SUMSION (DECEASED) - [2009] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of SUMSION (DECEASED)
[2009] SASC 67
Judgment of The Honourable Justice Gray
6 March 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - READING WILL AS A WHOLE
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - ASCERTAINMENT OF TESTATOR'S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL
Referral from Registrar for advice and directions - will of deceased formed part of will kit - ambiguity in executors named - two children named as executors with the third allocated role of substituted executor - deceased left residuary estate to executors with all three children named - whether third child on equal footing with other two - whether residue to be shared equally between all three executors.
Held: advice to Registrar to proceed on basis that each child of deceased named as executors on equal footing.
Grant v Leslie (1819) 161 ER 1274; re Wright (1908) 25 TLR 15; In the Goods of Brown (1877) 2 PD 110; re Bradley (1883) 8 PD 215; In the Will of Hooper (1908) 25 WN (NSW) 147, considered.

In the Estate of SUMSION (DECEASED)
[2009] SASC 67
Testamentary Causes Jurisdiction
GRAY J.
(In Chambers)

This is a Registrar’s referral for advice and directions.
Patricia Marie Sumsion died on 11 August 2008. She is survived by her three children Gaynor Patricia Sumsion, Gregory Philip Sumsion and Rodney Stephen Sumsion. The deceased left a Will dated 30 November 2007. The Will was completed on a pre-printed Will form contained in a commercial Will pack entitled “Prepare-Your-Own Legal Will Pack”. The issue that arises for consideration is one of construction of the Will.
The deceased by her Will appointed “Gaynor Patricia Sumsion” and “Gregory Philip Sumsion” as executors and trustees of the estate of the deceased. In the event that either became unable or unwilling to act then the deceased appointed her other child, “Rodney Stephen Sumsion”, as an executor and trustee. However, the deceased left her residuary estate to her executors whom she identified in her Will as “Gaynor Patricia Sumsion, Gregory Philip Sumsion and Rodney Stephen Sumsion” to be shared equally between them.
The question that has arisen and has been referred by the Registrar of Probates for advice and direction is whether Rodney Stephen Sumsion is entitled to be considered an executor of the Will on an equal footing with Gaynor Patricia Sumsion and Gregory Philip Sumsion.
The Will from the kit was completed by the deceased and attested in accordance with the statutory requirements. The Will relevantly provides:
1.This is the last Will of me, PATRICIA MARIE SUMSION of UNIT 1/53 BRIGALOW AVENUE, KENSINGTON GARDENS Postcode 5068 in the State/Territory of STH AUSTRALIA which commences on this page and which concludes where the words “This is the end of my Will” appear.

By this Will, I revoke all previous Wills and testamentary acts and dispositions.
2.Executor / Executrix
I appoint GAYNOR PATRICIA SUMSION (DAUGHTER) of UNIT 13, 216 PAYNEHAM ROAD, EVANDALE Postcode 5069 in the State/Territory of STH AUSTRALIA and I appoint GREGORY PHILIP SUMSION (SON) of UNIT 1/53 BRIGALOW AVENUE, KENSINGTON GARDENS Postcode 5068 in the State/Territory of STH AUSTRALIA to be the Executor(s) of my Will and Trustee(s) of my estate, but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting, then I appoint RODNEY STEPHEN SUMSION (SON) of 14 MIDGERA STREET, ASHMORE Postcode 4214 in the State/Territory of QUEENSLAND.
3.NOT FILLED OUT
4.Special Gifts
I make the following special gifts (legacies, bequests and devises):

Gaynor the white shell tea set was passed down to me so I would like you to have it. My rings to be shared, my engagement ring to you Gay – but Jan loves it so I will leave it up to you, ……crystal to be shared by all, I have named the larger sets but share the rest.
5.Residuary / Residue of my Estate
I direct my Executor(s) to pay all my debts and then I give the residue of my estate to I give the whole of my estate real and personal to my executors which are Gaynor Patricia Sumsion Unit 13, 216 Payneham Road, Evandale + Gregory Philip Sumsion of Unit 1/53 Brigalow Avenue, Kensington Gardens and Rodney Stephen Sumsion 14 Midgera Street, Ashmore Queensland. I give my whole estate to my executors to be shared equally. I give $1,000 dollars each to my grandchildren Briannah Sumsion, Rebecca Sumsion and Samuel Sumsion from my Savings + Loans Deposit account.
…
7.If any of my children die either before me or after me but before reaching his or her age of inheritance and in either event leaving any children of their own then these children, upon reaching their age of inheritance, will take what their deceased parent would have taken.
8.Funeral Directions
It is my wish to be buried and my remains placed at:

Enfield Memorial Park Cemetery with Rod my deceased husband. General Path BQ No. 60.
If my Executor(s) is holding any part of my estate in trust for any beneficiary, my Executor(s) will have all the powers given to executors or trustees by the legislation in any of the Australian States or Territories (not just the State or Territory where my estate is being administered) – free (where permitted) of any limitations expressed in terms or money.
[italics indicate handwriting]
The Registrar has drawn attention to the inconsistency between clause 2 appointing executors and clause 5 dealing with the residuary estate. It is to be observed that the appointment of an executor may be express or implied.
Submissions were made in writing to support the contention that the deceased appointed Gaynor Patricia Sumsion and Gregory Philip Sumsion as her executors and Rodney Stephen Sumsion as a substituted executor. It was pointed out that the deceased elected to complete all of the options provided to her in clause 2 headed “Executor/Executrix”. It was said that it should be inferred that she made a deliberate selection of which of her three children she wished to be executors, with the one child, Rodney Stephen Sumsion, being allocated the role of her substituted executor. It was said that the text is clear and unambiguous.
It was then contended that the deceased adopted incorrect wording in clause 5 being the dispositive clause of her residuary estate. The words “my Executor(s)” appear in clause 5 of the pre-printed text as well as in the added words. It was submitted that the deceased might well have thought of all of her children as executors or potential executors of her Will and might mention her three children with that description in clause 5 not thinking of them otherwise as beneficiaries. It was said that the clear and unambiguous expression in clause 2 indicated the true wishes of the deceased and those wishes should be respected. It was submitted that Rodney Stephen Sumsion was her choice of executor if the other children had not survived her or were not willing or able to act as executors.
Rodney Stephen Sumsion has made the following submission by letter:
I refer to your letter dated 8 Dec 2008 in regards to my position as either executor or substituted executor of my mother Patricia Sumsion’s Will.
As stated in your letter at the time of my mother writing her Will I was living in Queensland and that my role would be as a backup executor. I am aware that I will be the backup executor to my sister Gaynor Sumsion and brother Greg Sumsion in the event they had not survived my mother or either Gaynor or Greg were unwilling or unable to act as executors.
Therefore, I look forward to Probate being granted and the finalisation on my mother Patricia Sumsion’s estate with the beneficiaries being Gaynor Sumsion, Gregory Sumsion and myself Rodney Sumsion.
There are a number of considerations that support the alternative construction that Rodney Stephen Sumsion was intended to be an executor on an equal footing with his siblings. Clause 5 of the Will expressly identifies “Rodney Stephen Sumsion” as one of the deceased’s executors on an equal footing with his siblings. There is a rule of construction that a later clause overrides an earlier clause.[1] Clause 5 is not inconsistent with an appointment of Rodney Stephen Sumsion as one of the persons with the duties of an executor - one who is to collect the deceased’s assets, pay her debts and distribute her estate. It may be inferred that the testator intended to cast upon Rodney Stephen Sumsion, the duties of executor. The uncertainty as to the circumstances necessary to trigger the substitution of Rodney Stephen Sumsion caused by the deceased’s failure to select one of the various alternatives provided in the printed Will kit form is consistent with the view that the deceased was simply using the available space provided on the form in clause 2 and was not intending to differentiate between the type of appointment of her three children to whom she left her residuary estate equally.
[1] Hardingham, Neave and Ford, Wills and Intestacy in Australia and New Zealand, 2^nd ed, par [1121].
An express appointment of one or more persons as executor in an appointment clause does not necessarily mean that another person is not appointed as executor by another clause of the Will.[2] A gift of residue to a testator’s executors where no executor has been expressly appointed has been held to constitute the persons answering that description as executors.[3] Probate may be granted to a person on whom no express duties are conferred by the Will.[4]
[2]    Mackie & Burton, Outline of Succession, 2^nd ed, 2000, par [11.10], citing Grant v Leslie (1819) 161 ER 1274, re Wright (1908) 25 TLR 15 (see also Williams on Wills, 7^th ed, p219 and In the Goods of Brown (1877) 2 PD 110).
[3]    Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 17^th ed, p30 citing re Bradley (1883) 8 PD 215.
[4]    Mackie & Burton, Outline of Succession, 2^nd ed, 2000, par [11.10], citing In the Will of Hooper (1908) 25 WN (NSW) 147.
I have reached the conclusion that the deceased intended each of her children to be executors on an equal footing. One of the difficulties with the pre- printed Will form is that it only provided sufficient space for the appointment of two executors and one substituted executor. The Will is open to the construction that the deceased intended each of her children to be executors on an equal footing and that she did not appreciate or intend that Rodney Stephen Sumsion would not be so treated. This is confirmed by the wording of paragraph 5 in which she wrote “I give the whole of my estate real and personal to my executors” and then identified each of her children including “Rodney Stephen Sumsion” as her executors. Then follows the gift of the whole residuary estate to her executors to be shared equally and then immediately followed by a gift of $1,000 to each of her grandchildren.
The matter is finely balanced but, as indicated above, I have reached the view that each of the children of the deceased has been named as executor on an equal footing. Accordingly my advice and direction to the Registrar is to proceed on the basis that each of the children of the deceased, Gaynor Patricia Sumsion, Gregory Philip Sumsion and Rodney Stephen Sumsion have been named as executors on an equal footing.