Tasmanian Perpetual Trustees Ltd v Ramritu - [2015] TASSC 7

[2015] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Perpetual Trustees Ltd v Ramritu [2015] TASSC 7

PARTIES:  TASMANIAN PERPETUAL TRUSTEES LIMITED
  as Personal Representative of the Estate of
  TOLMAN, Charles Herbert
  v
  RAMRITU, Donald Babu Lal
  as Personal Representative of the estate of
  BOSWORTH, Olivia Elizabeth
  VINEY, John Gibbs Stuart
  STOKES, Geraldine
  CUMMINS, Phillipa
  VINEY, Michael

FILE NO:  569/2013
DELIVERED ON:  27 February 2015
DELIVERED AT:  Hobart
HEARING DATE:  22 October 2014
JUDGMENT OF:  Wood J

CATCHWORDS:

Succession – Construction and effect of testamentary dispositions – Construction generally – Principles or rules of construction – Changing, transposing, omitting or supplying words – Generally – Whether satisfied that a mistake was made and the literal effect of the will was not intended

Fell v Fell (1922) 31 CLR 268; Butlin v Butlin (1966) 113 CLR 353, applied.
Saunders v Vautier (1841) 4 Beav 115 [49 ER 282], considered.
Aust Digest Succession [1172]

REPRESENTATION:

Counsel:
             Applicant:  T Williams
             First Respondents:   No appearance
             Second Respondents:  J Otlowski
Solicitors:
             Applicant:  Gunson Williams
             First Respondents:  Toomey Maning & Co
             Second Respondents:  Simmons Wolfhagen

Judgment Number: [2015] TASSC 7
Number of paragraphs: 66

Serial No 7/2015
File No 569/2013

TASMANIAN PERPETUAL TRUSTEES LTD as Personal
Representative of the Estate of CHARLES HERBERT TOLMAN
v DONALD BABU LAL RAMRITU as Personal Representative
of the Estate of OLIVIA ELIZABETH BOSWORTH,
JOHN GIBBS STUART VINEY, GERALDINE STOKES,
PHILLIPA CUMMINS and MICHAEL VINEY

