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Supreme Court of Victoria |
Last Updated: 19 October 2018
AT MELBOURNE
IN THE MATTER of the Estate of DARYL THOMAS HELY (deceased)
-and-
IN THE MATTER of an application under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 and section 31 of the Wills Act 1997
APPLICATION BY:
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CAROLE-MARIE ARBUTHNOT and ANGELINE THERESE DONOGHUE (who are and sues as
the executors named in the last will of DARYL THOMAS HELY,
deceased)
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Plaintiffs
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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WILLS AND ESTATES – Application for rectification of will – Failure of will to carry out testator’s intentions – Failure to draft will in accordance with testator’s instructions – Orders made rectifying will – Wills Act 1997 s 31.
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1 Daryl Hely died on 10 December 2016. Probate was granted on 25 May 2017. The total gross value of Mr Hely’s estate at the time of his death was $25,043,551.57. Mr Hely’s final will was executed on 2 December 2016. The will was not drafted by lawyers. However, parts of the will were based on a draft will prepared by lawyers engaged by Mr Hely in late 2014.
2 Mr Hely’s final will is deficient in a number of respects. Foremost amongst those deficiencies is the failure of the 7 testamentary trusts created by the will to nominate a beneficiary.
3 By an amended originating motion dated 18 April 2018 the executors of the estate make application pursuant Order 54 of the Supreme Court (General Civil Procedure) Rules 2015. The executors seek answers to various questions regarding the construction of the will. Alternatively, the executors make application for rectification of the will pursuant to s 31 of the Wills Act 1997.
Who are beneficiaries of the seven testamentary trusts created by the will?
4 At the time of his death Mr Hely owned 14 properties:
5 Clause 6.1(a) to (g) of the final will creates seven testamentary trusts. These provisions are as follows:
(a) The following is to be held on the Terms of the Daryl T Hely Will Trust No 1, the terms of which are contained in clause 7:...
Property
Cash Gift of up to $965,000 (nine hundred & sixty five thousand dollars)Shares Gift
(b) The following is to be held on the Terms of the Daryl T Hely Will Trust No 2, the terms of which are contained in clause 7:
...
Property
Cash Gift of up to $105,000 (one hundred and five thousand dollars)Shares Gift
(c) The following is to be held on the Terms of the Daryl T Hely Will Trust No 3, the terms of which are contained in clause 7:
...
Property
Cash Gift of up to $1,190,000 (one million, one hundred & ninety thousand dollars)Shares Gift
(d) The following is to be held on the Terms of the Daryl T Hely Will Trust No 4, the terms of which are contained in clause 7:
...
Property
Cash Gift of up to $465,000 (four hundred & sixty five thousand dollars)Shares Gift
(e) The following is to be held on the Terms of the Daryl T Hely Will Trust No 5, the terms of which are contained in clause 7:
...
Property
- the flower painting on the East wall in the meals area (for Helen)
- the hand-made arched mirror (for Shelley)
- two nude paintings in frames
Cash Gift of up to $1,035,000 (one million & thirty five thousand dollars)Shares Gift
(f) The following is to be held on the Terms of the Daryl T Hely Will Trust No 6, the terms of which are contained in clause 7:
...
Property
Cash Gift of up to $1,340,000 (one million, three hundred and forty thousand dollars)
Shares Gift
(g) The following is to be held on the Terms of the Daryl T Hely Will Trust No 7, the terms of which are contained in clause 7:
...
Property
Cash Gift of up to $1,340,000 (one million, three hundred and forty thousand dollars)Shares Gift
6 Clause 7.5 of the final will nominates one of Mr Hely’s children as a primary and alternative trustee for each of the seven trusts. For example, cl 7.5(a) provides that in respect of the Daryl T Hely Will Trust No 1, Mr Hely’s son Damian, is nominated as the primary trustee, and in the alternative, his daughter Shelley.
7 There are no provisions in the will specifying for whose benefit the seven testamentary trusts have been created. The term ‘Beneficiary’ appears in numerous clauses throughout the final will but is not defined. For the reasons which follow, I have concluded that the failure of the will to specify the beneficiaries of the seven testamentary trusts has the result that the will does not carry out Mr Hely’s intentions. The will does not give effect to Mr Hely’s instructions to his daughter, Carrie, who provided administrative assistance to him at the time of preparation of the final will.
