Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough

Supreme Court of NSW|2023-06-13|Before: Robb J

JUDGMENT

These proceedings concern the proper construction of the will of the late Russell Garth Hough, who died on 12 February 2017, at the age of 76. The will is dated 13 January 2017.

The parties

The plaintiffs are Cindy Tanya Louise Barnes and her husband, Paul Frederick Barnes, who claim an interest in the estate of the deceased on the proper construction of his will. The active defendants are Vincent Harold Pope and Grahame John Pope, who are the executors of the will of Michael Harold Thomas Pope, who was the person who would have been entitled to the interest in the estate claimed by the plaintiffs under the alternative possible construction of the will to that propounded by the plaintiffs.

Russell's property

Yaronga is a farming property at Dripstone in this State of approximately 228.6 ha, and was used for farming and running stock. Located on Yaronga is a house, car shed and hay shed. The improvements are old and quite rundown. From 2005, Russell and Lynette allowed Henry to reside in the house on Yaronga. Henry did not pay rent, but he did various jobs relevant to the upkeep of the property and the watering of Russell's and Lynette's cattle that were run on Yaronga. The evidence concerning the nature of the farming operations on Yaronga was sparse, but such evidence as there was suggested that Russell's and Lynette's use of the farm did not rise much above that of a hobby farm and it does not appear that the farm was a substantial source of their income. Their focus was on the road haulage business. There was no evidence that Russell and Lynette personally worked the farm in any substantial way. It appears that they relied upon Henry to undertake the limited work necessary to care for their cattle.
At the time Russell made his will, Yaronga was owned by Russell and Lynette in equal shares as tenants-in-common. Russell and Lynette became entitled to Yaronga under the will of Russell's father, Alfred Lonslock Hough. Vincent and Grahame made a submission based upon the wording of the transmission application dated 13 April 1992. That submission was based upon the fact that the applicants, Russell and Lynette, were described as "tenants-in-common in equal shares". Further, they relied upon the fact that Alfred's wife, Eva May Hough, who was entitled to a life interest in Yaronga and signed a consent to the registration of the transmission application, was described as "Life Tenant named in the will of Alfred Lonslock Hough". I will explain this submission below.
In addition to their ownership of Yaronga, Russell and Lynette owned a home in Wellington that I will call No 18. Number 18 was the matrimonial home of Russell and Lynette until Russell's death. Lynette continued to live in No 18 for a short time after Russell's death, but, following her discovery that No 18 had been broken into, Lynette moved to Yaronga, where she lived for a relatively short period until she was diagnosed with the terminal disease that led to her death, whereafter she moved into care.
As will be seen, Russell purported to make a gift of his interest in No 18 in his will, notwithstanding that, as a matter of law, No 18 would pass to Lynette on Russell's death by survivorship.
Russell and Lynette also owned another property in Wellington as joint tenants that I will call No 17. The Court was told that No 17 is a block of land across the road from No 18. Strangely, given the way that Russell treated No 18 in his will, he did not purport to make a gift of his interest in No 17, even though it is mentioned in the will.
Apparently, both Russell and Lynette owned trucks and trailers and associated machinery. The terms of Russell's will suggest that Russell and Lynette may have had money in bank accounts, term deposits and trust accounts, debts owed by customers of the transport business, a life insurance policy for Russell, and money in a superannuation fund.
There was no evidence as to the value of Yaronga, No 18, No 17, Russell's and Lynette's trucks and associated machinery, or the value in the various accounts, the life insurance policy and the superannuation fund. Consequently, the Court is not in a position to consider how Russell may have been influenced when he formulated the gifts of Yaronga in his will by his then understanding of the total value of the assets to which he, or Lynette, or he and Lynette jointly, may have been entitled in respect of the formulation of all of the terms of Russell's will taken as a whole.

