WXW v KZY[2025] QSC 138

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The parties to this proceeding are siblings and the septuagenarian children of the deceased, who passed away on 7 August 2009.  On 3 November 2009, the parties each became the registered co-owners as tenants in common in equal shares of a property pursuant to the terms of the deceased’s will.
2. [2]
   The applicant and first respondent resided with their father at the Property for about 28 years up until his death, and they continued to reside at the Property after his death. For a period spanning some 40 or so years, the brothers resided together relatively harmoniously.  Sadly, this all came to an end on 21 November 2021, when the first respondent assaulted the applicant with a baseball bat causing him bodily harm. The applicant has not returned to reside at the Property since the assault. He has been living in a rented garage in a different suburb, too fearful to resume co-habitation with his brother. 
3. [3]
   The applicant now wishes to sell the Property, but the first respondent wants to keep living at the Property as he has done for most of his adult life. 
4. [4]
   The applicant and first respondent were unsuccessful in their attempts to amicably resolve this impasse. On 18 January 2024, the applicant filed an originating application seeking orders for the sale of the Property under s 38(1) of the Property Law Act 1974 (Qld).
5. [5]
   It is not clear why there was delay in advancing the application last year, except to say there was a change of legal representation for the applicant. On 28 February 2025, Callaghan J made directions for the further conduct of the application including for the filing of an amended originating application and points of claim, together with the exchange of written submissions and a hearing in the Supreme Court Civil List. The second respondent was legally represented and has been through the history of the litigation, but she takes a neutral position reserving the right to be heard on the issue of costs or on any orders that may affect her in her role as Executrix.
6. [6]
   By the amended origination application, a number of declarations and orders were sought as follows:

   1. A declaration that it was an implied condition of a right to reside granted by clause 6 of the Will that first respondent permit the applicant to peacefully reside and enjoy the Property and that the first respondent would not disturb or otherwise interfere with the applicant’s possession, occupation and enjoyment of the Property;
   2. A declaration that by reason of the assault, the first respondent’s right to reside has been terminated or determined; and 
   3. An order that statutory trustees for the sale of the Property be appointed under s 38(1) of the Property Law Act.

The present proceeding

7. [7]
   The application came before me as a contested hearing on Monday, 2 June 2025. At this hearing, affidavit material was tendered but no witnesses were called or cross-examined. Rather, the parties made oral submissions advancing their written arguments. 
8. [8]
   The application proceeded on the basis that it was unnecessary for the factual disputes between the parties contained in the affidavit material to be resolved and that the critical issue for the Court’s determination was the construction of the Will –particularly, whether the conditions as alleged by the applicant ought to be implied into the right of residence said to be contained in clause 6 of the Will.
9. [9]
   It is relevant to note at this point that the first respondent accepts that it is usually the case that a co-owner will obtain orders for the appointment of statutory trustees for sale,^[1] but not where a testamentary gift, pursuant to which the rights of co-ownership are acquired, is expressed to be subject to a condition such as a right of residence.^[2]  The first respondent submits that this is such a case, and therefore the applicant is only entitled to exercise his right as co-owner to force a sale of the Property with vacant possession if he succeeds in obtaining declarations about the determination of  the first respondent’s right of residence.
10. [10]
    At one point during the hearing, I raised with the parties the issue of whether the language of clause 6 was precatory and, on a proper construction of the Will, did not create a right of residence. The applicant, by his counsel, contemplated seeking leave to amend the originating application over objection from counsel for the first respondent, but did not maintain any application for an amendment.   
11. [11]
    I reserved my decision at the conclusion of the hearing, and directed that a statement of facts as agreed between the applicant and first respondent be provided to the Court the following day. The Statement of Agreed Facts was provided, and included that the applicant and first respondent “agree that clause 6 of the Will conferred a right of residence on each of them.”^[3] The second respondent’s Points of Claim filed on 28 March 2025 also took the position that it is settled law that the parties took the testamentary gift of the Property, subject to the terms of the right to reside under clause 6 of the Will. 

