Prichard v Prichard
[2015] WASC 170
•15 MAY 2015
PRICHARD -v- PRICHARD [2015] WASC 170
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 170 | |
| Case No: | CIV:2843/2012 | 11 AUGUST 2014 & 24 FEBRUARY 2015 | |
| Coram: | JENKINS J | 15/05/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Directions given on construction of clause 3 of the Will | ||
| B | |||
| PDF Version |
| Parties: | GABRIELLE MARY PRICHARD IAN SIMON PRICHARD as Executor of the Estate of KENNETH PRICHARD IAN SIMON PRICHARD PAUL JOHN PRICHARD MICHAEL KENNETH PRICHARD LOUISE ANNE PRICHARD |
Catchwords: | Succession Construction of will Hotchpot clause Whether, and if so which, advances made to children of deceased are to be brought into hotchpot |
Legislation: | Wills Act 1970 (WA), s 26, s 28A, s 32 |
Case References: | Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 Keogh v Cornish [2010] WASC 129 Legal Practitioners Complaints Committee v Camp [No 2] [2010] WASC 207 Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117 Parnell v Hinkley [2007] WASC 102 Re Hayward (deceased); Kerrod v Hayward [1957] 2 All ER 474 Re Tennant; Mortlock v Hawker [1942] HCA 3; (1942) 65 CLR 473 Taylor v Taylor (1865) LR 20 Eq 155 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
IAN SIMON PRICHARD as Executor of the Estate of KENNETH PRICHARD
First Defendant
IAN SIMON PRICHARD
Second Defendant
PAUL JOHN PRICHARD
Third Defendant
MICHAEL KENNETH PRICHARD
Fourth Defendant
LOUISE ANNE PRICHARD
Fifth Defendant
Catchwords:
Succession - Construction of will - Hotchpot clause - Whether, and if so which, advances made to children of deceased are to be brought into hotchpot
Legislation:
Wills Act 1970 (WA), s 26, s 28A, s 32
Result:
Directions given on construction of clause 3 of the Will
Category: B
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr M W Fatharly
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiff : In person
First Defendant : Kott Gunning Lawyers
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Keogh v Cornish [2010] WASC 129
Legal Practitioners Complaints Committee v Camp [No 2] [2010] WASC 207
Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Parnell v Hinkley [2007] WASC 102
Re Hayward (deceased); Kerrod v Hayward [1957] 2 All ER 474
Re Tennant; Mortlock v Hawker [1942] HCA 3; (1942) 65 CLR 473
Taylor v Taylor (1865) LR 20 Eq 155
1 JENKINS J: This is an application for directions as to the proper construction of the Will of the late Kenneth William Prichard (the deceased), widower.
2 The deceased died on 2 June 2011 and left an estate presently valued at approximately $1,850,000. Probate of the deceased's Will dated 17 November 2004 and a codicil dated 14 September 2006 was granted on 28 September 2011. However, the estate has not been distributed because of conflicting opinions about the meaning of cl 3 of the Will.
3 There are five beneficiaries under the Will. Each of them are the deceased's, now adult, children. This application is brought by Gabrielle Prichard, one of the deceased's daughters. The deceased's eldest son, Ian Prichard, is the first defendant, as executor of the estate of the deceased, and the second defendant, personally. The remaining children are Paul, the third defendant, Michael, the fourth defendant, and Louise, the fifth defendant. To avoid confusion due to each of the parties having a common last name, I will refer to each of them in his or her personal capacity by his or her first name. I will refer to Ian, in his capacity as executor and trustee, as the executor.
Further submissions after the hearing
4 On 2 October 2014, after I had reserved my decision, Ian forwarded to the court further written submissions about the construction of cl 3.
5 These submissions resulted in correspondence with the other parties as to whether they objected to me taking the submissions into account. Various responses were received. Only Louise objected to me taking the further submissions into account. She objected on the grounds of finality. Gabrielle did not object as long as she had an opportunity to respond to Ian's further written submissions.
