Paul v Paul
[2006] QSC 251
•13 September 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Paul v Paul & Anor [2006] QSC 251
PARTIES:
CHRISTOPHER FREDERIC PAUL
(plaintiff)
v
GREGORY LAWRENCE PAUL
(first defendant)
MELANIE GAY PAUL LEWIN(second defendant)
FILE NO/S:
BS2485 of 2005
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
13 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
18-19 May 2006
JUDGE:
Mullins J
ORDER:
1. The court pronounces for the full force and validity of the will of Ailsa Daphne Paul made on 9 January 1981 and being exhibit 3 in this proceeding.
2. Subject to the formal requirements of the Registrar, that a grant be made to Christopher Frederic Paul of letters of administration with the will of Ailsa Daphne Paul made on 9 January 1981.
3. It is declared that clause 2 of the will of Ailsa Daphne Paul (“the deceased”) made on 9 January 1981 is construed as a devise and bequest of the real and personal estate of the deceased to the plaintiff as the sole beneficiary under the will.
4. It is declared that the deceased held her interest in the land described as Lot 1 on RP151212 in the County of Stanley Parish of Caboolture and situated at 53 Glenwood Drive, Morayfield in the State of Queensland on trust for the plaintiff and herself in the shares of 68.75% and 31.25% respectively.
CATCHWORDS:
SUCCESSION – WILLS, PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – whether will made in 1981 by testatrix who died in 2004 was last will – the testatrix on a number of occasions in the 10 years prior to her death had spoken of having made a recent will – no will other than the 1981 will found after the testatrix died – the 1981 will found on the deceased’s bedside table – evidence of the existence of a will later than the 1981 will not compelling – the evidence supports finding that the 1981 will was the last will of the testatrix
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – testatrix gave her residuary estate under her will to her son on condition that he carry out certain bequests in a list of bequests and beneficiaries to be left with the trustee named in the will – no such list in existence when the testatrix died – whether failure of condition affected the gift to the son – gift to the son was the only disposition made to a beneficiary under the will – will construed to give effect to the intention of the testatrix found within the will to give her estate to the son
EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – implied trusts – resulting trust arising from purchase of land in the name of the testatrix using funds of the testatrix and her son – no evidence to rebut implication of resulting trust – testatrix held title to land on trust for her son and herself in proportion to their respective contributions to the purchase price
Calverley v Green (1984) 155 CLR 242
Miller v Miller (1995) 16 ACSR 73
Re Sunderland (1866) LR 1 P&D 198COUNSEL:
JF Curran for the plaintiff
DJ Morgan for the defendants
SOLICITORS:
Cantrell Lawyers for the plaintiff
AP Hodgson & Associates for the defendants
MULLINS J: Mrs Ailsa Daphne Paul (“the deceased”) who died on 10 April 2004 aged 80 years was the mother of the plaintiff and the first and second defendants. The plaintiff claims to be the sole beneficiary under the deceased’s will dated 9 January 1981 (“the 1981 will”) and seeks to prove that will in solemn form. He also seeks to prove in the same proceeding that he held a beneficial interest in the real property situated at Morayfield (“the Morayfield property”) and registered in the deceased’s name at her death and seeks the Court to determine the extent of the interest of the deceased in the Morayfield property.
The defendants deny that the 1981 will was the last will of the deceased and claim that she made subsequent wills, although none has been located. The defendants also dispute the claim of the plaintiff to a beneficial interest in the Morayfield property.
When the deceased died she had about $18,000 in a bank account. The only other estate asset was her interest in the Morayfield property. At the trial it was common ground that the current value of the Morayfield property was about $200,000.
Witnesses
The only witness who gave oral evidence for the plaintiff was the plaintiff himself. Each of the defendants also gave oral evidence, as did Mrs Karen Paul (“Karen”) who is the wife of the first defendant, Mrs Ellen Ward who is Karen’s mother, Ms Stacey Paul (“Stacey”) who is the daughter of the first defendant and Karen, and Mr Douglas Evans (“Douglas”) who is the son of the second defendant.
The second defendant resides in the United States and leave was granted to enable her evidence to be given by telephone.
