Kavanagh v Reardon
[2012] VSC 174
•9 MAY 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST
S CI 2011 5532
| JENNIFER ELIZABETH KAVANAGH (As Executrix for the Estate of Jean Elizabeth Reardon) | Plaintiff |
| v | |
| ADAM REARDON, LUKE REARDON, JOEL REARDON and RENAE JOHANSEN (Children of the late Reginald Reardon) | Defendants |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 FEBRUARY 2012 | |
DATE OF JUDGMENT: | 9 MAY 2012 | |
CASE MAY BE CITED AS: | KAVANAGH v REARDON | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 174 | |
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Wills – Construction – Specific gift of real estate property to son – Gift of residue to son and daughter provided that if either predeceased testatrix leaving children the children took equally the share of their parent - Son predeceased testatrix leaving four children - Whether contrary intention within meaning of s 45(3) of the Wills Act 1997 appeared in the testatrix’s will so that real estate property fell into residue.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Bristow | Pat Nagle |
| For the Defendants | Ms C McOmish | Dimos Lawyers, town agents for McKays Solicitors, Queensland |
HIS HONOUR:
Introduction
The testatrix, Jean Elizabeth Reardon, died on 21 February 2010, leaving a will dated 21 February 2007. The testatrix had two children, a son, Reginald Howard Reardon, and a daughter, Jennifer Elizabeth Kavanagh. Reginald Reardon died on 27 August 2009, thereby predeceasing his mother. He was survived by his wife and four children.
Probate of the testatrix’s last will was granted to Jennifer Kavanagh on 9 November 2010. The testatrix’s estate consisted of a property at 12 Hakatere Street, Northcote (“the Northcote property”), valued for probate purposes at $750,000, and bank savings and investments worth $409,496.89.
Clauses 3 to 5 of the testatrix’s last will read as follows:
3.I GIVE DEVISE AND BEQUEATH all my right title and interest in the property situate at and known as 12 Hakatere Street, Northcote or any other dwelling which I have purchased to reside in to my son Reginald Howard Reardon.
4.If at the date of my death I have sold the property at 12 Hakatere Street, Northcote and purchased another property at a lesser price then I give to my son Reginald Howard Reardon an amount of money being difference between the sale price of 12 Hakatere Street, Northcote (after deduction of sale costs) and the purchase price of the other property PROVIDED THAT if I have sold 12 Hakatere Street, Northcote and not purchased another property then I give to my said son a sum of money equivalent to the sale price of 12 Hakatere Street, Northcote (after deduction of sale costs) together with a sum equal to 5% of the sale price calculated annually from the date of sale to the date of my death.
5.I GIVE DEVISE AND BEQUEATH the residue of my Estate both real and personal of whatsoever kind and wheresoever situate to my children Reginald Howard Reardon and Jennifer Elizabeth Kavanagh PROVIDED THAT if any child of mine should die before me or before attaining a vested interest leaving children then such children shall take equally the share which their parent would otherwise have taken.
The Application
By an originating motion filed on 17 October 2011 the plaintiff, Jennifer Kavanagh, sought:
a declaration as to the proper construction and disposition of the Will of the late Jean Elizabeth Reardon given the provisions of Section 45 of the Wills Act 1997 and the pre-deceasing of the son of the testator.
The defendants to the application are the four children of Reginald Reardon. It appeared that the parties had received conflicting advice as to the proper construction of the testatrix’s last will.
The Legislation
Section 45 of the Wills Act 1997 (“the Wills Act”) provides as follows:
45 Dispositions not to fail because issue have died before the testator
(1)If a person makes a disposition to any of his or her issue, where—
(a)the disposition is not a disposition to which section 43 applies; and
(b)one or more of the issue do not survive the testator for thirty days; and
(c)the interest in the property is not determinable at or before the death of the issue—
the issue of the deceased issue who survive the testator for 30 days take the deceased issue's share of the disposition in place of the deceased issue in the same manner as if the testator had died intestate and as if the testator had died leaving only issue surviving.
