Re Will of

[1998] TASSC 89

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IN THE MATTER OF THE WILL OF JOAN LORRAINE MEACHER (DECEASED) (In the Matter of the Will of) and in the Matter of Order 65 Rule 1(a) of the Rules of the Supreme Court

File No. M28/1998
Judgment No. 89/1998
Number of pages - 5

Succession

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IN THE SUPREME COURT OF TASMANIA
SLICER, J

CATCHWORDS:

Succession - Wills, probate and administration - Construction and effect of testamentary dispositions - Generally - General principles of construction - Gift to children or issue predeceasing testator - Appearance of a contrary intention.
Wills Act 1840 Tas, s33.
Aust Dig Succession [1530]

HOBART, 21 July 1998 (hearing), 28 July 1998 (decision)
#DATE 28:7:1998

REPRESENTATION:

Counsel:
Applicant:  A K Direen
Respondents
(a)      George Anthony Meacher:              N R Readett
(b)      Amanda Jane Dalton, Mathew John Grant:           J S Breheny

Solicitors:
Applicant:  Faulds & Associates
Respondents
(a):     Clerk Walker & Stops

(b):            Hand Ogilvie & Breheny

Order: trustee's questions answered.

SLICER J

The testatrix by her will appointed her two children executor and executrix of her estate, and bequeathed such estate to her husband, children and a number of named grandchildren.  Her husband was afforded an official interest in a business and a life interest in realty.  Her son was bequeathed a sum of money and an interest in the residue of the realty, whilst her daughter was to receive jewellery and personal effects, together with a corresponding interest in realty to that enjoyed by the son.  The named grandchildren were bequeathed specified realty and a motor vehicle.  The scheme of the will clearly intended (as of its date of making) to comprehensively encompass members of her family in a specific manner.  No person other than a close family member was named in the will and no provision was made for any residual beneficiaries.  The will was executed on 11 September 1987, whilst the testatrix died on 25 September 1992.  The testatrix was survived by all named beneficiaries, except her daughter, who died on 7 October 1991, who, in turn, was survived by her son and daughter, the grandchildren of the deceased.

Ordinarily, a will is to be construed as of the date of death of the testatrix (Re Chapman, Perkins v Chapman [1904] 1 Ch 431 at 440).

The relevant terms of the will provide:

"4     I GIVE AND BEQUEATH to my daughter the said WENDY LYNETTE GRANT all my jewellery articles of wearing apparel and personal effects for her own use and benefit absolutely

…

7
(d)     The properties at 11 & 11A Heathcombe Crescent Sandy Bay aforesaid to my son the said GUY WILLIAM TUMNEY and my daughter the said WENDY LYNETTE GRANT equally between them as tenants in common in equal shares PROVIDED THAT if either of my said children will predecease me leaving issue at my death who attain the age of 18 years or any under that age such issue will take and if more than one equally between them the share in my residuary estate which their parent would have taken if such parent had attained a vested interest."

No property described as 11A Heathcombe Crescent exists and the issue relates solely to number 11.

The trustee seeks determination of the following questions:

"1(a)  Does the gift in Clause 4 of the Will fail?
1(b)   If it does not fail, who is entitled to it?
1(c)   If it does fail, is it to be dealt with as if the deceased had died intestate, or how else?

2(a)   Does the gift in Clause 7(d) of the will, of an interest in 11 Heathcombe Crescent to Wendy Lynette Grant, fail?
2(b)   If it does not fail, who is entitled to it?
2(c)   If it does fail, is it to be dealt with as if the deceased had died intestate, or how else?"

The circumstances of a pre-deceasing child who leaves issue was at the relevant time governed by the Wills Act 1840 ("the Act"), s33, which states:

"33    Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will."

It is therefore necessary to examine the terms of the will to ascertain whether any contrary intention appears therein.

Clause 4

Counsel for the husband contended that since the bequest of jewellery and personal effects was personal to the daughter, there was no intent to benefit another or a descendant of the named beneficiary.  This argument is dependent on acceptance of the proposition that the gifts were peculiar to a mother and daughter relationship and were not intended to extend per stirpes.  By the same reasoning, the bequest of the BMW motor vehicle to the grandson, or the sum of $50,000 to the son, ought not to survive their deaths, since such objects are of masculine import.  It is more logical to give import to the term "absolutely" when interpreting the words of the testatrix that she bequeath certain objects, defined by classification, to her daughter "for her own use and benefit absolutely".  The proposition advanced could not be defended if the class of objects was realty.  Assuming the interpretation advanced not to be the case, the fact that a parent chooses a class of objects which that parent believes will be of greater use or provide greater joy for a particular child, does not involve an intention to deprive the descendants of that child of the bequest.  In the context of the will, the testatrix chose specific bequests and tailored them to the named beneficiaries.  That she had specifically named existing grandchildren supports the conclusion that she stated she did not desire to deprive the unborn of the rights of their parents.  The contention based on a mother/daughter relationship is rejected.  The provisions of the Act, s33, apply.

