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Supreme Court of Victoria |
Last Updated: 12 November 2024
AT MELBOURNE
TRUSTS, EQUITY AND PROBATE LIST
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JUDGE:
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WHERE HELD:
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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 judicial advice – Construction of will – Plaintiff seeks declaration of entitlement to property devised by will – Testamentary intention – Where property devised to plaintiff subject to condition to pay all rates, taxes and outgoings – Where plaintiff substantially in arrears in respect of payment of outgoings – Condition not fulfilled – Gift over of property to defendants – Plaintiff entitled to indemnity for expenses incurred on improvements to property as executor – Supreme Court (General Civil Procedure) Rules 2015 O 54, r 54.02 – Guardianship and Administration Act 2019 – Re Williams (1885) 54 LT 105 – Wright v Wilkin [1860] EngR 1219; (1860) 121 E.R. 1060 Gill v Gill [1921] NSWStRp 39; (1921) 21 SR (NSW) 400 – Fell v Fell (1922) 31 CLR 268 – Re Goodwin [1924] 2 Ch 26 – Perrin v Morgan [1943] AC 399 – Re Porter; Logan v Northern Bank Ltd and Others [1975] NI 157 – Morris v Smoel [2013] VSCA 11 – Marley v Rawlings [2014] UKSC 2; [2015] AC 129 – Greenham v Greenham [2020] VSC 749.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Maurice Blackburn
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For the Defendants
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1 This is an application under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 by the executor of the deceased estate of Valerie Irene Tootell for judicial advice in relation to the proper construction of clause 5 of the deceased’s last will made on 20 January 1994 (the Will).[1]
2 The deceased died on 2 February 2004 at
75 years of age. She was predeceased by her husband Sydney
Tootell[2] and survived by four adult
children: [3] Kaye McVeigh, Susan
Moffitt, Kenneth Tootell and Gary
Tootell.[4] Susan and Kaye died on 12
March 2006 and 10 December 2021 respectively. Gary was born with an
intellectual disability and difficulties
with his vision. He is the subject of
orders made under the Guardianship and Administration Act 2019,
appointing State Trustees Ltd (State Trustees) as his
administrator.
3 The plaintiff is one of the
deceased’s grandchildren, being one of Susan’s four
children.[5] He was born when Susan
was about 18 years old and was, in effect, raised by the deceased from when he
was about five years of age.
The plaintiff and the deceased had a loving
relationship; the deceased cared for the plaintiff and treated him as a son, and
the
plaintiff treated her as a mother.
4 The plaintiff commenced living with the
deceased and her husband Sydney at their home at 3 Margaret Crescent, Braybrook
(the Braybrook property) in about 1974 when he was about five years of
age. In the following years while the plaintiff was at school, the
deceased’s
children (other than Gary) moved out, leaving the deceased and
her husband living at the Braybrook property together with the plaintiff
and
Gary.
5 The plaintiff left school at 15 and started
work, but remained living at the Braybrook property at all times thereafter,
except
than for a period of less than six months in about 1990. At least until
when the deceased died, the plaintiff paid board, and assisted
with jobs around
the house, including mowing the lawns, gardening, and basic maintenance.
6 Although the deceased was diagnosed with
cancer in about 1997, the plaintiff only became aware of the diagnosis in about
January
2004, some three months before she passed away. Around this time, Susan
moved into the Braybrook property to help care for the deceased
and Gary.
7 Shortly before she died in 2004 when she was
receiving palliative care at hospital, the deceased told the plaintiff that she
was
worried about what would happen to Gary when she was gone and that she was
worried he would be ‘placed in a home and forgotten
about’. She
said that she did not think the plaintiff would ‘stick around’
because he had a full time job and
looking after Gary would be ‘too much
to handle’. In response, the plaintiff promised the deceased that he
would look
after Gary, that he would make sure he was able to enjoy everything
that he enjoyed doing, and that he would maintain Gary in the
Braybrook property
for as long as he was able.
8 After the deceased
passed away, the plaintiff and Gary continued residing together at the Braybrook
property. With the assistance
of disability care workers, the plaintiff was
solely responsible for Gary’s day-to-day care. Responsibility for
Gary’s
finances rested with his brother Kenneth who was appointed as
Gary’s administrator by order of VCAT on 30 April
2004;[6] Kenneth deposited $450 a
fortnight into a bank account set up to pay for Gary’s food and other
expenses.
9 In about 2013, Gary’s eyesight
deteriorated and he began to experience more frequent and severe schizophrenic
episodes. As
a consequence, the plaintiff was frequently interrupted at work by
calls from Gary’s carers. Worried that he would lose his
job, the
plaintiff resigned his employment in about 2013 and became Gary’s
full-time carer.
10 Gary suffered a fall in about
January 2020 and was taken to Footscray Hospital. Doctors determined that he
could not return to
the Braybrook property, and that he would need to move into
care. Gary moved into aged care in March
2020.
11 On 1 June 2021, State Trustees made an
application on behalf of Gary seeking further provision from the
deceased’s estate
pursuant to Part IV of the Administration and Probate
Act 1958. In the course of that proceeding, it became apparent that there
was an issue regarding the construction of clause 5 of the deceased’s
Will
which required resolution; this proceeding was in due course commenced.
The Will and administration of the deceased’s estate
12 The deceased made the Will on 20
January 1994, about three months after her husband passed away. By her Will,
which was prepared
by solicitors, the deceased appointed Susan and the plaintiff
as executors and trustees of her estate; they obtained a grant of probate
on 25
March 2004.[7] The inventory filed
with the application for a grant of probate shows that the value of the
deceased’s estate was overwhelmingly
constituted by the Braybrook
property.[8] Except for the matters
raised in this proceeding, no other issues arise about their administration of
the deceased’s estate.
