Parry v Haisma
[2012] NSWSC 290
•30 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Parry v Haisma [2012] NSWSC 290 Hearing dates: 10 June 2011 Decision date: 30 March 2012 Jurisdiction: Equity Division Before: White J Decision: Refer to paragraph [59] of judgment.
Catchwords: WILLS AND ESTATES - construction of will - words used - gifts in a will - "my nephews and nieces" - relationship with deceased - description of relationship -words used in a social context to display affection rather than convey meaning - deceased understood ordinary conception of nephew or niece - intended description includes nephews and nieces of the whole blood and of the half-blood - intention not to include nephews and nieces of testator's de facto partner
WILLS AND ESTATES - construction of will - words used - intended use of words other than ordinary meaning - intention of testatrix at the time of execution of will with regard to the admissible extrinsic evidence - "testator's armchair principle" - Succession Act 2006 s 32 not applicable to present will
WORDS & PHRASES - "nephews and nieces"Legislation Cited: Succession Act 2006
Trustee Act 1925Cases Cited: Grieves v Rawley (1852) 10 Hare 63; (1852) 68 ER 840
Re Hammersley, Kitchen v Myers (1886) 2 TLR 459
In re Cozens, Miles v Wilson [1903] 1 Ch 138
Higgins v Dawson [1902] AC 1
Perrin v Morgan [1943] AC 399
Boyes v Cook (1880) 14 Ch D 53
Allgood v Blake (1872-73) LR 8 Exch 160
Hiscocks v Hiscocks (1839) 5 M & W 363; (1839) 151 ER 154
Gord v Needs (1836) 2 M & W 129; (1836) 150 ER 698
Public Trustee of New South Wales v Herbert [2009] NSWSC 366
Re Smith [1939] VLR 213
Smith v Lidiard (1857) 3 K & J 252; (1857) 69 ER 1102
Grant v Grant (1870) LR 5 CP 380
Grant v Grant (1870) LR 5 CP 727
Adney v Greatrex (1869) 38 LJ Ch 414
Sherrat v Mountford (1873) LR 8 Ch App 928
Seal-Hayne v Jodrell [1891] AC 304
The Goods of Ashton [1892] P. 83
Re Green; Bath v Cannon [1914] 1 Ch 134
Re Winn; Burgess v Winn (1916-17) All ER Rep 758
Re Davis; Douglass v McPhee (1933) 33 SR (NSW) 330
Attorney-General v The Commonwealth (1962) 107 CLR 529
Re Watson [1949] VLR 185
Trustees Executors and Agency Co Limited v Johnston [1970] VR 587
In the Estate of Wilson; Pickering & Anor v Jones & Ors (Murphy J, Supreme Court of Victoria, unreported, 15 October 1987)
Morgan v Moore [2000] VSC 94
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Australia Pty Ltd (1991) 25 NSWLR 541
House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Evans v Marmont (1997) 42 NSWLR 70Texts Cited: Haines, Construction of Wills in Australia, LexisNexis Butterworths 2007
Phipson "Extrinsic Evidence in Aid of Interpretation" (1904) 20 LQR 245
Kerridge and Rivers, "The Construction of Wills" (2000) 116 LQR 287
Hawkins on the Construction of Wills (Sweet & Maxwell, 5th ed, 2000, Ch 2
James Wigram, An Examination of the Rules of Law Respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills, (Sweet & Maxwell, 5th ed by Charles Sanger 1914)Category: Principal judgment Parties: Stephen Joseph Parry (Plaintiff)
Mark Haisma (1st Defendant)
Stephan Haisma (2nd Defendant)
Karl Haisma (3rd Defendant)
Zera Haisma (4th Defendant)
Gretta Van Duuren (5th Defendant)
Robert Haisma (6th Defendant)
Erk Gedig (7th Defendant)
Raphael Haisma (8th Defendant)
Marysa Haisma (9th Defendant)
Elaine Haisma (10th Defendant)
Laura Rook (11th Defendant)
Sandra Rook (12th Defendant)
Sam Brewer (13th Defendant)
Tess Brewer (14th Defendant)Representation: M Meek SC (Plaintiff)
J Needham SC with S J Chapple (1st-12th Defendants)
M S Willmott SC (13th & 14th Defendants)
Carroll & O'Dea Lawyers (Plaintiff)
Donaldson Trumble Lawyers 1st-12th Defendants)
Teece Hodgson & Ward (13th & 14th Defendants)
File Number(s): 2010/340577
Judgment
HIS HONOUR: The plaintiff is the executor of the will of the late Hinka Haisma who died on 19 September 2009. The deceased left a will dated 1 October 2003. She appointed her de facto partner, Mr Richard Brewer, and her solicitor, Mr Parry (the plaintiff) as her executors and trustees. The will relevantly provided:
"3. I GIVE the whole of my estate to RICHARD JAMES BREWER contingent upon him surviving me by 90 days, and if he does not survive me by 90 days, then and only then, clause 4 will apply.
