The Trust Company Limited v Zdilar
[2011] QSC 5
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- The Trust Company Limited v Zdilar[2011] QSC 5
- Add to List
The Trust Company Limited v Zdilar[2011] QSC 5
The Trust Company Limited v Zdilar[2011] QSC 5
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Originating application |
ORIGINATING COURT: | |
DELIVERED ON: | 31 January 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 September 2010 |
JUDGE: | Margaret Wilson J |
ORDER: | 1) That upon the proper construction of the will of Ann Mary Ashton deceased dated 29 September 1998, and in the events which have occurred, the exit entitlement paid to the deceased’s estate by Tall Trees Rochedale Pty Ltd, pursuant to clause 21.2 of the sub-lease commencing on 5 September 2007 is payable to the second and third respondents pursuant to clause 3(e) of the will; and 2) That all parties’ costs of this application be paid out of the deceased’s residuary estate on the indemnity basis. |
CATCHWORDS: | SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND THE EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ORDINARY AND GRAMMATICAL MEANING OF WORDS – where testatrix bequeathed the "house property" and "substitute house property" that she owned at the date of her death – where testatrix owned house at time of making will – where testatrix sold house – where testatrix lived in retirement village pursuant to 99 year sub-lease at time of death – whether recourse to extrinsic evidence necessary to determine testatrix’s intention – whether retirement village was "substitute house property" – whether testatrix "owned" unit at retirement village Succession Act 1981 (Qld) ss 33C, 33I Perrin v Morgan [1943] AC 399, cited Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339, applied Re Blake Dec’d [2009] VSC 184, distinguished Re Purcell Dec’d (1991) 103 FLR 271, cited |
COUNSEL: | R T Whiteford the applicants No appearance for the first and second respondents R M Treston for the third respondents |
SOLICITORS: | Geoffrey R Funnell for the applicants McCullough Robertson for the third respondents |
[1] Margaret Wilson J: Ann Mary Ashton ("the testatrix") died on 8 October 2009.
[2] The applicants, who are her executors, have applied for a declaration as to the proper construction of her will.
Background
[3] The testatrix was aged 91 years when she died. Her husband and her only child had predeceased her. She was survived by four grandchildren and eight great grandchildren.
[4] The second applicant and the first respondents are the testatrix’s grandchildren. The second respondents are her adult great grandchildren, and the third respondents are her infant great grandchildren.
[5] The testatrix made her last will on 29 September 1998 (about 15 months after her husband’s death). At that time she was living in a house at 18 Esma Street, Rochedale, which was her principal asset and was recorded in the first applicant’s will file as being worth $150,000. Her other property consisted of bank accounts totalling $140,000, a Telstra investment ($7,000), a QIDC investment ($20,000), furniture ($20,000) and a motor vehicle ($5,000).
[6] She provided in her will –
“I GIVE my Trustee the whole of my estate UPON TRUST as follows:
a) TO PAY my funeral and testamentary expenses and all death and other duties from the residue of my estate and so that no beneficiary shall be required to refund any of such duties or expenses and
b) AS TO my house property (including contents and all personal items) situated at 18 Esma Street, Rochedale or any substitute house property I shall own at the date of my death for such of my grandchildren SUSAN ZDILAR, ROBERT SIMONS, JOHN SIMONS and MICHELLE SIMONS as shall survive me for a period of thirty days and if more than one in equal shares as tenants-in-common and
c) TO PAY the sum of fifteen thousand dollars ($15,000) to my cousin YOLLANDE POPE and
d) TO PAY the sum of five thousand dollars ($5,000) each to THE SALVATION ARMY (QUEENSLAND) PROPERTY TRUST, THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) for the benefit of THE BLUE NURSING SERVICE and THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS and I DIRECT that the receipt of the proper officer of such Society shall be a sufficient discharge to my trustee who shall not be bound to see to the application thereof and
e) AS TO the rest and residue for such of my great grandchildren as shall be living at the date of my death and survive me for a period of thirty days and attain the age of eighteen years and if more than one in equal shares as tenants-in-common and during the minority of my great grandchildren IT IS MY WISH that my Trustee invest in Government bonds, term deposits and investments of a similar nature and that any interest earned be compounded until such great grandchild attains the age of eighteen years and I EXPRESS A FURTHER PREFERENCE for term deposits with the Commonwealth bank of Australia.” (emphasis added).