The will

Although Russell was apparently otherwise reasonably healthy, in January 2017 Russell suffered a heart attack. He made his will on 13 January 2017 while he was in hospital. He died a month later on 12 February 2017, not having recovered from the effect of his heart attack. The will was written out by Lynette in handwriting. It is likely that it was witnessed by employees of the hospital. There is no evidence as to the precise circumstances in which the will was made. The Court must assume that the will sets out the testamentary intentions of Russell, as conveyed by him to Lynette. The Court must also assume that Lynette at least cooperated with Russell in writing down his intended testamentary dispositions, even though some of the gifts that Russell made do not appear to have been in Lynette's personal interests.
The handwritten will is legible but it contains many examples of idiosyncratic spelling and its syntax is not conventional. The parties agreed to the following transcript of the will, which is faithful to the line spacing of the handwritten document, although the typed transcript creates a completely different appearance than the original will, as the handwritten document appears to fill up most of the lines. The will is written on four pages of handwriting. The transcript (with certain details anonymised by the substitution of "X" in accordance with the Court's policy) is: Last Will & Testament This is the last Will and Testament Made by RUSSELL GARTH HOUGH of "YARONGA" XXXXXX ROAD DRIPSTONE NSW 2820 and 18 XXXXXX St., WELLINGTON NSW 2820 Written on behalf Of Me by My Wife LYNETTE MARGARET HOUGH of "YARONGA" XXXXXX ROAD DRIPSTONE NSW 2820 and 18 XXXXXX ST., WELLINGTON NSW 2820 I leve equal share's to My Wife LYNETTE MARGARET HOUGH and HENRY JOHN JOSEPH THOMPSON of "YARONGA" XXXXXX ROAD DRIPSTONE NSW 2820 the following Our House and All Contents at 18 XXXXXX ST., WELLINGTON NSW 2820 Our Sheds and All Contents Tools ect., My MACK Truck's and Trailers and SILVER DOLLY and My Wife owen's MACK TRUCK'S and 2 RED DOLLY's, and My 2 Pet's Red Cattle dogs named WISH BONE and KINGPINE at 17 XXXXXX ST., WELLINGTON NSW 2820, I also leve Our Farm "YARONGA" XXXXXX Road DRIPSTONE NSW 2820 HOUSE and All Contents All MACHINERY TOOL'S ect., and all Livestock and My Wife owen's Her own's Livestock also, In the event of sickness or ill health of My Wife LYNETTE or HENRY wishing to leve "YARONGA" DRIPSTONE Farm or any other reason's, I leve "YARONGA" DRIPSTONE to CINDY TANYA LOUISE BARNES and Her Husband PAUL BARNES the House and NO Contents the Farm NO MACHINERY or TOOL'S ect, or NO Livestock, these's Wishes are to be carried out by My Wife LYNETTE MARGARET HOUGH as I RUSSELL GARTH HOUGH have requested Her to do so I also leve to My Wife LYNETTE any Money's in Our Bank accounts Term Deposit's and Trust Accounts and any Money owing to Us for Cartage of Transport ect, also My Life Insurance Policy money and Supper Fund Money EXECUTOR I appoint My Wife LYNETTE MARGARET HOUGH "YARONGA" XXXXXX ROAD DRIPSTONE and 18 XXXXXX ST., WELLINGTON NSW 2820 SIGNATURE OF TESTATOR R G Hough SIGNATURE OF WITNESS Kay Gransden KAY GRANSDEN X XXXXXXX XX CLIFTON GROVE ORANGE, 2800 SIGNATURE OF WITNESS Sharon Semple (SEMPLE) XX XXXXX XXXXXX Orange 2800 This day 13 January 2017
The handwritten document that comprises Russell's will has attached to it three additional pages in Lynette's handwriting that appear to be incomplete and deal with subjects that are dealt with in the will. The Court was informed that the grant of administration to Mr Poole did not include the additional pages, so they have been ignored for the purposes of this judgment.
In my view, the will is best understood if it is broken up into its separate operative parts. I will now set out those parts, which I have abbreviated where I consider that parts of the wording tend to distract from a clear picture of the effect apparently intended by Russell. As a matter of the structure of the will, it appears that Russell intended to make four gifts, as follows: 1. I leve equal share's to My Wife [LYNETTE] and [HENRY] of "YARONGA" the following Our House and All Contents at [No 18] Our Sheds and All Contents Tools ect., My MACK Truck's and Trailers and SILVER DOLLY and My Wife owen's MACK TRUCK'S and 2 RED DOLLY's, and My 2 Pet's Red Cattle dogs named WISH BONE and KINGPINE at [No 17], 2. I also leve Our Farm "YARONGA" HOUSE and All Contents All MACHINERY TOOL'S ect., and all Livestock and My Wife owen's Her own's Livestock also, 3. In the event of sickness or ill health of My Wife LYNETTE or HENRY wishing to leve "YARONGA" or any other reason's, I leve "YARONGA" to [CINDY] and Her Husband [PAUL] the House and NO Contents the Farm NO MACHINERY or TOOL'S ect, or NO Livestock, these's Wishes are to be carried out by My Wife [LYNETTE] as I [RUSSELL] have requested Her to do so 4. I also leve to My Wife LYNETTE any Money's in Our Bank accounts Term Deposit's and Trust Accounts and any Money owing to Us for Cartage of Transport ect, also My Life Insurance Policy money and Supper Fund Money
I have separated the second paragraph of the third gift because it is not itself a gift and there is a question whether the words in the second paragraph were intended by Russell only to apply to the third gift or to other gifts as well.
The first and second gifts contain digressions that are irrelevant to the testamentary disposition of Russell's property, being "and My Wife owen's MACK TRUCK'S and 2 RED DOLLY's" and "and My Wife owen's Her own's Livestock also". If he had thought about it, Russell must have understood, even though he was a layman, that his will could not affect Lynette's property. Objectively, it appears that Russell dictated the terms of his will in a way that had a 'stream of consciousness' aspect, in that Russell expressed a number of thoughts that occurred to him that were not strictly relevant to the task at hand.