8 In late 2014 Mr Hely engaged solicitors, Worrall Lawyers, to prepare a will for him. Hereafter, I shall refer to this document as the ‘Worrall’s draft’. In early 2015 Mr Hely had a discussion with Carrie. Referring to the Worrall’s draft Mr Hely told Carrie ‘I want to simplify it, so I’ve crossed out some bits that I don’t want in my will anymore.’[1]
9 Mr Hely then handed Carrie the Worrall’s draft and asked her to type a new will using the draft as a template and to delete clauses that he had put a line through.[2]
10 Clause 9.7A of the Worrall’s draft set out the beneficiaries of each of the seven testamentary trusts. For example, in respect of the Daryl Hely Will Trust No 1, the beneficiaries were identified as follows:
(i) Andrew’s children, and in relation to this Trust only, those people are called Group 1 Beneficiaries;(ii) Andrew, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Andrew’s grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Andrew’s great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and
(v) The cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries.
11 The same five categories of beneficiaries are stipulated in respect of the six other testamentary trusts in cl 9.7A(b) to (g) of the Worrall’s draft.
12 Many of the clauses in the Worrall’s draft were struck out by Mr Hely. However, Mr Hely made no handwritten amendments to cl 9.7A(a) to (g).
13 In her affidavit in support of the present application, Carrie deposed that her failure to include cl 9.7A(a) to (g) of the Worrall’s draft into the final will was an oversight by her.[3] As a result, Carrie did not follow Mr Hely’s instructions that she was to use the Worrall’s draft as a template incorporating those provisions which had not been struck out.
14 In order for the will to carry out Mr Hely’s instructions, it is necessary that the will be rectified by writing into the will a new cl 7.5A in the same terms as cl 9.7A, save for the need to update cl 9.7A to reflect handwritten changes which were made by Mr Hely to cl 9.5 wherein he specified the primary trustee of each of the testamentary trusts as follows:
1. Damian2. Shelley
3. Andrew
4. Christopher
5. Carrie
6. Danielle
7. Angeline.
15 When adjusted to reflect the matters set out above, cl 7.5A reads as follows:
7.5A BeneficiariesThe Beneficiaries of each Trust are to be as follows:
(a) for the Daryl Hely Will Trust No. 1:
(i) Damian’s children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Damian, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Damian’s grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Damian’s great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;
(b) for the Daryl Hely Will Trust No. 2:
(i) Shelley’s children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Shelley, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Shelley’s grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Shelley’s great grandchildren, and in relation this Trust only, these people are called the Group 4 Beneficiaries; and
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;
(c) for the Daryl Hely Will Trust No. 3:
(i) Andrew’s children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Andrew, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Andrew’s grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Andrew’s great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;
(d) for the Daryl Hely Will Trust No.4:
(i) Christopher's children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Christopher, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Christopher's grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Christopher's great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;
(e) for the Daryl Hely Will Trust No.5:
(i) Carrie's children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Carrie, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Carrie's grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Carrie's great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;
(f) for the Daryl Hely Will Trust No.6:
(i) Danielle's children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Danielle, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(ii) Danielle's grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries; and
(iv) Danielle's great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries;
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;
(g) for the Daryl Hely Will Trust No.7:
(i) Angeline's children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;
(ii) Angeline, and in relation to this Trust only, this person is called the Group 2 Beneficiary;
(iii) Angeline's grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;
(iv) Angeline's great grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and
(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries; and
(h) for all Will Trusts:
(i) any person who is a Spouse of any of the Beneficiaries named or referred to by class above, but in relation to Income only, and with no entitlement to Capital, and excluding a former Spouse.
16 In order to give effect to Mr Hely’s intentions to make provision for the beneficiaries of the trusts it is also necessary to amend cl 7.10 of the final will (Termination Date – Winding up the Will Trust and Perpetuity Period) by adding the section of cl 9.13 of the Worrall’s draft which Carrie failed to incorporate into cl 7.10 of the final will. The relevant part of cl 9.13 is to be renumbered to reflect the fact that it is part of cl 7.10 of the final will:
On the Termination Date, all of the Capital available for Distribution that has not been the subject of a prior effective Determination of the Trustees, must be held by the Trustees:(a) for the Group 1 Beneficiaries and the Group 2 Beneficiaries who are alive on the Termination Date, all treated as one class, and if more than one as tenants in common in equal shares;
(b) if following the application of subclause 7.10(a), it is found that there are no Beneficiaries under that subclause who are alive on the Termination Date, then for the Group 3 Beneficiaries who are alive on the Termination Date, all treated as one class, and if more than one as tenants in common in equal shares;
(c) if following the application of subclause 7.10(b) it is found that there are no Beneficiaries under that subclause who are alive on the Termination Date, then for the Group 4 Beneficiaries who are alive on the Termination Date, all treated as one class, and if more than one as tenants in common in equal shares;
(d) if following the application of subclause 7.10(c), it is found that there are no Beneficiaries under that subclause who are alive on the Termination Date, then for the Group 5 Beneficiaries who are alive on the Termination Date, all treated as one class, and if more than one as tenants in common in equal shares; and
(e) if following the application of subclause 7.10(d), it is found that there are no Beneficiaries under that subclause who are alive on the Termination Date, then for my Next of Kin who are alive on the Termination Date.
