Suthers v Suthers

Case [2015] QSC 285

SUPREME COURT OF QUEENSLAND

CITATION:

Suthers & Anor v Suthers & Ors [2015] QSC 285

PARTIES:

ANDREA SUTHERS and ANTHONY DAVID SUTHERS (as executors of the Will of JESSIE ANNIE SUTHERS)

(applicants)

v
ANDREA SUTHERS and ANTHONY DAVID SUTHERS and RODERICK JOHN SUTHERS (as beneficiaries under the Will of JESSIE ANNIE SUTHERS)
(respondents)

FILE NO/S:

SC 7638 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2015

JUDGE:

Burns J

ORDER

Declare that, on the true construction of the last will of Jessie Annie Suthers dated 26 February 2009, Andrea Suthers is entitled, pursuant to clause 4.1.1 of the said will, to the payment of $240,559.90

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR'S INTENTION – GENERALLY – where the testator entered into a lease of a retirement village apartment in 2003 – where the testator subsequently left a pecuniary legacy to her daughter under her last will in “an amount of money equivalent to that amount received by my estate upon the sale of my interest in” the apartment – where the testator moved to an aged care facility in 2010 and disposed of her interest in that apartment prior to her death in 2014 – where the consideration received for the disposal of that interest was deposited into the testator’s bank account and there remained until the date of her death – where the sum banked was received as part of the testator’s estate following death – where probate of the will was granted in 2015 – where the applicant executors seek a declaration as to the proper construction of the will – whether the consideration received for the disposal of the testator’s leasehold interest in the retirement village apartment was received in consequence of a “sale” – whether the sum received as part of the testator’s estate following death was received by the testator’s estate – whether the pecuniary legacy is effectual or falls into residue

Retirement Villages Act 1999 (Qld), s 9, s 16

Succession Act 1981 (Qld), s 33C

Allgood & Ors v Blake (1872–73) LR 8 Ex 160, cited
Fell & Anor v Fell & Anor (1922) 31 CLR 268; [1922] HCA 55, applied
King v Wogandt: Re Beutel (deceased) [2014] 2 Qd R 488; [2014] QSC 175, cited
Langston v Langston (1834) 2 Cl & F 194, cited
Moylan v Rickard [2010] QSC 327, cited
Perrin & Ors v Morgan & Ors [1943] AC 399, cited
Pride v Fooks (1858) 3 De G & J 252, cited
Ralph v Carrick (1879) 11 Ch D 873, cited
Re Culbertson (1966) 59 DLR (2d) 381, cited
Re Willis [1996] 2 Qd R 664, cited
Scalé v Rawlins (1892) AC 342, cited
Tatham & Anor v Huxtable & Ors (1950) 81 CLR 639; [1950] HCA 56, cited
The Public Trustee of Queensland v Smith

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AGLC
Suthers v Suthers [2015] QSC 285
Case
[2015] QSC 285
Decision Date

CaseChat Overview and Summary

The case of Suthers v Suthers involved a dispute over the interpretation of a pecuniary legacy in the will of the deceased, Jessie Annie Suthers. The central issue was whether the pecuniary legacy left to Andrea, the deceased's daughter, was effectual or fell into residue. The legacy was left as an amount equivalent to the proceeds received from the sale of the deceased's interest in a retirement village apartment. The court had to determine if the disposal of the interest in the apartment constituted a "sale" and whether the proceeds from that disposal were received by the deceased's estate.

The court's reasoning focused on the language of the will and the circumstances surrounding the making of the will. It was held that the clause in question provided for a pecuniary legacy rather than a specific legacy. The use of the phrase "amount of money equivalent to that amount received" indicated that the legacy was intended to be a sum of money, not the actual proceeds from the sale. Furthermore, the court found that the testamentary intention was clear, and the legacy was intended to be a sum equivalent to the proceeds from the disposal of the leasehold interest, regardless of when the sale occurred.

Ultimately, the court declared that Andrea was entitled to the payment of $240,559.90, which was the sum received from the disposal of the deceased's interest in the retirement village apartment. This decision was based on the interpretation of the will's language and the deceased's consistent testamentary intention to provide for Andrea, as evidenced by her previous wills.