4. I GIVE the whole of my estate to such of my nephews and nieces as survive me by 90 days, and if more than one in equal shares.
5. MY EXECUTOR has the following powers:
a. In respect of property vested in them, the powers of a trustee for sale;
b. With the consent of the recipient beneficiary, to appropriate in full or partial satisfaction of a share of my estate, any asset at a value acceptable to my Executor, without the necessity to obtain the consent of any other beneficiary. The exercise of this power will constitute a specific bequest by me of such asset to the beneficiary entitled, in lieu of the share of my estate it replaces;
c. In their absolute discretion, to apply all or part of the income attributable to a share of my estate to which a beneficiary under 18 will become entitled to receive on attaining that age, for the benefit of that beneficiary;
d. To invest in any shares or security quoted on the Australian Stock Exchange;
e. To place money on deposit with any Bank in Australia or in acquisition of a bill of exchange on which any such Bank is liable."
Richard Brewer survived the deceased, but he did not survive her by 90 days. Clause 4 is the operative provision of the will.
The plaintiff seeks the following relief:
"1 A determination of the following questions in relation to the estate of the late Hinka Haisma ('the deceased') who died on 19 September 2009 leaving a Will dated 1 October 2003 ('the Will'), probate of which was granted to the Plaintiff on 4 March 2010, namely whether on the true construction of the Will and in the events which have occurred, the gift by the deceased in clause 4 of the Will of 'the whole of my estate to such of my nephews and nieces as survive me by 90 days, and if more than one in equal shares' is a gift which includes:
(1) Nephews and nieces of the whole blood (which includes the First to Seventh Defendants) and
(2) Nephews and nieces of the half blood (which includes the Eighth to Twelfth Defendants) and
(3) The children of Peter Brewer the brother of the deceased's (now deceased) partner Richard James Brewer (being the Thirteenth and Fourteenth Defendants).
2A An order pursuant to section 63 Trustee Act 1925 that the Plaintiff is justified in distributing the net estate to the parties determined by the Court to be the nephews and nieces of the deceased within the meaning of clause 4 of the will."
The deceased was born on 11 January 1948. Her father Jan Pieter Haisma married twice. His first marriage was to the deceased's mother, Klaske Liezenga. They had four children, namely the deceased and her twin sister Trijnitje, also known as "Nynka", and two sons, Haye Haisma and Romke Haisma. The deceased did not have any children. Neither did her twin sister Nynka. The deceased's brother Haye had three children, being the first, second and seventh defendants, and her brother Romke had four children, being the third to sixth defendants. They are nephews and nieces of the deceased and entitled to inherit under clause 4 of the will.
The deceased's parents separated in the early 1960s and divorced some time later. Her father remarried. There were two children born of that marriage, namely Elisabeth and Tjalling Haisma. Tjalling and Elisabeth each had children. Those children are the eighth to twelfth defendants. They are the nephews and nieces of the half-blood of the deceased.
It was common ground that the expression "my nephews and nieces" in clause 4 included nephews and nieces of the half-blood. Haines, Construction of Wills in Australia, LexisNexis Butterworths 2007 states at [16.28] that:
"The ordinary and natural meaning of 'nephews and nieces' means 'nephews and nieces by blood' ... The words do not include relatives by half-blood."
The inclusion of the words "do not" may be a typographical error. The only authority for the proposition is a reference to para [16.19] of the same text where the learned author states:
"A gift to A's nephews and nieces means prima facie the children of brothers and sisters including those of the half-blood."
The latter proposition, but not the former, is well supported by authority (Grieves v Rawley (1852) 10 Hare 63; (1852) 68 ER 840; Re Hammersley, Kitchen v Myers (1886) 2 TLR 459; In re Cozens, Miles v Wilson [1903] 1 Ch 138 at 141).
The deceased was married to a John Lindsay Walker, but that marriage was dissolved. In about 1994 she commenced living with Mr Richard Brewer. They did not marry, but lived in a de facto relationship until her death. Richard Brewer had a brother, Peter Brewer, who has two children, Sam and Tess. They are the thirteenth and fourteenth defendants. There is evidence that from time to time the deceased described them as her nephew and niece. The question is whether they also are entitled to share in the deceased's estate.
