In the matter of the Estate of Alice Jean Keily (deceased)
[2000] VSC 49
•25 February 2000
SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION Not Restricted
No. 5535 of 1998
| IN THE MATTER of the Estate of Alice Jean Keily (deceased) | |
| B E T W E E N | |
| GRAHAM MAXWELL BERKOVITCH (who sues as executor of the Will of Alice Jean Keily deceased) | |
| and | |
| MICHAEL CHRISTOPHER KEILY, ANTHONY PAUL KEILY, MAUREEN KATHLEEN LENNON and PAUL WILLIAM BROTCHIE (representing the "blood issue" of Michael Christopher Keily and Anthony Paul Keily). | First Defendant Second Defendant Third Defendant Fourth Defendant |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2000 | |
DATE OF JUDGMENT: | 25 February 2000 | |
CASE MAY BE CITED AS: | IN THE MATTER of the Estate of Alice Jean Keily (deceased) | |
MEDIA NEUTRAL CITATION: | [2000] VSC 49 | |
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Will – construction – use by testatrix of expression devoid of meaning – intent of testatrix given effect – meaningless expression discarded
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr R. Phillips | Peter Boyle & Associates |
| For the First, Second and Third Defendants | Ms C. McOmish | Geoffrey King |
| For the Fourth Defendant | Ms C. Sparke | McKean & Park |
HIS HONOUR:
In these proceedings, which were commenced by an Originating Motion between parties, the plaintiff who sues as executor of the will of Alice Jean Keily, the testatrix, seeks the Court to answer a number of questions which have arisen in the administration of the estate of the testatrix.
The testatrix died on 4 October 1996 leaving a will which she had made on 21 June 1984. Probate of the will was granted to the plaintiff by order of this court on 12 June 1997.
There was born to the testatrix a number of children. They were –
Maureen Kathleen Lennon, the third defendant, who was born on 12 February 1950. She has had three children who at the commencement of these proceedings, were aged 21, 18 and 14 years.
Anthony Paul Keily, the second defendant, who was born on 7 December 1955 and who is the father of one child who was born on 24 June 1984, just some days after the testatrix made her will.
William Francis Keily, who was born on 28 February 1956 and who pre‑deceased the testatrix, having died on 14 February 1995. There has been no child born to him.
Michael Christopher Keily, the first defendant, who was born on 30 April 1957 and who is the father of three children whose ages are 10 years, 7 years and approximately four months.
Patrick William Baden Keily.
Pamela Dorothy Jean Smith.
The particulars referred to concerning the first four children of the testatrix were put before the Court by agreement between the parties on the hearing of the proceedings. Further particulars concerning the last two children of the testatrix referred to were not made available to or put before the Court. These latter two children of the testatrix were referred to in the first paragraph numbered 6 of her will wherein the testatrix specifically stated that she did not devise or bequeath any of her estate to such children for the specific reasons stated.
As appears by paragraph 3 of the will of the testatrix, she bequeathed to her sister a sum of $500. By paragraph 4 of the will it was provided –
"4. As to the property owned by me at 23 Charles Street, Seddon
I GRANT a life tenance (sic) in this property to my children MAUREEN KATHLEEN LENNON, WILLIAM FRANCIS KEILY, MICHAEL CHRISTOPHER KEILY, and ANTHONY PAUL KEILY and direct that all outgoings in respect of the said property be shared equally between those living in the said property and I FURTHER DIRECT that after the death of the last life tenant the property is to be transferred to life perpetuatory of Blood issue of these three sons? (sic)"
The fourth defendant, Brotchie, was joined as a party in these proceedings and represents the "blood issue" of the surviving sons of the testatrix and referred to in clause 4 of her will, namely, Anthony Paul Keily and Michael Christopher Keily.
The Court was informed that the property referred to in clause 4 of the will of the testatrix, was subsequent to her death and on 30 October 1997, sold and the net proceeds of such sale amounting to $463,035.42 were invested by the plaintiff and remain so invested by him. That particular property of the testatrix formed only part of her estate. She died possessed of no other real estate, however, she was possessed of personal estate which in total was valued in the inventory of assets and liabilities of the testatrix at $232,562.06. The personal estate of the testatrix, after allowing for the gift of $500 made by her to her sister, comprised the residue of the estate of the testatrix. By clause 5 of her will the testatrix provided for that part of her estate. That clause stated –
"5.I GIVE DIVICE (sic) AND BEQUEATH the rest and residue of my estate both real and personal of whatsoever kind and wheresoever situate to my Trustees UPON TRUST (subject as hereafter provided) to sell and convert into money my real and personal estate at such time or times in such manner and upon such terms and conditions as my Trustees shall think fit AND I DIRECT my Trustees out of the proceeds of such safe (sic) and conversion (and out of capital in priority to income) to pay all my just debts funeral and testamentary expenses and all probate estate and other duties payable in respect of my estate or any part thereof and then to divide the same into four equal shares or parts and to transfer one such share or part to each of my daughter MAUREEN KATHLEEN LENNON and my sons WILLIAM FRANCIS KEILY, MICHAEL CHRISTOPHER KEILY and ANTHONY PAUL KEILY for their own use absolutely."
