In the Matter of Linley Joy Dennis
[2014] SASC 158
•31 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of LINLEY JOY DENNIS
[2014] SASC 158
Judgment of The Honourable Justice Gray
31 October 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
Application for the making of a will pursuant to section 7 of the Wills Act 1936 (SA). The testatrix has advanced Alzheimer’s disease. Her son brought an application to rectify her will which, due to a drafting error, would not have disposed of her estate according to her intentions. After the application was made it developed to include a number of other proposed changes to the will. The additional amendments addressed the appointment of an alternate executor, the death of the testatrix's husband and the management of farming land.
Whether the testatrix lacks testamentary capacity. Whether the proposed will would accurately reflect the likely intentions of the testatrix if she had testamentary capacity. Whether it is reasonable in the circumstances to make the order.
Held (granting the application):
1. The testatrix lacks testamentary capacity, although she has the ability to express general views concerning her testamentary wishes.
2. The numbering error in the existing will should be corrected to reflect the testatrix's intention at the time of making that will, which remains her likely intention if she had capacity.
3. The other proposed changes to the will are consistent with the testatrix’s intentions at the time of making her last will, consistent with the testamentary wishes she is currently able to express and consistent with her likely intentions if she had testamentary capacity.
Wills Act 1936 (SA) s 7, referred to.
In the Matter of Sean Arthur Pickles [2013] SASC 175; In the Matter of Martina Pieternella De Jager [2012] SASC 236; In The Matter of Grace Geraldine Brown [2009] SASC 345; Bryant v Blake (2004) 237 LSJS 23; Griffin v Boardman [2009] SASC 315; Re Rak (2009) LSJS 263; Jeavons v Chapman (No 2) (2009) 260 LSJS 260; Hoffman v Waters (2007) 98 SASR 500; Public Trustee v Phillips [2004] SASC 142, considered.
In the Matter of LINLEY JOY DENNIS
[2014] SASC 158Testamentary Causes Jurisdiction
GRAY J.
This is an application pursuant to section 7 of the Wills Act 1936 (SA) for an order authorising the making of a will.
Background
On 25 September 2013, Bronte Malcolm Dennis filed a summons seeking an order that the Court approve the making of a will on behalf of his mother, Linley Joy Dennis. The application was initially brought for the purpose of rectifying an existing will during the lifetime of the testatrix to obviate the need for a rectification application after her death. However, it developed to include a number of other suggested variations and additions.
Mrs Dennis is a widow with three adult children: Bronte, Sonya Lynne Peters and Verity Anne Dennis. Mrs Dennis has five grandchildren: Bronte’s son and daughter, Sonya’s three sons and Verity’s son.
At the time of the application, Mrs Dennis was 69 years of age and suffering from dementia as a consequence of Alzheimer’s disease. On 26 September 2013, the Registrar of Probates made orders, inter alia, appointing a legal practitioner, Gaetano Anthony Aiello, guardian ad litem for Mrs Dennis. Sonya has an enduring power of attorney for Mrs Dennis.
With her late husband, Mrs Dennis established a substantial family farming business. That business is now conducted by Bronte, with his wife Angela and his son Ashley. Bronte and his family derive their livelihood from the business. Mrs Dennis also owns investment properties and farming land. Mrs Dennis’ assets are substantial, comprising primarily of interests in real property.
Mrs Dennis executed wills in 1990, 1998 and 2007. The effect of the 1990 and 1998 wills was that Mrs Dennis’ interest in the farming business and certain farming land would pass to Bronte, or his son in the event that he predeceased Mrs Dennis.
It is the 2007 will that Bronte seeks to rectify. The 2007 will, inter alia, provides:
3. I Direct that any farming land in my name must not be sold within ten years of my death.
4. I Give all my estate in each of the following:
4.1 all my share in Lincolnfields Pty Ltd ACN 080 630 584, and
4.2 all entitlements of whatever nature due or owing to me by or in respect of the Lincolnfields Family Trust
to my son Bronte Malcolm Dennis subject to the provisions of clause 6.
...