[7] The testatrix sold her house in Esma Street for $380,000 in 2007, and moved into the Tall Trees Retirement Village, also at Rochedale. She occupied an accommodation unit there pursuant to a sub-lease from Tall Trees Rochedale Pty Ltd.
[8] When she died, her estate was comprised of savings, debentures and Suncorp Metway shares together worth approximately $320,500 and her interest under the sub-lease.
The retirement village
[9] The retirement village was situated on lot 1 on SP 158134 in the County of Stanley, Parish of Redland. Tall Trees Rochedale Pty Ltd, the operator of the retirement village, leased the land from Usher Powell Developments (Rochedale) Pty Ltd.
[10] The operator subleased part of the first floor of a building on the land, referred to as unit 76D, to the testatrix, who was referred to as "the Resident". The unit had a gross floor area of 72.25 square metres, the internal area of 60 square metres comprising one bedroom, a bathroom/laundry, and a living/dining room with basic kitchen facilities, and the external area of 12.25 square metres comprising a patio and another smaller area outside the entry door.
[11] The sub-lease was for 99 years from 5 September 2007. The testatrix had the right, in common with the operator and the other people residing in the village, to use the common property and facilities of the village in the absolute discretion of the operator.[1] She paid an "ingoing contribution" of $312,000 as an interest free loan, and thereafter a general services charge, including a maintenance reserve fund contribution, on a monthly basis.
[12] By clause 5.1.1 of the sub-lease, the unit could be used only as a place of residence for the testatrix, and not for any other purpose. Pursuant to clause 5.4.1, the testatrix was required to obtain the operator’s prior written consent if a visitor were to stay for more than 14 days. Pursuant to clause 5.6.1, she had to obtain prior consent to keep a pet within the retirement village, and even where consent was obtained, strict guidelines had to be met. Pursuant to clause 5.7.1, there were limitations on the plants she was entitled to grow outside her unit. Pursuant to clause 5.16.1, she had to notify the village manager if she would be absent from the unit for more than seven days. Pursuant to clause 5.17.1 she was required to notify the village manager of the name, address and telephone number of the person who held her enduring power of attorney and provide the operator with a copy of the document. Pursuant to clause 5.22.1 she was required to allow the operator, or anyone authorised by it, to enter the unit at all reasonable times to view its condition. Pursuant to clause 5.25.1, she was required to obtain the operator’s consent before placing screws or nails in the walls of the unit. Pursuant to clause 5.26.1 she was not permitted to make any alterations to the interior or exterior of the unit without the operator’s consent.
[13] The testatrix could terminate the sub-lease by giving the operator one month’s written notice,[2] and there were several circumstances in which the operator could terminate it.[3] Relevantly, clause 15.3 provided –
"15.3 This sub-lease will also be terminated should the Resident, or the survivor of the Residents, die."
[14] By clause 15.4.2 the termination date was 14 days after the Resident’s death.
[15] Thus, the testatrix’s death on 8 October 2009 triggered the termination of the sub-lease of unit 76D on 22 October 2009.
[16] By clause 21.2 –
"21.2 Exit Entitlement
21.2.1 The operator will repay to the Resident their ingoing contribution within fourteen (14) days after the Unit is Sold and at the same time the Resident will pay to the operator the full amount of the Exit Fee and any charges referred to in clause 21.1.2. In addition, the operator will pay any Capital Appreciation to the Resident.
21.2.2 The operator will provide the Resident with a full written accounting of the financial dealings between the operator and the Resident including how the Exit Fee and/or the Exit Entitlement has been calculated.
21.2.3 If the Unit has not been Sold within five (5) years of the termination date, the operator will repay the Resident's ingoing contribution and at the same time the Resident will pay to the operator the full amount of the Exit Fee and any charges referred to in clause 21.1.2. In addition, the operator will pay any Capital Appreciation to the Resident. The operator will provide the Resident with a full written accounting of the financial dealings between the operator and the Resident including how the Exit Fee and/or the Exit Entitlement has been calculated.
21.2.4 If the operator has terminated under clause 15.2.2, and the Unit has not been Sold within 45 days of the termination date, the operator will pay the Exit Entitlement to the Resident (calculated on the Resale Value) within sixty (60) days of the termination date.
