Re the will of Irene Kidd

[2002] VSC 300

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION

IN THE MATTER OF THE WILL OF IRENE KIDD (deceased)

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JUDGE:	Smith J.
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2002
DATE OF JUDGMENT:	1 August 2002
CASE MAY BE CITED AS:	In the matter of the will of IRENE KIDD
MEDIUM NEUTRAL CITATION:	[2002] VSC 300

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PROBATE – Executor - Appointment by description – "Senior Partner" – "Firm"

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Boaden	Mahons with Yuncken & Yuncken

HIS HONOUR:

1. By originating motion filed 18 June 2002, Anthony John Mahon seeks a grant of probate of the will dated 13 May 2000 of the late Irene Kidd.  She died on 29 June 2001.

1. An issue has arisen as to the interpretation of the clause in the will appointing the executor.  That clause provides as follows:

"2.I appoint the senior partner at the date of my death in the firm of Yuncken and Yuncken Lawyers of 10 – 12 Chapel Street Blackburn in the State of Victoria or the firm which at that date has succeeded to or carried on its practice (which person is hereinafter called "my trustee" which expression shall include every trustee for the time being of my estate) to be executor of this my will and trustee of my estate."

1. The applicant Anthony John Mahon, in his affidavit sworn 29 May 2002, deposes that on 30 June 2000 the practice of Yuncken and Yuncken was sold by its partners to A J Mahon & Associates Pty Ltd – 12 months prior to the death of Ms Kidd.  He deposes that he is the "senior lawyer" of A J Mahon & Associates Pty Ltd and its sole director.

1. On 19 June 2002, the Registrar of Probates raised the following requisition:

"The testatrix has appointed as executor the 'senior partner at the date of my death in the firm of Yuncken and Yuncken Lawyers . . . or the firm which at that date has succeeded to or carried on its practice.'  The applicant has applied as the sole director of A J Mahon & Associates Pty Ltd.  In such circumstances it is not considered that the right of succession extends to an incorporated entity that has a sole director and no partners.  Accordingly I am unable to proceed with this application."

1. Following receipt of the requisition, the applicant filed an opinion of counsel with the Registrar.  The Registrar responded, inter alia, that he still entertained doubts that the applicant could apply for probate.  He suggested that it would be appropriate that an application be made to seek the direction of a judge of the Court.  The matter was referred to the Practice Court.

1. I have had the benefit of a written submission from counsel.  He refers to the relevant authorities and a number of cases where similar but not identical issues have emerged.  Counsel identified the issue in this case as being whether the plaintiff came within the description in the will.  Counsel submitted that he did so in that the proper construction to be placed on clause 2 of the will was that the testatrix wanted (as executor) a lawyer, whom she did not name, but whom she described by reference to his or her being the senior lawyer in the legal practice which she did identify.  Counsel also submitted that the clause identified the person with sufficient certainty by description.  In essence, clause 2 appointed as her executor the senior lawyer in the organisation which had succeeded to and was carrying on the practice to which she referred.  He submitted that the practice still exists and can be identified and the organisation which carries it on still exists and can be identified.  He further submitted that the senior practitioner in the new organisation exists and can be identified. 

1. Views on the proper construction of clause 2 may well differ.  So too may views as to the way to approach the construction task.  It seems to me, however, that the initial question is what the testatrix meant when she referred to "the firm of Yuncken and Yuncken lawyers" and "the firm which at that date has succeeded to or carried on its practice". 

1. The word " firm", in its ordinary meaning, covers a wide variety of organisations including corporations.  This is confirmed by an examination of relevant dictionaries.  For example, in the New Shorter Oxford English Dictionary (1993) the third meaning attributed to the word is as follows:

"A partnership or company for carrying on a business; a group of people working together, orig. (derog.) to further their own interests; (a criminal) organisation or gang; a group of hospital doctors and their assistants."

Butterworth's Australian Legal Dictionary 1997 contains a number of definitions.  The first refers to an unincorporated body of persons associated together for the purpose of carrying on business.  The second definition is as follows:

"An undertaking providing legal services to the public for reward comprising a sole practitioner or partners or a solicitor corporation, employed solicitors and other staff, and other assets including work in progress, good will and liabilities.  The sole practitioner or partners carry on professional practice under a business or firm name.  For some purposes, a "firm of solicitors" includes solicitors who share remuneration as solicitors, whether or not on the same basis for each of them . . . "

The third meaning given is that of the collective name for persons who have entered into partnership with one another. 

1. In my view, the words "the firm" appearing in clause 2 should be given their ordinary meaning and read, absent any contrary indication, as referring to the undertaking conducted by Yuncken and Yuncken and its successors and as including situations where there was only one solicitor or where the practice was conducted by a corporation. 

1. The next issue is whether the reference to "senior partner" was intended to be strictly applied and so restrict the operation of "firm" to the partnership situation or whether the language used simply reflected the fact that, when the will was signed, the senior lawyer happened to be a senior partner and it was assumed that the situation would continue.  I prefer the latter construction;  for I can suggest no reason why the testatrix would want to confine her selection to the senior lawyer in a partnership structure.  I suggest that "senior partner" was used to identify the senior lawyer in the undertaking.

1. If that be the correct analysis, the question then is whether a person can be identified in A J Mahon & Associates Pty Ltd, at the relevant time, who fitted the description of the senior lawyer.  On the material before me there is a person who fitted the description - the applicant who is and was the senior lawyer.

1. Accordingly, I am satisfied that Anthony John Mahon comes within the description of the person appointed as executor by clause 2.  Probate of the will can and should be granted to him.

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