The State of Western Australia v Illey
[2006] WASC 290
KENNETH EPPS as Executor of the Estate of JOHN HOMER (Dec) -v- HOMER & ORS [2006] WASC 290
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 290 | |
| Case No: | CIV:1149/2006 | 20 & 21 NOVEMBER 2006 | |
| Coram: | MASTER SANDERSON | 19/12/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | No ambiguity in Will - Intestacy as to residuary estate | ||
| B | |||
| PDF Version |
| Parties: | KENNETH EPPS as Executor of the Estate of JOHN HOMER (Dec) MARK JOHN HOMER SUSAN JAYNE MARSHALL ROBERT HOMER DENNIS PATRICK BYRNE SHIRLEY ANN KING ANTHONY JAMES BYRNE MARTINA MARIE BYRNE |
Catchwords: | Wills Proper interpretation of residuary clause in Will Turns on own facts |
Legislation: | Administration Act 1903 (WA), s 45 |
Case References: | Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family Trust (1997) 19 WAR 1 Hyde & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Mustard v Oikonomov, unreported; SCt of WA; Library No 980468; 19 August 1998 Allgood v Blake (1873) LR 8 Ex 160 Ashman v McHugh [2004] VSC 232 Baker v Baker (1858) 6 HL Cas 616 Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404 Burns Philp Hardware Pty Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642 Cinnamon v Public Trustee of Tasmania (1934) 51 CLR 403 Coltsman v Coltsman (1868) LR 3 HL 121 Croker v Marquis of Hertford (1844) 4 Moo PCC 339 Crook v Hill (1871) LR 6 Ch App 311 Doe Bladwin v Rawding (1819) 2 B & Ald 441 Doe d Gwilliam v Gwilliam (1833) 5 B & Ad 122 Doe d Hiscocks v Hiscocks (1839) 151 ER 154 Elder v Timothy Laurence McComish as Executor of the Estate of Roland Daniel Cantwell (Dec) [2005] WASC 119 Fell v Fell (1922) 31 CLR 268 Grey v Pearson (1857) 6 HL Cas 61 Harris v Ashdown (1985) 3 NSWLR 193 Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29 Hope v Potter (1857) 3 K & J 206 Hyde v Holland [2003] NSWSC 733 Ibbetson v Talbot (1735) Cas temp Talb 157 In re Allen [1933] SASR 122 In re Barrance [1910] 2 Ch 419 In re Benn; Benn v Benn (1885) 29 Ch D 839 In re Cook (decd) [1948] Ch 212 In re Croxon; Croxon v Ferriers [1904] 1 Ch 252 In re Doland's Will Trusts [1970] Ch 267 In re Edwards; Jones v Jones [1906] 1 Ch 570 In re Evans; Public Trustee v Evans [1920] 2 Ch 304 In re Freeman; Hope v Freeman [1910] 1 Ch 681 In re Govier (decd) [1950] P 237 In re Harrison; Turner v Hellard (1885) 30 Ch D 390 In re Hodgson; Nowell v Flannery [1936] Ch 203 In re Pringle; Baker v Matheson [1946] Ch 124 In re Rowland (decd); Smith v Russell [1963] Ch 1 In re Smalley; Smalley v Scotton [1929] 2 Ch 112 In the Goods of Hugo (1877) 2 PD 73 In the Matter of the Will of Arndt [1990] WAR 5 Inderwick v Tatchell [1903] AC 120 James Robert Thomas as Executor of the Will of Nancy Louise Wilson (Dec) v Strickland [2001] WASC 156 Josiak v Settler (1971) 16 DLR (3d) 490 Langston v Langston [1834] 2 Cl & Fin 134 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 Limpus v Arnold (1885) 15 QBD 300 Lutheran Church of Australia South Australia District Inc v Farmers Cooperative Executors and Trustees Ltd (1970) 121 CLR 628 Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60853 Marks v Pope [2001] NSWSC 105 National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207 Occleston v Fullalove (1874) LR 9 Ch App 147 Osborne v Smith (1960) 