The estate has been solely administered by the
plaintiff since Susan’s death in 2006.
13 Pursuant to the Will, the deceased bequeathed
her personal property to her daughters Susan and Kaye, and devised the Braybrook
property pursuant to clause 5, with the residue of her estate to pass to Gary.
The deceased also recorded that she did not make any
provision for her son Craig
because of ‘his lack of responsibility and his attitude towards [her]
during [her] lifetime’.
14 Clause 5 of the
Will provides as follows:
I DEVISE my real estate known as 3 Margaret Crescent, Braybrook in the said State or any other real estate owned by me at the date of my death and occupied by me as my principal place of residence AND BEQUEATH the furniture and furnishings contained therein UNTO MY TRUSTEES UPON TRUST to permit my son GARY JOHN TOOTELL and my grandson the said MICHAEL JOHN TOOTELL to reside therein for the term of the life of my son the said GARY JOHN TOOTELL or until such time as in the opinion of the majority of them my Trustees and my son the said KENNETH WAYNE TOOTELL the said GARY JOHN TOOTELL ceases to occupy the said property as his principal place of residence. It shall be an express condition of the right of my grandson the said MICHAEL JOHN TOOTELL to occupy the said property as aforesaid that he shall pay all rates, taxes and outgoings in respect of the said property (inclusive of any Mortgage repayments) and shall keep the same insured against all appropriate risks to the satisfaction of my Trustees and further shall maintain the said property in a good and habitable state of repair to the satisfaction of my Trustees and shall not call upon my son the said GARY JOHN TOOTELL to contribute whatsoever to these outgoings. On the death of my son the said GARY JOHN TOOTELL or on him ceasing to occupy the said property as his principal place of residence as aforesaid I devise the said real estate and bequeath the said furniture and furnishings to my grandson the said MICHAEL JOHN TOOTELL for his own use and benefit absolutely PROVIDED he has fulfilled the obligations of his right to occupy the said property as aforesaid to the satisfaction of my other Trustee the said SUSAN MARGARET MOFFITT. In the event of my grandson the said MICHAEL JOHN TOOTELL predeceasing my son the said GARY JOHN TOOTELL or in the event of my said grandson failing to fulfil the conditions of his right to occupy the said property or on him electing to vacate the said property whichever event shall first occur I devise the said real estate and bequeath the said furniture and furnishings unto such of them as shall survive me my daughters the said SUSAN MARGARET MOFFITT and KAYE LORRAINE TOOTELL and my son the said KENNETH WAYNE TOOTELL and if more than one in equal shares as tenants in common and Section 31 of the Wills Act shall not apply.
15 Clause 5 of the Will provides, amongst
other things, for the Braybrook property to be devised to the plaintiff on
Gary’s
death ‘or on him ceasing to occupy the said property as his
principal place of residence’. It is apparent that this
condition was
fulfilled after Gary moved into aged care in March 2020.
16 In those circumstances, the controversy
involving the construction of clause 5 arises as follows:
(a) Pursuant to clause 5, the Braybrook property is to be devised to the plaintiff subject to the proviso that ‘he has fulfilled the obligations of his right to occupy the said property as aforesaid...’. These ‘obligations’ are to be understood as a reference to the ‘express condition’ to which the plaintiff is subject identified earlier in clause 5: that, amongst other things, he shall,:
... pay all rates, taxes and outgoings in respect of the said property.
(b) In the circumstances that have happened as detailed below, the plaintiff has fallen into arrears in respect of council and water rates payable in respect of the Braybrook property.
(c) Clause 5 of the Will provides that, if the plaintiff fails ‘to fulfil the conditions of his right to occupy’ the Braybrook property, the property is to be devised to Susan, Kaye and Kenneth as tenants in common in equal shares.
17 As to each of the affected beneficiaries referred to in the preceding subparagraph:
(a) Kenneth is the first defendant in the proceeding. He was served with the Originating Motion, but did not file a notice of appearance.
(b) As I have noted, Susan died on 12 March 2006. Susan’s estate is described as the second defendant in the proceeding, but her estate does not have a legal personal representative. The beneficiaries of her estate are her four children: the plaintiff, Jacalyn, Wayne and Cameron. Service of the Originating Motion was effected on Jacalyn and Cameron; Wayne was not able to be located despite extensive efforts.
(c) As I have noted, Kaye died on 10 December 2021. State Trustees is the administrator of her estate. In correspondence to the Court, State Trustees advised that it did not intend to participate in this proceeding.
None of the above named persons appeared
at the hearing of the proceeding.
18 Pursuant to r
54.02(2)(a)(i) of the Rules, the plaintiff seeks the determination of two
questions said to arise in the administration
of the deceased’s
estate:[9]
(a) whether, under clause 5 of the Will, the plaintiff, or the defendants, or some other person, are entitled to the gift of the Braybrook property; and
(b) further or alternatively, whether the plaintiff is entitled to be reimbursed for outgoings and expenses paid by him in respect of the Braybrook property, in the period from the deceased’s death until March 2020, or any other date, and if so, the amount that the plaintiff is entitled to be reimbursed.
19 The plaintiff seeks that the Court make the following declaration:
Under clause 5 of the will of the abovenamed deceased dated 20 January 1994, in the events that have occurred, the plaintiff is entitled for his own use and benefit absolutely to the abovenamed deceased’s property at 3 Margaret Crescent, Braybrook, Victoria, more particularly described in Certificate of Title Volume 0879 Folio 615 and the furniture and furnishing contained therein.
20 In the alternative, the plaintiff seeks a declaration that he is entitled to be reimbursed for outgoings and expenses paid by him in respect of the Braybrook property, in the period from the deceased’s death until March 2020, or any other date, in such sum as determined by the Court.
