Pringle v Pringle - [2010] WASC 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PRINGLE -v- PRINGLE [2010] WASC 206

CORAM: KENNETH MARTIN J

HEARD: 31 MAY 2010

DELIVERED : 17 AUGUST 2010

FILE NO/S: CIV 2748 of 2009

MATTER :Section 45 of the Administration Act 1903 and
the Will and Estate of EDITH GRACE PRINGLE late of RMB 1324 Styx Road, Denmark in the State of Western Australia (Dec)

BETWEEN: ALLAN BRUCE WILLIAM PRINGLE as Executor of the Estate of EDITH GRACE PRINGLE PRINGLE
Plaintiff
AND
ALLAN BRUCE WILLIAM PRINGLE
First Defendant
NEIL PAUL PRINGLE
Second Defendant
IAN DAVID PRINGLE
Third Defendant
MARGARET RUTH BANNISTER
Fourth Defendant
BEVERLY ANNE FAUNTLEROY
Fifth Defendant
ELIZA ANN HOWLETT
Sixth Defendant
GREGORY CHRISTOPHER JOHN WARD
Seventh Defendant
DEREK JOHN MILLIGAN
Eighth Defendant
GLENN ALEXANDER MILLIGAN
Ninth Defendant
CARLEEN GRACE GILLESPIE
Tenth Defendant

Catchwords:

Testamentary instruments - Construction - Will and codicil - Probate granted - Misdescriptions of property - Objective ascertainment of testamentary intention from instruments and surrounding circumstances

Legislation:

Administration Act 1903 (WA), s 45
Wills Act 1970 (WA)
Wills Amendment Act 2007 (WA), s 22, s 28

Result:

Answers provided on s 45, Administration Act 1903 application

Category: B

Representation:

Counsel:

Plaintiff:     Ms S E Bruce
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     No appearance
Fourth Defendant          :     In person
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance
Ninth Defendant           :     No appearance
Tenth Defendant           :     No appearance

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     Corser & Corser
Fourth Defendant          :     In person
Fifth Defendant            :     In person
Sixth Defendant            :     In person
Seventh Defendant        :     In person
Eighth Defendant          :     In person
Ninth Defendant           :     In person
Tenth Defendant           :     In person

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

Bakranich v Robertson [2005] WASC 12
Boyes v Cook (1880) 14 Ch D 53
Brennan v Permanent Trustee Company of New South Wales [1945] HCA 17; (1945) 73 CLR 404
Dalton v Dalton [2008] WASC 56
Higgins v Dawson [1902] AC 1
Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998)
Parnell v Hinkley [2007] WASC 102
Perrin v Morgan [1943] AC 399
Re the Estate of Collins (No 2) [2000] NSWSC 407
Ritchie v Magree [1964] HCA 10; (1964) 114 CLR 173