The further hearing

12. [12]
    Subsequently, the parties were invited through my Associate to be heard on the possibility that, on the proper construction of the words of clause 6 of the Will and in considering the Will as a whole, no right to reside could be said to have been created.
13. [13]
    The proceeding was relisted before me on Friday, 6 June 2025. At this time:

    1. The applicant’s position was that such a conclusion of law did not need to be pleaded, and the fact that two of the parties agreed as a question of fact that clause 6 of the Will created a right of residence could not affect the proper construction of the Will;
    2. The first respondent accepted that the question of the proper construction of clause 6 was a legal question for the Court. However, the first respondent argued that the construction of clause 6 was not open for determination as an issue in dispute on the pleadings (confined as they were to points of claim). The first respondent argued that any other construction of clause 6 was not one he was expecting to meet, given the way the case had been run by the applicant. The first respondent otherwise submitted that the proper construction was the one the parties had assumed; and
    3. The second respondent maintained a relatively neutral approach, but conceded that the meaning of the clause was uncertain because it contained both mandatory and precatory words.
14. [14]
    The first respondent, through his counsel, maintained steely determination (and understandable lament) about the potential construction of the Will as raised by the Court. In opposition to such a construction being open, the first respondent pointed to the well-known case management principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and also referred to Oztech Pty Ltd v Public Trustee of Queensland (2019) 269 FCR 349 about the case being confined to the pleadings.

Legal principles

15. [15]
    I accept the principles raised by the first respondent, and most critically, that procedural fairness in a civil case requires that parties are adequately informed of the case against them, ordinarily by pleadings.^[4] But as the Western Australian Court of Appeal relevantly observed in Gunn v Meiners (2022) 60 WAR 90:

“…the rules of procedural fairness do not have immutably fixed content; the content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice.”^[5]

16. [16]
    It is well settled that the sole objective of a pleading is to clearly identify matters in dispute and the difference by and between the parties.^[6] But it is also well established that it is not necessary to plead legal conclusions that follow from the facts, although it may be convenient to do so.^[7]
17. [17]
    With these principles in mind, it is necessary to turn to each parties’ points of claim and to the way the case has been run as reflected in the parties’ submissions.

The points of claim and parties’ submissions

18. [18]
    Paragraph [31] of the applicant’s Points of Claim alleges as follows:

“An implied condition of the right to reside given to the First Respondent by Clause 6 of the Will includes that the First Respondent:

would permit the Applicant to peaceably reside and enjoy Property, and

would not disturb or otherwise interfere with the Applicant’s occupation and enjoyment of the Property.”^[8]

19. [19]
    In terms of this point, it is instructive to note that nowhere else in the applicant’s Points of Claim is it pleaded that a right to reside emerges from clause 6. Rather, the two propositions (that there is a right to reside, and that that right contains the above implied terms) are simultaneously advanced by paragraph [31] of the applicant’s Points of Claim.
20. [20]
    This allegation is denied by the first respondent in its Points of Claim in Response for the following reasons:

    1. the applicant’s Points of Claim do not allege the matters from which the alleged implied condition on the right to reside is said to arise;
    2. the applicant’s Points of Claim do not allege the basis on which it is said that it is appropriate to imply a condition into the right to reside of the kind alleged in paragraph [31];
    3. it is not necessary or appropriate in order to give effect to the right of residence afforded by clause 6 of the Will to imply a condition of the kind alleged by the first respondent;
    4. the right of residence conferred by clause 6 of the Will is unambiguous and does not require the implication of the conditions alleged by the Applicant;
    5. as a matter of law, it is not possible to imply a condition on a right of residence of this kind on a right of residence conferred by will;
    6. in all the circumstances, there is no such implied condition on the right of residence conferred by clause 6 of the Will.
21. [21]
    The applicant’s Outline of Submissions, filed 30 April 2025, focus on the implication of a term as necessary and reasonable in respect of a right to reside given by the Will, but not on the construction of clause 6. The first respondent’s Outline of Submissions, filed 16 May 2025, identify the relevant legal principles for the construction of a Will, and that:

“…this is a matter about the construction of a will and, more particularly, a right of residence created by a will. The issues are resolved by the application of principles of construction. To borrow a phrase used in another property law context, “[i]t is a case of hard-nosed property rights”, not “whether it is fair, just and reasonable” for [the first respondent’s] right to reside to be determined.”^[9]

22. [22]
    The first respondent also refers to Hindman J’s recent recitation of the legal principles about the construction of Wills, as emerge from the authorities, in Re Negrean; Borbil v Borbil [2025] QSC 66:

“The Court’s function is to ascertain the deceased’s intention when interpreting a will. That is done by construing the words of the will accordingly to their ordinary meaning bearing in mind the facts existing at the time the will was made. The will is to be considered as a whole and ordinarily the Court will strive to give effect to all the words of the will.”^[10]

23. [23]
    The task for the Court is to give effect to the intention of the testator as is expressed in the will.^[11] Traditionally, it has been said that the Court is to determine the meaning of the will by placing itself in the “armchair” of the testator and considering “the circumstances by which he was surrounded when he made his will to assist [the Court] in arriving at his intention”.^[12] In construing the Will, the Court is to have regard to its text “aided only by such facts as existed and were known to the testator at the date of the will which it is permissible to take into account in interpreting that language”.^[13]
24. [24]
    What emerges from the points of claim and the arguments before me is that this case has been conducted on the basis that:

    1. the applicant and first respondent both assumed that clause 6 of the Will provided them each with a right to reside at the Property; and
    2. the proper construction of clause 6 in the Will was an issue.
25. [25]
    The approach that the first respondent urges the Court to take is to assume a certain construction of the Will, and then consider whether implied terms should be read into that construction. This is an artificial and almost impossible approach to undertake. Whilst the parties have operated on an assumption that a right to reside exists under the Will, the existence of such a right is a question of law for the Court to determine as a matter of construction.
26. [26]
    I am satisfied that, in the circumstances of this case, the fact that the beneficiaries agreed on a construction of the Will does not prevent this Court from interpreting the Will to determine the application; the crux of which is the application for the appointment of statutory trustees. In my view, it is in the interests of justice that the proper construction of clause 6 of the Will be considered and applied in this case.
27. [27]
    I note, however, that the first respondent’s solicitor swore an affidavit to demonstrate that this approach would occasion prejudice to her client. This affidavit alleged that had it been contended that clause 6 of the Will did not confer a right of residence, the first respondent may have conducted the litigation differently in the following ways:

3. (a)
   by requiring the matter to proceed by way of full pleadings rather than points of claim;

3. (b)
   by seeking to obtain evidence to put before the Court to support the first respondent’s interpretation that the Will did confer a right of residence, including extrinsic evidence going to the intention of the testator, and by taking necessary steps with respect to the significant factual dispute in that regard, including seeking to obtain the drafting instructions for the Will;

3. (c)
   by considering whether it was necessary to join the drafter of the Will as a party to the proceeding;

3. (d)
   by considering whether there were other parties who ought to be joined in the proceeding;

3. (e)
   by considering whether the first respondent ought to make an application for leave to file a proceeding after the expiration of the relevant limitation period with respect to the administration of his father’s estate;

3. (f)
   by considering whether the first respondent ought to make an application for leave to file a proceeding after the expiration of the relevant limitation period for rectification of the Will;

3. (g)
   if it were additionally contended that the transmission of the Property to the parties as tenants in common from the second respondent as Executrix had the effect of extinguishing any right of residence:

3. (i)
   by investigating a potential claim, and depending upon those investigations, considering commencing a claim against the solicitors who acted for the second respondent as Executrix at the time for professional negligence;

3. (ii)
   by investigating a potential claim, and depending upon those investigations, considering commencing a claim against the second respondent as Executrix;

3. (h)
   by considering whether to allege, and amending the first respondent’s Points of Claim (or pleadings, if pleadings were ordered) accordingly, including by pleading an estoppel against the party or parties asserting that there was no right of residence or that the right of residence had ceased to exist.