REASONS FOR JUDGMENT WOOD J

27 February 2015

Tasmanian Perpetual Trustees Ltd applies for a determination of questions which have arisen in the administration of the estate of the late Charles Herbert Tolman, which involve the construction of his will. The applicant is the present day trustee and executor, successor to the executor and trustee appointed by the testator's will, dated 29 October 1951. Charles Herbert Tolman died on 17 May 1952 and probate of the will was granted on the 7 October 1952.
In his will, the testator made provision for his wife, Vera May Tolman, his daughter, Olivia Elizabeth Bosworth, his son, Jack Clifton Tolman, and also his two nephews John Gibbs Stuart Viney and Gerald Charles Stuart Viney. When the testator made his will he was 69 or 70 years of age. His wife was aged approximately 64. They had been married for 45 years.
At the time he made his will, their son was 39 years of age (born in August 1912) and their daughter was 26 years of age (born in November 1925). Both his son and daughter were then unmarried and did not have children. His nephews, Gerald Viney was 41 years of age (born in 1908) and had three children, and John Viney was 28 years of age (born in June 1923) and had two children by that stage.
The will provided for bequests of personal effects to the testator's son and daughter in the nature of family heirlooms, and bequeathed two firearms to each of his nephews. The will then went on to provide:
"4        I GIVE AND DEVISE my residence known as 'Glenferne' situate and known as No 128 King Street Dynnyrne Hobart aforesaid together with all contents belonging to me therein exclusive of the specific bequests hereinbefore set forth and including the furniture pictures ornaments and all household effects not the personal property of my wife Vera May Tolman and also all workshop and garden tools therein to my Trustee UPON TRUST to permit my said wife to reside thereon or have the use of the said contents during her lifetime and upon her death to permit my said daughter to reside thereon and have the use of the said contents therein during her lifetime or until she shall have issue And subject thereto I DIRECT my Trustee to hold the said property and content upon the trusts hereinafter declared as to my residuary estate so that upon having issue my daughter shall have the right to call for a Transfer from my Trustee of the said property and contents.
5         AS to all the rest of my estate and effects both real and personal I DEVISE AND BEQUEATH unto my Trustee UPON TRUST that my Trustee shall call in sell and convert into money such parts thereof as shall not consist of money and invest the moneys arising from such sale calling in and conversion and all other moneys arising from or forming part of my residuary estate (all of which shall be hereinafter referred to as 'my Trust Fund') and out of such Trust Fund to set aside the sum of Two thousand pounds and pay interest therefrom to my said son during his lifetime and upon his death to divide the said sum of Two thousand pounds equally between all his children who shall attain the age of Twenty-one years and in the event of my said son dying without leaving issue him surviving then I DIRECT my Trustee to pay the said sum of Two thousand pounds to my said daughter and in the event of her predeceasing my said son then I DIRECT my Trustee to divide the same equally between my said nephews Gerald Charles Stuart Viney and John Gibbs Stuart Viney PROVIDED that if either of my said nephews shall predecease either of my said children leaving issue them surviving then such issue shall take and if more than one equally between them the share which their his or her parent would have taken out of my residuary estate had such parent lived to attain a vested interest.
6         AS to the balance of my said Trust Fund I DIRECT my Trustee after payment thereout of my debts funeral and testamentary expenses and the Probate and Death Duties payable in respect of the whole of my Estate to pay the net annual income to arise therefrom to my said daughter for her life AND in the event of my said daughter marrying and having issue she shall have the right to claim the balance of my Trust Fund to be paid to her at any time and in default of her claiming such during her lifetime Upon her death I DIRECT my Trustee to divide the same equally between all her children who shall attain the age of Twenty-one years And in the event of my said daughter dying without leaving issue I DIRECT my Trustee to hold the said balance of my Trust Fund upon the same trusts as are hereinbefore declared as to the said sum of Two thousand pounds set aside for the benefit of my said son."
The will was signed by the executor in the presence of a lawyer and law clerk and it seems, was drawn by a solicitor.
Since the will was made the following events transpired:
·     The testator's daughter married in September 1955, at age 29.
·     The testator's son married when he was 52 years of age.
·     The testator's wife, Vera May Tolman, died on 16 December 1984.
·     Gerald Charles Stuart Viney died on 29 December 1990.
·     The testator's son, Jack Clifton Tolman, died on 14 May 2002.
·     The testator's daughter, Olivia Elizabeth Bosworth, died on 2 February 2011.
The testator's son, Jack, and daughter, Olivia, each died without having had children. Surviving now are the second respondents, being the testator's nephew, John Viney, and Gerald Viney's three children, Geraldine Stokes, Phillipa Cummins and Michael Viney. In these reasons, I shall refer to the testator's son and daughter as "the son" and "the daughter", and to John Viney and Gerald Viney as "the nephews".
The daughter made a will dated 3 February 2004. Probate of the daughter's will was granted to the first respondent as executor on 6 September 2011.
The testator's residuary estate, being now in effect the property at King Street, Dynnyrne, has been sold, and as at 11 June 2013, the funds from the sale comprised the amount of $557,435.02. The capital is invested in an interest bearing account with the applicant. Interest in the amount of $500 has accrued.

The questions

The applicant seeks determination of the following questions, which will resolve whether the proceeds of the sale of the house pass to John Viney and Gerald Viney's three children, or else to the daughter's estate:
"1 In the circumstances that have occurred does the residue of the estate of Charles Herbert Tolman fall to be distributed absolutely to:
(a)Donald Babu Lal Ramritu as personal representative of the estate of Olivia Elizabeth Bosworth; or
(b)as to one half thereof to John Gibbs Stuart Viney and the other half thereof equally between Geraldine Stokes, Philippa Cummins and Michael Viney; or
(c) to some other person or persons."
This is not a case where there is ambiguity in the terms of the will and the Court must decide between competing interpretations which are open. Indeed, there is no dispute between the parties about the effect of the terms of the will, and the literal meaning of the wording of the will is clear. As will be explained below, the effect of the terms is undoubtedly that in the circumstances that have resulted, the residue of the estate falls to the estate of the daughter. The issue is whether it is apparent from the will that the testator could not possibly have intended this result, such that there are missing words in the will, and that the clear intent throughout the will is that the nephews should be the default beneficiaries if the son and daughter died without issue. It is argued that the intent should be given effect to by reading additional words into the will. It is contended that there are missing words in the will and that it is necessary that they be supplied.

