Re Cornelius (deceased) HC Timaru CIV-2011-476-542

[2011] NZHC 1804

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IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2011-476-542

UNDER  IN THE ESTATE OF KENNETH VALDEMAR CORNELIUS (DECEASED)

Hearing:         On the papers

Counsel:         B Hill

Judgment:      20 December 2011 at 3:00 PM

I direct the Registrar to endorse this judgment with a delivery time of 3pm on the

20th day of December 2011.

JUDGMENT OF MACKENZIE J

Introduction

[1]      In this application for grant of probate in common form, some points of probate practice of considerable general importance arise.

[2]      The deceased, who died on 26 July 2011, left a will dated 21 July 1999.  The appointment of executor in that will was in these terms:

I appoint one of the partners in the firm of Bradley West, Solicitors presently of Timaru and Geraldine or such other firm which at my death has succeeded to and carries on its practice (“my Trustee”) to be the Executor and Trustee of this my will.

[3] When the will was made, the firm of Bradley West was an unincorporated partnership. Under the Lawyers and Conveyancers Act 2006, it became permissible for it to incorporate. A company, Bradley West Ltd, was incorporated in August

2007.  Mr List, then the sole practitioner in the unincorporated firm, became the sole

shareholder and director of the company.  The firm‟s business was transferred to the

RE CORNELIUS (DECEASED) HC TIM CIV-2011-476-542 20 December 2011

company.   As clauses such as this are common, the issues are of some general importance, now that law firms are able to incorporate.

[4]      It is necessary to consider two separate issues. These are:

(a)      What is the effect of the incorporation of the firm of Bradley West on the appointment of the executor?

(b)Is the form of the appointment clause, which appoints “one of the partners” in the firm of Bradley West void for uncertainty, even if there had been no change in the status of the firm?

The effect of incorporation

[5]      There are three questions in considering the effect of incorporation on the appointment of the executor. These are:

(a)      Is the company a firm which has succeeded to and carries on the practice of Bradley West?

(b)      Is Mr List within the description “one of the partners” in that firm?

(c)       Is the appointment prohibited by s 63 of the Administration Act 1969? [6]     The first question was considered in England, when incorporation of legal

practices became possible there, by Lightman J in Re Rogers (deceased).1    In that

case, the law firm concerned had formed a limited liability partnership (LLP).  All the partners in the firm became members of the LLP, which succeeded to and carried on the practice of the former firm.   The testatrix had appointed as executors the partners at the date of her death in the former firm, or in the firm which at that date had succeeded to and carried on its practice.

[7]      Lightman J said that it was clear that the testatrix wanted the appointment to cover such contingencies as the sale of the practice or amalgamation with another firm.   The issue was whether she likewise wanted to cover the contingency of a conversion of the firm into a LLP.   Lightman J noted two hurdles in the way of adopting a construction that the appointment should cover members of the LLP. First, that a LLP is a corporate body with a legal personality separate from that of its members:  it is not a firm in the sense of a partnership.  Second, that its members are not partners.  On a strict construction, the members of the LLP did not qualify for

appointment as executors.  He then said:2

The issue before me is whether the intention of the testatrix to appoint as executors the solicitors conducting the practice carried on by Lawrence Tucketts at the date of the will is frustrated by the exercise of the option available to those solicitors to alter the legal character of the vehicle through which they carry on that practice. I think that the court can and should take a practical  and  commonsense  view  in  eliciting  and  giving  effect  to  the intention manifested by the testatrix. The testatrix focused on the persons associated in carrying on for profit the practice carried on at the date of the will by Lawrence Tucketts. Clause 2(a) of the will is deliberately formulated so that changes in the vehicle by which the practice is carried on are very much of secondary importance. In the circumstances with the substitution as that vehicle of the LLP for TLT I am satisfied that the terms of clause 2 of the will are apt to embrace the profit sharing members of the LLP (the equivalent of partners in the previous partnership), I should however make clear my view that even as the “partner in the partnership” means in the case of a partnership a profit sharing partner and not merely a salaried partner or a person merely held out (but not in fact) a partner, so when transposed to a limited liability partnership the member must mean a profit sharing member.

