Rudge v Link

[2008] NSWSC 1104

CITATION:	Rudge v Link [2008] NSWSC 1104
HEARING DATE(S):	29 August; 17 October 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	17 October 2008
DECISION:	Will construed.
CATCHWORDS:	SUCCESSION [143]- Construction of holograph will and codicil- Proceeds to be "divided between" children A, B, C and D and Mr D- Mr D disclaims- Held four equal shares.
PARTIES:	Lisette Maris Rudge (P1) John William Rudge (P2) Michelle Joanna Link (D1) Matthew Phillip Rudge (D2) Chloe Angela Rachel Link (D3) Justin Ronald Gosling (D4) Edward Spring Boyce (D5)
FILE NUMBER(S):	SC 3460/08
COUNSEL:	J D Smith (P) No appearance for D1, D2 and D4 A Radojev (D3) V McWilliam (D5 - unborn grandchildren)
SOLICITORS:	N W Aussel (P) Eakin McCaffery Cox (D3) Hunt & Hunt (D5)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 17 October 2008

3460/08 – RUDGE v LINK

JUDGMENT

1 HIS HONOUR: These proceedings arise out of the holograph will made by the late Anna Elizabeth Rudge who died on 24 August 2007. Probate of her last will, which she made and published on 13 February 1999 with a codicil on 21 August 2004, was granted to the executors named therein on 17 December 2007.

2 As is, unfortunately, the case with many holograph wills, although it doubtless made full and proper sense to the testatrix, when one looks at it objectively, there are ambiguities in it and accordingly the executors, the plaintiffs in the proceedings, need to approach the court because two of the potential beneficiaries are under the age of eighteen years and there may be on a possible construction of the will further unborn beneficiaries.

3 Accordingly, even though one possible beneficiary has disclaimed and two did not appear, it has been necessary to get the opinions of three learned counsel as to the proper meaning of the will. It is comforting to me to know that all three learned counsel agree that, despite the ambiguities, the proper construction of the will is tolerably plain. Accordingly, the case has been able to be dealt with fairly quickly.

4 I should note that originally the case was listed before me on 29 August 2008, however, the suit was then deficient because it did not include the potential beneficiaries. Because a person is only bound by an order of this court if he or she is a party, it is necessary in will construction cases to have as parties all persons who may be affected so that they have the opportunity of putting before the court their point of view. However, it is customary that all people in the same interest be represented by one of them in order to save costs. That has now happened and all relevant parties are before the court.

5 The will provides as follows:

“I give, devise and bequeath my house at … Longueville to be sold and the proceeds divided between Lisette; John; Matthew Rudge and my daughter Michelle Link and her husband John.
My shares in BHP to Lisette Maris Rudge.
“ “ “ Rio Tinto Ltd, John William Rudge.
“ “ “ Fosters Brewing Group Ltd to Matthew Phillip
Rudge.
My other shares to be used as a trust A/C for educational purposes by my children and grand-children.
I bequeath my car ... to my son Matthew.
I bequeath to my grandchildren the sum of $2,000 to be in trust until they attain the age of 18 years.
Annabelle Martin; Sean Martin; Chloe Link; Kaitlin Link, Bill Ormonde.
I bequeath to Sandra ... the sum of $1,000.
The residue of my estate I request all accounts; burial; duties, be used and the balance shares; credit union; fixed deposits to be used as a trust A/C bank A/C also to be included.”

6 The codicil of 21 August 2004, again a holograph testamentary instrument, says simply this:

“I, Anna Elizabeth Rudge, … Longueville, wish to alter my will dated 13 February 1999. Share allocation",

and then appear the names of six people and various shares.

7 Page 2 then reads:

“Money in term deposit
Gateway Credit Union @ Commonwealth Bank to be placed in a trust A/C for grandchildren
Annabelle & Sean Martin
Chloe & Kaitlin Link.
Bill Ormonde already catered for.”

8 The testatrix died leaving an estate of over $1.5 million, however, the greater part of that estate was the house and land at Longueville. On 29 August 2008 I gave judicial advice as to Question A. I now will confirm that judicial advice by construing the will.

9 Question A is, “Whether on the true construction of the Will and in the events which have happened, ‘my house at … Longueville’ is to be sold and the proceeds thereof divided how?”

10 Answer A is, “Into four equal shares”.

11 The potential confusion is two-fold: (a) that John Link is supposed to get a share. If he is, he has disclaimed; and (b) the word "between" tends to suggest that what is happening is that there is a split between two people because one devises between where there are two shares and one distributes among where there are more than two shares. So that it is possible to read the will that Lisette, John and Matthew take a moiety and Michelle takes the other moiety. However, all counsel agreed that it is a four-way split and I think that that is the better interpretation and that the testatrix did not appreciate the semantic significance of the words "divided between".

12 Questions B, C, D and E, it is agreed do not now arise.

13 Question F asks, “Whether on the true construction of the Will and in the events which have happened, the bequest of $2,000 to the grandchildren is adeemed”.

14 The answer is “Yes”. Everyone agrees on that.

15 Question G does not arise.

16 Question H asks, “To whom, on the true construction of the Will and in the events which have happened is ‘the residue of my estate’ distributable?”

17 It is strange that the will does conclude in a rather inconclusive way as if there was to be another page, but there is not. Accordingly, the residue is left undisposed of and passes on an intestacy, intestacy being the rules which have been worked out by the Parliament to apply where people do not make wills disposing of an asset on the basis of a survey made of the average will. Under those rules, the four children take equally and the answer to question H accordingly is, “As on intestacy”, namely, to each of the four children of the testatrix equally.

18 Question I asks, “Whether the bequest of ‘money in term deposit Gateway Credit Union and Commonwealth Bank to be placed in a Trust A/C for grandchildren’ is a valid bequest.” Nothing has been said as to why it is not. Accordingly, the answer is “Yes”.

19 Question J asks, on that basis who gets it?

20 Now, the fact that the four grandchildren are mentioned would tend to suggest that it is a bequest in favour of the four grandchildren who are named. However, the words "Bill Ormonde already catered for" tend to suggest that the testatrix had in mind benefiting all the grandchildren otherwise there was no need for her to refer to Bill Ormonde.

21 Although the court has got no jurisdiction to add words to the will, it would seem to me that the reference to Bill Ormonde means that one must read grandchildren as all grandchildren. The four named persons were merely a sort of checklist. Accordingly, the answer to question J is, "All the testatrix's grandchildren living at the date of the testatrix's death other than Bill Ormonde.”

22 Question K is, “When does the gift take effect?”

23 It is to be noted that earlier in the adeemed gift the grandchildren were to take at eighteen, but there is no limitation on the gift in the codicil. However, executors cannot be discharged until they get a valid receipt. Only people who are of full age can give a valid receipt and, accordingly, the two grandchildren who were under eighteen, Kaitlin, who is 15 and William, who is 13, will need to have their shares held in some trust account until they are 18. Whether the trust account is a separate account in the name of new trustees, perhaps their parents, or the executors, is a matter which I can leave to the executors.

24 Question L is, “Does the codicil revoke any part or parts of the will?”

25 Answer is, “Yes”.

26 Question M is, “If the answer to L is Yes, what parts?”

27 Answer (as we have already noted) “The gift of $2,000 is adeemed.”

28 Accordingly, by order, I answer the questions accordingly. I make orders 2 and 3 in the summons and order that the costs of all parties be paid out of the estate, the executors on the trustee basis.

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