6 The court wrote to the parties on 24 November 2014 advising them that they had 21 days to object to Gabrielle having leave to file further submissions in response to Ian's further written submissions and granting Gabrielle 28 days to provide her responsive submissions. No such submissions were received.
7 Once a matter has been heard, there is no right for any party to make further written submissions without leave of the court. It is at the hearing itself that the parties are expected to make a complete statement of their case and position; Carr v Finance Corporation of Australia Ltd(No 1) [1981] HCA 20; (1981) 147 CLR 246, 248 (Mason J); Legal Practitioners Complaints Committee v Camp [No 2] [2010] WASC 207 [9], [48], [51]. Thus, Ian requires leave to file the further written submissions. In the circumstances, I grant Ian leave to rely upon the further written submissions provided under his covering letter dated 2 October 2014.
Application to adduce further evidence after the hearing
8 On 14 November 2014, Ian also wrote to the court advising that he had an expert witness who he wanted to call to give evidence about the grammar and syntax of cl 3 of the Will. This letter was followed on 21 November 2014 by an application to adduce further evidence but the application was not accompanied by a supporting affidavit or a proof of evidence from the expert witness.
9 On 23 December 2014 the court advised Ian that the application would not be listed for hearing unless he filed a supporting affidavit, which included a proof of evidence from the expert witness.
10 There was then correspondence between Ian and the court about when such an affidavit would be filed.
11 Finally, on 18 February 2015 Ian filed his affidavit in support of his application to adduce further evidence. The application attached an unsigned report of Dr Alan Hancock. Dr Hancock holds a masters of arts and applied linguistics and purports to be an expert in professional writing and grammar.
12 On 24 February 2015 Ian's application to adduce further evidence was listed for hearing. Regrettably, it could not be concluded on that date because Gabrielle did not appear. I was not satisfied that she had notice of the hearing. Further, there was an issue as to whether Louise had been properly advised of the use to which Ian wished to put Dr Hancock's evidence. I heard from the parties who were present and then made orders permitting the parties who were not present to provide short written submissions in relation to three matters. They were, whether Ian ought to be given leave to reopen his case to call Dr Hancock, whether if Dr Hancock was called as a witness the party wanted to cross-examine Dr Hancock and if Ian was given leave to reopen his case whether the other party agreed or disagreed with Dr Hancock's interpretation of cl 3, and why?
13 The parties who were not present at the hearing were provided with a copy of the transcript of the hearing on 24 February 2015 under a covering letter from the court advising the parties of my orders.
14 No response has been received from Gabrielle. Michael advised the court that he had no objection to Ian being given leave to reopen his case and he had no wish to cross-examine Dr Hancock. Louise objected to Ian being granted leave to reopen his case on the basis of finality and limiting costs.
15 Ian requires leave to reopen his case to call the evidence from Dr Hancock. The general rule is that a party must adduce all his evidence when presenting his case. There is a judicial discretion to allow further evidence to be called after a hearing.
16 In Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117 [12] - [14], McLure J said that there was some uncertainty as to the test to be applied to the exercise of the court's discretion to permit the reopening of a matter before orders are made. In that case her Honour applied the less stringent test of two which her Honour identified. I will apply the same test in this case. The first question is whether there is a reason for not calling the proposed evidence at the hearing. McLure J said that relevant factors in the exercise of the discretion include the materiality of the proposed evidence and whether the interests of justice would be advanced by its admission.
17 In this case, there is no evidence before me that it was a deliberate decision by Ian not to adduce the evidence of Dr Hancock in the hearing. However, there is no evidence before me to establish that his evidence would not have been available at the hearing by the exercise of reasonable diligence. I take into account that Ian is self-represented. Consequently prior to the hearing the issues which arose at the hearing in respect of the construction of cl 3 may not have been apparent to him as being relevant issues.