By the Origination Motion in the proceedings the plaintiff seeks to have the Court answer the following questions in the administration of the estate of the testatrix –
"1.Whether, upon the true construction of clause 4 of the deceased's will dated 21 June 1984:
(a) Does clause 4 create a life interest in the property situate at 23 Charles Street, Seddon in the State of Victoria ('the property') in favour of Maureen Kathleen Lennon, Michael Christopher Keily and Anthony Paul Keily, with the interest in remainder being vested absolutely in the blood issue of Michael Christopher Keily and Anthony Paul Keily?
(b) Does clause 4 create a life interest in the property in favour of Maureen Kathleen Lennon, Michael Christopher Keily and Anthony Paul Keily and then a further life interest in favour of the blood issue of Michael Christopher Keily and Anthony Paul Keily who are living when the survivor of them dies?
(c) If the answer to question (b) is 'yes', when the survivor of the blood issue of Michael Christopher Keily and Anthony Paul Keily die, does the property then fall into residue of the deceased's estate or is there a partial intestacy?
(d) Does clause 4 create a life interest in favour of Maureen Kathleen Lennon, Michael Christopher Keily and Anthony Paul Keily and then does the property fall into residue of the deceased's estate as the remainder of clause 4 is too uncertain or meaningless to be given any effect?
2. If no to all of the questions in paragraph 1 what is the true meaning and effect of clause 4 of the deceased's will?"
As to the provisions made by the testatrix with respect to her residuary estate, in clause 5 of her will, by which she left that part of her estate to be divided equally among the four children named, it was common ground in the proceedings, that in the circumstances where the son of the testatrix William had pre‑deceased her, that the one‑quarter share he would have taken has lapsed and will pass on an intestacy to the surviving children of the deceased.
By the first part of clause 4 of her will the testatrix granted "a life tenance", in property identified, to four of her children as named. When a Court is called upon to interpret a word or words in a will it will proceed on the "principle that words are to be understood in their ordinary and usual sense unless, by reason of the context, or by force of relevant facts which become apparent in applying the will to its subject matter, a different meaning is clearly indicated." - Knight v Knight (1912) 14 CLR 86 Barton J at p.105. "Life tenancy" has a legal or technical meaning and where appearing in a will should be given that meaning unless it appears that it was intended by the testator that the expression bear some other meaning. – Re Cook, Beck v Grant [1948] Ch 212. In my view nothing turns on the fact that the testatrix used the word "tenance" as against the word "tenancy". In the last part of clause 4 the testatrix directs as to what shall happen, after the death of the last "life tenant". There is nothing in the context of this will or surrounding circumstances which would lead to the conclusion other than by the first part of clause 4 of her will the testatrix intended to create, "a life tenancy" in favour of the children named in that clause in respect of the property identified.
Further, there was no dispute in these proceedings, and it was common ground, that by the first part of clause 4 of the will of the testatrix there was created a life tenancy in the property identified in favour of the four children identified but in the circumstances where the son of the testatrix, William, had pre‑deceased her the children of the testatrix, Maureen, Michael and Anthony may enjoy the income of the proceeds of the sale of that property during their lives and until the last survivor of them dies.
That part of the will of the deceased which has caused these proceedings to be brought is the last part of clause 4 of the will where the testatrix has directed that, "After the death of the last life tenant the property is to be transferred to the life perpetuatory of the Blood issue of these three sons." [My emphasis] It is this part of the will of the testatrix and the use by her of the expression "life perpetuatory" which are central to the questions raised in the Originating Motion.
The approach that is to be taken by a Court when construing a will was stated by Lord Wensleydale in Roddy v Fitzgerald (1858) 6 H.L. Cas 823, at 876, to be –
"The first duty of the court expounding the will is to ascertain what is the meaning of the words used by the testator. It is often said that the intention of the testator is to be the guide: but the expression is capable of being misunderstood, and may lead to speculation as to what the testator may have supposed to have intended to write, whereas the only proper enquiry is 'what is the meaning of that which he has written'? That which he has written is construed by every part being taken into consideration according to its grammatical construction, and the ordinary acceptance of the words used, with the assistance of such parole evidence of surrounding circumstances as is admissible to place the court in the position of the testator."