Principles of construction

The task before me is governed by well-settled principles that are uncontentious and mutually relied upon by the parties. The divergence lies in the application of these principles.
In Fell v Fell (1922) 31 CLR 268 at 273-275, Isaacs J set out ten "incontestable" principles of interpretation of wills. After setting out principles (1) and (2), concerned with general requirements, such as that the instrument must be construed according to the plain meaning of the words, and the need to ascertain the meaning of the instrument taken as a whole, Isaacs J dealt with the matter of missing words and whether they can be supplied:
"(3)      'If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, 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' (Towns v Wentworth (1858) 11 Moo PCC, at p 543; Hawkins on Wills, 2nd ed, at p 6).
(4)       An inference cannot be made 'that did not necessarily result from all the will taken together' (Sir R P Arden MR in Upton v Ferrers(1801) 5 Ves, 801, at p 804). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James LJ in Crook v Hill (1871) LR 6 Ch, 311, at p 315).
(5)       'We cannot give effect to any intention which is not expressed or plainly implied in the language of' the 'will' (Lord Watson in Scalé v Rawlins(1892) AC, 342, at pp 344-345). 'You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication' (Lord Brougham LC in Langston v Langston (1834) 2 Cl & F, 194, at pp 236-237).1`
(6)       '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' (Knight Bruce LJ in Pride v Fooks (1858) 3 DeG & J, 252 at p 266)."
It may be noted that, before words may be supplied, they must be a "necessary inference", and plainly implied from the language of the will.
In Butlin v Butlin (1966) 113 CLR 353, the deceased failed to dispose of the residue of his estate. The will provided what happened to the residue of his estate if his wife predeceased him, but failed to make provision for the destination of his estate if his wife survived him. The Court refused to supply "the missing words" and held that the residue was to be distributed on intestacy. At 357, Barwick CJ stated:
"Two questions arise: first, is it certain that the testator intended to dispose of his other assets in that event, a disposition which by oversight or mischance has not found its way into the express terms of his will; and, second, if so, has the testator in what he has said in his will given such an indication of what he intended but omitted that that intention can be inferred with convincing certainty.
The occasions when a court supplies words when it is clear that words have been omitted, whether single words or words in the form of a sentence importing an additional provision into the will, are all, in my opinion, occasions for the discovery of a necessary implication, for a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived to be by, the testator. In supplying the omitted words or the omitted gift, where it is certain that there has been an omission, it is the disclosed intention, expressed or necessarily implied in what he has said, that is the only relevant factor. The Court is not authorized to supply the gift he might reasonably have made but the gift he has indicated that he did actually intend to make: see Fell v Fell (1922) 31 CLR 268, per Isaacs J (1922) 31 CLR 268 at pp 274-275, and authorities there cited."
The test derived from Butlin v Butlin permitting the court to supply "missing words" involves two hurdles:
1 is it certain that a mistake was made and there has been an omission? and
2 if yes, can the result intended by the testator be inferred with "convincing certainty"?
In construing the will and applying these principles, I consider first the terms of the will and its effect.

