Tyrone Gerard Hosking as executor of the will of Mervyn Gurney v Hosking

[2024] WASC 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TYRONE GERARD HOSKING as executor of the will of MERVYN GURNEY -v- HOSKING [2024] WASC 200

CORAM:   ACTING MASTER MCDONALD

HEARD:   30 AUGUST 2023

DELIVERED          :   31 MAY 2024

FILE NO/S:   CIV 1240 of 2023

BETWEEN:   TYRONE GERARD HOSKING as executor of the will of MERVYN GURNEY

Plaintiff

AND

ROBIN JENNIFER HOSKING

First Defendant

ELVIS PAUL BIRD as executor of the will of VALERIE ANNE GURNEY

Second Defendant

Catchwords:

Probate - Wills and estates - Direction as to proper construction - 'Equal shares' - Evidence of testator's intention - Presumption against partial intestacy

Legislation:

Administration Act 1903 (WA)
Wills Act 1970 (WA)
Evidence Act 1906 (WA)

Result:

Directions as to proper construction of will given

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr J C H Lee
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Jac Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision:

Muir v Winn [2009] NSWSC 857

Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998)

Parnell v Hinkley [2007] WASC 102

Perrin v Morgan [1943] AC 399

Pringle v Pringle [2010] WASC 206

Re Leaver [1997] 1 Qd R 55

Re Rose Deceased [1962] QWN. 4

Rentoul v Rentoul [1944] VLR 205; (1944) 50 ALR 372

Sidle v Queensland Trustees Ltd [1915] HCA 48; (1915) 20 CLR 557

Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [2018] WASC 91

ACTING MASTER MCDONALD:

Introduction

1. The late Mervyn Gurney (the Deceased) died on 13 September 2022.  The Deceased left a will dated 11 January 2022 appointing the plaintiff, Tyrone Gerard Hosking, as the sole executor and trustee (the 2022 Will).[1]  Probate was granted on 15 December 2022.[2]

   [1] Affidavit of Tyrone Gerard Hosking sworn on 9 March 2023 [42] (First Hosking Affidavit).

   [2] First Hosking Affidavit [3], Annexure TGH 01.

2. In his capacity as executor and trustee of the estate of the Deceased, Mr Hosking has applied for a direction, pursuant to s 45 of the Administration Act 1903 (WA), that the proper construction of cl 5 of the 2022 Will is such that the Deceased intended to devise his residuary estate to Valerie Ann Gurney and Robin Jennifer Hosking as joint tenants.

3. In the alternative, Mr Hosking applies for an order, pursuant to s 50(1) of the Wills Act 1970 (WA), that the 2022 Will be rectified by the deletion of the words 'in equal shares' in cl 5.

4. For the reasons which follow, I am satisfied that cl 5 of the 2022 Will should be construed to mean that the Deceased's residuary estate was to be left to Ms Gurney and Ms Hosking as joint tenants.

Evidence relied upon by the plaintiff

1. The plaintiff relies upon the following affidavits:

   (a)Tyrone Gerard Hosking sworn 9 March 2023;

   (b)Tyrone Gerard Hosking sworn 18 April 2023;

   (c)Tyrone Gerard Hosking sworn 19 May 2023;

   (d)Tyrone Gerard Hosking sworn 20 July 2023; and

   (e)Jade Angelique Lucas sworn 10 August 2023.

2. On 30 August 2023 Ms Lucas gave oral evidence in addition to her affidavit.  Neither party sought to cross-examine her.

Factual background

1. The factual background is not in dispute and is compiled from the evidence relied upon by the plaintiff. 

2. The Deceased was born on 2 April 1948.  He was married to Maureen June Barr on 4 February 1967 and they had three children: Brian Anthony Gurney, Joanne Catherine Patten and Beverley Ann Pasini.  The Deceased was estranged from all of his children, and they had not spoken to each other for many years.[3] 

   [3] First Hosking Affidavit [6] - [9].

3. The Deceased married Valerie Ann Bird on 15 September 1990, upon which marriage she became Valerie Gurney.[4]  Ms Gurney had been previously married, and at the time of her marriage to the Deceased, had two children: Elvis Paul Bird and Jason Bird.[5]

   [4] First Hosking Affidavit [7].

   [5] First Hosking Affidavit [18].

4. The Deceased and Ms Gurney had no children together and were divorced early in 2016.[6] 

   [6] First Hosking Affidavit [11] - [12].