Clause 7(d)

A different proposition is advanced by counsel for the husband in relation to this provision. It is said that since there is a provision for residue, that its use in the proviso precludes any bequest if either the son or daughter predecease the testator. The terms of the bequest that the beneficiaries were to hold the realty as "tenants in common" themselves indicate an intention that neither was to benefit by way of survivorship.

The form of the devise differs from that considered Inre King, deceased; King v King [1953] VLR 648, where a bequest in the terms:

"' … to such of … my two sons S and W as shall be living at the date of my death and if both shall then be living as tenants in common in equal shares.'"

was held to indicate a contrary intention.  The difficulty arises by reason of the proviso and the use of the term "residuary estate".  The contention is that the testatrix intended any issue of a predeceased child to take any portion of the residual estate to which that child would have taken by virtue of partial intestacy.  Since no provision was made in the will for residue, it is said that the testatrix was simply stating a wish that such grandchildren have the advantage of statute. (Administration and Probate Act 1935, ss46, 47.) To accept such an interpretation would be to disregard the "proviso" entirely. Less tortuous to reason is to accept that the words "my residuary estate" ineptly refer to the realty, that is, 11 Heathcombe Crescent. In all other respects, the proviso encapsulates an ordinary "per stirpes" clause.  The fixing of the age of 18 and its following contradiction do no more than permit the inclusion of all children and the use of the term residue can only refer to the property governed by the proviso.  On that approach, there is no need to have recourse to the provisions of the Act, s33.

The second contention advanced is that the nature of the proviso is such that its non-completion results in the failure of the bequest.  It is said that since there is no "residual estate", no child can inherit any property, and that the existence of children of the intended pre-deceased beneficiary is meaningless, since there is no residual property to inherit.  The same weakness attaches to this argument.  Given that the testatrix made no provision for residue, it is improbable and against reason that she would include a meaningless term.  It is unlikely that she would advert to the possibility of grandchildren surviving their pre-deceased parent and then ensure that they took nothing except by way of partial intestacy and statute.  Given that the will is to be interpreted as of the date of death, such sophism is not tenable.  The construction of the will in such a manner as to result in the consequence of intestacy is to be avoided (Durance v Johnson [1887] 13 VLR 112), and a court should endeavour to construe each will in such a way as to avoid intestacy (Holley v Holley [1884] 6 ALT 63).

Even if the above approaches be incorrect, there is no basis for concluding that the infelicitous grammar contained in the proviso evidences an intent contrary to the section.  To do so would be to ignore the context of the will as a whole, the absence of any general "residue" provision, the bequest of realty to tenants in common, and to import an intention to the testator that a portion of the estate be dealt with on the basis of partial intestacy.  This is not a case where the additional clause produces a consequence different from that intended by the testatrix (cf In re Morris: Corfield v Waller (1917) 115 LT 915). The preferred interpretation of the clause, the absence of a finding that there is a manifest contrary intention and the provisions of the Act, s33, all require the conclusion that the grandchildren, Mathew and Amanda Jane, take their mother's share as if their mother's death "had happened immediately after the death of the testatrix".  The answers to the questions raised by the trustee are:

"1(a) Does the gift in Clause 4 of the will fail?"	No
"1(b) If it does not fail, who is entitled to it?"	Mathew John Grant and Amanda Jane Dalton in equal shares.
"1(c) If it does fail, is it to be dealt with as if the deceased had died intestate, or how else?"	Does not arise.

"2(a) Does the gift in Clause 7(d) of the will, of an interest in 11 Heathcombe Crescent to Wendy Lynette Grant, fail?"	No.
"2(b) If it does not fail, who is entitled to it?"	Mathew John Grant and Amanda Jane Dalton in equal shares.
"2(c) If it does fail, is it to be dealt with as if the deceased had died intestate, or how else?"	Does not arise.

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