McKelvie v Save the Children Impact Fund Limited
[2024] WASC 75
•19 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCKELVIE -v- SAVE THE CHILDREN IMPACT FUND LIMITED [2024] WASC 75
CORAM: WHITBY J
HEARD: 19 MARCH 2024
DELIVERED : 19 MARCH 2024
FILE NO/S: CIV 1756 of 2023
BETWEEN: VERNA LYNETTE MCKELVIE
Plaintiff
AND
SAVE THE CHILDREN IMPACT FUND LIMITED
Defendant
Catchwords:
Wills - Proper construction of handwritten will - Turns on own facts
Legislation:
Administration Act 1903 (WA)
Wills Act 1970 (WA)
Result:
Proper construction of will gifts entire estate to the plaintiff
Category: B
Representation:
Counsel:
| Plaintiff | : | B W Ashdown |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Mayberry Hammond & Co |
| Defendant | : | No appearance |
Case(s) referred to in decision(s):
Muir v Winn [2009] NSWSC 857
Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998)
Perrin v Morgan [1943] AC 399
Sidle v Queensland Trustees Ltd [1915] HCA 48
Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [2018] WASC 91
Walsh v Sloan [2019] WASCA 107
WHITBY J:
(This judgment was delivered extemporaneously on 19 March 2024 and has been edited from the transcript).
Introduction
Malcolm George Roberts (the deceased) died on 17 May 2022.
The deceased made a handwritten will on 3 September 2021 (the Will). The deceased named Verna Lynette McKelvie, the plaintiff, as the sole executor of his Will.
Probate of the Will was granted to the plaintiff on 17 April 2023.
The dispositive clause of the Will states:
I Give Devise and Bequeath all my real estate and personal property - including, all goods chatels (sic), motor vehicles, all my jewelry (sic) including all monies in any financial institution bank or where-ever
Provided Verna Lynette McKevie (sic) survies (sic) me by more than 30 (thirty days)
And if not then I give the residue of my real estate and personal estate to:
1.Starlight Foundation as the Executor to divide it amongst four equal charities: After paying all expenses (residual)
1.Make a Wish Foundation
2.Starlight Foundation
3.Save the Children Fund
4.Leukemia Foundation
The plaintiff, as executor of the deceased's estate, seeks an order pursuant to s 45 of the Administration Act 1903 (WA) (Administration Act) that the opening dispositive clause of the Will beginning with the words 'I Give Devise and Bequeath' be construed as a gift of all the deceased's property to the plaintiff.
The plaintiff relies upon her affidavits sworn on 14 July 2023 and 11 March 2024 in support of her application (First McKelvie Affidavit and Second McKelvie Affidavit respectively).
For the reasons that follow, I am satisfied that, pursuant to s 45 of the Administration Act, the dispositive clause of the Will beginning with the words 'I Give Devise and Bequeath' should be construed as a gift of all the deceased's estate to the plaintiff.
Position of the residual beneficiaries
The plaintiff provided the Starlight Children's Foundation, Make A Wish Foundation, Save The Children Fund, Leukaemia Foundation and the State Solicitor's Office a copy of the grant of probate and her proposed application.[1]
[1] Second McKelvie Affidavit [2].
On 6 July 2023, Make A Wish Foundation advised by email it will wait for further communication after proceedings have finalised.[2]
[2] Second McKelvie Affidavit [4]; annexure VLM-2.
On 12 July 2023, the State Solicitor's Office advised it does not wish to be heard on the proposed application.[3]
[3] Second McKelvie Affidavit [6]; annexure VLM-4.
On 14 July 2023, the Starlight Children's Foundation advised by email that it does not wish to be included in the proposed application.[4]
[4] Second McKelvie Affidavit [3]; annexure VLM-1.
On 17 July 2023, the Leukaemia Foundation advised it would not oppose the application.[5]
[5] Second McKelvie Affidavit [5]; annexure VLM-3.