Relevant facts
The plaintiff was born in 1953, the first defendant in 1957 and the second defendant in 1955. The deceased worked for many years as a law clerk and was familiar with conveyancing, wills and powers of attorney. She had reared her children effectively as a single parent. She was living in a rented property when the plaintiff, who was in the Navy and lived away from Brisbane, and his then wife Jennette (“Jennette”) (from whom the plaintiff was separated) purchased the house property at 6 St Andrew’s Avenue, Birkdale (“the Birkdale property”) in May 1982. The deceased commenced living in the house from the time it was purchased, paying rent to the plaintiff and Jennette. The plaintiff had made the deceased his attorney and agent in March 1982 and Jennette gave the deceased a power of attorney in August 1983 to enable the deceased to operate a bank account into which the deceased paid the rent and to which the plaintiff and Jennette contributed funds for expenses relating to the Birkdale property. The deceased managed the Birkdale property for the plaintiff and Jennette and, to some extent, managed the plaintiff’s financial affairs.
The plaintiff remained in the Navy until 1988. He continued working for the Department of Defence based in Sydney until 1994. Thereafter he worked on a number of construction projects based in various parts of Australia. He occasionally visited the deceased. From the time of the purchase of the Birkdale property, the plaintiff would use the Birkdale property (and subsequently the Morayfield property) as his mailing address for various purposes. The plaintiff made the ridiculous assertion in his evidence that the deceased resided with him from 1982 continuously until she died. Even when the plaintiff conceded in cross-examination that before the deceased died, he had seen her “at least once a year, sometimes more often”, he maintained that he “considered” he lived with the deceased because her address “was what was on my driver’s licence. It was my voting address.”
The letter the deceased wrote to the plaintiff on 18 February 1995 (exhibit 10) gives some indication of the degree to which the deceased managed financial matters in relation to the Birkdale property. The letter made reference to the steps that the deceased was taking to accumulate the sum of $16,000 to “pay back” Jennette. The deceased proposed to close an existing bank account in the plaintiff’s name with the Commonwealth Savings Bank of Australia and to open a special performance account with Suncorp in the plaintiff’s name. The deceased requested the plaintiff and Linda (with whom the plaintiff had been in a relationship) to sign the withdrawal forms that were enclosed with the letter and indicated that the majority of the funds would then be invested in a Suncorp term deposit for 12 months. In describing why the deceased had chosen the special performance account with Suncorp, she referred to it as giving “us” the best return. The letter described what action was required on the part of the plaintiff to facilitate the opening of the Suncorp account. The letter also referred to the need for the plaintiff to increase the rent paid by the deceased above the threshold that would qualify the deceased to receive the maximum rent assistance from the Commonwealth Government. That supports the plaintiff’s evidence that the deceased paid rent for the Birkdale property that was slightly less than market rent. Reference was made in the letter to the reliance of the deceased on tax refunds obtained by the plaintiff to cover essential repairs to the Birkdale property. The deceased requested the plaintiff to ask his accountant about capital gains tax on the sale of the Birkdale property. Reference was made to a “Form Q” which the deceased stated she had given the plaintiff in January. The reference to this form occurred in the letter in connection with transfer documents which I infer related to a proposal for the plaintiff to acquire Jennette’s interest in the Birkdale property. At that time a Form Q was a declaration for the purpose of the Stamp Act 1894 made by a purchaser in respect of the acquisition of a principal place of residence to enable the purchaser to obtain a reduction in the stamp duty on the contract or conveyance.
The plaintiff produced at the trial a Suncorp savings account passbook for an account in his name at Suncorp that was opened on 23 February 1995 (“the savings account”) which I infer was one of the accounts organised by the deceased for the plaintiff, as foreshadowed in her letter of 18 February 1995.
The plaintiff’s evidence-in-chief of the arrangements between the deceased and him about the purchase of the Morayfield property was (T14, lines 28-55):
“When the purchase of the property at 53 Glenwood Drive was negotiated did she sign the contract, purchase contract?-- My mother acted entirely on my behalf.
It is – the purchase is made in her name. Was that something that you were agreeable to?-- Yes, it was.
What was the arrangement with you and her as to the source of the purchase price?-- The equity that I had from Birkdale and other funds in my accounts was to make up the bulk of it, and because we were looking to I guess set-up house together, because at that stage I was single, she wanted some method of contribution and also was quite happy to go down that road of the two of us together doing the house purchase, which is why she used – why I put all the basis money up and then because we were both – she is a returned service person, as am I, and she was eligible for the war service loan we decided that in those circumstances that she could – it was her contribution to us as a family working together.
Did she say what would happen to the house?-- She had always indicated that the principal property item being the house would end up coming back to me. In her words, “That is all right, son, it will come back to you eventually”, and I always believed that.
When she said that did she ever make reference to her Will?-- Generally.”