The will on its face

The effect of the will in providing for the destination of the property at King Street is not contentious. Still, it must be determined by me in order to answer the questions.
The drafting of the will takes the trustee on a circuitous pathway to locate the beneficiary of the house, commencing with the clause relating to the house, and directing the trustee to the whole of the estate, then the balance of the estate, less two thousand pounds, then to the two thousand pounds.
Clause 4 devises his house and contents to his trustee upon trust to permit his wife to reside in or have the use of the contents of the house for her lifetime and then to permit his daughter to do the same for her life or until she has issue. Subject to those life interests, the will directs the trustee to hold that property upon the same trusts as declared as to the residuary estate. The will specifically provides "so that upon having issue my daughter shall have the right to call for a transfer from my trustee of the said property". The testator's daughter did not have issue, so this right could not have arisen.[1]
[1] The reference to the declaration as to the residuary estate invokes that direction in full and is not confined to the daughter having a right to call for a transfer of the house and contents. While, grammatically, "so that" is ambiguous and could mean "in that", I am satisfied that in this context it means "so for instance". Additionally, the presumption against intestacy would weigh in favour of this interpretation.
Clause 5 has two purposes. First, it devises the testator's real and personal property to his trustee upon trust to sell and convert it into money and establish his "Trust Fund". Second, it directs that out of the Trust Fund his trustee shall set aside the sum of two thousand pounds and pay the interest from that sum to his son for life. Upon his son's death, the trustee was to divide the sum of two thousand pounds equally between the son's children who shall attain the age of 21 years (that is, if the son had children, they were to receive equal shares of the capital amount). In the event of the son dying without leaving issue, the direction to the trustee is "to pay the said sum of two thousand pounds to my said daughter". This is a gift of the capital amount and the direction is unqualified. It vests in her in the event of the son dying without leaving issue.
Clause 5 further provides that, in the event of the testator's daughter predeceasing his son, then the trustee is to divide the sum equally between the nephews. As it happened, these directions do not apply, as the son predeceased the daughter. If they did, the trustee is directed to divide the sum equally between his nephews, with the proviso that if either of his nephews predeceases either of his children, then the nephews' issue would take whatever vested interest the parent (the deceased's nephew) would have taken had such parent lived to attain a vested interest.[2]
[2] This direction contains a grammatical ambiguity. Reading the direction as a whole it is evident that the reference to "such issue shall take" in the proviso that "if either of my said nephews shall predecease either of my said children leaving issue them surviving then such issue shall take" is a reference to the children of the nephews and not of the son or the daughter.
Clause 6 deals with the balance of the Trust Fund. It directs that the trustee pay the net annual income arising from the Trust Fund to his daughter for life. If she married and had issue, she was given the right to claim the balance of the Trust Fund, to be paid to her at any time. If she did not make that claim, the will then directs that, upon her death, the trustee is to divide "the same equally between all her children who shall attain the age of 21 years". Again, this direction does not apply as she did not have issue. In the event of the testator's daughter dying without leaving issue, then the trustee is directed to hold the balance of the Trust Fund on the same trusts as were declared in relation to the two thousand pounds.
The directions loop back to cl 5 and the disposal of the estate turns on the trusts declared as to the sum of two thousand pounds.
Thus, in the events that have transpired, the provision regarding the two thousand pounds in cl 5 proves to be critical. The testator's daughter outlived the son, and the son died without issue, therefore the destination of the two thousand pounds, and thus the residuary estate, is to the daughter.
Drawing on the applicant's submissions, the trail set by the provisions in the will and relating to the house is as follows:
(a)       to the testator's wife for life;
(b)on the death of the testator's wife, to the daughter for life or until she has issue;
(c)if the daughter has issue, she can call for an absolute transfer of the property to her;
(d)if the daughter dies leaving issue but without having called for an absolute transfer of the property to her, then to her issue;
(e)       if the daughter dies without issue then
(f)       to the son for life;
(g)       on the son's death, to the son's issue;
(h)if the daughter survives the son and the son dies without issue, then to the daughter's estate; or
(i)if the daughter has predeceased the son and the son died without issue, then to the nephews.
It is noted that the trail at (f) relies on construing the will, in the scenario outlined, as giving rise to an entitlement to the son to live in the house for life. The translation from what is to be done with the sum of two thousand pounds, to what is to be done with the house and the balance of the estate, is not an easy one. It seems to me that it is open to construe the will as requiring that the house be sold subject to the daughter's life interest or until she shall have issue, in which case she may call for the transfer of the house and contents. If this interpretation is correct, the trail in relation to the house would be modified as follows:
(a)       to the testator's wife for life;
(b)       on the death of the testator's wife, to the daughter for life or until she has issue;
(c)       if the daughter has issue, she can call for an absolute transfer of the property to her;
(d)if the daughter does not call for an absolute transfer of the house and contents then the house and contents are to be sold upon her death.
The proceeds of the sale of the house are to be distributed as follows:
(e)       if the daughter dies leaving issue, the proceeds go to her issue;
(f) if the daughter dies without issue then the interest from the proceeds is to provide an annual income to the son for life.
(g)       on the son's death, the proceeds fall to the son's issue;
(h)if the daughter survived the son and the son dies without issue, then the proceeds are distributed to the daughter's estate; or
(i)if the daughter has predeceased the son and the son dies without issue, then the proceeds are paid to the nephews.

The distinction does not need to be resolved as it is not material to the questions to be determined.
The testator's son died without issue and his daughter did not predecease his son. Read literally, the effect of the will is that cl 5, containing the directions as to the two thousand pounds, results in the trustee being required, in accordance with the words of that clause, "to pay the [balance of the estate] to my daughter". The death of the testator's daughter being a necessary pre-condition to the operation of this direction in cl 5, the balance of the testator's estate is a gift to his daughter's estate and falls to her executor to be distributed. The effect of the will is that the nephews and their issue are not entitled under these circumstances.

