Shea v the Public Trustee

[1992] TASSC 95

COURT:  SUPREME COURT OF TASMANIA

CITATION: Shea v The Public Trustee [1992] TASSC 95; B15/1992

PARTIES:  SHEA, Cheryl Kaye
  v
  THE PUBLIC TRUSTEE

SHEA, Luke

FILE NO/S:  M336/1990
DELIVERED ON:  8 May 1992
JUDGMENT OF:  Cox J

Judgment Number:  B15/1992
Number of paragraphs:  13

Serial No B15/1992

List "B"

File No M336/1990

CHERYL KAYE SHEA v. THE PUBLIC TRUSTEE AND LUKE SHEA

REASONS FOR JUDGMENT  COX J

8 May 1992

Will – Construction – "My house property situate 44 Charles Street" – Items of personalty "thereat" – Ademption of specifically devised land depriving sole child of any substantial benefit – Testator's Family Maintenance Act 1912 – Wishes of testatrix frustrated by ademption – Modest estate – Provision made as if will referred to residence at time of death.

1. By her last will and testament prepared on her instructions by a solicitor employed by the Public Trust Office and signed on 14 March 1989, the late Vera May Harris appointed the Public Trustee her sole executor and trustee. In the despositive part of the will she provided as follows:

"3        I GIVE the whole of my estate both real and personal to my Trustee UPON TRUST as follows:–

(a)to pay thereout my just debts funeral and testamentary expenses and all duties payable in respect of my estate (whether actual or notional)

(b)as to my house property situate 44 Charles Street Moonah aforesaid and all my articles of household and personal use and ornament therein and thereat for my daughter CHERYL KAYE SHEA absolutely if she survives me AND IN THE EVENT of her not surviving me to fall into and form part of the residue of my estate

(c)as to the residue of my estate for my grandson LUKE SHEA absolutely if he survives me and also attains the age of twenty one (21) years AND IN THE EVENT of him not surviving me or surviving me but failing to attain the age of twenty one (21) years for my said daughter CHERYL KAYE SHEA absolutely if she survives me"

1. By cl 4 she gave her trustee a number of powers, including a power to apply the income and capital to which he might be entitled towards the maintenance, education or advancement in life of any infant benefited thereunder, and for that purpose to pay the same to the guardian of such child without being bound to see to the application thereof.

1. The testatrix, at the time of making her will, was aged 63 years and her husband had died the previous year. She was the sole beneficiary of his estate, their only child, the plaintiff, being nominated as sole beneficiary in the event that her mother predeceased him. The will was never proved, as the estate was small and the family home passed by survivorship to the testatrix. A close loving relationship existed between all three, and from time to time the parents acknowledged to the plaintiff that she would, after their death, inherit everything they owned. The plaintiff herself is married and has one child only, namely a son presently aged 11 years.

1. At the time the will was executed, the testatrix resided at 44 Charles Street, Moonah and this, together with its contents, were her only assets apart from a small bank account and her fortnightly pension. About nine months after signing the will she sold the house because it was too big for her and purchased a smaller unit at 132 Brent Street, Glenorchy with the proceeds. The contents of the former home were moved to the new residence. There she died in June 1990.

1. The Construction Summons asks for a declaration that the plaintiff is entitled to the testatrix's real property at Glenorchy and all her articles of household and personal use and ornament therein and thereat.

1. So far as the realty is concerned, there is the obvious problem of ademption. The realty described in the will was specifically devised. The realty now belonging to the estate does not match the description contained in the will. Where specifically devised land is sold by a testator in his lifetime, the devise is adeemed (Williams On Wills, 6th ed p263). Even though the proceeds may be traced into other property still held by the testator at his death, the gift does not take effect in respect of these proceeds (Hardingham, Neave and Ford on Wills, p160). Although in respect of some forms of personalty, especially shares, it has been held that no ademption occurs when that which has been bequeathed has been changed in name and form only, but remains substantially the same thing (Re Slater [1907] 1 Ch D 665 and McBride v. Hudson (1962) 107 CLR 604), it could not be said that the testatrix's unit even if fairly described as "house property" at Brent Street, Glenorchy is substantially the same thing as "my house property situate 44 Church Street Moonah".