And I confirm that those beneficiaries are deemed, by virtue of this clause, to be Beneficiaries of the Trust for the purposes of the application of the termination or winding up of the Trust.
Are clauses 6.1(a) to (g) and 6.3 void for uncertainty by prescribing cash gifts ‘up to’ a specified amount?
17 Clause 6.1(a) to (g) stipulate that each of the testamentary trusts will receive a cash gift of ‘up to’ a specified amount. Clause 6.3(a) to (f) provides that ‘[t]he Cash Gift is up to a maximum of’ a specified amount. Clause 6.5 provides:
In the Event of a Shortfall of Residuary FundsIf there are not enough Residuary Funds from the Estate to provide the maximum amount for these Cash Gifts as listed in clause 6.3 then these Cash Gifts received by each Trust are to be reduced by an equal dollar ($) amount thus giving an equal TOTAL dollar ($) value to each Trust.
18 Ms Sparke submitted that the phrase ‘up to’ in cl 6.1(a) to (g) and 6.3(a) to (f) could render the provisions unenforceable because of uncertainty as to the actual amount of the give to the relevant trust.
19 I do not consider that there is any ambiguity arising from the use of the phrase ‘up to’ in cl 6.1(a) to (g) and 6.3(a) to (f). When these clauses are read in conjunction with cl 6.5 the result is that the quantum of the cash gift is the designated amount, albeit that the amount actually received is liable to be reduced in accordance with cl 6.5 if there are insufficient Residuary Funds from the estate to provide the maximum amount of the cash gift prescribed.
Clause 6.2: Capital gains tax
20 Clause 6.2 of the final will provides:
The following provisions apply to the Gifts of real property in clause 6, except where otherwise provided in this Will:...
(d) My Estate is to pay all Capital Gains Tax that occurs as a result of the execution of this will.
...
21 Carrie deposed to a discussion which she had with Mr Hely prior to the execution of the final will regarding capital gains tax:
I also recall pointing out to the Testator that he had crossed out clause 8.2(d) in the Worrall’s Draft Will which dealt with capital gains tax. He said words to the effect of, ‘I want you all to be equal in terms of the bottom line, so the capital gains tax gets paid out of the estate first.’ On the final page of the Valuation of Trusts document under the heading ‘less liabilities’ is the entry ‘DTH Income Tax & Capital Gains Tax on 4 Melbourne flats & shares (est) − $500,000.’ He told me that he had estimated the capital gains tax and the income tax that would apply to the three Prahran flats (being Highbury Grove, Grandview Grove and Shirley Grove) and the Mornington property. He clearly stated that he didn’t want one child to have the burden of a post capital gains tax property, and the others to have the benefit of a pre capital gains tax property.[4]
I hold the beliefs as set out in the previous paragraph of my affidavit based on a conversation the Testator had with me in or around August or September 2015, in which the Testator told me that some of his properties and shares will attract capital gains tax after he dies. The Testator told me during this conversation that the properties that I was getting under his Will had increased substantially in value, and said words to the effect of ‘with the four flats you’re getting, you will have capital gains tax’. He also said words to the effect of, ‘my estate will pay those capital gains taxes.’Clause 6.1(e) of the Final Will (in exhibit CMA-1 to my First Affidavit) which lists the assets to be held in the Daryl T Hely Will Trust No. 5 (of which I am named as trustee) includes four flats, being the properties located at 14/35A Grandview Grove, Prahran East, 14/10 Highbury Grove, Prahran East, 12/20 Shirley Grove, East St Kilda and 3/25 Wilsons Road, Mornington. The Testator also explained to me during this conversation that the capital gain will be reduced by 50%, because there is a 50% discount for individuals.[5]
23 The evidence referred to above supports a finding that it was Mr Hely’s intention that Carrie should not be prejudiced by reason of the four properties gifted to the Daryl T Hely Will Trust No 5 (of which she was both a trustee and beneficiary) incurring capital gains tax liability. It is also clear from the evidence set out above that Mr Hely assumed that only the properties gifted to the Daryl T Hely Trust No. 5 had potential capital gains tax liability.
