Re Burman (Dec'd)

[1997] QSC 223

IN THE SUPREME COURT

OF QUEENSLAND  O.S. No.  9079 of 1997

Brisbane

[Re Burman (dec’d)]

IN THE MATTER of the Will and Codicils of  MARY ELIZABETH BURMAN,  Deceased

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IN THE MATTER of the Succession Act  1981

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IN THE MATTER of the Rules of the Supreme Court

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IN THE MATTER of an application by KEVIN JAMES BURMAN  and ALLAN JOHN BURMAN  as Executors of the Estate of MARY ELIZABETH BURMAN, Deceased

CATCHWORDS: WILLS, PROBATE AND LETTERS OF ADMINISTRATION - s33 Succession Act 1981 - construction of will - whether issue of deceased issue can take one-third of residuary estate.

Counsel:D.G. Mullins for the Applicant

P.D. McMurdo Q.C. for the Respondent

Solicitors:Mullins & Mullins  for  the Applicant

MacDonnells for  the Respondent

Hearing Date:             16 October 1997

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 28 November 1997

This is an application by the executors of the will of Mary Elizabeth Burman (“the testatrix”) seeking a determination as to whether on the true construction of cl.3(p) of a will dated 31 August 1988 and cl.3(q) of a codicil of 17 November 1989, the surviving issue of Neville Henry Burman, who predeceased the testatrix, could take under the will.

The testatrix died on 17 February 1997 survived by two sons, Kevin James Burman and Allan John Burman who are her executors.  Her eldest son, Neville Henry Burman predeceased her survived by his wife and seven children one of whom, James Edward Burman is the respondent to the summons.

Clause 3(p) of the original will provides–

“To pay, transfer and convey the rest and residue of my estate to such of my sons as shall survive me and if more than one as tenants in common in equal shares PROVIDED HOWEVER that should my son NEVILLE HENRY BURMAN predecease me leaving his wife MARY MARGARET BURMAN, who shall survive me, then the said MARY MARGARET BURMAN shall take absolutely the share which my said son NEVILLE HENRY BURMAN would have taken had he survived me and further PROVIDED HOWEVER that should my son KEVIN JAMES BURMAN predecease me then the ORDER OF HERMITS OF ST.  AUGUSTINE shall take absolutely the share which my said son KEVIN JAMES BURMAN would have taken had he survived me and further PROVIDED HOWEVER that should my son ALLAN JOHN BURMAN predecease me then THE QUEENSLAND CANCER FUND shall take the share which my said son ALLAN JOHN BURMAN would have taken had he survived me.”

Following the death of Neville Henry Burman on 7 July 1989, the second codicil of 17 November 1989 inserted a new cl.3(p) providing–

“To pay to my daughter-in-law MARY MARGARET BURMAN absolutely the sum of SIX THOUSAND DOLLARS ($6,000.00).”

and added the contentious clause, 3(q) which provides–

“To pay, transfer and convey the rest and residue of my estate to such of my sons as shall survive me and if more than one as tenants in common in equal shares PROVIDED HOWEVER that should my son KEVIN JAMES BURMAN predecease me then the ORDER OF HERMITS OF ST. AUGUSTINE shall take absolutely the share which my son KEVIN JAMES BURMAN would have taken had he survived me and PROVIDED FURTHER however that should my son ALLAN JOHN BURMAN predecease me then the QUEENSLAND CANCER FUND shall take absolutely the share which my said son ALLAN JOHN BURMAN would have taken had he survived me.”

The respondent, who represents the interests of the issue of the deceased son, Neville, relies on s.33(1) of the Succession Act 1981 to argue that Neville's children should take one-third of the residuary estate. Section 33 is a statutory exception to the lapse rule and relevantly provides–

“(1)     Unless a contrary intention appears by the will, where any beneficial disposition of property is made to any issue of the testator (whether as an individual or as a member of a class) for an estate or interest not determinable at or before the death of that issue and that issue is dead at the time of the execution of the will or does not survive the testator for a period of thirty days, the nearest issue of that issue who survive the testator for a period of thirty days shall take in the place of that issue and if more than one nearest issue so survive, shall take in equal shares and the more remote issue of that issue who survive the testator for a period of thirty days shall take by representation.

(2)       A general requirement or condition that such issue survive the testator or attain a specified age is not a contrary intention for the purpose of this section.”

The purpose of the rule in subs.(1) is no doubt to provide a statutory exception to the lapse rule to ensure “. . . equal distribution of benefits, within the family structure . .”[1].

^[1]Manual of Queensland Succession Law, per Lee W.A., 4th ed, p.168

To exclude issue of issue from benefit, s.33 requires the manifestation of a contrary interest sufficiently specific to override s.33(2). As is pointed out in Bassett v. Hall[2] however there is–

^[2][1994] VR 432

“. . . no warrant for reading into the statute a requirement that there must be manifested in specific terms an intention to exclude known issue of any beneficiary who does not survive the testator . . . In our opinion, where the will provides that in the event of one of the two named beneficiaries predeceasing the testator, the surviving beneficiary was to take the whole gift, this would ordinarily suffice to demonstrate a contrary intention for the purposes of [s.33].  It is not necessary that there be an exclusion of a gift over to the issue of the beneficiary who predeceased the testator.  Such a requirement would be tantamount to saying that the only effective contrary intention would be an express exclusion of [s.33].”

The testatrix by both the original cl.3(p) and cl.3(q) inserted by the second codicil  left the residue of her estate “to such of my sons as shall survive me”.   While “survive” should be given its natural or ordinary meaning of "to outlive" (Brennan v. Permanent Trustee Co of NSW Ltd[3]; Wilson v .Harris[4]; Re Andrews[5]),  it alone is insufficient to constitute a contrary intention so as to displace the exception to the lapse rule.  

The respondent submits that there is no intention of  the testatrix evidenced in the will to the effect that Neville’s issue should not take.  There are two points to be made as to this.  First, in cl.3(q), the testatrix specifically established a special class of "such sons as shall survive me". By expressly nominating the class of surviving sons (so excluding deceased sons) and specifically providing for gifts over to designated charities rather than to their issue should either Kevin or Allan predecease her, she excludes her grandchildren.   Secondly, by the original cl.3(p), Neville’s wife was to take  Neville’s share of the residue should he predecease her.  However cl.3(p) substituted by the codicil excised Mary Margaret Burman’s original substitutional interest of a share of the residue and gave her a pecuniary legacy.

Given that the instrument is to be read as a whole (Inderwick v. Tatchell[6]), it, in my view, demonstrates an intention by the testatrix to exclude  her grandchildren, whether they be issue of sons dead or alive, as residuary beneficiaries.

In light of this, the orders should be that the effect of the disposition in cl.3(q) of the will, inserted by operation of the second codicil dated 17 November 1989, is that it provides for the payment, transfer and conveyance of the rest and residue of the deceased’s estate to the applicants herein, namely her surviving sons, Kevin James Burman and Allan John Burman, in equal shares as tenants in common.  Each party should have its costs taxed on a solicitor-client basis paid from the estate.

^[3][1945] 73 CLR 404

^[4](1964) 65 SR NSW 329

^[5] [1985] 2 Qd.R. 161

^[6][1903] AC 120 at 122