The court's decision provided clarity on the interpretation of the pecuniary legacy and ensured that Andrea received the amount intended by the deceased. The final orders of the court declared that Andrea was entitled to the specified payment under the will.

Orders

Orders of the court

Declare that, on the true construction of the last will of Jessie Annie Suthers dated 26 February 2009, Andrea Suthers is entitled, pursuant to clause 4.1.1 of the said will, to the payment of $240,559.90

Background

Background to the litigation

The court is bound to construe the will “as trained legal minds would do”.[9] That, however, is not to say that the will must be construed in a strictly technical or legalistic sense; its construction should be “sensitive to the factual context of ordinary life and circumstances”.[10] Further, the court should lean towards a construction which preserves, rather than destroys, its effect.[11] If the will shows that the testator must necessarily have intended that an interest be given but there are no words in the will which expressly have that effect, the court is to “supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared”.[12] But, as to this, the court will not give effect to any intention which is “not expressed or plainly implied”[13] in the language of the will; there is no room for “gratuitous, groundless, fanciful implication”.[14] On the other hand, if the contents of a will show that a word has been “undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made”.[15] [9] Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ; cited with approval by Isaacs J in Fell at 273.[10] Moylan v Rickard [2010] QSC 327 at [34] per Peter Lyons J, citing Re Willis [1996] 2 Qd R 664 at 667. [11]Fell at 275 per Isaacs J, citing Langston v Langston (1834) Cl & F 194 at 243 per Lord Brougham LC; Moylan at [34] per Peter Lyons J.[12]Fell at 274 per Isaacs J, citing Towns v Wentworth (1858) 11 Moo PCC 526 at 543; Moylan at [34] per Peter Lyons J.[13] Fell at 274 per Isaacs J, citing Scalé v Rawlins (1892) AC 342 at 344-345 per Lord Watson.[14]Fell at 274 per Isaacs J, citing Langston at 236-237 per Lord Brougham LC.[15]Fell at 274 per Isaacs J, citing Pride v Fooks (1858) 3 De G & J 252 at 266 per Knight Bruce LJ. And see Tatham & Anor v Huxtable & Ors (1950) 81 CLR 639 at 645 per Latham CJ and at 651 per Kitto J.Background Until 2003, Mrs Suthers resided in a home unit situated in Toowong but, in September of that year, she moved to an apartment in a retirement village situated in Taringa. In order to do so, Mrs Suthers entered into a long lease with the owner and a separate written agreement with the owner and operator.[16] What was described as an “ingoing contribution” in the sum of $252,200.00 was paid by Mrs Suthers for the grant of the lease along with a sum by way of management fees. The lease was subsequently registered and, relevantly, it entitled Mrs Suthers to occupy a particular apartment in the retirement village.[17] By 2010, Mrs Suthers required a higher level of care and, accordingly, it was decided to dispose of her interest in that apartment and for Mrs Suthers to move to an aged care facility situated at The Gap. Subsequently, that interest was disposed of and settlement took place on 16 June 2010. In consequence, $240,559.90 was banked to the credit of an account in Mrs Suthers’ name, being the net consideration received on the disposal of her interest.[16] The separate agreement was entitled “Agreement to Lease” and dated 5 September 2003.[17] Apartment 94.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

But, even if that were not the case, clause 4.1.1 provided for a demonstrative legacy. Mrs Suthers did not, by that provision, leave the “exit entitlement” to Andrea. Rather, she left a sum of money to Andrea in an amount equal to the “exit entitlement”. The use of the words “amount of money equivalent to that amount received” makes that clear. If a specific legacy was intended, there would have been no need for such words. Instead, clause 4.1.1 could simply have provided for “the amount of money received … upon the sale of my interest in Apartment 94”. Further, to the extent that it might be thought that the use of the word “upon” in clause 4.1.1 reflects an intention that the pecuniary legacy should only pass if the sale occurred after Mrs Suthers’ death, such a conclusion would be completely contrary to the testamentary intention I have earlier found to have existed, that is to say, that what Mrs Suthers meant by clause 4.1.1 was to make a pecuniary legacy in Andrea’s favour in a sum equal to the proceeds received on the disposal of the leasehold interest in her retirement village apartment. Conclusion It follows that I am of the opinion that the meaning of the language used in clause 4.1.1, as considered in light of the will read as a whole and the circumstances in which the will was made, is such as to provide for a pecuniary legacy in Andrea’s favour, in an amount equivalent to the sum received for the sale of her leasehold interest, whenever that sale occurred. For the above reasons, I shall declare that, on the true construction of the last will of Mrs Suthers dated 26 February 2009, Andrea is entitled, pursuant to clause 4.1.1 of the said will, to the payment of $240,559.90. I shall hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

