Kruize v Cheung[2008] QSC 156

SUPREME COURT OF QUEENSLAND

[1] This is an application for a declaration as to the proper construction of the last Will of the deceased, Muriel Chau. 

[2] The Will is constituted by a Will of 8th February 2002 and a Codicil to that Will dated 18th February 2005.

[3] The deceased died on 15th May 2005.  Probate was granted on  17th November 2006.

[4] The applicants are the personal representatives of the deceased.

[5] The sixth respondents were the only contradictors to the application.  They are  infant granddaughters of a brother of the deceased.  They are beneficiaries in two senses.  They have received a small, personal bequest of antique camphor wood chests and are pursuant to the Codicil, residuary beneficiaries together with a large number of other relatives of the deceased.

[6] By her Will the deceased devised the real property constituted by her dwelling to the four step-daughters equally.  She then proceeded to make a number of specific bequests of particular items of personal property before going on to make the bequest, which is the subject of this application, and then to provide for her residual estate.

[7] Although it is extensive, it is desirable if I set out clause 3 of the Will:

“My executors shall hold my estate on trust:

(1)   to give the property described as Lot 4 on Registered Plan 725911 in the County of Nares Parish of Glady Title Reference 20857203 or any interest I have in it at my death, including any improvements constructed thereon but excluding the contents of same to my step daughters, AMY CHEUNG for a one quarter (1/4) share, DONNA KRUIZE for a one quarter (1/4) share, THERESA WILLIAMS for a one quarter (1/4) share and KAREN LOO GEE for a one quarter (1/4) share”

(2)   to give my bronze vase and my lucky door beaded curtain to the step grandson, CHRISTOPHER KRUIZE and I EXPRESS the wish that my antique silver coffee set be looked after and polished each year for the Chinese New Year;

(3)   to give my Festival Company ’71 bronze gong to MANUALLA KRUIZE and I EXPRESS the wish that it be played loud and proud on Chinese New Year and Australian New Year

(4)   to give my stepdaughters, AMY CHEUNG, DONNA KRUIZE AND KAREN LOO GEE my three large Chinese camphor wood chests for them to receive one each;

(5)   to give my stepsons-in0law, BILL KRUIZE and GORDON LOO GEE my collection of antique liquor bottles;

(6)   to give KATE CAMPBELL and CLAIR CAMPBELL being the granddaughters of my brother EDDIE SEE, my two smaller antique camphor wood chests for them to receive one each;

(7)   to give my stepdaughters, AMY CHEUNG, DONNA KRUIZE and KAREN LOO GEE any motor vehicle I may own at the time of my death;

(8)   to give to my executors my personal possessions, furnishings and chattels and I DIRECT that my executors return any presents that have been given to me by any member of my family to the member of the family that gave me that present, but only to the extent that my executors are reasonably able to do so and the remainder of my personal possessions furnishing and chattels will form part of the rest and residue of my estate;

(9)   to give any money that I may have including any bank accounts that I may hold at the time of my death to my executors for payment of my just debts funeral and testamentary expenses and to hold the balance thereof on the following Trusts:-

a. as to a one-quarter share thereof to give to my step grandchildren, BRENDON LOO GEE, AMANDA LOO GEE and DESMOND LOO GEE in equal shares and;

b. as to the remaining one-quarter share thereof to give to my step grandchildren, JUSTIN WILLIAMS, SCOTT WILLIAMS and ALEX WILLIAMS in equal shares;

c. to give the rest and residue of my estate to my stepdaughters, AMANDA CHEUNG, DONNA KRUIZE and KAREN LOO GEE and to my step grandchildren, MARCUS CHEUNG, DEREK CHEUNG, CHRISTOPHER KRUIZE, MANUALLA KRUIZE, BREDON LOO GEE, AMANDA LOO GEE, DESMOND LOO GEE, JUSTIN WILLIAMS, SCOTT WILLIAMS and ALEX WILLIAMS all in equal shares and I EXPRESS the wish that my said stepdaughters, AMY CHEUNG, DONNA KRUIZE and KAREN LOO GEE give such of the rest and residue of my estate to their sister, THERESA WILLIAMS as they consider fit and appropriate

[8] Sub-clause 9 is the subject of this application.

[9] At the date of her death the deceased owned her own residence.  She held a bank account at the Innisfail branch of the ANZ Bank which had a credit balance of $9,221 at the date of her death. (See Exhibit WK2 to the affidavit of the applicant, Wilhelmus Kruize). 

[10] In addition she held what is described in the same exhibit (a letter from the ANZ Bank) as “ a wealth management account.”

[11] This asset of the deceased was constituted by 199,811.98 units in the ANZ OA ING Conservative Trust.  The value per unit was at the date of death $1.06359.

[12] Her interest in this trust represented by far the most valuable asset held by her at the date of her death after her dwelling.

[13] The manager of the trust was it would seem on the material before the court ANZ Managed Investments Limited.

