Re McGilchrist (dec'd)

Case [2024] QSC 322

SUPREME COURT OF QUEENSLAND

CITATION:

Re McGilchrist (dec’d) [2024] QSC 322

PARTIES:

PAUL McGILCHRIST AND DREW McGILCHRIST AS EXECUTORS OF JOYCE McGILCHRIST, DECEASED

(applicants)

v
KIM WHEELER

(first respondent)
AND
RUTH EVOLUTE
(second respondent)
AND
BRETT McGILCHRIST
(third respondent)

FILE NO:

14352 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2024

JUDGE:

Davis J

ORDER:

1.    It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will.

2.    It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will.

3.    The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025.

4.    Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025.

5.    Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – GENERALLY – where the testator’s husband owned two pieces of land – where he made a will leaving the land to the testator – where the testator made a will leaving one of the parcels of land to one of her sons and the other parcel to two of her sons jointly – where the land was described partially by real property descriptions – where the testator’s husband predeceased her – where the land passed to her – where, after the testator’s husband made his will but before the testator died, part of the land had been resumed by a local authority – where the resumption resulted in different real property descriptions for the land than appeared in the testator’s will – whether the land passed pursuant to the specific provisions of the will – whether the land fell to residue

Administration of Justice Act 1982 (UK), s 21
Succession Act 1981 (Qld), s 33C, s 44

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26, cited
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, cited
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, cited
Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111, cited
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55, followed
Marley v Rawlings [2015] AC 129, followed
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, cited
Padbury Home of Peace for the Dying and Incurable v Solicitor-General (1908) 7 CLR 680; [1908] HCA 72, cited
Reinhard v Bell [2015] NSWSC 818,…

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AGLC
Re McGilchrist (dec'd) [2024] QSC 322
Case
[2024] QSC 322
Decision Date

CaseChat Overview and Summary

The applicants, Paul McGilchrist and Drew McGilchrist, seek declarations regarding the proper construction of the will of their deceased mother, Joyce McGilchrist, and ancillary relief. The applicants are executors of Joyce's estate and seek to determine the distribution of two parcels of land owned by Joyce at the time of her death. The parcels of land in question were previously owned by Joyce's late husband, Mervyn McGilchrist, who left them to Joyce in his will. Joyce then left the parcels to different beneficiaries in her own will. The parcels were partially resumed by a local authority between the time Mervyn made his will and Joyce made her will. The resumption altered the real property descriptions of the parcels. The applicants seek a declaration that the land in question passes pursuant to the specific provisions of Joyce's will, rather than to residue.

The court was required to determine whether the land in question passed pursuant to the specific provisions of Joyce's will or whether it fell to residue. The court had to consider the intention of Joyce as expressed in her will and the effect of the resumption on the real property descriptions of the parcels. The court also had to determine whether the obvious typographical error in clause 3(a) of the will required rectification.

The court found that the obvious intention of the words of description in clause 3(a) and clause 3(b) of the will was to identify the two parcels of land which Joyce anticipated were to be inherited by her in the event Mervyn predeceased her. The court concluded that the parcels of land in question were the parcels of land which Joyce intended to leave to her two nominated sons. The court held that the land did not fall to residue, but rather passed pursuant to clauses 3(a) and 3(b) of the will. The court held that the typographical error in clause 3(a) did not require rectification because the meaning of the provision was clear from the proper construction of the instrument. The court declared that Lot 3 on SP 309011 passes to Drew under the terms of clause 3(a) and Lot 8 on SP 309010 passes to Paul and Drew pursuant to clause 3(b) of the will.

The court made the following orders: (1) It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will. (2) It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will. (3) The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025. (4) Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025. (5) Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.

Orders

Orders of the court

1. It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will.

2. It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will.

3. The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025.

4. Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025.

5. Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.