18 The proper determination of Ian's application to reopen his case is, in my view, determined by the lack of materiality of the evidence and the fact that the interests of justice will not be advanced by its admission. Dr Hancock's evidence goes to the grammatical construction of cl 3. I do not require an expert to advise me of matters of grammar in a Will which was written by a lawyer on instructions from a lay client. Dr Hancock goes on to give an opinion on the proper construction of cl 3 using extrinsic evidence. In my view his evidence goes beyond that permitted by an expert. In essence, he is giving an opinion as to the final issue to be decided by me. Further, he self-selects the extrinsic evidence which he chooses to take into account as being relevant to the construction of cl 3. It is a matter for me to decide what evidence to take into account and the weight to be placed on that evidence. For these reasons, as well as the interest in bringing this matter to a conclusion, I decline to allow Ian to reopen his case to call evidence from Dr Hancock.
19 Subsequent to the hearing on 24 February 2015, Ian filed his further affidavit, sworn 16 March 2015. The affidavit purports to explain why he did not make certain submissions at the hearing on 24 February 2015 and then sets out the further submissions which he wishes to make.
20 Ian has had ample opportunity to make submissions in respect of the construction of cl 3. It is now in the interests of all parties that the matter be brought to an end. I decline to allow Ian to reopen his case to adduce his further affidavit or to make the submissions contained in it.
The Will and the schedule
21 The Will contains no specific bequests. It leaves the executor all the deceased's shares in Peter Lewis Investments Pty Ltd (PLI), to sell PLI's property and to hold the proceeds in trust as part of the deceased's residuary estate. The deceased leaves the balance of his estate upon trust to the executor, to pay the deceased's debts and to hold his residuary estate upon trust for his five children, as tenants in common in equal shares.
22 Clause 3 of the Will says:
I DECLARE that every advance of money or property made by me as set out in the paper writing kept with this my Will and signed by me to any child of mine and every sum of money or property advanced by me to any child of mine shall be brought into hotchpot by such child upon the division of my residuary estate at the value at the time of such advance and be accounted for accordingly and shall be brought into account as against all persons interested in such share (the hotchpot clause).
23 Bound with the Will is a typed list, on a separate page (the schedule), in the following terms:
| PARTICULARS AND DETAILS OF ADVANCES MADE BY ME KENNETH WILLIAM PRICHARD TO MY CHILDREN PRIOR TO 2004 TO BE BROUGHT INTO HOTCHPOT | |||
| Date |
|
| Signature |
| Up to 1987/88 |
| $260,000.00 |
|
| Up to June 04 |
| $75,000.00 |
|
| Up to June 04 |
| $75,000.00 |
|
| Up to June 03 |
| $35,000.00 |
|
| Up to June 03 |
| $35,000.00 |
|
24 On 14 September 2006, the deceased made a codicil which had the effect of revoking the bequest of the deceased's PLI shares to the executor on trust and instead giving the PLI shares to Ian absolutely. However, PLI was liquidated prior to the deceased's death and so that clause is of no effect. The codicil did not amend cl 3 or the schedule.
25 The Will was drawn by the deceased's solicitor, John Steers.
26 Mr Steers gave evidence that the deceased gave him a list of amounts which he wanted brought into hotchpot and that list became the schedule referred to in cl 3. Mr Steers' evidence was to the effect that the deceased intended that the amounts specified on the schedule, as it was on the date of the execution of the Will, were to be brought into hotchpot, together with any further advances which the deceased noted on the schedule. He said that the deceased 'wanted to square things up' so that his children received 'equal amounts over time'.
27 After the Will was executed, Mr Steers sent the original and a copy to the deceased. Mr Steers sent an accompanying letter which included the following paragraph:
I confirm that if you make any further advances to any of your children, that you want brought into account on your death, in hand on the particulars of advances paid (page 5 of the Will) write in the date, name of the child, amount advanced and sign.