21 Before considering the issues of
construction of clause 5 of the Will raised by the plaintiff’s
application, it is necessary
to set out some additional facts about the payments
made by the plaintiff in relation to the Braybrook property, and the extent of
the arrears in respect of the property.
22 The
plaintiff’s evidence was that, until Gary ceased living at the Braybrook
property, the plaintiff paid the following amounts
in respect of the outgoings
on the property:
(a) $38,400 for electricity;
(b) $31,680 for gas;
(c) $10,242 for council rates; and
(d) $9,312 in home insurance.
The plaintiff did not ask Kenneth, as
Gary’s administrator, to pay any of the above outgoings. The plaintiff
also paid for a
number of modest improvements to the Braybrook property (the
improvements).[10]
23 The
plaintiff’s evidence was that, after he resigned his employment in about
2013, it became more difficult to pay the outgoings
on the Braybrook property
because his income had substantially decreased. Nevertheless, he deposed to
understanding that he remained
responsible for their payment under the Will.
24 Caveats were lodged
over the Braybrook property by City West Water Corporation on 27 November 2015
and by Maribyrnong City Council
on 11 February 2016, indicating that the
plaintiff has been in arrears in respect of those outgoings since at least those
dates.
When the proceeding was commenced in March 2023, $28,972.32 was
outstanding in respect of council rates on the Braybrook property
and $4,442.55
was outstanding in respect of water rates.
25 Since
commencing the proceeding, the plaintiff has taken the following steps towards
payment of the arrears in respect of the outgoing
on the Braybrook property:
(a) In May 2024, the Maribyrnong City Council accepted the plaintiff’s application to establish a payment plan in respect of the outstanding council rates pursuant to which $50 will be debited from the plaintiff’s nominated account twice a month.
(b) On 25 July 2024, the plaintiff paid $4,000 towards the outstanding water rates and submitted an application for a Water and Sewerage Concession. He deposed that he intends to establish a payment plan in respect of the outstanding water rates.
26 As the Court of Appeal stated in
Morris v Smoel,[11] the
purpose of r 54.02 of the Rules is to establish a procedure ‘to
enable a trustee or executor to obtain the direction or
opinion of the court on
a matter of administration or management, or as to the construction of the will
or trust instrument, without
the need to commence an administration suit with
all its attendant delay and
cost’.[12] The only
jurisdictional bar to the provision of advice is that an applicant must
‘point to the existence of a question respecting
the management or
administration of the trust property or a question respecting the interpretation
of the trust instrument’.[13]
That requirement is clearly satisfied in this
case.
27 The principles
which apply to the construction of wills were not controversial and were
summarised as follows in Greenham v
Greenham:[14]
The “fundamental rule” in construing a will “is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – which are the ‘expressed intentions’ of the testator”.[15] The task is to “find the deceased’s intention as expressed in her words in the will”;[16] “not what she meant to say, but what she actually said”.[17]
Unless indicated otherwise, the words used by a testator will be given their usual or ordinary meaning. However, as stated by Isaacs J in Fell v Fell, although a will:[18]
... must receive a construction according to the plain meaning of the words and sentences therein contained... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.
The following two other principles formed part of what Isaacs J referred to in Fell v Fell as ten ‘incontestable’ principles relevant to the construction of wills:[19]
An inference cannot be made “that did not necessarily result from all the will taken together”...A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed.
“We cannot give effect to any intention which is not expressed or plainly implied in the language of” the “will”... “You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication”.
A will is not, however, to be construed in a vacuum.[20] In Perrin v Morgan, Lord Romer referred to the:[21]
... 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. To understand the language employed by the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said.
By placing itself in the “testator’s armchair” in order to determine the testator’s intention, the Court is able to “consider the circumstances by which [the testator] was surrounded when he made his will”.[22] The surrounding circumstances may include evidence of the testator’s family, property, friends and acquaintances.[23]
Consideration of this type of extrinsic evidence is not limited to or conditional upon the existence of ambiguity in the terms of a will. Under the armchair rule, evidence of the factual matrix in which a testator made their will “is always admissible to explain what the testator has written, and to show the meaning of his words, and this evidence is totally distinct from evidence sought to be applied to prove the testator’s intention as an independent fact”.[24] As the High Court stated in King v Perpetual Trustees Company Ltd, “it is from the words of the will that the intention of the testator must be ascertained, 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”.[25] This reflects the fact that “the meaning of words varies according to the circumstances of and concerning which they are used”.[26]
This is consistent with the contemporary approach to the interpretation of contracts. In Marley v Rawlings, Neuberger LJ succinctly formulated that approach in the following terms:[27]
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.
Lord Neuberger continued:[28]
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.
Evidence which bears upon the factual context in which a will is made is therefore relevant to the task of construction. Lord Neuberger’s observations in Marley v Rawlings have been applied on numerous occasions by Australian courts in relation to the construction of wills.[29]
28 The primary task for the Court is to
determine whether, in the events that have occurred, the plaintiff has an
absolute entitlement
to the Braybrook property by operation of clause 5 of the
Will. The answer to this question principally turns upon a close examination
of
the deceased’s expressed wishes as conveyed by the text of clause 5.
29 Before analysing the text of clause 5, it is
appropriate to note, as counsel for the plaintiff submitted, two features of the
Will
which emerge from a consideration of its terms as whole and the
circumstances in which it was made. First, in making the Will soon
after her
husband passed away, it would appear that the deceased’s primary concern
was to provide for her disabled son Gary
for whom she had cared for his whole
life. The deceased appointed Kenneth as Gary’s guardian; conferred on
Gary a right to
reside for life at the Braybrook property; and gifted the
residue of her estate to him. Secondly, the overall scheme of provision
made by
the Will shows the deceased to have been a careful testator. She identified
specific gifts of personal property for Susan
and Kaye, explained why nothing
was left for Craig and, as analysed in detail below, established in clause 5 a
detailed set of rights
and obligations in relation to the occupancy and
ownership of the Braybrook property.