[8]      He accordingly held that on the true construction of the will probate should be granted to applicants who are profit sharing members of the LLP.

[9]      I consider that reasoning, so far as the successor firm issue is concerned, is equally applicable  in  New  Zealand.    I see no  distinction,  for present  purposes, between a corporate body under the Limited Liability Partnerships Act 2000 (UK) and a company under the Companies Act 1993 (NZ).  The ordinary meaning of the word “firm”, in popular usage, is not confined to a partnership.  The term “firm” is frequently used to describe a legal practice carried on by a sole practitioner, as well as by a partnership.  Also, in popular usage, a limited liability company is frequently described as a firm.

[10]     In the days before incorporation of legal practices was possible, a reference in a will to a firm of solicitors would necessarily be a reference to a sole practitioner or a partnership.   But that arose from the professional obligations of solicitors as to their mode of practice, not from any limitation inherent in the meaning of the word “firm”.  Now that incorporation is possible, I do not consider that there is any reason to attribute to the testator an intention to exclude, from the category of successor firm which may come within the scope of the appointment clause, a practice carried on through a company.

[11]     One factor that weighs in favour of that view is that the appointment is not of the firm itself, but of an individual within the firm, as I discuss in addressing the next question.  I see no reason to attribute to the testator an intention to exclude a practice carried on by a company, when that company will not, under the clause, become eligible to be appointed as executor.

[12]     Accordingly, I hold that, in this case, the company Bradley West Ltd comes within the description “such other firm which at my death has succeeded to and carries on” the practice of the firm of Bradley West solicitors.

[13]     The second question is:  who are the “partners” in an incorporated law firm? The will should be interpreted so as to give it effect, so far as possible.  That will not be achieved if a literal meaning is given to the word “partners”.   In Re Rogers, Lightman J held that the reference to the partners in the previous partnership was apt to embrace the profit sharing members of the LLP. In New Zealand, the definition of “incorporated law firm” in s 6 of the Lawyers and Conveyancers Act 2006 requires that an incorporated law firm must have as its directors no persons other than lawyers who are actively involved in the provision by the body corporate of [legal] services. That requirement creates a close analogy between the partners in an unincorporated law firm and the directors in an incorporated law firm. I consider that it is appropriate to attribute to a testator who has adopted this form of appointment of executor an intention to specify, in a case where the successor firm is incorporated, the class of persons most directly comparable to the partners in an unincorporated firm. That class is clearly the directors of the incorporated firm. Lightman J expressed the view that the word “partner” should be limited to a profit

sharing partner and not a salaried partner.  In view of the definition in s 6, I do not think that any similar qualification is, as a general rule, required in New Zealand.  In my view, all qualified directors will be eligible, in the absence of some indication to the contrary in the particular will.  In this case, there is none.

[14]     I hold that the persons eligible for appointment in this case are the directors of Bradley West Ltd.

[15]     The third question is whether the appointment is precluded by s 63 of the

Administration Act 1969 which provides:

(1)       No grant of probate of the will of any deceased person or letters of administration of the estate of a deceased person, either with or without a will annexed, shall be made to any company unless the company is expressly authorised by an Act of Parliament to apply for and obtain the grant.

(2)       For  the  purposes of this section a  grant  of  probate or letters of administration to a syndic of a company shall be deemed to be a grant to that company; and where a power is granted to a company or to the directors of a company by will to nominate any person as executor  of  the  will,  a  grant  to  a  person  so  nominated  shall  be deemed to be a grant to the company.

…

[16]     That question did not arise in Re Rogers, because there appears to be no equivalent provision in England applying to a limited liability partnership.

[17]     The meaning of s 63 must be ascertained from its text and in the light of its purpose.3    An examination of its purpose requires a review of the circumstances of its first enactment.