The plaintiff gave the following explanation in cross-examination (T48, lines 32-39):
“I suggest to you most strongly that all but the $25,000 which she signed up for for (sic) Morayfield was my contribution, and that I gave that to her to allow her to live the dream of ownership of a house, knowing that generally anecdotally or otherwise she had indicated to me that I would get the property back or I would be okay at the end of the day once she died. I have no problem with what I did for her. None at all.”
The deceased entered into a contract dated 1 November 1995 to purchase the Morayfield property (which she had found) in her name as the purchaser. The deposit of $8,000 was taken from the savings account. The contract shows that the deceased was acting for herself in the conveyance. She did engage a solicitor, Mr Given, to act on her behalf as purchaser. The contract was subject to the sale of the Birkdale property. Mr Given also acted as the solicitor for the vendors in relation to that sale. The sale of the Birkdale property and the purchase of the Morayfield property were both completed on 11 December 1995. Included in exhibit 7 are the two letters that Mr Given sent to the deceased on 12 December 1995 respectively advising of the settlement details in relation to the sale of the Birkdale property and the purchase of the Morayfield property. Mr Given’s costs and outlays of $370 for acting in the sale of the Birkdale property were paid from the savings account. Mr Given’s costs and outlays of $536 in respect of the purchase of the Morayfield property were also paid from the savings account.
Although the deceased was not a registered owner of the Birkdale property, it is clear from the letter of Mr Given written to the deceased about the sale of that property that the instructions for that sale were provided to him by the deceased. The sale price of the Birkdale property was $100,000. The plaintiff and Jennette used the sale of the Birkdale property to sort out a property settlement between them. The settlement figures for that sale show that from the net sale proceeds an amount of $15,000 was paid to Jennette (which I infer was part of the property settlement agreed between the plaintiff and Jennette), the deceased was to be reimbursed $196.10 for rates and advertising, the balance of the sale proceeds of $82,068.60 (after allowing for the payment of $15,000 to Jennette) was divided equally between Jennette, as to the sum of $41,034.30 and the deceased as to $41,034.30 and the adjustment of $196.10 for rates and advertising was deducted from the amount due to Jennette and added to the amount payable to the deceased. The cheques at settlement were drawn as to $55,838.20 in favour of Jennette and as to $41,230.40 in favour of the deceased.
The cheque in favour of the deceased was used for the purchase price for the Morayfield property. The deceased also obtained a Defence Service Home Loan of $25,000 from Westpac Banking Corporation (“Westpac”). The settlement figures for that purchase were as follows:
Purchase price $80,000.00 Less deposit 8,000.00 72,000.00 Plus rates adjustment 649.71 $72,649.71
After allowing for the sum of $41,230.40 paid from the proceeds from the sale of the Birkdale property and the sum of $25,000 advanced by Westpac, the balance of $6,419.31 was from funds provided to Mr Given by the deceased from the savings account.
The first defendant and Karen and their family relocated to Brisbane in 1995. The first defendant was busy with the lawn mowing business he started in early 1996. He would visit the deceased every 4 to 6 weeks. Karen saw the deceased on a much more regular basis.
After the deceased moved into the Morayfield property, she made it clear to members of her family (other than the plaintiff) that it was her house and she was obviously very proud of the fact that for the first time in her life at age 71 years she was a home owner. She did not pay rent to the plaintiff, but paid the payments due to Westpac of $100 per fortnight. Although the plaintiff could not recall who paid the rates on the Morayfield property, he could recall that the deceased paid the electricity and required the plaintiff to contribute to her telephone account for the calls he made from the telephone. I consider that it was consistent with the assumption by the deceased of the obligation to repay the mortgage debt secured over the Morayfield property and how she held herself out as the owner of the Morayfield property that she paid the expenses such as rates and insurance for the Morayfield property.
Although the second defendant was living in the United States, she maintained contact with the deceased when she was living at the Morayfield property by chatting online with the deceased a couple of times each week.
The statements for the loan with Westpac were adduced in evidence (exhibit 9). There were two statements missing for the period 22 November 2003 to 21 November 2004. Between September and November 2003 the deceased paid additional sums above the $100 per fortnight which she had paid regularly under the mortgage. I infer that she also did the same in the couple of months before she died. The balance of the loan as at 21 November 2003 was $14,357.68. No one paid any amounts off the mortgage after the deceased died until the plaintiff did on 10 January 2005. As the balance of the loan as at 22 November 2004 was $11,452.12, I infer that the deceased made payments at a significantly greater rate than $100 per fortnight in the couple of months before her death.
