In the Estate of Williams - [2020] NTSC 26

CITATION:In the Estate of Williams [2020] NTSC 26
PARTIES:IN THE ESTATE OF THE LATE KEITH DUNCAN WILLIAMS

ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2020-00015-SC
DELIVERED:  22 May 2020
JUDGMENT OF:  Hiley J

CATCHWORDS:
SUCCESSION – Construction of will – Intention of testator – Use of extrinsic evidence in limited circumstances – No ambiguity or other reason to resort to extrinsic evidence
Administration and Probate Act1969 (NT), s 17(2)(c)
Family Provision Act 1970 (NT)
Wills Act 2000 (NT), s 31, s 41
G E Dal Pont and K F Mackie, Law of Succession (LexisNexis, 2^nd Ed, 2007)
Allgood v Blake (1873) LR Ex 160, Charter v Charter (1874) LR HL 364, Fell v Fell (1922) 31 CLR 268, Mortensen v State of New South Wales Unreported SC NSW 12 December 1991 40544/90, National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207, Perrin v Morgan [1943] AC 399, Re James’ Will Trusts [1962] Ch 226, Re Melbourne [2016] VSC 514, Bird v Luckie (1850) 68 ER 375, referred to
Judgment category classification:    B
Judgment ID Number:  Hil2005
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
In the Estate of Williams [2020] NTSC 26

No. 2020-00015-SC
BETWEEN:

IN THE ESTATE OF THE LATE KEITH DUNCAN WILLIAMS

ON REFERENCE FROM THE REGISTRAR OF THE SUPREME COURT OF THE NORTHERN TERRITORY

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 22 May 2020)
Introduction

On 11 March 2020 the Registrar of Probate referred this matter to me under s 17(2)(c) of the Administration and Probate Act1969 (the Reference).
The deceased made a will on 2 September 2014 (the Will) using a generic will kit.
He appointed as his Executors Maxine Lockman (his niece) and Amanda Williams (his daughter) (the Executors). The Will also stated that if the Executors predeceased him or were unwilling to act or became incapable of acting as his executors his daughter Alanna Maree Luvisi would be his executrix (alternative Executor). The Executors applied for probate of the Will on 2 January 2020.
Clause 4 of the pro forma will is headed “Special Gifts” and leaves space for the testator to “make the following special gifts (legacies, bequests and devises)”. In that part, the testator wrote: “To be decided by the executors of my estate”.
Clause 5 of the pro forma relates to the residue of the estate. The testator wrote: “The executors of my estate.”
In the Reference, the Registrar said that it is unclear whether the testator intended to exclude the Alternative Executor from receiving a benefit from the Estate, and also whether the testator understood that the Alternative Executor may not receive a benefit if the Executors did not renounce their appointments.
In my opinion a literal construction of the Will is that:
(a)clause 4 gives the Executors absolute discretion as to whether any special gifts are made and to whom,
(b)clause 5 leaves the residue of the Estate to the Executors only.
This would mean that the Alternative Executor could be excluded from any benefit, irrespective of the testator’s intention. Unless there is some scope for a court to construe a will differently, the only remedy for a person in the situation of the Alternative Executor, or any other person who might feel entitled to a share of the testator’s estate, would be to make an application under the Family Provision Act 1970.
In what circumstances can a court override the literal meaning of a will?
A court is generally required to give effect to the testator’s intentions as expressed in his or her will. As a general rule a court is not permitted to remake a will. The question is not what the testator meant to do when making the will, but what the written words used mean in their context. The testator’s intention is gathered from the language of the will.[1] When considering the language of a will, the usual or ordinary grammatical meaning of the words and phrases used are given primacy even if the result is harsh, eccentric or capricious.[2] The meanings of words and phrases used in a will are sometimes ascertained by resort to established common law principles and statutory provisions.[3]
In some circumstances, extrinsic evidence may be used to assist when determining the testator’s intention. Section 31 of the Wills Act 2000 (NT) provides:
31 Use of extrinsic evidence to clarify wills
(1)In proceedings to construe a will, evidence is admissible to determine the meaning of the language used in the will to the extent that the language used renders the will or a part of the will:
(a)meaningless;
(b)ambiguous on the face of the will; or
(c)ambiguous in the light of the surrounding circumstances.
(2)Except for the purposes of establishing the surrounding circumstances referred to in subsection (1)(c), evidence admissible under subsection (1) includes evidence of the testator's intention.
At common law, a court may be entitled to “sit in the testator’s armchair” in order to understand the language employed by the testator.[4] The “armchair principle” has been expressed 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 … [T]he meaning of words varies according to the circumstances of and concerning which they are used.[5]
An obvious example would be where the testator has identified a beneficiary by use of a nickname. Evidence could be called to prove who the testator was actually referring to.[6]
However, the ability of a court to refer to extrinsic evidence does not mean that a court is “entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said”.[7] Even where the will does not truly reflect the testator’s intention (as espoused from extrinsic evidence), courts are hesitant to alter clear and unambiguous words used in the will.[8]
For example, in Mortensen v State of New South Wales,[9] the testatrix was an elderly woman with no family. She left her estate to be divided equally amongst the three adult children of her neighbours. However, unbeknown to the testatrix, one of the beneficiaries had committed suicide earlier. Extrinsic evidence showed that the testatrix did not want any portion of her estate to go to the state, but her will did not contain any provision for accrual or substitution. Accordingly, the estate fell into partial intestacy and one third passed to the Crown, bona vacantia.
Similarly, in National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children,[10] the testator left a legacy ‘to the National Society for the Prevention of Cruelty to Children’. However, the testator had no known affiliation with that society, and in fact, extrinsic evidence showed that he had an awareness of Scottish National Society for the Prevention of Cruelty to Children. Their Lordships held that whilst extrinsic evidence was admissible, it was insufficient to displace the primary meaning of the words in the will.
There is nothing in the Will, or any other feature, that suggests any ambiguity or other circumstance that attracts the operation of s 31 of the Wills Act or of the “armchair principle”. The testator’s intention is clearly stated in clauses 4 and 5 of the Will.
With respect to the queries raised by the Registrar in the Reference, I do not think that either of them needs to be answered when construing the language of the Will, in particular clauses 4 and 5. There is no suggestion that the testator intended to exclude the Alternative Executor, or anyone else for that matter, from receiving any special gift following a decision by the Executors. Nor is there anything in the Will that derogates from the general power of appointment contained in clause 4.[11]

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[1] See for example Perrin v Morgan [1943] AC 399 at 420.

[2]Re James’ Will Trusts [1962] Ch 226 at 225 (Buckley J); Bird v Luckie (1850) 8 Hare 301 at 306; 68 ER 375 at 378 (Wigam VC).

[3] For example, the “golden rule” principle against intestacy or partial intestacy (Fell v Fell (1922) 31 CLR 268, 275–6, 279 (Isaacs J)) which is supported by s 41 Wills Act 2000 (NT), and the principle of early vesting (Re Melbourne [2016] VSC 514, [29]).

[4] Perrin v Morgan [1943] AC 399 at 420.

[5] Allgood v Blake (1873) LR Ex 160 at 162. See also Perrin v Morgan [1943] AC 399 at 414.

[6] See for example Charter v Charter (1874) LR HL 364, and other examples noted in G E Dal Pont and K F Mackie, Law of Succession (LexisNexis, 2nd Ed, 2007) [8.30].

[7] Perrin v Morgan [1943] AC 399 at 420.

[8]E.g. see Mortensen v State of New South Wales Unreported SC NSW 12 December 1991 40544/90; National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207.

[9]Unreported SC NSW 12 December 1991 40544/90.

[10] [1915] AC 207.

[11] Cf s 35 of the Wills Act.