In the Matter of the Will of Walter Zimmerman

IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 11042 of 1998
Brisbane
Before Mr Justice Ambrose
[In the Matter of the Will of Walter Zimmerman]

IN THE MATTER OF THE SUPREME COURT RULES ORDER 64 RULE 1A
AND

IN THE MATTER OF THE WILL OF
WALTER ZIMMERMANN LATE OF
1445 WARREGO HIGHWAY,
BLACKSOIL IN THE STATE OF
QUEENSLAND, FARMER, DECEASED

CATCHWORDS: WILLS PROBATE AND LETTERS OF ADMINISTRATION - CONSTRUCTION AND INTERPRETATION - whether dispositive clause when construed in context of whole will and s 45 of the Succession Act gives the child beneficiary and thereby his guardian immediate and absolute control and possession of property - whether intention of testator that trustees manage property until child has attained the age of eighteen - whether power of the trustees to manage the property under ss 32 33 means the confidence placed in the executors to manage the property by the testator should be disregarded in construing the dispositive clause of his will

Succession Act 1981
Trusts Act 1973
M’Lachlan v Taitt (1860-1861) 2 De Gex, Fisher and Jones’s Reports 449
Duffield & Wife v Duffield & Ors (1827-1830) 1 Dow & Clark’s reports 268

Counsel: Ms S. Macgroarty for the applicants
Mr A. Lyons for the first respondent
Mr T. Cowen for the second respondent

Solicitors: Terence Williams for the applicants
Astills for the first respondent
Tucker & Associates for the second respondent

Hearing Date : 18 December 1998
REASONS FOR JUDGMENT - B.W. AMBROSE J.