21.2.5 The Resident's Exit Entitlement will be as set out in Item 10 of the Items Schedule."
[17] The exit entitlement which the operator had to pay to the testatrix’s estate was in effect the amount of the ingoing contribution she had paid less an exit fee calculated by reference to the resale value of the unit. The applicants and the operator agreed that the net amount of the exit entitlement was $274,840. That amount was paid to the first applicant and invested in a separate account pending the outcome of this application.
This application
[18] The applicants have applied for the following orders –
"1.A declaration whether, upon the proper construction of the will of Ann Mary Ashton, deceased dated 24 September 1998 [sic], and in the events which have occurred, the exit entitlement paid to the deceased's estate by Tall Trees Rochedale Pty Ltd, pursuant to clause 21.2 of the Sub-Lease commencing on 5 September 2007, is payable:
(a)to the First Respondents and John Edward Simons, pursuant to clause 3(b) of the Will; or
(b) to the Second and Third Respondents, pursuant to clause 3(e) of the Will.
2.An order that all parties' costs of this Application be paid out of the deceased's estate on the indemnity basis.
3. Such further or other Order as to the Court seems just."
The issue
[19] The Court must determine whether the testatrix "owned" a "substitute house property" within the meaning of clause 3 of her will when she died. If she did, then the proceeds of its disposition are a specific gift to her grandchildren under clause 3(b). If she did not, then the proceeds fall into the residuary estate, and under clause 3(e) her great grandchildren are entitled to her residuary estate.
Construction principles
[20] In Perrin v Morgan[4] Lord Romer said –
"I take it to be a cardinal rule of construction that a 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. In order to understand the language employed the Court is entitled, to use the familiar expression, to sit in the testator’s armchair. "[5]
[21] Under the armchair rule, the Court receives extrinsic evidence of the factual matrix in which a testator made his will to explain what he has written and show the meaning of words he has used. The rule applies both in circumstances where the will is clear as to the testator’s intentions and in circumstances where there is an ambiguity in the will.[6] This sort of extrinsic evidence is "totally distinct from evidence sought to be applied to prove the testator’s intention as an independent fact"[7] in cases of ambiguity. The distinction is explained by Haines in Construction of Wills in Australia –
"5.6 Evidence of 'surrounding circumstances' is admissible. That being so, how does a court discern between such evidence and evidence of intention? The phrase 'surrounding circumstances' is imprecise and can be 'illustrated but hardly defined'.[8] Evidence of surrounding circumstances is admissible for the purposes of interpretation of a will.[9] The object or purpose of the inquiry is to identify, by reference to those circumstances, some subject matter 'whether corporeal or merely conceptual, to which the words were intended to apply'.[10] The court does not arrive at the intention of a testator as a fact but sees what is the intention expressed in the words, used as they were 'with regard to the particular circumstances and facts with regard to which they were used'."
[22] In The Public Trustee of Queensland v Smith[11] Atkinson J summarised the orthodox approach to the construction of a will in this way –
"[20]The task of a court of construction is to discover the testator’s intention by examination of the words used in the will.[12] Judicial construction involves having 'regard to any rules of construction which have been established by the courts, and subject to that, [such courts]… are bound to construe the will as trained legal minds would do'.[13]
[21]The general principle governing construction of a will is the 'usual meaning rule.' This rule finds its source in the classic work by Sir James Wigram, Admission of Extrinsic Evidence in Aid of the Interpretation of Wills, first published in 1831.[14] It is expressed by Hardingham, Neave and Ford as:
'The basic principle, to which several qualifications must later be made, is that the court interprets the words of the will, in the context in which they appear, according to their usual or primary meaning.[15] If the words of the will are clear, and are capable of application by reference to extrinsic circumstances, the court will not admit evidence to demonstrate that the testator used the words in something other than their ordinary sense.[16]
It is only where the usual meaning is insufficient to resolve the construction of a provision of a will that the court may consider extrinsic evidence to resolve its meaning."
[23] Her Honour went on to consider the circumstances in which extrinsic evidence is admissible to determine a testator’s intention. This question is now affected by s 33C of the Succession Act 1981 (Qld), which provides –
"33C Use of evidence to interpret a will
(1)In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it—
(a) meaningless; or
(b) ambiguous on the face of the will; or
(c) ambiguous in the light of surrounding circumstances.