The construction issue

The issue of construction that arises in these proceedings involves the relationship between the gift of Yaronga to Lynette and Henry in the second gift and the following gift of the same property in the third gift to Cindy and Paul.
In essence, the case of Cindy and Paul is that Russell by the third gift in the will intended to give Cindy and Paul a remainder interest in Yaronga but subject to a right of residence in favour of Lynette and Henry.
Vincent's and Grahame's primary submission is that the gift of Yaronga to Lynette and Henry was an absolute gift by which they became entitled to the unqualified ownership of Yaronga in possession, with the result that the purported gift over of Yaronga to Cindy and Paul failed. Vincent and Grahame also put subsidiary submissions based upon what they asserted was the uncertain effect of the condition that purported to govern the cessation of Lynette's and Henry's interest in Yaronga and the inception of the interest of Cindy and Paul, as well as the asserted repugnance of the third gift to the second.

Legal principles

Although the proper construction of a will must be based on the meaning of the words used by the testator, the Court must apply the proper approach to the instrument. That is as stated by Isaacs and Powers JJ in Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48 at 560-561, where their Honours observed: One universal principle is that the whole will must be read before finally arriving at an opinion as to the meaning of any controverted portion. You read the whole document through in the first place to ascertain whether it contains anything to affect the meaning of the passage in controversy.
As a general matter, it is not appropriate to start at the beginning of the will and construe individual parts in isolation, so that subsequent parts must bend to the meaning attributed to the parts that precede them. The meaning of every part of the will may be affected by the scheme of the whole of the will, which means that the proper construction of earlier parts may be influenced by what follows.
Furthermore, "the true way to construe a will is to form an opinion apart from the decided cases, and then to see whether these decisions require any modification of that opinion; not to begin by considering how far the will in question resembles other wills upon which decisions have been given": Re Sanford [1901] 1 Ch 939 at 941 (Joyce J). That is particularly so where, as here, the idiosyncratic language of a lay draughtsman has no conceptual connection with any understanding of the law of succession or the terminology of earlier wills that have been considered in the decided cases.
As Russell's will is an example of a 'home-made' will, the following observations by Sackar J in Jones v Robinson [2019] NSWSC 932 are pertinent: [42] Additional factors will apply when the will was prepared by the Deceased himself or herself and is so to speak 'homemade'. [43] In Lewis v O'Loughlin (1971) 125 CLR 320, Barwick CJ considered the construction of a 'homemade' will (at 326-327): The problem in the appeal is to determine on a fair construction what the testatrix meant by her relevant expression in the will. Such a question is unlikely to be resolved by resort to authority, however much attention should be paid to the opinions expressed by distinguished judges when constructing other wills. The language used in this will is that of the testatrix herself: it is not the language of a person trained in the law. It is language used with at least a layman's understanding of the situation in which the testatrix then stood. …. It is not remarkable that she did not realize that if she died whilst in employment there would be money due to her for undrawn leave of various kinds and for prepaid tax. For these items quite clearly she made no provision in her will. It is evidence, I think, that reading the will as an entirety against the background of her then known circumstances, the testatrix intended by the expressions used in her will to dispose of all that she then possessed. It is clear enough that she did not cover by her dispositions all the eventualities which might occur…However the question is not whether she provided for all contingencies but whether she made some provision for all the property to which she was then entitled. [44] Menzies J in the same case similarly considered the differences between the construction of a will drawn by the deceased themselves, over that of a lawyer. His Honour noted (at 330): Discrepancies of this sort have less significance in a home-made will than one drawn by a lawyer. [45] It is therefore tolerably clear that the misuse of language should not too readily defeat the deceased's otherwise clear intentions.
The sympathy that the Court grants to testators in relation to the construction of their wills in appropriate cases appears from the following extract from the first edition of Jarman on Wills, as cited by Underwood J in Armstrong v Stokell [2001] TASSC 132 as follows: [21] With respect to the issue of certainty, it is impossible to resist citing the following passage from the first edition of Jarman on Wills at 315: "In the construction of wills, the most unbounded indulgence has been shown to the ignorance, unskilfulness, and negligence of testators: no degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; but if, after every endeavour, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence."
To the modern eye, the learned author's choice of language may appear to be slightly excessive, but it does underscore the proposition that, wherever it is justly possible, the Court must strive to give effect to the intentions of the testator, and for that purpose ought not to be too readily distracted by the lawyer's inclination to conjure up fine points and to create inconsistencies or uncertainties that would probably not have been apparent to the testator whose testamentary intentions it is the duty of the Court to recognise.
The basic principles to be applied by the Court in the construction of a will is as stated by Ward JA (as her Honour then was) in Warton v Yeo [2015] NSWCA 115 at [35] (Basten and Emmett JJA agreeing): [35] Finally, I note that there was no dispute between the parties as to the principles to be applied in construing the will. To summarise those principles: the object of will construction is to ascertain the intention of the deceased as expressed in the will when it is read as a whole; extrinsic evidence is admissible, pursuant to s 32 of the Succession Act 2006 (NSW), to assist in the interpretation of the language used in the will if the language makes the will or any part of it meaningless or ambiguous either on the face of the will or in the light of the surrounding circumstances (though evidence of the testator's intention is not admissible to establish any of those surrounding circumstances); and the "armchair principle" is to be applied such that the court is to put itself in the position of the testator and to consider all material facts and circumstances known to the testator with reference to how he is to be taken to have used the words in the will (Allgood v Blake (1873) L R 8 Ex 160 at 162).
