Trevor Alan Thompson as executor of the estate of Angela Helen Thompson v Upton - [2021] WASC 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TREVOR ALAN THOMPSON as executor of the estate of ANGELA HELEN THOMPSON -v- UPTON [2021] WASC 158
CORAM:   MASTER SANDERSON
HEARD:   ON THE PAPERS
DELIVERED          :   21 MAY 2021
FILE NO/S:   CIV 1945 of 2020
BETWEEN:   TREVOR ALAN THOMPSON as executor of the estate of ANGELA HELEN THOMPSON
Plaintiff
AND
SARAH LOUISE UPTON
First Defendant
LAURA MARIE UPTON
Second Defendant
TREVOR ALAN THOMPSON
Third Defendant

Catchwords:

Wills - Proper interpretation and construction of clause in will - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Result:

Direction given

Category: B

Representation:

Counsel:

Plaintiff	:	P MacMillan
First Defendant	:	T Pepper
Second Defendant	:	T Pepper
Third Defendant	:	In Person

Solicitors:

Plaintiff	:	Peel Legal Barristers & Solicitors
First Defendant	:	Robertson Hayles Lawyers
Second Defendant	:	Robertson Hayles Lawyers
Third Defendant	:	In Person

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

Re Hewitt [1945] SASR 102

MASTER SANDERSON:

This action concerns the proper interpretation of the will of the late Angela Helen Thompson. Yet again, this matter illustrates the folly of persons making homemade wills. The estate of the deceased is very modest. There is no doubt a good part of the estate will be consumed in a contest over the meaning of what by any measure is a difficult document. It is invariably the case that money spent on having a will professionally drafted is a sound investment.
The background facts are not in dispute. The deceased died on 1 September 2017. As at the date of her death she was married to the third defendant who I will refer to as Trevor. She had two children, Sarah Louise Upton (Sarah) and Laura Marie Upton (Laura). In referring to these individuals by their Christian names I mean no offence.
The deceased made a will dated 3 October 2015. By cl 1 she revokes all previous wills. By cl 2 she appoints Trevor as her executor (the will nominates an alternative executor were Trevor to pre‑decease the deceased - clearly that provision is not relevant). Clauses 3, 4 and 5 of the will then read as follows:
3.SUBJECT to the payment of my just debts, funeral and testamentary expenses and all probate, estate, succession, death and simular duties (State and Federal) payable in all respects of any dispositions contained in this my Will or any codicil thereto, I GIVE DEVISE AND BEQUEATH all the rest and residue of my estate both real and personal whatsoever and wheresoever situate UNTO MY TRUSTEE UPON TRUST AS FOLLOWS:
(a)The property at Lot 209 Ridgeview Terrace, Boyup Brook, in the state of Western Australia, I leave to my children SARAH LOUISE UPTON and LAURA MARIE UPTON, as tenants in common of equal shares.
(b)The property at 27 Vistula Terrance in the said state, I leave to my husband TREVOR ALAN THOMPSON and my children SARAH LOUISE UPTON and LAURA MARIE UPTON, as tenants in common of equal shares. The residence shall not be sold until majority of the residing tenants agree to the action. I wish my children to remain in abode as long as it is deemed reasonable.
(c)My white Hyundai Elantra 2007 Sedan, I leave this vehicle to SARAH LOUISE UPTON.
(d)All my personal effects and jewellery and other items of personal adornment to my husband TREVOR ALAN THOMPSON and my children SARAH LOUISE UPTON and LAURA MARIE UPTON upon my death as tenants in common in equal shares.
(e)My superannuation funds, Australian Super and Mercer Super trust, I do leave to my Husband TREVOR ALAN THOMPSON.
(f)All funds in my bank accounts held at the Commonwealth bank, ING Direct saver account and Community Union Australia Bank to the discretion of the TRUSTEE.
(g)To my sister NATASHA SARINA TINKER I leave the porcelain statue of a boy holding a goose and one at his feet and the china cup, saucer and bread plate with 'ride a cock horse to Banbury cross' written on the cup.
(h)To my daughter LAURA MARIE UPTON I leave the display cabinet with jarrah finish and glass doors in a shape of a quarter circle and all the contents other than what has been stated previously in this will.
(i)To my husband TREVOR ALAN THOMPSON My soft teddy bear collection.
(j)To my children LAURA MARIE UPTON and SARAH LOUISE UPTON I leave all my books.
4.I EMPOWER my Trustee to sell, exchange or otherwise dispose of assets in my estate on such terms as he considers expedient as though he were the absolute beneficial owner.
5.I DIRECT that my Trustee shall be fully indemnified out of my residuary estate and my trustee shall not be liable in any way for any loss whatsoever unless the same is caused by my Trustee's dishonesty or wilful breach of trust.
Two observations may be made at this point. First, there is no residuary clause. There is reference to the residuary estate in cl 5 but it is not apparent what might fall within that residuary estate. Second, cl 4 is difficult to reconcile with the rest of the will. Having made quite specific dispositions in cl 3, cl 4 appears to get the executor to ignore cl 3 entirely. On the face of it at least, it is not possible to reconcile cl 4 and cl 3.
Trevor obtained probate of the will on 20 November 2017. The estate has a value of approximately $511,000. Of that sum $500,000 comprises the Boyup Brook property with an estimated value of $130,000 and the Kelmscott property with an estimated value of $370,000.
As at the date of the deceased's death, Sarah and Laura were in occupation of the Kelmscott property. Notwithstanding Trevor's requests they do so, Sarah and Laura refused to leave. In June 2020 they were threatened with eviction proceedings. They vacated the Kelmscott property in November 2020 and they have now consented to its sale.
This application is brought under s 45 of the Administration Act 1903 (WA). In written submissions, counsel for Sarah and Laura dispute it was necessary for Trevor to seek directions from the court. With respect, that submission is mistaken. This will is by no means clear and Trevor in his capacity as executor of the estate was acting appropriately in seeking directions.
There was no real difference between the parties as to the general principals of testamentary construction. In construing a will a court will ascertain if possible the testator's intention either express or implied. The court is to read the whole of the will before it attempts to ascertain that intention. The relevant intention is ascertained from the words of the will, aided by such facts as were known to the testator at the date of the will which are admissible in interpreting the will.
In construing the words of a will, Australian courts adopt the approach of the testator's intention as opposed to the literal approach. However, a court will not guess at the testator's intentions or make a choice as to that intention because it considers it a better interpretation. Language in a will should not be treated as 'otiose, as wanting in meaning and effect' and disregarded unless the general purpose is violated by its effect or the language it is 'all together impracticable of application': see Re Hewitt [1945] SASR 102, 107.
A court should adopt an interpretation which will not lead to an intestacy or partial intestacy, and will lean towards a construction which preserves rather than destroys gifts under a will. This is sometimes expressed as being a presumption against intestacy.
In interpreting a will, a court will make every effort to reconcile two apparently conflicting provisions in a will rather than ignore one of them or calling either or both of them void for uncertainty. If two parts of a will are mutually inconsistent there is a general rule that the latter clause prevails. The rule is not applied unless every attempt is made to give the whole will a construction such as to render every part of it effective. The rule is applied unless the will makes it clear that the testator intended the first clause to be effective.
It is Trevor's position cl 3(b) of the will is void for uncertainty. Four points are made. First, the clause requires a majority of three beneficiaries being in favour of a sale. If such majority did not eventuate, the gift to Trevor of a one-third interest as tenant in common is postponed indefinitely. Second, the provision impermissibly delegates testamentary direction to the three beneficiaries. Third, provision as to the deceased wishing her children to remain in occupation of the property 'as long as it is deemed reasonable' is so vague as to be void for uncertainty. It expresses no more than a wish on the deceased's part. Finally, cl 4 of the will gives the executor the power to sell estate assets. That provision is clear. It is inconsistent with the limitations sought to be effected pursuant to cl 3(b). As it is a later provision, it should prevail.
Sarah and Laura say that cl 3 is not ambiguous. They have vacated the premises and agreed to its sale and it is therefore possible to give effect to cl 3(b). They submit, at least by implication, that the power given to the executor in cl 4 does not undermine the specific bequests made in cl 3. Furthermore, there is no impediment to the executor giving effect to cl 3. There is no warrant or utility in the executor re‑arranging the distribution of assets as he appears to be empowered to do under cl 4.
Even allowing for the presumption against intestacy, it is my view there is no alternative but to conclude that cl 3(b) is void for uncertainty. Essentially, the points made by counsel for Trevor are unanswerable. When the wide ambit of cl 4 is added in it is simply not possible to give a construction of this will which makes sense.
The consequence of that finding is that there is an intestacy with respect to the Kelmscott property. At par 32 of his written submissions, counsel seeks orders which give effect to the ruling as to intestacy. Counsel for Sarah and Laura did not directly address that question and accordingly, on publication of these reasons, the parties ought confer to see whether this issue can be agreed. On the face of it at least, counsel's proposals are in accordance with the relevant legislation. Further, the plaintiff seeks directions for sale of the property. A minute of proposed orders was lodged on 6 April and those orders appear appropriate. On publication of these reasons, counsel for Sarah and Laura ought to give consideration to the minute. If no agreement can be reached, an alternative minute should be provided.
In cases such as this, it is usual for all of the costs of the parties to be paid out of the estate. There appears to be no reason why such an order should not be made. If any party wishes to make submissions on costs, that should be done within 7 days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to Master Sanderson
21 MAY 2021