30 Clause 5 deals consecutively with four
related subject matters which it is necessary to separately
consider.
31 The
first part is uncontroversial. The clause commences with the
devise of the Braybrook property to the trustees (Susan and the plaintiff) to
permit Gary and the plaintiff to reside there for the term of Gary’s life
until such time, as in the opinion of the majority
of the trustees and Kenneth,
Gary ‘ceases to occupy the said property as his principal place of
residence’. This condition
was met on or after March 2020 when Gary moved
into aged care. As counsel submitted, the plaintiff is the sole remaining
trustee,
and he considers that Gary has ceased to occupy the Braybrook property
as his principal place of residence. There is no evidence
about Kenneth’s
opinion in relation to that matter and he has elected not to participate in the
proceeding.
32 The second part of
clause 5 is the stipulation of:
... an express condition of the right of my grandson the said MICHAEL JOHN TOOTELL to occupy the said property as aforesaid that he shall pay all rates, taxes and outgoings in respect of the said property (inclusive of any Mortgage repayments) and shall keep the same insured against all appropriate risks to the satisfaction of my Trustees and further shall maintain the said property in a good and habitable state of repair to the satisfaction of my Trustees and shall not call upon my son the said GARY JOHN TOOTELL to contribute whatsoever to these outgoings.
33 There are a number of important
features of this part of clause 5.
34 The
condition imposed on the plaintiff’s right to occupy the Braybrook
property is described as an ‘express condition’.
In testamentary
instruments, these words are capable of conveying that the condition identified
is absolute and peremptory.[30] In
my assessment, having regard to the deceased’s evident concern to ensure
that Gary was provided for after her death, they
carry this meaning in the
context of this part of clause 5 of the Will. The right of residency of the
Braybrook property conferred
on the plaintiff by this part of clause 5 is
subject to and dependent upon his ongoing compliance with the conditions
identified
which are substantial and comprehensive in scope. Three obligations
are specified: to pay rates, taxes and outgoings; to insure
the Braybrook
property; and to maintain it. Further, the plaintiff is prohibited from calling
upon Gary to make any contribution
to the outgoings.
35 Whereas the second and third of these two
obligations are to be discharged ‘to the satisfaction of’ the
trustees, the
obligation to pay rates and outgoings is not so qualified. This
difference was said by counsel for the plaintiff to be significant.
The
testator must be taken to have known that, in the ordinary course of human
experience, bills are sometimes paid late. With
that presumed knowledge, the
testator cannot be taken to have intended that any non-compliance with the
obligation to pay rates and
outgoings whatsoever would result in a default under
the clause. Such a strict interpretation would also be at odds with the
flexibility
provided for in relation to the other two obligations being met
‘to the satisfaction of’ the trustees.
36 It was submitted that it followed from this (and
the authorities considered further below), that the obligation on the plaintiff
to pay rates and outgoings should be interpreted as requiring only that the
plaintiff ‘took responsibility’ to pay them,
not necessarily that
they were in fact paid by him by their due date. In support of this
construction, the plaintiff laid emphasis
on the concluding words of this part
of clause 5 which prohibit the plaintiff from ‘call[ing] upon my son ...
Gary to contribute whatsoever to these outgoings’. It was
submitted that these words would have no work to do if clause 5 was understood
as imposing a strict obligation on the plaintiff to pay the outgoings; the
scenario of calling upon Gary to contribute to outgoings,
being the matter
prohibited by these words, could not have been envisaged by the deceased if her
intention had been for the plaintiff
to be strictly liable to pay all of the
outgoings. Such a construction would be contrary to the principle of
construction that words
should not be construed so as to be surplus to
requirements. On this approach, the purpose served by these concluding words
was
to elucidate the strictness of the obligation on the plaintiff to pay
outgoings: they made clear that there might be circumstances
when the plaintiff
did not pay all the outgoings, in which event he was prohibited from calling
upon Gary to meet those obligations.
37 I do not
accept these submissions.
38 First, they ignore the
clear and unambiguous language of clause 5 which requires the plaintiff to
‘pay all’ rates, taxes and
outgoings, without exception. A construction of clause 5 as relevantly only
requiring that the plaintiff ‘be
responsible’ for the payment of
rates, taxes and outgoings finds no anchor in the expressed wishes of the
testator as conveyed
in the words of clause 5, would involve the Court having to
read words into clause 5, and is deficient for certainty and clarity
of
meaning.
39 Secondly, the submissions proceed from a
false binary divide between the payment of bills within, and outside, the time
prescribed
for their payment. Clause 5 does not speak in these terms. It is
silent as to when rates, taxes and outgoings are to be paid. Generally
speaking, if no time is fixed for the fulfilment of a condition for a
testamentary gift, it must be fulfilled within a reasonable
time.[31] There is no reason not to
apply this approach in relation to the obligation on the plaintiff to pay rates,
taxes and outgoings in
accordance with clause 5 of the Will. Such an approach
avoids the potentially harsh scenario posited by the plaintiff of the right
to
occupy being lost upon the late payment de minimis of, for example, a
single water bill. However, the matters referred to in [24] leave no doubt that the plaintiff has
failed to pay council and water rates within a reasonable time.
40 Thirdly, although it may be accepted that the
deceased intended by clause 5 to establish an arrangement to ensure the
plaintiff
provided Gary with a roof over his head, as counsel accepted, the
obligation on the plaintiff to pay all rates, taxes and outgoings
evinces an
intention on the part of the deceased to ensure that Gary’s home, the
Braybrook property, was not placed in jeopardy.
