Jeffery Charles Ford v Charles D'Arcy Wentworth
[2011] ACTSC 162
•28 September 2011
JEFFERY CHARLES FORD v CHARLES D’ARCY WENTWORTH
[2011] ACTSC 162 (28 September 2011)
WILLS AND PROBATE — construction summons brought by executors — where probate of will and codicil had been granted — where testatrix survived by four children — where testatrix’s will left residuary estate to three children — where codicil purported to give fourth child’s ‘share’ to testatrix’s great-grandchildren — whether great-grandchildren entitled to quarter of testatrix’s residuary estate — where fourth child sought to tender evidence directed to validity of codicil — role of court of construction — where evidence of testatrix’s children suggested she intended to make lesser bequest to the great-grandchildren — where evidence of earlier will admitted pursuant to s 12B of the Wills Act 1968 (ACT) showed ‘share’ meant quarter share of residuary estate
HELD: The great-grandchildren were to receive a quarter-share of the residuary estate to be shared pari passu between them.
Family Provision Act 1969 (ACT)
Wills Act 1968 (ACT) ss 11A, 12B
Court Procedures Rules 2006
Greenough v Martin (1824) 2 Add 239
Guardhouse v Blackburn (1866) LR 1 P & D 109
Hardingham Neave and Ford para [103])
In re Hawksley’s Settlement; Black v Tidy [1934] Ch 384
In re Resch’s Will Trusts [1969] 1 AC 515
Re Barrance [1910] 2 Ch 419)
Roddy v Fitzgerald (1858) 6 HL Cas 823
Watson v Ralph (1982) 148 CLR 646
Haines, David M, Construction of Wills in Australia (LexisNexis Butterworths, 2007)
Hardingham I J, Neave M A and Ford H A J, Wills and Intestacy in Australia and New Zealand; (2nd ed, Law Book Company Limited, 1989)
Parry, Sir David and Potter, D C, Williams on Executors and Administrators (13th ed, Stevens & Sons, 1953)
No. SC 773 of 2010
Judge: Besanko J
Supreme Court of the ACT
Date: 28 September 2011
IN THE SUPREME COURT OF THE )
) No. SC of 773 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JEFFERY CHARLES FORD & MICHAEL JAMES PHELPS AS EXECUTORS OF THE WILL OF THE LATE ALICE ISOBEL WENTWORTH (DECEASED)
Plaintiff
AND:CHARLES D’ARCY WENTWORTH
First Defendant
KATHY GAYE KINNANE AS GUARDIAN OF EMMA KELLY WENTWORTH, LACHLAN HUGH WENTWORTH, CHLOE KATE WENTWORTH & SAM CHARLES RAY WENTWORTH
Second Defendant
JUDITH FRANCES VILLANOVA
Third DefendantWENDY ALICE AUSTIN
Fourth DefendantDAVID LESLIE WENTWORTH
Fifth Defendant
ORDER
Judge: Besanko J
Date: 28 September 2011
Place: Adelaide via video link with Canberra
THE COURT ORDERS THAT:
In answer to question (a) in the Amended Originating application dated 29 June 2011, it be declared that upon the proper construction of the Will dated 30 October 2008 and Codicil dated 25 September 2009 the great grandchildren of the testatrix (namely, Emma Kelly Wentworth, Lachlan Hugh Wentworth, Chloe Kate Wentworth and Sam Charles Ray Wentworth), are to receive a quarter share of the residuary estate (that is, the portion of the estate which is referred to at clause 4(b) of the Will) to be shared pari passu between them.
If the parties agree costs, then the plaintiffs are to lodge an agreed minute of the proposed orders. If the parties do not agree costs, then each party is at liberty to lodge a brief written submission as to costs within 21 days.
INTRODUCTION
The plaintiffs to this proceeding are Jeffery Charles Ford and Michael James Phelps. Mr Phelps is a lawyer. The plaintiffs are the executors of a Will and Codicil of Alice Isobel Wentworth. The testatrix died on 5 December 2009. She made a will on 30 October 2008 (‘Will’) and a Codicil on 25 September 2009 (‘Codicil’). This proceeding is a construction summons brought by the plaintiffs concerning the Will and Codicil.