105 CLR 153 Papillon v Voice (1728) KelW 27 Parker v Tootal (1865) 11 HL Cas 143 Pearce v Wright (1926) 39 CLR 16 Perpetual Trustee Co v Archbold (1946) 46 SR NSW 327 Perpetual Trustees WA Ltd (As Executor of the Estate of Eleanor Anne Seward (Dec)) v Riverwest Pty Ltd [2004] WASC 81 Perrin v Morgan [1943] AC 399 Re Cargill (1977) 79 DLR (3d) 726 Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 Re Nash [1979] Qd R 219 Re O'Brien (1977) 77 DLR (3d) 397 Re Scott (decd); Public Trustee v Scott, Nichols & Bond [1965] WAR 112 Re Ward (Dec); Marsden v Ward, unreported; SCt of WA; Library No 980180; 9 April 1998 Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922 Rhodes v Rhodes (1882) App Cas 192 Roddy v Fitzgerald (1858) 6 HL Cas 823 Sayer v Sayer (1849) 7 Hare 377 Seale v Rawlins [1892] AC 342 Shore v Wilson (1842) 9 Cl & Fin 355 Simpson v Foxon [1907] P 54 South Sydney Council v Royal Botanic Gardens and Domain Trust (1999) 10 BPR 18,961 Sunflower Services Ltd v Unisys New Zealand Ltd [1997] 1 NZLR 385 Tatham v Huxtable (1950) 81 CLR 639 The Public Trustee in and for the State of Western Australia v The Salvation Army (Western Australia) Property Trust, unreported; SCt of WA; Library No 9032; 5 September 1991 Towns v Wentworth (1858) 14 ER 794 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
and
Will and Estate of JOHN HOMER late of Lot 7 Mount Shadforth Road, Denmark in the State of Western Australia, Social Worker, (Dec)
- Plaintiff
AND
MARK JOHN HOMER
First Defendant
SUSAN JAYNE MARSHALL
Second Defendant
ROBERT HOMER
Third Defendant
DENNIS PATRICK BYRNE
Fourth Defendant
- SHIRLEY ANN KING
Fifth Defendant
ANTHONY JAMES BYRNE
Sixth Defendant
MARTINA MARIE BYRNE
Seventh Defendant
Catchwords:
Wills - Proper interpretation of residuary clause in Will - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 45
Result:
No ambiguity in Will - Intestacy as to residuary estate
Category: B
(Page 3)
Representation:
Counsel:
Plaintiff : Mr P K Walton
First Defendant : Ms M J Elliott
Second Defendant : Mr S G Scott
Third Defendant : Mr S G Scott
Fourth Defendant : Mr T R Stephenson
Fifth Defendant : Mr T R Stephenson
Sixth Defendant : Mr T R Stephenson
Seventh Defendant : Mr T R Stephenson
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : Elliott & Co
Second Defendant : Stables Scott
Third Defendant : Stables Scott
Fourth Defendant : Yarwood & Associates
Fifth Defendant : Yarwood & Associates
Sixth Defendant : Yarwood & Associates
Seventh Defendant : Yarwood & Associates
Case(s) referred to in judgment(s):
Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family Trust (1997) 19 WAR 1
Hyde & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Mustard v Oikonomov, unreported; SCt of WA; Library No 980468; 19 August 1998
Case(s) also cited:
Allgood v Blake (1873) LR 8 Ex 160
Ashman v McHugh [2004] VSC 232
Baker v Baker (1858) 6 HL Cas 616
Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404
(Page 4)
Burns Philp Hardware Pty Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642
Cinnamon v Public Trustee of Tasmania (1934) 51 CLR 403
Coltsman v Coltsman (1868) LR 3 HL 121
Croker v Marquis of Hertford (1844) 4 Moo PCC 339
Crook v Hill (1871) LR 6 Ch App 311
Doe Bladwin v Rawding (1819) 2 B & Ald 441
Doe d Gwilliam v Gwilliam (1833) 5 B & Ad 122
