Morgan v Moore
[2000] VSC 94
•23 March 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
COMMERCIAL & EQUITY DIVISION
No. 5905 of 1999
| KEVIN JOHN MORGAN (who sues as Executor of the Estate of ELSIE JEAN BOULTON (deceased) | Plaintiff |
| v | |
| ANDREW PERCY MOORE (by his Litigation Guardian IAN MICHAEL CARTER) and SHERRY MAY STAFFORD | Defendants |
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JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2000 | |
DATE OF JUDGMENT: | 23 March 2000 | |
CASE MAY BE CITED AS: | Morgan v Moore & Anor | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 94 | |
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Wills – construction – use of extrinsic evidence – meaning of expression "my grandchildren" – Wills Act 1958, s.22A – Wills Act 1997, s.36 - testator's "armchair principle".
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr R.B. Phillips | McDonough & Co |
| For the First Defendant | Mr S. Newton | McIntyre & Carter |
| For the Second Defendant | Mr P. Barton | P.J. Cannon & Coburn |
HER HONOUR:
The plaintiff, as executor, seeks clarification of the expression "my grandchildren" in a will.
Elsie Jean Boulton ("the testator") died on 21 April 1998.
Before her death the testator executed a will on 30 July 1997 ("the previous will") prepared by her solicitor, Paul Anthony McDonough. In that will the testator after the payment of a bequest left her residuary estate to her trustee upon trust to be divided into eight equal parts to be distributed as follows:
(1)Six equal parts to the Royal Children's Hospital Research Foundation ("the hospital").
(2)One part to the daughter of the deceased, Colleen Maria Moore.
(3)One part to the daughter of the deceased, Veronica Stoner Bowman.
The further will provided that if either of the daughters of the testator pre‑deceased her and was survived by children who attained the age of 21 years such children would take and if more than one in equal shares the share that his, her or their parent would have taken.
At the time that the solicitor, Mr McDonough took instructions from the testator for the preparation of the previous will he raised specifically with her the extent and adequacy of the proposed provision for the named daughters of the testator, Colleen Moore and Veronica Bowman compared with the provision made for the hospital. Notwithstanding the discussion with Mr McDonough the testator proceeded to make the previous will in the form described. A few days after executing the previous will the testator returned to the offices of Mr McDonough on 4 August 1997 and gave him instructions to draw a new will. The testator informed Mr McDonough that her estate was worth about $370,000 and that she wanted to leave one‑eighth of her estate to her children, Colleen Moore and Veronica Bowman and the balance between her five grandchildren being the children of the daughters Colleen and Veronica. As a result of the further instructions on 4 August 1997 Mr McDonough prepared a further will.
On 5 August 1997 the testator executed a further will which was her last will ("the will"). In the will the testator left a bequest and thereafter in clause 3 left the residue of her estate to her trustee to be divided into 400 equal parts to be held upon trust, as follows:
"3(a)As to seventy five (75) equal parts of shares for such of them my grandchildren as shall survive me and attain the age of 21 years as tenants in common in equal shares;
(b)As to seventy five (75) equal parts of shares for such of them my grandchildren as shall survive me and attain the age of 22 years as tenants in common in equal shares;
(c)As to seventy five (75) equal parts of shares for such of them my grandchildren as shall survive me and attain the age of 23 years as tenants in common in equal shares;
(d)As to seventy five (75) equal parts of shares for such of them my grandchildren as shall survive me and attain the age of 24 years as tenants in common in equal shares;
(e)As to fifty (50) equal parts or shares for my daughter Colleen Maria Moore;
(f)As to the remaining fifty (50) parts or shares for my daughter Veronica Stoner Bowman."
The will further provided that in the event that either of the children of the testator, Colleen Moore and Veronica Bowman, pre‑deceased her leaving a child who attained the age of 21 years such child would take and if more than one equally the share that his, her or their parent would have taken. In clause 5 of the will the testator provided:
"5. I DECLARE that I have made no further provision in this my will for my children as I receive no support or comfort from them".
On both occasions that the testator gave instructions to Mr McDonough for the drawing of the previous will and the will she did not inform him that she had been married more than once. Further, she did not inform Mr McDonough that she had children from any previous marriage or relationship or that she had grandchildren other than the children of her daughters Colleen Moore and Veronica Bowman. Mr McDonough had acted as solicitor for the testator for a period of approximately ten years prior to her death and at no stage had she informed Mr McDonough of another marriage or of grandchildren other than the children of her two daughters, Ms Moore and Ms Bowman.