28 On 19 November 2004, Mr Steers also sent the deceased a document entitled 'Notes as to Your Will' (TB 70). It directed that the original of the Will should be placed in a safe deposit, preferably with the deceased's bank. It directed the deceased not to in any way attach any document to the Will or alter it in any way. The original Will including the schedule, was found after the deceased's death in a bank safe deposit box. Neither the Will or the schedule contained any alterations or additions.
The amended copy schedule
29 A copy of the schedule bound with a copy of the Will was found amongst the deceased's papers. The deceased had amended it in his own hand by adding two further lines (the amended copy schedule) in the following terms:
| PARTICULARS AND DETAILS OF ADVANCES MADE BY ME KENNETH WILLIAM PRICHARD TO MY CHILDREN PRIOR TO 2004 TO BE BROUGHT INTO HOTCHPOT | |||
| Date |
|
| Signature |
| Up to 1987/88 |
| $260,000.00 |
|
| Up to June 04 |
| $75,000.00 |
|
| Up to June 04 |
| $75,000.00 |
|
| Up to June 03 |
| $35,000.00 |
|
| Up to June 03 |
| $35,000.00 |
|
| Up to June 05 |
| Revised + $40,000.00 |
|
| Up to June 06 |
| $57,000.00 |
|
The deceased's payments to his children
30 Throughout his life, and both before and after the dates of the execution of the Will and the final entry on the amended copy schedule, the deceased gave money to his children. Sometimes these payments came from his personal account and sometimes they came from an account held in the name of PLI, a private company. Prior to the execution of the Will, Michael, Ian and Louise were given shares in PLI, so that when PLI was liquidated they received the value of those shares. Gabrielle suggests that this was another form of advance made by the deceased.
31 The money given to the children by the deceased, as ascertained by the executor, from his examination of the deceased's accounts, is not equal to the amounts in the amended copy schedule.
32 Conflicts between the children have arisen, in part, from the perceived inequality in the amounts received from the deceased by each child, and the differing amounts listed on the amended copy schedule to be brought into hotchpot by each child.
33 It appears that neither by his gifts to his children nor by his Will did the deceased 'square things up' between his children. Of course, it was his right not to do so and it is not the court's role to rewrite the Will to do so.
The construction issue
34 Clause 3 is ambiguous on its face because on a plain reading it describes two groups of advances which are to be brought into hotchpot but the manner in which the latter group is described would appear to include in that group all of the first group of advances. This gives rise to uncertainty in the meaning of the clause and questions as to whether the description of the latter group has a meaning, other than the obvious one. As I have found that the meaning of cl 3 is ambiguous I may have regard to extrinsic evidence in construing the clause.
35 One issue in respect of construing cl 3 is that there were other substantial advances made to the children, before the execution of the Will, which were not noted on the schedule. On the face of it, this was a deliberate decision by the deceased not to require some payments to be brought into hotchpot.
36 None of the advances which were made after the execution of the Will were noted on the schedule. Some, but not all, of the advances which were made after the execution of the Will were noted on the amended copy schedule in a formal manner from which it can be inferred that the deceased intended that the amended copy schedule would have the same status as the schedule, if it had been amended.
37 As only some of the advances made after the date of execution of the Will were recorded on the amended copy schedule and there were none recorded after June 2006, there is also an issue as to whether, given the broad wording of cl 3, the deceased intended cl 3 to provide that other advances made after the execution of the Will or after June 2006 were to be brought into account, even if they were not noted on the amended copy schedule.
38 There is also an issue as to the interpretation of the amended copy schedule, in that the deceased has added advances made to Louise 'up to June 2005' and 'up to June 2006' but it is not clear whether the deceased intended that the individual amounts specified in the amended copy schedule were to be cumulative on each other and cumulative on the earlier advance to Louise 'up to June 2003' or whether they are a running total or partly one and partly another. This latter issue does not involve an interpretation of the Will unless the amended copy schedule has testamentary effect.
