 28 April 2025, Janette’s daughter, Deanna Smith, stated that she learned when she was a child in the late 1980s that her mother was adopted at birth, and that her mother had since reconnected with her birth mother.
The respondent’s father
Mrs Pepper did not tell Janette the identity of her birth father, but she discovered it in 2014. Her birth father was the Peppers’ neighbour, Frederick Melville. Janette also discovered that Frederick Melville had died in 2007. She says that Mrs Pepper then confirmed that information for her.
Secrecy
Soon after her initial meeting with Mrs Pepper, the respondent was introduced to Mr Pepper. However, Mrs Pepper did not wish to disclose to Debra, Brian or Alan or any other person, the fact that Janette was her daughter. Thereafter, the relationship continued but it did not extend to Janette meeting the Peppers’ other children.
In his affidavit of 28 April 2025, the respondent’s husband, Peter McBride, confirmed his wife’s evidence and said that if they went to visit Mrs Pepper and there was a car in the driveway that they did not recognise, they would not go in.
Janette was invited to Mr and Mrs Pepper’s 60th wedding anniversary but did not feel that she could attend because of the need to maintain secrecy.
Extent of contact between the respondent and Mrs Pepper between the late 1980s, until Mrs Pepper’s death in 2023
Despite the secrecy, the respondent said that she visited Mr and Mrs Pepper’s home “many times over many years”.[6] She said that Mr and Mrs Pepper visited Janette, her husband and their three children for meals, and she went to various events with Mrs Pepper, though their relationship was never disclosed and occasionally it was deliberately misrepresented to explain their friendship. Janette said that she and her husband would stay with Mr and Mrs Pepper at their holiday shack, and her affidavit annexes photographs of various occasions at which Janette and her family are with Mr and Mrs Pepper. Janette described Mr and Mrs Pepper as being loving towards Janette’s three children, and that she received Christmas and birthday cards from Mr and Mrs Pepper and they “often” exchanged phone calls.
[6] Affidavit of Janette Marie McBride affirmed on 21 March 2025 at [16].
Janette visited Mrs Pepper on an occasion on which she was unwell in hospital, with secrecy facilitated by Mr Pepper.
Janette’s daughter, Deanna Smith, deposed that as a child, she met with Mr and Mrs Pepper, and they came to treat her and her sisters as “additional grandchildren”.[7] She says that she visited their shack, and that the Peppers visited their house “over the years”.[8] She came to learn much about the Peppers’ other children and their lives. Deanna deposed that she knew that Mrs Pepper wished to keep her relationship with the McBride family a secret. She stated that she understood that Mrs Pepper grieved over the decision to adopt Janette out, but that it had been necessary to “save her marriage” and to “prevent any hurt” to Frederick Melville’s wife, who was Mrs Pepper’s friend.[9]
[7] Affidavit of Deanna Pamela Smith affirmed on 28 April 2025 at [7].
[8] Ibid [9].
[9] Ibid [11].
Deanna deposed that she saw “real love and affection” between her mother and the Peppers.[10]
[10] Ibid [14].
Janette’s husband, Peter McBride, described a “long, friendly and loving relationship”,[11] between he and his wife and the Peppers.
[11] Affidavit of Peter Grant McBride affirmed on 28 April 2025 at [7].
Janette stated that she attended Mr Pepper’s funeral in 2010, but did not disclose her relationship to Debra, Brian or Alan. Deanna’s evidence was that she was disturbed to learn that her parents were introduced to Debra, Brian and Alan as “very good family friends” of the Peppers.[12]
[12] Affidavit of Deanna Pamela Smith affirmed on 28 April 2025 at [15].
Janette’s evidence is that she continued to visit Mrs Pepper at her home when Mrs Pepper lived there alone as a widow.
I accept the evidence of Janette, Deanna Smith and Peter McBride that there was a mutually affectionate relationship between Janette and Mrs Pepper (and indeed between Mr and Mrs Pepper and Janette’s family) for a period of approximately thirty years that included visits, meals, holidays, cards, the sharing of personal information, and marking life events together.
