Rogers v Rogers Young
[2016] WASC 208
•6 JULY 2016
ROGERS -v- ROGERS YOUNG [2016] WASC 208
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 208 | |
| Case No: | CIV:2747/2015 | ON THE PAPERS | |
| Coram: | MASTER SANDERSON | 6/07/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Directions given | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL PATRICK ROGERS As Executor of The Will of KATHLEEN MARY ROGERS ALEXANDRA ROGERS YOUNG NATASHA ANNE FARRELL MELISSA JANE FARRELL BRIAN BERNARD FARRELL LUKE ROBERT FARRELL JOSHUA JOHN MURCHISON TANYA LEE ROGERS BERNARD JOHN ROGERS BELINDA ROGERS MICHAEL EDWARD KILLEEN HUSSEY DAVID JOHN HUSSEY KATE MARIE WEBB GEMMA MICHELLE HUSSEY BENJAMIN JAMES ROGERS LAUREN LOUISE ROGERS SIMON BADEN ROGERS NICOLA VICTORIA ROGERS ANNABEL FRANCESCA ROGERS MICHELLE MIN LI ROGERS WILLIAM BEN LI ROGERS |
Catchwords: | Wills Directions as to the proper construction of homemade will Turns on own facts |
Legislation: | Administration Act 1903 (WA) Trustees Act 1962 (WA) Wills Act 1970 (WA) |
Case References: | Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404 Butler v Trustees Executors & Agency Co Ltd (1906) 3 CLR 435 Gray v Gray [2013] WASC 387 Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628 Perrin v Morgan [1943] AC 399 Saunders v Vautier (1841) 4 Beav 115 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ALEXANDRA ROGERS YOUNG
First Defendant
NATASHA ANNE FARRELL
First-named Second Defendant
MELISSA JANE FARRELL
Second-named Second Defendant
BRIAN BERNARD FARRELL
Third-named Second Defendant
LUKE ROBERT FARRELL
Fourth-named Second Defendant
JOSHUA JOHN MURCHISON
Fifth-named Second Defendant
TANYA LEE ROGERS
Sixth-named Second Defendant
BERNARD JOHN ROGERS
Seventh-named Second Defendant
BELINDA ROGERS
Eighth-named Second Defendant
MICHAEL EDWARD KILLEEN HUSSEY
Ninth-named Second Defendant
DAVID JOHN HUSSEY
Tenth-named Second Defendant
KATE MARIE WEBB
Eleventh-named Second Defendant
GEMMA MICHELLE HUSSEY
Twelfth-named Second Defendant
BENJAMIN JAMES ROGERS
Thirteenth-named Second Defendant
LAUREN LOUISE ROGERS
Fourteenth-named Second Defendant
SIMON BADEN ROGERS
Fifteenth-named Second Defendant
NICOLA VICTORIA ROGERS
Sixteenth-named Second Defendant
ANNABEL FRANCESCA ROGERS
Seventeenth-named Second Defendant
MICHELLE MIN LI ROGERS
Eighteenth-named Second Defendant
WILLIAM BEN LI ROGERS
Nineteenth-named Second Defendant
Catchwords:
Wills - Directions as to the proper construction of homemade will - Turns on own facts
Legislation:
Administration Act 1903 (WA)
Trustees Act 1962 (WA)
Wills Act 1970 (WA)
Result:
Directions given
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
First-named Second Defendant : No appearance
Second-named Second Defendant : No appearance
Third-named Second Defendant : No appearance
Fourth-named Second Defendant : No appearance
Fifth-named Second Defendant : No appearance
Sixth-named Second Defendant : No appearance
Seventh-named Second Defendant : No appearance
Eighth-named Second Defendant : No appearance
Ninth-named Second Defendant : No appearance
Tenth-named Second Defendant : No appearance
Eleventh-named Second Defendant : No appearance
Twelfth-named Second Defendant : No appearance
Thirteenth-named Second Defendant : No appearance
Fourteenth-named Second Defendant : No appearance
Fifteenth-named Second Defendant : No appearance
Sixteenth-named Second Defendant : No appearance
Seventeenth-named Second Defendant : No appearance
Eighteenth-named Second Defendant : No appearance
Nineteenth-named Second Defendant : No appearance
Solicitors:
Plaintiff : Zafra Legal
First Defendant : Arnold Bloch Leibler
First-named Second Defendant : No appearance
Second-named Second Defendant : No appearance
Third-named Second Defendant : No appearance
Fourth-named Second Defendant : No appearance
Fifth-named Second Defendant : No appearance
Sixth-named Second Defendant : No appearance
Seventh-named Second Defendant : No appearance
Eighth-named Second Defendant : No appearance
Ninth-named Second Defendant : No appearance
Tenth-named Second Defendant : No appearance
Eleventh-named Second Defendant : No appearance
Twelfth-named Second Defendant : No appearance
Thirteenth-named Second Defendant : No appearance
Fourteenth-named Second Defendant : No appearance
Fifteenth-named Second Defendant : No appearance
Sixteenth-named Second Defendant : No appearance
Seventeenth-named Second Defendant : No appearance
Eighteenth-named Second Defendant : No appearance
Nineteenth-named Second Defendant : No appearance
Case(s) referred to in judgment(s):
Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404
Butler v Trustees Executors & Agency Co Ltd (1906) 3 CLR 435
Gray v Gray [2013] WASC 387
Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628
Perrin v Morgan [1943] AC 399
Saunders v Vautier (1841) 4 Beav 115
1 MASTER SANDERSON: On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a 'will kit' are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.