The fact was that during her lifetime the testator was first married to Algeron Norton Stafford and there were two children of that marriage. Firstly, Judith Ann Ward born on 3 July 1942 and who had two children of her own, Desiree Nahoum born on 8 September 1965 and Naome Nahoum born on 8 December 1971. Secondly, Kevin John Stafford born on 2 September 1943 and who had four children of his own, Sherry May Maree Stafford born on 28 March 1965, Evilyn Olive McMahon born on 7 January 1967, Belinda Lee Stafford born on 29 May 1969 and Abigail Stephanie Stafford born on 5 May 1972. I was not informed of the circumstances by which the tesetator was widowed or divorced from her first husband. Subsequently, the testator had an ex‑nuptial child, Colleen Moore born in about 1956 and who had two children, Andrew Percy Moore born on 6 June 1982 and Caroline Elsie Moore born on 16 October 1984. Later in time, the testator married Alfred Stoner Boulton and there were two children of that marriage, Veronica Bowman born in about 1969 and Christopher who died as a teenager. Veronica Bowman had three children, Nicholas John Bowman born 1 December 1985, Alexandra Stoner Bowman born 3 October 1987 and James Anthony Bowman born 28 November 1990. The marriage and birth history of the testator were not the subject of formal evidence. However, the history as described was agreed to by the parties before me for the purposes of the proceedings.
These proceedings were brought by the plaintiff in his capacity as executor seeking declarations as to the meaning of the words in the will of the testator "for such of them my grandchildren". It was said that there is uncertainty as to when the testator referred to "grandchildren" in the will whether she meant the children of Judith Ward and Kevin Stafford whom I refer to hereafter as "the Group A Grandchildren" and the children of Colleen Moore and Veronica Bowman whom I refer to hereafter as "the Group B Grandchildren" or the latter group only. The Group B Grandchildren asserted that the residuary estate of the deceased should be distributed on the basis that the expression "grandchildren" in the will referred to those grandchildren only. The Group A Grandchildren contended that the expression "grandchildren" in the will included them as well as the Group B Grandchildren. Accordingly, the plaintiff sought a construction by the court of clauses 3(a) to (d) of the will as to who is included in the expression "for such of them my grandchildren as shall survive me and attain the age of … ". The plaintiff conceded that the Group A Grandchildren and the Group B Grandchildren were all the "grandchildren" of the testator but that they may not necessarily all be "the grandchildren" for the purposes of the will. The first defendant, Andrew Percy Moore by his litigation guardian represented the Group B Grandchildren and the second defendant, Sherry May Stafford represented the Group A Grandchildren.
The matters described with respect to the taking of instructions by Mr McDonough were deposed to by him in affidavits filed in the proceeding. Mr McDonough was called to give evidence and he confirmed and adopted his two affidavits. He was cross‑examined by Mr P. Barton, counsel for the second defendant, representing the Group A Grandchildren. In the course of cross‑examination Mr McDonough said that the time taken to obtain instructions for the previous will was approximately 20 to 30 minutes. Mr McDonough said that when the testator made the previous will leaving the bulk of her estate to the hospital he had expressed concerns to the testator as to whether the will would be vulnerable to challenge under Part IV of the Administration and Probate Act 1958. Mr McDonough said that the testator came back to see him some days later and said that she had re‑thought the previous will and wanted at that point to leave the three‑quarter share that she had previously provided for the hospital to her grandchildren. Mr McDonough said that he asked the testator how many grandchildren she had and she informed him that she had five grandchildren. He asked the testator, also, how many children she had and she said that she had two children. The testator instructed Mr McDonough as to the value of her estate and on the basis of that information he prepared calculations for the testator saying how much each of the children and the five grandchildren would receive. Mr McDonough gave evidence that the testator said "That's in order". Furthermore, in the course of instructions for the will there was some discussion concerning the age at which the grandchildren were to receive their share. Originally the testator wanted the grandchildren to attain 25 years before becoming entitled under the will. Mr McDonough provided the testator with further advice concerning the enforceability of such a provision and ultimately the testator decided to make provision for the grandchildren on a graduated basis. Such instructions explain the unusual basis upon which the provision for the grandchildren was drawn in the will.
The testator left an estate valued at approximately $540,000.
Belinda Lee Stafford, one of the Group A Grandchildren deposed by affidavit that she and her three sisters met the testator once during her lifetime. Belinda Stafford recalled that when she was about ten years old, her father, Kevin Stafford took his four daughters from Western Australia to Gippsland, Victoria for about two days to meet the testator. Ms Stafford recalled that the testator was cold towards her father and his children. Ms Stafford deposed that she and her three sisters were physically distinctive as they were part Aboriginal, their mother being Aboriginal. An affidavit was made, also, by Sherry May Maree Stafford. Another daughter of Kevin Stafford. She deposed that she recalled her father taking she and her sisters to Victoria in about 1976 to meet the testator. Sherry Stafford described in her affidavit that the testator rejected the children and asked Kevin Stafford to take them away. She recalled an argument between the testator and her father Mr Stafford but that they stayed at the testator's house for a short period. Kevin John Stafford deposed by affidavit that he took his four daughters to visit the testator in 1978. Mr Stafford confirmed the recollection of his daughters of the conduct of the testator on the occasion of the visit. Mr Stafford deposed by affidavit that he visited the testator on a later occasion in 1993 and that he believed that the attitude of the testator towards him mellowed on that occasion. Mr Stafford was not called to give evidence. Reliance was placed by the second defendant upon an affidavit sworn by Mr Stafford in this proceeding and another affidavit sworn by him in separate proceedings wherein he brought a claim under Part IV of the Administration and Probate Act 1958 against the testator's estate. Mr Stafford deposed that on the occasion of the 1993 visit to the testator" … During the time I stayed with her she enquired as to the welfare of my daughters and their progress in life. There is no doubt that she was fully aware of their existence and was concerned enough to enquire as to their welfare." There was no objection taken to the evidence of Mr Stafford as contained in his affidavits.