There was no real controversy about the admissibility of extrinsic evidence for the purpose of construing the will. In Higgins v Dawson [1902] AC 1 the House of Lords said that evidence of surrounding circumstances could only be adduced where there was ambiguity (at 7, 8 and 11) and endorsed a very narrow approach to finding ambiguity (at 10). That approach is not consistent with the current approach to construction of wills (Perrin v Morgan [1943] AC 399) and was not urged in the present case. Evidence of the circumstances surrounding the testatrix was admissible to assist in the construction of the will so that the court could place itself "so to speak, in [the testatrix's] arm-chair and consider the circumstances by which [she] was surrounded when [she] made [her] will to assist ... in arriving at [her] intention" (Boyes v Cook (1880) 14 Ch D 53 at 56; Allgood v Blake (1872-73) LR 8 Exch 160 at 162). As it was put in Allgood v Blake (at 162):
"The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. ... the meaning of words varies according to the circumstances of and concerning which they are used."
Pursuant to this principle the court may admit evidence of the testator's habits and knowledge of persons or things, including the testator's habit of referring to persons by particular names.
It was on this principle that evidence of the deceased's describing the children of her de facto partner's brother as her nephew or niece, and the circumstances in which the statements were made, was admitted.
The first to twelfth defendants sought to lead evidence that the deceased intended her blood relations, but not relations of Mr Brewer, to benefit from her estate if he could not. The evidence was objected to. Part of it was not read. I rejected evidence of the deceased's having told a witness words to the effect of "I worked very hard for my money and I want to make sure it stays in my family as Richard and his brother Peter Brewer come from a well-to-do family". At common law such direct evidence of testamentary intention is only admissible in the case of an equivocation, that is to say, a case when the words of the will, when considered in relation to the testator's surrounding circumstances, apply accurately and equally to two or more persons or things (Hiscocks v Hiscocks (1839) 5 M & W 363; (1839) 151 ER 154 at 156; Gord v Needs (1836) 2 M & W 129 at 140-141; (1836) 150 ER 698 at 703; Public Trustee of New South Wales v Herbert [2009] NSWSC 366 at [33]). Evidence of surrounding circumstances is admitted in order to assist the determination of the testator's probable intention. Direct evidence of the testator's actual intention is admissible in cases of equivocation because "while it is forbidden to allow extrinsic evidence of intention to come into competition with the terms of the document on the same subject and possibly to prevail against the document, in the case of equivocation no such result follows from resort to extrinsic evidence of intention." (Re Smith [1939] VLR 213 at 218; Phipson "Extrinsic Evidence in Aid of Interpretation" (1904) 20 LQR 245 at 268-271). This was not a case of equivocation.
By s 32 of the Succession Act 2006 direct evidence of the testator's intention is admissible to assist in the interpretation of the language of the will if, among other circumstances, the language makes the will or any part of it ambiguous on the face of the will, or ambiguous in the light of surrounding circumstances (s 32(1)(b) and (c)). However, that section applies only to wills made on or after 1 March 2008. It did not apply to the present will.
The evidence of surrounding circumstances
The evidence of the circumstances surrounding the deceased focused on her relationship with Sam and Tess Brewer. At the time of the will Sam was seven years of age and Tess was two years of age. Sam was a child of Peter Brewer's first marriage and Tess was a child of his second.
Peter Brewer gave evidence of contact between the deceased and his children. His brother Richard and the deceased attended at his home for birthday celebrations and Christmas. He and his family also stayed in a house that the deceased had at Lennox Head, staying for about ten days at a time. On one occasion the deceased looked after Tess at Lennox Head for approximately ten days. Richard Brewer had a boat and Peter Brewer and his wife and children sailed with them from time to time and would sleep overnight. He said that the deceased had close relations with his children. Peter Brewer did not give evidence that the deceased described Sam and Tess as her nephew and niece.
Peter Brewer's wife, Miriam, deposed that the deceased did not refer to Tess and Sam as niece and nephew in conversations with her, but often introduced them to other people as her niece and nephew. She said that she remembered occasions on which they were on Richard's boat when he tied the boat to other boats on the water so that they could talk and the deceased introduced Sam and Tess to the people on the other boats as "This is my nephew Sam and this is my niece Tess".
Ms Bronwyn Murphy was a friend of the deceased since 1999. She met the deceased and Richard Brewer at the home of Peter and Miriam Brewer and thereafter saw her approximately three or four times per year, and sometimes more frequently until the deceased became ill. She corroborates Mr and Mrs Brewer's evidence of the deceased's being present at all birthdays and significant celebrations. Ms Murphy deposed "I observed Hinka to treat Tess and Sam as part of her family". The sentence was not objected to, but it is not clear what facts Ms Murphy was intending to convey by that statement. She deposed that she was present at Tess Brewer's second birthday party, that is, 16 March 2003, and speaking to the deceased when Tess came toddling up to them and the deceased said "ah, here comes my beautiful niece".
This was the only evidence of the deceased's having described either Sam or Tess as her nephew or niece before she made her will.