Doe d Hiscocks v Hiscocks (1839) 151 ER 154
Elder v Timothy Laurence McComish as Executor of the Estate of Roland Daniel Cantwell (Dec) [2005] WASC 119
Fell v Fell (1922) 31 CLR 268
Grey v Pearson (1857) 6 HL Cas 61
Harris v Ashdown (1985) 3 NSWLR 193
Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29
Hope v Potter (1857) 3 K & J 206
Hyde v Holland [2003] NSWSC 733
Ibbetson v Talbot (1735) Cas temp Talb 157
In re Allen [1933] SASR 122
In re Barrance [1910] 2 Ch 419
In re Benn; Benn v Benn (1885) 29 Ch D 839
In re Cook (decd) [1948] Ch 212
In re Croxon; Croxon v Ferriers [1904] 1 Ch 252
In re Doland's Will Trusts [1970] Ch 267
In re Edwards; Jones v Jones [1906] 1 Ch 570
In re Evans; Public Trustee v Evans [1920] 2 Ch 304
In re Freeman; Hope v Freeman [1910] 1 Ch 681
In re Govier (decd) [1950] P 237
In re Harrison; Turner v Hellard (1885) 30 Ch D 390
In re Hodgson; Nowell v Flannery [1936] Ch 203
In re Pringle; Baker v Matheson [1946] Ch 124
In re Rowland (decd); Smith v Russell [1963] Ch 1
In re Smalley; Smalley v Scotton [1929] 2 Ch 112
In the Goods of Hugo (1877) 2 PD 73
In the Matter of the Will of Arndt [1990] WAR 5
Inderwick v Tatchell [1903] AC 120
James Robert Thomas as Executor of the Will of Nancy Louise Wilson (Dec) v Strickland [2001] WASC 156
Josiak v Settler (1971) 16 DLR (3d) 490
Langston v Langston [1834] 2 Cl & Fin 134
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
Limpus v Arnold (1885) 15 QBD 300
(Page 5)
Lutheran Church of Australia South Australia District Inc v Farmers Cooperative Executors and Trustees Ltd (1970) 121 CLR 628
Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60853
Marks v Pope [2001] NSWSC 105
National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207
Occleston v Fullalove (1874) LR 9 Ch App 147
Osborne v Smith (1960) 105 CLR 153
Papillon v Voice (1728) KelW 27
Parker v Tootal (1865) 11 HL Cas 143
Pearce v Wright (1926) 39 CLR 16
Perpetual Trustee Co v Archbold (1946) 46 SR NSW 327
Perpetual Trustees WA Ltd (As Executor of the Estate of Eleanor Anne Seward (Dec)) v Riverwest Pty Ltd [2004] WASC 81
Perrin v Morgan [1943] AC 399
Re Cargill (1977) 79 DLR (3d) 726
Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85
Re Nash [1979] Qd R 219
Re O'Brien (1977) 77 DLR (3d) 397
Re Scott (decd); Public Trustee v Scott, Nichols & Bond [1965] WAR 112
Re Ward (Dec); Marsden v Ward, unreported; SCt of WA; Library No 980180; 9 April 1998
Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922
Rhodes v Rhodes (1882) App Cas 192
Roddy v Fitzgerald (1858) 6 HL Cas 823
Sayer v Sayer (1849) 7 Hare 377
Seale v Rawlins [1892] AC 342
Shore v Wilson (1842) 9 Cl & Fin 355
Simpson v Foxon [1907] P 54
South Sydney Council v Royal Botanic Gardens and Domain Trust (1999) 10 BPR 18,961
Sunflower Services Ltd v Unisys New Zealand Ltd [1997] 1 NZLR 385
Tatham v Huxtable (1950) 81 CLR 639
The Public Trustee in and for the State of Western Australia v The Salvation Army (Western Australia) Property Trust, unreported; SCt of WA; Library No 9032; 5 September 1991
Towns v Wentworth (1858) 14 ER 794
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326
(Page 6)
1 MASTER SANDERSON: The making of home-made Wills can lead to problems. That statement is not a paid advertisement for the legal profession. It is a statement of fact. This case illustrates the point.