(2)However, evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).
(3)This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will."
[24] After discussing this provision and the rules of construction developed under the general law that are still available since its introduction, Her Honour said –
"[26] It follows from the forgoing discussion that the court of construction should start with the words of the will. If their usual meaning is clear, the will will be given that construction. If not, the court may have regard to such extrinsic evidence as allowed by the rules of construction traditionally applied by the courts with the addition of the aids to construction found in s 33C of the Act."
The usual meaning of the words used
[25] In my view the issue can be resolved by a consideration of the usual meaning of the words used in the light of the circumstances in which the will was made. There is no need to have recourse to the rules for the admission of extrinsic evidence to determine the testatrix’s intention.
[26] The words "substitute house property" and "own" need to be considered in the context of the whole of the relevant clause in the will and in the context of each other. And under the armchair rule, the Court may consider extrinsic evidence of the testatrix’s circumstances when she made the will. She was residing in the property at 18 Esma Street; it was a detached dwelling house; she held the freehold title to the land on which it stood.[17]
[27] The ordinary meaning of "substitute" is to put or stand in place of another.[18] That the accommodation unit at the retirement village was a substitute place of residence for the testatrix is not enough to satisfy the description of a "substitute house property".
[28] The meanings of "house" in the Oxford English Dictionary include –
"1.
a. a building for human habitation; esp. a building that is the ordinary dwelling-place of a family.
b. the portion of a building, consisting of one or more rooms, occupied by a tenant or family.
7. transf. and fig. (from1)
a. fig. Dwelling-place; place of abode, rest, deposit, etc."[19]
[29] In Re Purcell Dec’d[20] the testatrix divided her estate into two parts, one of which included "my household estate which shall include any house property forming part of my estate." When she made her will, she and her husband owned the matrimonial home in which they resided. Before he died, they sold that property and bought two home units; they lived in one and rented the other. After his death, the testatrix sold the home unit where they had been living and bought another where she lived until she died. At her death, she owned the home unit in which she was residing and also the investment unit. Higgins J said[21] –
"The question then is whether, as at the death of the testatrix, there was in the estate any 'house property' and, if so, whether that is confined to the dwelling in which the testatrix then had her 'household' or whether it includes all realty capable of being described as a 'house'. It may be noted that the Howitt Street unit was used, at the testatrix’s death, purely for investment purposes.
As early as 1881, in Yorkshire Insurance Co v Clayton,[22] it was recognised that separate dwelling units or flats, though one above the other, could each be regarded as houses for the purpose of rating legislation.[23] Grant v Langston[24] illustrates that the term 'house' usually will denote a dwelling under than commercial premises, for the purposes of a statute imposing an inhabited house duty.[25] A 'public house' was not a 'house' for that purpose. The effect of the comments referred to is that, by itself, the word 'house' can convey a variety of meanings. It is the context in which the word appears which enables one meaning rather than another to be selected. The various legal and other dictionaries to which I referred illustrate this same point.
Accordingly, a block of flats would, in a colloquial and ordinary sense, constitute more than one 'house': see Ex parte High Standard Constructions Ltd.[26] The latter case involved the interpretation of a restrictive covenant. The authorities mentioned were also applied by Yeldham J in R v Tahau[27] to a case of setting fire to a dwelling house contrary to ss 196 and 197 of the Crimes Act 1900 (NSW).
In my view, therefore, each of the units of which the testatrix died possessed is capable of being regarded as a dwelling, and so, as a 'house'."
Later he said[28] –
"The real question is not what was the testatrix trying to achieve but, rather, what did she mean by the words used in her will when it took effect. It is relevant for this purpose to look at what she had intended to refer to by the words she used at the time the will was executed."
His Honour concluded that the words "house property" were wide enough to include a home unit, but that it was only the home unit in which the testatrix resided and had her household immediately before her death that was part of her "household estate."
