Patricia Robyn McElroy (nee Nix) as Executor of the last Will and Testament of the late Jean Valentine Nix (Dec) v GRIFFITHS

[2003] WASC 267

PATRICIA ROBYN McELROY (nee NIX) as Executor of the last Will and Testament of the late JEAN VALENTINE NIX (Dec) -v- GRIFFITHS & ORS [2003] WASC 267

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 267
Case No:	CIV:1007/2002	Heard:	9 DECEMBER 2003
Coram:	SCOTT J	Delivered:	22/12/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Plaintiff's contention upheld
Category:	B
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Parties:	PATRICIA ROBYN McELROY (nee NIX) as Executor of the last Will and Testament of the late JEAN VALENTINE NIX (Dec) COLLEEN ELIZABETH GRIFFITHS LYNETTE YVONNE GILES KELLY PATRICIA McELROY TAMARA LEE McELROY MICHAEL GILES WAYNE BRADLEY GRIFFITHS SALLY GILES
Catchwords:	Succession Wills, Probate Administration Construction Effect of testamentary dispositions Whether Will devised a life estate or was an absolute gift
Legislation:	Nil
Case References:	Fell v Fell (1922) 31 CLR 268 Harris v Ashdown (1985) 3 NSWLR 193 In re Allen [1933] SASR 122 In re Harrison (1885) LR (Ch D) 390 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 Mustard & Anor v Oikonomov, unreported; SCt of WA (Owen J); Library No 980468; 19August 1998 In re Bell [1969] VR 597

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PATRICIA ROBYN McELROY (nee NIX) as Executor of the last Will and Testament of the late JEAN VALENTINE NIX (Dec) -v- GRIFFITHS & ORS [2003] WASC 267 CORAM : SCOTT J HEARD : 9 DECEMBER 2003 DELIVERED : 22 DECEMBER 2003 FILE NO/S : CIV 1007 of 2002 BETWEEN : PATRICIA ROBYN McELROY (nee NIX) as Executor of the last Will and Testament of the late JEAN VALENTINE NIX (Dec)

Plaintiff

AND

COLLEEN ELIZABETH GRIFFITHS
First Defendant

LYNETTE YVONNE GILES
Second Defendant

KELLY PATRICIA McELROY
First-Named Third Defendant

TAMARA LEE McELROY
Second-Named Third Defendant

MICHAEL GILES
Third-Named Third Defendant

SALLY GILES
Fourth-Named Third Defendant

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WAYNE BRADLEY GRIFFITHS
Fifth-Named Third Defendant

Catchwords:

Succession - Wills, Probate Administration - Construction - Effect of testamentary dispositions - Whether Will devised a life estate or was an absolute gift

Legislation:

Nil

Result:

Plaintiff's contention upheld

Category: B

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Representation:

Counsel:

Plaintiff : Ms W F Buckley
First Defendant : Mr P W Nichols
Second Defendant : Mr P W Nichols
First-Named Third Defendant : Notice to abide decision filed
Second-Named Third Defendant : Notice to abide decision filed
Third-Named Third Defendant : Mr P W Nichols
Fifth-Named Third Defendant : Mr P W Nichols
Fourth-Named Third Defendant : Mr P W Nichols

Solicitors:

Plaintiff : Anderson Josland
First Defendant : Peter Marks
Second Defendant : Peter Marks
First-Named Third Defendant : Notice to abide decision filed
Second-Named Third Defendant : Notice to abide decision filed
Third-Named Third Defendant : Peter Marks
Fifth-Named Third Defendant : Peter Marks
Fourth-Named Third Defendant : Peter Marks

Case(s) referred to in judgment(s):

Fell v Fell (1922) 31 CLR 268
Harris v Ashdown (1985) 3 NSWLR 193
In re Allen [1933] SASR 122
In re Harrison (1885) LR (Ch D) 390
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
Mustard & Anor v Oikonomov, unreported; SCt of WA (Owen J); Library No 980468; 19August 1998

Case(s) also cited:

In re Bell [1969] VR 597


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1 SCOTT J: The plaintiff has applied by way of originating summons for the determination of the meaning of a portion of the Will of Jean Valentine Nix (hereinafter referred to as "the deceased").

2 The Will of the deceased is a handwritten document dated 16 June 1997. A copy of the Will is annexed to these reasons ("the Will").

3 The plaintiff is one of three daughters of the deceased and the first and second defendants are the other two daughters. The third defendants are the grandchildren of the deceased and the children of the plaintiff and the first and second defendants. The plaintiff has two daughters. Her husband now works on the farms the subject of this application and has made some improvements to the properties.

4 The matter giving rise to the originating summons arises out of the opening words of the Will of the deceased and, in particular, the following words:

"I appoint Patricia Robyn McElroy (Nee Nix) of 36 Beaumont Way, Greenwood 6024 W. Aus to be the Executrix and Trustee of this my Will, & beneficiary.

I give, devise and bequeath

My farming properties 'Walkin' 'Walkout' to be run as one unit from RMB 201 Boyup Brook 6244 during her life time."