Judith Ann Ward deposed that she was forced from her home with the testator when she was about 14 years of age and that she had no direct contact with the testator thereafter. Ms Ward deposed that she had contact with her half sister, Colleen Moore including occasions when Ms Moore and her family stayed with Ms Ward and other occasions when the hospitality was reciprocated. Ms Ward deposed that she believed that Colleen Moore communicated with the testator regularly and on those occasions showed the testator photographs of the children of Ms Ward.
Veronica Stoner Bowman deposed that she did not know until she was about 17 years of age that the testator had been married previously. She was unaware that Colleen Moore was not the daughter of her father. Ms Bowman deposed that she discovered the existence of her half brother Mr Stafford and half sister Ms Ward as a result of some passing remarks made by Colleen Moore during the lifetime of the deceased. Ms Bowman deposed that the testator was annoyed at the time because she did not wish Ms Bowman to know of these matters. There was an allegation made by Ms Bowman that in about 1986 Judith Ward was brought by Colleen Moore to visit her. The testator learned of the visit and said she would like to see Judith Ward but the latter refused. Ms Bowman deposed that the testator was disappointed at the response of Ms Ward.
In another affidavit Margaret Betty Moore deposed that she was the paternal grandmother of Andrew Percy Moore and that she was aware that the testator had children from relationships prior to that with the testator's second husband Alfred Stoner Boulton. She deposed, further, that the testator never discussed the existence of grandchildren from former relationships. Further, Margaret Moore deposed that she received a Christmas card from the testator some time prior to Christmas 1989. The card was produced in evidence and contained a note by the deceased that included the statement " … I have four beautiful grandchildren and the girls gave me a surprise 70th birthday dinner. I was proud of them both … ". The testator had another grandchild subsequent to the sending of the card, James Anthony Bowman born on 28 November 1990.
None of the matters described as deposed to by affidavit by the various deponents were the subject of objection save for a global objection made on behalf of the second defendant, representing the group A grandchildren. The second defendant objected to the receipt of the evidence relied upon by the plaintiff and the first defendant to confine the class of "grandchildren" to the Group B Grandchildren. The issue arose in the proceeding as to whether the extrinsic evidence as set out in all the affidavits described was admissible as to the meaning of the expression in the last will "my grandchildren". The issue of the admissibility lead to a consideration of s.22A of the Wills Act 1958.
The relevant parts of the current statute, the Wills Act 1997 came into operation on 20 July 1998[1] and, therefore, do not apply to the will as the testator died on 21 April 1998. The will is subject, consequently, to the provisions of the Wills Act 1958.
[1] i.e. All sections of the Wills Act 1997 with the exceptions of ss. 1 and 2 which came into operation on 2 December 1997.
Section 22A of the Wills Act 1958 provided:
"22A. Provisions as to the construction of wills
(1)In the construction of a will acts, facts and circumstances touching intention of the testator shall be considered and evidence of such acts, facts and circumstances shall be admitted accordingly but evidence of a statement by the testator declaring the intention to be effected or which had been effected by the will or any part thereof shall not be received in proof of the intention declared unless the statement would apart from this section be received in proof of the intention declared.
(2)Where in any matter relating to the construction of the will any evidence adduced by a party is admissible by reason of and by reason only of the provisions of sub‑section (1), the party or parties by which that evidence is adduced or relied upon shall bear such part of the costs of the proceedings as is attributable to the introduction of that evidence unless the court or judge otherwise determines."
Section 22A of the Wills Act 1958 was inserted by s.3(b) of the Wills Act 1981. Prior to the insertion of s.22A the position at common law was that a court in construing a will could admit evidence of surrounding circumstances and the intention of the testator in certain circumstances. This was generally described as the "testator's arm chair principle" (see Boyes v Clark (1880) 14 Ch. D. 53, 56; Doe d. Hiscocks v Hiscocks (1839) 5 N&W 363, 368-369; Re Edwards (1981) VR 794). However, the basic position was that the testator's intention was construed from the words of the will itself and extrinsic evidence would only be admitted in limited cases (see Roddy v Fitzgerald (1858) 6 HL Cas 823, 876; Re Edwards (1964) VR 551, 553). The principle was that a court interpreted the words of a will in the context in which they appeared according to the usual meaning or circumstances. The Wigram Rules as they came to be known stated seven propositions of which propositions I and II stated:[2]
"I. A testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them, will be the sense in which they are to be construed.
II. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered."
[2] Sir James Wigram, Admission of Extrinsic Evidence in Aid of the Interpretation of Wills, first published 1831; 5th ed. (1914) 16-8.
The insertion of s.22A in the Wills Act 1958 represented a substantial departure from the Wigram Rules and the position at common law.