6.If my husband Malcolm John Dennis dies before me then my son Bronte Malcolm Dennis must assume liability for any debt that may be owing at my death in respect of the residence and land at 31 Olive Parade Kadina.
7.I Give all my estate and interest in the farming partnership business known as Lincolnfields Pastoral inclusive of all entitlements and monies of whatever the nature due to me by or in the respect of that partnership as follows:
7.1 if my husband Malcolm John Dennis survives me for thirty days then for my husband,
7.2 if my husband does not survive me for that period then to my son Bronte Malcolm Dennis.
...
19.1If my son Bronte Malcolm Dennis dies before me then his son Ashley will take the share and interest under clauses 3 and 6 of this Will which Bronte would otherwise have taken but subject to Ashley attaining 25 years of age.
Provisions were made for other assets to be distributed to Mrs Dennis’ daughters, Sonya and Verity.
Douglas John Reed, a legal practitioner, acted for Mrs Dennis and her husband for many years. He prepared all of Mrs Dennis’ wills. Mr Reed has deposed that the clause numbering failed to automatically renumber when clause 3 of the 2007 will was inserted during the drafting process. Clause 19.1 should have referenced clauses 4 and 7, not clauses 3 and 6. This error was not detected prior to the execution of the will. One consequence of the numbering errors in the 2007 will was that Ashley would not receive the assets in clauses 4 and 7 in the event that Bronte predeceased Mrs Dennis. Bronte’s application was made on the basis that such a result was, and remains, against Mrs Dennis’ wishes.
The Application
Section 7 of the Wills Act empowers the court to authorise the making or alteration of a will on behalf of a person who lacks testamentary capacity.[1]
[1] This provision has been considered on multiple occasions in South Australia, see: In the Matter of Shaun Arthur Pickles [2013] SASC 175; Re Manley [2013] SASC 98; In the Matter of Martina Pieternella De Jager [2012] SASC 236; In the Matter of Grace Geraldine Brown [2009] SASC 345; Griffin v Boardman [2009] SASC 315; Re Rak (2009) LSJS 263; Jeavons v Chapman (No 2) (2009) 260 LSJS 260; Hoffman v Waters (2007) 98 SASR 500; Bryant v Blake (2004) 237 LSJS 23; Public Trustee v Phillips [2004] SASC 142.
The legislation contemplates a two-stage process: an application for permission to proceed and, upon that permission being granted, an application for an order authorising the will. The purpose of a grant of leave to proceed is a mechanism by which baseless or unmeritorious applications are screened out.[2] In proceedings such as this, where the application is not obviously without merit, it is appropriate that leave to proceed be granted and that the substantive application be heard concurrently.
[2] In the Matter of Shaun Arthur Pickles [2013] SASC 175, [13] (citations omitted).
Section 7 of the Wills Act relevantly provides:
(1)The Court may, on application by any person made with the permission of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2)An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that—
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
(4)In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i) the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv)any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
…
(12) In this section—
testamentary capacity means the capacity to make a will1.
Note—
1The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
Pursuant to section 7(3), and notwithstanding the agreement of the parties as to any proposed order, before making an order under section 7(1), I must be satisfied that Mrs Dennis lacks testamentary capacity, that the proposed will would accurately reflect her intentions if she had testamentary capacity and that it is reasonable in all the circumstances that the order should be made.
Bronte’s application initially only sought to rectify the drafting errors in the 2007 will. However, following the making of the application, the parties agreed on other proposed changes to the 2007 will. These changes went beyond the terms of the 2007 will. They addressed the circumstance that Mrs Dennis’ husband had died since the execution of the 2007 will, they added Bronte’s wife Angela as a substitute executor, they raised the age at which Bronte’s son Ashley becomes the sole appointor for the trust over the farming land and they specified that Bronte’s daughter Tammy become the appointor in Ashley’s place in the event that he is unable to become the appointor. For the reasons that follow, I find that the proposed will accurately reflects the likely intentions of Mrs Dennis had she retained testamentary capacity. A copy of the proposed will is attached as Schedule A to these reasons.