24 Mr Hely intended that his seven children be treated equally in respect of capital gains tax liability. He assumed that only the properties gifted to the Daryl T Hely Will Trust No 5 had potential capital gains tax liability. He did not wish Carrie to be prejudiced by reason of this. The evidence presently before the court does not permit rectification of the final will to give effect to Mr Hely’s intention that his seven children be treated equally in terms of capital gains tax liability. I am not satisfied that the properties acquired by Mr Hely prior to 20 September 1985 gifted to the Daryl T Hely Will Trust No 1, 2, 3, 4, 6 and 7 will be fully exempt from capital gains tax liability. Although the matter was not the subject of any detailed submissions, it appears that whether a property acquired by Mr Hely prior to 20 September 1985 is capital gains tax exempt depends upon a number of factors, including:
(i) Whether the property was his main residence;(ii) Whether the property was used to produce income; and
(iii) Whether the property is disposed of within two years of Mr Hely’s death, or after two years where the Australian Tax Office grants an extension of time within which the property may be disposed of.
25 In order to rectify the will to give effect to Mr Hely’s intention that his children be treated equally in respect of capital gains tax liability, there would need to be evidence from a suitably qualified accountant regarding the potential capital gains tax liability of all properties gifted to the seven testamentary trusts. Further, before rectifying the will by way of a term premised upon a payment of an amount equivalent to notional capital gains tax liability which would have been incurred if a property had been sold in December 2016, there would need to be evidence of property valuations at that time relative to the cost of acquisition, and potential capital gains tax liability based on those valuations.
26 The draft order proposed by Ms Sparke in respect of cl 6.2(d) is as follows:
Order that clause 6.2(d) be construed as if it read ‘my residuary estate is to pay an amount equal to what the Capital Gains Tax would have been had the property been disposed of at the date of my death by the child who is named as trustee of the relevant trust.’
27 If capital gains tax can be avoided by a trust disposing of a property within two years of Mr Hely’s death (or such longer period as is approved by the Australian Tax Office), about which I express no concluded view, it is questionable whether there would be a proper basis for making an order in the terms sought by the plaintiffs. If such an order was made, a payment could be made out of the estate equal to the capital gains tax which would have been incurred if a property had been disposed of at the date of Mr Hely’s death, notwithstanding that capital gains tax liability could thereafter be avoided by the disposal of the property.
28 I will grant liberty to the executors to make a further application for rectification of cl 6.2(d) supported by evidence regarding the potential capital gains tax liability of all properties gifted to the seven testamentary trusts.
Gifts to grandchildren
29 Clause 4.1 of the final will makes gifts of $25,000 to each of Mr Hely’s grandchildren. Relevantly, cl 4.1 provides:
I give separate Gifts of twenty five thousand dollars ($25,000) to each of my grandchildren who:(a) are alive at the date of my death, or are born within twelve (12) months of the date of my death; and
(b) attain the age of eighteen (18) years.
I confirm for the avoidance of doubt that each of my grandchildren is to receive a separate Gift of the amount stated.
If any grandchild of mine dies before me, or dies before attaining the age of eighteen (18) years, then no default provisions apply in relation to their Gift, and that Gift is not made.
...
30 Clause 5 provides as follows:
Provision Where a Gift is Made Which Does not Vest Until a Beneficiary Attains a Particular AgeAny part of my estate that is held for a Beneficiary by my Executor, where the gift is made in a form that it does not vest until the Beneficiary attains a particular age, must be held upon the following terms:
(a) My Executor is to create separate shares for each of those Beneficiaries;
(b) My Executor must transfer the trusteeship of each share to my child who is the parent of the Beneficiary of that share, to hold that share on the trusts contained in this Will. My Executor receives a full release and discharge by delivering the share to the new trustee, and is not bound to see to the application of the relevant Gift;
(c) The Capital sum of each share is to be held as follows:
(i) until the Beneficiary attains the age of twenty one (21) years of age the Income from that share is to be paid to the benefit of that Beneficiary;(ii) on attaining the age of twenty one (21) years the Beneficiary is to be paid the then remaining Capital of the share; and
(d) If a Beneficiary for whom a contingent share is held under the terms of this clause does not survive to the vesting age, then the Capital of that share is to be held in accordance with the default provisions contained in the clause that made the Gift of that share.