5. The Deceased subsequently made a will with the Public Trustee of Western Australia, executed on 22 March 2016 (the 2016 Will).[7] 

   [7] First Hosking Affidavit [36] - [37].

6. Despite the fact that they were divorced, Ms Gurney occasionally visited the Deceased to bring him shopping and assist him around the home.[8] 

   [8] First Hosking Affidavit [13].

7. Ms Hosking (the Deceased's cousin) and Mr Hosking (Ms Hosking's husband) also visited the Deceased from time to time at his unit in Baldivis (the Deceased's home).[9] 

   [9] First Hosking Affidavit [16].

8. According to Mr Hosking, Ms Gurney had emphysema, and became unwell whenever she went to the Deceased's home.[10] 

   [10] First Hosking Affidavit [14].

9. Sometime prior to Christmas in December 2021, the Deceased telephoned Mr Hosking and asked him to be the executor of his will.  The Deceased told Mr Hosking that he had asked Ms Gurney to be the executor, but she had declined.  Mr Hosking agreed to the Deceased's request.[11]

   [11] First Hosking Affidavit [22].

10. On 11 January 2022, Mr and Ms Hosking went to the Deceased's home to discuss the Deceased's estate.  When they arrived, Mr Hosking learned that the Deceased had earlier that morning attended upon his solicitors and executed the 2022 Will.[12]

    [12] First Hosking Affidavit [23], [25].

11. The Deceased died on 13 September 2022. 

12. The Deceased's estate comprised of his unencumbered home, and a modest bank balance.[13] 

    [13] First Hosking Affidavit [34].

13. Ms Gurney died on 7 December 2022. 

14. Ms Gurney's causes of death were colorectal cancer (diagnosed two weeks before her death) and pulmonary embolus (diagnosed one week before her death).[14]  There is no evidence as to whether or not Ms Gurney was aware of either of her conditions prior to diagnosis. 

    [14] First Hosking Affidavit, Annexure TGH 04.

15. As at the date of Ms Gurney's death, the Deceased's estate was unadministered. 

16. Probate of the 2022 Will was granted to Mr Hosking in common form on 15 December 2022.[15]

    [15] First Hosking Affidavit, Annexure TGH 01.

The 2016 Will

1. Relevantly, pursuant to cl 8 of the 2016 Will, the Deceased directed that the Public Trustee should hold all of the Deceased's estate not otherwise disposed of by the 2016 Will on trust, subject to payment of all debts, funeral and testamentary expenses, and then:

   … hold the balance then remaining ('[my Residuary Estate') for such of my former wife VALERIE ANN GURNEY and my cousin ROBIN JENNIFER HOSKING who survive me and if more than one in equal shares.[16]

   [16] First Hosking Affidavit, Annexure TGH 03.

2. Further, by cl 9 of the 2016 Will, it was provided that:

   If the preceding provisions for the distribution of my Residuary Estate do not take effect, I give my Residuary Estate to such of the children of my daughter BEVERLEY ANN PASINI and the children of my son BRIAN ANTHONY GURNEY and the children of my daughter JOANNE CATHERINE PATTEN who survive me and attain the age of 18 years and if more than one in equal shares.[17]

   [17] First Hosking Affidavit, Annexure TGH 03.

The 2022 Will

1. The 2022 Will was prepared and engrossed by Coast Wills & Estate Law Mobile Legal Services and witnessed by Jade Angelique Lucas (a solicitor) and Leone Lucas (a retiree).[18]

   [18] First Hosking Affidavit [40].

2. By cl 2 of the 2022 Will, the Deceased appointed Mr Hosking as the sole executor.[19]

   [19] First Hosking Affidavit [42].

3. Apart from some specific gifts, the dispositive provisions of the 2022 Will are cl 5 and cl 6.  By cl 5, the Deceased directed that the executor should hold the residue of his estate on trust, and, subject to payment of all debts and funeral and testamentary expenses:

   … give to VALERIE and ROBIN in equal shares as joint tenants.[20]

   [20] First Hosking Affidavit [43.1].

4. Clause 6 provided:

   In the event that both VALERIE and ROBIN die before attaining a vested interest, then I give my estate to the children of my daughter BEVERLEY ANN PASINI, the children of my son BRIAN ANTHONY GURNEY and the children of my daughter JOANNE CATHERINE PATTEN in equal shares as joint tenants upon attaining the age of 18 years.[21] 

   [21] First Hosking Affidavit [43.2].

