Re S H Wilson deceased
[2001] VSC 47
•5 March 2001
| SUPREME COURT OF VICTORIA | |
| COMMERCIAL & EQUITY DIVISION | Not Restricted |
No.4119 of 2000
IN THE WILL AND ESTATE OF STANLEY HOBART WILSON DECEASED
| PERPETUAL TRUSTEES VICTORIA LTD (ACN 004 027 258) AS TRUSTEE OF THE ESTATE OF STANLEY HOBART WILSON DECEASED | Plaintiff |
| v | |
| J. A. GOODFELLOW J. M. D. BOOTHBY R. S. B. CASSIDY P. B. CASSIDY J. MAY A. C. COWELL (WHO ARE SUED AS REPRESENTING THEMSELVES AND THE OTHER GRANDCHILDREN OF THE DECEASED AND THE MORE REMOTE ISSUE OF THE DECEASED WHO ARE YET TO BE BORN.) | Defendants |
---
JUDGE: | Bongiorno, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 January 2001 | |
DATE OF JUDGMENT: | 5 March 2001 | |
CASE MAY BE CITED AS: | Re S. H. Wilson deceased | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 47 | |
---
Wills and Estates – construction – duration of gift – lack of ambiguity in dispositive clause – literal construction.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. R. Boaden | Corrs Chambers Westgarth |
| For the 2nd Defendant | Ms. C. Sparke | Boothby & Boothby |
| For the 5th & 6th Defendants | Mr. R. Edmunds | John Willis & Co |
HIS HONOUR:
In this proceeding, which is brought by originating motion seeking orders under Order 54.02 Rules of Civil Procedure, the Court is required to construe part of the will dated 28 February 1940 of a former prominent Melbourne solicitor, Mr. Stanley Hobart Wilson who died on 23 June 1943.
Upon his death Mr. Wilson left a widow Esther and four daughters, Judith, Joyce, Margaret and Gwynneth. Esther Wilson died on 12 August 1968 survived by all four daughters who had all, by that time, married. Judith and Joyce are still alive. They are the first and second defendants. Gwynneth died on 29 September 1993 and Margaret died on 11 April 1998 each leaving children so that, at present, the deceased has two surviving daughters and grandchildren by each of two deceased daughters. The third to sixth defendants are Gwynneth and Margaret's children.
Mr. Wilson's will provided for a number of specific legacies and then directed that the net residue of his estate be held on trust to pay the net income to his widow during her life and then: -
"UPON THE DEATH OF MY SAID WIFE I DIRECT MY Trustees to stand possessed of the said net income upon the trusts following that is to say:
(a)UPON TRUST should there be any daughter or daughters of mine then living who shall be unmarried to pay to such - - daughter or to each such daughter if more than one the sum of TWO HUNDRED AND SIXTY POUNDS per annum until such daughter or daughters shall respectively marry PROVIDED ALWAYS and I HEREBY DECLARE that if the said net income shall be insufficient to pay the sum of Two hundred and sixty pounds per annum to such daughter or to each such daughter if more than one then I DIRECT my Trustees to pay the whole of the said net income to such daughter if only one or to such daughters if more than one in equal shares PROVIDED FURTHER AND I HEREBY DECLARE that if the said net income shall be more than sufficient to pay to such unmarried daughter or daughters the sum of Two hundred and sixty pounds each per annum then I DIRECT that such excess income shall until the marriage or if unmarried the date of the death of the last survivor of such unmarried daughters be paid to all and every daughters or daughter of mine whether married or unmarried who shall be living at the death of my said wife and if more than one in equal shares – PROVIDED ALWAYS and I declare that if any of my unmarried daughters shall die during the period from the date of the death of my said wife until the vesting date then I direct that the share of income which such unmarried daughter of mine so dying was receiving at the date of her death shall be paid to the other daughter or daughters of mine and if more than one in equal shares
(b)UPON TRUST should there be no daughter of mine then living who shall be unmarried to pay the whole of the said net income to such of my daughters as shall then be living and if more than one in equal shares until the date of the death of the last survivor of such daughters (hereinbefore and hereinafter called "the vesting date")
UPON the vesting date I DIRECT my Trustees to stand possessed of my residuary estate as to both capital and income UPON TRUST for such of my grandchildren as shall be living at the vesting date and if more than one in equal shares as tenants in common
(c)Should any daughter of mine die leaving issue her surviving then I direct that such issue shall be entitled to share and if more than one then equally in any surplus income to which the Mother of such issue would be entitled under the proviso contained in paragraph (a) hereof . . ."