Debra is told of the relationship
Deanna Smith’s evidence was that in 2016, as an adult woman with a husband and two daughters, she learned that she had stage three breast cancer and that she was advised by doctors to find out whether it was associated with a hereditary risk. Without telling the respondent, she contacted Debra by telephone, and in the course of that telephone call, informed Debra that Janette was Debra’s half-sister by virtue of them both being Mrs Pepper’s daughters.
Deanna’s evidence is that Debra was unsure of the veracity of the information, and Deanna provided the address of the Peppers’ holiday shack as evidence of her long-standing connection with the Peppers.
Deanna concluded that Debra subsequently in some way raised the fact of the conversation between them with Mrs Pepper, because Mrs Pepper asked Janette how Debra and Janette knew one another.
The respondent’s evidence was that she learned from Deanna about the telephone call and was disappointed that it had occurred because she knew that Mrs Pepper had wished the relationship to be kept secret. She learned from Deanna that Debra’s response was not receptive to the information, but that Debra had offered to call Deanna back after a trip overseas. However, Deanna did not receive any further contact from Debra.
However, when Mrs Pepper went into the residential care facility, Janette herself contacted Debra via the Messenger app and asked to be kept updated about Mrs Pepper.[13]
[13] Ibid [24].
The respondent stated that she was asked by Mrs Pepper to attend her 100th birthday celebration, being organised by Debra, but she did not attend because an invitation from Debra was not forthcoming. Nevertheless, Debra advised her, by message, of Mrs Pepper’s death. The respondent’s evidence was that she did not consider that she had been invited to the funeral, and did not attend.
On the subject of contact between Janette, Deanna Smith and Debra, the affidavit evidence of Janette and Deanna Smith regarding this is not confirmed by Debra. Debra’s affidavit stated, “since the date of death of my mother, it has become known to me that there is a further person who is purporting to be a child of my mother, that being Janette Marie McBride”.[14] It is not entirely clear whether Debra is stating that she first became aware of Janette’s assertion that she was Mrs Pepper’s daughter, after Mrs Pepper’s death, or that she became aware after her mother’s death that Janette was asserting that she was Mrs Pepper’s child for the purposes of the Will. I find, however, on the basis of the evidence of Janette and Deanna Smith, which I accept, that Debra was aware of the possibility that her mother had had another daughter, before Mrs Pepper died. There is no evidence as to what Brian or Alan knew. In the end, nothing turns on this.
Question 1 – does the Will convey an intention on the part of Mrs Pepper to benefit Janette?
[14] Affidavit of Debra Sue Donaldson affirmed on 18 October 2024 at [11].
The parties’ contentions
The Applicants’ contention is that insofar as there is ambiguity as to the use of the words “my children” in clause 4(c), the Court should interpret the word by reference to the words of the Will and in particular the express reference to the three named children, Debra, Alan and Brian. They submit that this is the manifest intention conveyed by the Will as a whole. By contrast, Janette is not referred to in the Will expressly.
Insofar as it is necessary, they submit evidence, through the affidavit of Debra, as to how Mrs Pepper used the phrase “my children” from time to time. Mr Belperio, on behalf of the Applicants, submitted that the evidence demonstrates that when Mrs Pepper used the term “my children”, it was a reference to the three children that she named as her executors.
It was submitted that “my children” in clause 4(c) referred to people named in clause 2 whereby Mrs Pepper appointed “my children Alan Raymond Pepper, Brian James Peper and Debra Sue Donaldson to be the executors”.[15]
[15] Exhibit DSD-1 to the affidavit of Debra Sue Donaldson affirmed on 18 October 2024.
The Applicants also submitted that the Court may and should take into account the fact that when Mrs Pepper made the Will in 1992, it was in “mirror” form to that made by her husband. The Applicants observed that it cannot be suggested that the reference to “my children” in Mr Pepper’s will is a reference that can be taken to include Janette. She was not his child in the legal or biological sense, and he did not raise her. The Applicants submitted that the mirror wills can be used to inform the construction of Mrs Pepper’s intention in her use of the term “my children”.