Save the Children Impact Fund Limited is named as the defendant in its capacity as a residual beneficiary. The defendant was served on 10 August 2023[6] and has not filed an appearance.
[6] Affidavit of Service of Adam William Beggs sworn 23 August 2023 [1] - [5].
The deceased married three times during his lifetime and was divorced as at the date of his death. The deceased did not have any children. The plaintiff deposes that the deceased told her he did not have any living relatives.[7]
[7] First McKelvie Affidavit [10].
Legal Principles
The proper construction of the Will is a question arising in respect of any will within s 45 of the Administration Act.
Section 45(1) of the Administration Act provides:
45 Court may settle all questions arising in administration
(1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate with an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
In construing a will, the object is to ascertain the intention of the testator as expressed in the will itself. In an oft-cited passage, Lord Simon LC said in Perrin v Morgan:[8]
[T]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator.
[8] Perrin v Morgan [1943] AC 399, 406, cited with approval in Walsh v Sloan [2019] WASCA 107 [24] (Walsh).
The Wills Act 1970 (WA) (Wills Act) contains various provisions which set govern construction of a will. Section 26(1) of the Wills Act provides:
26. General rules of construction
(1)Unless the contrary intention appears by the will -
(a)the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;
(b)property that is the subject of a disposition, other than the exercise of a power of appointment, that is void or fails to take effect is to be included in any residuary disposition contained in the will;
(c)a general disposition of land or of the land in a particular area includes leasehold land whether or not the testator owns freehold land;
(d)a general disposition of all the testator's property or of all the testator's property of a particular kind includes property over which the testator had a general power of appointment exercisable by will and operates as an execution of the power;
(e)a disposition of property without words of limitation whether to a person beneficially or as executor or trustee is to be construed as passing the whole estate or interest of the testator therein;
(f)a disposition of the residue of the estate of a testator, or of the whole of the estate of a testator, that refers only to -
(i)the real estate of the testator; or
(ii)the personal estate of the testator, is to be construed to include both the real and personal estate of the testator;
(g)if any part of a disposition in fractional parts of the whole or of the residue of the estate of a testator fails, the part that fails accrues to the part that does not fail, and, if there is more than one part that does not fail, to all those parts proportionately.
Section 28A of the Wills Act provides:
28A. Use of extrinsic evidence to clarify will
(1)In proceedings to construe a will, evidence, including evidence of the testator's intention, is admissible to the extent that the language used in, or other content of, the will renders the will or any part of the will –
(a)meaningless; or
(b)ambiguous on the face of the will; or
(c)ambiguous in the light of the surrounding circumstances.
(2)Evidence of a testator's intention is not admissible to establish any of the circumstances referred to in subsection (1)(c).
(3) Nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
(4)This section applies to the will of any person dying on or after the day on which section 22 of the Wills Amendment Act 2007 comes into operation, whether the will was made or executed before, on or after that day, but does not apply to the will of a person who died before that day.
Section 28A largely reflects the common law position known as the 'armchair principle'. In Mustard v Oikonomov,[9] referring to the armchair principle, Owen J said:
This principle allows the court to admit extrinsic evidence about the testator's property, family, acquaintances and friends for the purpose of putting the court in a position to read the will as the testator would have read it. That is, the court will allow evidence to be admitted of factual circumstances surrounding the testator when the will was made: Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65. Under this approach, evidence as to the testator's intentions is not admissible. If after the admission of this factual evidence the words still remain ambiguous, then (except in the case of equivocation) no further evidence will be admitted and the disposition will be void for uncertainty.
[9] Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998) 7, cited with approval in Walsh [26].
In undertaking the task of construing a will, the court does not consider passages or clauses in isolation but construes them having regard to the terms of the will as a whole.[10]
[10] Sidle v Queensland Trustees Ltd [1915] HCA 48; Muir v Winn [2009] NSWSC 857 [3] - [4].