The Deputy Registrar of this Court granted probate of the Will and Codicil to the plaintiffs on 1 March 2010. The estimated gross value of the testatrix’s estate, both real and personal, in the Australian Capital Territory is $826,015.90. The gross value of the residuary estate is in the order of $670,000 subject to existing and future legal costs and expenses. The application for probate was advertised in the Canberra Times on 14 January 2010. There was no opposition to the grant of probate and no application has been made to revoke the grant of probate. An application for the revocation of a grant of probate and an order revoking probate may be made under regulations 3081 and 3082 of the Court Procedures Rules 2006.
The testatrix had four children and all of them are still living. The testatrix’s children are Charles D’Arcy Wentworth (D’Arcy), Judith Frances Villanova (Judith), Wendy Alice Austin (Wendy), and David Leslie Wentworth (David). I will refer to them by their first names to avoid confusion. D’Arcy had a son, Mark D’Arcy Wentworth, who died on 20 August 2001. Mark married Kathy Gaye Kinnane on 17 September 1994 and they had four children. The four children are Emma Kelly Wentworth, Lachlan Hugh Wentworth, Chloe Kate Wentworth and Samuel Charles Ray Wentworth. They are the testatrix’s great grandchildren and I will refer to them as the great grandchildren.
By the Will the testatrix left her residuary estate to three of her four children. D’Arcy was not included in her Will. He is the first defendant to the construction summons. By her Codicil the testatrix purported to give “d’Arcys share” to the great grandchildren. Kathy Gaye Kinnane, as the litigation guardian for the great grandchildren, is the second defendant to the construction summons. The testatrix’s three children other than D’Arcy are, respectively, the third (Judith), fourth (Wendy) and fifth (David) defendants to the construction summons.
On 23 June 2010 D’Arcy instituted an action against the executors under the Family Provision Act 1969 (ACT) (‘Family Provision Act’) seeking provision out of the testatrix’s estate. On 18 October 2010 the Court made an order in that action that the executors file and serve a defence to the Statement of Claim by 1 November 2010, that they file and serve any application in relation to the construction of the Will and Codicil by 1 November 2010 and that the proceeding be adjourned to 8 November 2010. On 5 November 2010 the plaintiffs issued this construction summons. Mr Phelps has sworn an affidavit in this proceeding and in it he explains the plaintiffs’ purpose in issuing the construction summons:
13.I am of the view that the most appropriate and cost effective way to progress the FPA proceedings is for the Court to determine the proper construction of the Will and Codicil in prior and separate proceedings (ie: the instant proceedings). If the construction issue is determined in favour of the great grandchildren, there may be stronger prospects that the FPA proceedings will resolve without the need for a contested hearing.
On 18 February 2011 the Court made a number of orders in this proceeding and in the proceeding involving D’Arcy’s claim under the Family Provision Act. One of the orders made was as follows:
5.Liberty to approach the list clerk for a hearing of proceedings no 773 of 2010 (a hearing of half to one day) solely in respect of the question of the proper construction of the will dated 30 October 2008 and codicil dated 25 September 2009.
At that time D’Arcy and Kathy Gaye Kinnane (that is, the first and second defendants) were defendants to this proceeding. The orders, including the above order, were made by consent.
THE WILL AND CODICIL
By the Will the testatrix made a bequest of various personal effects to her daughter, Judith, with a gift over to her son, David, if Judith should predecease her. By clause 4 of her will the testatrix disposed of the residue of her estate. Clause 4 is in the following terms:
4. I GIVE the rest of my estate to my trustee ON TRUST:
(a)to pay my debts, funeral and testamentary expenses and all taxes and duties payable in respect of my death, my estate or the administration of my estate;
(b)Subject to subparagraph (c) hereof, to divide the balance then remaining between such of my children WENDY ALICE AUSTIN, JUDITH FRANCES VILLANOVA and DAVID LESLIE WENTWORTH as shall survive me and of more than one equally between them.
(c)If a child of mine dies before me leaving children who attain their majority then those children on attaining their respective majorities take equally the share which their parent would otherwise have taken;
The Codicil is entitled ‘Codicil to Will – Sept 09’. The whole of the document is important and I set it out in full. I will not attempt to correct the obvious errors in the document. I have underlined what I consider to be the more important passages.