KENNETH MARTIN J: Edith Grace Pringle died on 27 November 2005 aged approximately 88 years.
Mrs Pringle left a will made on 31 August 2000, with some later adjustments by way of a codicil instrument of 19 October 2000. A grant of probate was made in respect of Mrs Pringle's will and the codicil on 13 July 2007.
Difficulties have arisen over to the interpretation of some provisions within these testamentary instruments, with the consequence that the executor has sought directions of the court, pursuant to s 45 of the Administration Act 1903 (WA).
Mrs Pringle was married to her late husband John Thomas Pringle (John). John died on 26 July 1991.
When Mrs Pringle died in 2005, she was survived by five children. They are respectively:
-Allan Bruce William Pringle (Bruce), who is his late mother's sole executor and in that capacity, the plaintiff. However, Bruce, in his own right, is also the first defendant;
-Neil Paul Pringle (Neil), the second defendant;
-Ian David Pringle (Ian), the third defendant;
-Margaret Ruth Bannister (Margaret), the fourth defendant; and
-Beverley Anne Fauntleroy (Beverley), the fifth defendant.
Mrs Pringle and John had two other daughters who predeceased their parents. They were Grace and Jeannette, who are mentioned in Mrs Pringle's codicil, as I will explain. Mrs Pringle's grandchildren, who are the children of Grace and Jeannette, are the sixth to tenth defendants respectively, in these proceedings. These defendants have all sent written communications to the court to the effect that they will not participate and will abide by the court's decision in these proceedings.
At a hearing before me on Monday 31 May 2010, the plaintiff executor was represented by a solicitor who attended and made submissions in augmentation of an extensive written outline of submissions of 4 March 2010.
Bruce, Neil and Margaret attended in person at the hearing in their personal capacities as first, second and fourth defendant respectively. They each addressed me from the bar table as to their respective individual positions as beneficiaries (which were different). Ian, albeit represented on the record by solicitors, did not attend. Ian's solicitors of record advised the court in writing on 28 May 2010 that Ian would abide by its decision.
The essential question of construction which arises relates to Mrs Pringle's disposition of her residuary estate equally as between all her children (with, in the case of her deceased daughters Grace and Jeannette, her grandchildren, taking in their late parents' stead).
Difficulties of interpretation in Mrs Pringle's testamentary dispositions are said by the executor to have arisen concerning provisions within Mrs Pringle's will and codicil which direct that, on an equal distribution of Mrs Pringle's residue between her children (including her two deceased daughters' children, in lieu), account is to be taken of certain financial advances earlier made to two of the children, Margaret and Ian, during the lifetime of Mrs Pringle and John - and associated with the acquisition of farming properties in the Denmark region of Western Australia. Difficulties of understanding in the workings of certain bringing to account provisions in Mrs Pringle's will and codicil, have interrupted what would otherwise have been as an equal seven‑way distribution of the residue of Mrs Pringle's estate as between the children (or her grandchildren taking in their parents' stead, for the portions left to the children of Grace and Jeannette).
Ian, whose interests feature centrally in this application, had as I mentioned been represented on the record by solicitors (under a memorandum of appearance of 6 November 2009). However, my Associate was informed in writing by those solicitors that Ian did not intend to:
[A]ctively participate in the hearing … and therefore, my client does not intend to file any submissions or authorities.
Ian's solicitor's emailed communication concluded:
Please also note that there will be no attendance by my office at the hearing on Monday, and that my client simply wishes to await the decision of the Court.
I assess that communication by the solicitors essentially to be a submitting appearance on Ian's part.
At the conclusion of oral submissions, I reserved my decision in respect of the six questions posed to the court by the executor under par 4 of an originating summons of 9 October 2009 pursuant to s 45 of the Administration Act:
The executor seeks the determination of the following questions:
(a)Does subclause 5(a)(i) of the Will mean that the sum advanced to the partnership for the purchase of the Nyabing property must be taken into account when calculating Margaret's share of the Deceased's estate?
(b)If the answer to the question raised in para 4(a) above is yes, then how is the amount to be taken into account by Margaret to be determined and calculated having reference to the provisions of subclause 5(c)(i) of the Will and point 3 of the Codicil?
(c)Does subclause 5(a)(ii) mean that the sum advanced to Ian for the purchase of Plantagenet Locations 4305 and 4310 must be taken into account when calculating Ian's share of the Deceased estate?
(d)If the answer to the question raised in paragraph 4(c) above is yes, then how is the amount to be taken into account by Ian to be determined and calculated having reference to the provisions of subclause 5(c)(1) of the Will and point 3 of the Codicil?
(e)In the circumstances, are the provisions of clause 5(a) and clause 5(c) of the Will and point 3 of the Codicil void for uncertainty and can the Executor administer the estate without reference to those provisions?
(f)Alternatively, do the provisions of clause 5(a) and clause 5(c) of the Will and point 3 of the Codicil have some other meaning?