The deceased was described by her children as a hoarder. This was reflected in the observations made by the witnesses, and also by some of the evidence, such as the production of the 1983 power of attorney granted in the deceased’s favour by Jennette which had long passed its usefulness, as its application was limited to the Birkdale property. The deceased was described by the first defendant as a “prolific notetaker” who would write notes on scraps of paper. The deceased had a draft will in the name of “Joe Blow” which was sometimes on her dining table and which she used to show the first and second defendants what needed to be done to make a will. The second defendant conceded that the deceased was the sort of person who would not lose her will.
The deceased was taken by ambulance from the Morayfield property to hospital on 10 April 2004 and died later that day. The first defendant and Karen attended at the Morayfield property on the following day and commenced tidying the house, but they were also looking for a will, and were unsuccessful in finding a will. The plaintiff who drove from New South Wales and the second defendant and her husband who flew to Brisbane from the United States arrived on 13 April 2004. The deceased’s children went together to the Morayfield property. There are differing recollections as to which specific day the 1981 will was found. It is not necessary to decide the date on which the 1981 will was found, as there is no real dispute about the circumstances of the finding of the 1981 will. On the occasion when the 1981 will was found, the plaintiff and the second defendant were searching the deceased’s bedroom, when the second defendant picked up a plastic bankbook cover which contained a folded piece of notepaper that was the 1981 will. This bankbook cover was on the deceased’s bedside table. There was no will behind the mirror of the dressing table. No list of bequests (whether executed as a codicil or not) was found. The plaintiff subsequently made enquiries of the surviving trustee named in the 1981 will, Mrs Langton, and she did not have any list of bequests given to her by the deceased.
The plaintiff repaid the outstanding balance of the loan to Westpac by an instalment of $2,000 in January 2005 and two instalments of $5,000 each in February 2005.
The plaintiff applied for a grant of letters of administration with the 1981 will on 17 February 2005. As the first defendant had filed a caveat in January 2005 and then filed a notice in support of the caveat on 2 March 2005, this proceeding was commenced by the plaintiff on 24 March 2005.
Evidence relevant to the existence of a will made by the deceased
The plaintiff could not recall having seen the 1981 will before it was found after the deceased’s death. In fact, he could not recall having seen any will of the deceased. He denied having ever been shown a particular hiding spot by the deceased for any will of hers. The plaintiff stated that the deceased was keen to ensure that “everyone has a will”. Although he did not identify the occasion on which the deceased talked to him about her will, the plaintiff did state that “…her reflection on that was that the Will was – her Will stated that effectively the majority of things came back to me, and there were other things for my brother and sister”. The plaintiff recalled that at different times the deceased would refer to specific items and state who should receive them, such as the piano should be given to the second defendant’s daughter Bridgette and that a string of pearls should be given to the second defendant. When the plaintiff was asked in cross-examination whether he could remember a particular instance where he had discussed the deceased’s will with her, he stated that he could not. He stated that he could recall having a number of discussions with the deceased over a lot of years about “succession generally”, but he did not specifically remember any particular discussion.
Mrs Ward recalls an occasion in 1997 when she and Karen visited the deceased at the Morayfield property. Mrs Ward stated that the question of wills came up in the conversation and Mrs Ward mentioned that she had changed her will from leaving her house to her grandchildren to leaving it to her children. Mrs Ward stated that the deceased responded “Yes, I’ve made a more recent will” and that she said that the plaintiff knew where it was. Mrs Ward stated that Karen was also present when this conversation occurred, but Karen did not give evidence about being present when her mother and the deceased had a discussion in which the deceased referred to having made a recent will.
On one visit to the Birkdale property, when Karen was walking past the deceased’s bedroom, she saw the deceased getting something out from or putting something behind the mirror of her dresser and the deceased asked her not to tell anyone (about the hiding place). Karen deduced that was the place that the deceased kept her will.
Karen could recall one discussion that she had with the deceased after Karen’s father passed away in 1995 and her siblings were quarrelling over his estate, when she advised the deceased to make sure that everything was written down to avoid fights. Karen stated that in response the deceased said that she had got it written down and that “Christopher knows where it is”.
Karen stated that on a number of occasions she discussed wills in general terms with the deceased, as the deceased was emphatic that the first respondent should make a will (which he still had not done at the time of this trial).
After Joshua was born in 1999 to the first defendant and Karen, Karen recalled that in 1999 the deceased said something to her to the effect that she had done a recent will.