2 The plaintiff is the executor of the will of the late Kathleen Mary Rogers. He seeks directions pursuant to s 45 of the Administration Act 1903 (WA) and s 92 of the Trustees Act 1962 (WA) as to the proper interpretation of the will. The first defendant is the only child of the deceased. At the time of the death of the deceased the first defendant was 16 years of age and, consequently, a minor. The second defendants are the nieces and nephews of the deceased.
3 The plaintiff was granted probate of the will on 14 October 2014. He completed administration of the estate and has been holding the residuary estate on trust. On 9 October 2015, the first defendant turned 18 years of age. The question which has arisen relates to the residuary estate. The relevant provisions are in the following form:
Residuary Estate
I give the residue of my estate to my daughter Alexandra Rogers Young, wholly. If she / they or their incidental beneficiaries predecease me, I give the residue of my estate to my nieces and nephews, whether in uteri or born in equal shares.
Incidental Beneficiaries
If any of my children do not survive me then that benefit which they would have received shall be divided equally amongst such children of theirs as survive them. If there are no such children, their share shall return the residuary estate.
Trust for Minors
The share of any beneficiary/ies who is/are under the age of 18 years shall be held in trust and be administered by the trustee for the purpose of support, welfare and education until he / she / they reach the age of 25.
If any minor beneficiary/ies should die prior to receiving all their share, then their share shall be held in trust and paid equally amongst their children. If there are no such children, their share shall return to the residuary estate.
(Words which were in the Will form and have been struck through are marked in strikeout. Words which were not in the Will form but which have been added in handwriting have been underlined.)
4 The relevant principles for the construction of as will were not in dispute between the parties. What follows is taken largely from the submissions lodged on behalf of the executor. The object of construing a will is to ascertain the testator's intention as expressed in the will. In Perrin v Morgan [1943] AC 399, Lord Simon LC said:
[T]he fundamental rule in construing the language of a will is to put upon 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 (406).
- This quote was approved by Windeyer J in Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628, 646.
5 In respect of 'homemade' wills, the authors of Wills, Probate and Administration Service Western Australia say:
The courts apply the same principles of construction whether a will is drawn by a lawyer or by a layperson. However, with a 'homemade' will, the courts do make some allowances. The court will take into account in construing such a will that it cannot be presumed that the lay drafter knew of or relied upon accepted canons of construction with respect to certain words or phrases, or the omission of a particular direction or provision [24,125.15.1].
6 The overriding principle to be applied can be shortly stated - a will is to be construed so as to give effect to the testator's intentions. In Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404, Dixon J said:
But to determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expressions which he used, that is, unless a rule of law gives them some fixed operation. When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared (414).
7 As a general rule, at least in respect of property comprised in the will, a will 'speaks' from the date of death. That is a principle of common law and is reflected in s 26(1)(a) of the Wills Act 1970 (WA).
8 If the language used in a will is ambiguous on the face of the will or in light of the surrounding circumstances, then in proceedings to construe the will, the evidence of the testatrix's intention is admissible. That is the effect of s 28A of the Wills Act. The plaintiff swore an affidavit dated 2 November 2015 in support of his application. According to the plaintiff, in early 2014 the deceased was advised she had cancer. The deceased then asked the plaintiff to bring a copy of her will to her home so they could discuss its contents. The plaintiff did as requested and his conversation with the deceased lasted about three hours. He goes into some detail as to what was discussed. He says two matters were clear. First, the deceased wanted her residuary estate to go to the first defendant. Second, he did not want her to inherit that estate until she was 25 years of age. On this last point, the plaintiff says the deceased was quite clear.