(2)Subsection (1) applies to dispositions to issue either as individuals or as members of a class.
(3)Subsection (1) does not apply if a contrary intention appears in the will, but a general requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purposes of this section.
(4) If an original beneficiary under a will—
(a) is issue of the testator; and
(b) did not survive the testator by 30 days; and
(c) did not fulfil a contingency required by the will—
subsection (1) does not operate to entitle issue of that beneficiary to a disposition under the will.
It was common ground that s 43, which concerns “a disposition to a person’s issue, without limitation as to remoteness”, did not apply to this case. A “disposition “ is defined in s 3(1) of the Wills Act as including “any gift, devise or bequest of property under a will”.
The Competing Constructions
The issue for determination is whether s 45(1) applies to the gift of the Northcote property and saves it from lapsing, as submitted by the defendants, or whether “a contrary intention appears in the will” so that the Northcote property falls into the residue, as submitted by the plaintiff.
Counsel for the plaintiff submitted that the contrast between clauses 3 and 5 could not be “more stark” and that the testatrix could not have been more specific. It was submitted that in relation to the residuary estate, she wanted Reginald’s children to take his share if he predeceased her. But in relation to the specific gift of the Northcote property, she did not make the same disposition, presumably because she did not want that outcome.
Counsel for the defendants submitted that something more was required in the will to exclude s 45 than the inclusion in the standard residuary clause of the common provisions designed to avoid an intestacy and, therefore, that there was no contrary intention appearing in the will.
Neither counsel sought to rely on the provisions of clause 4 of the will. Although it might have been argued that some assistance on the question might have been gained from the fact that the testatrix clearly intended Reginald to receive a benefit even if the Northcote property had been sold, on reflection, I do not consider that clause 4 assists in deciding whether the testatrix intended Reginald’s children to receive the benefit of the Northcote property or the substitute property or the sum representing adjusted proceeds of sale, if he predeceased her.
Consideration of the Issue
The general rule is that, subject to any contrary intention expressed in the will, a beneficiary named in a will must be alive at the date of the testator’s death in order to take the gift. That is, if the beneficiary predeceases the testator, the gift lapses.[1] However, as a result of s 45 of the Wills Act, a benefit given to a child or other issue under a will does not lapse where the predeceased child or other issue leave issue of their own, in which case those issue stand in the place of the deceased child or other issue and take the benefit. That is the result unless “a contrary intention appears in the will”. Section 45 and its Victorian predecessors were modelled on s 33 of the Wills Act 1837 of the United Kingdom, although some differences have emerged over time with respect to how the lapse is prevented.
[1]Elliott v Davenport (1705) 1 PW 83; 2 Vern 521; Maybank v Brooks (1780) 1 BCC 84; In re Servers of the Blind League [1960] 1 WLR 564.
In Fell v Fell,[2] Isaacs J set out ten “incontestable” principles concerning construction of wills. His Honour’s second principle[3] was as follows:
“The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect if it be possible to do so, to the intention of the framer of it” (Lord Halsbury LC in Leader v Duffey;[4] Ward v Brown;[5] Buckley LJ in Kirby-Smith v Parnell[6]).
[2](1922) 31 CLR 268.
[3](1922) 31 CLR 268, 273-274.
[4](1888) 13 App Cas 294, 301.
[5](1916) 2 AC 121; 31 TLR 545.
[6][1903] 1 Ch 483, 489.
In Pohlner v Pfeiffer,[7] the High Court considered whether the testatrix in her will had evinced a contrary intention to a particular rule of construction. Windeyer J stated that he thought that the correct view was that:
whether or not a contrary intention appears depends upon the meaning of the will construed according to ordinary principles of construction, and in the light of any extrinsic evidence properly admissible of facts, known to the testator, that existed at the time he made his will.[8]
[7](1964) 112 CLR 52.
[8](1964) 112 CLR 52, 77.