31 Clause 4.1 expressly provides that the gift of $25,000 to each of Mr Hely’s grandchildren does not vest until the grandchild attains the age of 18 years. On the other hand, cl 5(c) assumes that the gifts do not vest until the grandchildren are 21 years of age.
32 Clause 6.1 of the Worrall’s draft made provision for gifts of $15,000 to each of Mr Hely’s grandchildren who attained the age of 21 years. Clause 6.1 was in the following terms:
I give separate Gifts of fifteen thousand dollars ($15,000) to each of my grandchildren who:(a) are alive at the date of my death, or are born within twelve (12) months of the date of my death; and
(b) attain the age of twenty one (21) years.
I confirm for the avoidance of doubt that each of my grandchildren is to receive a separate Gift of the amount stated.
If any Grandchild of mine dies before me, or dies before attaining the age of twenty-one (21) years, then no default provisions apply in relation to their Gift, and that Gift is not made.
33 Clause 4.1 of the final will deals with the same subject matter as cl 6.1 of the Worrall’s draft. However, there are two significant differences. First, the amount of the bequest has been increased from $15,000 to $25,000. Second, the vesting age has been reduced from 21 years to 18 years. By prescribing a vesting age of 21 years, cl 5 does not give effect to Mr Hely’s instructions to amend the Worrall’s draft to provide for a vesting age of gifts to grandchildren to be 18 rather than 21 years of age. I shall order that the will be rectified such that the reference to ‘twenty one (21) years of age’ and ‘twenty one (21) years’ in cls 5(c)(i) and (ii) be deleted and replaced with ‘eighteen (18) years of age’.
Clauses 6.5 and 6.6: Shortfall/excess of residuary funds
34 Clauses 6.5 and 6.6 provide as follows:
6.5 In the Event of a Shortfall of Residuary FundsIf there are not enough Residuary Funds from the Estate to provide the maximum amount for these Cash Gifts as listed in clause 6.3 then these Cash Gifts received by each Trust are to be reduced by an equal dollar ($) amount thus giving an equal TOTAL dollar ($) value to each Trust.
6.6 In the Event of an Excess of Residuary Funds
If there are excess Residuary Funds available from the Estate, over and above what is required to provide the maximum Cash Gift to each Trust as specified in clause 6.3, then each Trust is to receive the maximum Cash Gift. Any excess funds are then to be gifted to a worth charity or charities chosen at the discretion of my Executor in consultation with the Trustees.
35 The ‘Cash Gifts as listed in clause 6.3’ are the cash gifts totalling $6,440,000 to be paid to the seven testamentary trusts. Ms Sparke submitted that there is uncertainty as to whether ‘Residuary Funds’ is intended to apply only to cash, or to any assets which might otherwise be called ‘residue’. I do not consider there is any ambiguity attending the phrase ‘Residuary Funds’. The phrase refers to the cash in the estate available for distribution after the distribution of the specific cash gifts totalling $1 million provided for in cl 4.1 to 4.6 as follows:
4.1: Gifts to grandchildren: $550,0004.2: Gift to the spouses of Mr Hely’s children: $25,000
4.3: Gift to Danielle: $150,000
4.4: Gift to Helen Lunn: $100,000
4.5: Gift to Caritas Australia: $150,000
4.6: Gift to Executors in lieu of Executor’s Commission: $25,000.
36 The cash gifts to the seven testamentary trusts prescribed by cl 6.1(a) to (g) total $6,440,000. Combined with the specific cash gifts in cl 4.1 to 4.6 of $1 million, the final will provides for total cash gifts of $7,440,000. The effect of cl 6.6 is that if there is any cash left in the estate following the distribution of $7,440,000, the funds are to be distributed to a charity or charities chosen at the discretion of the executors in consultation with the trustees.
Conclusion
37 The final will shall be rectified as follows:
(a) the insertion of cl 7.5A in accordance with paragraph [15] of this judgment;(b) amendment of cl 7.10 in accordance with paragraph [16] of this judgment; and
(c) deleting the reference to ‘twenty one (21) years of age’ and ‘twenty one (21) years’ in cls 5(c)(i) and (ii), and inserting in lieu thereof ‘eighteen (18) years of age’.
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[1] Affidavit of Carole-Marie Arbuthnot sworn 24 November 2017, [43].
[2] Ibid [44].
[3] Ibid [64].
[4] Ibid [56].
[5] Supplementary affidavit of Carole-Marie Arbuthnot sworn 30 August 2018, [17].
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