In the Matter of the Will of Button

[1991] TASSC 107

103/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              In the matter of the will of Button [1991] TASSC 107; A103/1991

PARTIES:  IN THE MATTER OF THE WILL OF
  ALICE MABEL HILDA BUTTON

FILE NO/S:  M 213/1991
DELIVERED ON:  4 December 1991
JUDGMENT OF:  Underwood J

CATCHWORDS:

Will—Construction—"My money"—Meaning—Home drawn will—No other devise or bequest—Construed to mean the whole of the estate.

Judgment Number:  A103/1991
Number of paragraphs:  17

Serial No 103/1991
List "A"
File No M213/1991

IN THE MATTER OF THE WILL
OF ALICE MABEL HILDA BUTTON

REASONS FOR JUDGMENT  UNDERWOOD J

4 December 1991

1. Alice Mabel Hilda Button, spinster, died on 25 August 1986, aged 76 years. On 30 August 1980 she made her own will. It was admitted to probate on 3 August 1990. This is what it said:

"I appoint my brother John Button of Dunalley Tasmania to be the executor and trustee of this my will.

I give devise and bequeath
my money to my six nieces and nephews as
Craig Morris of 82 Beerburrum Street Caloundra Queensland

Anthony Morris of 82 Beerburrum Street Caloundra Queensland
Lisa Morris of 82 Beerburrum Street Caloundra Queensland
Dema Morris of Campania Tasmania
Amber Morris of Campania Tasmania
Cara Morris of Campania Tasmania

equal share each"

1. On her death, as well as money in the bank, the testatrix's estate comprised a block of land, a motor car and some household goods. The Public Trustee, as personal representative of the testatrix, has asked the court to determine the following question with respect to the will.

"1The meaning of the words 'my money' under the Will of ALICE MABEL HILDA BUTTON as to whether

(a)it means cash only; or

(b)it means cash and all other money held in any savings current or deposit account at a bank, building society, credit union or similar financial institution; or

(c)it extends to include in addition some portion (and if so, what portion) or the whole of testatrix's personal estate; or

(d)it means the whole of the testatrix's estate including both personal and real estate."

1. For more than 60 years the testatrix lived a modest life with her unmarried brother Jack, in a house at Dunalley. Except for a time during World War II, the testatrix was not in employment. Her brother was a fisherman and he looked after the testatrix, said Mrs Whitehouse, a first cousin. Her brother, named by her as her executor, died on 24 January 1989, 2½ years after the testatrix, without having obtained probate of his sister's will. The brother made a will and appointed Mr Worrall, solicitor, to be his executor. After Jack's death all those concerned wanted the Public Trustee to administer the testatrix's estate and so it was that, pursuant to the Public Trust Office Act 1930, s19, the Public Trustee was granted letters of administration with the will annexed on 3 August 1990.

1. As well as her brother Jack, the testatrix had a sister, Joyce Morris. She was the only member of the family who married. She had two children, Michael and Patrick Morris. Joyce also died after the testatrix and was survived by Michael and Patrick. Both Michael and Patrick married and each had three children. Michael's children are the first three beneficiaries named in the testatrix's will and Patrick's children are the last three.

1. The house in which the testatrix and her brother lived was owned by the brother. He became the owner on the death of their mother who had a life interest in the property. The testatrix was the owner of what I infer, was an adjoining block of land. There was evidence that this land was the site of a septic tank connected to the house in which the testatrix and her brother lived. The affidavit of assets and liabilities discloses this block of land to be worth $5,750.00. The household contents are given a value of $2,000.00 and the motor vehicle, $4,000.00. The rest of the assets comprise money in the bank. The only liabilities are funeral and legal expenses. It is a small estate in the order of $25,000.00.

1. In an able argument, Mr Williams who appeared for the Public Trustee and Cara Morris, submitted that, upon a proper construction of the will, the expression "my money" meant all the assets of the estate. (Cara Morris was the only beneficiary not suis juris and, by an earlier order, the court appointed the Public Trustee her representative for the purpose of these proceedings). If Mr Williams' submission is upheld, the whole of the estate will pass to the children of Patrick and Michael in equal shares.

1. Mr Craig appeared for Patrick and Michael Morris and Jack Button's executor, Mr Worrall. Mr Craig submitted that "my money" meant cash, either in hand or at the bank, and did not include the land, the car, or the household goods. If Mr Craig's submission is upheld there will be a partial intestacy and, by devolution, Michael and Patrick will receive those assets not being cash in hand or cash at the bank. It would appear that the septic tank is at the bottom of these proceedings. If the whole of the estate passes to the children named in the will, Jack Button's beneficiaries will have to either buy the block of land or relocate the septic tank. Apparently, there is an unwillingness to do this.

1. Evidence was taken by way of affidavit. One of the deponents, Mrs Whitehouse, was cross–examined. Some of the affidavit evidence was ruled inadmissible; some of it and some of the viva voce evidence was received de bene esse.

1. With respect to the interpretation of the words in a will the court's task is to ascertain the intention of the testator as expressed in the will read in the light of the surrounding circumstances in which it was made. In Perrin v Morgan [1943] AC 399 Lord Simon L.C. said at p406:

"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."

1. Some of the evidence Mr Craig wished me to receive was directed to the proposition that, having lived in the same house as her brother for 60 years in a relationship which Mrs Whitehouse said was one of staunch friendship and love, it is unlikely that the testatrix intended to deprive her brother of access to the septic tank. Accordingly, Mr Craig submitted that the words "my money" should not be interpreted to mean anything other than cash in hand or cash at the bank. However, the concern of this Court is not what the testatrix ought to have said in her will nor what she meant to do when she made her will. The question is what the testator meant by the words written in the will. The admission of extrinsic evidence to assist the court in ascertaining the testator's intention is limited. See Lutheran Church of Australia v Farmers' Co–Operative Executor and Trustees Ltd (1970) 121 CLR 628; Scale v Rollins [1892] AC 342; McRobert v McRobert (1920) 27 CLR 331.