The trustee of the deceased's estate, the plaintiff in this proceeding, has sought the assistance of the Court in construing those parts of the deceased's will reproduced above so as to enable it to discharge its obligations to those beneficiaries legally entitled to share in the deceased's residuary estate. The originating motion poses a number of alternative questions, the answers to which will determine the distribution of the deceased's estate both as to the income stream presently produced and, ultimately, the capital as well.
Apart from the plaintiff trustee the only parties represented on the hearing of this motion were the second defendant and the fifth and sixth defendants. All other defendants were content to abide the order of the Court.
A number of affidavits were filed in the proceeding by solicitors on behalf of the fifth and sixth defendants. They referred to various decisions taken by the trustee to date in respect of the deceased's estate, opinions which had been obtained and distributions which had been effected. Mr. Edmunds, who appeared for the fifth and sixth defendants did not read those affidavits as he agreed with me that they were not relevant to the issues of construction which the Court had to determine.
Mr. R. Boaden of counsel who appeared for the trustee argued that the only relevant dispositive clause which presently operates with respect to the income of the deceased's residuary estate is clause (b) set out above. He contended that as all the deceased's daughters were married at the date of their mother's death clause (b) operates to give them an entitlement to the income stream until the death of the last of them. As each daughter dies, so his argument goes, her share is distributed to her surviving sisters. This construction of the clause results in an increased share of income being enjoyed by each surviving daughter as her sisters pre decease her one by one.
Mr. Boaden supports his contention by submitting that there is an ambiguity in clause (b) and that that ambiguity must be resolved by choosing a construction which, he says, is consistent with the underlying pattern of distribution directed by the whole of the provision, including clauses (a) and (c). He argues that because, in clause (a), a provision appears which has the effect of distributing the share of a deceased unmarried daughter (in the circumstances where that clause applies) to surviving daughters, clause (b) should be interpreted so as to achieve the same result when it applies. Thus the words "as shall then be living" where they appear in clause (b) must be given an ambulatory meaning, that is to say that they must qualify the word "daughters" by confining it to those who are living from time to time, so that each distribution of income must take into account the number of daughters then living to determine each daughter's share.
Ms. Caroline Spark of counsel who appeared for the second defendant agreed with Mr. Boaden that it was clause (b) of the disposition of the deceased's residuary estate which applied to the facts of this case but contended that the gift to each of the deceased's daughters of the net income of the residuary estate continued until the date upon which the last surviving daughter died. So that even after a particular daughter's death her estate continued to receive her share of income until the date of death of the last surviving daughter. She supported her argument by pointing to the absence of any words suggesting that the income stream was given to any daughter only for her life and by relying upon the reasoning of the Vice Chancellor in Bignold v Giles (1859) 4 Drew. 343. In that case the Court determined that where a testator bequeaths a certain portion of the income arising out of a particular fund to a beneficiary with a direction to terminate the bequest at a certain time or upon the happening of a certain event, there is no warrant for limiting the bequest to the life of the beneficiary in the absence of any specific words of limitation. The estate of the beneficiary continues to receive the gift until the happening of the terminating event at which time the trustee commences to pay the income as the will directs.