[18]     Until the 1950s, probate practice in New Zealand, following that in England, was that where the will appointed a company as executor the Court would grant letters of administration with will annexed to syndics of the company.   The requirements of probate practice meant that the Court could not make a grant of probate direct to the company.  The grant was made to the syndics personally.  They

were answerable to and under the control of the Court, but the grant was for the use

3      Interpretation Act 1999, s 5(1).

and benefit of the company.  That practice applied to all cases where a company was appointed  executor,  except  for  a  special  category  of  trustee  corporations,  with specific statutory authority to act in the administration of estates.   For them, the Court could make a grant of probate direct to the company.4

[19]     This practice was affected by the enactment of s 48(1) of the Trustee Act

1956, which provided:

Any trustee corporation may be appointed and may lawfully act as the sole trustee in respect of any trust, notwithstanding that the instrument creating the trust may provide for or direct the appointment of 2 or more trustees. Nothing in this subsection shall prevent any other corporation from acting as a trustee in accordance with any authority vested in it in that behalf, whether by its memorandum of association or otherwise:

Provided that no corporation shall administer the estate of any deceased person unless expressly authorised to do so by any Act.

[20]     That section was considered in In re Rayment (deceased).5    This Court held that the proviso to s 48(1) did not prohibit the previous probate practice of granting letters of administration with will annexed to syndics of a company,  where the company‟s memorandum of association authorised it to carry on the business of trustees.

[21]     As a consequence of that decision, what is now s 63 of the Administration Act 1969 was introduced, by s 4 of the Administration Amendment Act 1960.  In the debate on that Bill, the Attorney-General, Hon HGR Mason QC, said:6

A later clause in the Bill speaks of trustee companies.  I have mentioned, in referring to the Trustee Companies Bill before the House [see (19 October

1960) 325 NZPD 3082], that we have a certain type of company which can become an administrator. Where a company itself has not the power to apply

for administration of an estate, a person who is known as a “syndic” can

apply for administration.  Then, when he has administered the property he can hand it over to that company as trustee, because the company may be

able to act as trustee, yet not have the power to act as administrator.  Some

time ago this House decided that was bad practice, and it put through an enactment intended to bring the practice to an end [by s 48 of the Trustee Act

1956].  It has been held [by the Court in In re Rayment (Deceased)] that the

words were not sufficient, so here we are completing what was intended to

4      See In re Atkinson (deceased) [1936] NZLR 34 (SC); In re Odlin (deceased) [1938] NZLR 700 (SC).

5      In re Rayment (Deceased) [1959] NZLR 184 (SC) at 1185.

be done before.  We are, in clause 4, inserting words to make it clear that administration is not to be granted to companies through the intervention of syndics, that the only companies to which administration is to be granted are trustee companies, that is, those which have been especially authorised by Parliament so to act.

[22]     In the debate, the opposition member Hon J  R Marshall (who had been

Attorney-General when the Trustee Act 1956 was passed) said:7

In reference to clause 4 which is the clause which requires that from 1

January 1963 administration shall not be granted to a company other than a trustee company [sic] in the case of the administration of deceased estates.

That was believed to be the position in the 1955 [sic] Trustee Act, but a

decision of the Supreme Court drew attention to the fact that the old practice of granting probate or letters of administration to a syndic of a company might still be followed and did in fact apply to an existing company in New Zealand.  It is desirable that the policy of the law established in the Trustee Act and which had been followed for many years should be established, and that letters of administration or probate should not be granted to a company unless specially authorised and complying with certain provisions in the law, and particularly provisions relating to capital and to deposits or guarantees for the protection of beneficiaries in estates being administered.   Existing trustee companies do have to comply under their statutes with the law‟s provisions.

[23]     From that legislative history, I consider that a clear purpose for s 63 can be determined.   Subsection (1) made explicit, and gave legislative effect to what had previously been a rule of probate practice:  that no grant of administration could be made to a company (except a trustee corporation).  The first limb of subsection (2) (dealing with syndics) overruled In re Rayment, making it clear that the previous practice of granting letters of administration to syndics of a company which had been appointed executor by a testator in a will was no longer lawful.