The evidence in the case

The only evidence received on this application was uncontroversially submitted within the affidavit of Bruce, sworn in his capacity as his mother's executor, on 10 September 2009. That affidavit by annexure ABWP 1 shows a copy of the grant of probate in respect of the will and the codicil to Bruce, as executor, and to another named executor, Nancy Gwendoline Elliott. However, Ms Elliott subsequently renounced probate, leaving Bruce as sole executor.
The probate document annexes a copy of the will and the codicil. The will contains seven clauses across four pages. It was professionally drawn. Relevantly, the will of Mrs Pringle provides in these terms:
2.I GIVE DEVISE AND BEQUEATH the whole of my estate of whatsoever nature and wheresoever situate unto my said Trustee UPON TRUST for my children named below in equal shares as tenants in common:-
Neil Paul Pringle
Alan Bruce William Pringle
Ian David Pringle
Margaret Ruth Bannister
Beverley Anne Fauntleroy
3.I GIVE DEVISE AND BEQUEATH to each of my grandchildren the sum of One Thousand Dollars ($1,000.00).
…
5(a)I DIRECT
That the sums already advanced by me and my late husband John to certain of my children namely:
i.Margaret for the purchase of land at Nyabing;
ii.Ian for the purchase of the property adjoining Margaret's property at Denmark known as O'Malley's
shall be taken as a satisfaction partly or wholly to the extent of their shares in my residuary estate and shall be brought into account on its distribution;
5(b)That any advances made by me after the date of this my Will to any of my children or for their benefit shall likewise be taken as a satisfaction wholly or partly to the extent of the share of that child in my residuary estate and shall be brought into account on its distribution;
5(c)The amount which should be brought to account upon distribution against the share of any child to whom an advance referred to in this clause has been made prior to my death shall be calculated by reference to the present value at the date of my death of -
(i)in the case of advances to Margaret and Ian the proceeds of sale of the subject properties after deduction of selling expenses, liabilities for borrowings and the cost of improvements made by them during ownership.
The terms of longhand notes dated 19 October 2000, accepted to be a codicil by Mrs Pringle by admission to probate with the will, carry Mrs Pringle's signature and would appear to have been in the hand of her solicitor at the time, Mr Rodney Lewis of Dormers Legal of West Ryde, New South Wales.
Mr Lewis' notes, accepted as Mrs Pringle's codicil, are in these terms:
[A]lteration to the Will -
1.Include great grandchildren each FOR $1,000.
2.Include the children of Grace and Jeannette (both deceased) to take their parents' shares.
3.Take into account the gift of the land itself to Ian and Margaret.
Two significant themes can immediately be identified in the words of the two testamentary instruments, that were jointly admitted to probate.
First, somewhat out of order by reference to the $1,000 bequests seen in cl 3 to each of her grandchildren, is Mrs Pringle's equal disposition of her residuary estate which may be seen under cl 2 of the will to be directed towards all her children (in equal shares as tenants in common). Clause 2's fundamental premise of equality, as between the children, provides illumination, in my view, to the interpretation ultimately to be applied towards understanding some following and less clear clauses the subject of this application, especially cl 5 of the will and cl 3 of the codicil. As a matter of mathematics, I should note that the division of the residuary estate effected under the will as between five persons, is by reason of the augmentation supplied under cl 2 of the codicil, adjusted to a seven‑way division - once the children of Grace and Jeannette are factored into an equal division of residue between the children. There is no controversy over this seven‑way equal division effected under cl 2 of the will, read with cl 3 of the codicil.
The second consistent theme that can be identified across cls 5(a), 5(b) and 5(c) of the will, and then also in cl 3 of the codicil, is the expressed wish of the late Mrs Pringle to have sums earlier advanced to Margaret and Ian for the purchase of properties during the lifetime of Mrs Pringle and her late husband brought to account, in terms of the ultimate distribution and apportionment of her residuary estate, on an equal distribution between children. Clause 5(b) carries the same sentiment in my view, by use of the word 'likewise', in regard to a taking into account of advances to any of Mrs Pringle's children, if made after her will. On the evidence, however, there were no relevant advances to children made subsequent to the Mrs Pringle's will of 31 August 2000 that arise to be taken account of by cl 5(b) of the will.
I should also observe that when she died, Mrs Pringle left a considerable estate comprising moneys, shares and property spread across three States (Western Australia, New South Wales and Victoria). Under a statement of assets filed pursuant to non‑contentious probate rule 9B(1), the aggregation of Mrs Pringle's estate both in and outside Western Australia amounted in its net value to $1,056,414.09.
Some pragmatic issues as to an implementation of the distribution of residue have also troubled the executor, particularly by reference to cl 5(a) of the will, in going about the required task of taking account of earlier advances to Margaret and Ian.
I will deal with those matters shortly. First, I must briefly mention some largely uncontroversial legal principles bearing upon a court's approach to the construction of testamentary instruments.