I am writing this codicil to explain the reason behind omitting d’Arcy from my will.
It is my wish to leave the equilevant of d’Arcys share of my estate to Mark’s children and I believe this is the only way to ensure that they receive that share.
I tried to arrange a meeting with all four of my children to advise the terms of my wishes to provide for Mark’s children. However the meeting with d’Arcy did not occur and I have therefore agreed with Judy, David and Wendy that they will administer and concur with my wishes to ensure that Mark’s children receive the share that may have otherwise gone directly to d’Arcy.
Over the past 40 years I have put up with the ongoing tantrums and greed from Janette and on many occasions her deviousness which in the long term has prevented me from having any contact with d’Arcy. I decided that as I was over 80 years of age – I no any longer wanted to or had to put up with the behaviour being displayed by Janette. For my own peace of mind I would have to ignore her and unfortunately that meant I was unable to continue my relationship with d’Arcy, which I has saddened me. I guess he was not strong enough to stand up to her, or maybe he just opted for a quiet submissive life!
I have previously lent d’Arcy monies – with his promise of repayment, including interest – and to this day that promise has not been fulfilled. So, my faith in believing that Mark’s children would receive their share, via d’Arcy – is not at all strong.
I believe that this avenue will ensure that my wishes are carried out and authorise Judy, Wendy and David to administer this request.
THE QUESTIONS FOR DETERMINATION
The questions which the Court is asked to determine are set out in the Amended Originating application which is dated 29 June 2011 and which was filed in court by leave on 30 June 2011. Those questions are as follows:
(a)whether, upon the proper construction of the will dated 30 October 2008 (‘Will’) and codicil dated 25 September 2009 (‘Codicil’), the great grandchildren of the testatrix (namely, Emma Kelly Wentworth, Lachlan Hugh Wentworth, Chloe Kate Wentworth and Sam Charles Ray Wentworth), are to receive a quarter share of the residual estate (that is, the portion of the estate which is referred to at clause 4(b) of the Will) to be shared pari passu between them; and
(b)if the answer to (a) is ‘no’, upon the proper construction of the Will and Codicil, who are the beneficiaries of the residual estate and in what shares do the said beneficiaries partake of the residual estate.
The plaintiffs also seek an order for the payment of their costs, but they asked that I answer the questions and then hear the parties as to costs.
ISSUES ON THE APPLICATION
The plaintiffs sought to tender two affidavits sworn by Mr Phelps. Mr Phelps’ first affidavit was received in evidence and it established a number of the matters to which I have already referred. The plaintiffs sought to tender Mr Phelps’ second affidavit on the basis that it proved that in late 2007 his firm prepared an earlier will for the testatrix and that she executed that will on 6 December 2007. This will, which I will call the earlier will, was in similar terms to the Will save for clause 4 which read as follows:
4. I GIVE the rest of my estate to my trustee ON TRUST:
(a)to pay my debts, funeral and testamentary expenses and all taxes and duties payable in respect of my death, my estate or the administration of my estate;
(b)Subject to subparagraph (c) hereof, to divide the balance then remaining between such of my children CHARLES d’ARCY WENTWORTH, WENDY ALICE AUSTIN, JUDITH FRANCES VILLANOVA and DAVID LESLIE WENTWORTH as shall survive me and of more than one equally between them.
…
(d)If a child of mine has already died or dies before me or before attaining a vested interest leaving children who attain their majority then those children on attaining their respective majorities take equally the share which their parent would otherwise have taken;
The plaintiffs submit that the expression ‘d’Arcys share’ in the Codicil means an equal and therefore one quarter share of the testatrix’s residuary estate. If contrary to their primary contention, there is any ambiguity or uncertainty then the plaintiffs submit that the ambiguity or uncertainty is removed having regard to the earlier will. The plaintiffs submit that s 12B of the Wills Act 1968 (ACT) (‘Wills Act’) empowers the Court to have regard to the earlier will if there is an ambiguity or uncertainty on the face of the Will or in light of the surrounding circumstances. That section is in the following terms:
In proceedings to construe a will, evidence, including evidence of the testator’s dispositive intention, is admissible to the extent that the language used in the will renders the will, or any part of the will—
(a) meaningless; or
(b) ambiguous or uncertain on the face of the will; or
(c)ambiguous or uncertain in the light of the surrounding circumstances;
but evidence of a testator’s dispositive intention is not admissible to establish any of the circumstances referred to in paragraph (c).