9 Turning then to the will itself, by the first paragraph of the Residuary Estate clause, the first defendant inherited the whole of the deceased's estate. As the first defendant was a minor on the date of death of the deceased, the first paragraph of the Trust for Minors clause applies. That trust was to be administered by the plaintiff for the purpose of support, welfare and education of the first defendant until she reached the age of 25. As I have indicated, the first defendant reached the age of 18 in October 2015, but has not yet reached the age of 25 years.
10 If the first defendant has an absolute vested and indefeasible interest in the trust property then by reason of the rule in Saunders v Vautier (1841) 4 Beav 115, when she reaches the age of majority she can require the termination of the trust and the transfer of the trust property.
11 The second paragraph of the Trust for Minors clause makes provision for a minor beneficiary share of the estate to pass (either to their child or children, or if there are no children, then back to the residuary estate) should they die prior to receiving all of their share. Consequently:
(a) the Trust for Minors clause conditions the Residuary Estate clause; as does the Incidental Beneficiaries clause;
(b) if the first defendant had died prior to reaching the age of 18 years, then the second paragraph of the Trust for Minors clause would require her share of the estate to return to the residuary estate;
(c) the first defendant did not, and could not, despite the terms of the Residuary Estate clause, including the word 'wholly', receive an absolute vested and indefeasible interest in the estate; and
(d) whilst the trust is in existence, the first defendant is only entitled to receive trust funds for the purpose of her support, welfare and education and not generally as an advance on any other interest she may have in the trust fund.
12 The question concerning the plaintiff is whether the first defendant acquires an absolute vested and indefeasible interest upon reaching the age of 18 years, or upon reaching the age of 25 years.
13 The answer to this question turns on the meaning of the words 'any minor beneficiary/ies' in the second paragraph of the Trust for Minors clause. In particular, as posited in the originating summons:
(a) do these words refer to the 'beneficiary/ies who is/are under the age of 18 years' referred to in the first paragraph of the Trust for Minors clause; and whose interest in the estate is held on trust until they reach the age of 25 years; or
(b) do they refer to a beneficiary who is a minor at the time of their death.
14 Alternatively, is the natural meaning of the words 'if any minor beneficiary/ies should die' the quality of being a minor relating to the point of death, not the point when a person became a beneficiary. Allied to that, the words 'prior to' receiving all their 'share' in the second paragraph of the trust minors clause could be consistent with the beneficiary having a vested entitlement but not physically receiving the funds. A minor cannot provide a valid receipt for their 'share' of the estate, so that the words would be redundant to this alternative. It would not, of course, apply to adult beneficiaries.
15 The submissions filed on behalf of the first defendant approached the matter in this way. They say given that the first defendant was a minor at the time of the deceased's death, it necessarily means her immediate and indefeasible interest in the residuary estate had to be held on trust for her. That being so, the Trust for Minors clause is relevant only to the ongoing administration of the trust for the first defendant. It does not qualify or change the construction of the residuary trust and incidental beneficiaries clause. Therefore, the Trust for Minors clause is relevant only if a trust arises. The first defendant says the second paragraph should not be given such weight that imposes a qualification on the deceased's handwritten words gifting the residuary estate to 'my daughter, Alexandra Rogers Young, wholly'. It was submitted the extent to which the second paragraph does not sit easily with the Residuary Estate clause, the clause should follow the rule that clauses that are incongruous or irreconcilable with clearly expressed clauses and do not control the clearly expressed clause, should be disregarded. Reliance was placed on the decision of Gray v Gray [2013] WASC 387 [16] - [17]. It was submitted the court should be guided by the rule and construing rules, that the words of a testamentary instrument will not be interpreted as imposing a condition on a gift if another interpretation is feasible and available. To support that proposition, reliance was placed on a number of cases, including in particular Butler v Trustees Executors & Agency Co Ltd (1906) 3 CLR 435.
16 In summary then, the first defendant submitted the second paragraph has no application because it applies only in circumstances where the beneficiary dies before 'receiving' all of their share in the estate. That would mean the first defendant's interest arose on the death of the deceased and became indefeasible 30 days later.
17 On balance, I am satisfied the submissions of the first defendant ought be accepted. In reaching that conclusion, I have taken into account the evidence of the plaintiff and the evidence that the deceased clearly intended the first defendant should not receive the residuary estate until she turned the age of 25 years. But that is not the way the will reads in my view. I am satisfied the will as drafted is tolerably clear. It anticipates the whole of the deceased's estate going to the first defendant and being postponed only until she reached 18 years of age. Accordingly, she is entitled to the estate and to an order the trust vest pursuant to the rule in Saunders.
18 I will hear the parties as to the precise form of the answer to the question posed by the plaintiff. The costs of all parties ought be taxed and paid out of the estate.
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