In clause 4 of her will, the testatrix, having provided for a life tenancy with respect to a specific piece of property, she made provision as to what was to happen to the property on the death of the last surviving life tenant. She did not provide that the property was to pass into residue. Good reason may be seen for this when regard is had as to who constitutes the residuary beneficiaries. As provided by clause 5 of her will the residuary beneficiaries comprise the same four children of the testatrix who by the terms of clause 4 of the will were the life tenants. As each of such named life tenants would be dead at the end of the period of life tenancy, for the property, the subject of the life tenancy, to pass to residue at the end of the life tenancy would have the result that the property would go to the estate of such persons rather than each of them, putting to one side the fact that the son William had pre‑deceased the testatrix.
However, the testatrix by the last part of clause 4 specifically directed that on the death of the last life tenant, the subject property was to be "transferred to the life perpetuatory of Blood issue of these three sons", which three sons were the three sons of the testatrix named as life tenants. It is apparent that the testatrix specifically turned her mind to the matter as to who would comprise the beneficiaries of this part of her estate after the death of the last surviving life tenant. In doing that she directed specifically that the property be transferred to the "Blood issue" of the three sons named as life tenants and not the "Blood issue" of those persons who comprised the life tenants of this part of her estate. However, the real questions to be addressed in this case are what was the intention of the testatrix as is to be ascertained when regard is had to this last part of clause 4 of her will, what meaning ought to be given to the expression "life perpetuatory" and if no meaning can be given to that expression what should be the consequences with respect to the disposition of this part of her estate after the death of the last life tenant.
The word "perpetuatory" is a word not known to the English language. By the use of that word did the testatrix misspell the word "perpetual" or "perpetuity"? The former word is defined in the Oxford English Dictionary as – "lasting or destined to last forever; eternal, unceasing, permanent". "Perpetuity" is defined in the same dictionary as – "the quality or state of being, perpetual; endless or indefinite duration or existence". Again one may ask the question by using the word "perpetuatory" did the testatrix misspell "perpetualty". That latter word is noted in the Oxford English Dictionary to be equivalent to perpetuity. It is to be observed that in the will a number of words are misspelt. As referred to in clause 4 the testatrix uses the expression "life tenance". In clause 5 after providing power in her trustees to sell and convert into money her real and personal estate which comprises her residuary estate the testatrix directed her trustees, that out of the proceeds of such "safe" and conversion, to pay all her just debts, funeral and testamentary expenses. At the commencement of paragraph 5 the word which is clearly intended to be "devise" is spelt "divice". It is to be noted that there are two paragraphs numbered 6 in her will and at the commencement of the first of such paragraphs that which is clearly intended to be "devise" is on this occasion spelt "divise". In that paragraph in which the testatrix specifically provides that no property should go to her children Patrick and Pamela for the reasons stated, the testatrix has declared, "I have considered this matter and given it seriously (sic) thought and have directed by (sic) trustees that my sons and daughter referred to herein are not to share in any part of my estate". The "sons" referred to is a reference to one son only. When regard is had to these matters it would appear likely that the will was not drawn by a legal practitioner or a person experienced in drafting such documents.
If, by the word "perpetuatory" the testatrix intended to use the word perpetual or perpetuity by coupling either of such words with the word "life" the testatrix has created a meaningless expression. The expression "life perpetuatory of" in this part of the will of the testatrix can be given no meaning.
On behalf of the first, second and third defendants it was submitted that although it may be said from the latter part of clause 4 of the will of the testatrix that she intended, on the death of the last surviving life tenant for the property, the subject of the life tenancy to go other than to residue, the expression "life perpetuatory of" was meaningless and devoid of being given any effect to, that further the intention of the testatrix with respect to this property could not be ascertained and therefore this part of the will was voidable. It was submitted that in consequence on the death of the last surviving life tenant the property would fall into residue. Accordingly it was submitted on behalf of those defendants that questions 1(a) and (b) ought to be answered in the negative, that it was not necessary to answer question 1(c) and that question 1(d) should be answered in the affirmative.
On behalf of each of the plaintiff and the fourth defendant it was submitted that whereas the expression "life perpetuatory of" was an expression without meaning, the intent of the testatrix as to what was to happen to the property, the subject of the life tenancy, when the last surviving life tenant died, was able to be ascertained. It was submitted that it was able to be ascertained that it was the intention of the testatrix that on the death of the last surviving life tenant the property, the subject of the life tenancy, was to be transferred absolutely to the blood issue of the male life tenants and in the circumstances of this case they being the blood issue of Michael and Anthony. It was submitted on behalf of each of those parties that question 1(a) should be answered yes, that question 1(b) should be answered no, that it was unnecessary to answer question 1(c) and that question 1(d) should be answered no.
In Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404 Dixon J at 414 said –
" … to determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expression he used, that is unless a rule of law gives some fixed operation. When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared. That is the rule of interpretation expressed in the well‑known passage and the judgment delivered in the Privy Council by Lord Kingsdown in Towns v Wentworth (1858) 11 Moore P.C. 526, at p.543 [14 E.R. 794, at p.800]. Further, the court may take into account the circumstances in which the will is to be applied as they existed at the time it was executed."
At the time when the testatrix executed her will although her child Maureen had children, none of the male life tenants identified in clause 4 had children although a child was born to Anthony some three days later. By the latter part of clause 4 of her will the testatrix provided that after the death of the last life tenant, "the property is to be transferred to the life perpetuatory of Blood issue of these three sons". The testatrix specifically used the word "transferred". In Coles Myer Ltd v Commissioner of State Revenue [1998] 4 VR 728 Ormiston JA, with whose judgment Winneke P agreed, said at p.740 – "Although the word 'transfer' is not a term of art and is a word of wide connotation, to my way of thinking it is the passing of rights to another so as to vest them in that other person, which is essential to a transfer, properly understood. It is not a mere disposition, of ridding oneself of the right or interest, it is the vesting in the transferee of that right or interest, precisely or substantially which is necessary to effect a transfer as ordinarily understood in law."
It is apparent from the content of her will, that although it contained a number of grammatical errors, the testatrix was aware of the concept of a life tenancy in property and that she was also aware of the concept of property being held on trust for the benefit of another. If it was the intention of the testatrix to provide by her will, that after the death of the last named life tenant, the property the subject of the life tenancy was to be held on trust for the blood issue of her named sons during their lives, then having regard to other expressions used in her will it would be reasonable to expect the testatrix would not have used the expression that the property "be transferred". Rather it is to be expected that she would have used some other expression to convey her will and intent. The use of the word "transferred" points to the intent of the testatrix being that on the death of the surviving tenant the property was to pass from her estate and vest in others absolutely.
The gift itself appears to be, by its nature and expression, a class gift. Those who were to benefit were not named as in the case of the life tenants and residuary beneficiaries. They were identified by the description, "the blood issue of my three sons". "Prima facie a class gift is a gift to a class consisting of persons who are included and comprehended under some general description and bear a certain relationship to the testator" – Kingsbury v Walter [1901] AC 187, Lord Davey at p.192. The relationship to the testatrix in this case is that the intended beneficiaries were the "blood issue" of three of her sons as identified.
In Re Matthews, deceased; Fidelity Trustee Co Ltd v Troup [1960] VR 3, Sholl J at p.7 held that the natural and proper meaning of the word "issue" is "descendants in any degree and not merely children". This is the usual and legal meaning of such word. The Court will generally apply such a meaning unless it is demonstrated that it is the intention of the testator that it ought to be used in a restrained sense – Edyvean v Archer [1903] AC 379. With respect to the use of the word "issue" in a will it is pertinent to note that which was said by James L.J. in Ralph v Carrick (1879) 873 at p.883. He said, "No the word 'issue' is an ambiguous word. In the ordinary parlance of laymen it means children, and only children. When you talk of what issue a man has, or what issue there has been of a marriage, you mean children not grandchildren or great grandchildren. But in the language of lawyers, and only in that language, it means descendants; and in the case of Sibley v Perry 7 Ves 522 Lord Eldon found ground for coming to the conclusion that the word 'issue' had, in the will before him, the layman's meaning of children and not the lawyers' meaning of descendants". In Re Taylor, Taylor v Tweedie (1922) 1 Ch 1999 it was held that in the context of a home made will, there was sufficient to prevent the word "money" having its strict legal sense. In the circumstances of this case the testatrix qualified the word "issue" by the further word "blood" using the expression "blood issue". In Lanyon, Lanyon v Lanyon [1927] 2 Ch, 264 Russell J considered the meaning of the expression "blood relationship". At p.267 he said that in his opinion the expression " … describes the relationship existing between two or more persons who stand in lawful descent from a common ancestor". It is difficult to see how by the use of the word "blood" the testatrix sought to qualify the word "issue" whether the latter word is to be taken and understood in its legal sense, "descendants" or whether by reason of a discerned intent of the testatrix the word "issue" is limited to children only.