A Mr Ivan Benko gave evidence of the deceased's so describing Sam and Tess from 2004. Mr Benko is married to the deceased's god-daughter and first met the deceased in 1999. The deceased was matron of honour at their wedding in 2001. Mr Benko and his wife moved to Sydney in 2004. He deposed that in 2004 the deceased attempted to explain her family and during the explanation said words to the effect of "... Richard has a brother Peter. He and his wife Miriam have two children, my niece Tess and my nephew Sam ...". He said that in the summer of 2006 the deceased told him that "Peter and his family, including our niece and nephew, were here last weekend. They came up to visit. We had a lovely time on the beach and the boat, the kids, Tess and Sam really loved the water." He said that the deceased described Tess as her niece in 2007 when she described a shopping trip and having bought Tess a dress. He said that on other occasions when the deceased visited their apartment, she would speak of Sam and Tess who also lived in the eastern suburbs by saying words to the effect of "We have been to visit Peter, Miriam and our niece and nephew, Sam and Tess". He said that similar descriptions of Sam and Tess as being nephew and niece were made at other times in 2007.
Ms Melinda Dunn, a friend of Richard Brewer and the deceased, deposed that in 2008 she had lunch with the deceased where there was a conversation to the following effect:
"Hinka said 'I've just been out with my niece'. I said 'which one?'.
Hinka said 'brother Peter's daughter'. I said 'Oh, you mean Tess? They're a bit more like your grandchildren aren't they?'
Hinka laughed and said 'I'm happy to call them my niece and nephew, makes me sound younger!'"
Ms Dunn also deposed that whenever she asked the deceased how her family was, the deceased mentioned Sam and Tess and said things such as "My niece and I went shopping the other day" (referring to Tess). Ms Dunn said that on several occasions she recalled the deceased referring to Sam and Tess as niece and nephew.
A Mr Geoff Douglas, who was a business partner of Richard Brewer and a friend to both him and the deceased, gave evidence of the deceased introducing the children to people by saying words to the effect of "This is my niece and nephew".
None of the first to twelfth defendants resided in Sydney. They were not geographically close to the deceased. Zera Haisma, a niece, deposed that when she visited the deceased in 2003 she met the Brewer family, including Sam and Tess Brewer. She deposed that at no point was Sam Brewer or Tess Brewer referred to by the deceased as her nephew or niece. They were introduced to her as "Peter Brewer's children" and subsequently referred to in the same way, or as Sam and Tess.
None of the deponents of affidavits was cross-examined. One is entitled to be sceptical about the ability of any witness to recall accurately casual conversations which at the time could not have been thought to have any particular importance in which slight differences in language could have significant implications for the issues to be decided. For example, Ms Murphy gave evidence of a conversation that occurred eight years before she swore her affidavit. She recalled the deceased saying "ah, here comes my beautiful niece". One is entitled to be sceptical as to whether she could be sure that those were the precise words used as distinct from, for example, "Here comes our beautiful niece" or "Here comes our beautiful girl". Nonetheless, in the absence of cross-examination, I accept the evidence of each of the witnesses. I accept that the deceased regularly, although not universally, introduced Sam and Tess Brewer to others as her nephew and niece and otherwise from time to time referred to them as nephew or niece. However, I also accept Ms Dunn's evidence that the deceased said she was happy to call them niece and nephew as it made her sound younger. In other words, the deceased used the description "niece and nephew" as something of a courtesy title, just as children might call a family friend "uncle" or "aunt".
Another surrounding circumstance that is arguably relevant is that the deceased and Richard Brewer made wills on the same day. Each will named Mr Parry as an executor and trustee. However, he did not prepare the wills. So far as it appears, the wills were prepared by one or both of Richard Brewer and the deceased. Clauses 3 and 4 of Richard Brewer's will provided as follows:
"3. I GIVE the whole of my estate to HINKA HAISMA contingent upon her surviving me by 90 days, and if she does not survive me by 90 days, then and only then, clause 4 will apply.
4. I GIVE the sum or $500,000 to PAULINE BREWER provided she survives me by 90 days and I GIVE the balance of my estate to my brother PETER BREWER providing that he survives me by 90 days, and if he does not survive me by 90 days I GIVE that balance of my estate to the daughter of PETER BREWER, TESS BREWER, to be held in trust by my executors as to capital and income for her education and advancement at their absolute discretion."
Clause 5 of Richard Brewer's will was in the same terms as the will of the deceased.
There is a slight indication from a comparison of the two wills that the deceased may have intended to leave her estate to blood relations if Richard Brewer did not inherit. That is because it is clear he then intended to leave his estate to his blood relations if the deceased did not inherit his estate.