The contentions

It is contended on behalf of the second respondents that the true intention of the testator is clear and is to provide for the nephews to be the beneficiaries if the testator's son and daughter died without issue. It is submitted that the words "but as if my said daughter had predeceased my said son" should be inserted into the will, so that a court would read the will as if the words in cl 6 were as follows:
And in the event of my daughter dying without leaving issue I DIRECT my Trustee to hold the said balance of my Trust Fund upon the same trusts as are hereinbefore declared as to the said sum Two thousand pounds set aside for the benefit of my said son but as if my said daughter had predeceased my said son. (Proposed words in bold.)
The third respondents made three key points which are relied upon to support the contention that there was an omission, and as revealing the testator's intentions:
·     That if the missing words were not supplied, an absurd situation would result whereby the daughter's estate would benefit in circumstances where the daughter was not to receive that benefit in her lifetime.
·     The literal effect results in an anomalous outcome whereby the nephews were the beneficiaries if the son died after the daughter, but not if the son predeceased the daughter.
·     It is apparent from the overall scheme of the will that the testator's intention was that if the son and daughter both died without issue, then the nephews should be the beneficiaries.
The applicant in its submissions acknowledged that there was merit in some of the contentions and pointed out countervailing considerations. A neutral stance was adopted and it was contended that ultimately it was a question for the Court as to whether the required test was met and whether the Court could conclude with certainty that the testator intended an outcome contrary to the plain meaning of the will. It was emphasised that it was not enough for the Court to conclude that the result was illogical or even capricious. It was a matter of whether the Court could find what the testator intended with sufficient certainty to add or substitute words. In consequence of the first respondent not participating in the proceedings, and in order to ensure that all relevant considerations were placed before the Court, representations made in correspondence on behalf of the first respondent to the applicant were placed before the Court as an annexure to the applicant's submissions.

Analysis

Before considering the contentions, it is convenient to make some general observations about the structure and effect of the will.

General observations

To begin with, there are some obvious imperfections on the face of the will and in the drafting. There is no contingency for the testator's children predeceasing his wife. In one clause, there is reference to his daughter merely having issue, in another to marrying and having issue.
Features of the structure and drafting of the will are vexing. It can be seen that the will is more complex than it need be. The drafting device employed, of disposing of aspects of the estate by reference to directions regarding other aspects, is particularly unfortunate. It is the kind of drafting which has a tendency to produce confusion and error. Self-contained clauses with directions in full may have been repetitious but it would have avoided much difficulty. The trustee is redirected to separate clauses which have different objects and purposes sought to be fulfilled by those clauses. For instance, a life interest in the house for the son (or an annual income derived from the proceeds of its sale) is to be found in a direction concerning interest from the sum of two thousand pounds. The drafting leads to the co-engagement of cls 5 and 6 and the result is awkward and at times incongruous. Clause 6 applies to give rise to the operation of cl 5, because the daughter has died, yet cl 5 itself seems to presuppose that the daughter is alive, having survived her brother. Further tension arises in the application of the two clauses here because they are concerned with different moments in time: cl 5 relates to the moment the son dies, during the daughter's lifetime; cl 6 relates to the moment after the daughter's death, her brother having died at some time past.
However, the question is whether these difficulties, without more, suggest that words are missing from the will. It is acknowledged that the drafting style of the will has a tendency to produce error and confusion and there must be a risk that, in its preparation, an error was made. However, this risk falls far short of the first hurdle: whether, having regard to the terms of the will, it can be inferred with certainty that the literal meaning was unintended and error has in fact occurred. This remains to be considered.
Before leaving matters of general consideration, there are some distinguishing features of this will that warrant mentioning. According to the terms of will, on the daughter having issue, she has the right to call for an absolute transfer of the house and residue to herself. She was clearly trusted with an absolute interest, in the event that she had children. More typically, the purpose of a life estate is in all circumstances to prevent the life tenant from being able to dispose of the property and to guarantee its ultimate passage to the remainder beneficiaries. This is not such a case.
A further notable feature of the will is that the primary scenario which attracted the testator's consideration is that his daughter would have children. In such an eventuality, she would receive the lion's share of the estate as the principal beneficiary; the son's share and that of his issue would be confined to interest from the two thousand pounds and the capital sum respectively. It may be noted that, during their lifetimes, if they did not have children, the son would receive an income from the two thousand pounds, a considerable sum in 1952, and the daughter would live in the house, and have an income from the sale of the rest of the estate.