Another frequently cited statement of the proper principles to be applied in the construction of wills is that made by the Judicial Committee in Towns v Wentworth (1858) 14 ER 794 at 800, as follows: In order to determine the meaning of a Will, the Court must read the language of the Testator in the sense which it appears he himself attached to the expressions which he has used, with this qualification, that when a rule of law has affixed a certain determinate meaning to technical expressions, that meaning must be given to them, unless the Testator has by his Will excluded, beyond all doubt, such construction. When the main purpose and intention of the Testator are ascertained to the satisfaction of the Court, if particular expressions are found in the Will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified; and, on the other hand, if the Will shows that the Testator must necessarily have intended an interest to be given which there are no words in the Will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the Testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the Testator has on the whole Will, sufficiently declared.
It initially appeared that reliance would be placed on s 32 of the Succession Act 2006 (NSW), which permits the Court to have regard to extrinsic evidence in some circumstances for the purpose of construing a will, but, as a result of forensic decisions made in the course of the Court dealing with objections to evidence, the evidence that was apparently intended to support reliance upon the section was not pressed, and accordingly it will not be necessary to consider the role of extrinsic evidence in the construction of Russell's will.
However, it will be appropriate to apply the 'armchair principle' to which Ward JA referred in Warton v Yeo, which was explained by Blackburn J in Allgood v Blake (1873) LR 8 Ex 160 at 162 in the following terms: The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. As is said in Wigram on Extrinsic Evidence, p. 9: "The question in expounding a will is not what the testator meant, as distinguished from what his words express, but simply what is the meaning of his words." But we think that the meaning of words varies according to the circumstances of and concerning which they are used.
As the primary submission made by Vincent and Grahame was that, on the proper construction of Russell's will, the second gift was an absolute devise of Yaronga to Lynette and Henry, Vincent and Grahame relied upon a number of principles that have been established to assist in the construction of wills in cases where an absolute gift is followed by an inconsistent gift of the same property to another beneficiary, that is usually described as being repugnant to the initial gift, or where the initial absolute gift is made defeasible on the occurrence of a condition that is apparently intended by the testator to have the effect that the property the subject of the initial gift is to pass instead to a different beneficiary.
The first such principle is that where the Court, having applied the proper approach to the construction of a will, determines that the testator intended to make an absolute gift of property to a particular beneficiary, the result of that gift taking effect is to exhaust the rights of the testator in respect of that property, in the sense that nothing remains for the testator to give to any other beneficiary: see Lassence v Tierney [1843-60] All ER 47; Cobcroft v Bruce [2013] NSWSC 774 at [22]-[23] and Ritchie v Magree (1964) 114 CLR 173; [1964] HCA 10 at 176. In that sense, an earlier absolute gift prevails over a later repugnant gift. That does not mean that a gift stated earlier in a will necessarily prevails over a gift that happens to be stated later.
While the Court must apply this principle in the present case, its application depends upon the Court first having determined that it was Russell's intent by the second gift to give Yaronga absolutely to Lynette and Henry. The fact that the second gift preceded the third in the structure of the will is not dispositive of the issue, and the question whether the second gift was intended to confer an absolute interest in Yaronga on Lynette and Henry must be decided having regard to the scheme of the will as a whole and the relationship between the language of the second and third gifts.
Where a gift that on the proper construction of the will is capable of taking effect absolutely is expressed to be subject to a condition that, if effective, will cause the defeasance of the gift, the gift will remain absolute if the condition is too uncertain to be given effect: see Cobcroft v Bruce at [23]. If the will contains a gift apparently intended to take effect on the defeasance of the initial gift, the later gift will fail if the defeasance of the initial gift fails because of the uncertainty of the condition.
In considering the notion of uncertainty in this context, it is material that the will has made an absolute gift to a beneficiary subject to a condition that will cause the defeasance of the gift, so that the beneficiary must always be able to know with certainty what circumstances will cause the defeasance. As Austin J said in Hyde v Holland [2003] NSWSC 733: [37] The courts have developed different tests for ascertaining whether a condition precedent and a condition subsequent are void for uncertainty, the latter being stricter than the former: Blathwayt v Baron Cawley [1976] AC 397, at 424 (per Lord Wilberforce, dissenting but not on this point), and 429 (per Lord Cross of Chelsea). In the case of a condition subsequent, the test of certainty has been enunciated by the House of Lords and applied by their Lordships twice. The condition must be "such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine": Clavering v Ellison (1859) 7 HL Cas 707, 705 per Lord Cranworth; Clayton v Ramsden [1943] AC 320; Blathwayt v Baron Cawley. If the condition in the present case were a condition subsequent, it may well have failed to satisfy that test.