That said, it is relevant to observe that Mrs Suthers made 12 previous wills between 9 December 1997 and 12 March 2008. A copy of each is in evidence. It is important to note these features:(a)Although the disposition of the residuary estate varies in proportion between the children across the previous wills, each makes additional provision in favour of Andrea, that is, over and above the provision by gift made in favour of Anthony or Roderick;(b)The first six wills in time were executed by Mrs Suthers when she was still residing at the Toowong home unit. Each of those wills devised to Andrea:“… my home unit situated at […] Toowong or such other principal place of residence owned by me at the date of my death.”[19](c)The subsequent six wills in time were executed by Mrs Suthers when she was residing in the retirement village apartment.[20] Each of those wills contains a pecuniary legacy to Andrea in terms almost identical to clause 4.1.1 of Mrs Suthers’ last will,[21] that is, of:“ … an amount of money equivalent to that amount received by my estate upon the sale of my interest in Apartment 94 Aveo, 1 Moore Street, Taringa in the said State”.[19]The wills containing a devise in these terms were executed on 9 December 1997, 11 February 1999, 26 March 1999, 25 January 2001, 6 June 2002 and 25 February 2003.[20]These wills were executed on 10 November 2003, 21 February 2005, 28 October 2005, 12 September 2006, 16 March 2007 and 12 March 2008.[21]The only difference is in the description of the apartment; the wills executed on 10 November 2003, 21 February 2005, 28 October 2005, 12 September 2006 and 16 March 2007 use the description “Apartment 94 Forest Place” whereas the will executed on 12 March 2008 and the last will use the description “Apartment 94 Aveo” (emphasis added).Consideration In my opinion, clause 4.1.1 is capable of being construed by a consideration of the usual meaning of the words used in light of the circumstances in which the will was made. There is no need to have recourse to the type of extrinsic evidence made admissible by s 33C of the Succession Act 1981 (Qld) to determine Mrs Suthers’ testamentary intention or, expressed in another way, to determine what she meant by the words used in that clause. The circumstance that Mrs Suthers had, over the course of 13 wills (including her last will), consistently made additional provision in Andrea’s favour can be taken into account by the court applying the “armchair rule”. Indeed, there would appear to have been good reason for making additional provision in Andrea’s case; she cared for, and assisted, her mother in her twilight years.[22] It is also to be taken into account in this regard that, in the first six of the wills to which I have referred, this additional provision was specific – the home unit “or such other principal place of residence” owned by Mrs Suthers at the date of her death. That testamentary approach changed when Mrs Suthers moved into the retirement village. No longer was a devise of specific real property made. Mrs Suthers’ living situation had changed and, as part of that, she had paid the “ingoing contribution” of $252,200.00 for the grant of the lease of the retirement village apartment. Clearly, the approach taken by Mrs Suthers from then was to make a pecuniary legacy in Andrea’s favour, the quantum of which was intended to be equivalent to the amount that she expected would be received for the disposal of her leasehold interest in that apartment. But, although Mrs Suthers’ testamentary approach changed, her testamentary intention did not. To the contrary, I find that, throughout each of the 13 wills, it was consistently resolute – Mrs Suthers intended to make additional provision for Andrea under her will either by a devise of her residence or in a money sum calculated by reference to the proceeds received on the disposal of the leasehold interest in her retirement village apartment. [22]See exhibit AS-15 to the affidavit of Andrea Suthers (being a letter from Roderick’s solicitors dated 12 January 2015 in which it is acknowledged that “Andrea is entitled to a greater than one third share of the Estate for her assistance to the Deceased while she has lived in an aged care home and nursing home”).