It is the failure of the
plaintiff to pay these outgoings in a reasonable time, rather than whether he
has taken ‘responsibility’
to do so, which has jeopardised the
security of the property. Consistent with the ordinary meaning of the words of
clause 5 , this
purpose supports the clause being construed as in substance
requiring the plaintiff to pay all rates, taxes and outgoings within
a
reasonable time of them falling due and payable.
41 Fourthly, I do not consider the final words of
this part of clause 5 require any departure from the obligation on the plaintiff
to pay the outgoings within a reasonable time, as conveyed by the ordinary
meaning of the words that the plaintiff ‘shall pay
all rates, taxes and
outgoings’. One can conceive of a situation where the plaintiff actually
paid the outgoings, but called
on Gary to make a contribution to them by, for
example, paying, or reimbursing, the plaintiff directly. Notably, the
prohibition
is on the plaintiff calling on Gary to contribute
‘whatsoever’ to the outgoings. Seen in this way, the concluding
words
of this part of the clause are consistent with an overarching intention on
the part of the deceased to secure Gary’s living
arrangements after her
death by covering the field by ensuring that Gary did not carry any of the
burden for the payment of outgoings.
It follows from this that the general
principle of construction for the avoidance of surplusage is not engaged. In
any event, that
principle is not a rigid
one,[32] and must accommodate itself
to the fundamental principle that it is the duty of the Court to ascertain the
testator's intention,
and that words ought ordinarily to be given their ordinary
meaning.[33]
42 It
is convenient to consider the third and fourth parts
of clause 5 together. The third part relevantly deals with what is
to occur when Gary ceases to occupy the property as his principal place of
residence.[34] In that event the
property is devised to the plaintiff absolutely:
... PROVIDED he has fulfilled the obligations of his right to occupy the said property as aforesaid to the satisfaction of my other Trustee the said SUSAN MARGARET MOFFITT.
43 The
fourth part of clause 5 deals with
what is to occur in three situations, including
relevantly,[35] ‘in the event
of the plaintiff failing to fulfil the conditions of his right to occupy’
the Braybrook property. In that
circumstance, the property is to be devised to
Susan, Kaye and Kenneth in equal shares as tenants in
common.
44 Construed
strictly, because Susan is deceased, it would be impossible for the plaintiff to
satisfy the proviso in the third part
of clause 5. The plaintiff sought to
overcome this difficulty by relying on the following statement by Lowery LCJ in
Re Porter; Logan v Northern Bank Ltd and
Others:[36]
Whether a condition is precedent or subsequent has a bearing on the question whether that condition is void for uncertainty. In the latter case “the condition must be such that the court or the persons affected can see from the beginning, precisely and distinctly, upon the happening of what event the preceding vested interest is to determine”: Clavering v. Ellison (supra); Williams, 3rd ed., p 271. With a condition precedent the beneficiary needs only to establish that he satisfies the condition. If the condition involves questions of degree, the beneficiary will take if he can satisfy any reasonable test and it is not right for the court to declare a condition precedent void for uncertainty unless its terms are such that it is impossible to give them any meaning. The court will construe a condition precedent more leniently on the question of certainty because it is willing to facilitate the taking of a gift by a person who comes within any reasonable meaning of the condition but unwilling to divest a vested interest unless the circumstances which could lead to divesting are clear.
45 Assuming, without deciding, that such an approach may be applied to construe the third part of clause 5 in a way so as to avoid the apparent impossibility of satisfying that part of the clause, this does not touch upon the plaintiff’s failure to pay the rates and outgoings in respect of the Braybrook property within a reasonable time. For the reasons I have explained in respect of the second part of clause 5, it would therefore follow from the text of the clause that the plaintiff has not fulfilled the obligations of his right to occupy the property being the proviso upon which the third part of the clause operates.
46 The plaintiff relied upon a number of
contextual matters established by the
evidence[37] to support the
submissions outlined above in respect of the construction of the Will. Reliance
was placed upon the plaintiff’s
evidence that the deceased treated him as
a son, and that he treated her as his mother. Given that understanding of their
relationship,
it would be surprising if the deceased did not intend for the
plaintiff to obtain some benefit under the Will, particularly given
that she
took the trouble to explain why one of her children did not benefit under the
Will.
47 Reliance was also placed upon the
plaintiff’s evidence that he lived at the Braybrook property from when he
was five years
of age. This provided some insight as to why the deceased would
want the plaintiff to receive the whole of the Braybrook property
as a gift and
to establish arrangements whereby Gary would be entitled to live at the property
for the whole of the plaintiff’s
life, after which time it would pass to
the plaintiff. To similar effect, it was submitted that the inherent logic of
the arrangements
established by the Will was underlined by the plaintiff’s
evidence that he had paid board and contributed to the maintenance
of the
Braybrook property in various ways from when he left school at the age of 15.
As the plaintiff had been contributing to the
upkeep of the property for many
years, it would make sense for the deceased to wish to continue this arrangement
so as to ensure
that a roof was provided over Gary’s
head.
48 While the evidence referred to in the
previous paragraphs provides insight into the general context in which the Will
was made,
it is of little utility in determining the proper interpretation of
clause 5 in the context of the events that have occurred. In
particular, no
submission was made that this evidence shed any light on the meaning to be
attributed to any of the words used in
clause 5. As was submitted on behalf of
the plaintiff, the deceased was a careful testator who went to the trouble of
constructing
a relatively elaborate set of provisions and conditions for the
disposition of the Braybrook property. It is uncontroversial from
the terms of
the third part of clause 5 that the deceased wanted the plaintiff to benefit by
devising the Braybrook property to him.
However, that intention was subject to
the express proviso that the plaintiff ‘has fulfilled the obligations of
his right
to occupy’ the property. The above aspects of the factual
context in which the Will was made are of no assistance in determining
the
proper construction of this proviso. Ultimately, that task must be undertaken
by focusing on the words used by the testator
in clause 5 in the context of the
Will read as a whole.