Clause 5 of the will contemplates that beneficiaries might be under the age of 18. That is of no assistance in determining whether or not Sam and Tess Brewer come within the class of "nephews and nieces". That is because other beneficiaries who fall within that description, namely nephews and nieces of the half-blood were under 18, both when the will was made and at the deceased's death. Thus the clause of the will dealing with the executor's powers in relation to minor beneficiaries has work to do, whether or not Sam and Tess Brewer are included in the gift.
Gifts to nieces and nephews
I was referred to many cases and have considered others where courts have had to construe gifts in a will to nieces and nephews. Most often the contest has been as to whether nieces and nephews of the testator's spouse are included in the gift. Reference to such authority is of limited utility. The question is what the testatrix meant by the words she used, not how other judges have interpreted the same words used by other testators. Many of the cases applied the literal approach to construction of wills advocated by Sir James Wigram rather than the intentionalist approach advocated by Francis Hawkins. (For an analysis of the two approaches see Kerridge and Rivers, "The Construction of Wills" (2000) 116 LQR 287; Hawkins on the Construction of Wills (Sweet & Maxwell, 5th ed, 2000, Ch 2.) Since Perrin v Morgan, it is the intentionalist approach that has prevailed. The force of the literal approach is that except in exceptional circumstances a will must be in writing. It is the writing and not the testator's intention gleaned independently of the writing that constitutes the will. The question is, what do the words used by the testator mean. On the literal approach prima facie words are to be given their "natural" or "ordinary" or "correct" or "primary" meaning and that meaning can be departed from only where it appears from the will itself that words have been used in a different sense, or the words cannot be given a sensible meaning when applied to the facts (James Wigram, An Examination of the Rules of Law Respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills (Sweet & Maxwell, 5th ed by Charles Sanger, 1914) 9, 16 (Proposition I), 18 (Proposition II)). The alternative approach that has prevailed is to ask what meaning, having regard to the terms of the will and admissible extrinsic evidence, the testator intended by the words used.
Nonetheless, the authorities are instructive. Courts have consistently construed gifts to relatives as meaning relatives by blood, except where there is a clear contrary indication. This reflects a judicial assessment that when people leave gifts to relatives in their will, they usually intend to benefit their relations by blood. This is not just a now discarded literalist approach to interpretation that applies an artificial rule. It is based on a presumption of what testators intend. The presumption must give way to a contrary intention.
In Smith v Lidiard (1857) 3 K & J 252; (1857) 69 ER 1102 the testatrix gave legacies to several persons whom she named, describing each of them as her niece. She bequeathed her residuary personal property to her "nephews and nieces". Two of the persons named in the will as nieces were nieces of her late husband. It was held that notwithstanding that two persons who were nieces of the testatrix's late husband had been described in the will as being her niece, the gift of residue to "nephews and nieces" did not extend to nieces by affinity. Even those who were described as nieces in the gifts of pecuniary legacies in the will did not take under the residuary bequest.
In Grant v Grant (1870) LR 5 CP 380 the testator devised property "to my nephew Joseph Grant". The testator's brother had a son named Joseph Grant. His wife's brother also had a son of the same name. Extrinsic evidence was admitted to show which Joseph Grant was meant by the testator. That evidence showed that the testator did not know the name of or the existence of his nephew by blood, but that he had adopted his wife's nephew at a very early age and brought him up as a member of the family. The testator was in the habit of calling him his nephew (at 387-388). Bovill CJ, giving judgment of the Court of Common Pleas, said (at 388):
"In all cases of wills, the surrounding circumstances as they existed at the time of the will, including the state of the testator's family and the nature of his property, may generally be proved in order to place the Court as nearly as possible in the same condition as the testator; so that they may understand the language of his will and apply it in the same sense in which he used it. We are of opinion that evidence may be given of a testator having been in the habit of using expressions in a particular sense; though, whether such evidence will affect the will, or its application, will depend upon the particular circumstances and the language of the demise in each case; and it would not generally be admissible to alter the natural meaning and legal effect and construction of the words, where they have a definite and clear meaning."
His Lordship added (at 389-390):
"If, then, this head of evidence be admissible, as we think it is, it distinctly appears ... that the testator in this case was in the habit of calling the defendant his nephew; and, as his name was Joseph Grant, he would in this view also answer the description in a testator's will of 'my nephew Joseph Grant'.
The defendant has thus, as it seems to us, satisfactorily shewn that the words of the will may apply either to him or to the plaintiff; and then, as there is nothing in the will itself, or upon the evidence to which we have hitherto adverted, to shew which of them was the person intended to be described and to whom the testator intended the words to apply, the further parol evidence as to the testator's knowledge and other circumstances became admissible, and upon such of that evidence as was properly admissible, it is not disputed that the defendant was in fact the person intended to be described by the testator."
