This is an important decision on the principles concerning the construction of wills and the use that can be made of extrinsic evidence. It is a significant contribution to this area of law, and merits reading by all estate and succession practitioners. This note summarises five key points of principle that were decided or clarified by Davis J.
31 July 2019
The testator died in 2013, leaving a will dated in 2008. . The applicant, Mr Roberts, was his executor. . The first respondent, Mr Pollock, was the testator’s brother-in-law. . The second respondent was the Watchtower Bible and Tract Society of Australia (“the Society”). Clause 4 of the will gave “all monies standing to my credit with the Stanthorpe Branch of any bank or banks at the time of my death” to Mr Pollock. . Clause 5 of the will gave “the rest and residue of my real and personal estate including any property over which I may have any power of testamentary disposition” to the Society. .
A dispute arose as to the passing of certain assets under the will. . The testator’s assets included: (i) a Suncorp Bank Account, Hornsby Branch (“the Hornsby Account”); (ii) a Suncorp Bank Account, Stanthorpe Branch (“the Stanthorpe Account”); and (iii) two Suncorp Term Deposits, Stanthorpe Branch (“the Term Deposits”). . The parties accepted that the money in the Stanthorpe Account passed to Mr Pollock by virtue of cl 4. . Mr Roberts and the Society contended that the money in the Hornsby Account and the Term Deposits passed to the Society under cl 5. . Mr Pollock submitted that each of those assets passed to him under cl 4. .
Davis J set out the principles concerning the construction of wills and the use of extrinsic evidence in some detail. His Honour decided or clarified a number of significant points of principle. Five such points are summarised below:
(1)First, his Honour approved the approach taken by the Supreme Court of the United Kingdom in Marley v Rawlings  AC 129, namely that the principles of construction of wills are, subject to statutory modification, similar to those applied to the construction of other legal documents such as contracts. –. In that case, the Supreme Court said (paragraph numbers and paragraph breaks omitted):
“When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions … When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context … Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned”. .
Marley was previously followed by the Full Court of the Supreme Court of South Australia in Farrelly v Phillips (2017) 128 SASR 502. . Davis J noted that the approach taken in Marley and Farrelly is consistent with the approach taken in various Queensland decisions. . His Honour’s decision is the first time that a Queensland Court has squarely considered and approved Marley. .
(2) Secondly, his Honour explained that resort can be had to “evidence beyond the will” (that is, extrinsic evidence) for three purposes:
(i) to identify the assets which fall within the terms of the will (often described as “fitting the will to the ground”);
(ii) to understand the language used in the will in the light of the circumstances in which the will was made (often described as “the armchair principle”); and
(iii) to identify the testator’s subjective intention. .
Importantly, his Honour explained that the process of fitting the will to the ground concerns “not so much the construction of the terms of the will but with its application to the assets in the estate”. .
(3) Thirdly, his Honour approved the Stanley J’s statement in Farrelly concerning two qualifications to the armchair principle:
“First, when the court considers the circumstances known to the testator, it is only the circumstances existing at the time the testator made his will that may be considered. Second, extrinsic evidence cannot be used to make words in a will bear a meaning which on the face of the will they are incapable of conveying. This is sometimes described as the ‘incapable meaning rule’ or the ‘plain meaning rule’.” .
(4) Fourthly, his Honour explained that s 33C of the Succession Act 1981, by which extrinsic evidence of the testator’s intention is admissible in certain circumstances, recognises the armchair principle (in s 33C(1)(c) and (3)). . In this respect, his Honour again followed Marley. –. His Honour held that if evidence admitted under the armchair principle gives rise to an ambiguity then, by s 33C(1)(c), extrinsic evidence of the testator’s intention becomes admissible under s 33C(1). .
His Honour noted that in her consideration of s 33C in Public Trustee of Queensland v Smith  1 Qd R 26, Atkinson J did not mention the principle of fitting the will to the ground. –. Davis J explained that “[t]hat is … understandable as that principle concerns not so much the construction of the terms of the will but … its application to the assets in the estate”. .
(5) Fifthly, his Honour approved of the approach taken by Stanley J in Farrelly to the admissibility of draft wills. In that case the following was said:
“ … In Marley v Rawlings Lord Neuberger said it was open to the court to consider evidence of drafts of a will which the testator may have approved or caused to be prepared for the purposes of interpreting the will or a provision of the will. However, his Lordship reached that conclusion on the basis of an express statutory provision … which permitted the court to receive extrinsic evidence of the testator’s intention to assist in interpretation … [Despite] the absence of an equivalent statutory provision [in South Australia] I am satisfied that it is permissible to receive draft wills as evidence of surrounding circumstances for the purposes of ascertaining the testator’s expressed intention ... [What is required is] evidence that the draft will was approved by the testator or that the testator caused the draft to be prepared in particular terms so as to throw some light on his intention.” .
His Honour ultimately concluded that when the will was construed against the surrounding circumstances upon which it was made, there was no ambiguity that enlivened s 33C. . He held that the scheme of the will showed that the money in the Hornsby Account and the Term Deposits passed to the Society. .
M J Hafeez-Baig of Counsel