28. [28]
    The first respondent’s solicitor also contended in her affidavit that if the applicant had maintained his oral application at the hearing on 2 June 2025, she would have sought instructions to:

    1. apply for an adjournment to consider the matters set out above;
    2. seek an order that the applicant pay the first respondent’s costs thrown away by the adjournment;
    3. apply for orders for the preparation of, at least, amended points of claim.
29. [29]
    The first respondent did not maintain that that an adjournment to take any of these steps was sought. This is understandable, given that the costs in this case are no doubt mounting, the value of the Property is modest, and all of the co-owners are in their seventies.
30. [30]
    In my view, any prejudice to the first respondent may be a matter for a costs argument.
31. [31]
    Ultimately, the first respondent submitted that if argument was to be had about the proper construction of clause 6 of the Will, I should find that a right of residence was created entitling the first respondent to remain living at the Property for as long as he wished. The first respondent accepted that this question could be determined on the material before the Court.
32. [32]
    I pause to note here that the way this proceeding has been ventilated and how the issues have morphed is less than ideal. But, having heard further from the parties about the legal construction of clause 6 of the Will, I am satisfied that the application should be determined on the following basis.
33. [33]
    First, that as a matter of fact, both beneficiaries assumed that clause 6 of the Will created a right to reside at the Property for each of them.
34. [34]
    Second, that whether clause 6 of the Will created such a right as a question of law is to be determined by the Court.
35. [35]
    I am also satisfied that, as a matter of procedural fairness, the parties have each had the opportunity to make further submissions, both on the appropriateness of this approach and the ultimate question of construction. As to the latter, there was no application for an adjournment by any party and I have therefore proceeded on the basis of the submissions and the material before the Court, including, most particularly, the Statement of Agreed Facts (with the qualification, of course, that paragraph [5] of the Statement of Agreed Facts is just that: the factual basis upon which the parties have proceeded).

The issues

36. [36]
    Before turning to the issue of the implication of rights, it is clear that the preliminary issue for this Court is, on a proper construction of the Will:

    1. Does clause 6 contain a right for the applicant and the first respondent to reside at the Property; and
    2. If such a right exists, is it a joint right or a joint and several right.

Relevant facts

37. [37]
    I turn firstly to the terms of the Will and the known circumstances leading up to the execution of the Will.
38. [38]
    The Property was purchased by the deceased sometime after he returned from serving in World War II. He built the house that currently stands on the Property, and the family resided at the Property from that time. It is not entirely clear, but it seems that the children left home at various times. The deceased and his wife (the mother of his three children who are the parties to this proceeding) divorced in about 1981. As part of the property settlement, the deceased was required to pay his ex-wife an amount equal to 75% of the value of the Property. The deceased did not have these funds and was unable to obtain a loan in his own name, so each of his children became co-borrowers on the loan to assist.
39. [39]
    In about 1981, the first respondent started living at the Property on a permanent basis following his own divorce and a period of working away. The applicant also moved back to the Property and resided in the flat under the house. The deceased, the applicant and first respondent each paid one-third towards the repayment of the loan over the Property. This took five years to repay. The men also equally shared the rates, insurance and utilities for the Property, although I note that the first respondent contends he and the deceased also completed and paid for all of the maintenance and general upkeep of the Property.
40. [40]
    In 1994, the first respondent suffered a workplace accident which resulted in a permanent brain injury, deafness in one ear, a back injury and mild nerve palsy on the left side of his face. 
41. [41]
    The applicant and the first respondent resided with the deceased at the Property from 1981 until around 2007, when their father was moved into a nursing home. The brothers remained at the Property and continued to live there together after their father’s death in 2009. The applicant and the first respondent both understood that each had a right of residence by the provisions of their father’s Will. Together, they paid the rates, insurance and maintenance costs for the Property in equal shares. They shared these expenses until the applicant moved out in November 2021. The first respondent has paid the full cost of these outlays since.
42. [42]
    The first respondent resides on the upper floor of the house on the Property and the applicant (formerly) resided on the ground floor. Both men shared access to the house by a side door and shared laundry facilities in a bathroom on the ground floor. That bathroom also provided access to the applicant’s bedroom by a doorway. As a result of the altercation between the brothers in November 2021 and the consequential Protection Order, the first respondent now accesses the upper floor by the front door.