Section 22A was based upon a recommendation of the Victorian Chief Justice's Law Reform Committee in a report dated 8 May 1980 entitled "Report on the Construction of Wills". Section 22A(1) of the Wills Act 1958 as it was enacted reflected in its entirety the recommendation of the Chief Justice's Law Reform Committee. The committee report adopted in its entirety a sub-committee report dated 14 April 1980. The sub‑committee was chaired by Jenkinson J (then a judge of this court), Mr W.F. Ormiston QC (as he then was), Dr I. Hardingham and Mr K.V. Rintoul. The substantive views of the sub‑committee were set out in a document entitled "Appendix A" to the report of the sub-committee. The appendix in fact constituted the recommendations of the sub-committee made on 30 November 1978. For the purposes of applying s.22A of the Wills Act 1958 it is instructive to consider part of the sub-committee report to the Chief Justice's Law Reform Committee.
The reference considered by both the Committee and the sub-committee was in the following terms:
"1. A proposal has been placed before us calling for a change in the law relating to the construction of wills. The terms of the proposal are as follows:
(1)Every will should be construed according to the intention of the testator appearing from the terms and context thereof and all the surrounding circumstances.
(2)In construing a will, the court should be at liberty to take into account every relevant fact proved to have been known to the testator at the time of making such will.
(3)All rules of construction relating to wills, other than certain statutory rules of construction should be abolished."
The sub-committee entirely rejected the third proposal, namely, the abolition of rules of construction. In the course of its deliberations the sub-committee gave close consideration to the Nineteenth Report (Interpretation of Wills) of the Lord Chancellor's Law Reform Committee (May 1973).[3]
[3] Constituted by Lord Pearson, Buckley and Orr, L.J., Megarry and Walton, JJ, Judge Grant, T.H. Bingham QC, Professor A.G. Guest, C.A. Hinks, D.C.H. Hirst QC, Lord Lloyd of Hampstead, A. Martin AC and Sir Godfrey Morley.
At p.3 of the report the sub-committee stated:
"5.4 At common law evidence of a testator's dispositive intention is only admissible for the purpose of resolving equivocations, i.e., terms which are applicable indifferently to more than one person or thing. If a will contains a gift to 'my niece Mary Brown' and the testator has in fact two or more nieces named Mary Brown, extrinsic evidence of the testator's intention is admitted in order to determine to which of the testator's nieces named Mary Brown he intended to give the property. See Re Robertson [1946] V.L.R. 162 and Re Smith [1939] V.L.R. 213.
5.5The authors of the Nineteenth Report conclude, in terms with which we respectfully agree, that:
'The broad picture is thus one of construing the words of the will according to their primary meaning, with the total exclusion of any other evidence of the testator's dispositive intention save in the case of equivocations, and a strictly limited admission of extrinsic evidence as to surrounding circumstances and possible secondary meanings of words in case of doubt. This system clearly conduces to certainty in the sense that the volume of material to be construed is severely restricted, and only rarely will any of it consist of oral or affidavit evidence, or, indeed, anything except the will itself. In short, there will rarely be any dispute about what material is to be put before the court in order to determine the effect of the will. On the other hand, however restricted the material and however skilled the draftsman, it is impossible to exclude all disputes in all circumstances.'
6. As we have indicated, we support the view that all extrinsic evidence should be admissible in the interpretation of a will, except direct evidence of the testator's dispositive intention (unless the latter be admitted for the purpose of resolving an equivocation: see para.5.4.).
7. We do not consider that an adoption of this approach would subvert the basic requirement of the Wills Act 1958 that testamentary wishes be expressed in writing. The admissible evidence would be factual, in the sense that it would merely be evidence of, for example, the context in which the will was made; it would not amount to direct evidence of the testator's dispositive intention.
8. We also consider that the general admissibility of such evidence will assist the court of construction whose function in interpreting a will is, as far as is consistent with the maintenance of the requirement of writing, to search for the true meaning which the testator intended his words to bear. … "
At p.4 of the sub-committee report the observation was made that the view of the sub‑committee was supported by the observations and recommendations of the Nineteenth Report of the Lord Chancellor's Committee. The sub-committee cited relevant parts of the Lord Chancellor's Committee Report at length. For present purposes it is sufficient to observe that the sub-committee of the Chief Justice's Law Reform Committee stated (at p.4-5):
"9. We are supported in our view by the observations and recommendations of the Nineteenth Report of the Lord Chancellor's Committee. We consider it worthwhile citing the relevant parts of that Report at length. We respectfully agree with them and consider that the reasoning contained in them is relevant and applicable to the Victorian situation:
'Mofidication of the Wigram Rules [i.e. the conventional wisdom as stated in para. 5.1 ‑ 5.5 above].
40. We therefore consider that, in principle and as a minimum, the Wigram Rules ought at least to be modified to allow the admission of extrinsic evidence of material facts for the purpose of establishing the special meaning or significance which the testator was accustomed to attach to any word, name or expression used in the will, or of establishing, as well as resolving, any equivocation in a will, notwithstanding that the ambiguity is not apparent on the face of the will.
