William Frederick Eccles as Executor of the Will of Cecilia Lee Che Veal (dec) v The Salvation Army
[2013] WASC 142
•23 APRIL 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WILLIAM FREDERICK ECCLES as Executor of the Will of CECILIA LEE CHE VEAL (dec) -v- THE SALVATION ARMY [2013] WASC 142
CORAM: EM HEENAN J
HEARD: ON THE PAPERS
DELIVERED : 23 APRIL 2013
FILE NO/S: CIV 2923 of 2012
MATTER :The Estate of Cecilia Lee Che Veal
and
An application pursuant to s 28A of the Wills Act 1970
BETWEEN: WILLIAM FREDERICK ECCLES as Executor of the Will of CECILIA LEE CHE VEAL (dec)
Plaintiff
AND
THE SALVATION ARMY
First DefendantWORLD VISION AUSTRALIA
Second DefendantTHE ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA
Third DefendantTHE OWNERS OF STRATA PLAN 3557
Fourth Defendant
Catchwords:
Wills - Construction - Misdescription of residuary beneficiary - Admissibility of extrinsic evidence - Principles of construction - Charitable gift - No application of the doctrine of cyprès - No occasion for approval of scheme under Charitable Trusts Act 1962 (WA)
Legislation:
Administration Act 1903 (WA)
Charitable Trusts Act 1962 (WA)
Non-Contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Trustees Act 1962 (WA)
Wills Act 1970 (WA)
Result:
Declaration of identity of intended beneficiary and authorisation to distribute
Category: B
Representation:
Counsel:
Plaintiff: No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff: Solomon Avery
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404
Coorey v Coorey (Unreported, NSWSC, 22 February 1986)
Faithfull v Pine [2012] WASC 75
Hatzantonis v Lawrence; Cox v Lawrence [2003] NSWSC 914
Helen Rowena O'Brien as Executor of the Will of Jeffrey Charles Hogan v Warburton [2012] WASC 82
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Re Taylor; Taylor v Tweedie [1923] 1 Ch 99
Taylor v Princess Margaret Hospital for Children Foundation Inc [2012] WASC 83
Thomson v Thomson [2008] VSC 375
Towns v Wentworth (1858) 11 Moo PCC 526, 14 ER 794
EM HEENAN J: Cecilia Lee Che Veal died on 22 February 2012. Probate of her last will dated 2 March 2011 was granted by this court on 25 June 2012 to the plaintiff, William Frederick Eccles, the sole executor appointed.
By that will, after providing for the payment of funeral and testamentary expenses and all other debts, and providing specific legacies to each of her five stepchildren, the testatrix provided for the disposition of her entire residuary estate as follows:
The remainder of my estate to be divided equally between: The Salvation Army, World Vision Australia, Volunteer Fire Brigade, The Association For The Blind of Western Australia and the Lynwood Body Corporate Strata Plan 3557.
At the time of her death Mrs Veal was a widow aged 76 years. There were no children of her marriage to her late husband but there were five children of his previous marriage, who were the specific legatees. The amended statement of assets and liabilities filed in connection with the application for the grant of probate under r 9B of the Non-Contentious Probate Rules shows that the net value of the deceased's estate is a little more than $2,130,000.
The issue presented by this will arises because there is no entity or other body which can be identified as answering the description 'Volunteer Fire Brigade' as named as one of the five residuary beneficiaries. The executor is seeking directions from the court as to the efficacy of that residuary bequest and, if it is efficacious, the identity of the beneficiary. Extrinsic evidence, which I am satisfied is admissible on this issue, shows that there is an organisation known an 'Fire & Emergency Services of Western Australia' which co‑ordinates, assists, directs and supports the many individual local volunteer fire brigades which exist in various rural and semi‑rural areas for the most part as unincorporated associations.
By originating summons issued on 14 November 2012 the executor is seeking orders and directions as follows:
1.That the will of Cecilia Lee Che Veal be construed so that the reference in the Will to the words 'Volunteer Fire Brigade' be read as 'Fire & Emergency Services of Western Australia for the purpose of Volunteer Fire Service Brigades'; and
2.That the Plaintiff's costs of the application be paid out of the estate of Cecilia Lee Che Veal deceased.
This originating summons does not, as required by the Rules of the Supreme Court O 58 r 14(5), specify a section of the Act under which the application is made other than by referring to s 28A of the Wills Act which, although relevant, is not the empowering provision. Nevertheless, there is no doubt of the power of the court to determine this matter. The statutory power to do so is conferred by s 92 of the Trustees Act, s 45 of the Administration Act, s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) and RSC O 58 r 2 and r 10.