The assault

43. [43]
    On 21 November 2021, there was a fight between the applicant and first respondent on the Property, which involved the first respondent striking the applicant with a metal baseball bat in the ground-floor kitchen. The first respondent then assaulted the applicant with the baseball bat in the applicant’s bedroom. The first respondent was subsequently arrested and charged with assault occasioning bodily harm whilst armed in company (domestic violence offence). The applicant suffered substantial injuries and required hospitalisation.
44. [44]
    The first respondent pleaded guilty to this offence on 5 June 2022 and was released upon entering a recognisance of $1,500 on the basis that he was required to keep the peace and be of good behaviour for 12 months. No conviction was recorded.

The Protection Order

45. [45]
    Following the incident in November 2021, a Protection Order was made against the first respondent under the Domestic and Family Violence Protection Act 2012 (Qld). Relevantly:

    1. An initial order was made on 24 November 2021;
    2. An application to vary the Protection Order to add the second respondent as a named person and to prevent the first respondent from going within 100 metres of either the applicant or the second respondent was sought by the police on behalf of the applicant;
    3. At the hearing of the application to vary the Protection Order on 8 December 2021, the magistrate refused to vary the order in the terms sought by police, and instead varied it to prevent the first respondent accessing the downstairs part of the house on the Property. The magistrate is said to have noted that the two men had lived there harmoniously previously, and that both could continue to live there given the two separate living areas and entries to the house; and
    4. The final Protection Order was made on 8 March 2022. It prevents the first respondent from accessing the downstairs part of the house on the Property. It also prohibits the first respondent coming within 100 metres of the applicant and the second respondent. 
46. [46]
    I accept that the first respondent deeply regrets and accepts responsibility for his actions on 21 November 2021. The first respondent does not wish for this contested hearing to be taken as an attempt to diminish the seriousness of what occurred. Apart from a period of several weeks in early 2024 where the first respondent attended a tavern for lunch and had a small beer, he has not consumed alcohol since the assault. The first respondent’s evidence, which I accept as relatively uncontroversial, is that prior to the altercation with the applicant, he and the applicant lived harmoniously at the Property for 40 years and that they never had any serious disagreements.   
47. [47]
    The first respondent can now see no reason why the two men would not be able to live together harmoniously at the Property again. The first respondent submitted that the 100 metre exclusion in the Protection Order must be construed as operating subject to both the applicant and the first respondent being permitted to reside at the Property, it is possible for the first respondent to reside at the Property without having to access the downstairs area, and there is no need for the applicant and first respondent to use the same entrance.
48. [48]
    It is unnecessary, however, to resolve the anomalies in the Protection Order in the present application, because the applicant does not wish to reside at the Property.

The applicant’s personal circumstances

49. [49]
    The applicant has not returned to reside at the Property since the assault, and it is agreed that he:

    1. suffers anxiety and depression as a result of the assault;
    2. is fearful for his safety and life at the hands of the first respondent; and
    3. has a recurring dream that the first respondent enters his room and assaults him, in respect of which he is unable to defend himself.
50. [50]
    A psychologist has opined that the applicant has Post-Traumatic Stress Disorder as a result of the assault.
51. [51]
    The applicant now lives in rented accommodation in a converted two-car garage in another suburb, for which he pays $660 per fortnight. The applicant receives an aged pension of about $1,355 per fortnight.
52. [52]
    Against this factual background, it is instructive to turn in more detail to the terms of the Will.

The Will

53. [53]
    It was uncontroversial that the Will was prepared by a solicitor on the instructions of the deceased and duly executed by the deceased on 10 September 2001.
54. [54]
    Pursuant to clause 2 of the Will, the second respondent was appointed Executrix, and if she was unable or unwilling to fulfill the role, then the applicant and first respondent were appointed as joint executors.
55. [55]
    The specific bequests under the Will were as follows:

3. “3. I GIVE DEVISE AND BEQUEATH the sum of FIVE HUNDRED DOLLARS ($500.00) to each of [redacted] and [redacted] on their attaining their respective majorities.