Proceedings

1. The proceedings were commenced on 12 March 2023.  The relief sought was stated as follows:[22]

   1. On the proper construction of the Will of the late Mervyn Gurney late of 254, 831 Mandurah Road, Baldivis in the State of Western Australia ('Testator') dated 11th day of January 2022 ('the Will'), the Testator intended by clause 5 of the Will to devise his residuary estate to Valerie Ann Gurney ('Valerie') and Robin Jennifer Hosking ('the Defendant') as joint tenants, and that in the event that has happened Valerie having died before the final distribution of the residuary estate of the Testator, the Defendant has the entire undivided interest in the residuary estate of the Testator.  Accordingly, Plaintiff as executor would be justified in dividing and distributing the entire undivided interest in the residue estate of the Testator to Defendant thereupon, the testamentary gift by the Testator to Defendant will be complete.

   2. In the alternative, pursuant to section 50(1) of the Wills Act 1970 (WA), the Will of the late Mervyn Gurney late of 254, 831 Mandurah Road, Baldivis in the State of Western Australia dated 11th day of January 2022, be rectified by the deletion of the words 'in equal shares' appearing in clause 5 of the said Will.

   3.A certified copy of these orders be attached to the Grant of Probate and the plaintiff produce the original of Grant Number PRO/8118/2022 for that purpose.

   …

   [22] Originating Summons filed on 12 March 2023, 2.

2. Mr Hosking deposed that cl 5 of the 2022 Will was, in his view, ambiguous.  As Ms Hosking is his spouse, he wished to exercise caution in his distribution of the Deceased's estate, and to ensure that any distribution reflected the Deceased's testamentary intention.[23] 

   [23] First Hosking Affidavit [49] - [50].

3. The first defendant, Ms Hosking, filed an appearance, together with a notice of intention to abide, on 29 March 2023.

4. On 24 May 2023, Registrar Nelson ordered, relevantly, that Elvis Paul Bird, as executor of the will of Valerie Ann Gurney, be joined as the second defendant to the proceedings.  An amended originating summons was filed on 24 May 2023 and subsequently served on the second defendant.  The second defendant has not filed an appearance in the matter, but it is established by the evidence in the proceedings that he is aware of the proceedings.[24]

   [24] Affidavit of service of writ of summons of Glenn Martin Fowler sworn 6 June 2023 [1] - [2].

Statutory framework and legal principles

Construction

1. The plaintiff's application for a direction as to the construction of cl 5 of the 2022 Will is made pursuant to s 45(1) of the Administration Act, which provides:

   45.Court may settle all questions arising in administration

   (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. The object of construing a will is to ascertain the testator's intention as expressed in the will itself.  In a frequently cited passage from Perrin v Morgan,[25] Viscount Simon LC observed:

   [T]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended.  The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator.

   [25] Perrin v Morgan [1943] AC 399, 406.

3. The Wills Act contains various provisions which govern the construction of a will. Section 26(1) of the Wills Act relevantly provides:

   26.General rules of construction

   (1)Unless the contrary intention appears by the will —

   (a)the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;

4. In Pringle v Pringle,[26] Kenneth Martin J referred with approval to the following observations of Master Newnes (as he then was) in Parnell v Hinkley:[27]

   The Will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made.  The language employed in the Will should be read in the sense which the testator appears to have attached to the expressions used, albeit it is not to be construed on the basis of what it is suspected the testator intended, other than as expressed in the terms of the Will:  Fell v Fell (1922) 31 CLR 268 at 273; WA Trustee, Executor & Agency Co Ltd v Birkbeck (1921) 23 WALR 27 at 29, 31 - 32; Perrin v Morgan [1943] AC 399 at 406, 414 - 415, 416, 420; Borlaug v The University of Western Australia [2001] WASCA 425 at [15]. The overriding consideration is the language used by the testator and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed: Inre Crocombe (decd) [1949] SASR 302 at 315.

   …

   There is a presumption against intestacy, namely that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy:  Fell v Fell (supra) at 275 - 276, 284; Hamersley v Newton (2005) 30 WAR 568 at 583. But the presumption against intestacy 'is not a strong presumption': Marks v Pope [2001] NSWSC 105 at [17]. A court should not lean too heavily against a construction that produces an intestacy and, cannot, in order to avoid an intestacy, misconstrue the language of the will:  In re Edwards; Jones v Jones [1906] 1 Ch 570 at 574; Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922 at 929.