I heard submissions on the plaintiffs’ application to tender the earlier Will and said that I would determine the application in these reasons.
The plaintiff asks me to answer question (a) in the affirmative. If I do then question (b) does not arise.
D’Arcy sought to tender two affidavits sworn by himself.
In paragraph 3 of his first affidavit D’Arcy deposed to the fact that he is very familiar with the testatrix’s usual way of expressing herself in speech and in writing and that ‘the words used in the document [that is, the Codicil] are not words which reflect my late mother’s usual way of talking and writing’. It was put to me by counsel for D’Arcy that the evidence was relevant because it raised ‘a question as to whether the codicil itself was the knowing act of the deceased’.
Paragraph 3 was not the only evidence advanced by D’Arcy which seemed to be directed to whether the testatrix knew and approved the contents of the Codicil or had the required capacity to execute the Codicil. In response to such evidence the other defendants filed evidence of a similar nature.
In his written submissions D’Arcy submitted that for various reasons probate of the Codicil should be revoked. At the outset of the hearing I asked his counsel how that issue arises on the construction summons. He said that he was not asking this Court to revoke probate of the Codicil. However, he suggested that even though this Court was hearing a construction summons it was not a Court of separate Divisions and it might act of its own motion and revoke probate of the Codicil if there was clear evidence that suggested it ought to do so. I reject that submission.
A court of construction generally has a limited role. Matters such as the testatrix’s capacity and animus testandi are generally not before a court of construction: Greenough v Martin (1824) 2 Add 239, 243; Guardhouse v Blackburn (1866) LR 1 P & D 109; In re Resch’s Will Trusts [1969] 1 AC 514 at 547 per Lord Wilberforce delivering the opinion of the Privy Council); Hardingham I J, Neave M A and Ford H A J, Wills and Intestacy in Australia and New Zealand; (2nd ed, Law Book Company Limited, 1989) (‘Hardingham, Neave and Ford’) para [1101]. General principle then would suggest that sitting as a court of construction I would not entertain arguments that the Codicil was not executed in accordance with the provisions of the Wills Act (s 9 but see s 11A) or that the testatrix did not know of and approve the contents of the Codicil or that the Codicil did embody a testamentary disposition. This is not to say that a court of construction may not reach a conclusion that a gift is void for uncertainty or construe a later instrument in a way which renders an earlier instrument, albeit an instrument admitted to probate, ineffective (see In re Hawksley’s Settlement; Black v Tidy [1934] Ch 384).
In addition to general principle, there is a strong reason why D’Arcy should not be permitted to go beyond questions of construction. The order which I have set out (see [6] above) makes clear that this matter was listed by consent ‘solely’ in respect of the question of construction.
Finally, I would simply record the fact that at no stage did D’Arcy apply for an adjournment so that he could make an application for the revocation of probate in relation to the Codicil.
In the above circumstances I rejected the tender of paragraph 3 of D’Arcy’s first affidavit on the ground that it was not relevant to any issue on the construction summons.
Paragraphs 4, 5, 6 and 7 of D’Arcy’s first affidavit were directed to the correctness or otherwise of the testatrix’s statements in the Codicil about the repayment of the loan and the relationship between the testatrix and D’Arcy’s wife. I rejected the tender of those paragraphs on the ground that they were irrelevant. While the evidence in those paragraphs might be relevant to D’Arcy’s application under the Family Provision Act (see s 22(3)) the only possible significance of the evidence was to questions of knowledge and approval and capacity and, for the reasons I have already given, those issues are not relevant on the construction summons.
I rejected the tender of paragraph 7 of D’Arcy’s second affidavit on the ground that it was solely directed to the testatrix’s mental capacity at the time she executed the Codicil. I rejected the tender of paragraphs 4, 5 and 6 which contained evidence directed to the relationship between the testatrix and D’Arcy and the correctness or otherwise of statements by the testatrix in her Codicil on the ground that they were not relevant on this construction summons.