3. 4. MY Executor shall hold the rest and residue of my estate on trust to divide it equally between those of my children [WXW], [KZY] and [JZV] who survive me.

3. 5. THE WORD “children” includes a child.”[14]

56. [56]
    Clause 6 of the Will is the controversial clause in this case. It states as follows:

3. “6. I EXPRESS the wish and I DIRECT that my sons [WXW] and [KZY] be permitted to reside in the house property situated at [redacted] until they express a desire to move from the house property. During the period of the tenancy it is intended my sons be responsible for the local authority rates, maintenance and insurance on the said property.”^[15]

57. [57]
    Clause 7 of the Will sets out the powers of the executor.
58. [58]
    It is not entirely clear, but the evidence is that the specific gifts in clause 3 failed as there was not enough money in the estate to cover them. It is otherwise uncontroversial that the Property was the main asset of the residual estate. As part of the bequest to the three siblings of the rest and residue of the estate, the second respondent as Executrix transferred the title in the Property to the applicant, first respondent and second respondent as tenants in common. This occurred on 3 November 2009.

Discussion

59. [59]
    The Court’s function is to construe the words of a will according to their ordinary meaning, bearing in mind the facts existing at the time the will was made.^[16] The will is to be considered as a whole, and ordinarily, the Court will strive to give effect to all the words of the will. ^[17] Of course, the Court should not speculate or guess about what the maker intended. Rather, the Court must adopt what seems to be the most probable interpretation of the will.^[18]
60. [60]
    The critical question is whether the declaration of the deceased’s expressed wish and direction in clause 6 of the Will is to be treated as creating a right to reside at the Property, which overrides the right of a co-owner to sell the Property having received it as part of their share of the residual estate. 
61. [61]
    Such a condition or provision must be reasonably clear or sufficiently certain.^[19] On this issue, the first respondent sought to rely on the decision of Williams v Legg (1993) 29 NSWLR 687 as supporting the proposition that a right to reside overcomes a right as a tenant in common to have statutory trustees appointed. It must be observed, however, that the facts of that case are very different to the present case. That case concerned a specific devise of the fee simple in the land, so the conditions which attached to the devise went with the fee simple.^[20] Further, clause 3 of the Will in Williams expressly provided that the gift of the Property was subject to the right of another to reside in the house for as long as he wished, provided he paid his share of outgoings.^[21] Further, a codicil to the Will expressly provided that that bequest would rank in priority to all other legacies or gifts, including specific gifts.^[22]  

62. [62]
    The determination of this application depends upon the proper construction or meaning of clause 6 in the context of the entire Will. Meaning must be discovered from the words of the will itself aided only by such extrinsic evidence as is necessary to enable the words to be understood.^[23] In The Trust Company Ltd v Zdilar [2011] QSC 5, Wilson J observed as follows:

“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.”^[24]

63. [63]
    Another matter to be considered when construing a will is whether it was drawn by a lawyer. As Martin J (as his Honour then was) described in Re the Will of Edwin Marsen Tooth; Ex parte Corporation of the Synod of the Diocese of Brisbane [2020] QSC 214:

“A lawyer is presumed to know the technical meaning of words of legal import. This is relevant when construing the meaning of terms which are used in one place and not in another. It can be assumed that there was an informed decision made to use or not to use a particular form of words where that form has been accepted to have a particular meaning.”^[25]

64. [64]
    In this case, the Will was prepared by a solicitor. It is therefore reasonable to assume that the Will was prepared in accordance with the instructions the solicitor had received from the deceased. Prior to the resumed hearing before me on 6 June 2025, the solicitor for the second respondent spoke to the solicitor who prepared the Will and affirmed an affidavit with a file note concerning the contents of that conversation. What can be gleaned from the conversation is that:

    1. As far as the solicitor who prepared the Will is aware, there are no file notes, communications or any other extrinsic evidence in existence in relation to the Will in his (or his firm’s) possession;
    2. The solicitor did not understand why any such documentation was needed as the “Will is the Will”; and, in raising the question of construction, the solicitor for the second respondent was said to be talking “gobbledygook” at him;^[26] and
    3. The solicitor’s personal recollection of the terms of the Will were that the second respondent was the Executrix, and the sons had a right to reside.
65. [65]
    There is therefore no admissible (and probative) extrinsic evidence before this Court, and none is likely to be made available, about the making of the Will. The focus of the extrinsic evidence before me relates to the factual circumstances of the applicant and the first respondent having already resided at the Property with the deceased for a considerable period of time when the Will was made.
66. [66]
    By clause 3 of the Will, there are specific bequests of sums of money to two beneficiaries. The words of this bequest use a particular form of language: “I give devise and bequeath…”.^[27] Then follows the clear and direct words of clause 4 dealing with the rest and residue of the estate being held on trust to be divided equally between the surviving children.
67. [67]
    Later in the Will, clause 6 is expressed as a “wish” and a direction that “my sons…. be permitted to reside in the house property…until they express a desire to move from the property”.^[28] That clause further provides that “[d]uring the period of the tenancy it is intended that my sons be responsible for” certain outgoings.^[29]
68. [68]
    In Rutledge v Sheridan [2010] QSC 257, Daubney J relevantly observed:

“The word ‘wish’ can undoubtedly be interpreted to express a desire that something will happen in the future. But that is not its only interpretation. It can also be interpreted as intending a present transfer, synonymous with the words ‘I hereby grant,’ words that a lawyer would probably have used. How the word should be interpreted depends upon the language in the instrument itself and the circumstances surrounding the drawing of the instrument…”^[30]

69. [69]
    As for the word “direct”, it can and has been construed as more than precatory, and capable of creating a personal right to reside in property.^[31] 
70. [70]
    In referring to these other cases, I am conscious that I must not construe the Will with regard to other decisions as “a sort of legal dictionary to be consulted and remorselessly applied.”^[32]
71. [71]
    There is clearly some ambiguity and tension created by the language in clause 6. On one hand, the alleged ‘right to reside’ is expressed as a wish, and on the other hand, it is expressed as a direction. There is also an oddity created by the words “permitted to reside”, because the Property has been divided as part of the residue of the estate pursuant to the clear and unambiguous provision of clause 4. These clauses, read together, result in the applicant and first respondent being permitted to reside in a house they both own. Where such inconsistencies or anomalies exist, the Court is required to ascertain, if possible, the meaning of the instrument taken as a whole, and give effect to the intention of the framer.^[33]
72. [72]
    A relevant approach to the determination of meaning in a will is to ask the question: is there something imperative in the relevant clause of the Will, or something which requires something to be done?^[34]  When considering the context of the other clauses in the Will, what appears in clause 6 is  plainly in the nature of an expressed request or wish of the deceased, with an appreciation that the request may or may not come to fruition.
73. [73]
    If the deceased intended the provisions of clause 6 to override the bequest in clause 4, then, given the circumstances at the time of the Will being drafted, it is reasonable to infer that he would have used clear terms. However, I am unable to construe the words which declare a wish and a direction as positively requiring something to be done. The effect of these words in the context of the Will as a whole is not dispositive; they have no mandatory effect. The wish expressed is nothing other than a desire of the deceased that the two brothers continue to reside at the Property, as they have been, until they no longer wish to do so; and it is accompanied by a direction that they be “permitted” to do so. Clause 6 does not contain any language suggesting that the rest and residue of the deceased’s estate is to be held on trust pursuant to the ‘direction’ in that clause.
74. [74]
    Further, clauses 3 and 4 disposed of the whole of the estate. In these circumstances, clause 6 does not dispose of an interest or grant rights to either the applicant or the first respondent. In particular, the words in clause 6 do not grant a right to reside. The words express a wish (and direction) that two out of the three adult children be “permitted” to reside at the Property, but do not create a legal right that they be so entitled.