Although affidavits had been filed by the plaintiff and by Julie Ann Reardon, the widow of Reginald Reardon, counsel for both sides agreed that virtually every paragraph was either inadmissible or irrelevant. Thus, there is no relevant extrinsic evidence. The task for the Court, therefore, is to decide whether a contrary intention appears in the testatrix’s will, construed according to ordinary principles of construction.
It has been said that there are not many cases on the question as to what is a sufficient contrary intention.[9] However, what cases there have been do provide some general guidance.
[9]Estate of Jenkinson [2000] NSWSC 495, [9] (Young J) citing Jarman on Wills, Sweet & Maxwell, eighth edition, 1951, p 466.
There are some examples of findings of contrary intention under s 33 of the Wills Act 1837 (UK). In the case of In Re Wilson,[10] Eve J indicated that he considered that, ordinarily, a gift over would indicate a contrary intention.
[10](1920) 89 LJ Ch 216.
In the case of In re Meredith; Davies v Davies,[11] the testator wrongly thought that a gift to his son had lapsed because the son had predeceased him. He therefore provided in a codicil that as the gift had lapsed, he would make a provision for his grandchildren by that son. Romer J held that the codicil showed a contrary intention because it made no express disposition to prevent the lapse taking effect.[12] However, as there was no mention of personalty in the codicil, the gift of furniture in the will took effect by virtue of the section. In rejecting one of the arguments against a finding of contrary intention, his Lordship said:
… s 33 does not say that the section shall apply unless the will says in terms that it shall not apply, but that in the event specified in the section the devise or bequest shall operate in a particular way unless the testator by his will indicates an intention to the contrary.[13]
[11][1924] 2 Ch 552.
[12][1924] 2 Ch 552, 558.
[13][1924] 2 Ch 552, 556.
There are a number of relevant Victorian decisions. The first in time was Davies v The National Trustees Executors & Agency Co of Australasia Ltd.[14] By his will and a codicil the testator left his share in Murtee station and his residuary estate equally between his three sons. One of the sons predeceased the testator leaving issue who survived the testator. After the death of the son the testator executed two further codicils which referred to the son’s death. One of the codicils altered the bequest of the testator’s share in Murtee station so that it was to be divided equally between his two surviving sons. There was no reference to the gift of residue in either codicil. Cussen J held that s 31 of the Wills Act 1890 applied. He stated:
The testator in this codicil expressly dealt with his share in Murtee station, and excluded his eldest son from a share in that but still left him in the residuary gift, and although certain distinctions were pointed out between the gift of Murtee and the residuary gift, still the fact remains that when the testator altered his will with respect to Murtee he left this residuary bequest standing as it was, and in these circumstances, and having regard to cases like Barkworth v Young [1856] 4 Dr 1 and the cases cited in it, I am not prepared to say that there is no bequest on which sec 31 can as a matter of law operate. Apart from the considerations already mentioned, I can find no evidence of “a contrary intention” either in the will or in the codicil, and I therefore think that the plaintiffs are entitled to rely on sec 31 of the Wills Act 1890, and are therefore entitled to a one-third share of the residue.[15]
[14][1912] VLR 397.
[15][1912] VLR 397, 408.
The next Victorian decision, In re King, deceased,[16] is important. By her will the testatrix provided that “in the event of my said husband predeceasing me … I give devise and bequeath the whole of my property … to such of them my two sons Sydney Oliver King and Walter Randall King as shall be living at the date of my death and if both shall be living as tenants in common in equal shares”. Both the husband and the son Walter predeceased the testatrix. Walter was survived by his daughter, who survived the testatrix. O’Bryan J held that the will expressed a contrary intention, within the meaning of s 31 of the Wills Act 1928 as substituted by s 2 of the Wills (Amendment) Act 1947. His Honour said:
Now in this case the testatrix has said: (1) survival is a condition of the gift I have given to both of you my sons; (2) if one survives and the other does not, my will is that the property shall go to the survivor; (3) if both of you predecease me I make no direction as to where the property is to go.