   [26] Pringle v Pringle [2010] WASC 206 [25].

   [27] Parnell v Hinkley [2007] WASC 102 [12], [15]

5. Also relevant to the construction of wills is s 28A of the Wills Act, which provides:

   28A.Use of extrinsic evidence to clarify will

   (1)In proceedings to construe a will, evidence, including evidence of the testator's intention, is admissible to the extent that the language used in, or other content of, the will renders the will or any part of the will —

   (a)meaningless; or

   (b)ambiguous on the face of the will; or

   (c)ambiguous in the light of the surrounding circumstances.

   (2)Evidence of a testator's intention is not admissible to establish any of the circumstances referred to in subsection (1)(c).

   (3) Nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.

   (4) This section applies to the will of any person dying on or after the day on which section 22 of the Wills Amendment Act 2007 comes into operation, whether the will was made or executed before, on or after that day, but does not apply to the will of a person who died before that day.

6. Section 28A is said to reflect the so-called 'armchair principle' at common law. In Mustard v Oikonomov,[28] Owen J said:

   This principle allows the court to admit extrinsic evidence about the testator's property, family, acquaintances and friends for the purpose of putting the court in a position to read the will as the testator would have read it.  That is, the court will allow evidence to be admitted of factual circumstances surrounding the testator when the will was made:  Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65. Under this approach, evidence as to the testator's intentions is not admissible. If after the admission of this factual evidence the words still remain ambiguous, then (except in the case of equivocation) no further evidence will be admitted and the disposition will be void for uncertainty.

   [28] Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998) 7.

7. In undertaking the task of construing a will, the court does not consider passages or clauses in isolation but construes them having regard to the terms of the will as a whole.[29]

Rectification

[29] Sidle v Queensland Trustees Ltd [1915] HCA 48; (1915) 20 CLR 557, 560 – 561 (Isaacs & Powers JJ); Muir v Winn [2009] NSWSC 857 [3] - [4] (Bryson AJ).

1. The plaintiff's alternative application for an order rectifying the 2022 Will is made pursuant to s 50 of the Wills Act, which provides:

   50.Court may rectify will

   (1)The Court may make an order rectifying a will to carry out the intentions of a deceased testator if the Court is satisfied that the will does not carry out the testator's intentions because —

   (a)a clerical error was made; or

   (b)the will does not give effect to the testator's instructions.

   (2)Any application for an order under this section must be made within 6 months after the death of the testator.

   (3)The Court may extend the period of time for making an application, even if the original period has expired, but not if the final distribution of the estate has been made.

   (4)A certified copy of an order under this section must be attached to the original will and to the probated copy of the will.

   (5)Subject to subsection (2), the power conferred by subsection (1) extends to the will of a person who died before the commencement of section 24 of the Wills Amendment Act 2007.

2. In Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder,[30] Pritchard J (as her Honour then was) said of s 50(1) of the Wills Act:

   … the Court may only rectify a will if it is satisfied that the will does not carry out the testator's intentions either because a clerical error was made, or because the will does not give effect to the testator's instructions.  As Pagone J explained in ANZ Trustees Ltd v Hamlet, a case concerning the Victorian equivalent of s 50(1), the Court's power to rectify is not to be used as an alternative to properly construing a will, the meaning of which is unclear. Rather, it is a precondition to the rectification of a will that the Court concludes that, on its proper construction, the will does not carry out the testator's intentions.

   The task for the Court, therefore, is to first ascertain what the meaning of the will is, on its proper construction, and then to ascertain the testator's intentions at the time of making the will.  Rectification will be permitted if the former does not conform with the latter.

   [30] Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [2018] WASC 91 [22] - [23].

Plaintiff's submissions

1. The plaintiff submitted that there were six factors supporting the construction of the 2022 Will in favour of the relief sought:[31]

   [31] ts 7 - 9.