Principles of construction: testamentary instruments

Principles of construction pertinent to the interpretive exercise upon which the court is presently engaged, may be broadly stated as follows:
1.The object of construing a will is to ascertain the testator's intention as expressed in the will itself. In a passage frequently cited from Perrin v Morgan [1943] AC 399, 406, Lord Simon LC famously observed:
[T]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator.
2.The overriding consideration is always the language used in the testamentary instrument. In Parnell v Hinkley [2007] WASC 102 [12] and [15], Master Newnes (as he then was) observed:
The Will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made. The language employed in the Will should be read in the sense which the testator appears to have attached to the expressions used, albeit it is not to be construed on the basis of what it is suspected the testator intended, other than as expressed in the terms of the Will: Fell v Fell (1922) 31 CLR 268 at 273; WA Trustee, Executor & Agency Co Ltd v Birkbeck (1921) 23 WALR 27 at 29, 31 - 32; Perrin v Morgan [1943] AC 399 at 406, 414 - 415, 416, 420; Borlaug v The University of Western Australia [2001] WASCA 425 at [15]. The overriding consideration is the language used by the testator and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed: In re Crocombe (decd) [1949] SASR 302 at 315.
…
There is a presumption against intestacy, namely that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy: Fell v Fell (supra) at 275 - 276, 284; Hamersley v Newton (2005) 30 WAR 568 at 583. But the presumption against intestacy 'is not a strong presumption': Marks v Pope [2001] NSWSC 105 at [17]. A court should not lean too heavily against a construction that produces an intestacy and, cannot, in order to avoid an intestacy, misconstrue the language of the will: In re Edwards; Jones v Jones [1906] 1 Ch 570 at 574; Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922 at 929
3.The testamentary instrument must obviously be read as a whole. Surrounding clauses may be helpful in explaining, amplifying or modifying the scope of a provision: see Ritchie v Magree [1964] HCA 10; (1964) 114 CLR 173, 181 (Kitto J), Dalton v Dalton [2008] WASC 56 [76] ‑ [77] (Beech J) referring to Brennan v Permanent Trustee Company of New South Wales [1945] HCA 17; (1945) 73 CLR 404. In Brennan, Dixon J said (significantly, I think, in the circumstances of the present application):
When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared (414).
4.In Dalton, Beech J observed by reference to the above passage in Dixon J's reasons in Brennan, that the approach is to be applied only when a court is able to identify from the will as a whole, 'the main purpose and intention of the testator' [77].
5.As to use of surrounding circumstances in the exercise of interpretation, in Bakranich v Robertson [2005] WASC 12, Master Newnes approved a passage at [13] from Williams on Wills, 8th ed, Butterworths (2002) Vol 1 at 586 as follows:
The meaning of the will is dependent upon the intention of the testator and in the court of construction the primary evidence of the testator's intention is the will itself but extrinsic evidence of circumstances may be given the nature and effect of which is to explain what the testator has written, but not what he intended to write. Thus, extrinsic evidence is admissible to make intelligible something in the will which without that evidence would not be intelligible. (Footnotes omitted)
6.Section 28A of the Wills Act 1970 (WA) now, of course, expressly permits the use of extrinsic evidence, including evidence of a testator's intention, to clarify a will. However, s 28A is not applicable in present circumstances, since Mrs Pringle died before s 22 of the Wills Amendment Act 2007 (WA) brought s 28A into operation.
7.The so‑called 'armchair principle', by reference to the observations made in Boyes v Cook (1880) 14 Ch D 53 at 56, allows a court to consider the circumstances which surrounded a testator or testatrix, at the time he or she made their will. In Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998), Owen J (as he then was) said of the armchair principle:
This principle allows the court to admit extrinsic evidence about the testator's property, family, acquaintances and friends for the purpose of putting the court in a position to read the will as the testator would have read it. That is, the court will allow evidence to be admitted of factual circumstances surrounding the testator when the will was made: Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65. Under this approach, evidence as to the testator's intentions is not admissible. If after the admission of this factual evidence the words still remain ambiguous, then (except in the case of equivocation) no further evidence will be admitted and the disposition will be void for uncertainty (7).
8.But the armchair principle is not to be stretched to a point of giving words or phrases a meaning which they are incapable of bearing or reaching the point of the court, in effect, making a fresh will for the testator or testatrix: see Higgins v Dawson [1902] AC 1, 4 ‑ 6 (Earl of Halsbury LC); Perrin.
9.Broadly, the same principles are applicable to the construction of codicils. If possible, a court will attempt to construe a codicil that does not contain a revocation clause, as standing together with the will as one instrument, representing, when read together, the last will and testament of the testator or testatrix.
10.Under the above approach, the later testamentary instrument would usually prevail over the earlier, to the extent of an express inconsistency.
11.In general, however, an earlier testamentary instrument would be disturbed only to the extent necessary, by reference to an inconsistency identified: see Re the Estate of Collins (No 2) [2000] NSWSC 407 [6] ‑ [8] (Young J).
12.If after applying the principles of construction, a court is still unable to ascertain the testator's intention, the provision must be assessed to be void for uncertainty, see Bakranich [14].

Application of law to facts: Margaret and Ian's positions

It is necessary to consider the positions of Margaret and Ian separately since their individual circumstances by reference to cl 5(a)(i) of the will and cl 3 of the codicil are, on the facts, discretely different.

Margaret (fourth defendant)