[30] In Re Blake Dec’d[29] the testatrix (Mrs Blake) was living in a retirement village when she made her will. She and her late husband had taken up residence there more than 20 years previously. It had been necessary for them to enter into a purchase agreement and an occupation agreement. Neither agreement gave them a proprietary right in the unit. Rather, they were given a licence to occupy it. The occupation agreement provided that the retirement village would retain the purchase price for the duration of their residence and receive all income on its investment. Whilst that agreement was in force, the testatrix and her husband, as licensees, were obliged to pay a monthly charge and a deferred management fee. Upon termination, the retirement village was entitled to "sell" the right to occupy the unit and was able to retain any capital growth with all costs deducted from the amount to be refunded to the terminating licensee.
[31] The testatrix's will contained six gifts to Ms Foxton, who held her power of attorney and was an executor of the estate. The first five gifts were of identified chattels, and the sixth (in clause 9(a)(vi) of the will) was in the following terms –
"The proceeds of the sale of my interest in the said unit at [the retirement village] or any other accommodation facility occupied by me as my residence at my death."
She also left Ms Foxton a general legacy of $100,000.
[32] About three years before she died, the testatrix moved from the retirement village into a nursing home. Her licence to occupy the unit in the retirement village was disposed of, and the "sale proceeds", together with other money raised by realising investments, were used to fund an accommodation bond payable on entering the nursing home. When she died, an accommodation bond refund was paid to her estate.
[33] Forrest J held that on the proper construction of clause 9(a)(vi) of the will, the refund of the nursing home bond was given to Ms Foxton. His Honour said –
"The gift to Ms Foxton
34. The terms of this gift are set out at [10]. Mrs Blake clearly intended to confer a significant benefit upon Ms Foxton. She had also provided for a general legacy of $100,000 and desired to direct the 'proceeds of sale' of the retirement village unit to Ms Foxton. If Mrs Blake had remained in the retirement village unit, then the reference to proceeds of sale would have been tolerably clear. It referred to those amounts calculated under schedule F 'disposal of proceeds of sale' of the occupation agreement. I think it clear that what was intended, absent Mrs Blake leaving the retirement village, was that the money standing to Mrs Blake’s credit under her agreement with the retirement village, would have been gifted to Ms Foxton.
35. In my view, the clear intention of Mrs Blake by use of the words 'or any other accommodation facility occupied by me as by [sic] residence at my death' was to ensure that the gift did not fail in the event of her moving to another facility. The manner in which the bond refund operates under the nursing home agreement was, in general terms, similar to that in which the retirement village proceeds of sale were determined. Both provided for a debt under contract, although with the nursing home arrangement a statutory remedy is also applied.[30] In essence, each agreement provided for the payment of a sum of money to the former occupier after termination of the licence to occupy the retirement village unit or the nursing home respectively. It is not necessary to resort to any analysis of the legal meaning of the 'proceeds of sale' as the intention can be clearly gleaned from the whole of the terms of the gift.
36. The executors also made submissions founded on s 36 of the Wills Act 1997 which permits extrinsic evidence to be adduced where a Will is uncertain of ambiguous.[31] Evidence was available as to handwritten notes prepared by the deceased and provided to the solicitor, Mrs Marks. I do not think it is necessary to have recourse to the application of the Wills Act as the intention of Mrs Blake is clear, applying the 'armchair' test: Ms Foxton was to have the benefit as a gift of any amount refunded to the Estate by reason of Mrs Blake’s death causing her to cease to occupy an accommodation facility."
[34] Unlike the testatrix in Re Blake Dec’d, the testatrix in this case made her will when she was still living in her own home. She did not expressly contemplate that by the time she died she might not be living independently. She referred to "any substitute house property" rather than to "any other accommodation facility".
[35] If the testatrix had been living in a home unit or town house bought with the proceeds of sale of 18 Esma Street when she died, then that property would have been within the description of a "substitute house property" owned by her within the meaning of her will. I doubt that the unit in the retirement village is embraced by the words "substitute house property". But even if it is, it was not a property owned by her when she died.
[36] The meanings of "own" in the Oxford English Dictionary[32] include –
"1. trans.
a. To have or hold as one’s own; to have belonging to one, be the proprietor of, possess.
b. fig. and in extended use. To have control over or direction of (a person or thing)."
Those in The Macquarie Dictionary[33] include –
"8. to have or hold as one’s own; possess"
and those in Webster’s Third New International Dictionary[34] include –
"1. to have or hold as property or appurtenance: have a rightful title to, whether legal or natural."