D’Arcy does not have a direct interest in the determination of the construction summons. None of the constructions of the Codicil advanced at the hearing will directly benefit him and nor will he benefit if it is held that the purported gift in the Codicil fails. He claims an interest in the identification of the beneficiaries under the testatrix’s Will and Codicil because he submits that it will or may be relevant to his claim under the Family Provision Act. He submits that on the proper construction of the Codicil it was not effective to pass any interest to the great grandchildren and that the testatrix’s residual estate passed to his three siblings under the Will.
The second defendant as litigation guardian for the great grandchildren swore an affidavit. In the result she tendered only the first four of the paragraphs of that affidavit and they establish the family relationship between the testatrix and the great grandchildren. The second defendant asked the Court to answer the questions in the same way as is proposed by the plaintiffs.
Judith, Wendy and David applied to tender affidavits sworn by Wendy and David respectively. As far as Wendy’s affidavit is concerned they did not seek to read paragraphs containing evidence relevant to the testatrix’s mental capacity.
Wendy deposed to meetings and conversations involving the testatrix in the second half of 2009. The first meeting was in Canberra in late July or early August 2009 and it was organised by the testatrix. The testatrix, Wendy and David were present. The testatrix said that she wanted D’Arcy to come, but he was not present. The testatrix said that D’Arcy had had more than his fair share and that she wanted the second defendant to have some money to pay ‘for the children’s education and health problems’. When asked how much, she said about $30,000-$40,000, so $10,000 per child and she said:
You three must make sure Kath gets some money from my estate.
The second meeting was shortly after the first and involved the testatrix, Wendy and the second defendant. During the meeting the testatrix said:
Mark was so good to me over the years. I want to do this for you and the children. After I’m gone I want you to have some money for the children. I’ve worked it out with David, Judy and Wendy that you will get some money.
It’s for education and health costs.
The third conversation took place between the testatrix and Wendy and in the course of it the testatrix said:
I want to write down why I’m not giving D’Arcy the money and why I want to give it to Kathy’s kids.
The final conversation was between the testatrix and Wendy and in the course of it the testatrix asked Wendy to read a three- to four-page typed document that detailed past occasions and incidents with D’Arcy and his family and in particular his wife, Janette. Wendy read the document and then said to the testatrix:
Mum you can’t say this. It’s not necessary. You only need to explain why you’re not leaving him money, not all this other stuff.
David swore an affidavit in which he gave evidence of the meeting between the testatrix, Wendy and himself in late July or early August 2009. David travelled from Cowra to Canberra. During the meeting the testatrix said:
D’Arcy was asked to come to this meeting so he would know what was happening but he wouldn’t come. The reason I’m leaving D’Arcy out of the will was because he refused to pay back loans I’ve given him.
I want Kathy to get some money so she has it there for her children. It’s for schooling and medical if necessary.
David asked the testatrix how much and she responded by saying:
Somewhere around $8-10,000 per child.
The evidence of these conversations is only admissible if the provisions of s 12B of the Wills Act are engaged.
Judith, Wendy and David submit that the Codicil should be construed so that the great grandchildren receive a share of the residuary estate, ‘but that share ought not to be one quarter of the residual estate, but ought to be no greater than the sum of $40,000’.
The submissions of the parties raised two issues. The first issue was raised by D’Arcy and seemed to be that the words of the Codicil were such that it could not be construed as a testamentary disposition of property. As I have said, this type of issue seems to go beyond the scope of an inquiry on a construction summons (Wills Act s 11A; Hardingham Neave and Ford para [103]). As the authors of Williams on Executors and Administrators (13th ed, Stevens & Sons, 1953) vol 2 state, a court of construction is bound to assume all documents admitted to probate are testamentary (Re Barrance [1910] 2 Ch 419). Nevertheless, for completeness, I will address D’Arcy’s submission. The submission is that there are statements in the Codicil which support the conclusion that the testatrix intended to do no more than to express a wish or to give a direction that Judith, Wendy and David administer their interests under the Will in a way that provides a benefit to the great grandchildren.