Now if sec 31 were to operate in favour of the son who predeceased the testatrix, Walter Randall King, the share which he would have taken if he had survived would go to his daughter. But the testatrix has said that in that event my will is that it shall go to the survivor, namely Sydney Oliver King.
In my opinion, that, as plainly as can be, indicates a contrary intention from what would happen if sec 31 is to be given operation. The testatrix has said in that event I want the property to go to my surviving son – not to the issue of the son who predeceased me. On the other hand, she has expressed no intention as to who is to take the property if both her sons were to predecease her; and so, if that event had happened, the last part of sub-sec (2) would have come into operation and in that case she would not be taken as having expressed an intention that the section shall not operate merely because she has made survivorship a condition of their taking.
In my opinion, one cannot get away from the fact that the testatrix’s will is that she is giving the property to such of these two sons as shall be living at her death, and that being her plainly expressed will, the section does not operate to effect a different disposition.[17]
[16][1953] VLR 648.
[17][1953] VLR 648, 651.
The decision in King was applied by Lowe J in The Public Trustee v Freeman; In re Lathbridge, deceased.[18] In that case, by her will the testatrix left all of her real and personal estate to her husband “or in the event of his death prior to mine to be divided between my surviving children equally”. The husband and all except one of her children predeceased the testatrix. Lowe J found that there was the relevant contrary intention, within the meaning of the amended s 31 of the Wills Act 1928. After referring to King, his Honour said:
It seems to me that (if the section applies) in the present will the words the testatrix has used show just as clearly that she intended that, if a child of hers predeceased her, the property should go to the children or child who survived and that to allow the section to operate would not carry out but would frustrate her intention.[19]
[18][1958] VR 366.
[19][1958] VR 366, 367-368.
The decision in King was criticised by “formidable academic opinion”,[20] in particular Professor Harold Ford, who made the following comment about O’Bryan J’s decision in King:
With respect, it is submitted that the legislation could not be excluded unless the testatrix showed that she had in mind one son predeceasing her and leaving issue who survived her.[21]
Professor Ford also wrote that:
… a strict view of what is required for the expression of a contrary intent would demand that the testator should show that he is adverting to the very situation which section 33 is aimed at: that it is not enough for him to provide an alternative destination for the property if the legatee should predecease him; he must say what is to happen to the property if the legatee predeceases him leaving issue who survive the testator.[22]
[20]Public Trustee of Queensland v Jacob [2007] 2 Qd R 165, [43] (White J).
[21]Ford: Lapse of Devises and Bequests (1962) 78 LQR 88, p 105. See also Hardingham, Neave and Ford: Wills and Intestacy in Australia and New Zealand, The Law Book Company Limited, second edition, 1989, p 240.
[22]Ford: Lapse of Devises and Bequests (1962) 78 LQR 88, pp 104-105. See also Hardingham, Neave and Ford: Wills and Intestacy in Australia and New Zealand, The Law Book Company Limited, second edition, 1989, p 240.
However, this strict view was rejected by the Full Court, sitting as the Appeal Division of this Court, in Bassett v Hall.[23] In that case, the testatrix bequeathed her residuary estate to “my two sons … as shall be alive at the date of my demise”. One of the sons predeceased the testatrix, but he was survived by five children who claimed an entitlement to the residuary estate under s 31 of the Wills Act 1958. Marks, Gobbo and Coldrey JJ in their joint judgment stated that notwithstanding criticism by academic writers:
In our view … the decision in Re King is in our opinion no more than a reasonable example of what was found to be, in the context of that will, a sufficient indication of a contrary intention.[24]
[23][1994] 1 VR 432.
[24][1994] 1 VR 432, 435.
The Full Court in Bassett dismissed the appeal by the five children of the deceased son. Their Honours said:
Turning first to the argument as to the meaning of contrary intention, we are unable to agree that these words have a special meaning in s 31 which they do not have elsewhere. It will be a question in each case as to whether a contrary intention is disclosed in the will. There is no warrant for reading into the statute a requirement that there must be manifested in specific terms an intention to exclude known issue of any beneficiary who does not survive the testator.