Background

Background to the litigation

The applicants, Paul McGilchrist (Paul) and Drew McGilchrist (Drew) are the executors of the deceased estate of Joyce McGilchrist (Joyce). Paul and Drew seek declarations as to the proper construction of Joyce’s will. They also seek rectification of what is an obvious typographical error in the will and seek other ancillary relief.Background Joyce was married to Mervyn McGilchrist (Mervyn). Joyce and Mervyn had five children who survived them: (i)Kim Wheeler (Kim), who is the first respondent;(ii)Ruth Evolute (Ruth), who is the second respondent;(iii)Brett McGilchrist (Brett), who is the third respondent;(iv)Paul, who is one of the applicants; and(v)Drew, who is the other applicant. On 27 October 2020, Mervyn died leaving a last will dated 30 May 2012. That will nominated Joyce as his executor to whom he left his entire estate. By the time of Mervyn’s death, Joyce lacked capacity to act as executor. Paul and Drew were granted letters of administration of Mervyn’s will as Joyce’s attorneys. Joyce died on 24 July 2023 leaving a will dated 15 January 2015. Paul and Drew were named as executors of the will and they were granted probate on 25 September 2023. The current dispute concerns land on the Sunshine Coast which was owned by Mervyn, left in his will to Joyce, and then specifically dealt with by the terms of her will. Relevant history of that land commences on 20 September 2002. On that day by registration of a plan, Lot 8 on SP 147516 was created. The area of that parcel was 14.92 hectares. On 11 November 2003 another plan was registered creating Lot 3 on SP 158563. The area of that parcel was 11.57 hectares. Lot 3 and Lot 8 together formed a parcel of 26.49 hectares, through which passes McGilchrist Road. Lot 3 and Lot 8, as already observed, passed to Joyce upon Mervyn’s death in 2020. The land then fell to be dealt with pursuant to Joyce’s will made in January 2015. Critically clause 3 of Joyce’s will provides:“3. I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever nature or kind and wheresoever situate to my Trustees UPON TRUST to pay thereout all of my just debts and funeral and testamentary expenses (and the Duties upon all Successions under this Will) and hold the residue of my estate for my husband MERVYN GEORGE McGILCHRIST PROVIDED HOWEVER that if my husband shall predecease me the my Trustees shall hold such residue UPON TRUST as follows:(a) as to my land described as Lot 3 on SP 185563 for my son DREW McGILCHRIST PROVIDED HOWEVER that if my said son shall predecease me then my Trustees shall hold the said land for such of them my grandsons ALEXANDER DAVID MCGILCHRIST and MARCUS BRETT McGILCHRIST as shall survive me and attain the age of 18 years and if more than one as tenants in common in equal shares;(b) as to my land described as Lot 8 on SP 147516 together with all of my cattle and my tractor and implements and all of my farm plant and equipment and tools for such of them my sons PAUL McGILCHRIST and DREW McGILCHRIST as shall survive me and if more than one as tenants in common in equal shares;(c) as to my land described as Lot 10 on SP 158562 if I have not already transferred this land before my death for my son BRETT McGILCHRIST PROVIDED HOWEVER that if my said son shall predecease me then my Trustees shall hold the said land for such of his children as shall survive and attain the age of 18 years and if more than one as tenants in common in equal shares;(d) as to the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) for my daughter KIM WHEELER PROVIDED HOWEVER that if my said daughter shall predecease me then my Trustees shall hold the said sum and coin collection for such of her children as shall survive and attain the age of 18 years and if more than one as tenants in common in equal shares;(e) as to the balance then remaining equally between such of them my children KIM WHEELER, RUTH WRIGHT, PAUL McGILCHRIST, BRETT McGILCHRIST and DREW McGILCHRIST as shall survive me PROVIDED HOWEVER that if any child of mine shall predecease me or die prior to attaining a vested interest hereunder leaving a child or children living at my death or born after my death who shall attain the age of eighteen years such child or children shall take and if more than one equally between them as tenants in common the share and interest which the parent would have taken had such parent survived me and attained a vested interest hereunder.”[1] [1]This extract has been faithfully reproduced notwithstanding the appearance of obvious grammatical errors.

Evidence

Evidence Before The Court

Section 33C of the Succession Act 1981 provides:“33C Use of evidence to interpret a will(1) In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it– (a)meaningless; or(b)ambiguous on the face of the will; or(c)ambiguous in the light of surrounding circumstances.(2) However, evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).(3) This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.” It can be seen that s 33C creates an exception to the general rule that I have stated, namely, that evidence of the subjective intention of the testator is not admissible. Evidence is admissible for that purpose in the limited circumstances prescribed by the section. The section was analysed by Atkinson J in The Public Trustee of Queensland v Smith.[11] It is unnecessary though, in my view, to resort to s 33C.[11][2009] 1 Qd R 26 at [22]-[26]. In Marley v Rawlings[12], Lord Neuberger, sitting as President of the Supreme Court of the United Kingdom, considered s 21 of the Administration of Justice Act 1982, which is a section in equivalent terms to s 33C of the Succession Act 1981. After considering s 21, his Lordship made some general observations as to the approach to construing a will. His Lordship explained:“[19]When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. In this connection, see Prenn,[13] at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky,[14] per Lord Clarke of Stone-cum-Ebony JSC, at paras 21-30.[20]When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, 1400 that “courts will never construe words in a vacuum”.[21]Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at pp 770C-771D, and Lord Hoffmann at pp 779H-780F.[22]Another example of a unilateral document which is interpreted in the same way as a contract is a patent—see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin-Amgen at paras 27-32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.[23]In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th ed (2010), chapter l5 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty to Animals v Sharp [2011] l WLR 980, paras 22, 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should “place [itself] in [the testator’s] arm-chair”, is consistent with the approach of interpretation by reference to the factual context.”[12][2015] AC 129.[13]A reference to Prenn v Simmonds [1971] 1 WLR 1381.[14]A reference to Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900.