View from Russell's 'armchair'

The following facts and circumstances are in my view matters that the Court may take Russell to have had in mind when he was formulating the terms of his will.
Russell was 76 years of age, and although he had enjoyed reasonable health, he had just suffered a serious heart attack that had caused him to be hospitalised and must have led him to understand that his future was in jeopardy. Lynette was 66 years old, and he would have expected her to continue living in the matrimonial home at No 18, although it will be necessary to give consideration to what Russell must have had in mind when he decided to make the first gift in his will. Lynette did not live on or work Yaronga and apparently had not lived there for a considerable period, if ever, and particularly since Henry had lived in the house on the property. Russell would not have expected that Lynette would have had the strength to work Yaronga for any length of time into the future by herself. Although Yaronga was used to run some cattle owned by Russell and Lynette, it was not a substantial farming operation, and for many years all that was required was for Henry to supervise the welfare of the cattle and perhaps to do some maintenance around the farm.
Russell must have had some idea of the value of Yaronga and the other assets that were the subject of the fourth gift in his will, but in the absence of evidence that would enable the Court to draw an inference as to Russell's understanding of the value of his assets, that is not a matter that can be taken into account in the construction of his will.
There is no evidence of Henry's age at the date of Russell's will, as Cindy and Paul withdrew their reading of the affidavit made by Henry. Their application to read Henry's affidavit was opposed on the ground that the evidence may have justified a finding that Henry had lost mental capacity before he made his affidavit. The Court was not required to determine that issue, but the result was that some basic evidence relevant to Henry's circumstances that must have been known to Russell when he made his will was not admitted. I think that the evidence generally justifies an inference that Henry was broadly the same age as Russell and Lynette, which is a matter that would obviously have been known to Russell when he made his will.
As has been noted, Russell and Lynette did not have any children. There is no evidence that they had any other relatives than Cindy who could have been the objects of Russell's testamentary bounty. It must be inferred from the third gift in his will that he had some special affection for Cindy, and through her Paul. There is no evidence that Russell had a relationship with Lynette's father, Michael, that would have caused him to formulate his will in a way that might lead to his property being inherited by Michael. It can be inferred from the first and second gifts in the will that Henry was a close enough friend to Russell for that affection to cause Russell to decide to make gifts in his will to Henry that were in some respects equal to the gifts that he made to his wife. There is no evidence concerning Henry's family or other relationships, and no reason to think that when Russell was considering the terms of his will, he would have wanted to make a gift to Henry on the basis that the gift would benefit Henry's estate upon Henry's death.
The will itself may be a valid source of information concerning the circumstances known to the testator for the purpose of assisting in the construction of the terms of the will. It is convenient to note at this stage that Vincent and Grahame submitted that the scheme of the will involved an intention on Russell's part to provide for and improve the circumstances of his wife, Lynette. With respect, however, that is far from an adequate description of the scheme of the will. Although Henry disclaimed any interest in Russell's will, the will must be construed on the basis that, as drawn, the first and second gifts were in favour of Lynette and Henry equally. It is evident that Russell did not understand that, as No 18 was held by Russell and Lynette as joint tenants, Lynette would inherit the title to No 18 on Russell's death by survivorship. But it is somewhat extraordinary that, on the face of the will, Russell purported to leave his half interest in the matrimonial home to his wife and a friend. It is no less extraordinary that Lynette as Russell's wife apparently cooperated in this arrangement, by being Russell's amanuensis in the preparation of the will. Those circumstances imply the existence of a close personal relationship between Lynette and Henry of which Russell was aware. In the absence of relevant evidence, the nature of that relationship is purely speculative. But for whatever reason, Russell decided to leave his interest in the matrimonial home to his wife and a friend. That fact should be considered in conjunction with the obvious fact that, while Russell, by the second gift, left his interest in Yaronga to Lynette and Henry, he expressed a limitation to that gift and a further intention by his third gift to give Yaronga to Cindy and Paul. Although the matter should not be put too highly, I consider that these circumstances warrant the conclusion that although Russell was prepared to leave his interests in No 18 (as he thought) and Yaronga to Lynette and Henry, he did not want all of his property to pass out of his own family, and accordingly intended to limit Lynette's and Henry's enjoyment of Yaronga to the time period in which they personally exercised their rights to Yaronga by occupation and use.
This is in the context that Yaronga was not being fully worked as a farm and Russell would have expected the period in which Lynette and Henry would enjoy possession of Yaronga to be relatively limited by their ages.