49 The plaintiff also relied
on his evidence that the deceased often said to him that when she died
‘the house is going to you’.
Although counsel for the plaintiff
properly acknowledged that this evidence was not admissible insofar as it was
relied upon as
a statement of the deceased’s subjective intention, it was
said to be admissible and relevant in that, from the perspective
of the
‘testator’s armchair’, having made the statement, it was
unlikely that the deceased would have intended
a strict reading of the
obligations in clause 5 to be adopted. I do not accept that submission. There
is nothing inherently inconsistent
between the plaintiff making a general
representation to the effect identified, but simultaneously proceeding on the
basis that the
gift of the Braybrook property to the plaintiff was contingent
upon him meeting the expressed proviso contained in clause 5. It
provides no
licence to ignore those words of the Will.
50 The
plaintiff also relied upon evidence he gave about his last conversation with the
deceased which occurred while she was in hospital
some three days before her
death.[38] This evidence is
incapable of shedding light on the deceased’s intention when she made the
Will some 10 years earlier.
51 For the above
reasons, the various contextual matters relied upon by the plaintiff do not
materially assist in the task of construing
the deceased’s testamentary
intentions as expressed in the Will.
52 The plaintiff relied on four
authorities in support of his construction of clause 5 of the
Will.
53 In Re
Williams,[39] a testator gave
his buildings and real estate to his trustees upon trust for successive tenants
for life, with a direction that,
during their tenancy, each tenant should keep
the buildings in substantial repair and that, if they did not, the trustee was
to effect
the repairs by recourse to trust moneys. The testator’s widow
was the first tenant for life; she omitted to keep the property
in repair. The
trustees and the equitable tenant for life brought an administration action
against the widow’s estate for
her failure to repair the
property.
54 The Court of Appeal affirmed the
decision at first instance that the claim by the trustees was properly made and
that they had
a remedy in equity. Of most relevance are the observations of
Brett MR who referred to the construction of the testator’s
will as being
that every person who took as a tenant for life, took the benefits subject to an
obligation that, while a tenant, they
would keep the premises in repair. If a
will gives a benefit and ‘attaches to it a certain burden’, in
taking the benefit
a beneficiary ‘must also acknowledge the liability or
burden; and that, if he does not, he has come under an equitable liability
which
a court of equity will
enforce’.[40]
55 In
Gill v Gill,[41] a testator
devised a farm and homestead to his son on certain conditions including that he
keep the homestead as a home and permit
his sisters to reside there while they
remained unmarried. One of the sisters alleged that the testator’s son
had allowed
the rooms allotted to her in the homestead to become so ruinous and
dilapidated that they had become dangerous and uninhabitable.
She sought a
declaration that the son had forfeited his interest under the will for breach of
the condition. Although Harvey J
found that the conditions specified in
the will were not conditions of forfeiture, he made a declaration to the effect
that the plaintiff
was entitled to call upon the defendant to carry out the
conditions imposed on him by the will to keep the homestead as a home; the
obligations imposed upon the son by the will were enforceable either
specifically or by way of
compensation.[42]
56 In
Re Goodwin,[43] a testator
bequeathed his wife an annuity of £500 in lieu of and in substitution for
an annuity of £70 which the testator
had separately covenanted to pay. The
will specifically provided that the bequest of £500 would be voided unless
the testator’s
wife released and discharged the estate from payment of the
annuity of £70. The wife did not comply with this condition. The
question
arose as to whether the executors of the wife’s estate were entitled to
claim the annuity of £500, or whether
the failure to comply with the
condition deprived them of that
right.
57 Romer J identified the relevant
principles as follows:[44]
... where a gift in a will is made subject to a condition, even a condition precedent, to be performed within a specified time, but the condition is not in fact performed within that time, then, at any rate in the absence of an express gift over, it is always a question for the Court to determine whether the time so specified was of the essence of the matter. In determining that question the Court must have regard to what was presumably the intention of the testator in inserting the condition, what it was that he desired to bring about or to guard against; and if the Court finds that a performance of the condition at a time subsequent to the expiration of the period fixed by the testator in substance provides for the very thing that the testator intended to provide for, so that all parties can be put in substantially the same position as they would have been in had the condition been performed within the proper time, time is not regarded as of the essence, and such performance is treated as a sufficient compliance with the condition.
58 Applying this principle to the circumstances of the case, Romer J reasoned as follows:[45]
... the only object of the testator in imposing the condition that the £70 annuity should be released was that the lady should not be paid both the annuity and the £70 a year. His only object in fixing a time within which the release should be executed was to enable the executors to make an early distribution of his estate amongst the beneficiaries. In point of fact, as I have already said, the £500 a year was never paid nor was any part of it, and indeed, having regard to the state of the testator’s assets, it was not possible to pay any beneficiary during her lifetime. If therefore she were now living and were to release her claim to the £70 a year as from the testator’s death, she would have complied in substance with the condition and done that which the testator intended should be done. An execution of a release by her at the present time would, so far as the other parties are concerned, have precisely the same effect as though she had executed the release within the six months specified by the testator. If therefore she were still living, I should have no hesitation in saying, following the authority to which my attention has been called, that an execution of the release by her now would be a sufficient compliance with the condition expressed in the testator’s will.
59 Re Porter concerned an action
for a declaration in relation to a will in which a testator devised and
bequeathed his interest in a business
and its premises to his brother, subject
to the brother paying £4,000 to the testator’s trustees and
executors. The will
also provided that, in the event that this amount was not
paid within six months of the date of the testator’s death, the devise
would be revoked and the relevant assets would fall into residue. The brother
did not make payment of £4,000. Two of the testator’s
children (the
residuary estate under the will was held on trust for the testator’s
children and grandchildren) brought an action
for the administration of the
deceased’s estate.