Clause 5(a)(i) of the will refers to 'the sums already advanced by me and my late husband John to … Margaret for the purchase of land at Nyabing', on the basis that such sums are to be brought to account in determining Margaret's share in the otherwise equal (seven‑way) division of Mrs Pringle's residuary estate as between her children (or the children of Grace and Jeannette in their parents' stead).
There is no controversy that evidence of surrounding circumstances is admissible to ascertain:
(a)the meaning and identification of the 'land at Nyabing'; and
(b)the timing and quantum of the amount(s) of money actually advanced by Mrs Pringle (or by her late husband John) to Margaret 'for the purchase of land at Nyabing'.
The relevant surrounding circumstances are that in or around September 1971, land known as 'Harris Road, Nyabing' in Western Australia was purchased in the name of Margaret Wells (nee Bannister) and her then husband, Richard Wells.
All the funds for the 1971 acquisition of the Nyabing land were provided by the late Mrs Pringle and her husband. It is established from a decision reached in an arbitration between Margaret and Richard and Mr and Mrs Pringle, which occurred in April 1984, and an interim award of their appointed arbitrator, Mr D R Williams QC (see attachment APWP12), that Margaret and Richard, although named on the certificate of title of the Nyabing land as the proprietors, did not hold the Nyabing land, beneficially. Rather, they held it on trust for a farming partnership of four persons, comprising themselves and Mr and Mrs Pringle.
The 1984 arbitration determined that the Nyabing land was an asset of the farming partnership which had been formed as between the four equal partners to work the Nyabing land. Margaret and Richard accordingly held the Nyabing land on trust for the partnership, as a partnership asset.
Further surrounding facts emerge from evidence received in the arbitration. These facts would have been known to Mrs Pringle as relevant surrounding circumstances at the time she made her will and her codicil in 2000. The extent of the funds advanced in 1971 in order for Margaret and her then husband Richard Wells to acquire in their names the Nyabing land (albeit on trust for the farming partnership), amounted to $10,000. A settlement statement that is attachment 'ABWP9' to the executor's affidavit, discloses that purchase price. The Nyabing land was acquired in 1971 from vendors, GR and MS Falconer.
According to the executor's affidavit (see par 9(b)), the acquired Nyabing land (Williams Location 15462) purchase price was met in terms of the final settlement amount of $10,310.27 by a cheque drawn by Mrs Pringle on the joint cheque account of herself and her late husband John.
Following its acquisition, Margaret and her former husband Richard, in conjunction with Mr and Mrs Pringle, worked the Nyabing land as a partnership asset for about 10 years - before the Nyabing land was unilaterally sold off by Margaret and Richard in March 1981 for $312,126.63. The land was transferred by Margaret and Richard to Terrence, Helen Bradley and Kimberley Noonan as tenants in common, on 26 March 1981. The unilateral sale gave rise to the arbitration.
During the 1984 arbitration, considerable attention was directed at a deed of partnership of 16 August 1971, which had been entered as between Mr and Mrs Pringle, Margaret and Richard. Clause 2 of the partnership deed provided:
The business of the partnership shall be carried on at Nyabing upon the land comprising 3004 acres held on conditional purchase by the said Richard Arthur Wells and Margaret Ruth Wells for and on behalf of the partnership and upon such further or other property or properties as the partnership may hereafter acquire.
In his reasons for interim award (ABWP13 par 3), Mr D R Williams QC observed:
The purchase price of $10,000 and the purchase expenses were paid entirely by Mrs Pringle by cheques drawn on a bank account she operated with her husband and of which each was a signatory.
At page 9, par 22 of those reasons, it was observed:
In the circumstances it is proposed to make an interim award declaring that the Nyabing property was partnership property and, it not being in dispute that the Byford property was purchased out of the proceeds of sale of the Nyabing property, that the respondents hold the Byford property on trust for themselves and the claimants. It is apparent that there will need to be some form of taking of accounts between the parties.
From the executor's affidavit, it appears that out of the proceeds of the (1981) unilateral sale of the Nyabing land (which exceeded $300,000), some $148,435 was then used by Margaret and Richard in or around 1981 to purchase a horse stud property at Byford.
As a result of the 1984 arbitration, this Byford property, which was effectively traced and thereby assessed to be partnership property as well, was sold. However, it is not clear on what is before me, when that sale event happened, or how much was realised by the sale of the Byford property.
The executor's affidavit pars 9(f), 9(g) and 9(h) says only this:
9(f)I am further informed by Margaret Bannister that the net sale proceeds from the Byford Property were divided in accordance with the final arbitration award. The final arbitration award cannot be found. To the best of my recollection and belief it provided that the net proceeds were divided as follows:
i.The first $100,000 equally between the Deceased and my Father;
ii.The remainder equally between the Deceased, my Father, Mr Wells and Margaret Bannister.
Mr Wells and Margaret Bannister were ordered to pay the costs of the Deceased and my father.
9(g)I am further informed by Margaret Bannister that, save for the purchase of the Nyabing Land referred to above (which in any event was determined to have been owned by the partnership); neither the Deceased nor my Father advanced money to her for the purpose of purchasing any other properties nor did they give her any land.
9(h)I am informed by Margaret Bannister that due to the time that has elapsed since these transactions took place she has no record of the 'liabilities for borrowings and the cost of improvements' referred to in the Will.