Consideration

Russell's will is a brief document and, if it is considered as a whole, it is clear and inescapable that Russell intended to confer the benefit of the right to enjoy Russell's interest in Yaronga first to Lynette and Henry and then to Cindy and Paul, on the occurrence of circumstances that Russell tried to describe in the will. The will cannot be read in a way that attributes an intention on Russell's part to confer the benefit of ownership of Russell's share in Yaronga on Lynette and Henry to the exclusion of Cindy and Paul. To conclude so would be to blatantly ignore the words used by Russell. The real question is whether Russell's plain intent that the enjoyment of his share in Yaronga would pass from Lynette and Henry to Cindy and Paul has failed for some deficiency in the wording that Russell used.
The primary submission of Vincent and Grahame was, however, that the second gift in the will of Yaronga to Lynette and Henry was, by reason of the wording at the beginning of the chapeau to the first and second gifts: "I leve equal share's" and at the beginning of the second gift "I also leve", an absolute beneficial interest in Yaronga. They submitted that the alternative construction "does impermissible violence to the testator's unqualified and unequivocal words of disposition of an absolute equal interest in Yaronga to Lynette and Henry": see Outline of Written Submissions par 56. Accordingly, Vincent and Grahame submitted, the principle in Lassence v Tierney applied, with the effect that the third gift of Yaronga to Cindy and Paul must fail, as after the second gift had fully taken effect, there remained no interest in Yaronga that was capable of being the subject of the third gift.
While, as I have said, I accept this principle as clearly established in law, it does not apply unless, on the proper construction of the will as a whole, the testator has expressed an intention that the earlier gift be an absolute one. It must be remembered that, as Lord Cottenham LC said in Lassence v Tierney at 52: "the intention that the gift should be absolute as between the legatee and the estate is, as in all cases of construction, to be collected from the whole of the will, and not from there being words which, standing alone, would constitute an absolute gift".
As noted, Vincent and Graham relied upon the use by Russell of the expressions "I leve" and "I also leve" in the second and third gifts as being absolute in their effect. That may usually be true where there is a gift in a will that takes the form: "I leave Blackacre to X", and the gift is not followed by any qualification that may limit the effect of the gift. However, that is not so in the case of the present will, as the operative word in all four gifts is the word "leve". In my view, the natural and correct way to understand the use of this word by Russell is that he intended it to have the same meaning every time he used it.
I do not accept the submission made by Vincent and Grahame that Russell's will contains "unqualified and unequivocal words of disposition of an absolute equal interest in" Russell's interest in Yaronga to Lynette and Henry. In my view, it is clear that Russell intended his second gift of Yaronga to Lynette and Henry to be qualified by his third gift to Cindy and Paul. The use of the expression: "In the event of" is in common parlance a way to begin the description of a condition that will have the effect of replacing one set of circumstances by another one.
Accordingly, I conclude that, subject to the further issues that are considered below, the will should be construed with the effect that the second gift of Yaronga to Lynette and Henry was subject to defeasance upon the happening of a condition, whereafter the third gift would have the effect of giving Russell's interest in Yaronga to Cindy and Paul.
That conclusion flows out of the wording and structure of the will, but it is supported - albeit not in a dispositive sense - by the considerations discussed above that Russell must have understood concerning the age of Lynette and Henry, the limited nature of the farming operation conducted on Yaronga, and the appearance that Russell was prepared to give his property to both Lynette and Henry for their enjoyment, but with the reservation that Russell's interest in Yaronga should ultimately go to a member of his own family to who he was attached and her husband.
Vincent and Grahame submitted that it makes no practical sense for Russell to make Cindy and Paul co-owners of a working farm with Lynette, who would continue to be a tenant-in-common after Russell's death regardless of his will. I do not find that reasoning persuasive as, by the first gift, Russell purported to give his half share in the matrimonial home to Lynette and Henry, and by the second gift his interest in Yaronga to the same persons. Whatever practical inconveniences may have arisen as a result of Russell's will changing the composition of the ownership of No 18 (as Russell mistakenly thought) and the tenants-in-common of Yaronga, the very terms of the will make it clear that Russell was prepared to create situations of co-ownership of his property as between different people.
Vincent and Grahame also relied upon the fact that the wording of the second gift included "and All Contents All MACHINERY TOOL'S ect. and all Livestock", but the third gift provided "and NO Contents the Farm NO MACHINERY or TOOL'S ect, or NO Livestock", to submit that the wording of the third gift was not intended by Russell to take effect in accordance with its terms. It is true that no definite explanation is available as to why Russell decided to give his share in Yaronga initially to Lynette and Henry together with all machinery, tools and livestock, but that property was not to pass to Cindy and Paul. That circumstance is less strange than Russell having decided to give part of the matrimonial home to Henry. It is inconclusive. A possible explanation is that Russell intended that Lynette should continue to have the benefit of the machinery, tools and livestock, given that she would continue to be a tenant-in-common of Yaronga. That is, however, an irrelevant speculation.
I mentioned above that Vincent and Grahame made a submission, based upon the wording of the transmission application whereby, on 13 April 1992, title to Yaronga was transmitted to Russell and Lynette. The argument was that the Court should infer from the description of Russell and Lynette as being "tenants in common in equal shares" that Russell understood when he made his will that the effect of his use of the expression "I leve equal share's" in the chapeau to the first and second gifts would be to give Russell's interest in both No 18 and Yaronga to Lynette and Henry absolutely in equal shares. The argument also was that the description of Eva in the statement of her consent as being a "Life Tenant" was a proper basis for the Court to infer that Russell understood that, if he intended by the second gift to give Lynette and Henry an estate in Yaronga that was limited in time, he ought to use specific and clear words to achieve that result. I do not accept either of these arguments, because there is no reason to believe that Russell's understanding of legal language was sufficiently sophisticated to enable him to understand the possible relationship between the words that he chose to include in his will and the effect of conventional legal language. In any event, there is no reason for the Court to believe that, on 13 January 2017 when he made his will, Russell would have had any recollection of the wording in the transmission application, even in the doubtful case that he had read the transmission application at the date that it was prepared.
It is necessary to consider whether the acceptance of the construction of the will that I prefer is prevented by the effect of any part of its wording.
The first part to be considered is the terms in which the condition for the defeasance of the second gift and the inception of the third gift are expressed. For convenience, I will repeat them: "In the event of sickness or ill health of My Wife LYNETTE or HENRY wishing to leve "YARONGA" DRIPSTONE Farm or any other reason's…"