The court's power to rectify a will is not an alternative to properly construing a will.[11] Section 50(1) of the Wills Act provides:
The Court may make an order rectifying a will to carry out the intentions of a deceased testator if the Court is satisfied that the will does not carry out the testator's intentions because -
(a)a clerical error was made; or
(b)the will does not give effect to the testator's instructions.
[11] Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [2018] WASC 91 [22].
It is condition precedent to the exercise of a court's power to rectify a will pursuant to s 50(1) of the Wills Act that the will does not carry out the testator's intentions. This requires that a will be construed and found, upon its proper construction, not to give effect to the intentions of the testator.
Therefore the court must first determine what the meaning of the will is, on its proper construction, and then determine the testator's intentions at the time of making the will. If the former does not accord with the latter, then the court may rectify the will pursuant to s 50(1) of the Wills Act.[12]
[12] Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [23].
Proper construction of dispositive clause
I first turn to consider the proper construction of the dispositive clause of the Will, having regard to the terms of the Will as a whole.
In my view, the dispositive clause, by including the condition 'provided [the plaintiff] survive the deceased by more than 30 days' clearly links the intended disposition of the deceased's real estate and personal property to the plaintiff.
The dispositive clause is illogical unless it is construed in this way. I find that, upon the proper construction of the dispositive clause the deceased gifts his entire estate to the plaintiff.
Secondly, I turn to consider the testator's intention at the time of making the Will. There is clear and convincing evidence, in the form of the First McKelvie Affidavit, that the deceased's intention at the time that he made the Will, was to gift his entire estate to the plaintiff provided she survived him by 30 days.
That evidence is:
(1)on 17 January 2021, the deceased nominated the plaintiff as his next of kin for the purposes of any medical and health matters.[13] He had not withdrawn this at the time the deceased made the Will;
(2)on 22 January 2021, the deceased prepared a document entitled 'Living Document - Specific Deed of Authority' by which he authorised the plaintiff to do certain things on his behalf.[14] This had not been withdrawn at the time the deceased made the Will;
(3)in September 2021, the deceased told the plaintiff's son, Clinton Lloyd Williams, that he was leaving all of his possessions to the plaintiff and that the plaintiff was his executor;[15]
(4)the deceased also told the medical receptionist at his general practitioner's practice, Kristen Perkins, that he was leaving his belongings and estate to the plaintiff;[16]
(5)in March and April 2022, after the deceased had made the Will, he took steps to have his property in Beverley transferred to the plaintiff - including making enquiries with Landgate and filling out Landgate forms.[17] These forms were not completed because the deceased and the plaintiff mistakenly thought they needed to complete verification of identity forms before they completed the transfer of land forms. The deceased and the plaintiff attempted to complete the verification of identity forms but had the wrong documentation and eventually the deceased became too unwell to do so.[18]
[13] First McKelvie Affidavit [24]; annexure VLM-5.
[14] First McKelvie Affidavit [26]; annexure VLM-6.
[15] First McKelvie Affidavit [36]; annexure VLM-7.
[16] First McKelvie Affidavit [36]; annexure VLM-8.
[17] First McKelvie Affidavit [43] - [51]; annexures VLM-10 - VLM-13.
[18] First McKelvie Affidavit [52] - [57].
The intentions of the testator at the date that he made the Will conform with the proper construction of the Will.
I find that, on the proper construction of the terms of the Will, the opening dispositive clause beginning with the words 'I Give Devise and Bequeath' should be construed as a gift of all the deceased's real estate and personal property to the plaintiff. It is not necessary for the court, nor is the court permitted, to the make an order for rectification of the Will.
Final orders
I make the following orders:
(1)pursuant to section 45 of the Administration Act 1903 (WA) the court construe the opening dispositive clause of the will of the later Malcolm George Roberts (deceased) dated 3 September 2021 (Will) as a gift of all the deceased's property to Verna Lynette McKelvie;
(2)A certified copy of these orders be included in the Grant of Probate of the last Will of the deceased; and
(3)the plaintiff's costs be paid from the estate of the deceased on an indemnity basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
19 MARCH 2024
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