60 One of the questions
for determination was whether the condition requiring the payment of £4,000
was void for uncertainty.
Lowry LCJ considered that the determination of
that question was affected by whether the condition was a condition precedent or
a condition subsequent. He
stated:[46]
With a condition precedent the beneficiary needs only to establish that he satisfies the condition. If the condition involves questions of degree, the beneficiary will take if he can satisfy any reasonable test and it is not right for the court to declare a condition precedent void for uncertainty unless its terms are such that it is impossible to give them any meaning. The court will construe a condition precedent more leniently on the question of certainty because it is willing to facilitate the taking of a gift by a person who comes within any reasonable meaning of the condition but unwilling to divest a vested interest unless the circumstances which could lead to divesting are clear.
61 Although Lowry LCJ found that the
condition was a condition subsequent, in obiter dicta, he stated that, if
it was a condition precedent, although the condition had not been performed
within the stipulated time and had
not yet been performed, ‘it would be
open to the court to grant relief against the condition while maintaining the
position
that the gift is still subject to the payment of £4,000 to the
trustees for the benefit of the
estate’.[47]
62 Counsel
for the plaintiff submitted that the above authorities supported the following
two interrelated propositions:
(a) In construing
conditional testamentary gifts where there the relevant condition or obligation
has not been fulfilled, by having
regard to the ‘practical outcomes’
or ‘practical reality’ of alternative constructions, the Court has a
‘constructional
choice’ between depriving a person of the benefit of
the gift, or to instead allow them to take the benefit subject to the
imposition
on them of an equitable obligation to pay the commensurate liabilities. A will
need not be strictly construed so as to
deprive absolutely the person of the
benefit of a gift.
(b) The Court will err on the
side of not depriving a beneficiary of a gift on the basis of a ‘too
strict’ a reading of
the relevant condition or obligation, and will
instead adopt a construction that, if a person takes the benefit under the will,
they
will remain liable to meet the conditions or obligations attaching to the
gift.
63 Applied to the circumstances of this case,
it was submitted that these principles permitted the Court to adopt the view
that, in
the ‘practical reality’ in which clause 5 of the Will was
to be construed, no person was worse off as long as the plaintiff
accepted
responsibility for payment of the arrears. If the plaintiff accepted
responsibility in that regard, which he had done, he
would receive the benefit
of the gift of the Braybrook, but the property would be charged with and subject
to an obligation to pay
the arrears.
64 The
authorities on which the plaintiff relied do not expressly posit or affirm
either of the general propositions set out in [55] which I was invited to accept.
Neither was I directed to any other authorities which recognised any such
principles of general
application said to emerge from these authorities. A
proper basis has not been established for the Court to have regard to these
authorities beyond their own factual context, all of which are materially
different to the facts of the present matter and therefore
readily
distinguishable. Furthermore, the propositions advanced on behalf of the
plaintiff are liable to distract from the Court’s
essential task of
construing a testator’s wishes in accordance with the principles
summarised in [27] above. In
undertaking that task, the Court must be vigilant to guard against an approach
to the construction of a will in which,
under guise of appeals to considerations
of ‘practical reality’, would involve the Court in engaging in a
process of
adjusting the rights and entitlements under the will by reference to
claims about who is, and who is not, ‘worse off’
under particular
constructions.
65 The task is to ascertain the
deceased’s testamentary intentions as expressed in the words of the Will,
aided by those facts
and circumstances known to her when the Will was made which
are capable of shedding light on the interpretation of the words of the
Will.
The authorities on which the plaintiff relied do not assist in that task. In
that regard, one particularly important distinguishing
feature of the present
matter may be noted: whereas the fourth part of clause 5 contains a gift over of
the Braybrook property to
Susan, Kaye and Kenneth, the wills the subject of the
above authorities relied on by the plaintiffs did not contain any equivalent
gift over provision. It is not apparent to me how the two propositions advanced
on behalf of the plaintiff are capable of being
reconciled with a testamentary
instrument in which a testator has specifically directed that other persons are
to take in the event
that another does not comply with the condition attached to
a gift.
66 The fourth part of clause 5 provides
that, ‘in the event of [the plaintiff] failing to fulfil the conditions of
his right
to occupy’ the Braybrook property, the property is to be devised
to Susan, Kaye and Kenneth in equal shares as tenants in common.
Properly
construed in the context of the Will as a whole, in the events that have
occurred, this is precisely what has occurred.
As at March 2020 (and at the
time of the hearing), the plaintiff had not paid all of the rates, taxes and
outgoings in respect of
the Braybrook property which were then payable and
outstanding; he had thereby failed to fulfill one of the absolute and peremptory
conditions on which the devise to him of the property was stipulated by the
deceased. Susan, Kaye and Kenneth are accordingly entitled
to the Braybrook
property as tenants in common.
67 Although the
plaintiff has failed in his primary claim, he is entitled to succeed, in part,
in respect of his alternative claim
for an indemnity in respect of expenses he
has incurred in undertaking certain improvements to the Braybrook property. The
evidence
establishes that, in his capacity as executor the deceased’s
estate, the plaintiff expended $15,269 in respect of the improvements
in the
period after the deceased’s death while Gary was residing at the property.
The plaintiff is entitled to be reimbursed
for this amount in accordance with
s 36(2) of the Trustee Act 1958.
68 A claim for indemnification is not however
sustainable in relation to those outgoings which the plaintiff paid in respect
of the
Braybrook property. Consistent with the plaintiff’s primary case,
the correct characterisation of his conduct in paying these
outgoings is that
they were paid in his capacity as a beneficiary (and not executor of the
deceased’s estate) in line with
the condition prescribed by clause 5 of
the Will.