5 The issue for determination is whether those words in the Will of the deceased constitute an absolute bequest of those properties to the plaintiff or whether she is only to receive a life interest therein.

6 It is to be noted that there is no residuary beneficiary in the Will so that if the bequest to the plaintiff is a life interest in the properties, upon the death of the plaintiff they will be dealt with as if there was an intestacy.

7 It is common ground that because there is no residuary beneficiary, part of the estate of the deceased will be dealt with as an intestacy, in any event.

8 For the purposes of these reasons, I accept that in construing the Will of the deceased the first task is to construe the words written by the testator which reveal the testator's intention. The Court does not construe the Will by considering the testator's intention: Fell v Fell (1922) 31

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CLR 268 at 273; Mustard & Anor v Oikonomov, unreported; SCt of WA (Owen J); Library No 980468; 19August 1998 at 4.

9 In this case, in my opinion, the clause in issue can be construed without reference to controversial external affidavit evidence.

10 It is to be noted that counsel for the defendants objected to a number of paragraphs in the affidavits filed on behalf of the plaintiff. The basis of the objection was that the material is irrelevant and inadmissible. It is not necessary to resort to that material, in my view, because, as I have said, the Will is capable of a proper construction by considering its terms.

11 The ambiguity that is said to arise from the clause reproduced above is whether the words "during her life time" are intended to give the plaintiff, as beneficiary, a life interest in the farming properties or whether those words are to be construed as meaning that the plaintiff is bequeathed the farming properties as an absolute gift, on the basis that she will run the two farming properties as one during her lifetime.

12 In my view, in construing the clause, assistance is to be gained by looking at subsequent words in the Will. In that respect it is appropriate to consider the Will as a whole in order to construe its terms in In re Allen [1933] SASR 122. It is to be noted that the testator also said in her Will:

"In other words, I want the farm to be kept as a viable unit. My husband would have wanted this."

13 I am told by counsel that the properties the subject of the bequest to the plaintiff consist of two farming properties which are close together and which the deceased and her husband ran as a single farm from RMB 201 Boyup Brook. In my view, it is clear from the terms of the Will of the deceased that her intention was to ensure that following her death the two farms continued to be run as one during the life of the plaintiff. The testator, in my opinion, expressed the view that she wanted the farm to be run as "a viable unit" and that this could best be achieved by the two farming properties being run as one unit. The Court is entitled to consider the factual context in which the Will was made: Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 per Mahoney JA, at 65.

14 If that construction is correct, then, in my view, it is clear that the testator intended the words "during her life time" to relate to the obligation, expressed in the Will in the bequest to the plaintiff, to run the two farming properties as one unit. In my view, the correct construction

(Page 6)

of the Will is not that the deceased intended to give to the plaintiff a life interest in the farming properties, but intended to give the farms to the plaintiff absolutely. This construction is consistent with the background matrix of armchair facts known to the testatrix: Harris v Ashdown (1985) 3 NSWLR 193 per Kirby P, at 195.

15 As can be seen from the terms of the Will of the deceased, the other children of the deceased have been provided for. It is to be noted that only a portion of the Will was admitted to probate, which is not surprising in view of its terms.

16 The second aspect of the Will that was originally contentious was the extent of the personal property included in the bequest to the plaintiff. Evidence has been provided as to the meaning of the words "Walk in" and "Walk out". That evidence is to be found in the affidavit of Peter Falconer sworn 25 June 2003. Mr Falconer, in that affidavit and a further affidavit sworn 8 December 2003, testifies that he has handled the sale of a number of properties sold on a "walk-in, walk-out basis". Within the real estate industry, particularly in relation to farming properties, he says he is aware of the property commonly accepted as being included within that expression. In this case Mr Falconer has indicated on items of property which would be excluded from the term "walk in, walk out". They are to two international tractors, a vintage Pontiac car and the listed fodder. The remainder of the property, Mr Falconer says, would ordinarily be included in a sale on a walk-in, walk-out basis.

17 As I understand the position of the parties to this application, Mr Falconer's opinion has been accepted and it is common ground that the items which Mr Falconer says should be included in this bequest are appropriate.

18 The other matter that should be mentioned in construing the Will of the deceased is that the law favours a construction of a testamentary disposition which would avoid an intestacy: In re Harrison (1885) LR (Ch D) 390 at 394. To construe the Will in the manner contended for by the defendants would mean that the plaintiff would only receive a life interest in the farming properties and that upon her death there would be an intestacy.

19 In my view, the Will disposes of the principal assets of the deceased at the date of her death. Whilst there is a minor intestacy in relation to some smaller items, it is clear that the testator intended her Will to cover the primary assets owned by her at the date of her death. The construction

(Page 7)

which I favour and which has been set out earlier in these reasons avoids an intestacy in relation to the farming properties. In the circumstances of the estate of the deceased such a construction is clearly preferable, but, in any event, the construction of the Will which I have set out earlier in these reasons leads inevitably to that conclusion.

20 For these reasons, in my view, the interpretation of the Will contended for by the plaintiff should be accepted and the Court should declare that there is an absolute gift to the plaintiff of the farming properties.
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