Delivered the 3rd day of February 1999

This is an application for construction of a will.
I will refer only to those parts of the will relevant to the construction points argued.
The Testator appointed -
“My friends Paul Mason and Cecil Martischewsky (hereinafter called ‘my Trustees’) to be Executors and Trustees of this my will.”
It is the construction of the first and second dispositive clauses of the will which has been the subject of argument. There is no dispute as to the effect of a disposition in favour of Paul Mason.
Those two clauses read -
“Subject to the provisions of my Will hereinafter mentioned as to the right of Paul Mason to reside in the Caretaker Residence I give, devise and bequeath all my land situate at Blacksoil being approximately forty (40) acres together with all fixed improvements thereon including my house together with all my machinery and my cattle and my dogs and cat and any motor vehicle which I may own at the time of my death to Joel Brendan Robson the infant son of my friend Timothy Brendan Robson for his sole use and benefit absolutely together with the sum of thirty thousand dollars ($30,000) to have paid therefrom all rates and fire insurance premiums associated with my said land until such time as he shall have attained the age of eighteen (18) years.
And I direct that my said Trustees shall manage this property and these moneys for him whilst he shall be under the age of eighteen (18) years and use these moneys for these purposes and that this land shall not be sold before he shall have attained his legal majority.
The will continues -
I empower my said Trustees in so managing this property for him whilst he shall be under the age of eighteen (18) years and if he and his mother and/or sister are not using all of same themselves, to rent or lease part of or the whole of same for residential or agistment purposes as the case may be and to use the nett proceeds of such rental/agistment moneys also towards the maintenance and upkeep of such land and fixed improvements whilst the said Joel Brendan Robson shall be under the age of eighteen (18) years.
I further empower my said Trustees that whilst they shall retain any such trust funds hereinbefore mentioned for the purposes hereinbefore mentioned they are to invest same in bank or government capital guaranteed investment trust funds as allowed in law and to draw on such invested funds for those purposes wherever necessary.
---
If my said Trustees hold any moneys in Trust for these purposes when Joel Brendan Robson attains the age of eighteen (18) years they shall transfer same to him absolutely at that time.”
The next two clauses of the Testator’s will effect bequests of money under clauses which read -
“I give, devise and bequeath the sum of twelve thousand dollars ($12,000) ---”
The will then makes the disposition to Paul Mason about which there is no argument -
“I direct that my said Trustees are to allow my friend the said Paul Mason to reside in the Caretaker’s residence which he at his expense has removed on to my land until such time as -
(a)He has died; or
(b)He is unable to use same as his principal residence due to mental or physical infirmity and unable to care for himself there; or
(c)He no longer wishes to reside there; or
(d)He has abandoned same as so determined by my Trustee Cecil Martischewsky
whichever shall first occur.
And provided however that he shall pay all expenses by way of electricity, telephone, gas and all other services thereto and keep same in a neat and tidy state throughout including any enclosed yard around such Caretaker residence throughout such period of time.”
There then follows a final residuary disposition in the following terms -
“I give, devise and bequeath the rest and residue of my estate both real and personal to my said Trustees upon trust to pay thereout all my just debts, funeral and testamentary expenses and to give and transfer the balance of the moneys then remaining in my estate to the company or organisation known as ‘The Good News Broadcasting Association Incorporated’ for the general charitable purposes of the organisation ---”.
On my reading of the will it seems clear that it was the intention of the Testator that the Executors and Trustees of his will should manage the property devised to the child Joel Brendan Robson who was only nine years of age when the will was executed, and expend moneys out of the $30,000 left to the child to pay rates and fire insurance premiums until the child attained his majority at the end of a period of about nine years . It is clear that it was the Testator’s intention that if the infant and his mother and/or sister were not “using” the property themselves at any time before the child attained his majority (on 19 February 2007) the Trustees might rent or lease it or part of it and use the income received for the maintenance and upkeep of that land and improvements on it - but only during the minority of the child to whom the realty and the sum of $30,000 on the clear wording of the will were directly devised and bequeathed.
The right given to one of the Trustees to occupy the “caretaker’s cottage” on the devised land during his pleasure is consistent with the duty imposed upon him to “manage” the farm property on behalf of the infant during his minority.
In construing the will the paramount consideration is to glean from its words the expressed intention of the Testator.
In my view having regard to the provisions the Testator made concerning the Trustees under his will “managing” the farm property he devised to the infant child and also “using” the $30,000 bequeathed to the child for the purpose of paying rates and fire insurance premiums on the property his expressed intention was that the Trustees should be responsible for the care and management of the farm property and the sum of $30,000 until the child attained his majority at age eighteen years whereupon both the farm property and the balance if any of the $30,000 should fall into his personal possession, management and control.
Although in its form the dispositive provisions of the will relating to the infant child would under the old law have directly devised the real property to the child, the effect of that clause must now of course be considered in the light of s.45 of the Succession Act 1981 which provides -
“Devolution of Property on Death
45(1)The property to which a deceased person was entitled for an interest not ceasing on his or her death (other than property of which the deceased person was trustee) shall on his or her death and notwithstanding any testamentary disposition devolve to and vest in his or her executor and if more than 1 as joint tenants, or, if there is no executor or no executor able and willing to act, the public trustee;
(2)Upon the court granting probate of the will or letters of administration of the estate of any deceased person the property vested in his or her executor or in the public trustee under the provisions of subsection (1) shall devolve to and vest in the person to whom the grant is made and if more than 1 as joint tenants.”
Under s. 5 of the Trusts Act 1973, “trustee” is defined to include -
“(d)a personal representative”
and “trust property” is defined to include -
“(d)land in respect of which any person has, by virtue of any will, a personal licence to reside for the person’s own life, or for the life of any other person or persons, or for any lesser period.”
As a matter of law therefore, although the Executors and Trustees of the will of the Testator were not expressly appointed as trustees for the purpose of holding his real estate there can be little doubt that the effect of s. 45 of the Succession Act 1981 is that the Testator’s land vested in them as Executors as joint tenants both upon his death and upon the grant of probate to them.
Section 45(7) provides -
“(7)Nothing in this section affects the operation of an Act providing for the registration or recording of any person entitled to any estate or interest in land in consequence of the death of any person notwithstanding that there has been no grant in the estate of the deceased person.”
No argument was addressed as to the power of a person entitled to an interest in land under a will to have registration of that interest effected personally if probate of the will has been granted to Executors.
A grant of probate of the will of the deceased to the Executors named in his will was sealed on 29 July 1998.
While the Executors have the land vested in them pursuant to s.45(1) of the Act, they obviously hold their interest in that land as trustees for the person or persons beneficially entitled to it under the terms of the will of which they have been granted probate.