1. On the other hand, so much of the personalty as was owned by the testatrix at her death would pass to the plaintiff notwithstanding that it has ceased to be housed at the address mentioned in the will. To this personalty may be added increases or replacements natural to this genus of bequests in respect of which it has been held that "it would not be natural to assume that a man giving that kind of legacy intended to restrict it to the property of that description which he had at the date of the will" (per Jessel MR in Bothamley v Sherson [1875] 20 Eq 304 at p312).

1. It is clear that ademption is no longer dependent on the testator's intention or presumed intention (per Cozens–Hardy MR.in Re Slater (supra) at p.71). Although the scheme of the will and the facts I have already referred to evidence a desire on the testatrix's part to make provision for her daughter of more than the contents of her will, the actual words of the will fail to achieve that purpose in the events which have happened. Under the will I hold that the realty at Glenorchy falls into residue for the benefit of the infant Luke Shea provided he attains the age of twenty–one years and will pass to the plaintiff only in the event that her son does not attain that age.

1. In the alternative, however, the plaintiff seeks an order that provision be made for her out of the estate of her mother pursuant to the Testator's Family Maintenance Act 1912. In the circumstances of this case I have no doubt that the testatrix at all times intended that the bulk of her estate, represented at the time she made her will by her home at Moonah, should be enjoyed after her death by her only child, with any small residue being retained for her sole grandson should he, as was naturally expected, attain majority. In the unhappy event that this did not occur, the whole estate would pass to her daughter, there being apparently no other person with any claim on her bounty. Whether through lack of advice she was unaware of the effect the sale of her Moonah home and the acquisition of another would have on her will, or whether, though previously warned of this eventuality, she was distracted from remedying it by making a new will in the relatively short time between the date of sale and her death, I cannot say, but the evidence shows that nothing else occurred, nor was there any change in the relationship which might suggest that the testatrix intended the consequence which the sale brought about and that her daughter would be left with nothing more than her household and personal effects, while her daughter's dependent son should receive everything else provided he lived to majority.

1. The financial circumstances of the plaintiff are relatively modest. She and her husband own their home at Blackman's Bay valued at under $100,000.00 and subject to a mortgage of $45,000.00; they have a car worth less than the loan of $14,000.00 still owing on it, and apart from the contents of the home, she has no other asset. She and her husband both work and earn a combined net income of approximately $1,048.00 per fortnight from which they can save virtually nothing. She is 36 years old and in normal health; her husband is 41 years old and suffers from epilepsy which is presently under control.

1. I think there can be no doubt in these circumstances that in the events which have happened the applicant has been left without adequate provision for her proper maintenance and support after the testatrix's death, and furthermore that this was a consequence unintended by her mother. That this is a factor to be taken into account has the authority of the Privy Council in Bosch v Perpetual Trustee Company Limited [1938] AC 463 at p481 where Lord Romer, speaking on behalf of the Board, said:

"It is true that in many, and perhaps in most, of the cases with which the Court is called upon to deal the testator has deliberately omitted to perform the duty that he owes of making proper provision for his wife and children. In such cases the intentions and wishes of the testator plainly can carry no weight with the Court. But in other cases the testator's omission to perform that duty will have been due to some mistake or oversight, and in such cases the wishes of the testator may legitimately be taken into consideration."

1. The mere fact that the plaintiff's circumstances are such as to show that without the provision she seeks she could not be described as impoverished and that she has the means to make ends meet does not deprive her of a right to greater provision than she received under this will. As Fullagar and Menzies JJ said in their joint judgment in Blore v Lang (1960) 104 CLR 124 at p135:

"In such a case as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit."

1. It is a case where the court is empowered to make proper provision. Provision which, in my view, would be proper would be for the plaintiff to receive the benefit of the realty at Glenorchy as if it had been that property which had been devised by the will rather than the house and land at Charles Street, Moonah. I therefore declare that on the true construction of the will of the deceased all her articles of household and personal use and ornament at 132 Brent Street, Glenorchy at the time of her death are held by the trustee on trust for the plaintiff absolutely, and pursuant to the provisions of the Testator's Family Maintenance Act 1912, I direct the Public Trustee to hold the testatrix's realty at 132 Brent Street, Glenorchy or the net proceeds thereof upon trust for the plaintiff absolutely.