39 Thus, there are a number of possible constructions of cl 3. They are:
(1) that the amounts set out in the schedule (and only those amounts) are to be brought into hotchpot;
(2) that the amounts set out in the schedule, together with the additional amounts added to the amended copy schedule by the deceased, are to be brought into hotchpot;
(3) that the amounts specified in the schedule and any additional amounts advanced by the deceased to a child after the date of the Will, not limited to and not necessarily including the amounts specified in the amended copy schedule, are to be brought into hotchpot;
(4) that the amounts specified in the schedule, the additional amounts added to amended copy schedule and any other additional amounts advanced to a child after the date of the Will are to be brought into hotchpot, irrespective of whether they are specified in the amended copy schedule or not;
(5) that the amounts specified in the schedule to the Will, the additional amounts added to the amended copy schedule and any other additional amounts advanced to a child after June 2006 are to be brought into hotchpot; or
(6) that the amounts specified in the schedule and any amount advanced to a child before or after the date of the Will, irrespective of whether it is included in the schedule or amended copy schedule, are to be brought into hotchpot.
Legal principles - construction of wills
40 The Wills Act 1970 (WA) s 26 sets out the general rules of construction of a will. The section relevantly states:
(1) Unless the contrary intention appears by the will -
(a) the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;
• a will should be construed so as to give effect to the intention of the testator;
• the testator's intention is to be determined from the language of the will, read in light of the circumstances in which the will was made;
• the words used in the will should be read in the sense in which the testator appears to have used them;
• the words used in the will are not to be interpreted on the basis of what it is suspected the testator intended;
• a court cannot ignore the plain meaning of words used in the will, nor can it unnecessarily introduce words to give effect to an intention that is not expressed;
• a court is to construe a will having regard to its actual language, content and circumstances and only to have regard to canons of construction and other decisions on the meaning of a word or phrase in the case of ambiguity;
• a court is entitled to say that words which the testator has used were not intended to have their primary meaning if the surrounding circumstances are such as to lead inevitably to a conclusion that they had a different meaning;
• a court may receive extrinsic evidence as to the sense or meaning of terms used by the testator, but such evidence cannot be used to contradict provisions in the will which are otherwise clear;
• if the intention of the testator is ascertained by the court and if particular expressions are found in the will which are not consistent with that intention, such expressions must be discarded or modified.
42 See, Parnell v Hinkley [2007] WASC 102 [12] - [15] (Newnes M) and the cases referred to therein; Keogh v Cornish [2010] WASC 129 [51] (Mazza J) and the cases referred to therein.
43 The use of extrinsic evidence to construe a will is governed by the Wills Act s 28A which relevantly states:
(1) In proceedings to construe a will, evidence, including evidence of the testator's intention, is admissible to the extent that the language used in, or other content of, the will renders the will or any part of the will -
(a) meaningless;
(b) ambiguous on the face of the will; or
(c) ambiguous in the light of the surrounding circumstances.
(2) Evidence of a testator's intention is not admissible to establish any of the circumstances referred to in subsection (1)(c).
Legal principles - hotchpot
44 In Re Tennant; Mortlock v Hawker [1942] HCA 3; (1942) 65 CLR 473, Dixon J said:
When a disposition requires that a fund should be distributed equally among a class and then goes on to provide that those members of the class who have received advancements should bring them into hotchpot, the effect is to qualify the statement that the shares in the fund shall be equal and to direct a method of calculation which may be expected to result in some other proportions. The purpose of directing the hotchpot commonly is to ensure that children obtain from their parent by advancement and under his will equal portions or equality of benefit (487).
45 Although Rich J in the same case said 'the intention of a testator in inserting a hotchpot clause in his will is to provide that there shall be a fair division among his children' (482), ultimately such a clause operates according to its own terms. Thus, if the language of the relevant hotchpot clause discloses that the testator intended that some advancements but not others are to be brought into account, the testator's words and intention are to be given effect to. That is, the usual purpose of a hotchpot clause identified by Dixon J must give way if the intention of the testator, determined by the language of the Will, is to only require some, but not all, advances made during the testator's lifetime to be brought into account.