Having regard to the conclusion that I have reached in this case, although hereafter the question may arise for determination whether the word "issue" should be given its usual and legal meaning in the context of the will of the testatrix or whether it should be construed to mean "children" or whether the word "blood" should be understood to further qualify the word "issue" is not necessary or appropriate, in my view, to determine this matter at this point of time. In circumstances that may occur hereafter these questions may never arise. To seek to determine these questions at this point would not only be outside the ambit of the questions now put before the Court for its determination but there may be matters relevant to a determination of such questions which by reason of factors of time have not been necessarily fully represented before the court at this stage.
The provision made by the testatrix by the latter part of clause 4 of her will was that after the death of the last life tenant the property, the subject of the life tenancy was to be transferred not to an identified person or persons but rather to a class of persons, to the "blood issue" of three named sons of the testatrix. It is seen that it was the intent of the testatrix that this class of persons were to be the beneficiaries of this part of her estate, she dealt with it specifically and she did not direct that it was to pass to residue.
By the testatrix providing by the latter part of clause 4 of her will that after the death of the last life tenant the property, the subject of the life tenancy was to be "transferred" to such class, demonstrates clearly, to my mind, that it was the intent of the testatrix that at that point of time, after the life tenants had enjoyed the property during their lives the property was to pass from her estate and to vest absolutely in the "blood issue" of the nominated three sons of the testatrix. In this respect the testatrix intended that the property pass from her estate and to vest absolutely in the class identified by her. This is in contradistinction to the concept of the property being held in trust for the persons, comprising the class, during their lives or for a succession of life interests. If it had been the intent of the testatrix to provide a gift to be enjoyed during the lives of the "blood issue" of the nominated three sons one would have expected that the testatrix would have provided for the ultimate disposition of the property at the end of that period. This she did not do. Rather it was the intent of the testatrix that after the specific life tenants had the benefit of the property during their lives the property was then to pass from her estate and vest absolutely in the "blood issue" of her identified sons.
However, that which must be addressed is what is the consequence of the testatrix providing that the property was to be transferred to the "life perpetuatory" of the blood issue of the nominated three sons. Is it that in consequence of the inclusion of this meaningless expression this part of the will of the testatrix, as a whole, is rendered meaningless or is it that on the proper construction of the will the words should be discarded?
The expression "life perpetuatory of" can be given no sensible meaning. The inclusion of such expression, in the will, does not affect that which was the intent of the testatrix. I am satisfied that by the latter part of clause 4 of her will the testatrix expressed the intent that on the death of the last life tenant the property the subject of the life tenancy was to pass from her estate and vest absolutely to the class comprising the "blood issue" of the named sons of the testatrix. It is in such circumstances that the rule of construction expressed by Lord Kingsdown in Towns v Wentworth, and accepted and endorsed by Dixon J in Brennan v Perpetual Trust Co of NSW Ltd has application to this case. The expression "life perpetuatory of" should be discarded. The intention of the testatrix, as is able to be ascertained from the contents of her will, should be given effect to and the latter part of clause 4 should have the effect as was the intention of the testatrix, namely, that after the death of the last life tenant there was to be a gift of the subject property vesting absolutely in the class being the "blood issue" of the nominated sons which in the circumstances of this case is the blood issue of the sons Michael Keily and Anthony Keily. By application of this rule of construction in the circumstances of this case where the intention of the testatrix is apparent the will and the intent of the testatrix is able to be given effect to. It follows that this part of the will of the testatrix is able to be given meaning and it should not be held that after the death of the last life tenant the property should fall into residue.
By application of the "rule of convenience" stated in Andrews v Partington (1791) 3 Bro CC 462: 29 ER 610 the class being the "blood issue" of Michael Keily and Anthony Keily will close on the death of the last life tenant. In consequence the "blood issue" of Michael Keily and Anthony Keily born after the death of the testatrix but before the death of the last life tenant shall be included in that class.
For the reasons expressed the questions set out in the Originating Motion must be answered as follows:
1.(a). Yes.
(b)No.
(c)Having regard to the answer to question (b) it is not necessary to answer this question.
(d)No.
2.Having regard to the answer to question 1(a) it is not necessary to give answer to this question.
Having regard to the fact that the issue the subject of these proceedings relates to that part of the estate of the testatrix as is represented by the proceeds of the sale of the property, 23 Charles Street Seddon, being the property the subject of the life tenancy and that the issue did not concern the residuary estate of the testatrix it is appropriate that the costs of the parties of these proceedings ought to be paid out of that part of the estate of the testatrix as is represented by the proceeds of the sale of 23 Charles Street Seddon.
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