Ashman v McHugh [2004] VSC 232

Supreme Court of Victoria|2004-06-30|Before: OSBORN J

CONSTRUCTION OF WILL- Pecuniary legacies - Presumption against partial intestacy - Disposition of residual estate - Will to be read as a whole - Will prepared by a lay person.

In this matter the Court is asked to determine whether upon its proper construction the will of Jessica Ann Harper deceased results in a partial intestacy.

The will provides first, for the revocation of prior wills, second, for the appointment of executors and third, for specific gifts of chattels. It then creates a trust for sale of real property and shares, gives the trustees powers and discretions as though they were absolute owners, and provides that the trustees be indemnified from the trust fund. It then gives a right of residence to the husband of a testatrix and further directs that $500,000 be held on trust to pay the income there from to the husband during his life. Clause 9 in turn provides for a pecuniary legacy to the executors and clauses 10, 11, 12, 13 and 14 provide for a series of pecuniary legacies to different persons in different amounts.

"15. I give devise & bequeath the balance of the rest and residue of my estate which remains undisposed to my Trustees UPON TRUST for the following charities in the proportions so stated: A R.S.P.C.A. rescue service & ambulance branch - 25% B R.S.P.C.A. Wildlife Branch for the benefit of the Catani Gardens possums & the planting of suitable vegetation with an immediate duty free bequest of $5000.00 to the carer Sharon Carter. C Lost Dogs Home Nth Melb - attention of Dr Graeme Smith to be used as he sees fit - 25% D W.I.R.E.S. of N.S. Wales (wildlife, info & rescue service) - 5% E Murrumbeena Wildlife Shelter 10 Irving Ave attention of Judy Mentiplay - 2% F Kelvin Anderson Vetambulance Man - $10,000.00 Save A Dog Scheme $10,000.00 Les & Mary Jones Port Melb - contact Shirley Anderson 9592 9760 $10,000.00 G Cat Protection Society Elder St Greensborough in Vic. - 10% H Kay Voglis 34 Capitol Rd McKinnon in Vic. Ph 9578 7392 $5,000.00."

The will then provides for the appointment respectively of solicitors, accountants and sharebrokers for the estate.

"19. I give devise & bequeath the residue of my estate A Salvation Army Red Shield Appeal - 5% B Brotherhood of St. Lawrence - 3% C The Smith Family - 3% D St. Vincent de Paul Society - 3% E Foster Parents Plan of Australia - 4% (Plan International) F Care Australia - 3% G M.E. C.F.S. - 3% H Ansell Opthamology Foundation: director - 3% Professor Hugh Taylor I Anti Cancer Council of Victoria - 3% J Heart Foundation - 3%."

It can be seen that clause 15 provides for fixed sum pecuniary legacies in the total amount of $35,000 and legacies expressed by way of percentages totalling 67% (including a provision of 25% for the Lost Dogs Home). Clause 19 provides for percentage legacies totalling 33%.

It is the submission of the executors that the interpolation of clauses 16, 17 and 18 should not prevent clauses 15 and 19 being read together so as to provide for a 100% disposition of the residuary estate.

It is the submission of the Lost Dogs Home that the clauses should be read sequentially and that clause 19 provides for the disposition of 33% of the residue remaining after the provisions effected by clause 15. Clause 15 provides first for the fixed sum legacies and the percentage legacies there referred to from the whole of the residue.

In my view there are three relevant principles to be applied.

(a) Firstly, the will is to be read as a whole;

(b) Secondly, where a will evinces an intention to dispose of the whole of the property of a testatrix, and two constructions are possible, according to one of which the will effects a complete disposition of the whole but the alternative will result in a partial intestacy, the Court inclines to the former; and

(c) Thirdly, a greater degree of latitude is allowed in construing a will prepared by a lay person than a will prepared by a lawyer.[1]

The will in the present case is handwritten and appears based on an assemblage of provisions taken from another source or sources. In particular, the attestation page suggests that it is based in part upon a prior will made in 1989. The will itself was executed on 28 October 1996.