69 The Court will accordingly make the
following declarations:
SCHEDULE OF PARTIES
S ECI 2023 01220
BETWEEN:
|
MICHAEL JOHN TOOTELL (in his capacity as executor and trustee of the estate
of the abovenamed deceased)
|
Plaintiff
|
|
|
|
|
- and -
|
|
|
|
|
|
KENNETH WAYNE TOOTELL
|
First Defendant
|
|
|
|
|
- and -
|
|
|
|
|
|
The estate of SUSAN MARGARET MOFFITT, deceased
|
Second Defendant
|
|
|
|
|
- and -
|
|
|
|
|
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STATE TRUSTEE LIMITED (in its capacity as administrator of the estate of
Kaye Lorraine McVeigh, deceased)
|
Third Defendant
|
[1] Clause 5 of the Will is set out in full in [14] below.
[2] Who died in about October 1993.
[3] A fifth child, Craig Tootell, died in about May 2000.
[4] In the interests of clarity, and without intending any disrespect, I will refer to the deceased’s family members by their first names.
[5] The others being Jacalyn Moffitt, Wayne Moffitt, and Cameron Moffitt.
[6] State Trustees was later appointed as Gary’s administrator in place of Kenneth in March 2019.
[7] The Will also appoints the deceased’s son, Kenneth, to be Gary’s guardian.
[8] It having a value of $180,000 in the deceased’s estate which had a total value of slightly less than $200,000.
[9] A further question and associated relief relating to whether an estoppel operated in relation to the deceased’s estate was not pressed.
[10] The plaintiff paid $7,513 in about May 2010 for improvements to the bathroom for Gary’s safety, $4,500 to install evaporative cooling and heating, $1,756 in about September 2009 to repair fencing, and $1,500 in about October 2010 for re-blocking the Braybrook property.
[12] Ibid [22]–[23].
[13] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, [58].
[14] [2020] VSC 749 [13] – [20].
[15] Perrin v Morgan [1943] AC 399, 406 (Viscount Simon LC) (‘Perrin v Morgan’).
[16] Lutheran Church of Australia South Australia District Incorporated v Farmers’ Co-operative Executors and Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628, 638 (Barwick CJ).
[17] Farrelly v Phillips (2017) 128 SASR 502, 510 [32] (Stanley J).
[18] Fell v Fell (1922) 31 CLR 268, 273–4 (Isaacs J) (emphasis in original) (‘Fell v Fell’).
[19] Fell v Fell (n 18) 274 (Isaacs J) (emphasis in original).
[20] ‘No will can be analysed in vacuo’: Perrin v Morgan (n 15) 414 (Lord Atkin).
[21] Perrin v Morgan (n 15) 420.
[22] Boyes v Cook [1880] UKLawRpCh 76; [1880] 14 Ch D 53, 56.
[23] See, for example, Phillips v McCabe [2016] SASC 27, [14].
[24] In the Will of Loughlin; Acheson v O’Meara [1906] VLR 597, 601 (Hood J), citing James Wigram, Examination of the Rules of Law, respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills (London, Sweet and Maxwell) 10. See also Lang & Ors v Davey & Ors [2020] SASC 160, [39] (Bampton J); The Trust Company Limited Ltd & Anor v Zdilar & Ors (2011) 4 ASTLR 379, 384–385, [21] (M Wilson J); Suthers & Anor v Suthers & Ors [2015] QSC 285, [4] (Burns J); David Malcom Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) [5.3].
[25] King v Perpetual Trustee Company Ltd [1955] HCA 70; (1955) 94 CLR 70, 78.
[26] Allgood & Ors v Blake [1873] UKLawRpExch 17; (1873) LR 8 Ex 160, 162 (Blackburn J).
[27] Marley v Rawlings [2014] UKSC 2; [2015] AC 129, 144 [19], 145 [23] (Lord Clarke, Lord Sumption, Lord Carnwath and Lord Hodge JJSC agreeing).
[28] Ibid 144 [20].
[29] Public Trustee v Cole [2019] QSC 298, [37] (Davis J) (second quotation); Davies v Davies (No 2) [2019] QSC 294, [8] (Bradley J); Roberts v Pollock [2019] QSC 184, [46] (Davis J); Re Lapalme; Daley v Leeton [2019] VSC 534; (2019) 60 VR 71, 76–7 (McMillan J); Chan v Valmorbida [2019] VSC 336, [19] (Daly AsJ); Wright v Stevens [2018] NSWSC 548, [181] (Hallen J); Re Islik [2018] VSC 59, [41] (Riordan J); Farrelly v Phillips (2017) 128 SASR 502, [29] (Stanley J, Kourakis CJ and Nicholson J agreeing); Trenberth v Trenberth [2016] SASC 150, [94] (Bampton J); Fielder v Burgess [2014] SASC 98, [42] (Kourakis CJ); Re Nies [2014] SASC 93, [14] (Gray J).
[30] Wright v Wilkin [1860] EngR 1219; (1860) 121 E.R. 1060, 1066.
[31] Watson v Watson [1999] NSWSC 325, [18]; and see Miller v Miller (1995) 16 ACSR 73, 79.
[32] Kinloch v Manzione [2022] ACTSC 76, [19].
[33] Marshall v Tasmanian Perpetual Trustees Limited [2015] TASFC 2, [7].
[34] And also in the event of Gary’s death.
[35] The other situations being where the plaintiff predeceased Gary and where the plaintiff elected to vacate the Braybrook property.
[36] [1975] NI 157, 161 (“Re Porter”).
[37] The two affidavits of the plaintiff filed 28 March 2023 and 26 July 2024, and the affidavit of Angela Avgerinos filed 12 April 2024.
[38] See [7] above.
[40] Ibid 106.
[41] [1921] NSWStRp 39; (1921) 21 SR (NSW) 400.
[42] Ibid 407.
[44] Ibid 30.
[45] Ibid 31.
[46] Re Porter (n 36) 161.
[47] Ibid 163.
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