The Applicants maintained that although Janette refers to a continuing relationship with Mrs Pepper over thirty years, Mrs Pepper did not choose to alter the Will, even after Mr Pepper died.
The Applicants contended that although the state of the law at the time the will was made is not determinative of Mrs Pepper’s use of the term, it is consistent with their view of Mrs Pepper’s testamentary intent that, at the time the will was made in 1992, a child of adoptive parents was the legal child of those parents, and ceased to be the child, in law, of the biological parents.
Further, the Applicants maintained that Mrs Pepper expressed on several occasions a testamentary intention that her estate would be shared between the three children, being Debra, Alan and Brian, and her four grand-children as were born before her death.
For these reasons, the Applicants submitted that the proper construction of the Will is that it devises the estate to the three children who are also named as beneficiaries, but makes no provision for Janette.
Mr White KC for the respondent submitted that the clear meaning of “my children” is to the children that Mrs Pepper had birthed, being Brian, Alan, Janette and Debra. He submitted that there was no doubt that Janette was born to Mrs Pepper, and that Mrs Pepper was aware that Janette was alive and well when the Will was executed, and Mrs Pepper and Janette had a close and loving relationship with one another arising from their familial connection. He submitted that there was no need to go beyond the text of the Will to conclude that, when the phrase “my children” was used, if was a reference at that time to Mrs Pepper’s four children with each of whom she was conducting a mother-to-adult child relationship.
Mr White KC submitted that if there were doubts as to the manner in which Mrs Pepper viewed Janette, there were many elements of the relationship that signified a mother-daughter relationship including the marking of life events together, celebrating milestones and successes, sharing meals and holidays, and expressing affection in an enduring and unpunctuated fashion.
Whilst he did not consider it strictly necessary to go beyond the words of the Will, Mr White KC referred the Court to various statements that Janette and her husband say that they heard Mrs Pepper make during her lifetime, that support the conclusion that Mrs Pepper considered Janette as “her daughter” for all purposes, and considered Janette’s children as “her grand-children”. However, given Mrs Pepper’s choice to maintain the secrecy of her relationship with Janette, Mr White KC argued that little, if anything, can be inferred from how Mrs Pepper used the term “my children” in each of the family settings. The two ways in which this occurred “cancelled each other out”.
Mr White KC submitted that there is no presumption that Mrs Pepper knew what the effect of adoption was upon inheritance when she executed her Will. I observe that although there is no evidence before me in this regard, it seems likely that she did not disclose Janette’s existence to her solicitors.
The respondent’s approach is that Mrs Pepper’s Will speaks for itself and the focus of the Court’s exercise must not stray from the words employed in the Will itself. The effect of that is if Mr Pepper had predeceased his wife, his estate would have gone to his wife and then, after her death, to Mrs Pepper’s children including Janette. He does not consider that to be a conclusion that cannot be reached even if the Court considers it unlikely that this is what Mr Pepper would have wanted if he had turned his mind to it.
In summary, the respondent contends for a construction that is based almost solely on the words of the Will and without placing significance on extrinsic evidence, which is in any event, inconclusive as to Mrs Pepper’s testamentary wishes. The Applicants’ case is one that relies upon both the Will when read as a whole, supported by evidence of occasions upon which Mrs Pepper spoke about her children in the context of testamentary intentions.
Consideration
For the reasons that follow, the Applicants are advised that on a proper construction of the Will, the respondent is not a child of Mrs Pepper for the purposes of the Will including clause 4(c).
The parties agree that there is no provision within the Administration and Probate Act 1919, such as a relevant definition assigned to the word “child” or “children” to assist the interpretation of the Will.
The words of the Will itself are paramount
The Court’s task is to advise the Applicants as executors of Mrs Pepper’s Will as to its proper construction as derived from the language of the Will. In Perrin v Morgan,[16] Lord Romer said:[17]
[16] Perrin v Morgan [1943] AC 399. Cited with approval in Farrelly v Phillips (2017) 128 SASR 502, [23]-[24] (‘Farrelly v Phillips’).