Mr. R. Edmunds for the fifth and sixth defendants (the deceased's grandchildren by a deceased daughter) also contended that clause (b) of the disposition of the income from the residuary estate governed the present situation but argued that because of what he said was the intention of the testator evinced in clause (c) the income stream which had previously gone to a deceased daughter under clause (b) prior to her death should then go to her "issue". This argument depends upon clause (c) applying not only in the circumstances in which clause (a) applied but also in those which activate clause (b)
The object of the Court in construing a will is to ascertain the expressed intention of the testator; that is to say the intention which the will itself declares either expressly or by necessary implication. As Lord Simon L. C. put it in Perrin v Morgan [1993] AC 399, 406:-
"The 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."
A consequence of this general principle of construction is that it is not a court's function to improve a will so as to give affect to what the testator might have wished, if that wish is not clearly expressed by the words of the will. As Jenkins L.J. held in Re Bailey [1951] Ch. 407, 421: -
". . . it is not the function of a Court of construction to improve upon or perfect testamentary dispositions. The function of the Court is to give effect to the dispositions actually made as appearing expressly or by necessary implication from the language of the will applied to the surrounding circumstances of the case."
The Court must therefore ascertain the testator's intention by itself attending strictly to the words which he used. Prima facie, those words are to be given their ordinary meaning in the context in which they are found. However, it is clear that in certain circumstances the testator's intention may need to be ascertained by examining the will as a whole. In particular, if a particular provision in a will contains an ambiguity that ambiguity may be resolved by establishing an underlying consistent pattern of distribution and applying that pattern of distribution to the ambiguous provision so as to choose the appropriate meaning. Again, an ambiguity may be resolved by "place(ing) yourself, so to speak, in (the testator's) armchair, and consider(ing) the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention" (per James, L.J. in Boyes v Cook (1880) 14 Ch.D. 53-56.)
However, neither of these two strategies should be employed to displace the "literal" or "golden" rule that words are to be given their "ordinary", "primary" or "literal" meaning (Theobald on Wills 15th ed. Sweet and Maxwell, London, 1993 citing Shore v Wilson (1842) 9 Cl. & F. 355, 565; Abbott v Middleton (1858) 7 HLC 68, 114; Higgins v Dawson [1902] AC 1, 12; Gorringe v Mahlstedt [1907] AC 225, 227).
As Malins, V.C. held in Merry v Hill (1869) 8 Eq. 616, 622 (emphasis added):
"There is one great and cardinal rule in the construction of wills, which is, the intention of the testator. I think the proper course to adopt in construing wills is to ascertain, if possible, what is the intention of the testator, and when that is ascertained, to carry it into effect, if the words will enable you to do so. But at the same time, nothing can be done which the words will not warrant."
I agree with the parties that it is clause (b) of the provisions in the will disposing of the income from the testator's residuary estate which applies to the fact situation with which the trustee is faced. However I am unable to accept Mr. Boaden's argument that that clause contains one or more ambiguities. Construing the words of the clause in their plain meaning it appears to me:
□It applies only when there are no unmarried daughters at the date of death of the testator's wife.
□It conveys a gift of the income stream from the testator's residuary estate to each of his daughters in equal shares.
□The gift commences on the date of death of the testator's wife.
□The gift ceases on the date of death of the last survivor of the testator's daughters.
I am unable to accept the argument that the words "as shall then be living" where they appear in clause (b) convey any meaning other than that of defining the class of beneficiaries by reference to the survival of the testator's married daughters at the date of their mother's death. There is no reason to give the word "then" where it appears in that phrase any different meaning to the meaning which the same word must have where it appears in the first line of clause (b). Each refers to the date of death of the testator's wife. There is no warrant for giving the word "then" any different construction when it appears a second time. Had the testator intended to benefit only those daughters living from time to time he could have said so or limited the gift in some other way e.g. by expressing it to be "for life". He could have used words similar to those which he used in clause (a). He did not. The reason may have been that clause (b) concerned married daughters where clause (a) concerned unmarried daughters and disposed of their shares upon their death in the only rational way possible; by dividing them among their surviving sisters.