[24]     The second limb of s 63(2) appears to be intended to prohibit a possible means of avoiding the effect of the first limb.   The first limb meant that in a will which appointed a company as executor, it was no longer possible for the Court to grant of administration to a syndic of that company.  The second limb prohibited the nomination of a syndic of the company in the will itself.

[25]     Reverting at this point to the present case, I consider that it is clear that neither s 63(1), nor the first limb of s 63(2), is engaged in this case.  The will does

not appoint a company as executor.  It appoints an individual in his or her own right. The individual is selected because he is a member of the law firm named, but the appointment is not of the firm itself.  The firm could not be appointed, because (as I later discuss at [32]) the law does not permit the appointment of a partnership as executor.   The subsequent incorporation of the law firm does not alter the basic nature of the appointment, which is of a member of the law firm, not of the law firm itself.

[26]     I further consider that, when s 63(2) is read in the light of its purpose as it appears from the legislative history, the second limb is not engaged.  Applying the plain words of the will, and the statute, the will does not grant a power to the directors of a company to nominate an executor.  I do not consider that it is to be treated as if it did, simply because the successor firm is now incorporated, and all of the eligible individuals must now be directors of the incorporated firm.  That would require a departure from the literal meaning of s 63 in a way which would not achieve its purpose.   I conclude that the appointment as executor of an individual selected in accordance with the terms of the appointment clause in this will is not an appointment pursuant to a power granted to a company or its directors to nominate a person as executor.

[27] I consider that view of the non-application of the second limb of s 63(2) in this case is supported by the legislative history to which I have referred, and also by a consideration of the purpose of the Lawyers and Conveyancers Act. Incorporation of law firms was unheard of in 1960, so the Court should not attribute to Parliament in enacting s 63 any purpose related to that possibility. The Lawyers and Conveyancers Act demonstrates a clear purpose of permitting law firms to incorporate, subject to appropriate controls and safeguards to ensure the maintenance of professional standards, and the availability of means to meet any liabilities which the lawyer may incur. That Act does not, where these standards and controls are observed, seek to differentiate between different legal structures for law firms. I would not attribute an intention to Parliament, in enacting that Act, an intention to render invalid the appointment as executor of members of a firm which subsequently decided to incorporate, unless that intention was very clearly expressed.

[28]     For these reasons, I consider that s 63 does not prohibit the grant of probate to a person who falls within the description of “one of the partners in [Bradley West Ltd]”.

[29] I have reached the conclusion, with considerable confidence in this case, that s 63 is not engaged. That may not always be the case. Cases may well arise, particularly when a will is made after the law firm has incorporated, which fall squarely within the words of s 63(2). I commend to those responsible the desirability of a re-examination of the interrelationship between s 63 and the provisions for incorporation in the Lawyers and Conveyancers Act, so that problems which may arise can be properly addressed.

The validity of the form of appointment clause

[30]     This issue involves a quite different point, one which would have applied to this appointment clause whether or not Bradley West had incorporated its practice. Appointment of the testator‟s solicitors as executors is discussed in Dobbie’s Probate and Administration Practice in these terms:8

17.11   Firm of solicitors

If  a  firm  of  solicitors  or  a  trading  firm  is  appointed  executors,  the appointment applies only to the members of the firm at the date of the will of the will-maker, unless a contrary intention is expressed in the will;   the appointment made is that of the individual members constituting such firm at the date of appointment.  In the affidavit to lead grant all such partners or members  should  be  accounted for  in  the same  way  as if the  individual members had been named as executors;  that is by reciting any renunciation or death or reserving powers to non-proving members of the firm.   If the firm has dissolved and ceases to exist, the partners in the firm shall severally renounce and let probate pass to the remaining executors (if any).

17.12   Suggested wording

Such clauses cause great difficulty.  The following wording was approved by the Court:

I appoint the partners at the date of my death in the firm of X of         or the firm which at that date was succeeded to and carries on its practice, to be the executors and trustees of this

8      J Earles, WLB Douglas, C Kelly and G Kelly (eds) Dobbie’s Probate and Administration

Practice (5th ed, LexisNexis, Wellington, 2008) at [17.11]-[17.12].

my will (and I express the wish that two and only two of them shall prove my will and act initially in its trusts).