Karen had a conversation with the deceased on or about 8 February 2004 (which date could be fixed in relation to the deceased’s 80th birthday) when Stacey was also present that was about wills. Karen recalled that during this conversation the deceased stated (referring to her will) “Christopher knows where it is” and that she was leaving Glen (who is the second defendant’s husband) about $5,000 because he had bought a computer for her, paying for its installation and the monthly instalments on it. Karen said that, on that occasion, the deceased had told her that she had made a will recently.
Prior to the deceased’s death, Karen had never seen any document that she could identify as a will made by the deceased. She also stated that the deceased said on a number of occasions including on 8 February 2004 that she was leaving to Karen “quite a … large sum”, but that the deceased did not say how much it was, but it was on condition that she was still with the first defendant. Karen said that the deceased at one stage said she had “roughly about $1,000” for each of her grandchildren and that she was “bumping it up”, but Karen did not know exactly by how much.
The first defendant did not remember any direct (or indirect) discussions that he had with the deceased about any wills that she had made.
Stacey who was 18 years old at the time of the trial could recall being present when Karen had a discussion with the deceased about wills in February 2004. Stacey recalled that the deceased said something to the effect that she had just recently updated her will to put Joshua in it and that she said “I have left everyone – the grandkids and my own children – something. I would like you, Karen, to have a fair bit of what … I was going to give the kids because you spend a lot of time coming and seeing me and you call me a lot and you treated me … better than my own children did”. Stacey stated that the deceased referred to her will being “in a safe place and Christopher knows where it is and I trust him to handle it properly”. There is a discrepancy between Stacey’s evidence and that of Karen. Whereas Karen recalled the conversation with the deceased about adding Joshua to her will taking place in 1999, Stacey recalled that being said by the deceased in 2004.
The second defendant recalled an occasion at the Birkdale property when the deceased had shown her a handwritten document that she said was her latest will and made a comment to the effect “I’ve just redone my will” from which the second defendant inferred that the will had been made recently. The second defendant did not attempt to read the document. The second defendant said that she followed the deceased who showed her where she kept the will behind the mirror of the dressing table in her bedroom.
There were numerous occasions that the second defendant could recall when the deceased told her that she had just redone her will and inquired whether the second defendant had updated her will. One of those occasions was at the Morayfield property when they were seated together at the table and the deceased had a document on the table and told the second defendant that she had just updated her will and she wanted somebody to know where it was kept and said that it was going to be either behind the mirror of the dressing table or in her wardrobe. The timing of this occasion was before Joshua was born. The second defendant saw the document and said it was handwritten on one side of one page, that it had on it “This is my Last Will and Testament”, and that the deceased pointed out that a minimum of $1,000 per grandchild was to be given. The second defendant recalled that the deceased said something to the effect “The house is to be sold as it’s not to be left to any one of you because such causes problems in families”. The second defendant did not read the whole of the document. The second defendant stated that the document which she saw on this occasion at the Morayfield property was not the same that she had seen on the occasion at the Birkdale property when the deceased had shown her where she kept her will. The second defendant gave evidence that the witnesses for the will she saw at the Birkdale property were different to the witnesses for the will at the Morayfield property. The second defendant could not recall who the witnesses were in either case. The second defendant stated that the witnesses were different, because the people that the deceased had contact with at Morayfield were different from those with whom she had contact at Birkdale. That suggests the second defendant was making deductions about who the witnesses would have been. I am therefore not satisfied that the second defendant saw witness’ names or signatures on either occasion.
The second defendant was able to produce a letter that the deceased had sent to Glen and her dated 22 October 1999. The first page of that letter and an accompanying sheet were tendered (exhibit 12). On the first page of the letter the deceased inquired whether the second defendant and Glen had made a will and referred to the difficulties that she was having in trying to persuade the first defendant to do so. The sheet which accompanied the letter contained advice about the making of wills. It included the following statement:
“Take heed here, for instance, you will be part beneficiaries under the terms of a new Will I’m drawing up for myself (which I do periodically as circumstances change).”
After the deceased’s birthday in February 2004, the second defendant recalled that the deceased told the second defendant and Glen that she had “updated her will yet again” and inquired whether they had made their own wills yet.
Douglas gave evidence about seeing a manila folder with the words “Last Will and Testament” on the front of the folder lying on the table soon after the deceased moved to the Morayfield property. Douglas could not recall that the folder had a person’s name on it. He did not see inside the folder. This could have been the draft will that the deceased used to demonstrate how to make a will.