46 The common law principle on a total intestacy that the testator's child is obliged to bring substantial advancements made at any time into account in calculating his or her entitlement on the intestacy, does not apply directly to the construction of a hotchpot clause in a Will. According to the legal principles governing the construction of Wills, a hotchpot clause must be construed according to its terms and in light of the circumstances in which it was made.
47 An 'advancement' has a particular meaning in law. It usually denotes payments made by a parent, early in his child's life, to establish his child in life or to provide provision for the child. Therefore casual or small payments to a child are not considered to be advances in the legal sense of the word; Taylor v Taylor (1865) LR 20 Eq 155; Re Hayward (deceased); Kerrod v Hayward [1957] 2 All ER 474.
48 In my opinion the deceased did not use the words 'advance' and 'advanced' in cl 3 in this same legal sense. He sought to identify with particularity some, but not all payments which he wanted to be brought into hotchpot, but there is no evidence before me that the payments were an 'advancement' in the legal sense.
Construction of cl 3
49 On a plain reading, cl 3 identifies 2 groups of advances which are to be brought into hotchpot. The first group is described by the words, 'every advance of money or property made by me as set out in the paper writing kept with this my Will and signed by me to any child of mine'. Without reference to the remainder of cl 3, this is a clear articulation of the deceased's intention that at the time the Will was made, the deceased intended and directed that all of the advances listed by him in the schedule should be brought into hotchpot by the relevant child.
50 There is a question as to whether by those same words the deceased articulated and intended that the 'paper writing kept' with the deceased's Will was the amended copy schedule as opposed to the schedule included and bound with the Will. In my view, those words at the time of the execution of the Will described the schedule rather than the amended copy schedule. This is because at the time the Will was made, the amended copy schedule did not exist and the heading of the schedule is consistent with it being the list referred to in cl 3.
51 Gabrielle submits that the above quoted opening words in cl 3 include advances made at any time by the deceased to a child. I cannot agree. There would have been no sense in the deceased setting out a schedule to the Will if it were not for the purpose of identifying the advances of money or property which he wanted to be brought into hotchpot up to the date of the making of the Will. Further, such an interpretation ignores the phrase 'as set out in the paper writing kept with this my Will and signed by me'.
52 I rely on Mr Steers' evidence to the effect that the deceased informed him that the amounts in the schedule at the time the Will was signed were the advances up to the date of the Will which were to be brought into hotchpot. This evidence negates any suggestion that any other advances made prior to the date of the Will were to be brought into hotchpot.
53 According to Gabrielle, this may not be a fair result. She says that there are other advances made to her siblings prior to the date of the Will which are not specified on the schedule. That may be so. However, my job is to interpret the Will, not to rewrite it according to either Gabrielle's or my concepts of fairness.
54 Next, Gabrielle says that the list in the schedule is not accurate because it lists an advance to her of $260,000 which she says was not an advance to her personally. Rather, she says that it was an investment by the deceased in a company, albeit one associated with her, in consideration for which the deceased received shares in the company and a directorship on the Board of the company. It is not in dispute that Gabrielle also invested in the company and that, ultimately, both she and deceased lost the value of their investments.
55 Whether or not what Gabrielle says is correct, the language in the Will is clear in this respect. The deceased declared, in effect, that Gabrielle bring $260,000 into hotchpot. Again, it is not for me to re-write the Will to give effect to Gabrielle's or my view of the family's financial history.
56 Gabrielle further submits that a letter the deceased wrote to Ian dated 2 June 2009, shows that the deceased intended to forgive one third of the $260,000. In the letter, referring to Gabrielle as Gaye, the deceased wrote:
I will take one third responsibility for the position she found herself in for the cash, between her and I.
…
In accepting a one third responsibility this will reduce Gaye to an approximate or equivalent compilation the other members of the family have had and she will be given in the future: the same as they're given. An exact equality can not be given or stated for different time positions of life and have to be accepted (TB 150) (the 2009 letter).