Testamentary Capacity
I adopt my analysis of the relevant authorities on the topic of testamentary capacity in In the Matter of Shaun Arthur Pickles and, in particular, the following discussion:[3]
In Banks v Goodfellow, a test for capacity was advanced by Cockburn CJ. His Honour held that to have sufficient capacity a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect. In In the Will of Wilson, Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular, and ordinary manner.” These observations were cited with approval by Dixon J in Timbury v Coffee.
[3] In the Matter of Shaun Arthur Pickles [2013] SASC 175, [17] (citations omitted). I also reviewed the relevant authorities in In The Matter of Grace Geraldine Brown [2009] SASC 345, a case on which it was submitted that I should rely.
Bronte and Mr Reed both depose that Mrs Dennis suffers from dementia. Solicitors for Bronte obtained a medical report from Dr Witford dated 6 May 2013. This report confirms that Mrs Dennis suffers from advanced Alzheimer’s disease and is unable to conduct any of her affairs. There was no suggestion either in the medical evidence or by the parties that Mrs Dennis lacked capacity when making the 2007 will or at any earlier time.
Mr Aiello has deposed of his discussion with Mrs Dennis and Sonya on 16 December 2013, during which he discussed Mrs Dennis’ testamentary wishes. He recounted numerous instances in which Mrs Dennis appeared to have difficulty with her memory and with following their discussion. However, Mrs Dennis was able to discuss some testamentary wishes, and that these wishes were consistent with the proposed will. Mr Aiello formed the view that Mrs Dennis retained insight in relation to her family assets and how she wished by will to deal with those assets, but has cognitive impairment as to memory and understanding which placed her in a position of vulnerability to a flawed decision making process.
I am satisfied that Mrs Dennis lacks testamentary capacity within the meaning of section 7 of the Wills Act.
Likely Intentions of the Testator
Section 7(3)(b) of the Wills Act requires that this Court, before making an order under section 7(1), be satisfied that the proposed will accurately reflects the likely intentions of the testator if that person had testamentary capacity. I refer to the analysis of the distinction between “lost capacity” and “nil capacity” cases in In the Matter of Sean Arthur Pickles and, in particular, the following observations concerning lost capacity cases:[4]
Subsection 7(3)(b) of the Wills Act requires that this Court, before making an order under subsection 7(1), be satisfied that the proposed will accurately reflects the likely intentions of the testator if that person had testamentary capacity. For that reason, evidence relating to the wishes of the proposed testator should be put to the Court where such evidence is available.
… A critical distinction should be drawn between nil-capacity and lost capacity cases. This distinction lies primarily in the fact that in a lost capacity case, a proposed testator was once able to give effect to their wishes and views. This provides a basis upon which the court can consider if the terms of the proposed will reflect the “likely intentions” of the proposed testator, were they to have testamentary capacity. It follows that the enquiry in the present proceedings is far less problematic than that embarked upon in a nil-capacity case.
[4] In the Matter of Sean Arthur Pickles [2013] SASC 175, [24]-[27].
The affidavit evidence establishes that Mrs Dennis’ intention at the time of making the 2007 will and on 16 December 2013, when Mr Aiello met with her, was that Bronte’s son Ashley should inherit the assets the subject of clauses 4 and 7 of her 2007 will if Bronte predeceased her. This view is supported by the terms of the 1990 and 1998 wills. I accept that Mrs Dennis’ likely testamentary intention would be for Ashley to inherit the assets in clauses 4 and 7 of the 2007 will if Bronte predeceased her.
The other changes all give effect to Mrs Dennis’ likely intentions concerning the distribution of her assets and also facilitate the efficient management of her estate. The addition of Bronte’s wife Angela as an executor in the will is consistent with the appointment of Bronte as an executor. The proposed provision that relevant farming assets pass to Tammy in the event that they cannot pass to Ashley is consistent with the intention that the assets be inherited by Bronte and his family, as is the gifting of the farming business to Ashley on trust in the event that Bronte predeceases Mrs Dennis. The other changes, such as the removal of references to Mrs Dennis’ deceased husband, are incidental changes that update the will to reflect his death and otherwise correct minor errors.