The 1981 will
The 1981 will was handwritten by the deceased on an A4 sheet of lined notepaper. The operative parts of the will are found on the front page together with the attestation clause and the deceased’s signature. The signatures of the two witnesses are on the reverse side of the page, as is a statement made by the deceased dated 8 January 1981 that “I declare that this is the only page appertaining to my Last Will”. The 1981 will without formal parts states:
“This is the Last Will and Testament of me, Ailsa Daphne PAUL of 23 Charles Street Birkdale 4159 in the State of Queensland, Retired.
(1)I hereby appoint Arthur Steven Langton and Ellen Margaret Langton both of 21 Western Avenue Blaxland 2774 in the State of New South Wales, Accountant and Married Woman respectively to be Executors and Trustees of this my Will.
(2)After payment of all my just debts funeral and Testamentary Expenses & all Succession and Duty fees I Devise and Bequeath all my estate both real (if any) and personal to my eldest son Christopher Frederic Paul at the date of this document a member of the Royal Australian Navy on condition that he carry out certain bequests as outlined to the aforementioned Trustees who both or either one will have a list of the beneficiaries to these bequests.
(3)Lastly revoking all prior Wills, Codicils and Testamentary writings heretofore made by me I declare this to be my Last Will and Testament.”
The 1981 will was witnessed by bank officers Mr BK Bousen and Ms AI Hay. Mr Bousen provided an affidavit for the purpose of this proceeding in which he confirmed that he had witnessed the signing of the will. At the time, he was an accountant at the Bank of New South Wales, Fortitude Valley, and was able to identify the other witness, Ms Hay, as a co-worker.
The executor named in the 1981 will Mr Arthur Langton died on 10 November 1985 and the executrix named in the 1980 will Mrs Ellen Langton signed a renunciation of probate on 2 February 2005.
Issues
In the pleadings, the following issues were raised:
(1) whether the 1981 will was the deceased’s last will?
(2) if so, how should the 1981 will be construed in the light of the condition contained in clause 2 of the 1981 will;
(3) whether the plaintiff had any beneficial interest in the Morayfield property;
(4) if so, what was the extent of that interest.
Whether the 1981 will was the deceased’s last will
No doubt as a result of her experiences over many years as a law clerk, the deceased was obsessed about the need for a will. This was reflected in her constant raising of the topic with her children and her frustration with the first defendant for his failure to make a will.
The deceased made use of the knowledge she had gained in working as a law clerk in preparing legal documents for herself and her children and engaging in transactions without using a lawyer. It is also clear from the letters that the deceased wrote (exhibits 10 and 12) and the advice that she gave her children about the formalities that had to be observed in order to make a valid will, that she was confident of her own legal knowledge and abilities. Her lack of true legal knowledge and understanding was indicated in the evidence at this trial. One instance was when the deceased suggested to the plaintiff that he sign a declaration in Form Q to obtain the reduction in stamp duty on the false basis that the Birkdale property was or would become his principal place of residence. The deceased was mistaken in her belief that it was sufficient for the plaintiff to rely on his use of the Birkdale property as his mailing address, whilst he lived and intended to live elsewhere, to swear a declaration for stamp duty purposes that it was or would become his principal place of residence.
The terms of the 1981 will itself show lack of legal knowledge. Clause 2 of the 1980 will imposed a condition on the plaintiff that “he carry out certain bequests as outlined to the aforementioned Trustees who both or either one will have a list of the beneficiaries to these bequests”. A list of bequests that was not included in the will could operate as part of the will only if it were a document in existence at the time the 1981 will was made and identified as such (Re Sunderland (1866) LR 1 P&D 198, 200) or if it were included in a codicil to the 1981 will that was executed as a testamentary instrument. To the extent that the express language used by the deceased in clause 2 of the 1981 will suggests the deceased believed that she could deal with bequests of personalty by a list that was neither a properly executed codicil nor an identified document in existence at the time she made the 1981 will, the deceased was wrong. Despite this mistake, I infer from the facts that the deceased went to the trouble of having the 1981 will properly executed as a will and keeping the 1981 will that the deceased intended the 1981 will to be effective.
What is pertinent about the mistake that the deceased made in drawing her 1981 will is that her belief that she could deal with her bequests in a separate document must affect the consideration of subsequent statements that she made about updating or re-doing her will or drawing a new will.
The defendants submit that it was more probable than not that the defendant had made a will after the 1981 will, because of the statements that she had made about doing so and the ease with which she could do another will, as she was not reliant on a solicitor. The defendants concede that they cannot prove the contents of any will subsequent to the 1981 will, but seek a finding that she made a will after the 1981 will. The consequence of that would be that any later will would have revoked the 1981 will either expressly by revocation clause or to the extent of any inconsistency.