Advance to Margaret (Nyabing): Analysis

In cls 5(a), 5(b) and 5(c) of the will, the late Mrs Pringle uses the word 'advances'. Only in her codicil of 19 October 2000 at cl 3 does she use the word 'gift', by reference to the following phrase, 'the land itself'.
There is a small inconsistency as between the terminology of 'advance' and 'gift', if account is taken of all the circumstances associated with the acquisition, then disposition of the Nyabing partnership property. In essence though, it seems clear enough overall that by these testamentary instruments, Mrs Pringle expressed the wish (in the context of an equal disposition of her residuary estate between her children) that 'account' be taken of what Margaret (and Ian) had received, in the sense of the financial benefit which Margaret and Ian had earlier received as a result of the purchases of rural property - in circumstances where Margaret's (and Ian's) other siblings had not in their lifetimes received a like benefit from the acquisition of a property to their advantage. That analysis is formed in the context of cl 2 which expresses the intended object of an equal disposition of Mrs Pringle's residuary estate between all children. The grammar used in a very brief codicil in the long hand notes of the solicitor of Mrs Pringle may be somewhat clumsy or truncated at points. But it is not difficult to extract overall from the words of the will and the codicil read together, the expressed testamentary objective that, where two of the seven children had already received significant lifetime financial advantage in respect of advances used to acquire farming lands used by those children, that an equal division of the residuary estate, as a matter of fairness between all the children, would require that account be taken of the financial benefit that Margaret (and Ian) had received in respect of the earlier acquisitions of identified rural properties. (It is not put that Margaret held or received land other than the Nyabing land).
Clause 5(c) of the will also expresses the required concept of the financial benefit being brought to account by Margaret (and Ian) by reference to 'present value at the date of my death'. That is then amplified under cl 5(c)(i), by reference to a stipulated criterion of 'the proceeds of sale of the subject properties after deduction of selling expenses, liabilities for borrowings and the cost of improvements made by them during ownership'.
In the context of the Nyabing property which was acquired for $10,000 in 1971, then sold off for over $300,000 in 1981, there is nothing particularly unusual, as I would assess it, in Mrs Pringle, as she executed her will in August 2000, and then her codicil in October 2000, stipulating that an accounting exercise of this nature be undertaken by reference to a 'present value' of the properties, as at the date of her death.
How a 'present value' is precisely to be ascertained in the case of what was an acquisition in 1971 of a partnership asset (the Nyabing land) is, in my view, largely a matter of accounting and mathematics, as to working out a value of the respective partnership shares in the partnership asset of Margaret and Richard. The fact that the exercise may involve some effort, possibly even an injection of actuarial assistance in order to calculate a present value, does not, I think, undermine the validity of a clearly expressed testamentary instruction to bring the assessed present value to account.
Margaret, in 1971, undoubtedly received, with her then husband Richard, some financial benefit from the deployment of her parents' funds which were used to purchase the Nyabing land - which then became an asset of the farming partnership in which she and her husband each held a one quarter equal share (ie as between Margaret and Richard together they held a half partnership share).
Hardly any financial details associated with the subsequent sale of the acquired Byford property (purchased by Margaret and Richard from the proceeds of sale of Nyabing after 1981) have been provided on this application, other than the observation in the executor's affidavit at par 9(f), to which I have referred. Moreover, no details have been provided in respect of any final rendering of partnership accounts, as between the four equal partners in the farming partnership, on what must have followed towards a winding up of the four‑way partnership, after the 1984 arbitration. To the extent that it is clear that Margaret and Richard received a one quarter share each out of the proceeds of sale of the Byford property, as par 9(f)(ii) foreshadows, then that aggregate half share amount at least, prima facie, must, in my view, be brought to account by Margaret, as regards an ascertainment of Margaret's share in the residuary estate of her mother.
In terms of any further potential adjustment to that amount by cl 5(c)(i) of the will by reference to a potential deduction of expenses, liabilities or costs, any reductions would be matters for Margaret to establish, by evidence, to the executor's satisfaction.
It is not sufficient, in my view, for Margaret (or Ian) to blandly assert in 2010 that these events all happened a long time ago, or that it would be time consuming or laborious now to rummage through old documents or records to ascertain relevant financial information about Nyabing or the partnership.
It was apparent to me from the oral submissions of Margaret who appeared in person before me at the hearing on 31 May 2010 (see ts 48 ‑ 49), that her enquiries by reference to her retained books and records had not been fully comprehensive.
To the extent that Margaret might, in future, show by proper evidence that in the winding up of the partnership that she and her former husband Richard, essentially (as was asserted to me from the bar table) in the end had received nothing in terms of any financial benefit, once all expenses and liabilities were brought to account, that is a matter for her to establish to the satisfaction of the executor at a proper evidentiary standard.
If Margaret could reliably show that at the conclusion of the farming partnership, on a taking of accounts on a winding up, she and Richard viewed together had received nothing (I assess the taking account of advances that is required to be by reference to the joint financial position of Margaret in conjunction with her former husband Richard, as together holding a half share in the farming partnership and from there, in the partnership's assets) then nothing would need be brought to account to reduce her equal share in the residue under cl 5(a) of the will. But that is a matter of evidence for Margaret to establish.
Use of the word 'gift' in cl 3 of the codicil, albeit imprecise, does not at all detract from the above analysis, in my view.
In summary, therefore, at least the financial proceeds which Margaret and Richard jointly received out of the sale of their Byford horse stud property, need to be brought to account in ascertaining the correct calculation of Margaret's share in the residuary estate of her mother by reference to an assessed present value of that amount, as at the date of Mrs Pringle's death, namely, 27 November 2005.
Scrutiny of property transaction records at the time should be able to ascertain the selling price of the Byford property and from there, the ascertainment of Margaret and Richard's shares in those proceeds, as is foreshadowed under par 9(f)(ii) of the plaintiff's affidavit.
Of course more precise evidence emerging to the satisfaction of the executor on these issues may clarify or refine the 'bringing to account' exercise that is required.