In Re Manley,[5] Stanley J was not prepared to accept that the death of an individual would necessarily give rise to a change in testamentary intention. In this case, however, the changes to accommodate the death of the testator’s husband do not otherwise alter the effect of the will. I accept that the death would not in and of itself have led Mrs Dennis to prepare a new will, as her husband’s death was a contingency accounted for in the 2007 will. However, having found that her likely testamentary intention would be to make the various substantive changes to the 2007 will in the proposed will, I consider that her intention would have been to also make consequential changes such as removing references to her late husband.
[5] Re Manley [2013] SASC 98, [74]-[80].
Other Matters
The matters to which a court shall have regard in making a will in respect of a person who lacks testamentary capacity are set out in section 7(4) of the Wills Act, as extracted above. Mrs Dennis’ testamentary capacity, wishes and earlier wills have also been considered.
The persons whose interests may have been affected under section 7(4)(d) or, where appropriate, their parents, have all been given notice of the proposed will. I am satisfied that their interests are adequately protected under the proposed will and that they would not be deprived of funds sufficient for their maintenance.
The affidavit evidence of Bronte and Mr Aiello states that Mrs Dennis would not have reasonably been expected to make any charitable donations in her will. I accept this evidence.
Conclusion
I am satisfied that Mrs Dennis lacks testamentary capacity, albeit that she has the ability to express general views concerning her testamentary wishes.
I am satisfied that an error arose in the numbering of the clauses in the 2007 will. That being the case, I am satisfied that it was Mrs Dennis’ intention in 2007 that Ashley should have the assets referred to in clauses 4 and 7 of the 2007 will. The evidence supports the conclusion that Mrs Dennis’ likely current testamentary intention in that regard had not changed. Insofar as some of the clauses in the proposed will go beyond the 2007 will, those clauses are consistent with the intention expressed in the 2007 will and they reflect Mrs Dennis’ likely current testamentary intentions.
I have had regard to factors in section 7 of the Wills Act and the totality of the evidence. I am satisfied that the proposed order authorising the making of a statutory will in the terms set out in Schedule A is reasonable in all the circumstances.
Schedule A
THIS IS THE LAST WILL AND TESTAMENT of LINLEY JOY DENNIS of Bute in the State of South Australia Widow authorised by an order dated the 31st day of October 2014 made under section 7 of the Wills Act, 1936.
1. I REVOKE all previous Wills and testamentary acts.
2.I APPOINT my son BRONTE MALCOLM DENNIS to be the sole Executor and Trustee of this my Will but if he does not survive me or if he is unable or unwilling to act then I APPOINT my daughters VERITY ANNE DENNIS and SONYA LYNNE PETERS and my daughter in law ANGELA MARIA DENNIS to be the Executors and Trustees hereof. I DECLARE that in the interpretation of this my Will the expression “my Trustees” shall refer to the Executor and Trustee or Executors and Trustees for the time being hereof.
3.AS REGARDS “The Lincolnfields Family Trust” (“The Lincolnfields Trust”) , a trust established by Deed dated the 5th day of November 1997:-
3.1I APPOINT my said son BRONTE MALCOLM DENNIS to be the Appointor of but if he does not survive me then I APPOINT my Trustees and my grandson ASHLEY SCOTT DENNIS to be the Appointor of The Lincolnfields Trust until my said grandson attains or shall have attained the age of thirty years and thereafter I appoint my grandson ASHLEY SCOTT DENNIS to be the sole Appointor of The Lincolnfields Trust provided further if my said grandson does not survive me or he survives me but fails to attain the age of thirty years then I Appoint my Trustees and my granddaughter TAMMYJANE DENNIS to be the Appointor of The Lincolnfields Trust until my said my granddaughter attains or shall have attained the age of thirty years and thereafter I appoint my granddaughter TAMMYJANE DENNIS to be the sole Appointor of The Lincolnfields Trust; and
3.2I DECLARE that notwithstanding the abovementioned reference to the Deed establishing The Lincolnfields Trust, the said Trust Deed shall not form part of my Will to be admitted to probate.
4.I DIRECT that any farming land forming part of my estate not be sold within ten years of my death.
