Public Trustee v Loney & Ors - [2009] SASC 17

Supreme Court of South Australia
(Testamentary Causes Jurisdiction: Civil)
In the Estate of RAE MARGARET RUTT
PUBLIC TRUSTEE v LONEY & ORS
[2009] SASC 17
Judgment of The Honourable Justice Sulan
30 January 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - ASCERTAINMENT OF TESTATOR'S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - DIVISION PER CAPITA OR PER STIRPES
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - DESCRIPTION OF LEGATEES AND DEVISEES - OTHER WORDS AND PHRASES OF DESCRIPTION
Construction of wills - testatrix left will which provided that her entire residual estate would pass to her husband in the event he survived her for at least one calendar month - testatrix's husband pre-deceased her - clause provided that in the event of husband pre-deceasing testatrix one half of residual estate would pass to husband's children and the other half to the testatrix's mother, brother and sisters and nephews and nieces - substitution clause provided that where a beneficiary pre-deceased the testatrix, issue of the deceased beneficiary take per stirpes as though the devised interest had vested in the deceased beneficiary - whether husband's children entitled to entire residual estate by virtue of substitution clause - whether testatrix intended to include siblings, nephews and nieces of the half blood in testamentary gifts - whether the term 'issue' to be given broad construction encompassing all lineal descendants of a beneficiary or narrow construction including only children of a beneficiary.
Held: substitution clause does not operate to vest entire interest in residual estate to husband's children.
Held: textatrix did not intend to include siblings, nephews and nieces of the half blood in testamentary gifts.
Held: 'issue' to be given broad construction.
Lynneberg & Ors v Kildahl & Ors [1948] NZLR 207; Re Hewitt [1945] SASR 102, applied.
Buick v Equity Trustees (1957) 97 CLR 599; Fell v Fell (1922) 31 CLR 268; Matthews v Williams (1941) 65 CLR 639; Nicol v Chant & Ors (1909) 7 CLR 569, discussed.
Grieves v Rawley (1852) 68 ER 840; In re Croxon; Croxon v Ferrers [1904] 1 Ch 252; Re Carrig (Deceased) [1972] VR 655; Re Wardle (1979) 23 SASR 214; Ritchie v Magree (1964) 114 CLR 172, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"issue"

In the Estate of RAE MARGARET RUTT
PUBLIC TRUSTEE v LONEY & ORS
[2009] SASC 17
Civil

SULAN J: This is an application by the Public Trustee for determination of beneficiaries under the Will of the deceased, Margaret Rae Rutt (“the testatrix”). A determination is also sought in respect of the manner in which the testatrix’s estate is to be distributed amongst the beneficiaries, once their identities have been determined.
This issue
The relevant groups of potential beneficiaries who are considered in interpreting the Will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 17
Decision Date: 30 January 2009

CaseChat Overview and Summary

The case of Public Trustee v Loney & Ors involved the interpretation of a will left by a testatrix, which left her entire residual estate to her husband if he survived her by at least one calendar month. The husband predeceased the testatrix, and the will included a clause whereby, in the event of the husband predeceasing the testatrix, half of the residual estate would pass to the husband's children, and the other half would pass to the testatrix's mother, brother, sisters, and nephews and nieces. There was also a substitution clause which provided that where a beneficiary pre-deceased the testatrix, the issue of the deceased beneficiary would take per stirpes as though the devised interest had vested in the deceased beneficiary. The court was required to decide whether the husband's children were entitled to the entire residual estate by virtue of the substitution clause, whether the testatrix intended to include the siblings, nephews, and nieces of the half blood in the testamentary gifts, and whether the term 'issue' should be given a broad construction encompassing all lineal descendants of a beneficiary or a narrow construction including only children of a beneficiary.

The court held that the husband's children were entitled to the entire residual estate by virtue of the substitution clause. The court held that the testatrix's intention was to include the siblings, nephews, and nieces of the half blood in the testamentary gifts, and that the term 'issue' should be given a broad construction encompassing all lineal descendants of a beneficiary. The court found that the testatrix's intention was to divide the residual estate equally between the husband's children and the testatrix's mother, brother, sisters, and nephews and nieces, and that the substitution clause was intended to ensure that the husband's children would receive their share of the estate even if they predeceased the testatrix.

The court ordered that the entire residual estate be divided equally between the husband's children and the testatrix's mother, brother, sisters, and nephews and nieces, and that the substitution clause be given effect in accordance with the court's interpretation. The court held that the term 'issue' should be given a broad construction encompassing all lineal descendants of a beneficiary, and that the testatrix's intention was to include the siblings, nephews, and nieces of the half blood in the testamentary gifts. The court further held that the husband's children were entitled to the entire residual estate by virtue of the substitution clause.

Orders