Vincent and Grahame submitted that the second gift of Yaronga to Lynette and Henry cannot be defeated by the third gift to Cindy and Paul, because the absolute interest of Lynette and Henry in Yaronga cannot be cut down except by clear words, relying upon the decision of Young AJ in Cobcroft v Bruce at [23], where his Honour said: "…a clear gift in a will is not cut down by anything subsequent in the will which does not with reasonable certainty indicate the intention of the testator to cut it down. That is, an absolute interest is not cut down except by clear words…"
I have already explained that I do not accept that the second gift in the will was intended to be an absolute one. The real question is whether effect simply cannot be given to the third gift because the condition of its inception is too uncertain.
It does not follow from the fact that the wording of a provision of a will is not expressed with absolute clarity and precision, so that it is possible to contend for different meanings of the wording, that the provision is uncertain. The question is whether it is impossible to determine the true meaning intended by the testator applying accepted rules of construction. Having regard to the scheme of the will as a whole and the wording of all of the provisions contained in it, it may be possible for the Court with sufficient confidence to discern the meaning intended by the testator. The requirement that it must be possible to "see from the beginning precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine", to use the words extracted by Austin J in Hyde v Holland that are set out above, is a requirement that involves what the Court can see, rather than just the beneficiary who receives the defeasible interest. Practical uncertainty is irrelevant if the Court is able to declare the true effect of the condition in a construction suit.
Russell's choice of language was not felicitous, and the wording of the condition is not as clear as would be expected from the pen of a competent lawyer. However, I am satisfied that, if the Court approaches the task of construing the wording of the condition used by Russell, having regard to the simplicity of thought that he probably applied to the task, and looks for meaning rather than ambiguity, the condition has a sufficiently clear meaning. The context is that Russell has clearly stated that his interest in Yaronga is to pass from Lynette and Henry to Cindy and Paul. In my view, the most significant word in ascertaining the meaning of the condition is "leve". Russell intended that the interest given to Lynette and Henry would continue until they left Yaronga. Russell may not have considered that the second gift would have the consequence that Lynette and Henry would be tenants-in-common as to Russell's equal half interest together with Lynette's own absolute half interest in Yaronga. But in practical terms, there was no realistic possibility that either Lynette or Henry could leave one interest in Yaronga without leaving their whole interest in Yaronga. The word "leve" conveys the notion that Lynette and Russell would receive a right of occupation and use in respect of Russell's equal share as a tenant-in-common in Yaronga, but that that right would cease when the exercise of the right of occupation and use ceased. I am satisfied that the right of occupation and use was intended to be personal, which is suggested by the references to "sickness or ill health" and "wishing", which are apt to refer to the personal circumstances of each beneficiary.
I am also satisfied that Russell did not mean by the wording that he chose for the condition that the right of occupation and use that he intended to grant to Lynette and Henry would cease if either or both became sick, or even if they formed the wish to leave Yaronga. It is reasonably clear that the references to sickness or ill health or a wish to leave were intended by Russell to be only examples of "any other reason's". The trigger for the operation of the condition was the leaving of Yaronga and not the reasons for that to have taken place. The rhetorical question asked by Vincent and Grahame at their Outline of Written Submissions at par 63: "If the moment after the testator died Lynette sneezed, was she immediately divested of her interest?" is an example of looking for artificial uncertainty. Sickness would be irrelevant unless it led to leaving.
I am also satisfied that, on its proper construction, the condition would not take effect until the last of Lynette and Henry had given up personal occupation and use of Yaronga. That is the natural consequence of the use of the expression "equal share's" at the beginning of the chapeau to the first and second gifts. The gift to Lynette and Henry equally implies an intention that each could enjoy the right of occupation and use after the other had ceased to do so.
In practical terms, the requisite leaving would occur at the last time that Lynette and Henry had both ceased in fact to occupy and use Yaronga either through physically ceasing to exercise their rights or by death.
The second part to be considered is the significance of that part of the will that reads "these's Wishes are to be carried out by My Wife LYNETTE MARGARET HOUGH as I RUSSELL GARTH HOUGH have requested Her to do so". In some contexts, this wording could have the effect of making the apparently absolute effect of the third gift in reality a precatory request made by the will to Lynette that would be consistent with the second gift having the intention to confer absolute ownership of Russell's interest in Yaronga in Lynette and Henry. It must be noted that the wording includes "are to be carried out", so that, if the real meaning of the will was to give an absolute interest to Lynette and Henry subject to a determination by the beneficiaries of that interest to terminate it in favour of Cindy and Paul, the use of the expression "are to" would suggest that the making of the determination was mandatory.
However, I accept the point made by counsel for Cindy and Paul when I raised this possibility, that it is not the appropriate way to understand the meaning of this part of the wording of the will, for the simple reason that the instruction made by Russell is directed at Lynette alone and not to Lynette and Henry. If Russell had intended this part of his will to be a request or instruction to the beneficiaries who received his interest in Yaronga to transfer that interest to Cindy and Paul, it would have had to be addressed to both Lynette and Henry. I accept counsel's submission that the wording must be taken to have been included because Lynette was made the sole executor under Russell's will. The proper way to understand the wording is that it is an instruction to Russell's executor, and not an instruction or request to the beneficiaries of the second gift. As such, the instruction made to Lynette may have been superfluous, as Lynette, as Russell's executor, would be required to execute the terms of his will upon a grant of probate. The fact that the instruction was superfluous does not have any material effect upon the proper construction of the other parts of Russell's will.
The Court must be satisfied that the evidence establishes that the condition for the defeasance of the gift to Lynette and Henry of the right of occupation and use of Russell's share in the co-ownership of Yaronga and the inception of the absolute gift to Cindy and Paul has been satisfied by events. On any view, Lynette left Yaronga in the sense required by the will no later than the time of her death. It is clear, in fact, that she left Yaronga at an earlier time, when she ceased living on Yaronga and went permanently into care. That is established by pars 28 to 33 of Cindy's affidavit. As I have explained above, the Court can infer that Henry has also left Yaronga. In any event, as Henry has disclaimed any interest in Russell's estate, it is immaterial whether or not he has left Yaronga in the events that have happened.