It is submitted that the following is acceptable also:

I appoint two of the partners at the date of my death in the firm X to be the executors and trustees of this my will.

[31]     The  first  form  of  suggested  wording  in  [17.12]  of  Dobbie  is  based  on wording recommended in Re Horgan.9   The clause in issue in that case read:10

I appoint the firm of Rodgers Horsley & Burton whose principal office is at

7/8 Norfolk Street, Strand, London, W.C.2. and elsewhere who may act through any partner or partners of that firm or their successors in business at

the date of my death not exceeding two in number to be the Executors and

Trustees of this my Will and they or the survivor of them or other the trustee for the time being of this my Will are hereinafter called „my Trustees‟.

[32]     Latey  J  noted  that  clauses  purporting  to  appoint  executors  in  those  and similar terms had caused difficulty with the probate registrars, so the case was a test case.  He said:11

The central question is whether this is an effective appointment, or whether it  is  void  for  uncertainty.  The  law  does  not  permit  the  appointment  as executor of a partnership firm as such. Where a clause in a will is so phrased as to purport to do this, the court construes it as appointing the individual partners as executors: see In the Goods of Fernie. This case was decided 120 years ago, there is no other reported decision on the point and it has never been questioned. Where the testator appointed “any two of my sons” as executors the appointment failed as void for uncertainty: see In the Goods of Baylis.  In  In  the  Goods  of  Blackwell  a  testator  who  had  three  sisters appointed “one  of  my sisters  my sole  executrix” without  stating which. When the testator died only one of his sisters was surviving, but this appointment, too, was held to be void for uncertainty.

[33]     Latey J held that the form of clause used in Re Horgan was not void for uncertainty, but said that he had reached that decision “with a good deal less than entire confidence in its correctness”.   For that reason, he suggested an alternative form, proffered by counsel in that case, which he considered would be preferable. That clause was in the form of the first alternative in [17.12] of Dobbie.  That form

of clause has been accepted for many years, and no doubt as to its validity arises.

9      Re Horgan [1969] 3 All ER 1570.

10     At 1570-1571.

11     At 1571.

[34]     The clause in this case is, for the purposes of this issue, substantially in the second form in [17.12].  There have been several cases where the acceptability of this form has been doubted.  In those cases, orders have been made under s 31 of the Wills Act 2007 to substitute a different clause, thereby avoiding any doubt about the validity of the second form of clause.  Examples of such cases are Re Mansfield,12 Re

Trehey,13 Re Benstead,14 Re estate of Chambers,15 and Re estate of Hansen.16   In all

of those cases, and others, this Court has considered it appropriate to make an order correcting the will because of doubts which have been expressed as to the validity of the  form  of  appointment.    In  none  of  the  cases  mentioned,  or  the  other  cases involving correction which I have considered, has there been a close examination of the question of whether the second form of clause suggested is void for uncertainty. The clause has not been the subject of definitive consideration, so far as my researches extend.  If it is not void, there is no need for an order correcting the will under s 31, and the parties should not be put to the inconvenience and expense of making such an application.  I therefore consider that it is necessary to examine this issue in detail, so that appropriate certainty in probate practice can be achieved.

[35]     The proposition that the shorter alternative form suggested in Dobbie may be void for uncertainty is based upon the decisions in In the Goods of Baylis17  and In the Goods of Blackwell,18  referred to by Latey J in Re Horgan.   It is necessary to examine these  cases,  and  developments  in  the  law since they were  decided, to determine whether they do now stand as binding or persuasive authority for the proposition  that  a  clause  in  the  second  form  in  [17.12]  of  Dobbie  is  void  for

uncertainty.