   (a)the formal execution of the 2022 Will establishes that the Deceased did not intend that his estate would be distributed on intestacy;

   (b)on the 2022 Will as a whole, it is plain the Deceased planned to deal with the whole of his estate (with the exception of specific gifts) by cl 5 and cl 6:

   (i)the structure of the 2022 Will supports a conclusion that the Deceased intended two divisions of people to take the residuary estate, namely Ms Gurney and Ms Hosking (cl 5) and the Deceased's living grandchildren (cl 6);

   (ii)the Deceased directed his mind that there should be both a primary and secondary division in the residuary gift, with the divisions being mutually exclusive;

   (c)the absence of an accrual or substitution clause strongly suggests it was intended for the principle of survivorship to operate irrespective of when one of the two legatees were to die;

   (d)at the time the Deceased made the 2022 Will:

   (i)it is likely that the Deceased knew of Ms Gurney's illness;

   (ii)Ms Gurney had declined to be the Deceased's executor;

   (iii)the Deceased was estranged from his children and asked that they not be notified when he died;

   (e)the evidence of Ms Lucas, the legal practitioner who received the Deceased's instructions; and

   (f)the Deceased had consistently made wills excluding his children from benefitting from his estate.

1. The plaintiff also submitted that two letters written by Ms Lucas and annexed to the affidavit of Tyrone Gerard Hosking sworn on 18 April 2023 as annexures TGH 02 and TGH 04 are admissible pursuant to s 79C of the Evidence Act 1906 (WA). I accept that submission, although those letters add little to the evidence of Ms Lucas.

Disposition

Construction issue

1. In Re Leaver,[32] Derrington J acknowledged that there was a general principle that:

   … under a will the Court will in case of doubt generally find against a joint tenancy and in favour of a tenancy in common because of the inconvenience and possible unfairness that attends a joint tenancy, particularly during the minority of any beneficiary; and it will give effect to the slightest indications that a tenancy in common is intended.  This indication is usually found in the use of the word 'equally'.  See Rentoul v. Rentoul [1944] V.L.R. 205; Re Rose Deceased[1962] Q.W.N. 4.

   [32] Re Leaver [1997] 1 Qd R 55, 57.

2. In Rentoul v Rentoul,[33] Gavan Duffy J was called upon to construe the words 'equally as joint tenants' in a will by which the testator devised all of his property to his five sons.  In concluding 'with some doubt' that the word 'equally' was the governing term in the will, and thus that the gift to the named persons was as tenants in common, his Honour gave some significance to the fact that the will was to be looked upon as a 'home-made will'.  In those circumstances, his Honour held, there was less reason to act on the technical meaning of the words 'joint tenants'.[34]

   [33] Rentoul v Rentoul [1944] VLR 205; (1944) 50 ALR 372, 205 ‑ 206.

   [34] Rentoul v Rentoul [1944] VLR 205; (1944) 50 ALR 372, 206.

3. Similarly, in Re Rose Deceased, Gibbs J considered the construction of the words 'in equal shares as joint tenants' in the context of a will in which the testator gave the whole of his estate to his daughter and her two infant children on such terms.  His Honour said:

   It has long been settled that words indicating an intention to divide the property are inconsistent with the idea of a joint tenancy and that a gift to several persons equally creates a tenancy in common unless the context of the will shows that a joint tenancy is intended (see Jarman on Wills, 8th ed., pp. 1793-4).[35]

   [35] Re Rose Deceased[1962] QWN. 4, 9.

4. Notwithstanding that in that case, the will had been prepared with legal assistance, Gibbs J determined that the words 'in equal shares' should be regarded as providing a clear indication that a tenancy in common was intended, and the words 'as joint tenants' as having been used without a proper appreciation of their significance. 

5. In the present case, the 2022 Will was prepared with the legal assistance of Ms Lucas.  As such, despite their inconsistency with the words 'in equal shares', the meaning of the words 'joint tenants' cannot be readily dismissed. 

6. Clause 5 must not be read in isolation from cl 6, which provides for the Deceased's grandchildren to take the residuary, but only in the event that both Ms Gurney and Ms Hosking have died before attaining a vested interest. 

7. On the face of it, therefore, depending on the interpretation of cl 5, the 2022 Will did not account for the situation in which only one of Ms Gurney or Ms Hosking died before attaining a vested interest. 

8. In those circumstances, I am satisfied that the 2022 Will is ambiguous on its face, and extrinsic evidence, including evidence of the Deceased's intention, is admissible pursuant to s 28A of the Wills Act.