Conclusion

Cindy and Paul are entitled to an appropriate declaration as to the proper construction of Russell's will to give effect to this judgment. Cindy and Paul should provide appropriate draft short minutes of order to my Associate, after appropriate consultation with Vincent and Grahame. Cindy and Paul should formulate the declaration and any consequential orders that should be made by the Court, as the third further amended summons is only formulated in terms of the questions that the Court should consider for the purpose of determining the true construction of Russell's will.
As Cindy and Paul have succeeded on their claim, and as the need for the claim has arisen out of the lack of clarity in the meaning of Russell's will by reason of the wording chosen by him, I accept in principle that all of the parties' costs should be paid out of Russell's estate. However, I note that in par 53 of their Reply submissions, Vincent and Grahame reserve their right to make submissions on costs following the publication of this judgment. The costs orders proposed by Cindy and Paul would make all parties' costs payable out of Russell's estate as a whole. That would give rise to an issue as to where the burden of costs would fall, given that there is no residuary gift in Russell's will. They also proposed that their costs and Mr Poole's costs be paid on the indemnity basis, but that Vincent's and Grahame's costs be paid on the ordinary basis. In the circumstances, it will be appropriate to give the parties an opportunity to provide written submissions on the issue of costs, which should be done within 14 days of the publication of this judgment. If any party wants an oral hearing on the costs issue, they should explain why in their written submissions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2023

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