In the Will of Thomas Henry Finch (dec'd)

This recent case is interesting for its consideration and approval of the “armchair principle” in the construction of wills. As Lyons SJA explained “[t]hat principle permits the court to sit in the armchair of the deceased and take account of his or her family, property, friends and acquaintances in order to determine what was meant by the words in the Will” and it has not been altered by the Succession Act 1981.  Her Honour also gives some useful consideration to the distinction between the admissibility of extrinsic evidence in an application for rectification of wills, and in an application for construction, which typically invites a more rigid approach.

Lyons SJA

13 February 2018

This matter involved an application for rectification, pursuant to s 33 of the Succession Act 1981, and construction of the deceased’s Will. [1]. In particular, a dispute arose concerning cl 4(a) of the Will which left “[a]ny real property owned by me at the date of my death” to Ms Bazley in circumstances where the deceased owned a relocatable home but was not the registered proprietor of any freehold property at the time of his death or when he gave instructions. [2].

A preliminary issue arose as to whether extrinsic evidence was admissible for the purposes of the rectification application and the construction application. Section 33C of the Succession Act provides that in a proceeding to interpret a will “evidence, including evidence of the deceased’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 light in the light of surrounding circumstances”. [27].

In dealing with this issue, Lyons SJA noted that it is “necessary to remember that different rules apply in relation to the admissibility of evidence with respect to the application for rectification and the application for construction”. [33]. Her Honour explained that the two functions were exercised by two separate jurisdictions with different histories. [33]. As a consequence, “whilst extrinsic evidence could be relied upon in rectification applications, a more rigid approach applied in relation to construction applications”. [34].

Nonetheless, her Honour concluded that the extrinsic evidence was admissible in both the application for rectification and the application for construction on the basis of the “armchair principle”. [36]. As her Honour explained, “[t]hat principle permits the court to sit in the armchair of the deceased and take account of his or her family, property, friends and acquaintances in order to determine what was meant by the words in the Will”. [36]. Further, her Honour noted that while provisions such as ss 33 and 33C of the Succession Act 1981 “added to the principles that then existed as to the admissibility of evidence … the ‘armchair rule’ referred to above has not been altered”. [37]. Her Honour approved the following statement of the position:

“Any evidence which explains what a deceased has written is admissible as it may clarify the meaning of his or her words. This is so because the words used in a will by a deceased may not be appreciated nor the deceased’s intention as expressed by those words ascertained without the court having some knowledge of his or her property, family members or persons and charities which he or she would be expected to benefit.” [37].

In the result, her Honour granted the rectification application on the basis that the Will failed to give effect to the deceased’s instructions. Clause 4(a) was rectified by deleting the words “[a]ny real property owned by me at the date of my death” and inserting “[m]y house”. [52].

As for the application for construction of the Will, it was argued that the term “[m]y house” did not include the relocatable home because at the date of the deceased’s death he was not residing in it. [55]. This argument was rejected by Lyons SJA, her Honour noting that “although it was no longer his home it was still his house”. [56]. There was no ambiguity. [56].

J English