Consideration of contentions

It is useful to begin my consideration of the contentions by having regard to the terms of cls 5 and 6 and whether there is any indication from the text that there are words missing and that a mistake has been made.
It has been submitted that there is no express mention, across both clauses, of the contingency of the daughter outliving the son, while the contingency of the daughter predeceasing the son is expressly referred to in cl 5. However, it does not appear that this is particularly significant. Clause 5 only contemplates two situations: the daughter outliving the son and the daughter predeceasing the son. Only the latter is expressly mentioned, simply in contrast to the first, default situation. Upon the co-engagement of cls 5 and 6, cl 5 provides in unambiguous terms that the testator's daughter is to receive, subject to the exception that she predeceased her brother. The direction to pay the daughter is to be construed as a direction to pay to her estate. I do not consider that this is a case where there is an obvious lacuna in the text, such that a mistake or omission can be immediately identified. Further, it cannot be said with any degree of confidence that, had the testator intended the literal meaning of the will, he would have expressed it in a different way.
Ultimately, in this case, the matter of identifying whether there are missing words turns on whether it appears from the four corners of the will that cl 5 does not express the testator's intention with respect to the destination of the house.
The second respondents submit that one of the reasons why it is apparent that the literal effect of the will was unintended is that it produces a result which is a "clear nonsense". It is submitted that it is plain that the testator wished his daughter to have the balance of his estate if she had issue. It is pointed out that he cannot have intended that consequence and yet also have wished the balance of his estate to go to her after her death without issue. The absurd result of the will is that the daughter has a life interest and her estate has the remainder interest. It is said this defeats the purpose of having a life interest, which is to enable the testator to direct where the remainder goes upon the death of the life tenant. To give it to the life tenant's estate is to lose that control, and raises the question why was the balance of the estate not an absolute gift in the first place. The point was developed in the written submissions as follows:
"… It is abundantly clear from both the bequests in respect of the residence and contents and in respect of the balance of the Trust Fund that the testator wished his daughter to have the balance of his estate if she had issue. He cannot have intended that consequence and yet to have wished the balance of his estate to go to her after her death without issue. The notion of the testator giving a life interest to his daughter and the remainder to her executor or administrator on her death, to the exclusion of the nephews as secondary beneficiaries, is ludicrous. There is no rational explanation as to why the testator would have wished to confer on strangers to his will or even allow to fall into his daughter's intestacy, the balance of his estate that he had withheld from her, his primary beneficiary, all her life absent children."
There is force in this submission. However, it loses force when the terms of the will are considered from the perspective of the testator at the time he made the will. It can be seen from the will, and the trail regarding the house at [26] above, that the testator wished to provide for his son. He wished to provide him a life interest in the house or proceeds thereof if his son outlived his daughter, and if she did not have issue. If he had vested the estate in his daughter during her lifetime, irrespective of whether she had issue or not, he would have deprived his son of that life interest (or of an income from the proceeds) and his son's potential unborn children of the estate. A rational explanation for not vesting the estate in his daughter during her lifetime was that the testator had wanted to preserve a potential life interest for his son and to allow for the possibility that his son may have children.
It is argued for the second respondents that the rule in Saunders v Vautier (1841) 4 Beav 115 [49 ER 282] should be borne in mind, and reveals the improbability of the testator intending an absolute interest to fall to the daughter's estate. Under this rule, if a beneficiary holds both the life interest and the remainder interest, then the beneficiary may put an end to the trust and may call for the immediate payment of the gift (see also Re the Will of Olive Gertrude Jones [1997] TASSC 82). It is submitted that if, as transpired, the son died without issue surviving him, and predeceased the daughter, who did not have children and was beyond child-bearing age, the daughter would hold the life interest and remainder interest, and would have been entitled to call for the immediate payment of the balance of the estate, and an absolute interest in the house. It may be noted that this would involve modification to the trail set out above at [26].
The argument is that this result is contrary to what the testator has directed in the will, that is, that his daughter should only take an absolute interest if she had issue. The literal effect of the will is said to be improbable and leaves room for some other intention. However, is there any indication that the will was set against the testator's daughter taking during her lifetime without issue? Bearing in mind that the purpose of withholding the absolute interest was to fulfil another purpose – that the testator's son could benefit if his sister predeceased him, and that the son's issue could benefit – there is no inconsistency. If the daughter did not predecease the son, the result of her calling for an absolute interest is not at odds with the testator's intention.
It is submitted that the result that the nephews would not to take in preference to the daughter's estate when both son and daughter die without issue, simply because the daughter survived the son, is completely anomalous. It is submitted that there is no logical reason why the order of death of the siblings should affect the destination of the estate. This factor is suggestive of missing words, particularly if the terms of the will are tested in the hypothetical case of the son and daughter dying close in time. If the son and daughter died a day apart, it is difficult to find logic and sense in the nephews receiving in one instance and not the other. It is understandable that, from the perspective of the family members, this result would seem anomalous. For them, a great deal is at stake and dependent on the hand of fate. However, the will needs to be considered from the perspective of the testator, the position he was in, and the objectives that are apparent from the will.