[37] Both counsel referred to the decision of Derrington J in Re Willis.[35] The testatrix in that case bequeathed to her niece "… the house property in which I shall be residing at the time of my decease." She resided in a house property at Toowoomba for a number of years prior to her permanent admission to a mental hospital and nursing homes in which she was successively detained over a period of 13 years leading up to her death. During all those years, in accordance with instructions she had given when she knew of the threat of institutionalisation, the house was maintained by her agent for her use as a residence, and her personal belongings were kept there. His Honour held that on the proper construction of the will the house passed to the niece – that the gift should be read as referring to "the house which I shall keep and maintain as my residence though I cannot physically be there." In coming to that conclusion, he said[36] –
"The intention of the testatrix must be derived primarily from the words themselves, and an intention cannot be inferred if the words could not reasonably support such a meaning. However, a will should not be construed in a strictly technical or legalistic sense and the construction should be sensitive to the factual context of ordinary life and circumstances. So too if special personal circumstances of a testator have a bearing on the meaning of an expression that he may adopt, they should be accorded proper influence."
[38] But that was a quite different case from the present, and I do not find what His Honour said assists me in determining the proper construction of this testatrix’s will.
[39] Nor do I derive any assistance from s 33I of the Succession Act 1981 (Qld) by which a "general disposition of land, or of land in a particular area, includes leasehold land, whether or not the testator owns freehold land", subject to a contrary intention in the will. This is not a general disposition of land, but a specific disposition.
[40] The testatrix referred to the property at 18 Esma Street as "my house property". The use of the possessive pronoun "my" bespeaks ownership in the sense of "belonging to me" or "over which I have full control". In that context, her reference to "any substitute house property which I shall own" was, in my view, a reference to any property fitting the description of "house" in relation to which she had similar rights. Her rights in relation to the unit in the retirement village were very different from her rights as the owner of the fee simple in the property at 18 Esma Street.
Conclusion
[41] It follows, in my view, that the unit in the retirement village was not "a substitute house property which I shall own at the date of my death" within the meaning of clause 3(b) of the will. It fell into the residuary estate, and the testatrix’s great grandchildren, who are the residuary beneficiaries, are entitled to the exit entitlement paid by Tall Trees Rochedale Pty Ltd upon the termination of the sub-lease 14 days after she died.
Costs
[42] Costs are entirely in the discretion of the Court.
[43] The application was made by the executors who sought a ruling upon the proper construction of the will. In such cases costs of all parties are usually incurred for the benefit of the estate, and they are usually ordered to be assessed on the indemnity basis and paid out of the estate.[37] I see no reason to depart from the usual practice in the present case. The costs will be "testamentary expenses" payable out of the residuary estate.
Orders
[44] The Court should order –
(1) That upon the proper construction of the will of Ann Mary Ashton deceased dated 29 September 1998, and in the events which have occurred, the exit entitlement paid to the deceased’s estate by Tall Trees Rochedale Pty Ltd, pursuant to clause 21.2 of the sub-lease commencing on 5 September 2007 is payable to the second and third respondents pursuant to clause 3(e) of the will;
(2) That all parties’ costs of this application be paid out of the deceased’s residuary estate on the indemnity basis.
Footnotes
[1] Affidavit of Scott Foster (court document 3, filed 29 July 2009) Exhibit C, sub-lease clause 6.2.
[2] Affidavit of Scott Foster (court document 3, filed 29 July 2009) Exhibit C, sub-lease clause 15.1.1.
[3] Affidavit of Scott Foster (court document 3, filed 29 July 2009) Exhibit C, sub-lease clause 15.2.
[4] [1943] AC 399, 420.
[5] [1943] AC 399, 420; cited in Re Blake (dec’d) [2009] VSC 184, [31] per Forrest J.
[6] David M Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) [5.3].
[7] Will of Loughlin; Acheson v O'Meara [1906] VLR 597, 601 per Hood J; see generally Haines above n 6, [5.3] –[5.12].
[8] Reardon Smith Line Ltd v Hansen-Tungen [1976] 1 WLR 989, 995 per Lord Wilberforce; Rabin v Gerson Berger Association Ltd [1986] 1 WLR 526, 533 per Fox LJ.