1. In Perrin v Morgan (supra) the House of Lords construed a bequest in a will written by a testatrix of "all monies of which I die possessed". The House held that in each case the task is to ascertain the intention of the testator as expressed in the will and that previous decisions holding that there was a rule of construction that "money", when used in a testamentary instrument, is to be construed in a narrow sense, were wrong. Such decisions were described by Lord Greene, MR in the Court of Appeal as "a blot on our jurisprudence." Lord Romer said at p197:

"My Lords, I take it to be the 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 order to understand the language employed the court is entitled, to use a familiar expression, to sit in the testator's armchair. When seated there, however, 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 has plainly said; that he was, in fact, one of those persons of whom Knight Bruce LJ, said that they spoke as if the office of language were to conceal their thoughts. In many of the cases to be found in the books the court is reported to have said that the construction it has put on a will has properly defeated the testator's intention. If this means, as it ought to mean, that the court entertains the strong suspicion to which I have just referred no sort of objection can be taken to it. But, if it means that the court has felt itself prevented by some rule of construction from giving effect to what the language of the will, read in the light of the circumstances convinces it was the real intention of the testator, it has misconstrued the will."

1. With respect to the surrounding circumstances or the so called "armchair principle" the authorities deem relevant and therefore admissible, evidence concerning such matters as the testator's property at the time the will was made, his or her family and matters of that sort but deem inadmissible direct evidence of the testator's intention unless, in exceptional cases, such evidence is also circumstantial evidence of a relevant surrounding circumstance. See Nicol v Chant& Ors (1909) 7 CLR 569; Hendry v Perpetual Executors and Trustees' Association of Australia Ltd (1961) 35 ALJR 36; R. v Lourie [1968] NZLR 541; R. v McBean (1973) 7 SASR 579.

1. In accordance with these principles, evidence was admitted that the testatrix won "the Pools" sometime in the 1980's, receiving a sum in the order of $35,000.00. In her circumstances, the testatrix would have regarded this as a very large sum of money. The cheque was framed and hung on the wall in her house. Unfortunately this has been lost since her death. Some unspecified time after she won the money she bought the car (a 1982 Holden Gemini) that comprises part of her estate. Whether this car was bought new or second hand is not disclosed by the evidence but, as it is a 1982 model it certainly had not been bought at the time the will was made.

1. I received evidence de bene esse from Mrs Whitehouse of the testatrix's stated intentions with respect to the disposition of what she said the testatrix called "my money". Mrs Whitehouse said that after winning "the Pools" the testatrix always referred to "my money". Mr Craig submitted that I should receive that evidence to show that "my money" in this will meant cash either in hand or at the bank.

1. As the expression "my money" is ambiguous, extrinsic evidence is admissible as an aid to construction. Such admissible evidence however does not include direct evidence of what the testatrix meant by the use of those words in the will. See Doe d Hiscoks v Hiscoks (1839) 5 M & W 363; Re Atkinson's Will Trusts [1978] 1 All ER 1275. Evidence of a testatrix making frequent reference to some identifiable asset or assets with particular words which are used in the testamentary instrument are admissible as one of the surrounding circumstances. See Allgood v Blake (1873) LR 8 Ex 160; Re Birkin [1949] 1 All ER 1045. However, the difficulty in the way of admitting Mrs Whitehouse's evidence about this matter is that there is no evidence of when the testatrix won "the Pools". It may have been before or after the will was written. Consequently there is no evidence that she was referring to any particular asset when she spoke of "my money". I rule inadmissible those paragraphs in the affidavit of Mrs Whitehouse that were received in evidence de bene esse, and her oral evidence about the testatrix's references to "my money".

1. The expression "my money" has been held to mean all the testator's residuary estate. See Re Leury (Deceased) [1975] VR 601; In re Taylor [1923] 1 Ch. 99. In Re Mellor [1929] 1 Ch. 446 Astbury J said at p449:

"A testator's language may show that he is not using 'money' in the strict sense, but intends it to include the whole of his property, whether real or personal. Here he is obviously not using 'money' in the strict sense, and his manifest intention to include the whole of his property may be given effect to: In re Taylor."

1. However, reference to authority, except to find the principles of construction does not assist in ascertaining the testatrix's intention when she wrote the words "my money". It is true as Viscount Simon L.C. in Perrin v Morgan (supra at p190) and Mr Williams pointed out, it is not uncommon for people to refer to the whole of a deceased person's property as "their money". Such expression is often used in question form; "to whom did he leave all his money?" What then did this testatrix mean? The surrounding circumstances disclose that she lived in modest socio–economic circumstances at Dunalley. Having gone to the trouble to make her own will it seems unlikely that she would have had the block of land and personal estate other than money in her mind, and elected to make no provision for that part of her estate. Her sister was married and her brother owned the house and was able to earn income. The will refers to nothing else but "my money" (cf Perrin v Morgan (supra)). There is no residuary clause. It may well be that the testatrix overlooked the fact that, although her brother owned the house they lived in, she owned the land in which the septic tank lay buried. Equally it may well have been that she did not even know where the septic tank was buried but, all of that is pure speculation. The circumstances are that the only bequest made by this country lady in her own hand was of her "money". It is a simple term. The will was her simple direction that on her death, all her worldly goods were to be divided equally between all her nephews and nieces. In the circumstances I am led to the conclusion that, upon a proper construction of the will, the words "my money" mean the whole of the testatrix's estate including both the personal and real estate. The question asked in the application is answered accordingly.