[14] There is material before the court which suggests that this company is a wholly owned subsidiary of ING Australia Limited which is described as “a joint venture”, 51% owned by the global ING Group and 49% owned by the ANZ Bank.

[15] In July 1996 the deceased placed $120,113.51 for which she was issued 122,457.13 units.  The unit value was shown at that time as .97890.  It varied thereafter as amounts presumably accruing as a form of interest were reinvested.

[16] There was no evidence as to the manner in which the value of each unit was established at any given time.

[17] The trustee informed the applicants after the death of the deceased that there were three options open in relation to the units.  One of these was to transfer the units into the names of the executors, the second was to transfer the units into the name of one or more of the beneficiaries and the third was to redeem the units.

[18] The investment represented by the units was, on my understanding of things, at all times redeemable and payable in cash.  Investment in the trust was again on my understanding of things, open to members of the public.

[19] The issue here was whether the units fall within the description in clause 3(9) of “any money that I may have including any bank accounts that I may hold at the time of my death” or whether it falls into residue.

[20] There is material before the Court exhibited to the affidavit of Steven Thomas Todd, a solicitor who prepared the Will to which objection was taken.  The evidence was evidence of a handwritten file note by Mr Todd relating to his conference with the deceased on 22 January 2002, taking instructions from her to prepare a new Will.  There is a typed transcript of the file notes.  There is also exhibited to the affidavit handwritten notes prepared by the deceased handed by her to Mr Todd at the time of his conference with her.  There is also a memorandum exhibited dated 8 February 2002 which was placed on the file by an employee of the firm who was one of the witnesses who attended the deceased to witness execution of the Will on 8 February 2002.

[21] This material shows that the deceased gave quite specific instructions in relation to property both real and personal and (so far as the latter is concerned) wished to specifically provide in her Will for relatively small and individual items.  A large number of beneficiaries were to receive benefits identified by the deceased in the instructions that she gave.  It is obvious that she had in mind a Will of some detail discriminating between her various descendants and relatives in relation to her estate and descending to the quite particular so far as personal property is concerned.

[22]  I do not see why this evidence is inadmissible.  It is not in any sense evidence of the subjective intention of the deceased.  Rather it is evidence of surrounding circumstances capable of throwing light upon what the deceased meant by the language she used in her Will.

[23] The term “money” has engaged courts of construction perhaps more than any other term.

[24] The task always is in construing the language used in the testamentary document to establish what it was that the deceased, having regard to the terms of the Will, properly construed in the light of all relevant facts and the relevant context, meant when he or she used such language.

[25] “Money” is capable of a number of different meanings.  The New Shorter Oxford English Dictionary defines it as follows:

“1. a current medium of exchange in the form of coins and banknotes. 2. (pl.-eys or –ies)( in pl)in sums of money. 3. a wealth; property viewed as convertible into money b wealth as giving power or influence (money speaks). c a rich person or family (has married into money). 4. money as a resource (time is money). b profit remuneration (in it for the money).”

[26] In its narrower sense, money means coinage.  In the broader sense it can refer to property generally.

[27] Prior to Perrin v Morgan (1943) AC 399 there was a tendency on the part of Courts to construe the term narrowly.

[28] In Perrin & Morgan the House of Lords however rejected the view that there was a presumption in favour of a narrow meaning of the word “money”.  Viscount Simon L.C. said at pp 412 and 413:

“notwithstanding its long tradition I would urge the House to reject the view that, in construing a will, the court must start with a presumption in favour of a particular narrower meaning of the word ‘money’ (though not indeed its narrowest meaning) and that, in the absence of contradictory context, the court is bound to apply this narrower meaning even though inference is that this is not what the testator really meant by the term. As I have already said, the word “money: has more than one meaning, and it is, in my opinion a mistake to pick out one interpretation of the word and to call it the “legal: meaning or the “strict legal’ meaning as though it had some superior right to prevail over another equally usual and not illegitimate meaning. The context in which the word is used is of course a main guide to its interpretation, but it is one thing to say that the word must be treated as having one particular meaning unless the context overrules that interpretation in favour of another and another thing to say that “money”, since it is a word of several possible meanings, must be construed in a will in accordance with what appears to  be its meaning in that document without any presumption that it bears one meaning rather than another. While disclaiming any idea of interpreting a document which is not before me, I should have thought that the mere fact that a will in a single sentence disposed of all the money of which I die possessed’ was a reason for interpreting “money” is a very wide sense, though there is no positive context.

In choosing between “popular” meanings, it seems to be that an interpretation which includes realty as well as personally in the word “money” may often be going too far, though, of course, everything turns on the language and circumstances of the particular will. An amateur will-make, though using the word “money” loosely, may be drawing a distinction between “my money” and ‘my land: and indeed, may mean to include leaseholds as well as freeholds in the latter expression, if he owns both. In the present case, the testatrix owned no leaseholds so the question whether ‘all moneys’ would have included leaseholds does not arise. On the other hand, the will deals separately with the more important of the freeholds, and this circumstance goes to show that ‘all moneys” in this will does not include the omitted freeholds. If the expression were “all remaining moneys” it might have been different”

[29] Lord Atkin took a similar view saying when referring to the term “money” at p 414:

“The substance of the matter seems to be that the word ‘money’ at the present time has a diversity of meanings and that when it is found in a Will there is no presumption that it bears one meaning rather than another.”