5. SUBJECT to the provisions of Clause 6 of this my Will I GIVE:-
5.1 all my shares in Lincolnfields Pty Ltd ACN 080 630 584, and
5.2all entitlements of whatever nature due or owing to me by or in respect of The Lincolnfields Trust
to my said son BRONTE MALCOLM DENNIS for his own use and benefit absolutely.
6.I DIRECT that my said son BRONTE MALCOLM DENNIS before having any entitlement to receive the benefits referred to in Clauses 5 and 8 of this my Will shall pay and discharge any money remaining due upon the security of any mortgage secured over the land comprised and described in Certificate of Title Register Book Volume 5766 Folio 612, being the house property at 31 Olive Parade Kadina in the said State (“the Olive Parade property”) and in the event he does not do this within twelve (12) months of the date upon which administration of my estate is granted then the benefits otherwise conferred upon him shall fall into and form part of my residuary estate.
7.I GIVE all my estate and interest in the Olive Parade property to such of my daughters VERITY ANNE DENNIS and SONYA LYNNE PETERS as survive me and if both then as tenants-in-common in equal shares, to the intent that my said daughters shall be entitled to receive the Olive Parade property free of any debt secured thereover.
8.I GIVE all my estate and interest in the farming partnership business known as Lincolnfields Pastoral (“the Partnership”) inclusive of all entitlements monies and personal property of whatever nature due to me by or in the respect of the Partnership to my said son BRONTE MALCOLM DENNIS for his own use and benefit absolutely CONDITIONAL UPON my said son BRONTE MALCOLM DENNIS indemnifying the balance of my estate against any debts and liabilities of the Partnership .
9.I GIVE my pianola and all the pianola rolls and accessories to my said daughter VERITY ANNE DENNIS.
10.I GIVE all of my personal effects, jewellery, furniture and other personal chattels not hereby otherwise disposed of by this my Will to my Trustees UPON TRUST to divide and distribute among such of them my children grandchildren and great-grandchildren as shall be living at my death in such proportions as my Trustees shall in the absolute discretion of my Trustees think fit without obligation to distribute items to any one or all of my children grandchildren or great-grandchildren nor to ensure equality amongst them.
11.I EXPRESS the wish (but without creating a trust or imposing any legal obligation) that my Trustees distribute my said items as they may know or feel to be in accordance with my wishes.
12.IN THE EVENT that any of my aforesaid items shall not be divided and distributed as aforesaid within twelve (12) months of my death then I DIRECT that such items shall fall into and form part of my residuary estate.
13.IN THE EVENT that any item or items shall be set aside by my Trustees for any person under the age of eighteen (18) years then I EMPOWER my Trustees to deliver such item or items to the guardian or parent of such beneficiary and the receipt of such guardian or parent shall be a full and sufficient discharge to my Trustees who shall not be obliged to see to the application of the benefits hereby conferred upon such beneficiary.
14.Subject to the provisions of clause 4 of this my Will I GIVE all my estate and interest in any farming land forming part of my estate wherever situated to my Trustees and I DIRECT my Trustees TO DIVIDE the same into two equal parts and to hold each equal part upon trust with each of my daughters the said VERITY ANNE DENNIS and the said SONYA LYNNE PETERS who survive me being the Primary Beneficiary of a trust for one such part;
14.1IF my said daughters or either of them fail to survive me but leaves a child or children who are living at my death and have attained or attain the age of twenty five years then that grandchild or those grandchildren shall take and if more than one equally between them the part that would otherwise have been held upon trust with his her or their mother as the Primary Beneficiary;
14.2IF there is a complete failure of the trusts concerning either of the parts referred to herein then the part in respect of which there has been a complete failure shall be added to the other part the trusts of which have not failed.
15.The following terms will apply to each trust established under this Will in respect of which a person is nominated to be the Primary Beneficiary:
15.1Once a Primary Beneficiary for that trust is determined pursuant to this Will, the relevant Primary Beneficiary (“the Trustee”) will be the Trustee of the trust.