Using the language of an "anomaly", the question is: which result is anomalous? There is a logical flaw in assuming that the unfavourable treatment of the nephews is necessarily the anomaly. It is contended that, when the testator gave to his nephews in circumstances in which his daughter predeceases his son, he must have intended to do so, so that when he did not give to his nephews in a like situation, it can be inferred that this was not intended. However, if, from the testator's perspective, they are not like situations, then the attributed intention for the nephews to benefit in both situations falls away.
It seems to me that there may be a possible rationale for benefitting the nephews if the daughter predeceased the son. If the daughter predeceased the son and her estate was to benefit following his death, it is possible that the gift could flow many decades after the daughter's death and the finalisation of her estate, which may be problematic in its administration. Further, at the time the daughter made her will, if she made one, she would not have known that her estate may receive this benefit; her brother could yet have had issue. In turn, the provisions in her will may not have been suitable in light of the nature of the gift that was yet to vest. Further, from the testator's perspective, the scenario in which the daughter's estate benefitted may have been viewed as a remote possibility and not given full consideration. I point out these matters acknowledging that searching for a rationale is a speculative exercise.
As for the rationale for the outcome of the daughter's estate benefitting and not the nephews, it may simply be the case that the testator considered she should, by her will, be able to control what happened to the residuary estate. It does not seem to me to be unnatural or irrational that the testator would have considered it appropriate for her to be able to dispose of the estate as she saw fit, such that she might benefit a spouse or others close to her. It is relevant here that she had been shown preference in the will, and it appears the testator had faith in his daughter, such that, as previously noted, she was trusted with an absolute interest in the estate in the event of having children.It is acknowledged that, from the perspective of the surviving family members, with a focus on the operation of the will today and its result, the outcome may seem arbitrary. However, the terms of the will are justified focussing on the testator's perspective and what can be gleaned from the will about the considerations and objectives he had in mind.
Finally, it is submitted that the overriding scheme evident from the terms of the will is that, after the death of his son and his daughter, both without issue, the testator's nephews were to take. It is submitted that the nephews figure prominently in the testator's considerations. This proposition needs to be examined.
There are five named beneficiaries. The nephews are two of them. The testator's son and daughter and the nephews were the only people who received personal property. Clause 5 provides that the testator's nephews could, depending on the course of events, receive an equal share of the sum of two thousand pounds and, by virtue of cl 6, there is also the potential for them to receive the house, or the proceeds from its sale, and the balance of the estate in the event that the testator's son and daughter died without issue and the daughter predeceased the son. It is noted that they could, depending on contingencies, receive an equal share of the two thousand pounds, whilst the son could only receive the income from the capital sum.
It is submitted that, from the four corners of the will, it can be seen that the scheme of distribution demonstrates that the testator wanted his estate to pass to surviving members of the Tolman family, and not to pass to "strangers". Thus, if the son and daughter did not have children, then the nephews should receive the benefit of the estate. I accept that, speaking generally, there is merit in the proposition that the testator would have wished his estate to be kept in his family, conforming to expectations of what would have been reasonable. The second respondents suggested that the drafter may have assumed that, in referring back to cl 5, the co-engagement of cls 5 and 6 would not result in the daughter receiving the estate because necessarily she had to be alive to benefit under cl 5. Of course, this is a speculative matter. The question is whether a scheme, as submitted, is revealed by the four corners of the will.
The submission regarding a scheme is heavily dependent on the gift to the nephews, arising from cl 5, when this clause is called into doubt by the submission itself.
I am not convinced that there is such a scheme of distribution as submitted. There are of course only two scenarios in which the testator's son and daughter both die without issue: the son dies before the daughter and the daughter dies before the son. As noted previously, according to the terms of the will as they stand, the nephews take in only one scenario. To my mind, this instance of the nephews benefitting is not sufficient to demonstrate the scheme suggested.
The submission regarding a scheme would have stronger force if the son and daughter were on an equal standing under the terms of the will. As noted, the daughter was shown preference in the will and the testator seems to have had considerable faith in her. The preference shown to the daughter includes the following.
·     If the testator's daughter had a child or children, she could call for an absolute interest in the house and the balance of the estate, apart from the two thousand pounds set aside for the son.
·     Even in relation to the two thousand pounds, the testator's daughter was trusted with an outright interest during her lifetime in the event she outlived her brother.
·     The testator's daughter received the income from the residuary estate for life.
·     The daughter's issue inherited the residuary in preference to the son's issue.