This decision was upheld in the Court of Exchequer Chamber (Grant v Grant (1870) LR 5 CP 727).
In Adney v Greatrex (1869) 38 LJ Ch 414 the testator left the residue of his estate to "all my nephews and nieces equally". The testator had only one nephew and one niece of his own blood and there was no possibility of his having anymore nephews and nieces in the future. In the will nephews and nieces of his wife were described as nephews and nieces. It was held that the use of the plural "nephews and nieces" showed that the testator intended to include nephews and nieces by affinity as well as those by blood in the will.
In Sherrat v Mountford (1873) LR 8 Ch App 928 the gift was to nephews and nieces. The testator had none. Therefore to give the will a sensible construction it could only mean nephews and nieces by affinity. Those who would take on intestacy argued that the will should nonetheless be construed in the primary sense of the testator's nephews and nieces by blood so that the gift failed. To support that construction they sought to adduce evidence that the testator was on bad terms with his wife's family. That evidence was rejected on the basis that it was direct evidence of intention, although it is difficult to reconcile that conclusion with the admission of evidence of good relations admitted in the later case of Charter v Charter (1874) LR 7 HL 364.
In Wells v Wells (1874) LR 18 Eq 504 the testatrix left the residue of her property to "all my nephews and nieces". She had given a specific bequest to her husband's niece whom she described in the will as her niece. The testatrix's husband had nine nephews and nieces, one of whom was described in the will as the testatrix's niece. The question was whether she was entitled to share in the residuary gift as one of the nieces of the testatrix. Sir George Jessel MR said (at 505-506):
"Where a word has a primary signification those who allege that the testator used it in another signification cannot show it by parol evidence extrinsic to the will. Here, there is a gift in these terms, 'Unto all my nephews and nieces'. Have these words a primary signification? The Court of Appeal has so decided in two cases. In the case of In Re Blower's Trust LR 6 Ch 355 Lord Justice Mellish observed: 'It is clear that the single words "nephews and nieces" prima facie mean the children of brothers and sisters;' and in Sherrat v Mountford LR 8 Ch 928 at 931 the same learned Judge observed: 'There is no doubt a man's own nephews and nieces are primarily his nephews and nieces, but I am of [the] opinion that his wife's nephews and nieces are his nephews and nieces according to the ordinary meaning of the words in [a] secondary sense'. If that is so, the words 'my nephews and nieces' must, according to these decisions, mean nephews and nieces in the primary sense, unless there is something in the context to give the words a different meaning. ... I am of the opinion that you cannot import the secondary meaning of the word into the residuary gift merely because it has been used in the former part of the will, and in this I agree with the view taken by Vice Chancellor Wood in Smith v Lidiard."
Sir George Jessel then disapproved of Grant v Grant.
Wells v Wells took both the literal approach to the construction of wills and a restrictive view of the admission of extrinsic evidence that would not now be supported.
In Seal-Hayne v Jodrell [1891] AC 304 the testator left his residuary estate equally between "his relatives thereinbefore named". He had left legacies to persons by name, some of whom were described as his cousins and others as his nieces. The persons described as his nieces were his wife's nieces, and not his nieces by blood. Some of the persons described as cousins were illegitimate relatives. The House of Lords held that all of the persons so named took under the residuary bequest because the testator had described them as relatives.
In The Goods of Ashton [1892] P. 83 the testator appointed "my nephew George Ashton" as one of his executors. He had a nephew George Ashton who was the legitimate son of his brother and there was a George Ashton who was the illegitimate son of his sister. The question was whether parol evidence could be admitted to show who was intended. Jeune J expressed a preference for Grant v Grant to Jessel MR's decision in Wells v Wells. His Lordship found that the testator had made his own dictionary by describing an illegitimate grand-nephew as his nephew and an illegitimate niece as his niece. The evidence as admitted to resolve what was found to be ambiguous.
In Re Cozens; Miles v Wilson the words "nephews and nieces" were held to mean prima facie the children of brothers and sisters, including those of the half-blood. The expression "my own nephews and nieces" restricted the class to persons who were the lawful nephews or nieces of the testatrix of the whole or half-blood to the exclusion of great-nephews and great-nieces and to the exclusion of nephews or nieces of the testatrix's husband. The construction depended on the particular descriptions given in the will to the different relatives.
In Re Green; Bath v Cannon [1914] 1 Ch 134 the testatrix appointed "my nephews" AB, RHL and WHH to be the executors and trustees of her will. She gave her residuary estate upon trust for division "between my nephews and nieces living at the date of my decease" and the children then living of her nephews and nieces who had predeceased her. AB was the son of the testatrix's brother. RHL and WHH were nephews of her first husband. Sargent J held that only the testatrix's own nephews and nieces and the children of such of them as had predeceased her took under the gift of residue. Sargent J said that the use of the word "nephews" in the appointment of RHL and WHH as executors did not extend the class of those who took the gift of residue to nephews and nieces by affinity. RHL and WHH were also held not to be included in the gift. His Lordship applied Smith v Lidiard and Wells v Wells.