[36]     In In the Goods of Baylis, the appointment was of “any two of my sons”.  The testator  had  three  sons,  who  were  all  also  named  in  the  will  as  beneficiaries. Counsel, in moving for probate of the will to two of those sons, could find no case

which was conclusive, but submitted that, as there was no distinctive selection of any

12     Re Mansfield HC Auckland CIV-2008-404-7115, 10 March 2009.

13     Re Trehey HC Napier CIV-2009-441-899, 16 February 2010.

14     Re Benstead HC Whangarei CIV-2010-488-599, 10 December 2010.

15     Re estate of Chambers HC Wellington CIV-2010-406-136, 23 September 2010.

16     Re estate of Hansen HC Hamilton CIV-2011-419-1249, 9 November 2011.

17     In the Goods of Baylis 164 ER 1135, (1862) 2 Sw & Tr 613.

18     In the Goods of Blackwell (1876-1877) LR 2 PD 72.

two of the testator‟s sons to act as executor, the testator intended that all his sons should be on the footing of persons who were equally entitled to a grant of administration, so that the first two applying had a right to the grant.  The application was rejected.  The Judge, Sir C Creswell, said:19

I am very unwilling to establish a precedent by making such a grant;   in some  cases  it  might  be  of  great  importance.    I am  afraid  there  is  that uncertainty about the clause which will prevent my treating it as an appointment.

[37]     The next case is In the Goods of Blackwell.  There, the appointment was of “one of my sisters”.  The testator had three sisters, all of whom were also named as beneficiaries.   Only one survived the testator.   The judgment of Sir J Hannen P reads:20

The question is, which sister did the testator appoint as executrix.  I cannot infer from the words of the will that the testator intended to appoint any particular sister executrix.   I may conjecture that he would have given directions to appoint the surviving sister if he had foreseen the events that have happened;  but he has not done so.  I cannot distinguish this case from that of In the Goods of Baylis, and I reject the motion.

[38]     In  discussing  these  cases,  the  leading  English  text  on  probate  practice, Tristram and Coote's Probate Practice,21 draws a distinction between deaths occurring before and after 1 January 1983, being the date of coming into force of s 21 of the Administration of Justice Act 1982.   The relevant passage in that text reads (footnotes omitted):

4.25     Where uncertainty arises from the form of the appointment, such as

the appointment of „any two of my sons‟, or „one of my sisters‟ of

„A or B‟ with no additional words indicating that the appointment of

B is in substitution in certain circumstances, the appointment is void, and the question of admission of parol evidence of the intention of the testator does not arise.   If the description of the executor is ambiguous, incomplete or imperfect, the court will sometimes admit parol evidence;  but if the correct full names of an existing person are given, evidence is not admissible to show that the testator intended to appoint another person, one of whose names was slightly different.

19     In the Goods of Baylis at 1136.

20     In the Goods of Blackwell at 72.

21     J Winegarten, R D‟Costa and T Synak (eds) Tristram and Coote’s Probate Practice (30th ed, LexisNexis, Suffolk, 2006).

4.26A gift to „M and/or J‟ has been held to operate as a gift to them as joint tenants:   if either did not survive, the other would take the whole  gift.     Accordingly  an  appointment  of  „A  and/or  B‟  as executors would probably not be held to be void for uncertainty.

4.27The above decisions were made prior to the passing of s 21 of the Administration of Justice Act 1982, which section provides statutory guidance for the court as to the admission of evidence in the interpretation of wills, whenever made, of testators dying on or after

1 January  1983.   The  section  relaxes  the  former  rigid  rules  of evidence relating to the interpretation of wills, and the section must

now be taken into account in respect of wills of testators dying on or

after 1 January 1983.   For a fuller analysis of s 21, see para 3.02-

3.04.

[39]     Section 21 of the Administration of Justice Act 1982 is similar in its terms to s 32 of the Wills Act 2007, which provides:

(1)       This section applies when words used in a will make the will, or part of it,—

(a)      meaningless; or

(b)      ambiguous on its face; or

(c)      uncertain on its face; or

(d)      ambiguous in the light of the surrounding circumstances; or

(e)      uncertain in the light of the surrounding circumstances.

(2)       The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain.

(3)       External    evidence    includes    evidence    of    the    will-maker's testamentary intentions.