[17] Ibid 420.
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.
In the same proceedings, Lord Simon said:[18]
[18] Ibid 406.
… the 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.
With those principles in mind, it is convenient to turn to the Will itself.[19]
Clauses 2, 3 and 4 of the Will provide as follows:
2 __ I APPOINT my husband RAYMOND FREDERICK PEPPER to be the sole executor and trustee of this my will PROVIDED THAT should my said husband predecease me or otherwise be unable or unwilling to so act the I APPOINT my children ALAN RAYMOND PEPPER BRIAN JAMES PEPPER and DEBRA SUE DONALDSON to be executors and trustees of this my will (the said RAYMOND FREDERICK PEPPER ALAN RAYMOND PEPPER and DEBRA SUE DONALDSON or other the trustee or trustees for the time being of this my will being hereinafter referred to as ‘my trustees’).
3 _ I GIVE all my jewellery and other items of personal adornment unto my said daughter DEBORAH SUE DONALDSON absolutely.
4 ___ I GIVE DEVISE AND BEQUEATH the rest residue and remainder of my estate both real and personal wheresoever situate unto my trustees upon the following trusts:
(a) first to pay thereout all my just debts funeral and testamentary expenses and all duties in respect of my estate without subsequent apportionment thereof and;
(b) SHOULD my said husband be living thirty (30) days after the date of my death then the balance shall be held for the benefit of my said husband absolutely and;
(c) SHOULD my said husband not be living thirty (30) days after the date of my death then the balance shall be held for the benefit of such of my children and their issue as survive me by thirty (30) days and attain the age of twenty one (21) years and if more than on in equal shares.
[19] Exhibit DSD-1 to the affidavit of Debra Sue Donaldson affirmed on 18 October 2024.
Although the Court has been asked to construe clause 4(c), the whole of the Will may be used to reach an understanding as to the testamentary intention of one part.[20] However, any implication must be “plain”.[21]
[20] Gale v Gale (1914) 18 CLR 560 at 563, 567; Pringle v Pringle [2010] WASC 206, [25] approved in Koh v Buckeridge (as executor of the estate of Buckeridge) (No 3) [2023] WASC 42, [50].
[21] Fell v Fell (1922) 31 CLR 268, 274 (Isaacs J).
The respondent drew the Court’s attention to the words in clause 2 “my children Alan Raymond Pepper Brian James Pepper and Debra Sue Donaldson” and the use of the words later in the same sentence “(the said Alan Raymond Pepper Brian James Pepper and Debra Sue Donaldson)”. In clause 3, Mrs Pepper gives various specific items to “said daughter Deborah Sue Donaldson”.[22] However, in clause 4(b) and (c), whilst Mrs Pepper refers to her “said husband”, in 4(c) she refers to “such of my children and their issue as survive me”. Clause 5 refers to “any child of mine”. The respondent submitted that this was a textual indication of their mother’s choice not to qualify the words “my children” in clause 4(c) with the word “said”.
[22] There being a typographical error whereby Debra is spelt Deborah.
I do not consider that the omission of “said” between “my” and “children” in clause 4(c), even without consideration of the broader circumstances as known to Mrs Pepper, is demonstrative of a testamentary choice. It is too oblique, when considering the Will as a whole, to be considered sufficient to convey an intention to benefit Janette. To construe the Will on the basis of an implication from “a supposed rule assumed to be prima facie applicable”,[23] rather than from the evident and usual meaning the words convey, would likely lead to an erroneous conclusion, as observed by Griffith CJ in Nicol v Chant.[24]
[23] Nicol v Chant (1909) 7 CLR 569, 577 (Griffith CJ).
[24] Ibid.
It is of greater significance that Janette is not expressly referred to in the Will at all, when the other three children are named. In its plain terms, no reader would discern an intention by Mrs Pepper to benefit a child other than the three named children. This is to be contrasted with the reference to her children’s issue, who are referred to as a class.