In Re Winn; Burgess v Winn (1916-17) All ER Rep 758 Eve J reached the same conclusion in finding that a gift to nephews and nieces did not include nephews and nieces by affinity.
In Re Davis; Douglass v McPhee (1933) 33 SR (NSW) 330 a testatrix left her estate to her husband for life thereafter to be equally divided among "all the nieces then living after his death". Long Innes J held (at 332) that:
"The conclusion to which I have come is that there is not here a context sufficient to deprive the word 'nieces' of its legal signification as meaning nieces by blood and not by affinity."
In Attorney-General v The Commonwealth (1962) 107 CLR 529 Dixon CJ said (at 545):
"We are all familiar with the rule that in any disposition of property whether testamentary of inter vivos a reference to son, daughter, nephew, niece, sister or any ordinary descriptive term implying blood relationship is to be construed as confined to those filling the description by legitimate blood relationship: only a very strong context or a context aided by extrinsic circumstances leaving no logical escape will authorize any other interpretation. The rule when it became settled was not considered artificial but to accord with the intention expressed in the words."
In Re Watson [1949] VLR 185 the gift was to the testator's grand-nieces and grand-nephews who were living at the time of his death. There were 26 such persons. The gift was construed as a gift to great-grandchildren. The reason for this was that in the will the testator had referred to his great-grandchild as his grand-niece. He had two great-grandchildren and had taken a special interest in the great-grandchild whom he named in the will, but wrongly described as a grand-niece. It did not appear whether he knew of the existence of all of his grand-nephews and nieces. Herring CJ concluded that the testator intended to benefit the named person and any who stood in the same relation to him as she did, thus making his own dictionary, so that the expression "grand-nieces and grand-nephews" was held to mean "great-grandchildren".
In Trustees Executors and Agency Co Limited v Johnston [1970] VR 587 the gift was to nephews and nieces and the question was whether this included nephews and nieces by affinity. In the will the testator had appointed a niece and nephew of his wife as executors and described them as "my niece and my nephew". Nonetheless, it was held that the gift to "nephews and nieces" meant only nephews and nieces by blood and not by affinity. Adam J said (at 589):
"... it is not uncommon practice for one to apply the description 'my nephew or my niece' inaccurately in association with the naming of a particular nephew or niece by affinity as a term of affection where there has been a close and friendly relationship between a husband and such relatives of his wife's. The use of such inaccurate descriptions in such a context appears to me to provide no sure guide to the meaning to be attached to a gift by him to a large class generically described by him as 'my nephews and nieces'."
In In the Estate of Wilson; Pickering & Anor v Jones & Ors (Murphy J, Supreme Court of Victoria, unreported, 15 October 1987) a gift to "all my Nephews and Nieces" was held not to include nephews and nieces by affinity. There was insufficient context to displace the prima facie meaning of nephews and nieces as meaning only nephews and nieces of the full blood or the half-blood.
In Morgan v Moore [2000] VSC 94 the gift was to "my grandchildren". The testatrix had been married twice and had an ex-nuptial child. She was aware that her children of her first marriage themselves had children, but had disowned them. Warren J (as her Honour then was) held that the grandchildren who were born of the children of the first marriage did not take. The will provided for the grandchildren to take increasing proportions of the estate as they turned 21, 22, 23 and 24. The grandchildren from the first marriage were over 25. This, coupled with extrinsic evidence that she was estranged from the children of her first marriage, that she did not inform her solicitor of the existence of grandchildren from her first marriage, and that she denied her relationship with such grandchildren, led to the conclusion that the gift should be read down so as not to apply to grandchildren born to the children of the testatrix's first marriage.
Construction of clause 4 of the will
The construction of clause 4 is not to be approached on the basis that the words "my nephews and nieces" are to be given a "strict and primary meaning" of nephews and nieces by blood, unless the extrinsic circumstances of the case would show that those words would not make sense (compare Wigram, An Examination of the Rules of Law Respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills, propositions I (page 16), II (page 18) and III (page 47)). Instead the question is, having regard to the admissible extrinsic evidence, what did the testatrix mean by the words "my nephews and nieces"? In Perrin v Morgan, Viscount Simon LC said (at 406):
"... the 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."