The Boronia property received by Ian

Paragraph 10(f) of the executor's affidavit relates circumstances in which Mrs Pringle's late husband, John, transferred a property known as 'Boronia' to Ian Pringle and his wife Annette, on 30 May 1972, for $20,000.
John Pringle originally held a conditional purchase lease of this Plantagenet location, 'Boronia', located at Scottsdale Road in Denmark.
There appears to have been a 'cheque swap' arrangement implemented in 1972 as between John Pringle with his son and daughter‑in‑law as a part of this transaction. A component of value in livestock was also involved at $4,172.
Boronia became the subject of freehold Crown grant in 1972. The Commissioner of State Taxation appears to have valued Boronia at $24,000. Gift duty and stamp duty on the transfer of Boronia to Ian by John in 1972, appears to have been met by.
Moneys ($20,000) received by cheque from Ian Pringle (and his wife Annette) in respect of a cheque swap arrangement associated with their acquisition of Boronia, appear to have been the moneys advanced that Ian received in respect of an acquisition of Boronia from his father.
The executor's affidavit (par 10(i)) observes that by reason of the considerable time which has elapsed since Boronia was sold by Ian (apparently in 1983), that Ian now has no record of 'selling expenses, liabilities for borrowings or the costs of improvements made by him during the ownership'.
Ian Pringle and his wife Annette, appear to have also taken up another conditional purchase lease of other properties referred to in the executor's affidavit (par 10(j)) as the Kordabup land, which was sold in 1982. But there appears to have been no involvement by Mr or Mrs Pringle, in respect of advances towards the acquisition of the Kordabup land, so no account should be taken of it.
At the hearing it was orally submitted that Ian and Annette sold Boronia in about 1983, for amounts of either $250,000 or $278,000, net of liabilities.
A sale of Boronia by Ian and Annette, is, of course, a matter likely to have been known to Mrs Pringle when making her will and codicil in 2000.
On the face of it, there would appear to be minimal difficulty in ascertaining a present financial value, as at the date of the late Mrs Pringle's death in November 2005 of the 1983 proceeds of sale of Boronia to Ian and Annette.
To the extent that Ian is unable to diminish the Boronia sale proceeds amount by reference to matters as referred to in cl 5(c)(i) of the will, then again, the amount brought to account under cl 5(a)(ii) on a present value calculation, simply will not be reduced to Ian's advantage. That is a matter in Ian's hands to address, if he can. A reduction in a proceeds of sale calculated under cl 5(c)(i), is a matter for Ian to establish by evidence to the satisfaction of the executor.

Complications: Boronia

A complication is said by the executor to arise in terms of a notional process of bringing the proceeds of the sale of Boronia to account - by reason of its misdescription under cl 5(a)(ii) of the late Mrs Pringle's will, in which she refers to the advance to Ian, on the basis of it being 'for the purchase of the property adjoining Margaret's property at Denmark known as O'Malleys'.
Another complication, it is said, arises from the terminology used in cl 3 of the codicil, by use of the expression 'the gift'.
It is apparent from attachment ABWP17 which is a Crown grant, then certificate of title in respect of Boronia, that Boronia comprised Plantagenet Locations 4305 and 4310.
The transfer of Boronia from the late John Pringle to his son Ian and his daughter‑in‑law Annette, was registered on 25 August 1972. The property appears to have been then transferred to Walter and Phyllis Smith on 15 October 1982, but with a mortgage back that same day to Ian and Annette (indicating security being given for some component of an unpaid sale price by the Smiths in 1982). That registered mortgage later appears to have been transferred from Ian and Annette Pringle to the National Commercial Banking Corporation of Australia Ltd in April 1984.
Attachment ABWP20 to the executor's affidavit shows the respective geographic locations of Boronia, Kordabup and the O'Malleys property (Plantagenet Location 2017). The ABWP20 map shades O'Malleys in green, and Boronia in yellow. They present as bordering locations, divided by what looks to be a road of some description. Attachment ABWP16 is the certificate of title for O'Malleys, showing the property to have been acquired by Kevin and Margaret O'Malley in 1971. The O'Malleys transferred Location 2017 to John and Edith Pringle on 13 August 1971. Mr and Mrs Pringle took the property in 1971, as joint tenants.
By application of the principles of survivorship, Mrs Pringle became the sole proprietor of O'Malleys on 3 June 1992 (see the notation indicating that John Thomas Pringle had died on 26 July 1991).
The executor observes in par 10(a) of his affidavit, that Location 2017 had 'always been referred to within the Pringle family, as O'Malleys'.

Resolution of difficulties associated with Ian: O'Malleys

At par 10(b) of the executor's affidavit, reference is made to cl 5(a)(ii) of the will, regarding the disposition of residue to Ian.
It will be recalled the direction under cl 5(a) was as follows:
I DIRECT
(a)That the sums already advanced by me and my late husband John to certain of my children namely
i…
iiIan for the property adjoining Margaret's property at Denmark known as O'Malleys
shall be taken as a satisfaction partly or wholly to the extent of their shares in my residuary estate and shall be brought into account on its distribution;