Further, I consider that the duration of the gift is expressly stipulated by the reference in the clause to "the date of the death of the last survivor". Thus the testator chose a specific date upon which the gift ceases rather than an event upon the happening of which it ceases even if the date is selected as being that upon which a particular event occurs. The words "the date of" emphasise the temporal nature of the phrase as a whole and are not without significance to a proper interpretation of the clause. In this respect I note that Mr. Boaden did not deal directly with this point in his argument and that an ellipsis occurs in respect of those three words in references to clause (b) at various points in his written outlines of argument.
It follows that I accept Ms. Sparke's argument that each daughter or her estate is entitled to share in the income from the testator's residuary estate until the date upon which the last daughter dies. Thus the share of each daughter or her estate, as the case may be, will always be 25% of the income derived from the residuary estate until the date defined by the testator as "the vesting date". On my interpretation of the testator's will, on that date his grandchildren then living become the beneficiaries of the estate as to both capital and income in equal shares as tenants in common. This distribution is per capita not per stirpes.
I am conscious of the fact that the interpretation which I have placed upon those parts of the deceased's will which I am required to construe could have led to anomalous and even capricious results had the facts as they are now known been otherwise. However, in the absence of some ambiguity in clause (b) which led to a construction which incorporated a distribution to grandchildren imported from clause (c) no completely consistent interpretation of the deceased's will can be expounded. As I have found no such ambiguity the ordinary rules of construction do not permit me to embark upon a reconstruction of the testator's will to affect a result in which grandchildren automatically benefit from the will prior to the vesting date as he defined it even if, had the facts been different, some of them may have benefited at an earlier time..
It follows from the above that the income from the deceased's residuary estate should be distributed equally between his four daughters or, in the case of those who have died, their estates, and that such distribution should continue until the date upon which the last daughter dies when the estate should be held thenceforth on trust for such of the testator's grandchildren as are then living as tenants in common in equal shares.
The originating motion in this proceeding also sought an order pursuant to Order 16 of the Rules that for the purposes of this proceeding the third, fourth, fifth and sixth defendants represent the other grandchildren of the deceased and the more remote issue of the deceased who are yet to be born. This order was not opposed by any party and accordingly will be granted as sought.
The questions in the originating motion are answered as follows:
(1)In the events that have happened, and on the true construction of the will of the deceased, does the residuary disposition contained in the will direct the plaintiff to pay out of the net income of the residuary estate: -
(a)the sum of $520 per annum to each of the surviving daughters of the deceased ? –
Answer:No.
(b)one quarter of the balance of the net income to each surviving daughter of the deceased ? –
Answer: No.
(c)one quarter of the balance of the net income: -
(i)to the children per capita of each daughter of the deceased who has since died ? –
Answer:No.
(ii)to the issue per stirpes of each daughter of the deceased who has since died? –
Answer:No.
(2)In the events that have happened and on the true construction of the will of the deceased does the residuary disposition contained in the will direct the plaintiff to distribute the whole of the net income of the residuary estate equally between such of the daughters of the deceased as are surviving until the death of the last survivor of those four daughters ?
Answer No.
(3)In the events that have happened and on the true construction of the will of the deceased is the residuary estate held on trust to pay the net income: -
(a)to or amongst the surviving daughters of the deceased and his more remote issue in some other and if so what shares or proportions ?
Answer:No.
(b)to any other and if so which persons and in what shares or proportions ?
Answer: Yes.
Each surviving daughter of the deceased is entitled to one quarter of such net income and the legal personal representative of each daughter of the deceased who has since died is entitled to one quarter of such net income until the date of death of the last surviving daughter.
There will be further orders as follows:-
(1)An order that, pursuant to Order 16 of Rules of Civil Procedure, for the purposes of this proceeding, the third, fourth, fifth and sixth defendants represent the other grandchildren of the deceased and the more remote issue of the deceased who are yet to be born.
(2)An order that the costs and expenses of the plaintiff of and incidental to this proceeding, including all costs reserved, be paid or retained out of the estate of the deceased.
(3)An order that the costs of the second, fifth and sixth defendants be taxed as between solicitor and client (in default of agreement) and be paid out of the estate of the deceased.
---
0
0
0