As for s 28A, the Wills Act 970 provides that, in addition to extrinsic evidence which may otherwise be admissible at law on any occasion when it is necessary to construe a will, in such proceedings 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; (b) ambiguous on the face of the will; or (c) ambiguous in light of the surrounding circumstances.
Subject to some exceptions which do not apply in the present case, a will is to be construed as if it had been executed immediately before the death of the testator ‑ Wills Act s 26(1)(a) - and at common law extrinsic evidence as to the meaning of a term of phrase in a will is admissible if that language is ambiguous on its face or in the light of the surrounding circumstances ‑ see Edelman J in Taylor v Princess Margaret Hospital for Children Foundation Inc [2012] WASC 83 [15].
The general rule is that a court of construction will determine a testator's intentions from the terms of the will itself. The intricacies of the rules relating to the admissibility of extrinsic evidence on an issue of construction are extensive and are found in the leading texts such as Theobold On Wills (17th ed, 2010) 263 ‑ 273; Williams On Wills (9th ed, 2008) 606 ‑ 623; Halsbury's Laws Of England (5th ed) vol 102, pars 192 ‑ 265, and D M Haines QC, Construction of Wills in Australia (2007) 5.14 ‑ 5.21. These demonstrate that in cases of ambiguity, uncertainty, imprecision or demonstrable error or mistake it is permissible to receive extrinsic evidence as to the sense or meaning of terms used by the testator or any particular meaning which he or she may have been accustomed to employ when referring to particular places, things or persons, but that such evidence cannot be used to contradict provisions in the will which are otherwise clear. As is apparent from the issue which has arisen in this case, the question for consideration is to identify and apply accepted rules of construction to an instance where it can safely be concluded that this testatrix used a description of one of the residuary beneficiaries which is erroneous and imprecise but where, nevertheless, it is apparent that she had a specific dispositive intention in mind for a body or group of bodies of persons in existence both at the time when the will was made and when it came into effect.
There are other issues which also need to be addressed. If no specific meaning can be given to this part of the residuary bequest of the testatrix because it is not possible to identify the beneficiary whom the testatrix had in mind, either from the will or from extrinsic evidence, two possibilities arise. The first is that that the residuary gift fails because it is uncertain and is, therefore, of no effect, so that the residuary estate is distributed among the four remaining named residuary beneficiaries rather than five. The second possibility is that, on the hypothesis of uncertainty of this residuary bequest, the will as a whole still demonstrates that this ineffective gift is charitable and for that reason is saved from invalidity and may be given effect in accordance with a scheme prepared in accordance with the provisions of the Charitable Trusts Act 1962 (WA). This would be so regardless of whether the original ineffective gift demonstrated a general charitable intention or only a particular charitable intention ‑ see generally Edelman J in Taylor v Princess Margaret Hospital For Children Foundation (Inc) at [55] ‑ [60]. Resort to a determination that this will should take effect in accordance with a scheme approved under the Charitable Trusts Act would only be possible if all the procedures contemplated by that legislation had first been employed and the Attorney General had been joined as a party in these proceedings because, as Edelman J has explained in Taylor, there is no longer in this State any vestige of the general 'cy‑près' equitable doctrine left after the introduction of the Charitable Trusts Act. For the reasons which follow, however, I do not consider that there is any occasion to contemplate the joinder of the Attorney General in the present case, nor to resort to the Charitable Trusts Act because the issues arising can be determined on established principles of construction.
The potential that so much of the residuary bequest as provides for a one‑fifth share of the residuary estate to be distributed to the 'Volunteer Fire Brigade' might fail does, obviously, mean that the interests of the other four residuary beneficiaries might each increase from 20% to 25% of the residue if this gift were to fail. Each of them clearly has an interest in the outcome of these proceedings and for that reason they have been joined as the first to fourth defendants.
The evidence shows that each of the four defendants has been served with the originating summons and supporting affidavit but none has entered an appearance. Letters to the plaintiff's solicitors from the various defendants or their solicitors have indicated that none wishes to take part in this litigation or to be heard. For this reason, and because the question is entirely one of construction, a direction was made that the originating summons should be determined on the papers.
The five stepchildren of the deceased who are the specific legatees under the will have no entitlement to share in distribution of the residuary estate. For that reason they have not been joined as defendants and none has attempted to take any part in these proceedings.