The words of the Will themselves create little ambiguity. However, the circumstances of Mrs Pepper’s knowledge of her children at the time of the making of the Will open up the possibility that Mrs Pepper’s use of the words “my children” may have been intended to convey something different, and that must be explored.
What was the legal status of Janette as a ‘child’ of Mrs Pepper, and of Janette’s inheritance rights at the time of her adoption and the time of the Will?
Firstly, however, the question of the respondent’s legal status might be thought to be a relevant matter.
It is uncontroversial that Janette became the legal child of her adoptive parents from the date of adoption, and ceased to be Mrs Pepper’s child, in law, from that same date. The learned author Dal Pont says, in relation to the effect on the child’s rights of inheritance:[25]
The adoption legislation in each jurisdiction prescribes the basic legal position that an adopted child becomes a child of the adoptive parents and ceases to be a child of his or her natural parents. Construction of the will takes effect accordingly, so that an adopted child will be included in the description of a child in a will of the adoptive parents. Conversely, unless a contrary intention is shown, such children cease to have any rights to take under the will of their natural parents, as they are legally no long children of those parents.
[25] G E Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2020) [8.54].
Tracing the history of the law of adoption and its treatment of inheritance rights in South Australia demonstrates that the treatment changed over the relevant period between Janette’s birth in 1954 and the execution of the Will in 1992.[26]
[26] In 1954, the Adoption of Children Act 1925 relevantly provided in s 12 that an adoption order had the effect of terminating “all the rights and legal responsibilities and incidents existing between the child and his or her natural parents, except the right of the child to take property as heir or next of kin of his natural parents directly or by right of representation”. By 1992, when Mrs Pepper made her Will, the s 9(3) of the Adoption Act 1988 provided relevantly that an adopted child was in the eyes of the law a child of the adoptive parents subject to regaining a right to inherit from a deceased parent irrespective of having been adopted by the other parent’s subsequent qualifying partner.
However, I have determined that this exercise does not contribute to the task of ascertaining Mrs Pepper’s testamentary intentions. The exercise is complex and cannot be assumed to have been widely known. More importantly, there is no evidence that Mrs Pepper was aware of the effect of adoption on inheritance rights, and it cannot be assumed that she had such knowledge.
The circumstances bearing on the construction of the Will
As Wells J said in Re Heidenreich,[27] the use of evidence of circumstances may be necessary to quell a dispute as to contested constructions of a will.[28] His Honour referred to the passage by Blackburn J in Allgood v Blake,[29] which refers to the following statements in Doe d. Hiscock v Hiscock:[30]
… The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his words. But as his words refer to facts and circumstances respecting his property and his family, and others whom he names and describes in his will, it is evident that the meaning an application of his words cannot be ascertained without evidence of all those facts and circumstances …
[27] (1981) 27 SASR 455.
[28] Ibid 466.
[29] (1873) LR 8 Ex 160.
[30] (1839)115 ER 154 at 156.
Mrs Pepper made her will in 1992. I accept the respondent’s evidence that, by this time, she and Mrs Pepper had re-established their relationship after many years of separation. The evidence establishes that Mrs Pepper had introduced Janette to Mr Pepper, and Janette had introduced Mr and Mrs Pepper to her husband, Peter McBride, and their three daughters. Though necessarily not as matured as it became, the relationship between Mrs Pepper and Janette was already, in 1992, becoming one of deep, familial affection.[31]
[31] Affidavit of Janette Marie McBride affirmed on 28 April 2025 at [7].
It must be considered, therefore, that when Mrs Pepper used the term “my children” in her will, she was involved in parent-to-adult child relationships with four children.
The other relevant circumstance is that of Mrs Pepper’s strong wish that her children Debra, Alan and Brian not be told about the fact and circumstances of Janette’s birth. This provides a possible reason for Janette being alluded to without being named in the Will.