41. Special meaning of words to testator. In the more general field of the interpretation of written documents such as contracts, the court is always willing to be instructed as to what the parties intended by the words they used. The words of Odgers on Construction of Deeds and Statutes apply: The admissibility of parol evidence in cases of this kind does not depend on any ambiguity in the expression to be construed: the question merely is 'whether or not the expression has, with reference to the subject matter of the contract, acquired a particular meaning'. The ultimate purpose of construing a will is acknowledged to be to give effect to the wishes of the testator … there seems no reason not to take the ... step of discovering, by all means available, what those words (i.e. the words used in the will) conveyed to him.
42. This ought not to lead to uncertainty. In every case it will be a question of what the words in question meant to the particular testator, and meant to him as a normal and regular method of expression. Expressions such as 'British Empire Stamps', 'My nephew Bill', and 'The National Society for the Prevention of Cruelty to Animals' would all be fit subjects for this kind of interpretation. But if a testator uses ordinary language, none of the words or phrases employed being a word which is shown to have had a normal special meaning to him, it would be quite useless to proffer evidence that by the totality of this wording he meant something quite distinct from its normal meaning, as interpreted by the courts. If a testator writes 'My sister May is to have a dozen of my armchairs' it would be permissible to show –
(i) that 'my sister May' meant to the testator his half‑sister Mabel, and that this was what he always called her;
(ii) that as a baker 'a dozen' always meant to him 13; and
(iii) that he always referred to each and every one of his set of chairs which contained two carver chairs, the rest being armless, as 'my armchairs'.
This would simplify the law and bring the position of the court much closer in real terms to the traditional occupation of the testator's armchair.
43. This proposal may be regarded as being an extension of the 'dictionary principle', and it would help to avoid the sort of difficulty which is exemplified by the old case of Doe d. Chichester v. Oxenden (1816) 3 Taunt. 147;4 Dow 65. There, 'my estate of Ashton' was held to mean only estates at Ashton, in spite of clear evidence that the testator and his steward customarily used 'the Ashton Estate' to include other lands as well. Putting it broadly, the effect would be that instead of restricting the testator's 'dictionary' to what may be found in the will itself (which is the present law) it would be extended to include evidence of any usage of language by the testator which was habitual and not merely ephemeral. [See also Re Rowlands [1973] V.R. 225: 'children'.]
44. Establishing existence of equivocation. A will may, when read by itself, be unequivocal in its meaning; and under the present law evidence of the surrounding circumstances cannot be adduced in order to establish that in fact there is an equivocation. (We use the term 'equivocation' in preference to the term 'ambiguity' in view of the variable meaning often ascribed to the latter.) We consider that this rule should be changed, and that evidence of the surrounding circumstances, as distinct for present purposes from direct evidence of the testator's dispositive intention, ought to be admissible in order to establish that there is an equivocation, as well as to assist in resolving that equivocation in conjunction with any extrinsic evidence of the testator's dispositive intention that may be admissible for that purpose."
Finally, at p.8 the sub-committee of the Chief Justice's Law Reform Committee expressed agreement with the majority view of the Lord Chancellor's Committee that direct evidence of a testator's dispositive intention be inadmissible in proceedings relating to the constructing of her or his will except as it is presently admissible under the common law.
The recommendations of the Chief Justice's Law Reform Committee were adopted and s.22A was inserted in the Wills Act 1958. In the second reading speech for the Wills Bill whereby the amendment was made the Minister informed the House:
"The second major amendment effected by the Bill is to provide for the admissibility of evidence of the circumstances surrounding, and facts known to, the testator at the time he made his will. Proposed section 22A of the Act implements the Chief Justice's Law Reform Committee's recommendations. The committee was of the view that in construing a will the court should be at liberty to take into account every relevant fact proved to have been known to the testator at the time of making his will.
Under present law, the basic rule is that, in ascertaining a testator's wishes, the words of the will, are prima facie to be construed according to their strict and primary acceptation. The basic rule, however, is subject to three principle qualifications, so that the general approach taken is that of exclusion of extrinsic evidence, with limited exceptions to that approach.
At common law evidence of a testator's dispositive intention is only admissible for the purpose of equivocations, that is, terms which are applicable indifferently to more than one person or thing.
The overall picture is thus one of construing the words of the will according to their primary meaning, with the total exclusion of any other evidence of the testator's dispositive intention, save in the case of equivocations, and a strictly limited admission of extrinsic evidence as to surrounding circumstances and possible secondary meanings of words in case of doubt.
The Government accepts the Chief Justice's Law Reform Committee's proposal that the existing law concerning the admissibility of extrinsic evidence to aid in the interpretation of wills be simplified and changed. Proposed section 22A(1) accordingly provides that any extrinsic evidence should be admissible to assist in the interpretation of a will, except direct evidence of the testator's dispositive intention (unless the latter be admitted for the purpose of resolving an equivocation).
The primary benefits accruing from the general admissibility of such evidence are:
(i) Admissibility of extrinsic evidence will assist the court of construction whose function in interpreting a will is to search for the true meaning which the testator intended his words to bear.
(ii) The court of construction will also be assisted by having doubts about the current state of the law resolved, and by having a number of complicated principles and sub‑principles replaced by the one general rule."[4]
[4] Second Reading Speech, Wills Bill, 5 May 1981, Hansard p.8123-8124.