Evidence
Apart from affidavit evidence establishing the service of the originating summons and the limited responses from the defendants or their solicitors, the only other evidence is an affidavit from the executor, Mr W F Eccles, sworn 14 November 2012 which describes the circumstances under which the deceased, Mrs Veal, came to have this will prepared and executed. The material parts of this affidavit are:
3.The Will of the deceased signed by the deceased on 2 March 2011 was prepared and typed by me on the same day the Will was signed by the deceased.
4.Prior to preparing and typing the Will I sat down with the deceased and the deceased instructed me as to her wishes as to the appointment of an Executor and the person or persons who were to be beneficiaries under her Will.
5.As the deceased gave me the instructions for her Will I made a written note of the instructions and at the end of the instructions from the deceased I read to the deceased from the notes I had taken as to her instructions for her Will. The deceased confirmed that the instructions I had taken down in note form and then read to her accorded with her instructions for her Will.
6.The Will of the deceased in the final paragraph thereof sets out the deceased's wishes as to the person or persons to be beneficiaries of her Will and accords with the instructions received by me from the deceased.
7.In the final paragraph of the deceased's Will the deceased has provided for the remainder of her estate to be divided equally between The Salvation Army, World Vision Australia, Volunteer Fire Brigade, The Association For The Blind Of Western Australia and the Lynwood Body Corporate Strata Plan 3557.
8.In respect to the reference therein to 'Volunteer Fire Brigade' I say that the deceased had made it known to me during the taking of the instructions for her Will that she wished to recognise the work done by volunteers in Volunteer Fire Brigades throughout Western Australia in fighting fires and hence her wish to include 'Volunteer Fire Brigade' as a remainder beneficiary under her Will.
9.Fire & Emergency Services Authority of Western Australia (FESA) is responsible for funding volunteer fire service brigades throughout Western Australia.
10.I verily believe that the deceased's wishes and intentions would be fulfilled if the share of the remainder of her estate were left to FESA for the purpose of volunteer fire service brigades.
The evidence of Mr Eccles stands without challenge or query in these proceedings but it is nevertheless necessary to observe that the task of the court is not to give effect to what the executor believes were the deceased's wishes or intentions, nor to treat the deceased's residuary bequest as partially ineffective and substitute some other disposition closely approximating the apparent intentions of the deceased. To do the first would be to neglect the obligation of the court to identify and apply the intentions of the testator, and to do the latter would be to invoke principles akin to the former cy‑près doctrine notwithstanding its disappearance in the light of the Charitable Trusts Act. Rather, the obligation of the court in the present circumstances is to identify whether the intention of the deceased is sufficiently apparent to identify and give effect to this part of the residuary bequest notwithstanding that she employed inaccurate and ambiguous terms in attempting to specify this residuary beneficiary.
Approach to construction
The statutory rules relating to the construction of wills are contained in pt VIII of the Wills Act 1970 but, apart from s 28A which, as already mentioned, permits the use of certain extrinsic evidence to clarify a will, none of those provisions addresses the issue which has arisen in this case.
It was necessary to examine the authorities dealing with the general principles of construction in Helen Rowena O'Brien as Executor of the Will of Jeffrey Charles Hogan v Warburton [2012] WASC 82 but in that case there were not only ambiguities in the testamentary dispositions but also inconsistency between some of them involving a consideration of the doctrine of repugnancy when it arises between two apparently conflicting dispositions in the same testament. Fortunately, that problem does not arise in the present case but, nevertheless, some of the observations which I made there remain applicable. At [57] ‑ [62] I canvassed a series of authorities dealing with the approach to be taken by a court in cases of difficulty of construction from which the following observations are relevant in the present case. The accepted approach to construction is set out by Vickery J in Thomson v Thomson [2008] VSC 375 where his Honour said:
[11]No rule of construction is better settled than that the intention of the testatrix, as expressed in the will, shall prevail. The intention of the maker of the will has been referred to as the 'pole star' in a construction of wills. Thus where the intent of the testator or testatrix is obvious it should be carried out if possible.
Problems of ambiguity or inconsistency in wills often arise in home made wills such as this, but there is clear judicial guidance to the approach which should be taken in any such situation. In Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18, 33 Bryson J cited with approval a passage from the judgment of Powell J in Coorey v Coorey (Unreported, NSWSC, 22 February 1986) that:
It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.