The evidence relied on by the defendants to point to the existence of a will or wills made subsequent to the 1981 will is not compelling. There was no evidence from any person who could recall witnessing any will made by the deceased when she resided at the Morayfield property. In view of the deceased’s belief about being able to alter her bequests by a list made separately from the will itself, the statements made by the deceased from time to time about updating or re-doing her will or drawing a new will could easily have been a reference to such a list. It is possible that the document that the second defendant was shown by the deceased at the Birkdale property was the 1981 will. I did not find convincing the evidence of the second defendant that she saw the words “This is my Last Will and Testament” on the document the deceased showed her at the Morayfield property. I have no doubt that the second defendant believes that she was shown the deceased’s will on this occasion, but I consider that belief has coloured her recollection of what she saw. It is possible that, despite the second defendant’s belief the document she saw at the Morayfield property had on it the words “This is my Last Will and Testament”, what the deceased was showing the defendant was a list of bequests that she had done separately from the 1981 will. If the second defendant was shown a document with the words “This is my Last Will and Testament”, it could have been the draft will that the deceased used for demonstration purposes. It is particularly relevant and significant weight should attach to the fact that the only testamentary document of the deceased that was found after she died (and which she must have taken with her to the Morayfield property) was the 1981 will and that it was found on her bedside table.
The 1981 will favoured the plaintiff over the first and second defendants. In fact, the plaintiff was the only beneficiary named specifically in the 1981 will. From 1982 until 1995 the plaintiff rented the Birkdale property to the deceased at a favourable rental and involved the deceased in his financial affairs which she obviously enjoyed. It does not appear that the deceased disclosed to other family members that the plaintiff had provided most of the funds for the purchase of the Morayfield property.
The plaintiff bears the onus of proving on the balance of probabilities that the 1981 will was the last will of the deceased. Although there is evidence that raises the possibility that the deceased made a will after the 1981 will, I am satisfied on an evaluation of all the evidence relevant to the issue that the plaintiff has discharged his onus of showing that the 1981 will was the deceased’s last will. It has therefore been proved in solemn form.
Construction of the 1981 will
The question that arises on the construction of the 1981 will is the effect of the condition that was imposed on the gift of the estate to the plaintiff. Does the lack of a list (with testamentary effect) as contemplated by the will as at the date of the deceased’s death have the effect of defeating or invalidating the disposition of the estate in favour of the plaintiff?
The plaintiff argues that clause 2 of the 1981 will should be construed as referring to a future list by which the deceased would deal with her personal property and that there was no intention on the part of the deceased that the lack of such a list as at 9 January 1981 was fatal to the validity of the disposition of the estate under the 1981 will. The plaintiff argues that the condition attaching to the gift of the estate to him was a condition subsequent that was impossible to perform due to the failure of the deceased to provide for a list of bequests as a codicil to the 1981 will. On the basis that the condition subsequent is impossible to perform, the plaintiff argues for a construction of clause 2 of the 1981 will that gives effect to the gift free from the condition. Both in support of, and as an alternative to, that argument, the plaintiff relies on the principle of construction that the court favours a construction of a will which will avoid an intestacy.
The defendants argue that clause 2 of the 1981 is a conditional gift and as the condition is a central part of the gift, the court should not dispense with the condition and give the plaintiff the whole of the estate. The defendants rely on the approach to construction of conditions in a will found in Miller v Miller (1995) 16 ACSR 73 (“Miller”).
The will that was the subject of the decision in Miller was complex and its structure was very different to that of the 1981 will. The 1981 will is a simple document. The residuary estate is given to the plaintiff and, despite the appointment of trustees under the 1981 will, the condition applied by the deceased to the gift was directed at the plaintiff carrying out the deceased’s wishes in the nature of bequests contained in a separate list.
The clear intention of the deceased that can be inferred from the 1981 will was that the plaintiff was to benefit under the 1981 will. The construction put forward by the defendants would deprive the 1981 will of having any significant dispositive effect. It would defy the intention evinced by the terms of the 1981 will to benefit the plaintiff.
As a simple matter of construction of the words which the deceased used in the 1981 will, clause 2 takes effect as a gift of the residuary estate to the plaintiff. What results from the lack of a list of bequests capable of being given testamentary effect is that no condition attaches to the gift of the residuary estate to the plaintiff. If it were necessary to characterise clause 2 as importing a condition precedent or a condition subsequent, it must be a condition subsequent that has been made impossible to perform by the deceased’s own acts. On that analysis, the gift of the residuary estate to the plaintiff would take effect free from the condition.