The difficulty posed by the executor under par 10(b) of his affidavit is (by the submissions) as follows:
In other words is the deceased referring to O'Malleys as the property apparently purchased by Ian Pringle or as the property owned by Margaret Bannister and adjoining property purchased by Ian Pringle.
Neither of the references … are correct as neither Ian Pringle nor Margaret Bannister at any time owned O'Malleys.
In my view, it is very clear from the overall terms of the will and codicil read together, that the late Mrs Pringle was referring to Ian's property, Boronia, (Plantagenet Location 4310 and 4305) as the subject property referred to under cl 5(a)(ii). On the evidence, this was the only property in respect of which Ian received financial assistance from his parents towards its acquisition. As distinct from her husband, Mrs Edith Pringle does not appear from the affidavit materials to have been involved in the cheque swap arrangements with Ian. But that is of little moment, in my view, bearing in mind that it is clear that the late Mr and Mrs Pringle as a couple that were married for many years, operated a joint cheque account and worked together closely for a long period in a family farming relationship.
Clause 5(a)(ii) of the will presents as geographically inaccurate, in referring to Boronia as 'the property adjoining Margaret's property at Denmark'. In fact, Margaret's property (the land at Nyabing referred to in cl 5(a)(i)) was, as I was told at the hearing, some distance away and cannot in fact located on the map which is ABWP20. But that is also of little moment, as I will explain.
It is very apparent that Margaret held no interest in the land which was known as O'Malleys. That land was owned by her parents from 1971. But what is clear however and more important, is that Ian (and his wife Annette) did receive the significant financial benefit of the transfer of the property Boronia from Mr Pringle in 1972, and in the process received a cheque for $20,000 from John, as part of a cheque swap. On the evidence, Boronia does adjoin O'Malleys, which was owned by the late Mr and Mrs Pringle jointly, as Location 2017. Boronia, therefore, does adjoin a property at Denmark which was known as O'Malleys, in reference to cl 5(a)(ii).
The will read as a whole, by reference to its content and surrounding circumstances, points overwhelmingly to Boronia as the property to which the late Mrs Pringle intended to refer under cl 5(a)(ii) of her will. The fact that in making her will in 2000, Mrs Pringle provided a somewhat erroneous description of Boronia through her reference to 'Margaret's property at Denmark', cannot stand against the otherwise overwhelming expression of intent carried under her words read in all the other known surrounding circumstances. Indeed, if the word 'Margaret's' were deleted from cl 5(a)(ii) and replaced by the word 'the', then cl 5(a)(ii) would make perfect sense.

Resolution: Gift and Ian

As to the second complication, for the sake of clarity I shall observe, once again, that although there may be some imprecision in terms of the use of the word 'gift' as regards Ian in cl 3 of the codicil, that the overwhelming expressed intent of cl 5 in the will is clear. In the context of a $20,000 'cheque swap' transaction with his father, a utilisation of the terminology 'gift' in the codicil as regards Boronia, is understandable.
I would also observe that what should be brought to account regarding Ian is all the proceeds of the sale of Boronia, notwithstanding that Boronia was actually acquired by Ian and his wife Annette, as tenants in common, in equal shares. In other words, there should no distinction made as between Ian and Annette as husband and wife and so, the full (net) proceeds of the sale of Boronia should be brought to account.
The words of the will do not indicate that Mrs Pringle distinguished as between the interests of her children distinct from their spouses, if advances were made by Mr and Mrs Pringle in respect of lands acquired for their children's benefit, during their lifetimes. On that basis, the bringing to account assessments in respect of both Ian and Margaret, proceeds on the same basis, with reference to their respective spouses at relevant times.
Accordingly then, I would answer each of the questions posed under the originating summons as follows:
Question 4(a)     -      Yes.
Question 4(b)     -      By reference to not less than what Margaret and Richard received out of the proceeds of the sale of the Byford horse stud property (see reasons).
Question 4(c)     -      Yes.
Question 4(d)     -      See my reasons regarding the purchase price received by Ian and Annette on the sale of Boronia in around 1983 being brought to account at a present value assessed at November 2005. To the extent that reduction adjustments may be capable of being made under cl 5(c)(i), that is a matter for evidence to be adduced by Ian to satisfy the executor in terms of any downward adjustment to the ascertained level of the proceeds of sale of Boronia.
Question 4(e)     -      No. The provisions of cl 5(e) and cl 5(c) of the will and cl 3 of the codicil are not void for uncertainty. The executor must not administer the estate without reference to those provisions.
Question 5(f)     -      The provisions of cl 5 of the will and cl 3 of the codicil carry meanings as I have explained within the context of my reasons. The derivation of the correct interpretation of these provisions commences from a premise of equality in terms of the disposition of residuary estate as between the children of the late Mrs Pringle and her husband (or as regards their deceased daughters Grace and Jeannette, in that case, to Grace and Jeannette's children taking their parents' shares).
The overriding sentiment of the will and codicil on an equal disposition of the residuary estate as between children is to bring to account the present value of what were financial benefits received by Margaret and Ian during the lifetimes of the late Mr and Mrs Pringle, by reference to the acquisition of the rural property Nyabing in the case of Margaret, and in Ian's case, the property Boronia.