75. [75]
    I also note that the principles for construing wills include, if possible, that the Court ought to ascertain the basic scheme which the deceased had conceived for dealing with the estate.^[35] I consider that, in this case, the basic scheme for dealing with the estate was as outlined above: the deceased’s sons were to be equal co-owners of the Property with their sister, and it was the deceased’s wish that they be permitted to reside there, together, for as long as “they” wanted to.
76. [76]
    Therefore, I am satisfied that the proper construction of clause 6 of the Will is that no right of residence was created.

A joint and several right

77. [77]
    If I am wrong, however, and there does exist a right to reside under clause 6, then I am satisfied on a proper construction of the Will as a whole that any right to reside was a joint and not several right. That is, any right was created on the basis that both the applicant and the first respondent were permitted to reside in the Property until either one or both of them expressed a desire to move from the Property. This finding is underpinned by the following matters:

    1. At the time the Will was executed, both brothers had lived together harmoniously for over 20 years at the Property. It is therefore reasonable to infer that the intention of the deceased, based on that existing relationship, was that both his sons would continue to reside at the Property and share expenses as they had always done. If something changed and one son no longer wished to reside at the Property, then the other’s permission to reside there would become inferior to the right of a co-owner to sell the Property. 

    2. The other clauses in the Will support this finding. For example, the deceased appointed his sons together as the alternate executors, and clause 6 defines the applicant and first respondent jointly not individually. That is evident from the use of the expression “my sons [WXW] and [KZY]” and then later “until they express a desire to move from the house property”.^[36]

    3. The use of the expression “the tenancy” and the reference to “my sons” being responsible for the local authority rates, maintenance and insurance on the Property “during the period of the tenancy” suggests that the deceased envisaged the tenancy to be one where both his sons resided at the Property and shared the outgoings as they had always done.^[37]  

78. [78]
    Even if a right of residence was created by clause 6, I am satisfied that the tenancy was joint and not several, and would come to an end when either of the brothers expressed a desire to move from the Property. As a matter of fact, that is what occurred in this case.

Other matters: implication of terms in clause 6 

79. [79]
    Given the way the application was framed in the Amended Originating Application and developed on the first day of the hearing, it is necessary to briefly consider the issue of implying the terms sought by the applicant into the Will. I also expect this may be relevant to the issue of costs.
80. [80]
    On this issue, I accept the submissions on behalf of the first respondent that the applicable principles of construction do not support the implication of the terms contended for by the applicant because:

    1. The implication of a term into a will is not governed by the principles asserted by the applicant. A higher bar applies to the implication of a term into a will; and
    2. The implied terms contended for by the applicant ought not be implied into the Will, as they are not necessary to give effect to any right of residence.
81. [81]
    More broadly, I also accept the first respondent’s submission that the applicant’s approach is problematic as a matter of principle. The applicant sought to combine and conflate distinct legal concepts in order to achieve the result sought, albeit with certain modifications to those concepts. The proper approach is to identify and apply the principles for the construction of a Will, rather than adopting, combining and modifying principles from contractual and property law contexts to achieve a particular result.

Orders and costs 

82. [82]
    It follows that I refuse the declarations sought in paragraphs [1] and [2] of the Amended Originating Application, but I am satisfied that the applicant is entitled to orders for the appointment of statutory trustees as sought in the balance of the application.
83. [83]
    The parties agreed that if I reached the latter conclusion, they would like the opportunity to negotiate the sale or a settlement themselves before the relevant orders for sale are made.
84. [84]
    This case has been a troubling one. As already established, the value of the Property is modest and I am concerned about the costs that have been incurred to date.  As such, I am content to adjourn the application for the appointment of statutory trustees to a date to be fixed to enable the siblings to hopefully negotiate an outcome which may bring about a resolution, as well as some peace and closure for the parties to each move forward with their lives.
85. [85]
    I will hear the parties about the form of orders reflecting my findings and on the issue of costs.