The orthodox view as to extrinsic evidence prior to the introduction of s.22A was demonstrated in Re Rowlands (1973) VR 225. In that case the testatrix left her residuary estate to her brothers and sisters with a further provision in favour of the children of those brothers and sisters who pre‑deceased her. A brother pre‑deceased the testatrix leaving a child who was adopted on a defacto basis. At the time of the relevant adoption there was no legislation in Victoria making provision for the adoption of children by court order. The child was brought up as the only child of the testatrix's brother and was known to the testatrix. Many years before the testatrix made her last will the brother of the testatrix and his wife separated and the child moved interstate and had little contact thereafter with the brother of the testatrix or the testatrix. Menhennit J refused to admit any evidence concerning this background on the question of whether the testatrix intended to include the brother's defacto adopted child within the description in the will of children of the deceased brothers and sisters. In this respect, the learned judge reached five conclusions. Firstly, that the meaning of "children" was clear and unambiguous, that is, actually or formally adopted children. Secondly, that by the terms of her will the testatrix had not demonstrated any inclination to deviate from the strict and primary meaning from the word "children". Thirdly, that the testatrix's disposition, when construed according to its strict and primary acceptation and applied to the extrinsic circumstances, was not rendered nugatory. Fourthly, that there was no ambiguity on the face of the will and, therefore, evidence of surrounding circumstances was inadmissible. Fifthly, that, as a consequence, the defacto adopted child of the brother of the testatrix was ineligible to benefit under the substitutionary provision. The view has been expressed that if Re Rowlands came before the court today the extrinsic evidence rejected by Menhennit J would clearly be admissible under s.22A(1) of the Wills Act 1958.[5]
[5] Dr I.J. Hardingham, "Reading a Will in Context: s.22A of the Wills Act", Jan/Feb 1984 Law Inst J 91-93.
The Wills Act 1958 was repealed by the enactment of the Wills Act 1997. Section 22A of the 1958 Act is now replaced by s.36(1) and (2) of the 1997 Act. The current provision applies the same approach to extrinsic evidence as s.22A in the 1958 Act. Further, sub‑s.(3) of s.36 of the Wills Act 1997 was inserted by s.54 of the Miscellaneous Acts (Omnibus No. 1) Act 1998. In its present form, s.36 of the Wills Act 1997 provides:
"36. When is evidence admissible to clarify a will?
(1)In any proceedings to construe a will, if the language
used in a will renders the will or any part of the will -(a) meaningless; or
(b)uncertain or ambiguous on the face of the will; or
(c)uncertain or ambiguous in the light of surrounding circumstances –
evidence may be admitted to assist in the interpretation of that language.
(2)Evidence which may not be admitted under sub-section (1)(c) does not include evidence of the testator's intention.
(3)Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will."
I observe that s.22A of the Wills Act 1958 did not include a provision comparable to s.36(3) of the Wills Act 1937 whereby the admissibility of extrinsic evidence under the common law was preserved. However, I observe that s.22A states in clear and precise language the basis upon which extrinsic evidence is admissible. In so doing the provision replaced the common law. It did not merely re-state the existing law. It follows that the meaning of s.22A of the Wills Act 1958 should not be qualified by that which Mason J described in Sungravure Pty Ltd v Middle East Airlines Airliban Sal (1975) 5 ALR 147 at 164 as "considerations deriving from the antecedent law" (see also Bank of England v Vagliano Bros (1891) AC 107, 144-5; Brennan v R. (1936) 55 CLR 253, 263 (per Dixon and Evatt JJ).
The entire acceptance of the report and recommendations of the Chief Justice's Law Reform Committee by the Parliament in the enactment of s.22A leads me to conclude that the effect of s.22A is that in all cases with one exception the court may receive evidence of the circumstances of a testator to assist in the interpretation of the will. As a result of s.22A the examination of the circumstances of the testator may disclose an ambiguity that is not otherwise apparent on the face of the will. Under s.22A it is then open to the court to attempt to resolve such ambiguity by reference to extrinsic evidence. The only exception is that direct evidence of the testator's dispositive intention remains inadmissible except insofar as it is presently admissible under the common law.
Mr Barton for the Group A Grandchildren urged the court not to admit the extrinsic evidence on affidavit. He particularly urged that I not admit the evidence of Mr McDonough as it purported to be direct evidence of the testatrix's deliberative intention and was, therefore, inadmissible under the common law. Mr Barton based his submission on the premise that there was no ambiguity or uncertainty arising from the expression "my grandchildren". He relied upon an example given by the authors Hardingham, Neave and Ford,[6] of a gift by a testator to "a nephew Daniel". It was submitted that if the testator never had a nephew called "Daniel" and no person answered that description then extrinsic evidence was admissible that the testator always called the nephew "John" by the name "Daniel". On the other hand, it was submitted, if the testator did in fact have a nephew named "Daniel" to whom the description in the will accurately applied, evidence would not be admissible to show that the testator did not call the nephew "Daniel" but by another name and reserved the name "Daniel" for a different nephew named "John" and who was intended to benefit under the will. Mr Barton submitted that the words "my grandchildren" have meaning if applied to all grandchildren and that the plaintiff and first defendant were urging the court to perform the same exercise as with the second impermissible "Daniel" case already described.