However, a further circumstance is that against that background, Mr and Mrs Pepper executed mirror wills in which no express reference was made to Janette. The wills were prepared by a solicitor. There can be little doubt that if she made enquiries as to whether the wording of the Will would confer a benefit on Janette, Mrs Pepper would have been advised that, at its highest, an ambiguity might be created by the use of the words “my children”. I do not consider that she believed that the Will conveyed an intention to benefit Janette. Such a belief is not a reasonable inference from the words of the Will understood as a lay-person would read them, or as a lawyer would advise on them.
Mirror wills
The Applicants referred to Mrs Pepper’s decision to create a Will that mirrored her husband’s as a circumstance that suggested that Mrs Pepper did not intend, by the words “my children”, to include the respondent. Given that each gave their estate to the other in the event of pre-deceasing their spouse, and each thereafter distributed their respective estates to “my children”, it was argued that “my children” must refer to the children of them both.
Mrs Pepper’s choice to make a will that mirrored her husband supports, but is not determinative, of a conclusion that Mrs Pepper did not intend that Janette would inherit under the Will. If accepting the respondent’s construction of the Will, the effect would be that if Mrs Pepper pre-deceased her husband, her estate would pass to him and then to Debra, Alan and Brian. However, if Mrs Pepper survived her husband, the estate was to be inherited by the three children of them both and also Janette. The Applicants submitted that it was unlikely that Mrs Pepper would have had an intention to benefit Janette that was dependent upon her surviving her husband.
I consider it at least as significant that Mrs Pepper did not change her Will after Mr Pepper died. Even if the Court disregards the evidence in paragraph [21] of Debra Sue Donaldson’s affidavit affirmed on 18 October 2024 as to the reason for that choice,[32] the circumstance speaks for itself.
[32] Affidavit of Debra Sue Donaldson affirmed on 18 October 2024 at [21].
When we take up the testator’s armchair
Mr White KC for the respondent drew upon the “armchair principle” which was described by Stanley J in Farrelly v Phillips.[33] In that case, the testatrix was one of two children. Her sister and parents had died before she made her last will. She had no nieces or nephews but had a large extended family. At the time the testatrix made her last will, her closest relatives were first cousins. Some of those cousins were alive, while others had died but had children. Before the trial judge, there was limited evidence of the testatrix’s state of knowledge of her extended family at the time she made her will, including whether she was aware of how many first cousins she had, their ages, whether they were still alive and, of those who had died, whether they had children. The question was whether the children of the cousins of the testatrix who had predeceased her, were entitled under the will. The primary judge found they were not.
[33] (n 16).
On appeal, Stanley J (with whom Kourakis CJ and Nicholson J relevantly concurred) said:[34]
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.
(Footnotes omitted)
[34] Ibid [27]-[28].
After considering authorities that employed analogy with the interpretation of contracts, in particular in relation to drafts as a source of information regarding the intent of the primary document, Stanley J said:[35]
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, - co_footnote_1174802~FULLTEXT~FTNT.!19 not what she meant to say, but what she actually said.
[35] Ibid [32].
I do not think it possible to conclude that evidence of affection between Mrs Pepper and the respondent establishes that, having referred to three named children in the Will, Mrs Pepper nevertheless intended that it would be understood that “my children” included Janette. The plainness of the wording of the Will is not open to an alternative construction by virtue of the circumstance of her renewed relationship with the respondent.
Inter vivos expressions of testamentary intent
The Applicants submitted that the statements made in Debra Sue Donaldson’s affidavit are relevant and admissible as a circumstance that assists the Court to discern to Mrs Pepper’s intent in her use of the term “my children”. The Applicants submitted that these assertions are not made to supplant the words of the Will but to assist the Court to understand what Mrs Pepper meant when she used the words “my children”.
The respondent contended that the statements made by Debra at paragraphs 11, 15, 18 to 23, and 27 to 48 in her affidavit affirmed on 18 October 2024 as to her understanding of Mrs Pepper’s testamentary intentions, are neither relevant nor admissible.