- It may have been the deceased's intention at that time to change the schedule to reflect what he said in the 2009 letter. Even if that was his intention, the deceased may have changed his mind after that date and decided to leave the schedule as it was. In the end, it does not matter, as the letter does not have testamentary effect. That is, it does not form part of the deceased's Will.
57 The Wills Act s 32(2) provides that a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by the Wills Act, may constitute an alteration to a will of the deceased if the court is satisfied that the deceased intended the document to constitute an alteration to his Will. I have not been asked to make such a finding in respect of the 2009 letter but, in any event, I would not do so. I am not satisfied that the deceased intended the 2009 letter to constitute an alteration to his Will. The 2009 letter is dated two years before the deceased's death. The fact that in those two years the deceased did not alter his Will or the schedule in conformity with the 2009 letter tells against a finding that he intended to put his words in the letter into testamentary affect.
58 The status of the amended copy schedule needs to be determined. I am satisfied that the schedule and the amended copy schedule embody the testamentary intentions of the deceased, even though they had not been executed in the manner required by the Wills Act. In respect of the schedule, I have reached this conclusion because of the way the deceased referred to the schedule in his Will and because the two documents were bound together.
59 In respect of the amended copy schedule, the deceased had received advice from Mr Steers to note additional amounts he intended to be brought into hotchpot on the schedule. However, the Will and schedule were put in a safe deposit box, so they were not readily at hand. The deceased added amounts to the copy schedule bound with a copy of the Will. He formally signed those additions in a manner which was consistent with the original entries in the schedule and the instructions from Mr Steers. Therefore, I am satisfied that the deceased intended the amended copy schedule to constitute an alteration to the schedule and to his Will. It follows, in my view, that the first group of advances which are to be brought into hotchpot are those listed on the amended copy schedule.
60 In cl 3 the second group of advances is described by the words 'and every sum of money or property advanced by me to a child of mine'. The deceased used the word 'and' to conjoin the phrases describing the two groups of advances.
61 In respect to the above phrase there are three possible constructions. The first is that the description of a second group of advances to be brought into hotchpot describes any other advance made by the deceased to a child, at any time. This is Gabrielle's preferred construction. Although this would be the primary meaning of the relevant phrase, for the reasons I have given earlier in these reasons, I do not accept that this construction is consistent with the remaining wording of cl 3, the existence of the schedule and the amended copy schedule and the evidence of Mr Steers as to his instructions from the deceased.
62 The second possible construction is that the apparent description of a second group of advances to be brought into hotchpot is not a reference to a description of a different group of advances but, rather, a reference to the sum of each entry listed on the amended copy schedule. That construction is favoured by Ian. I do not see the logic or sense in that construction. The amended copy schedule was not in existence when cl 3 was drafted. Nor was it existence anticipated. In my view, the relevant phrase does not bear that meaning.
63 The third possible construction is that the description in cl 3 of the second group of advances to be brought into hotchpot is a reference to any advance made after June 2006 being the date of the last entry on the amended copy schedule. This construction has the attraction of giving some meaning to the phrase 'and every sum of money or property advanced by me to any child of mine'. On the other hand, and this is most telling against the acceptance of this construction, it requires the addition or implication of words which are not in cl 3. It is also contrary to the advice of Mr Steers to the deceased, to add in a formal manner, on the schedule any future advances which the deceased wanted brought into hotchpot. It is difficult to understand why Mr Steers would have given this advice if the deceased had instructed him that he wanted all future advances brought into hotchpot.
