McDonald v Freston

[2002] VSC 177

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8693 of 2001

IN THE MATTER of the will and estate of JOHN PERCIVAL FRESTON deceased

IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 1996 for the determination of questions arising in the administration of the estate

BETWEEN

MAUREEN ETHEL McDONALD (As one of the Executors of the Will of the abovenamed deceased)	Plaintiff
and
JOHN MAXWELL FRESTON	Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2002
DATE OF JUDGMENT:	17 May 2002
CASE MAY BE CITED AS:	McDonald v Freston
MEDIUM NEUTRAL CITATION:	[2002] VSC 177

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Wills – construction – informal testamentary document – “the rest”

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R R Boaden	McDonald Slater & Lay Solicitors
For the Defendant	Mr R B Phillips	Wills & Probate Victoria

HIS HONOUR:

1. By originating motion filed on 12 December 2001, the plaintiff, Maureen Ethel McDonald, as one of the executors of the will of John Percival Freston deceased, seeks the assistance of the Court as to the true construction of the documents admitted to probate as constituting the will of the deceased, her father, John Percival Freston, who died on 24 November 1999.  The defendant is her brother, John Maxwell Freston.

1. Admitted to probate on 1 February 2002 were three documents: a formal will dated 21 September 1995 prepared by a solicitor and executed in the conventional way in the presence of witnesses, and two documents which were proved pursuant to s 9 of the Wills Act 1997. The first of these informal documents was a handwritten note dated 2 June 1998 containing a list of bequests. The second was a doctor’s appointment card, undated but recording an appointment for 9 February, year unstated. Upon this card appears in the deceased’s handwriting simply the words and figures, “$1000 PERSONALLY.” This card has been treated as giving a legacy of $1,000 to the named doctor. Under the formal will, the whole of the estate of the deceased passed to his two children, Mrs McDonald and Mr Freston, in equal shares. As a consequence of the order of 1 February 2002, these three documents, read together, constitute the will of the deceased.

1. This case concerns the construction of certain words in the 1998 document.  The document is in the following terms:

2-6-98
Maureen.  Mal.  Max
All grandchildren to get	$5000 each
Saige to get invested and used towards her schooling	2000
Claire, Freston	$20,000
Angie Barrile	2,000
OLA. Church to be paid off debt	5 000
MAL. has right to buy other half of C.B. if he wants to at same price as first half.
Table in Loungeroom to MAUS
GRANDFATHER CLOCK	EMMA
MARBLE CLOCK	MAX
The rest to BE divided between the three of you.
hope MAX will help CLAIRE with money
KENS 3 GRANDCHILDREN, IN MENTONE
3 THOUSAND DOLLARS.  ONE IN WHEELCHAIR
1         “  “
1         “  “
JPF
Love to all   Jack

The reference to “Maus” is a reference to the plaintiff, Mrs McDonald; that to “Max” is a reference to the defendant, Mr Freston; and that to “Mal” is a reference to Malcolm Donald McDonald, the husband of Mrs McDonald.

1. None of these specific dispositions or legacies is disputed; at issue is the meaning of the phrase, “The rest to be divided between the three of you.”  The residuary estate is valued at approximately $525,000.

1. The plaintiff assumed the task of presenting argument in support of the proposition that the meaning of the disputed phrase was that the whole of the residue was to be divided equally between the three addressees.  This has the consequence that the formal will of 1995 is revoked and replaced by the 1998 document. 

1. The defendant argued that the disposition under the formal 1995 will is unaffected by the 1998 document except insofar as it creates a number of specific dispositions.  This argument would give to the words “the rest” the meaning “the rest of the chattels in the family home.”  This conclusion, counsel submitted, flowed from the fact that the 1998 document contained no clear indication revoking the earlier will.  Next it was said that the dispositions in this document were of personalty only and that “the rest” was likewise directed to personal property.  Further, the location of the words immediately following a series of dispositions of chattels in the home suggested that “the rest” meant the rest of those chattels.

1. There were in evidence three letters from the wife of the deceased, Ethel Bridget Freston, to her husband, undated, and to her son and son-in-law each dated 12 July 1997.  It was contended, albeit faintly, that I should have regard to these as an indication of the intention of the deceased some twelve months later as to the distribution of his residuary estate.  This cannot be so as a matter of fact, since the documents do not show the intention of the deceased, or as a matter of law, since extraneous evidence is not normally admissible upon the construction of a will.  I have had no regard to these letters.

1. It is clear that the resolution of this matter turns on the construction of the phrase in the 1998 document dealing with “the rest.” The proper approach of the court when interpreting wills is expressed by Lord Wensleydale:

“The first duty of the court expounding the will is to ascertain what is the meaning of the words used by the testator.  It is very often said that the intention of the testator is to be guide; but the expression is capable of being misunderstood, and may lead to a speculation as to what the testator may be supposed to have intended to write, whereas the only and proper inquiry is, “What is the meaning of that which he has actually written”?  That which he has written is to be construed by every part being taken into consideration according to its grammatical construction, and the ordinary acceptance of the words used, with the assistance of such parol evidence of the surrounding circumstances as is admissible to place the court in the position of the testator.”[1]

[1]Roddy v Fitzgerald (1858) 6 H.L. Cas. 823 at 876; 10 E.R. 1518 at 1539.

1. My task is to discover the testator’s intention by an examination of the wording of the document.  I find that the terms of the 1998 document disclose no ambiguity.  I construe the reference in the 1998 document to “the rest” as a disposition of the whole of the residuary estate.  The dispositions in the document go beyond the chattels in the home and include a reference to real property at Coronet Bay, referred to in the document as “CB”, which was owned as to one half by the deceased as tenant in common with Mr and Mrs McDonald.  In any event, there is no warrant for the application in a document such as this of rules of construction of legal documents, such as eiusdem generis.  I see no reason to read down the plain meaning of the expression “the rest”.  Accordingly, the residuary estate is to be divided equally between the three persons to whom the 1998 document is addressed: Maureen Ethel McDonald, Malcolm Donald McDonald and John Maxwell Freston.

1. Accordingly, I propose that the questions in the originating motion be answered as follows:

1.The executors hold the residue of the estate of the deceased for Maureen Ethel McDonald, Malcolm Donald McDonald and John Maxwell Freston.

2.        (a)       yes.
           (b)      no.
           (c)       no answer.

1. I will hear counsel as to the precise terms of the order and as to costs.

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