It does not seem that the testator's objective was to achieve an equal disposition of his estate as between his son and daughter, or even a desire to compensate the son for the preference given to the daughter. There may, of course, have been valid reasons for the different treatment, such as the different circumstances of the testator's son and daughter. Having regard to the age of the testator's daughter as compared to his son at the time the testator made his will, it may be that the testator contemplated that his son may not have children, but his expectation was that his daughter would marry and have children. It is evident from the terms of the will that the scenario given primary consideration is that in which his daughter had children. The scenario in which she died without leaving issue, addressed at the end of cl 6, may have been an afterthought. That does not mean it was unintended.
It does not seem unthinkable that the testator would want his daughter's estate to take if the son had predeceased her and neither had children. The preference to her estate, rather than the nephews, is in line with the will generally and the preference given to the testator's daughter.
It seems to me that it is entirely conceivable that the testator's scheme may have been to benefit the nephews but in a heavily qualified way: when his son and daughter both died without issue and only if the daughter predeceased the son. This is not a case where there is a scheme that is contrary to the literal effect of the will.
Before concluding, I make some brief remarks about the effect of supplying the words said to be missing, and whether such words would accord with what can be divined about the testator's intention. That is not to suggest that there is any cause for thinking there has been a mistake or omission. Indeed, these remarks are superfluous to my reasoning, and it is my conclusion that there is no warrant for resorting to any additional words, whether they are these or any others. The words proposed are:
And in the event of my daughter dying without leaving issue I DIRECT my Trustee to hold the said balance of my Trust Fund upon the same trusts as are hereinbefore declared as to the said sum Two thousand pounds set aside for the benefit of my said son but as if my said daughter had predeceased my said son. (Proposed words in bold.)
If the words are added, then the result would be that the nephews or their issue would inherit the proceeds of the house. However, the words would have other implications, giving priority to the nephews over the testator's son and daughter. If the nephews and the testator's son had predeceased the daughter, all childless, then on the daughter's death, the estate would be distributed to the estate of the two nephews. The result is a distribution of the estate by the nephews' wills in preference to the son's and daughter's estates as directed by their wills. The testator's daughter could have been residing in the house until her death, having outlived the nephews by many years, and yet the result of the will would be that the estate, including the proceeds of the house, would fall to the estates of the nephews. This result would seem quite extraordinary given the terms of the will. It would be entirely at odds with the intention that can be clearly divined of the preference to his daughter and the faith in her judgment regarding the disposal of the residuary estate. In short, the proposed words are discordant with the will.

Conclusion and answers

The Court is being asked to alter the clear effect of the will by reading in words that do not appear in the will. To do so, I need to be certain that a gift to the daughter's estate was a mistake and, in light of the terms of the will, to be able to infer with convincing certainty that the nephews, or their issue, were intended by the testator to be the beneficiaries.
It was asserted that the will operates in a way that is nonsense in withholding an absolute interest from the daughter if she did not have issue during her lifetime. For the reasons I have given, the operation of the will in this way allows the fulfilment of other objectives of the testator in providing for his son and his son's children. Underpinning the second respondents' position is that the scheme of the will is that the nephews should be the default beneficiaries if the son and daughter both died without issue. I have not found that to be the case.
From the perspective of the nephew and surviving family, the will is seen as having an anomalous or an arbitrary outcome, noting the great significance of the consequences dependent on order of death of the son or daughter. However, the will must be viewed from the testator's perspective. For the reasons I have given, the effect of the will, being that the daughter's estate is to benefit, accords with the will as a whole.
Today, it may be seen as preferable for the estate to fall to surviving family members rather than to "strangers". However, while the terms of the will may disclose a preference for family members, it does not do so universally, and not when the daughter survived the son. It is feasible, according to what can be divined about the testator's intention, that the result may be precisely what was intended.
It is my conclusion that the literal effect of the will is not inconsistent with the testator's intention as revealed by the will as a whole. The case does not meet the stringent test required: I am not satisfied that a mistake was made or that it can be inferred with convincing certainty that the testator intended a different outcome.
The answers to the questions are as follows:
1(a) yes; 1(b) no; 1(c) no.