The will demonstrates a desire to make detailed dispositions of personal chattels, provision for the husband of the testatrix, a series of monetary legacies to some 33 specified individuals, a series of legacies from the residuary estate pursuant to clause 15 to a number of bodies and individuals predominantly [if not wholly] concerned with animal welfare, and a series of legacies again expressed to be from the residuary estate to other charities pursuant to clause 19.

In my view when the will is read as a whole it can be inferred that the testatrix did intend to dispose of the whole of her estate by it. This inference is to be drawn from the fact that both clauses 15 and 19 are expressed to apply to the residue of the estate, the fact that each appears to relate to a particular class of beneficiary having a different character, the fact that the percentages comprised in clauses 15 and 19 total 100%, and the fact that the will is handwritten and apparently drawn by a person other than a legal practitioner. The fact that each clause provides for a class of different character provides a logical reason for the use of separate clauses by an inexpert draftsperson when it was nevertheless intended that the provisions be read together to dispose of the whole of the residue of the estate. The fact that the percentages total 100% points strongly to the conclusion the paragraphs are intended to be read together. The fact that the will was not drawn by an expert encourages the view that individual provisions within it may not be entirely consistent with the intention which is to be inferred from the whole.

Once it is concluded by reference to the will as a whole that it was intended by the testatrix to dispose of the whole of the estate the principle stated by the Lord Chancellor in Ibbetson v Beckwith[2] should be applied:

"The question turns intirely upon the construction of the words of the will, what interest was intended to Thomas Dodson, whether an estate for life, or in fee? In order to come at the testator's intent, the whole complexion of the will has been very properly taken into consideration on both sides; and it has been said, that the first words, worldly estate, were used only to shew, that what he was then doing was animo testandi; but not intended by him to reach to the whole of his estate. As to that I am of opinion, that these words prove him to have had his whole estate in his view at that time. Indeed, he might have made but a partial disposition; but if the will be general, and that taking his words in one sense will make the will to be a complete disposition of the whole, whereas the taking them in another will create a chasm; they shall be taken in that sense which is most likely to be agreeable to his intent of disposing of his whole estate." (my emphasis in bold)

Likewise, in Pinney v Sir William Marriot[3] Sir John Romilly, the Master of the Rolls, stated:

"On looking at the whole scope of the will, I think it is apparent that there is an intention to dispose of the whole of his property, and considering the grammatical construction of this sentence, I am of opinion that it carries the whole of his property wherever it was situate, and I will make a declaration to that effect."

In the present case, looking at the whole scope and character of the will, I think it is apparent that there is an intention to dispose of the whole of the property of the testatrix. The construction to be preferred is the one which will result in a complete disposition of the estate. Clauses 15 and 19 are to be read together so as to dispose of the entire residuary estate.

Mr Maier submits that the words of clause 15 are clear. In my view this is not decisive. As McArthur J stated in In re Thomas deceased. The Trustees Executors and Agency Co Ltd v Thomas[4]:

"Read by itself, the language used in any particular expression in a will, construed in its strict literal sense, may be unambiguous, yet, upon reading the whole will, it may be clear that such language, so construed did not express the testator's real intention."[5]

In that case the Court accepted the submission of Dixon KC, as he then was, that upon reading the whole will it was clear the testator intended to give to his two daughters between them the whole of the remaining half of his estate. This was so despite words which if given their literal meaning would dispose of only half of one half and result in a partial intestacy. In my view a like conclusion follows in the present case. The proportions stated by the testatrix in percentage terms were intended to effect the disposition of 100% of her residuary estate.

Subject to any further submissions from counsel as to the precise terms of my order, I propose to direct:

that the residuary estate be distributed first, by executing the pecuniary legacies in fixed sums set out in clause 15 of the will and second, by distributing the whole of the balance in accordance with the cumulative percentages set out in clauses 15 and 19 of the will.

[1] See e.g. Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 and In re Crocombe (deceased) (1949) SASR 302

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