In our opinion, where the will provides that in the event of one of the two named beneficiaries predeceasing the testator, the surviving beneficiary was to take the whole gift, this would ordinarily suffice to demonstrate a contrary intention for the purposes of s 31. It is not necessary that there be an exclusion of a gift over to the issue of the beneficiary who predeceased the testator. Such a requirement would be tantamount to saying that the only effective contrary intention would be an express exclusion of s 31.
…
In our opinion, the devise in the present will was such as to convey a contrary intention to justify the exclusion of s 31.[25]
[25][1994] 1 VR 432, 434-435.
There is one recent New South Wales decision, in which nearly all of the above authorities were considered by Young J (as his Honour then was). In Estate of Jenkinson,[26] the testatrix left her residuary estate to her daughter “but if she should predecease me then to her husband …”. Both the daughter and her husband predeceased the testatrix, but their son survived. The testatrix was also survived by her son. Section 29 of the Wills Probate and Administration Act 1898 (NSW) provided that if a child or other issue of the testator predeceased the testator, a devise or bequest to such child or other issue would not lapse if the beneficiary left issue who survived the testator “but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will”. Young J held that a contrary intention had been shown and the section did not operate with the result that the testatrix died intestate as to her residue. His Honour said that he would follow the approach in Bassett as it was the decision of an interstate Full Court:
Thus in my view I should not adopt any “strict view” of s 29 but follow the line of cases that indicates that it is ordinarily a sufficient contrary intention if the testator has in the will made a gift over in the event that a particular child does not survive the testator.
[26][2000] NSWSC 495.
I also refer to a number of relatively recent Queensland decisions. The first one is the decision of Derrington J in Re the Will of Macaudo.[27] By clause 8 of his will the testator left a freehold property to “such of them my sons … as shall be living at the date of my death and if more than one in equal shares as tenants in common”. Clause 9 of the will provided that the residuary estate was left to “such of my said children as shall be living at the date of my death and if more than one in equal shares as tenants in common provided always … that if any of my said children shall predecease me leaving a child or children him or her surviving such grandchild or grandchildren and if more than one equally between them shall take the share benefit or interest to which his her or their parent would have been entitled … had such parent survived me and attained a vested interest”. The will was governed by s 32 of the Succession Act 1981 (Qld) so that a son, Mario, who died 13 days after the testator, was deemed to have predeceased him (because he had not survived the testator for a period of 30 days).[28] But s 65 of the Succession Act 1867 (Qld) which otherwise applied to the will provided that where a son who predeceased (even presumptively) a testator left issue, he was deemed to have died after the testator unless a contrary intention appeared in the will. Mario was survived by his wife and adult children.
[27][1993] 2 Qd R 269.
[28]For the Victorian equivalent, see s 39(1) of the Wills Act 1997.
Derrington J held that no contrary intention within the meaning of s 65 appeared in the will, so that the devise of the property under clause 8 was to the testator’s son, Angelo, for a one half share and to the beneficiaries of the estate of Mario for the other half share as tenants in common, and that the gift of the residuary estate under clause 9 which Mario would have taken had he survived the testator by 30 days was shared by his surviving children equally.[29]
[29][1993] 2 Qd R 269, 275.
One argument advanced in favour of a contrary intention was pursuant to the principle expressio unius exclusio alterius, given that there was an expression of substitution in clause 9 in favour of the children of any deceased child of the testator, but there was no such provision in clause 8. His Honour rejected this argument:
However, the expressio unius principle does not apply here because the substitution effected by the statute does not correspond with that expressed in cl. 9. This alone is enough to exclude the above principle, but in any case, applying the appropriate caution, it is difficult to come to the conclusion that even if the first reason were not available, the testator would have manifested a contrary intention to a sufficient degree by this means particularly as in their ordinary meaning the words used lead to a conclusion identical to that produced by the section. It may confidently be said that no such contrary intention appears.[30]
When earlier dealing with the question of whether an intention contrary to s 32 appeared in the will, his Honour had said that:
The expressio unius doctrine is one which must not be applied other than cautiously and the implication is destroyed if the existing provision may have been inserted ex abundante cautela:Hall Brothers Steamship Co v Young [1939] 1 KB 748, 758.[31]
[30][1993] 2 Qd R 269, 274.