[30] Also Lord Thankerton at p 418:

“The court is entitled to be credited with a knowledge of the ordinary use of the English language, and has a duty to apply such knowledge. Exempli gratia, I should think that war savings certificates, as suggested by the Master of the Rolls (2), might well be considered as covered by the ordinary use in the English language, since the last war, of the word “money”, and if that view be correct, I am of opinion that the court would be contravening its paramount duty if it rejected the current use of the word in these days in order to apply the sense which was current in 1725 or in 1808. ”

[31] In all cases it is the meaning of the term as used in the particular Will taken with the context that appears and such surrounding circumstances as can be taken into consideration which will determine the meaning.

[32] Counsel for the respondent referred me to Re Trundle (1960) 1 WLR 1388 in which the Court considered that a reference by a testator to “my money in the bank” prima facie refers to a credit balance which the testator might have in an account at a bank and does not extend to all choses of action, the documents of title to which are at the bank. 

[33] Perrin v Morgan (supra) demonstrates that a circumscribed meaning afforded to a particular term may in time represent an inappropriate limitation upon the meaning to be ascribed to such a term.

[34] Here the submissions of counsel for the respondent would limit the reference in clause 3(9) to bank accounts to a traditional savings account or a similar type of account.  As will be seen the deceased in fact had such an account.

[35] I think it would be appropriate to regard the trust fund as one example of a greater variety of investments which banks and financial institutions have developed in more recent times to offer to customers.

[36] Counsel for the respondent contended that the language chosen by the deceased itself provided for an extension upon the meaning of the term “money” used by her and should not be afforded any wider meaning.  It is I think difficult to accede to such an argument where the language of the testator (as it is here) inclusive rather than exclusive.

[37] It is worth noting that Viscount Simon in Perrin v Morgan (supra) at 407 made the following point.

[38] “Again, going further, it is a matter of common speech to refer to one’s “money at the bank”, although in a stricter sense, the bank is not holding one’s own money and what one possesses is a chose in action which represents the right to require the bank to pay out sums held at the call of its customer.”

[39] It is difficult to see why the deceased’s interest in the trust should not be regarded as falling precisely within the ambit of what is referred to in this passage.

[40] However I think that in construing the Will of the deceased, no narrow or technical approach is warranted. 

[41] I think that there are a number of considerations which justify the conclusion that the moneys held in the trust fund fall within clause 3(9) of the Will. 

[42] These are:

(a)The interest in the trust fund represented the largest asset held by the deceased at the time of her death, apart from her dwelling.  She had held it for a number of years at the time she made her Will.  Given the specificity of her bequests extending even to individual and particular items of personalty it would be somewhat surprising if she had not dealt with this asset separately rather than as part of residue.

(b)The ANZ Bank was the deceased’s bank.  She held a savings account at that bank.  She refers in clause 3(9) to “bank accounts” in the plural.  The testator would reasonably have regarded her investment in the trust as being moneys held by her in an account with her bank. As has been seen in exhibit 2 to the affidavit of the applicant Wilhemus Kruize the deceased’s investment in the fund was referred to as “a wealth management account” by the bank itself.  I do not think considerations of where the ultimate ownership or control of the trustee company resided or whether there was an interest held by some institution other than the ANZ Bank has any particular relevance to this issue.

(c)The language of clause 3(9) is expressed in inclusive rather than exclusive terms and thus should not be construed narrowly.

(d)Although the moneys invested were held as units they were always as I understand, convertible and redeemable as cash, and it would be natural for a person in the testator’s position to regard the interest in money terms.  I do not think the fact that the units might have been transferred as units affect this consideration.

[43] A reasonable testator, in my view, turning her mind to what accounts she had at the bank would be likely to include the interest in the trust fund amongst those.

[44] I think that in the circumstances of this case, it is easier to reach the conclusion that the interest in the trust falls within the terms of clause 3(9) than it would have been to reach the conclusion that was reached in Re Trundle (supra) that uncashed traveller’s cheques fell within the term “moneys in the bank”.

[45] On the other side of the line, in my view, falls a case such as Re Plant (1974) Qd. R. 203 where the words “cash held to my credit and any bank accounts in my name” were held not to include money held in two deposit accounts with a building society.  It is not necessary to conjecture whether the passage of time and the changing role of building societies might have lead to a different result now.

[46] I make the following declaration:

(a)That upon the true construction of the Will and Codicil of Muriel Chau (deceased) the units held by her at the time of her death in the ANZ OA ING Conservative Trust Investment Number 4644848 fall within the bequest in clause 3(9) of the Will and pass pursuant to that clause.

[47] I order that the costs of the applicants and the respondents be assessed on an indemnity basis and paid out of the estate of the deceased.