15.2The following words and expressions have the following meanings:
(i) “Beneficiaries” means:-
15.2.i.1 the Primary Beneficiary;
15.2.i.2any children and remoter issue of the Primary Beneficiary;
15.2.i.3 any other child of mine; or
15.2.i.4any spouse, widow or widower of any of the persons named in this sub-clause
(ii) “Eligible Beneficiaries” means:-
15.2.ii.1 the Beneficiaries or any of them; and
15.2.ii.2in the event there is no person or persons who come within the definition of Beneficiaries, my daughters the said VERITY ANNE DENNIS and the said SONYA LYNNE PETERS and any child, children or remoter issue of my said daughters.
(iii) “the Trust Fund” means:
15.2.iii.1the part of my estate which is to be held on trust for the Primary Beneficiary in accordance with my Will (“Initial Property”); and
15.2.iii.2any income or capital added to the Initial Property or representing the same from time to time.
(iv)“the vesting day” means the date the Trustee may by Deed or instrument in writing appoint to be the vesting day.
15.3Until the vesting day the Trustee shall hold the Trust Fund upon trust to pay divide apply transfer or accumulate all or part of the income and all or part of the capital and all or part of the capital accretions of the Trust Fund to any one or more of the Eligible Beneficiaries in the shares and amounts and at the times as the Trustee may in his or her absolute discretion think fit without any obligation to make payments to all of the Eligible Beneficiaries or to ensure equality among those to whom payments are made.
15.4Upon and from the vesting day the Trustee shall hold the Trust Fund or so much thereof as shall then remain and the income thereof for such of the Eligible Beneficiaries who shall then be living or in existence and in such proportions and such manner and for one to the exclusion of the other or others as the Trustee shall in his or her absolute discretion by instrument in writing determine and appoint.
15.5If any part or parts of the Trust Fund shall not be effectively or validly disposed of by the trusts above declared in this clause then the respective Trustee shall hold the Trust Fund or so much thereof as then remains for the beneficiaries entitled to my residuary estate and to follow the trusts thereof.
16.THE TRUSTEE shall have the following powers and authorities in relation to the trust established under this Will in respect of which a person is nominated to be the Primary Beneficiary, namely to:
16.1appoint by Will or instrument in writing a new trustee or new trustees in the place of a trustee or in addition to the Trustee;
16.2at any time by Deed add to or vary the powers and authorities vested in the Trustee.
17.The Trustee may exercise or concur in exercising all powers and discretions given to the Trustees by the provisions of this Will or by law notwithstanding that the Trustee may have a direct or indirect interest of any kind in the mode or result of the exercise of any such power or discretion and notwithstanding any actual or possible conflict of interest in the exercise of such power or discretion.
18.The Trustees and the Trustee from time to time of any trust established by this my Will shall not be required to comply with the provisions of sections 7(1), 7(3), 8(1) and 9 of the Trustee Act 1936 (South Australia) as amended.
19.I GIVE all my real and personal not hereby otherwise disposed of to my Trustees UPON TRUST subject to the powers hereinafter contained and subject to Clause 4 of this my Will to sell call in and convert the same into money and to pay my funeral and testamentary expenses and debts any duties in connection with my estate and all charges payable in the administration of my estate and to hold the balance then remaining (“my residuary estate”) for such of my said children BRONTE MALCOLM DENNIS, VERITY ANNE DENNIS and SONYA LYNNE PETERS as survive me and if more than one as tenants-in-common in equal shares absolutely PROVIDED HOWEVER:-
19.1IF my said son BRONTE MALCOLM DENNIS does not survive me then subject to my grandson the said ASHLEY SCOTT DENNIS having attained or attaining the age of thirty (30) years AND complying with the requirements of Clause 6 of this my will, the said ASHLEY SCOTT DENNIS shall take all the share and interest in Clauses 5 and 8 of this my Will which his father would otherwise have taken if he had survived me;
19.2IF my said son BRONTE MALCOLM DENNIS fails to survive me and my said grandson ASHLEY SCOTT DENNIS fails to attain a vested interest in the assets referred to in clauses 5 and 8 of this my Will then subject to my granddaughter the said TAMMY JANE DENNIS having attained or attaining the age of thirty (30) years AND complying with the requirements of Clause 6 of this my will, the said TAMMY JANE DENNIS shall take all the share and interest in the assets referred to in Clauses 5 and 8 of this my Will which her brother Ashley Scott Dennis would otherwise have taken if he had survived me and attained the age of thirty years and complied with the requirements of clause 6 of this my Will;
19.3SUBJECT to the provisions of clauses 19.1 and 19.2, IF any child of mine does not survive me but leaves a child or children who survive me and have then attained or thereafter attain the age of twenty-one (21) years, those grandchildren shall take and if more than one equally between them the share or other benefit under this Will which his her or their parent would have taken if such parent had survived me.