In the later case of Hatzantonis v Lawrence; Cox v Lawrence [2003] NSWSC 914 [10] Bryson J cited the following position from the advice of the Judicial Committee in Towns v Wentworth (1858) 11 Moo PCC 526, 542 ‑ 583; 14 ER 794, 800:
The rules of construction … do not seem open to any doubt.
In order to determine the meaning of a will, the court must read the language of the testator in the sense in which it appears he himself attached to the expressions which he has used …
When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified; and, on the other hand, 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.
This was expressly adopted and applied by Dixon J in Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404 ‑ see also Faithfull v Pine [2012] WASC 75 and Re Taylor; Taylor v Tweedie [1923] 1 Ch 99, 105 to the effect that the words of a testator who has made his or her own Will may be considered 'less strictly than in the case where the will is drawn by a skilled professional'.
Adopting this approach, it is clear that the late Mrs Veal intended the bulk of her estate, that is all her residuary estate, to be divided equally between the five residuary beneficiaries whom she named, at least four of whom appear to be charities. The extrinsic evidence in the affidavit of the executor, Mr Eccles, clearly establishes that it was the wish of the testatrix to recognise the work done by volunteers in volunteer fire brigades through Western Australia in fighting fires. It can therefore be seen that this particular residuary gift was a deliberate choice by the deceased to recognise the role of the many voluntary fire fighters who provide such valuable services to their respective communities and to the State as a whole. The niceties of the significance that these were, for the most part, unincorporated associations and that there may have been no single entity answering to the description 'volunteer fire brigade' were no doubt unknown to the testatrix or to the executor who drafted the will, but it is clear, from the authorities cited, that in construing the will allowance must be made for this and a search continue for the true intention of the testatrix.
There are numerous instances in the authorities where testamentary gifts have been made to individuals or corporations incorrectly described or when there are variations between an apparent intended beneficiary and a description of him or her used in the will. As the leading texts establish, the court is unwilling to hold a gift void for uncertainty and it will use every endeavour to ascertain who is meant and in some cases has gone very far in identifying a beneficiary ‑ see Theobald On Wills (17th ed, 2010) 24‑011 ‑ 24‑015. See also Halsbury's Laws Of England (5th ed, 2010) vol 102, pars 271 ‑ 273. In Williams On Wills (9th ed, 2008) there is extensive examination of this problem and a consideration of the principle 'falsa demonstratio non nocet' at chapter 58 and particularly at par 58.3 where the learned authors write:
There have been many renderings of the rule in English and the following is the rendering of the rule as applicable to all instruments. Whenever there is in the first place a sufficient certainty and demonstration, and afterwards an accumulator description, and it fails in point of accuracy, it will be rejected. In the case of wills, the following is the statement of the rule which has been most commonly accepted: if of various terms used to describe a subject matter, whether a person or a property, some are sufficient to ascertain the subject‑matter with certainty, but others add a description which is not true, these other terms are not allowed to vitiate the gift. A more modern version of the statement is, where the description is made up of more than one part, one part is true and the other false, then, if the part which is true describes the subject matter or the object of the gift with sufficient certainty, the untrue part will be rejected and will not vitiate the gift.
There are some features of this rule which apply in the present case, although it is not entirely applicable. The dispositive words used in this part of the residuary bequest do not so much contain false or inconsistent descriptions but contain a description which is so general and imprecise that it cannot strictly be applied. Yet, nevertheless, it reveals a deliberate sentiment and a class of beneficiaries which can be recognised and the gift satisfied. The extrinsic evidence establishes that Fire and Emergency Services Authority of Western Australia (FESA) is responsible for funding volunteer fire services and brigades throughout the entire State and so is the body which, if identified as a beneficiary, will allow this testamentary intention to be carried into effect.
Accordingly, I consider that the proper construction of the will of Mrs Veal calls for the application of the principle of construction that the true intention should be identified and that in the present case it is that the body through whom funding is made for the various volunteer fire brigades should be regarded as the intended beneficiary to receive these funds for that distribution. Accordingly, I am prepared to order and declare in the terms sought by the executor as follows.
(a)that the will of Cecilia Lee Che Veal be construed so that the reference in the will to the words 'volunteer fire brigade' be read as 'Fire and Emergency Services of Western Australia' for the purpose of volunteer fire brigades; and
(b)that the plaintiff's costs of this application be paid out of the estate.
I consider that a certified copy of this order of the court, once extracted, should be filed in the Probate Registry and I direct that the Registrar of Probate should cause such certified order to be annexed to the court copy of the grant of probate. The executor should bring in the existing sealed copy of probate for certification in the same manner.
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