There are statements in the Codicil which, when read in isolation, support this conclusion. The body of the Codicil starts with a statement by the testatrix that it has been prepared by her to explain her reasons for omitting D’Arcy from her will. There is a reference to a meeting between the testatrix and Judith, Wendy and David and their agreement to a particular course. Finally, there is a reference at the end of the Codicil to the testatrix authorising Judith, Wendy and David ‘to administer this request’.
However, it is trite to say that the Codicil must be read as a whole, and doing so I think it is clear that the testatrix’s intention was to alter the Will and to make a testamentary disposition of part of her estate. The document is called a Codicil by the testatrix. For reasons I will give in relation to the issue of construction dealt with below I think the meaning of ‘d’Arcys share’ of the testatrix’s estate is clear. With that in mind I think the statements in the Codicil that, ‘It is my wish to leave the equilevent [sic] of d’Arcys share of my estate to Mark’s children’ and that her wishes were that ‘Mark’s children receive the share that may have otherwise gone directly to D’Arcy’ and that her faith ‘in believing that Mark’s children would receive their share, via D’Arcy – is not at all strong’ all establish an intention by the testatrix to make a testamentary disposition to the great grandchildren of what would otherwise have gone to the first defendant.
The next issue is whether meaning can be given to the expression ‘d’Arcys share of my estate’ and if so what meaning. The general principles of construction are clear and it is sufficient for me to refer to Roddy v Fitzgerald (1858) 6 HL Cas 823 at 826 per Lord Wensleydale; Watson v Ralph (1982) 148 CLR 646 at 654 per Gibbs CJ; Haines, David M, Construction of Wills in Australia (LexisNexis Butterworths, 2007) [2.12] ff. There is no definition in the Codicil of ‘d’Arcys share’ and he is not a beneficiary under the Will. Nevertheless, the surrounding circumstances strongly suggest that the testatrix had in mind an equal share with his three siblings of her residuary estate. D’Arcy was one of four children of the testatrix. Under the Will the other three children (that is, Judith, Wendy and David) share equally in the testatrix’s residuary estate. However, if ambiguity or uncertainty attends the meaning of ‘d’Arcys share’ regard may be had to the earlier will as an aid to construction by reason of s 12B of the Wills Act. The earlier Will makes it clear that the testatrix, in referring to D’Arcy’s share, had in mind an equal share with his three siblings of her residuary estate. I would admit the evidence of the earlier Will.
I reject the suggestion by Judith, Wendy and David that ‘d’Arcys share’ means the monetary amounts discussed between the testatrix and Wendy and David. Those amounts are not certain and, in any event, they could not properly be described as ‘d’Arcys share of my estate’. I think it must be concluded either that those conversations took place at a fairly general level at least from the testatrix’s point of view, or that she simply changed her mind as to precisely how she wished to give effect to her intention to benefit the great grandchildren.
CONCLUSIONS
For these reasons, I will make an order that in answer to question (a) in the Amended Originating application dated 29 June 2011, it be declared that upon the proper construction of the Will dated 30 October 2008 and Codicil dated 25 September 2009 the great grandchildren of the testatrix (namely, Emma Kelly Wentworth, Lachlan Hugh Wentworth, Chloe Kate Wentworth and Sam Charles Ray Wentworth), are to receive a quarter share of the residuary estate (that is, the portion of the estate which is referred to at clause 4(b) of the Will) to be shared pari passu between them. If the parties can agree costs then the plaintiffs can lodge an agreed minute of the proposed orders. If not, then each party can lodge a brief written submission within 21 days.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:Date: 28 September 2011
Counsel for the plaintiff: Mr N J Beaumont
Solicitor for the plaintiff: Phelps Reid
Counsel for the First Defendant: Mr D A Hassall
Solicitor for the First defendant: Just Law - Erindale
Counsel for the Second Defendant: Mr W Sharwood
Solicitor for the Second Defendant: Elrington Boardman Allport
Counsel for the Third, Fourth and
Fifth Defendants: Ms L Kennedy
Solicitor for the Third, Fourth and
Fifth Defendants: Symons Phillips Lawyers
Date of hearing: 30 June 2011
Date of judgment: 28 September 2011
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