While there is a general presumption in favour of early vesting so that the devise to the child in this case ought be construed as vesting the beneficial interest in the realty in him upon the Testator’s death (subject of course to the effect of s. 45 of the Succession Act), it is possible in my view to give effect to the Testator’s intention by reading the clauses requiring his Executors to “manage” the realty and indeed the sum of $30,000 for the purpose of paying rates and insurance premiums on the property as merely postponing the right of the child to possession and direct control of that property or of obtaining any payment, transfer or conveyance of the realty or personalty to him until he attains his majority - the time when the Testator obviously intended that he should then have the capacity to manage, control and deal with both the realty and the balance if any of the $30,000. In my view it is clear that the Testator intended that until the child attained his majority his Executors ought perform that function because the child obviously could not readily perform it personally although his parental guardian of course could on his behalf. In my view it was the obvious intention of the Testator that it should be his Executors who performed the functions of managing the realty and deciding on what expenditure should be made of the $30,000 for the purpose of paying rates, insurance premiums etc. It was obviously the intention of the Testator that it was his Executors who ought determine whether any and what part of the property during the minority of the child should be leased or let out on agistment and what ought be done towards the maintenance and upkeep of the property from the receipt of any income from those activities.
The real dispute in this case is between the mother of the child and the Executors. It is the contention of the child’s mother that he is absolutely entitled to the immediate possession and control of the property having regard to the proper construction of the will and that consequently she, as his mother, is entitled to determine whether the property should be sold or not and just how the sum of $30,000 ought be used for his benefit.
It is her case that the devise and bequest were both made directly in favour of the child and that those parts of the will which purport to impose duties of management etc. on the Trustees during the minority of the child are so inconsistent with the effect of the direct devise and bequest that they should simply be disregarded and treated as an ineffective attempt on the part of the Testator to “fetter” the enjoyment of the child (with the assistance of his mother) of the direct and unequivocal devise and bequest made to him under the will.
The Executors on the other hand contend that by taking out the grant of probate they have assumed the obligations of Trustees and are of the view that one of those obligations is to hold the real estate and the $30,000 and manage that property as directed by the Testator for the benefit essentially of the child until he attains his majority - and to the extent that the child’s mother and his sister occupy that property during his minority for their benefit also.
In M’Lachlan v. Taitt (1860-1861) 2 De Gex, Fisher and Jones’s Reports 449 Lord Chancellor Campbell at 454 observed -
“The law particularly favours the vesting of estates where the devise is to children as a class, considering that before the estates vest in possession, the children or some of them may have died, having been married and leaving children who otherwise would be unprovided for. The Appellant’s counsel relied entirely upon the words which are added ‘the said children to become beneficially interested on the death of their respective parents’: but the testator having used language by which the children take a vested interest at birth, the vesting cannot be postponed to the death of the life tenant without words clearly indicating such an intention. I agree with the Master of the Rolls in thinking that the words here relied upon merely express, what certainly must be true although the children did take vested estates at their birth, that they would not come into the possession and enjoyment of the property devised till the death of their respective parents. ‘Beneficially’ is not used here in opposition to ‘contingency’ but in the sense of ‘in possession’ as opposed to ‘in expectancy’”.
In Duffield & wife v. Duffield & Ors. (1827-1830) 1 Dow & Clark’s Reports 268
it was observed at p. 311 -
“Testators that create contingent estates often forget to make any provision for the preservation of their estates, and for the disposition of the rents and profits in the intermediate period between their deaths and the vesting of their estates.
---
In consideration of these circumstances, the Judges from the earliest times, were always inclined to decide that estates devised were vested; and it has long been an established rule for the guidance of the Courts of Westminster, in construing devises, that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition the terms of the will. If there be the least doubt, advantage is to be taken of the circumstances occasioning the doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession. To accomplish this purpose a distinction has been made between adverbs if and when to which the learned of our language, not in the profession of the law would perhaps not agree: upon this distinction, however, many equitable arrangements of property have been made; upon this distinction the titles of many estates depend; and it will therefore be the duty of the judges to observe it.”
It is unnecessary to analyse in detail the terms of the will thereunder consideration. It suffices however to observe that to avoid the problems discussed in detail in that case courts are inclined if possible to construe words in such a way as to lead not to a contingent vesting but rather a postponement of enjoyment in possession of an interest vesting at the death of the Testator.
In Hardingham Neave and Ford Wills and Intestacy in Australia and New Zealand; 2nd Ed. at para. 1119 it is observed -
“If the words of the will clearly confer an interest upon a beneficiary, subsequent ambiguous words contained in the same or a later clause, or in a later codicil, will not cut down that interest.”
I find in the words used by the Testator in this case nothing ambiguous in his clearly expressed intention that until the child attains his majority it is to be the Executors who manage and control (and indeed not sell) the property and use the $30,000 bequest for the purpose of paying the rates and maintaining fire insurance on the property developments. The argument advanced really by the mother of the child is that those very clear directions can really have no operation if the effect of the direct devise and bequest is to pass to the child the right to immediate possession, control and enjoyment of the property devised and bequeathed to him - presumably in a manner to be determined by his mother as lawful guardian.
In my view, this argument really assumes the very matter in question. Whether the initial devise and bequest to the child was of the kind for which the mother of the child contends, is really to be determined looking at the words of disposition in the context of the wording of the rest of the will.
In my view, looking at the disposition in question in context, the will ought be construed keeping in mind that the Trustees who, under s.45 of the Succession Act hold both the land devised to the child and the $30,000 bequeathed to him as Trustees, and that neither the devised land nor the bequest has at this stage vested in the child although the beneficial interest thereunder has vested.
It is clear in my view upon the wording of the will generally that the intention of the Testator was that the Trustees should manage both the Testator’s farm property and the $30,000 bequeathed to the child as directed by and for the purposes expressed in the will until the child attains the age of 18 years. That event will occur in about nine years time. Upon the child attaining the age of 18 years, he will then be entitled to exercise personal control of the farm property and the balance of the $30,000, if any, left after the Trustees have used it for the purposes specified in the will to preserve the child’s beneficial interest in it and also perhaps the balance of any moneys received by the Trustees should, in the circumstances contemplated by the will, the property be let either for residential use or upon agistment.
In coming to this conclusion, I have derived assistance from the approach of Campbell L.C. in M’Lachlan v. Taitt nearly 140 years ago.
In my view, whatever reservations one might have about the language used in the will, it is was clearly the intention of the Testator that it should be the child to whom he devised his property who ought determine whether it be sold or not when he attained the age of 18 years rather than his mother as lawful guardian during his minority.
In my view, the fact that Trustees have a power to sell trust property under s.32 of the Trusts Act and to maintain and insure it under s.33 irrespective of the powers and directions contained in the will does not lead to the conclusion that the personal confidence which the Testator manifestly placed in his Executors to manage and control the property he devised and bequeathed to the child until he attained his majority should be disregarded in construing the dispositive clauses of his will. Although there is no evidence on the matter, one might be forgiven perhaps for concluding that the only reason the Executors have sought to have the will construed is the fact that the mother of the child has raised some objection to their determination to faithfully perform their obligations as Trustees by complying to the best of their ability with the directions the Testator gave in his will to manage the realty and the $30,000 for the ultimate benefit of the child until he attains his majority.