2 In September 1992, the deceased, Mr John Homer ("Mr Homer"), and his then wife, Mrs Shirley Ann Homer ("Mrs Homer"), were about to embark on an overseas trip. The couple had been married since 1986. Each of them had been married previously. Each of them had children by their former marriage. The first, second and third defendants were the children of Mr Homer by his previous marriage. The fourth, fifth, sixth and seventh defendants were the children of Mrs Homer by her previous marriage. The couple had no children together.
3 Mr Homer died on 23 November 2004. A copy of the Will of Mr Homer is found as annexure "KE1" to the plaintiff's affidavit sworn 17 February 2006 (exhibit 2). The Will was made using a pro forma document available from the local newsagent. After appointing the plaintiff as executor and directing the executor to pay the Estate's debts, funeral expenses and other duties, certain specific bequests are made by Mr Homer to his three natural children. He then makes a bequest of $15,000 to be divided equally between his three children. The rest of his Estate he leaves to his wife, Mrs Homer.
4 There then appears the residuary clause. Before quoting that clause, I should say that what follows is a direct reproduction of the clause. The underlining was put in by Mr Homer and the idiosyncratic punctuation is his. I have also set out the clause by putting each of the named children on a separate line as they appear in the clause in the Will. The clause reads as follows:
"ALL THE REST OF MY ESTATE I LEAVE TO MY WIFE SHIRLEY ANN HOMER
BUT IN THE EVENT THAT MY WIFE SHIRLEY ANN HOMER AND MYSELF SHOULD PASS AWAY AT THE SAME TIME. WITH THE EXCEPTION OF MY PROPERTY KNOWN AS 14 ANDREW STREET KALAMUNDA (SEE STATUTORY DECLARATION)
I LEAVE ALL THAT PART OF MY ESTATE BEQUEATHED TO MY WIFE TO OUR CHILDREN, FIFTY PERCENT (50%) TO BE SHARED EQUALY BETWEEN MY NATURAL CHILDREN, AS PREVIOUSLY NAMED, THE
(Page 7)
- REMAINING FIFTY PERCENT (50%) TO MY STEP CHILDREN, TO BE SHARED EQUALY BETWEEN
DENNIS PATRICK BYRNE
SHIRLEY ANN KING
ANTHONY JAMES BYRNE
AND MARTINA MARIE BUZZA
ALL MONIES RECEIVED FROM 14 ANDREW STREET KALAMUNDA, TO BE SHARED EQUALY BETWEEN MY NATURAL AND STEP CHILDREN THIS TO TAKE PLACE ON A ANNUAL BASIS."
5 Mrs Homer died on 9 December 1998. As her Will (annexure "KE3") was a mirror image of Mr Homer's Will, all of her property passed to him. Probate of Mr Homer's Will was granted on 1 June 2005. A dispute has arisen between the first to third defendants and the fourth to seventh defendants about the proper interpretation of the Will. The plaintiff comes to court seeking directions under s 45 of the Administration Act 1903 (WA).
6 Before dealing with the respective contentions of the parties, there is one further aspect of the Will that should be noted. On 24 March 1995, Mr Homer amended the Will by changing his address. Originally he was said to reside at 3 Carlisle Road, Kalamunda. He amended this to 120 Brunswick Road, Albany. He initialled that change. The change was not witnessed by anyone. It was common ground between the parties that this change did no more than reflect the reality of the situation.
