Thompson v Sutherland - [2023] WASC 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THOMPSON -v- SUTHERLAND [2023] WASC 206
CORAM:   MASTER SANDERSON
HEARD:   13 FEBRUARY 2023
DELIVERED          :   13 JUNE 2023
PUBLISHED           :   13 JUNE 2023
FILE NO/S:   CIV 1615 of 2022
BETWEEN:   NICHOLAS JAMES THOMPSON as beneficiary of the estate of MARYANNE RUTH THOMPSON
Plaintiff
AND
DOROTHY MAY SUTHERLAND as administrator of the estate of KENNETH RUGBY DARCH
First Defendant
KEVIN KENNETH DARCH as beneficiary of the estate of KENNETH RUGBY DARCH
Second Defendant
MELANIE THOMPSON as beneficiary of the estate of MARYANNE RUTH THOMPSON
Third Defendant
AUBREY KENNETH THOMPSON as beneficiary of the estate of MARYANNE RUTH THOMPSON
Fourth Defendant
DANIEL THOMPSON as beneficiary of the estate of MARYANNE RUTH THOMPSON
Fifth Defendant
DOROTHY MAY SUTHERLAND as beneficiary of the estate of KENNETH RUGBY DARCH
Sixth Defendant

Catchwords:

Wills & probate - Proper construction of 'homemade' will - Turns on own unfortunate facts

Legislation:

Administration Act 1903 (WA)
Property Law Act 1969 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	G D Maher
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	In person
Sixth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Laird Lawyers
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No Appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	In person
Sixth Defendant	:	No appearance

Case(s) referred to in decision(s):

MASTER SANDERSON:

These reasons could be subtitled: 'The curse of the homemade will strikes again'.
By this application, the plaintiff seeks advice as to the proper interpretation of a provision in the will of the late Kenneth Rugby Darch (the deceased). The deceased died on 28 January 2018 leaving three children:
(a)Dorothy May Sutherland - the first and sixth defendant (Dorothy);
(b)Kevin Kenneth Darch - the second defendant (Kevin); and
(c)Maryanne Ruth Thompson (Maryanne).
On 20 November 2020, Maryanne died intestate leaving four children as her next of kin:
(a)Nicholas James Thompson - the plaintiff;
(b)Melanie Thompson - the third defendant;
(c)Aubrey Thompson (also known as Kenneth Thompson) - the fourth defendant; and
(d)Daniel Thompson - the fifth defendant (Daniel).
On 27 December 2019, probate of the deceased's will was granted to Maryanne. Subsequent to Maryanne's death, on 1 June 2021, letters of administration de bonis non administratis were granted to Dorothy. The principal asset of the deceased's estate is a property in Coonabidgee. The plaintiff currently resides in that property.
The clause in the deceased's will which causes the difficulty is what the plaintiff refers to as the 'residue clause'. I will adopt that terminology. The residue clause reads as follows:
I give the residue of my estate not otherwise disposed of to be shared equally between my three children Dorothy May Sutherland, Kevin Kenneth Darch and Maryanne Ruth Thompson. The home to be retained for the use of any or all of my children and is to be disposed of by equal agreement of all surviving parties.
By amended originating summons, the plaintiff contends that upon its proper construction the clause results in:
(a)each of Maryanne, Kevin and Dorothy to receive the residue of the deceased's estate including the property absolutely as tenants in common in equal shares; and
(b)the sentence 'the home to be retained for the use of any or all of my children and is to be disposed of by equal agreement of all surviving parties' is void as an attempt to control the disposition of a gift given absolutely.
In determining this application, I have had regard to an affidavit of the plaintiff dated 14 June 2022 and an affidavit of Gregory Damien Maher dated 7 February 2023. Both of these affidavits were filed in support of the application. I have also had regard to Daniel's affidavit dated 11 October 2022 and Kevin's affidavit of the same date. There is also an affidavit of Dorothy dated 12 October 2022. The plaintiff's counsel notes in his submissions that Dorothy's affidavit attaches a draft deed of settlement discussed between the parties on a without prejudice basis. The plaintiff does not object to that deed being taken into evidence. The third and fourth defendants have given notice of an intention to abide by the court's decision and have not taken an active part in these proceedings.
By way of overall comment as to the affidavit material, there is no evidence before the court from the time the deceased made his will. The defendants have not submitted any evidence on this point and the plaintiff does not recall being present at the time the deceased's will was made. He is also not aware of any discussions which took place prior to the signing of the will. In other words, there is no extrinsic evidence available of events surrounding the making of the deceased's will which might aid in its construction. What the evidence does establish is that prior to the death of the deceased, Maryanne had resided with him to care for him and help maintain the property. The property itself is approximately 5 acres and has a small orchard of fruit trees. In or about November 2015, the plaintiff moved into the property with his wife to assist Maryanne with the deceased's care and with the maintenance of the property. After the deceased's death, Maryanne, the plaintiff and his wife continued to reside in the property.
In my view, there can be no doubt as to the effect of the residue clause. It passes ownership of the property to the three named beneficiaries as tenants in common in equal shares. Once that point is reached, it follows the final sentence of the residue clause must be void. It is inconsistent with the rights of the registered proprietors. It follows then that the interpretation of the will contended for by the plaintiff must be accepted and orders should be made in terms of par 1 of the amended originating process.
There can be no clearer illustration than this case of the folly of a testator making a homemade will. It seems what the deceased intended to do was create some form of life interest in the property for one or other of his children. Any competent lawyer could have drafted a clause which gave effect to this intention. Instead, the deceased drafted an ambiguous clause which has led to confusion and dissent within the family. It has also led to the expense of this litigation. The cost of a professionally drafted will pales in comparison with the legal fees the estate will have to bear as a consequence of this action.
The plaintiff's amended originating process also seeks an order for the sale of the property. A further ancillary order is sought which would allow any of the beneficiaries to bid for the property in the sale process. It is not entirely clear whether the defendants who have taken part in these proceedings oppose that order, or whether, consequent upon the making of the first order, they would be prepared to accept an order for sale. Given those parties are not represented, I have proceeded on the basis the order is opposed.
The plaintiff relies on both s 45 of the Administration Act 1903 (WA) and s 126 of the Property Law Act 1969 (WA). In my view, it is the Administration Act which determines this application. Section 45 of the Administration Act reads as follows:
(1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
(2)Such order shall bind all persons whether sui juris or not.
(3)No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.

This section is in broad and general terms and allows the court to determine any question arising in respect of the administration of a deceased estate. It is clear there is animosity between the beneficiaries. It is unlikely that they will reach any agreement as to what is to be done with the property - not just with respect to whether it should be sold, but if it is not sold, what use is to be made of it. Given the level of animosity, it is appropriate that the parties' interests be separated. There is simply nothing to be gained by allowing the discontent which is apparent from the affidavit material filed to continue to fester. Accordingly, it is appropriate that the order for sale sought by the plaintiff should be made.
In reaching that conclusion, I am mindful that Dorothy is of the view that the plaintiff has allowed the condition of the property to deteriorate. She says, as a consequence, the sale price of the property will be reduced. That may be so. If it is, Dorothy is free to take proceedings against any party whom she sees as responsible for the reduced sale price. But that does not alter the fact that sale of this property is the only alternative and the sooner that occurs the better.
Because of the animosity existing between these parties, the order for sale needs to be detailed. On publication of these reasons, the plaintiff's solicitors should provide all defendants with a copy of orders modelled along orders which would normally be made when sale of a property was ordered under s 126 of the Property Law Act. Within seven days of the provision of those draft orders, the defendants should file written submissions about any aspect of the orders which is not to their satisfaction. I will then determine the final orders as to sale.
The costs of this application ought be paid out of the estate on an indemnity basis.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Court Officer
13 JUNE 2023