I construe the will as follows -
(1)The Executors and Trustees of the Testator’s will have both the Testator’s farm land and its improvements and the sum of $30,000 vested in them as Trustees for the benefit of Joel Brendan Robson.
(2)Pursuant to the terms of the will they should manage and maintain the farm on behalf of the child Joel Brendan Robson until he attains his majority at eighteen years of age.
(3)The Trustees are obliged to invest the $30,000 as directed using such part of it and the income it generates for the purposes specified in the will - i.e. payment of rates and keeping paid the insurance premiums on the improvements on the farm.
(4)Upon the child Joel Brendan Robson attaining his majority at eighteen years, they are to pay the balance if any of that sum (together with interest) to that child for his unfettered use and benefit.
(5)Should the Trustees under the circumstances contemplated by the Will let the whole or any part of the Testator’s improved farm property for residential purposes or for the agistment of stock, then the income so received is to be used for the maintenance of the farm and improvements and the balance, if any is to be held on trust for Joel Brendan Robson and paid to him for his unfettered use when he attains his majority.
(6)Paul Mason has a licence to reside in the caretaker’s residence erected on the Testator’s farm property now vested in the Executors and Trustees. The terms of that licence are expressed in the will. The licence constitutes trust property within the definition of s.5 of the Trusts Act 1973 and of course the Executors are “Trustees” within that definition.
The Executors and Trustees of the will therefore are obliged to hold the realty which the Testator devised to the child upon trust for that child and also subject to the trust constituted by the licence left to Paul Mason. They are obliged as Trustees to consent to join Paul Mason in taking what steps are available to preserve and protect the “Trust” property which Paul Mason holds in respect of that land in the event of its eventual disposal upon the attainment of majority by Joel Brendan Robson or indeed, in the event of the Trustees exercising their power of sale, should they determine that circumstances justify doing so, under s.32 of the Trusts Act.

[1999] QSC 15

3 February 1999