Decision

Reasons for decision

Taken in context, the obvious intention of the words of description “as to my land described as Lot 3 on SP 158563”[21] in clause 3(a) of the will and the words of description “as to my land described as Lot 8 on SP 147516” in clause 3(b) of the will was to identify the two parcels of land which Joyce anticipated were to be inherited by her in the event Mervyn predeceased her. Mervyn did predecease Joyce and the land of which she was seized at the time of her death was the land that she intended to leave to her two nominated sons. All that has happened is that a very small part of the land has been lost. Lot 3 on SP 309011 and Lot 8 on SP 309010 describe that part of the land which was inherited from Mervyn and of which Joyce was seized at the time of her death. The obvious intention is for that land to pass pursuant to clauses 3(a) and 3(b) respectively of the will. The land does not fall to residue.[21]This is the plan number which should be in clause 3(a).Conclusions It is appropriate to declare that Lot 3 on SP 309011 passes to Drew under the terms of clause 3(a) and Lot 8 on SP 309010 passes to Paul and Drew pursuant to clause 3(b) of the will. At the hearing the parties sought an opportunity to consider costs after judgment and I will make directions to facilitate that.Orders The orders are as follows:1.It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will.2.It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will.3.The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025.4.Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025.5.Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.

Ratio Decidendi

Legal Principle Established

Paul and Drew have sought declarations and other relief consistently with their position.ConsiderationRectification of clause 3(a) Rectification is sought of clause 3(a) so Lot 3 is given its proper description as a Lot in SP 158563, not SP 185563. Rectification is not necessary when the meaning of the provision is clear from the proper construction of the instrument.[3] That is the position here. [3]Tatham v Huxtable (1950) 81 CLR 639 at 645; and Reinhard v Bell [2015] NSWSC 818 at [25]. A will ought to be construed pursuant to the “armchair principle” described by Stanley J sitting in the Full Court of the Supreme Court of South Australia in Farrelly v Phillips[4] as follows:“[27]The appellant seeks to rely upon the so-called "armchair principle”. This was described in Allgood v Blake by Blackburn J as follows:The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words … the meaning of words varies according to the circumstances of and concerning which they are used.[28] There are two qualifications to the armchair principle. First, when the court considers the circumstances known to the testator, it is only the circumstances existing at the time the testator made his will that may be considered. Second, extrinsic evidence cannot be used to make words in a will bear a meaning which on the face of the will they are incapable of conveying. This is sometimes described as the “incapable meaning rule” or the “plain meaning rule”. In relation to the armchair principle, Lord Romer observed in Perrin v Morgan, that when seated in the armchair the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he plainly said.”(footnotes omitted)[4](2017) 128 SASR 502. What the evidence shows here is that at the time Joyce signed her will, which included clause 3(a) referring to “my land described as Lot 3 on SP 185563”: (i)Mervyn owned Lot 3 on SP 158563; (ii)Mervyn made a will leaving all his estate, which included Lot 3 on SP 158563, to Joyce[5];(iii)clause 3(a) on its face would only be operational if Mervyn predeceased Joyce. In other words, it only operated if, before her death, Joyce had inherited the land referred to in clause 3(a); and(iv)Joyce does not own, and has never owned, Lot 3 on SP 185563, and therefore that could never have been described by Joyce as “my land”. [5]Although in default, the land misdescribed as Lot 3 on SP 155863 passed to Drew. It is also appropriate to observe that the difference between the true real property description of the land actually owned by Mervyn, and later by Joyce, and the description appearing in clause 3(a) of the will is the transposition of two figures in the plan number.