Lord Atkin said (at 414):
"... the construing court has to ascertain what was meant, being guided by the other provisions of the will and the other relevant circumstances, including the age and education of the testator, his relations to the beneficiary chosen, whether of kinship or friendship, the provision for other beneficiaries, and other admissible circumstances. Weighing all these, the court must adopt what appears the most probable meaning. To decide on proven probabilities is not to guess but to adjudicate. If this is to decide according to the 'context', I am content, but I cannot agree that the court is precluded from looking outside the terms of the will. No will can be analysed in vacuo. There are material surroundings such as I have suggested in every case, and they have to be taken into account. The sole object is, of course, to ascertain from the will the testator's intentions."
Sam and Tess Brewer did not have a relationship with the deceased that would ordinarily be described as a relationship of aunt and nephew and niece. They were not the children of a brother or sister of the deceased. Nor were they the children of a brother or sister of a husband of the deceased. They were not related to her by blood or by marriage. Dictionaries cannot be used as a substitute for judicial determination of the meaning of the words used by the deceased (Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Australia Pty Ltd (1991) 25 NSWLR 541 at 560-562; House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [25]-[29]), but they can provide valuable assistance in ascertaining current usage. The Macquarie Dictionary published in 2001 and reprinted in 2003 was the edition in print at the time the deceased made her will. It gave as the primary meaning of nephew and niece; a son or daughter of one's brother or sister. It gave as the secondary meaning; a son or daughter of one's husband's or wife's brother or sister. A son or daughter of one's de facto partner's brother or sister was not included. For some purposes laws have been passed which give de facto partners the same or similar rights as husbands or wives. Nonetheless, there are fundamental and substantial differences between relations between spouses and relations between de facto partners; most notably the absence of a formal commitment (Evans v Marmont (1997) 42 NSWLR 70 at 79). This makes it unsafe to conclude, in the absence of other supporting material, such as a dictionary, that an ordinary meaning of nephew or niece extends to the nephew or niece of one's de facto partner.
That is not the end of the issue. Just as a testator might show from the text of the will that he is using a particular word in an unusual or even an unnatural sense (e.g. In Re Watson), so extrinsic evidence admitted under the armchair principle can give either an extended or a restricted meaning to the words in a will where that is shown to be the testator's intention (e.g. Morgan v Moore). Extrinsic evidence can show that the testator uses a word in other than its natural sense. Nonetheless, as Bovill CJ said in Grant v Grant in the passage quoted at [33] above, the effect of such evidence depends on the particular circumstances and the language of the will in each case. Extrinsic evidence will not generally be allowed to alter the natural meaning and construction of words which have a definite and clear meaning. It is the intention expressed by the testator by the words in the will which governs.
It is one thing to use a particular description in a social context to convey affection. It is another to assume that the testatrix when making a will to dispose of her property intended to use the description other than in its ordinary meaning. It is reasonable to assume that the deceased would have asked herself how the words she used would be understood by someone called on to administer the will which, in the case of clause 4 taking effect, would be Mr Parry. He was not a party to conversations in which she described Sam and Tess Brewer as her nephew and niece. Further, it does not appear that within her own family the deceased referred to Sam or Tess Brewer as her nephew and niece. Peter Brewer gave no evidence of her doing so. His wife Miriam said that the deceased did not so describe the children to her, as distinct from introducing them to others in that way. Zera Haisma said that the deceased did not so describe the children in discussions with her.
I do not consider that the evidence that the deceased from time to time (and mostly after she made her will) referred to Sam and Tess Brewer as her nephew and niece, means that she intended that they be included in that description in her will. Describing them so made her sound younger and it conveyed affection. Whilst the deceased so described them from time to time, she understood that they did not come within the ordinary conception of nephew or niece. I do not conclude that the deceased intended that the class should be extended to them.
The construction issue is difficult and I was assisted by the submissions of all parties. The estate is substantial. The costs of the executor should be paid from the estate on the indemnity basis. The costs of all defendants should be paid from the estate on the ordinary basis.
For these reasons I make the following declarations and orders:
1. Declare that on the true construction of the will dated 1 October 2003 of the late Hinka Haisma who died on 19 September 2009 and in the events which have occurred the gift by the deceased in clause 4 of the will of "the whole of my estate to such of my nephews and nieces as survive me by 90 days and if more than one in equal shares" is a gift to:
a) nephews and nieces of the whole blood (being the first to seventh defendants); and
b) nephews and nieces of the half-blood (being the eighth to twelfth defendants); and
c) does not include the children of Peter Brewer, the brother of the deceased's (now deceased) partner Richard James Brewer (being the thirteenth and fourteenth defendants).
2. Order pursuant to s 63 of the Trustee Act 1925 that the plaintiff is justified in distributing the net estate to the parties in accordance with the above declaration.
3. Order that the plaintiff's costs be paid from the estate on the indemnity basis and the costs of all defendants be paid from the estate on the ordinary basis.
Decision last updated: 30 March 2012
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