As the gift to the plaintiff of the residuary estate under the 1981 will is valid, it is appropriate that the plaintiff as the residuary beneficiary should be granted letters of administration with the 1981 will.
Whether plaintiff had any beneficial interest in the Morayfield property
The defendants were unable to adduce evidence which showed that the deceased had any source of funds to purchase the Morayfield property, other than those she obtained by borrowing from Westpac. Although the plaintiff did not recall the content in any detail of the conversations he had with the deceased about the purchase of the Morayfield property, I am satisfied that he did, in fact, provide the funds for the purchase of the Morayfield property, other than the amount of the loan from Westpac.
As the plaintiff is the son of the deceased, the relationship between them is not one that gives rise to a presumption of advancement by making those funds available. As the legal title to the Morayfield property was held in the deceased’s name, it is presumed that a resulting trust arises in favour of the plaintiff and the deceased in the proportions to which they contributed the purchase money for the Morayfield property: Calverley v Green (1984) 155 CLR 242, 246-247, 258-259, 266-267. The presumption of a resulting trust can be displaced by evidence that rebuts the presumption.
As between the plaintiff and the deceased, there was no indication, whatsoever, that the plaintiff intended to make a gift to the deceased of the funds that he provided for the purchase of the Morayfield property. No doubt it suited the plaintiff’s purposes at the time of the purchase of the Morayfield property for the deceased to have the title registered solely in her name. It certainly made the deceased’s role in organising the purchase of the Morayfield property easier and explains why the cheque for the plaintiff’s share of the proceeds from the sale of the Birkdale property was drawn in favour of the deceased. I find that the plaintiff assisted the deceased to purchase the Morayfield property in her own name, so that she could have the satisfaction of paying off her share of the Morayfield property by making the repayments under the mortgage to Westpac, but that there was no intention on the part of the plaintiff to abandon his beneficial entitlement to the Morayfield property reflected by his contribution to the purchase price.
Extent of the plaintiff’s beneficial interest in the Morayfield property
The plaintiff’s beneficial interest in the Morayfield property must reflect his share of the purchase price. He paid $55,000 of the purchase price of $80,000. The plaintiff borrowed $25,000 for her share of the purchase price. That means that the deceased held the title to the Morayfield property on trust for the plaintiff and herself in the shares of 68.75% and 31.25% respectively.
No adjustments need to be made between the plaintiff and the deceased’s estate for expenses paid by the deceased during her lifetime in respect of the Morayfield property, as that reflected the arrangement that clearly existed between the plaintiff and the deceased that she meet the rates and like expenses in respect of the Morayfield property while she lived there and did not otherwise pay rent.
It follows that after the deceased’s death, the plaintiff and the estate of the deceased should bear the burden of the rates and other outgoings payable in respect of the Morayfield property in the proportions that reflect their respective beneficial interests in the Morayfield property.
The payment made by the plaintiff of the sum of $12,000 to Westpac to pay out the loan that enabled the deceased to acquire her share of the Morayfield property was the payment of a debt of the deceased’s estate.
Orders
It follows that the orders that should be made are:
1.The court pronounces for the full force and validity of the will of Ailsa Daphne Paul made on 9 January 1981 and being exhibit 3 in this proceeding.
2.Subject to the formal requirements of the Registrar, that a grant be made to Christopher Frederic Paul of letters of administration with the will of Ailsa Daphne Paul made on 9 January 1981.
3.It is declared that clause 2 of the will of Ailsa Daphne Paul (“the deceased”) made on 9 January 1981 is construed as a devise and bequest of the real and personal estate of the deceased to the plaintiff as the sole beneficiary under the will.
4.It is declared that the deceased held her interest in the land described as Lot 1 on RP151212 in the County of Stanley Parish of Caboolture and situated at 53 Glenwood Drive, Morayfield in the State of Queensland on trust for the plaintiff and herself in the shares of 68.75% and 31.25% respectively.
It will be necessary to hear submissions on costs. I will indicate, however, that after considering the evidence in detail, I am inclined to the view that the deceased’s conduct and conversations over time created the impression for the members of her family (other than the plaintiff) that she had made wills subsequent to the 1981 will and that she was the sole beneficial owner of the Morayfield property. In those circumstances, it may be appropriate to order that both the plaintiff’s costs and the defendants’ costs of the proceeding be paid from the deceased’s estate on an indemnity basis.
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