[6]Wills and Intestacy in Australia and New Zealand, 2nd ed. 1989, p.278.
Such analysis would entirely defeat the purpose of s.22A of the Wills Act 1958. All the evidence contained in the affidavits and the evidence of Mr McDonough does not constitute direct evidence of the testator's dispositive intention. In order to constitute evidence of direct dispositive intention the evidence would need to be of the type such as a testator during her life time stating that "I wish only to leave my estate to my two daughters Colleen and Veronica and their children as survive me". Another example would be a statement by a testator during her lifetime that "I am not going to leave any part of my estate to my children Judith or Kevin or any of their children".
On proper analysis the evidence sought to be admitted is to the following effect:
1.The testator instructed the solicitor who drew the last will that she had 'five grandchildren'.
2.The testator knew that her son, Kevin Stafford, had four children who were her grandchildren by virtue of the fact that she met those grandchildren in about the mid to late 1970s.
3.The testator was silent in her instructions to the solicitor as to her first marriage, the children from that marriage and the existence of grandchildren from Kevin Stafford about whom she was aware.
4.The testator instructed the solicitor as to the approximate value of her estate and on that basis was advised by the solicitor as to the approximate amount each grandchild would receive. For this purpose, the solicitor divided the grandchildren's share by five being the numbers of grandchildren concerned in accordance with the testator's instructions.
5.The testator as at 1989 believed she had "four beautiful grandchildren" in the context of referring to her two daughters, Colleen and Veronica and at which time the daughters had a total of four children between them constituting the four grandchildren referred to by the testator.
6.The testator rejected her grandchildren of her son Kevin Stafford and made no effort to contact or maintain a relationship with those grandchildren.
7.The testator had no knowledge as to whether her daughter Judith had any children who would be her grandchildren.
8.The testator, shortly before her death said that she had seen "my grandchildren" (being the children of Colleen and Veronica) and "was ready to go".
These facts are admissible as constituting extrinsic evidence of the interpretation of the last will. The facts fall within the realm of evidence specifically intended by the Chief Justice's Law Reform Committee to be admitted: "The admissible evidence would be factual, in the sense that it would merely be evidence of, for example, the context in which the will was made; it would not amount to direct evidence of the testator's dispositive intention"[7] … "We also consider that the general admissibility of such evidence will assist the court of construction whose function in interpreting a will is as far as is consistent with the maintenance of the requirement of writing, to search for the true meaning which the testator intended his words to bear."[8]
[7] Report of Sub-Committee of Chief Justice's Law Reform Committee at p.3, para 7.
[8] Ibid at p.4, para 8.
In light of the extrinsic evidence received it is apparent that the testator was aware of the existence of some of the Group A Grandchildren. I accept the evidence of Kevin Stafford, Belinda Stafford and Sherry Stafford that during the 1970s the testator met her four grandchildren from Mr Stafford and rejected those grandchildren. I accept the evidence of Judith Ward that information was conveyed to the testator prior to her death that Ms Ward had children of her own who in all likelihood were other grandchildren of the testator. It can be concluded that for reasons known only to herself, the testator did not want to recognise the grandchildren from her first marriage. The reasons may have been related to denial of her past, rejection of the grandchildren of Kevin Stafford and Judith Ward because of the estrangement of the testator from those children and possibly for other reasons. Endeavouring to determine the reasons underlying the attitude of the testator toward the Group A Grandchildren involves speculation and is ultimately unhelpful to the task before the court.
Mr Barton for the Group A Grandchildren submitted that because s.22A of the Wills Act 1958 "builds on previous law" the previous law must be dealt with. In essence, he submitted that under the law as it stood prior to the enactment of s.22A the extrinsic evidence sought to be relied upon by the plaintiff and the first defendant to support the narrow construction of the words used by the testator of "my grandchildren" would be admissible. Mr Barton relied, in particular, upon the observations of O'Bryan A-J in Re Smith; Equity Trustees Executors and Agency Co Ltd v Smith (1939) VLR 213 at 218:
"The Courts have, even on the modern theory, been very jealous, however, in having recourse to surrounding circumstances to interpret documents, not to admit declarations by the maker of the instrument of what his intention was, and in the case of wills there is a strict general rule that construction is not to be aided by any expression or declaration by the testator of his intention as to whom he intended to benefit, or as to what property or the extent of the benefit he intended to give any person. But although declarations of the testator's intention are ordinarily excluded from consideration they may be received 'to assist in interpreting an equivocation- that is, a term which, upon application to external objects, is found to fit two or more of them equally' (see Wigmore on Evidence (2nd ed.,), Vol. 5, p.409). The reason for this exception would appear to be that while it is forbidden to allow extrinsic evidence of intention to come into competition with the terms of a document on the same subject and ossibly to prevail against the document, in the case of equivocation no such result follows from resort to extrinsic evidence of intention. 'Since the term of the document describes equally two objects, and since it was aimed to designate one only, there can be no competition with the words of the document by declarations which merely expand and make more specific those words' (see Wigmore on Evidence (2nd ed.), Vol. 5, pp.409-410)."