20. I EMPOWER my Trustees to:
20.1subject to the provisions of clause 4 of this my Will, exercise all powers given to trustees by law;
20.2enter into a lease or sharefarming agreement in respect of any real or leasehold property for such period and on such terms and conditions as my Trustees think fit with power to expend money in repairs and in improvements and to accept surrenders of leases or tenancies,
20.3carry on, either alone or in partnership with any person or persons with whom I am in partnership at my death, any business in which I am engaged at my death during such period as my Trustees think fit and my Trustees shall have the fullest discretionary power in all matters relating to the management of that business and may employ engage or dismiss staff and agents and incur liabilities and borrow money and my trustees shall be indemnified out of my estate in respect of all losses or liabilities sustained or incurred in relation to that business,
20.4invest any monies requiring investment under this Will in any of the investments that are authorised now or at any future time for trustees by the law of South Australia,
20.5borrow money either with or without security and enter into any mortgage, charge, bill of sale or other security over any part of my estate,
20.6exercise all powers and discretions notwithstanding that they or any of them may have a direct or other personal interest in the mode or result of exercising any such power or discretion,
20.7subject to the provisions of clause 4 of this my Will at such time, or times, in such manner and on such terms as my Trustees think fit, sell call in or convert into money any part or parts of my estate which do not consist of money,
20.8appropriate any part or parts of my estate in full or part satisfaction of the share or interest of any beneficiary in my estate and for such purpose may determine the value of any asset to be so appropriated,
20.9postpone the sale calling in and conversion of any part of my estate for such period as my trustees think fit,
20.10retain for so long as my Trustees think fit my shares in any company and accept apply for or take up any bonus shares or other rights or benefits made available by any such company and vote in or act as a director or employee of any such company and may receive remuneration for acting in such capacity and my Trustees shall have the fullest discretionary power in all matters relating to my shares in any such company,
20.11apply the whole or any part of the contingent or vested share in the capital and income of my estate of any beneficiary under this will for the maintenance education or benefit of that beneficiary and for these purposes may make such payments to the parent or guardian for the time being of that beneficiary without being liable to see to the application thereof,
20.12use income, capital or both income and capital to pay capital gains tax levied on the disposal of any asset, and apportion liability for that tax,
20.13exercise all discretions and powers in such manner as my Trustees in their absolute discretion think fit,
21.I DIRECT that each of my Trustees is entitled to be reimbursed from the assets of my estate and its income for any money spent and liabilities incurred in or about the administration of my estate.
22.IF the order of death, whether proved or presumed, of two people is uncertain then this Will is to be construed as if the older person died first.
23.IN this my Will any reference to any beneficiary (whether referred to by name or in any other way) shall be deemed to be a reference to the beneficiary personally or at the option of such beneficiary to the trustee of any inter vivos discretionary trust of which such beneficiary is a potential beneficiary or at the further option of the beneficiary any company of which that beneficiary is a director or a shareholder and the option herein provided shall apply to all or any part of such beneficiary’s interest in my estate.
24.I DIRECT my Trustees in respect of any gift under this my Will to a beneficiary who is a foreign resident of Australia for income tax purposes, to:
24.1reduce the amount of the gift to the foreign resident beneficiary by the amount of any tax payable by virtue of Section 104-215 of the Australian Income Tax Assessment Act 1997 or subsequent corresponding legislation, or
24.2obtain a reimbursement from the foreign resident beneficiary for the amount of that tax as a condition precedent to the transmission of the subject matter of that gift.
DATED this day of Two thousand and Fourteen.
REGISTRAR OF PROBATES
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