[31][1993] 2 Qd R 269, 272.
In Public Trustee of Queensland v Robertson,[32] by his will the testator left the residue of his estate to his two children “as shall survive me for a period of thirty (30) days and if both in equal shares”. The first question was whether the Public Trustee could distribute the estate on the basis that there was doubt about the existence of the son. He had left Australia in about 1984 “under a cloud” and had not been heard of for many years. The son left a daughter who survived the testator. The testator’s daughter also survived the testator. Douglas J said in his judgment:
[32][2005] 2 Qd R 444.
The next question is whether in exercising those powers he should do so on the basis that s 33(1) of the Succession Act1981 applies. That section provides that:
“Unless a contrary intention appears by the will, where any beneficial disposition of property is made to any issue of the testator … for an estate or interest not determinable at or before the death of that issue and that issue is dead at the time of the execution of the will or does not survive the testator for a period of 30 days, the nearest issue of that issue who survive the testator for a period of 30 days shall take in the place of that issue”.
Section 33(2) goes on to provide that a general requirement or condition that issue survive the testator or attain a specified age is not a contrary intention for the purpose of this section.
Mr Nickel, for the Public Trustee, has taken me to a number of authorities dealing with this section particularly with the situation that occurs when a will provides, for example, when referring to a legatee as one who “shall be living at my death”, whether that indicates a contrary intention for the purposes of s 33(1).[33]
[33][2005] 2 Qd R 444, 446.
His Honour then referred to two unreported conflicting single justice decisions and continued:
The problem with the application of s 33 particularly arises because of the language of s 33(2) that a general requirement or condition that such issue survive the testator is not a contrary intention for the purpose of the section.
McPherson JA in Burman v. Burman [1998] QCA 250 addressed the issue at [6] and said:
“A possible view of the expression ‘such of my sons as shall survive me’ is, however, that it is neither a requirement nor a condition but rather an essential element in the description of the beneficiaries. If the mere use of the word ‘survivor’, or some other form of that word, to designate a beneficiary is invariably neutralised by s 33(2), then the effect is, to some extent, to restrict the full testamentary freedom which has hitherto existed of disposing of property at death. It becomes considerably more difficult to expressly provide for lapse unless an apt synonym can be found for the word ‘survivor’ or ‘survives’ that will succeed in escaping the impact of s 33(2).”
The language in this will goes beyond a general requirement or condition that the issue survived the testator in specifying that the residue goes to such of the children “as shall survive me for a period of 30 days” and goes on to say and “if both in equal shares”. The clear inference from that use of language is that if one child does not survive the testator for 30 days the other child takes the whole of the residuary estate.
That seems to me to be something more than a general requirement or condition that the issue survive the testator …
I further order that in those circumstances s 33 of the Succession Act1981 does not apply.[34]
[34][2005] 2 Qd R 444, 447.
Finally, in Public Trustee of Queensland v Jacob,[35] by her will the testatrix left the residue of her estate to such of her five named children “as shall survive me for a period of thirty (30) days and if more than one in equal shares”. After reviewing many of the above authorities, White J held that s 33 of the Succession Act 1981 did not apply because there was a contrary intention in the will. Her Honour said:
The words “if more than one in equal shares” cannot be surplusage. Without s 33(2) the plain meaning is that the testatrix wished to benefit survivors. The mischief sought to be remedied by the inclusion of s 33(2) is also plain. But the meaning contended for, namely, that the words are descriptive of the size of the gift is not compelling. Anything other than equality of shares would need to be specified not the reverse. Whatever the commentators might wish and what might be the practice and without adhering to form over substance, when a testatrix says “to those of my children [who are named] as shall survive me for a period of thirty (30) days and if more than one in equal shares” she must intend to benefit by those words only her surviving children and not their issue. This conclusion is amply supported by the authorities to which I have referred.[36]
[35][2007] 2 Qd R 165.