64 Thus, my view is that the description of what is apparently a second group of advances to be brought into hotchpot is so vague and ambiguous that I am unable to say what is meant by the phrase 'every sum of money or property advanced by me to a child of mine' in cl 3. Mr Steers' evidence was to the effect that it would be contrary to the deceased's instructions and the deceased's intention if the phrase was given a meaning whereby it was said to describe a second group of advances to be brought into hotchpot, which were not on a schedule. There is no other evidence that the deceased intended any advances, other than those listed on the schedule or the amended copy schedule, to be brought into hotchpot. It would be contrary to the deceased's instructions to Mr Steer and the deceased's practice at least up to June 2006, to require every advance made before or after that date to be brought into hotchpot.
65 Further, it is clear that the deceased did not use the words 'advance' in cl 3 in the legal sense of an 'advancement'. That is, each of the payments which are listed in the schedule and amended copy schedule are not necessarily an 'advancement' as the law defines that term. Rather they are payments which the deceased made to his children which he wanted them to bring into hotchpot. 'Advanced' in the phrase 'every sum of money or property advanced', is used apparently in the same non legal sense. Even if it was possible to determine a period of time identified by the relevant phrase, it is impossible for the court to determine which payments are to be money or property 'advanced' for the purpose of identifying whether they are to be brought into hotchpot.
66 Consequently, my view is that the description of the second group of advances to be brought into hotchpot must be discarded for uncertainty. That leaves only the first group of advances described in cl 3 to be brought into hotchpot.
67 For the above reasons, cl 3 of the Will should be construed in accordance with option 2 which I identified earlier in these reasons. That is, considered in light of the surrounding circumstances and the extrinsic evidence, cl 3 is a direction by the deceased that the amounts specified in the schedule to the Will and the additional amounts added to the amended copy schedule are to be brought into hotchpot by his children.
68 In later written submissions, Ian has raised an issue regarding the interpretation of the schedule and the amended copy schedule. He submits that Louise must bring into hotchpot the three amounts listed against her name in the amended copy schedule, rather than only the last sum of $57,000. The difference is significant. On Ian's preferred construction, Louise has to bring into hotchpot $132,000 for advances made up to June 2006 which would be made up of $35,000 (up to June 2003), $40,000 (up to June 2005) and $57,000 (up to June 2006).
69 There is no clear answer to this issue. This is because of the ambiguity in the deceased's notation on the amended copy schedule. Further the figures which are there recorded do not equate with the payments which the executor has been able to identify that the deceased made to Louise over the specified periods and I do not know the purpose for which each of the payments to Louise were made.
70 However, there is no doubt that according to the executor's list the deceased made substantial payments to Louise or for her benefit up to June 2006, and some payments after that. As a consequence, I have decided I should construe the amended copy schedule as best I can but I acknowledge that there are valid arguments in support of different constructions.
71 Between the date of the execution of the Will and June 2005 the deceased made payments to Louise of only $5,000. The deceased had made more payments after June 2003 and before the date of the execution of the Will, but even if these are added to the $5,000, they do not add up to $40,000. Therefore, I am of the view that the preferred construction of the first handwritten notation on the amended copy schedule is that it is a figure which revises the amount which Louise is to bring into hotchpot from $35,000 up to $40,000; rather than a cumulative amount of $40,000.
72 On the other hand, the evidence is that the deceased made substantially more payments in favour of Louise between June 2005 and June 2006. I also note that the deceased did not write 'revised +' in front of the next figure of $57,000. Consequently, I construe that the last entry on the amended copy schedule differently, as being a cumulative $57,000 which Louise must bring into hotchpot. This makes a total sum of $97,000 which, according to the amended copy schedule Louise must bring into hotchpot in respect to advances made to her up to June 2006.
Conclusion
73 The originating summons seeks directions relating to the proper construction of cl 3. It asks for a specific determination of whether cl 3 requires the deceased's children to bring into hotchpot every sum of money or property advanced by the deceased to any of his children after the execution of the Will? My answer to that question is no. Clause 3 of the Will requires the deceased's children to bring into hotchpot the following, and only the following:
(1) money or property listed on the schedule, and
(2) additional money or property listed on the amended copy schedule.
74 In respect of (2) above, Louise must bring $97,000 into hotchpot.
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