Mr Barton submitted that the meaning of the expression used by the testator of "my grandchildren" was abundantly clear and that the admission of evidence concerning surrounding circumstances and the like constituted no more than evidence "to assist in interpreting an equivocation" (see Re Smith, supra) and therefore fell outside the proper application of the common law with respect to the admission of extrinsic evidence.
Even if I was to apply the common law as it existed prior to the enactment of s.22A, and for the reasons already stated I do not consider that is necessary or, indeed, appropriate to do so, the position of the second defendant is not improved. At common law the court is entitled to place itself in the testator's armchair and consider the circumstances by which she was surrounded when she made the will in order to arrive at the intention of the testator when she used the expression "my grandchildren" (see Boyes v Cook, supra, 56; Allgood v Blake (1873) LR 8 Ex. 160, 162; Wigram, para 96; Theobald on Wills (15th ed.) 215-216).
More so, if the court applied the principle known at common law as "the dictionary principle" the extrinsic evidence sought to be relied upon by the plaintiff and the first defendant would be admissible. Where a word or phrase has only one ordinary meaning the presumption that it bears its ordinary meaning may be rebutted under "the dictionary principle". At common law, before applying the presumption, it was necessary for a court to ascertain from the will in the light of all surrounding circumstances whether the testator had supplied her own dictionary (see Theobald on Wills, 15th ed., 218; Re Bailey (1945) Ch. 191; Re Gibbs (1907) 1 Ch. 465). On the basis of the reading of the will of the testator and in light of the surrounding circumstances of her attitude towards her children Kevin Stafford and Judith Ward and the grandchildren from those children together with the evidence of the way in which the testator used the expression "grandchildren" would lead me to conclude that the testator applied her own dictionary meaning to the expression "my grandchildren" rather than the ordinary or literal meaning of such expression.
The classic authority dealing with the admissibility of extrinsic evidence at common law is the judgment of the House or Lords in The National Society for the Prevention of Cruelty to Children v The Scottish National Society for the Prevention of Cruelty to Children (1915) AC 207. The principle was stated by Earl Loreburn (at 212-213) as follows:
" … I think the true ground upon which to base a decision in this case is that the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances. I use as a convenient method of expressing one's thought the term 'presumption'. What I mean is that what a man has said ought to be acted upon unless it is clearly proved that he meant something different from what he said."
On the basis of the extrinsic evidence the presumption of the ordinary meaning of "grandchildren" in the present context has been shown to mean something different from the ordinary use of the expression.
In terms of the evidence before the court I am satisfied that for whatever reasons the testator denied her relationship with the grandchildren from Kevin Stafford and Judith Ward and when she used the expression "my grandchildren" she meant the children of Colleen Moore and Veronica Bowman. Such finding is borne out by six factors.
Firstly, the fact that the testator kept the information concerning her first marriage and the existence of the respective children of Kevin Stafford and Judith Ward from the solicitor instructed to draw both the previous and the last will.
Secondly, the fact that the testator received and adopted advice from the solicitor who drew the last will as to the division of the estimated value of the relevant portion of the estate between five grandchildren as distinct from 11 grandchildren, 11 being the total number of actual grandchildren of the testator.
Thirdly, the fact that the testator was largely estranged from her son Kevin Stafford and completely estranged from her daughter Judith Ward compared with her established and ongoing relationship with her daughters Colleen Moore and Veronica Bowman and her grandchildren from those daughters.
Fourthly, the fact that the testator on two separate occasions prior to her death referred to her "grandchildren" as a class or group in connection with her daughters Colleen Moore and Veronica Bowman.
Fifthly, at the time the testator made her last will the Group B Grandchildren were aged between seven and 15 years whereas the Group A Grandchildren were aged between 25 and 32 years. There is the fact that the testator gave specific instructions to the solicitor who drew the will that she wished to restrict access to her estate by the grandchildren until they reached ages that the Group B Grandchildren had yet to achieve but that at the time of the drawing of the will the Group A Grandchildren had achieved already.
Sixthly, a number of combined factors arising from the drafting of the will, including, the reference to "my children" and the only children referred to in the will being the daughters Colleen Moore and Veronica Bowman.
In light of the six factors I am satisfied that when the testator used the expression "my grandchildren" in the last will her intention was to refer to the Group B Grandchildren only, that is, the five children respectively of Colleen Moore and Veronica Bowman. I am satisfied, further, that the testator did not manifest an intention to include in the expression "my grandchildren" the respective children of Kevin Stafford and Judith Ward.
It follows that the question asked by the plaintiff is answered as follows:
Q1: Whether, on the true construction of clause 3(a)-(d) of the Will, the expression "for such of them my grandchildren as shall survive me" means
(a) The children of Colleen Maria Moore;
(b) The children of Veronica Stoner Bowman;
(c) The children of Judith Ward;
(d) The children of Kevin Stafford
A: 1(a) Yes. (b) Yes. (c) No. (d) No.
I will hear the parties as to the appropriate form of orders.
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