[9] Blakely and Anderson v De Lambert [1959] NZLR 356, 368 per FB Adams J.
[10] Inglis v Buttery (1877) 3 App Cas 552, 577.
[11] [2009] 1 Qd R 26 , [20] – [21].
[12] Perrin v Morgan [1943] AC 399, 406 per Viscount Simon; IJ Hardingham, MA Neave, HAJ Ford, Wills and Intestacy (Lawbook, 2nd ed, 1989) [1101]; David M Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) [5.2]; Ken Mackie and Mark Burton, Outline of Succession (Butterworths, 2nd ed, 2000) [7.4] – [7.6].
[13] Ralph v Carrick (1879) 11 Ch D 873, 878 per Cotton LJ, cited with approval by Isaacs, J in Fell v Fell (1922) 31 CLR 268, 273.
[14] IJ Hardingham, MA Neave, HAJ Ford, Wills and Intestacy (Lawbook, 2nd ed, 1989) [1102].
[15] Wigram’s propositions I and II are as follows:
- A testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them, will be the sense in which they are to be construed.
- Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered: Extrinsic Evidence in Aid of Interpretation of Wills (Sweet and Maxwell, 5th ed., 1914) 16-8.
[16] Sir Arthur Underhill and James Andrew Strahan, Principles of the Interpretation of Wills and Settlements (Butterworths, 3rd ed, 1927) 4 - 6; Doe d. Oxenden v Chichester [1816] 3 ER 1091; Hardwick v Hardwick (1873) LR Eq 168; Robinson v Goold (1886) 8 ALT 38; Re Bennet (1901) 21 NZLR 133; Higgins v Dawson [1902] AC 1; Re Goodes [1902] SALR 86, 91 per Way CJ; Re McKay (1958) 17 GLR 571; Re Grazebrook [1928] VLR 75; Re Petersen [1920] St R Qd 42; Pearce v Wright (1926) 26 SR (NSW) 515; Gilmour v MacPhillamy [1930] AC 713, 716 per Lord Tomlin; Re Robertson [1942] VLR 137; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327; Hulks v Wills (1949) 50 SR (NSW) 74; Re Rowland [1963] Ch 1; Re Edwards [1964] VR 551, 553 per Herring CJ; Re Hackett [1966] VR 232; Re Bell [1969] VR 597; Re Jones [1971] NZLR 796; Re Rowlands [1973] VR 225; Re Atkinson [1978] 1 WLR 586, 590; Re Cuthbertson [1979] Tas SR 93; Re Allen [1988] 1 Qd R 1.
[17] The affidavit evidence does not include a copy of the certificate of title. However, counsel’s submissions proceeded on the basis that she held beneficial and legal title to the freehold: transcript 1-11, 1-13. See submissions on behalf of the litigation guardian (court document no 7, filed 2 September 2010) para 19.
[18] William Little, HW Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3rd edition, 1973) 2173.
[19] J.A Simpson and ESC Weiner (eds), Oxford English Dictionary (Clarendon Press, 2nd ed, 1989).
[20] (1991) 103 FLR 271.
[21] At 277.
[22] (1881) 8 QBD 421.
[23] Per Jessel MR at 424-425.
[24] [1900] AC 383.
[25] Per Earl of Halsbury LC at 390-392.
[26] (1928) 29 SR (SNW) 274.
[27] [1975] 1 NSWLR 479.
[28] At 279.
[29] [2009] VSC 184.
[30] Aged Care Act 1997 (Cth), s 57-21.
[31] See Morgan v Moore [2000] VSC 94 [22] in relation to similar provisions within s 22A of the Wills Act 1958 (Vic).
[32] JA Simpson and ESC Weiner, Oxford English Dictionary (Clarendon Press, 2nd ed, 1989).
[33] A Delbridge (et al) Macquarie Dictionary (Macquarie Library Pty Ltd, 2nd ed, 1991) 1220.
[34] Webster's Third New International Dictionary of the English Language, unabridged (Merriam, 1971).
[35] [1996] 2 Qd R 664.
[36] At 667.
[37] Re Buckton; Buckton v Buckton [1907] 2 Ch 406, 414; Murdocca v Murdocca (No 2) [2002] NSWSC 505, [71] – [78].