(4)       The Court may not use the will-maker's testamentary intentions as surrounding circumstances under subsection (1)(d) or (e).

[40]     It seems that the learned authors of Tristram and Coote regard the difficulties presented by those earlier cases as capable of being resolved by recourse to the ability to resolve uncertainties in a will by the use of external evidence.  There are no cases cited after 1983 in which either In the Goods of Blackwell or In the Goods of Baylis has been applied, to hold that a form of appointment of one or more of a larger category of eligible persons is void for uncertainty.

[41]     There is Canadian authority, a decision of the Supreme Court of British Colombia in Re Johansson Estate22 for the proposition that a clause appointing “two of the partners for the time being in [the firm]” is void for uncertainty.  Re Horgan was applied.23   It is not apparent from the report whether there was, in Canada, any equivalent to s 21 of the United Kingdom Act.   My researches have not disclosed any relevant Australian authority.

[42]     While the cases I have discussed have stood as authority for the proposition that clauses similar to the second form of clause in Dobbie are void for uncertainty, I consider it clear that is no longer the case, having regard to s 32 of the Wills Act. That section enables the Court to resolve ambiguities and uncertainties in a will, if these can be resolved by recourse to external evidence.   The question which must now be asked is not whether the form of appointment is, in the abstract, sufficiently certain, but whether, having regard to all the circumstances, including those that can be clarified by external evidence, there is certainty as to the application of the clause in the actual circumstances in which the clause is to be applied.  When that approach is adopted, I do not discern any greater level of uncertainty in the second form of clause than in the first.

[43]     Under the first clause, there is certainty of the persons appointed, to the extent that it is all the partners at the date of death in the firm.   However, if the testator‟s wish is complied with, only two of them shall prove the will.  There is no certainty as to which two partners will prove the will.  That decision is to be made by the partners in the firm themselves.  There will be certainty as to the identity of the actual appointees only when the application for probate is made.

[44]     Under the second clause, there is less certainty as to the category of eligible appointees, in that the will does not appoint all of the partners.  The identity of the appointees cannot be determined until an application is made by two of the partners. However, in this case too the decision as to which partners may prove the will is to be made by the partners themselves, and there will be certainty as to the identity of

the actual appointees when the application for probate is made.

22     Re Johansson Estate [1993] BCWLD 405.

23     Re Horgan, above n 9.

[45]     In  practical  terms,  I consider that  there is,  for present  purposes,  no  real distinction between the two clauses.  In both cases, all of the partners are eligible for appointment and it is for the partners to make the decision which of them will apply for probate.  Until that choice is made, there is no certainty as to the identity of the executors.  After that choice is made, there is certainty.  External evidence can be used to show that there is certainty.  The probate application will itself necessarily provide that evidence.

[46]     In the unlikely event that a dispute were to arise between the partners in the firm as to who is to apply for probate, there is no means of determining, from the will, how that dispute is to be resolved.   That is so under both clauses.   I do not consider it necessary to consider how such a situation might be resolved.  It is, as I have noted, an unlikely eventuality, and one which must be addressed if it arises on a case by case basis.   I do not think that the remote possibility that such a dispute might arise provides any sound basis for holding as a general rule that either of the forms referred to in [17.12] of Dobbie is void for uncertainty.

[47]     I do not consider that Latey J in Re Horgan is to be taken to have intended that the form suggested by him was the only way such an appointment could be made.  Also, his decision predated the change in legislation.  I would be reluctant to reach the conclusion on the basis of English cases which are now old, and apparently superseded by a change in legislation there similar to that here, that the second form of clause is void for uncertainty.

[48]     For this reason, I consider that either of the forms of wording suggested in [17.12] of Dobbie will generally be acceptable and that any uncertainty which either form presents, in an individual case, can be addressed on a case by case basis by the application of s 32 of the Wills Act.

[49]     I direct  that  the  application  for  probate  is  now  to  be  considered  by  the

Registrar, having regard to the terms of this judgment.

Solicitors:           Bradley West Ltd, Geraldine

“A D MacKenzie J”