Evidence as to the Deceased's intention

1. The uncontested evidence is that Ms Lucas attended on the Deceased at the Deceased's home on 7 December 2021, and she took his instructions for the making of the 2022 Will.[36]  While the appointment was arranged by Ms Gurney, Ms Gurney was not present while the Deceased provided his instructions to Ms Lucas.

   [36] Affidavit of Jade Angelique Lucas sworn 10 August 2023 [1] ‑ [2] (Lucas Affidavit).

2. The Deceased told Ms Lucas that:[37]

   (a)although he and Ms Gurney were divorced, they maintained a very close relationship, and she visited him consistently and regularly and helped him with tasks;

   (b)while he and Ms Gurney both had children from previous relationships, they did not have children together;

   (c)he had no contact with his children and he had not had a relationship with them in about 35 years;

   (d)he did not want his children to benefit under his will;

   (e)he was not close with Ms Gurney's children;

   (f)he was very sick, and it was important that he had a new will in place, as he thought there was a chance he might die soon.

   [37] Lucas Affidavit [7] - [13].

3. The Deceased did not tell Ms Lucas that Ms Gurney was sick and Ms Lucas was unsure whether the Deceased knew that Ms Gurney was sick or not.[38] 

   [38] Lucas Affidavit [15] - [16].

4. Ms Lucas understood that the Deceased wanted to change the 2016 Will as he no longer wanted the Public Trustee to be in charge of the distribution of his estate.[39]

   [39] Affidavit of Tyrone Gerard Hosking sworn 18 April 2023, Annexure TGH 02, 9 (Second Hosking Affidavit).

5. The Deceased told Ms Lucas he wanted to give the residue of his estate to Ms Gurney and Ms Hosking equally.[40] 

   [40] Lucas Affidavit [19].

6. When Ms Lucas asked what the Deceased would like to happen to Ms Gurney's share of the residue of his estate if she died before she received it, he said he wanted Ms Gurney's share to go to Ms Hosking.[41]  When Ms Lucas asked the Deceased what he would like to happen to Ms Hosking's share of the residue of his estate if she died before she received it, the Deceased told Ms Lucas that he wanted Ms Hosking's share to go to Ms Gurney.[42]

   [41] Lucas Affidavit [20].

   [42] Lucas Affidavit [21].

7. Ms Lucas also asked what the Deceased would like to happen to the total of the residue of his estate if both Ms Gurney and Ms Hosking died before receiving their shares, and the Deceased said that, in the circumstances, he wanted the residue of his estate to go to his grandchildren equally.[43] 

   [43] Lucas Affidavit [22].

8. Ms Lucas considered the Deceased's instructions to be very clear.[44] 

   [44] Lucas Affidavit [24].

9. Ms Lucas prepared a draft of the 2022 Will and posted it to the Deceased.  The Deceased later telephoned Ms Lucas to say that he approved of the draft.  Ms Lucas subsequently attended at the Deceased's home on 11 January 2022 with Leone Lucas and they witnessed the execution of the 2022 Will.[45]

   [45] Second Hosking Affidavit, Annexure TGH 02, 8.

10. As to the concluding words of cl 5 of the 2022 Will, Ms Lucas said, in oral evidence:

    I can guarantee you [the Deceased's] instructions were that he would like it to go as joint tenants.  I acknowledge that the word 'equally' was probably superfluous.  I didn't mean in any way to sever that tenancy.  I am 100 per cent sure that he didn't mean for it to be tenants in common.[46]

    [46] ts 5.

11. Later, on 11 January 2022, when Mr and Ms Hosking attended at the Deceased's home, the Deceased showed Mr Hosking a copy of the 2022 Will, and told Mr Hosking that he did not want his children to inherit any part of his estate and asked Mr Hosking not to notify them when the Deceased died.[47]  The Deceased also told Mr Hosking that he left all his estate to Ms Gurney and Ms Hosking in equal shares, and if both of them died, then he would give it to the grandchildren.[48] 

    [47] First Hosking Affidavit [25] - [27].

    [48] First Hosking Affidavit [28].

12. Mr Hosking did not ask the Deceased how he wished to devise his estate if Ms Gurney predeceased Ms Hosking.[49] 

Conclusion as to the Deceased's intention

[49] First Hosking Affidavit [29].

1. The evidence, particularly that of Ms Lucas, is all to the effect that it was the words 'as joint tenants', and not 'in equal shares', which were intended by the Deceased to operate as the governing words in cl 5 and, if it applied, cl 6. 