[36][2007] 2 Qd R 165, [48].
Her Honour applied King, Bassett and Robertson and did not follow Macaudo. When discussing the latter decision, her Honour said:
By his Honour's failure to advert to the phrase “if more than one in equal shares” (he passingly refers to “as tenants in common”) it must be concluded that he did not consider they evinced an intention contrary to s 32.[37]
[37][2007] 2 Qd R 165, [37].
One point is clear from this consideration of the few authorities. It is that, pursuant to the decision of the Full Court of this Court in Bassett, I am bound not to apply the strict view of s 45 referred to above. In this case, the strict view would mean that a contrary intention within the meaning of s 45 would only be found if the testatrix had said what was to happen to the Northcote property if Reginald predeceased her, apart from it being left to his children. Notwithstanding the high regard in which Professor Ford is held, that approach is not open as a result of Bassett. Further, the authorities are merely illustrative of the construction exercise undertaken of the will in question, and, ultimately, it is the words of Jean Reardon’s will that I must consider in deciding whether they disclose a contrary intention so as to preclude the operation of s 45(1) of the Wills Act.
In my opinion, a contrary intention does appear in the will in this case. Clause 5 of the will would suggest that the testatrix turned her mind to the question of what was to happen to the bequest, in this case of the residue, should any of her two children pre-decease her. No such provision was contained in clause 3. It seems to me, therefore, that the principle expressio unius exclusio alterius is applicable. The rejection of a similar approach by Derrington J in Macaudo can, in my opinion, be distinguished. As discussed above, his Honour primarily based his decision on the fact that the substitution effected by the statute (child dies immediately after testator meaning the property was governed by Mario’s will or the intestacy rules) did not correspond with that expressed in clause 9 of the will (issue of child takes that person’s interest). Here, the outcome flowing from the application of s 45(1), that Reginald’s children take the gift of the Northcote property that would have gone to him had he survived his mother, is the same result as provided for in clause 5 of the testatrix’s will.
Alternatively, if this not be a valid distinction, then I must respectfully disagree with his Honour’s approach to the expressio unius principle. Reading the will as a whole, the contrast between the provisions of clause 3 and clause 5 is, as counsel for the plaintiff submitted, clear and unmistakeable. It seems to me that the only reason why clause 3 did not contain the provision appearing in clause 5, about what was to happen to the property if one of the testatrix’s children predeceased her, was because she did not intend Reginald’s children to benefit from the gift of the Northcote property if he predeceased her. It does not make sense, in my opinion, to suggest that the important provision, about what was to happen to the residuary gift if one of the testatrix’s children predeceased her, was inserted in clause 5 out of an abundance of caution. On the contrary, it seems to me that, properly construed, that provision in clause 5 was inserted to give effect to the testatrix’s intention as to the destination of the gift of the residuary estate should a child predecease her that was to be in contra-distinction to the destination of the gift of the Northcote property in clause 3 of the will in the same eventuality. Moreover, applying the expressio unius principle in a cautious manner still leads, in my opinion, to the conclusion that the testatrix did not intend the same result with respect to the Northcote property if her son predeceased her. Therefore, in my opinion, a contrary intention does appear in the will.
Conclusion
I have, therefore, concluded that there should be declarations and orders that:
1.Section 45(1) of the Wills Act 1997 does not apply to clause 3 of the Will of Jean Elizabeth Reardon, deceased, as a contrary intention appears in the Will.
2.The gift by the deceased of all of her right title and interest in the property situate at and known as 12 Hakatere Street, Northcote lapses and the said property falls into the residue of the Estate of the deceased.
3.The plaintiff’s costs of the proceeding be paid or retained out of the Estate of the deceased on an indemnity basis.
4.The defendants’ costs of the proceeding be paid out of the Estate of the deceased on an indemnity basis.
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