7 There were numerous affidavits filed by the various parties to this action. Various objections were taken to the affidavit evidence. During the course of the hearing, I indicated to the parties that I would not deal comprehensively with all of the objections. Rather, if I came to consider any part of any affidavit, I would at that time consider any objection taken to the material. In fact, I have considered it unnecessary to refer to any parts of any of the affidavits of any of the parties.
8 There are, however, two evidentiary matters which I determined during the course of the hearing requiring attention. Both of these matters materially affect the way in which the case has been decided. Both of the
(Page 8)
- points were made by counsel for the fourth to seventh defendants and it concerned the evidence given by each of these parties.
9 A significant proportion of the affidavit evidence of the fourth to seventh defendants concerned matters which occurred after the Will was signed. Counsel for these defendants conceded that based upon the decision of Owen J in Mustard v Oikonomov, unreported; SCt of WA; Library No 980468; 19 August 1998, such material would be inadmissible. Counsel submitted that decision should not be followed. He did this on two grounds.
10 First, it was said that the alteration made to the Will by the deceased in March 1995 had the effect of republishing the Will. In fact, it was not submitted that there had been a republication as that expression is generally used, but rather that this was the effect of the alteration. Clearly, there is no substance in that submission. The alteration was simply to the deceased's address. It had no effect on the disposition of the property made when the Will was first drawn up. It was probate of the Will made on that date which was granted. The alteration could not justify admission of any evidence of events occurring after the actual date of the Will.
11 Second, it was submitted that since his Honour's decision in 1998, the law had moved on. It was now the case that recourse could be had to subsequent conduct in interpreting contracts. Reference was made to the decision of the New South Wales Court of Appeal in Hyde & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 and the decision of Parker J in Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family Trust (1997) 19 WAR 1 at 6.
12 There are two things to say about this submission. First, in neither of the two cases mentioned was the Court dealing with the interpretation of a Will. Owen J's decision in Mustard (supra) is direct authority on the point and I would not be prepared to differ from it. Second, the evidence is only relevant in attempting to give ambiguous words a sensible operation (to quote Kirby P (as he then was) in the Oceanic Meat Traders decision (supra)). As will become apparent, I am not satisfied that there is any ambiguity in this case.
13 That leads on, then, to the central question in this litigation. Is the residuary clause in the Will ambiguous? The clear answer is that it is not. It is true that the punctuation is unusual. The fact that it is punctuated as it is, is odd, given that the deceased was, on the evidence, reasonably
(Page 9)
- well-educated and literate. But that is not enough to confuse what is the plain meaning of the residuary clause. It operates if the deceased and his wife pass away "at the same time". It is unnecessary, for present purposes, to decide precisely what that phrase might mean. Here, there were years between the death of the deceased's wife and the deceased. No matter how the language is tortured, the death of the deceased some six years after the death of his wife cannot be fitted within the terms of that bequest.
14 The effect of that interpretation of the Will is that there is an intestacy as to the deceased's residuary estate. That will mean his natural children, the first to third defendants, take the whole of the residuary estate and the remaining defendants are left without bounty. It was contended on behalf of the fourth to seventh defendants that the intestacy could not have been intended by the deceased and that the Will should be interpreted in such a way as to divide the residuary estate 50 per cent shared equally between the first to third defendants and 50 per cent shared between the fourth to seventh defendants.
15 It must be acknowledged that the effect of the residuary clause is bizarre. It operates in such limited circumstances that there must be at least a suspicion that the result of reading the words literally was not what was intended by the deceased. But really the case put by the fourth to seventh defendants amounted to no more than articulating that suspicion. In my view, the clause is simply not ambiguous.
16 Other aids to interpretation are only called into play if there is an ambiguity in the terms of the Will. Here there is no ambiguity.
17 By his originating summons, the plaintiff sought a determination of certain questions. Having looked at the formulation of those questions, it seems to me they may be more advantageously expressed. I will hear the parties in relation to precisely what orders ought be made and as to costs.
7
22
0