2. The 2016 Will supports this conclusion.  In the 2016 Will, cl 8 and cl 9 were the principal dispositive clauses.  Clause 8 provided that Ms Gurney and Ms Hosking were to take the Deceased's residuary estate 'in equal shares'.[50]  In the event that 'the preceding provisions for the distribution of [the Deceased's] Residuary Estate do not take effect', cl 9 provided for the residuary estate to pass to the Deceased's grandchildren who survived him and attained the age of 18 years and if more than one 'in equal shares'.[51]

   [50] First Hosking Affidavit, Annexure TGH 03.

   [51] First Hosking Affidavit, Annexure TGH 03.

3. In circumstances in which Ms Lucas was plainly made aware of the 2016 Will by the Deceased, the addition of the words 'as joint tenants' in both cl 5 and cl 6 in the 2022 Will, and the words 'in the event that both [Ms Gurney] and [Ms Hosking] die before attaining a vested interest' in cl 6 strongly support the inference that the Deceased intended to make clear that he desired Ms Gurney and Ms Hosking, or whomever of Ms Gurney or Ms Hosking was still living, to benefit from his estate, and that it was only if neither still lived were the Deceased's grandchildren to benefit. 

4. I do not accept that the evidence is such as to demonstrate that the Deceased was aware, at any time, of Ms Gurney's terminal illness.  Her death certificate suggests that she herself did not become aware of her terminal illness until well after the Deceased died.  While she may have had emphysema, that was not a cause of her death and is not recorded on her death certificate as a contributing condition. 

5. I also do not consider that anything can be inferred as to Ms Gurney's illness or anyone's knowledge of it from the fact that Ms Gurney declined the Deceased's request to be his executor.

6. Notwithstanding these findings, I am satisfied that the presumption against partial intestacy still operates to support a construction of the 2022 Will which creates a joint tenancy rather than interests as tenants in common. 

7. The making of the 2016 Will and the 2022 Will constituted evidence that the Deceased did not intend to die intestate.  Further, the evidence is to the effect that the Deceased very clearly expressed a strong desire for his children not to benefit from his estate.  That was, as the plaintiff submitted, a consistent theme of the 2016 Will and the 2022 Will.  Indeed, the Deceased did not even want his children notified of his death. 

8. It would therefore be highly unlikely that he intended that, in the event that one of Ms Gurney or Ms Hosking were to die before attaining a vested interest, a partial intestacy would arise granting his children an interest in his estate. 

9. Accordingly, in my view it was plainly the intention of the Deceased that Ms Gurney and Ms Hosking take the residuary estate of the Deceased as joint tenants, and that if one of them were to die before attaining a vested interest, the survivor was to inherit the entirety of the residuary estate. 

Conclusion on the construction issue

1. Having regard to the overwhelming evidence as to the Deceased's intention, I am satisfied that it is capable of resolving the ambiguity which appears on the face of the 2022 Will. 

2. The words 'in equal shares' in cl 5 are superfluous and potentially misleading.  In the present case, I do not consider that they should be regarded as creating a tenancy in common. 

3. I am satisfied in the present case that cl 5 should be construed to mean that the Deceased's residuary estate was to be left to Ms Gurney and Ms Hosking as joint tenants.

Rectification

1. In light of my finding on the construction issue, it is unnecessary for me to consider any rectification of the 2022 Will. 

Orders

(1) On the proper construction of the will of the late Mervyn Gurney late of 254, 831 Mandurah Road, Baldivis in the State of Western Australia (Testator) dated 11th day of January 2022 (the Will), by clause 5 of the Will the Testator devised his residuary estate to Valerie Ann Gurney (Valerie) and Robin Jennifer Hosking (the first defendant) as joint tenants, and that, Valerie having died before the final distribution of the residuary estate of the Testator, the first defendant takes the entire undivided interest in the residuary estate of the Testator.

(2)The plaintiff as executor would be justified in distributing the entire undivided interest in the residue estate of the Testator to the first defendant, upon which the testamentary gift by the Testator to the first defendant will be complete.

(3) A certified copy of these orders be attached to the Grant of Probate and the plaintiff produce the original of Grant Number PRO/8118/2022 for that purpose.

(4) Costs of this application be paid out of the estate of the Testator.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LR

Associate to Acting Master McDonald

31 MAY 2024