I broadly accept the respondent’s submission in respect of paragraphs 19 to 21, 23, 27 to 30 inclusive and 37 to 38. Paragraph 32 is inadmissible in that it is conclusory of the question the Court has been asked to determine. I will admit the whole of the affidavit because some of the statements have a potentially dual effect: both to describe Mrs Pepper’s testamentary intentions and to bear upon the construction of the term “my children”. To the extent that a statement does both, or purports to do both, I will consider it only for the construction purpose.
The Applicants’ evidence is that, after the execution of Mrs Pepper’s Will dated 31 August 1992, Debra and Mrs Pepper had “many conversations as to what would happen to her estate upon her death”.[36] It is the Applicants’ evidence that Mrs Pepper expressed the intention that the estate would be divided into seven parts shared between Alan, Brian and herself, and the four grand-children Kate, Guy, Timothy and Christopher.[37] This intention was “casually spoken of in conversation… with some frequency over the years.”[38] I do not find that this evidence adds to the store of information as to what Mrs Pepper intended in the Will by the use of the words “my children”. It is only useful for the inadmissible purpose of providing a separate source of information as to Mrs Pepper’s intention. I disregard it for that purpose.
[36] Affidavit of Debra Sue Donaldson affirmed on 18 October 2024 at [19].
[37] Ibid.
[38] Ibid.
The Applicants’ evidence was that Mrs Pepper told Debra that as she (Debra), Brian and Alan were financially secure, Mrs Pepper wanted the grandchildren to receive a share to assist them establish themselves.[39] I find this statement to be irrelevant to the question of determining what Mrs Pepper intended by “my children” in the Will.[40] I accept that Debra sought to make the point that Mrs Pepper made it clear that she did not intend to include her step-grandchildren in her Will. Debra said she understood that this reflected her mother’s intention to benefit only those whose ancestry derived from Mr and Mrs Pepper. I do not consider that this evidence is sufficiently clear or direct to bear upon Mrs Pepper’s use of the term “my children” in her Will.
[39] Ibid [20].
[40] That statement may need to be reconsidered in relation to subsequent questions to be determined by the Court.
Evidence of statements made by Mrs Pepper were also adduced by the respondent, but did not include statements of testamentary intent. They are properly regarded as “circumstances”. Peter McBride stated that “a year or two” after his wife reconnected with Mrs Pepper, Mrs Pepper said to him that “she expected that when she was gone, [Janette] may want to reach out to her siblings and sort everything out”.[41] Whilst this cannot be characterised as a statement of testamentary intent, it is also a statement that allows of such a variety of possible meanings that I do not consider that it adds anything to the construction task.
[41] Affidavit of Peter Grant McBride affirmed on 28 April 2025 at [9].
Peter McBride also stated that he recalled two occasions in his presence when Mrs Pepper stated that she had “four children”.[42] He recalled her saying, “like mother, like daughter” when their similarities were apparent to her.[43] That Mrs Pepper recognised Ms McBride as her daughter, with all that may entail, is not to the point. The task for the Court is construction of the Will, not construction of the manner in which Mrs Pepper viewed or treated Janette.
[42] Ibid [10].
[43] Ibid [12].
The respondent stated that her husband, Peter McBride, told her that on an occasion that Peter and Mr Pepper were out fishing, Mr Pepper told Peter that he “regretted giving [Janette] up now that he knew [her]” and that he was “proud to have [Janette] as his daughter”.[44] The respondent’s evidence was that after Mrs Pepper had moved into the residential care home, she told Janette that she had four children.[45]
[44] Affidavit of Janette Marie McBride affirmed on 21 March 2025 at [19].
[45] Ibid [31].
These statements are, similarly, ones that contribute to establishing that the respondent had assumed an important and valued role in the lives of Mr and Mrs Pepper. They do not contribute to an understanding of the words “my children” in her Will.
Conclusion
For the reasons given above, the question posed by the Applicants is answered as follows.
Question: Is Janette Marie McBride, for the purposes of the Will, a child of Olive Deane Pepper, and accordingly entitled to share in the residue of the estate in accordance with clause 4(c) of the Will?[46]
[46] The wording of the first question was modified to these words by consent in the hearing on 16 May 2025.
Answer: No.
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