Succession - Wills, probate and administration - Construction and effect of testamentary dispositions

Wills Act 1970 (WA), s 26

Brennan v Permanent Trustee Co of New South Wales Ltd [1945] HCA 17; (1945) 73 CLR 404

In Re McFetridge (dec), Speakman v McFetridge [1950] NZLR 176

Morgan v Thomas (1882) 9 QBD 643

Re Heard; Heard v Messiter [1956] VicLawRp 22; [1956] VLR 102

Re Reynolds' Will Trusts [1966] 1 WLR 19

Simpson v Foxon [1907] P 54

Thomson v Thomson [2008] VSC 375

1 MAZZA J: This is an originating summons seeking directions from the court as to the proper construction of the will of the late Dorothea Louisa Annie Crooks who died on 5 September 2006 at the age of 92 years. Probate of Mrs Crooks' will dated 14 June 1999 with a codicil dated 20 January 2004, was granted to the executrix on 21 February 2007.

2 The plaintiff is a solicitor who was appointed by Mrs Crooks to act as the executor of her estate. I will refer to her as the executor. Her father, a solicitor, drew the will. Jennifer Cornish and Nola Bennett are Mrs Crooks' daughters. For ease of reference, I will refer to each of the five defendants by their first given name. Jennifer was born on 4 August 1942. Nola was born on 1 October 1947.

3 Leah and Audra are Jennifer's children. Leah was born on 15 September 1970 and Audra was born on 11 September 1973. Stanton is Leah's only child. She was born on 23 April 1993. All of the defendants are living and were living at the date Mrs Crooks made her will and at the date of her death.

4 Mrs Crooks and her husband, James Bruce Crooks, purchased a total of 268 acres of farming land in Byford between 1965 and 1967. They called their property 'Waterway'. They ran a small farm and developed a studio and gallery. Mrs Crooks was a potter and weaver. Both she and her husband were passionate about promoting local artists and craftspeople. The purpose of the gallery was to provide a place for artists and craftspeople to display their work and sell it to the public. A tea garden was opened and Waterway became a popular tourist attraction. It was also a place where fashion parades, concerts and other such events were held.

5 It is obvious from the affidavit material before me that Mr and Mrs Crooks had a deep attachment to Waterway.

6 In 2003, Mr Crooks passed away. In 2004, Mrs Crooks left the property due to ill-health and went to live in a nursing home in Armadale. She was living at the nursing home at the time of her death.

7 Prior to Mrs Crook's death, parts of Waterway were sold. At the date of her death, Mrs Crooks was the sole proprietor of lots 73, 74 and 78. These lots comprised, in total, approximately 52 acres. Lot 73 is a vacant block of approximately 10 acres, lot 74 is approximately 10 acres and built on it is the home which is occupied by Nola and her husband. Lot 78 is approximately 32 acres and has on it Mrs Crook's home known as the Cottage, as well as the gallery and studio.

8 Over the years, Mrs Crooks collected many artworks, items of furniture, antiques and other decorative items (the collection). Many of these works were kept in the cottage, but because of limited space there, some of them were kept and displayed at the studio and gallery. From time to time, Mrs Crooks sold an item which she had collected for the purpose of acquiring some other item. The collection was her personal collection and was not stock in the studio and gallery. Most of the stock in the gallery was held on consignment and was not owned by Mrs Crooks.

9 Nola, in time, started her own arts and crafts business which she conducted in the gallery. Although both Jennifer and Nola assisted Mrs Crooks in running Waterway, Nola took on a greater role as Mrs Crooks got older. Nola and her husband still live in their house at Waterway and Nola uses the studio.

10 At the time of Mrs Crooks' death, her estate comprised lots 73, 74 and 78, some cash and the collection. The collection is itemised in annexures HPK3 and HPK4 in the executor's affidavit sworn 30 July 2009. The collection was also referred to in annexures A and B of the originating summons dated 30 July 2009. There is no need to detail these items. Generally the collection comprises furniture, ceramic items, more than 100 paintings and some pottery.

11 Since Mrs Crooks' death, lot 73 has been sold and the proceeds are being held by the executor.

(d) lot 78 which is estimated to be worth approximately $1.2 million dollars; and

(e) the collection. These items have been valued on a retail basis, that is, the amount for which an antique seller would expect to sell the pieces. The value of the items in annexure HPK3 in the executor's affidavit sworn 30 July 2009 is approximately $78,000. The value of the items in annexure HPK4 is approximately between $26,000 and $37,000. If the items were sold by a dealer on commission or were auctioned, a lesser price would be obtained.

13 The codicil dated 20 January 2004 is irrelevant save that it appoints Ms Keogh to be the sole executor of the will.

14 Clause 3 gives all Mrs Crooks' 'jewellery and articles of personal use or ornament' to such of Jennifer and Nola as shall survive her.

15 Clause 4 gives the rest of her estate to her husband.

16 Clause 5 provides that in the event that her husband predeceases her (which he did), her estate was to be distributed in accordance with the clauses that followed.

17 Clause 6 made specific bequests of $50,000 each to Jennifer, Nola, Leah, Audra and 'any child born to either of my said granddaughters Leah Cornish-Ward or Audra Cornish'. It is not disputed that Stanton comes within this provision.

18 Clause 7 gives a life interest to Nola and her husband 'or the survivor of them or including the children of the said Nola Louise Bennett' in respect of lot 74. The clause provides that upon cessation of the life interest, lot 74 is to be given to Leah and Audra as tenants in common in equal shares subject to a substitution clause which is in the following terms:

PROVIDED NEVERTHELESS that in the event of any of my said grandchildren entitled under this provision in this my Will shall die in my lifetime leaving issue living at my death then such issue shall stand in the place of such deceased grandchild of mine and take per stirpes and equally between them if more than one the share of my estate which such deceased grandchild of mine would have taken if he or she had survived me.

19 Clause 8 forgives any debts owed to Mrs Crooks by her children or grandchildren.

20 Clauses 9, 10 and 11 require the trustee to sell the items making up her residuary estate and to hold the proceeds on trust for 15 years during which time certain annuities are to be paid. At the expiration of the 15-year period, the residuary estate is to be distributed.

22 Clause 13 directs the executor to maintain and rent out the studio and gallery until sold for the purposes of a 'project as agreed'.

I GIVE all my jewellery and articles of personal use or ornament to such of them my daughters JENNIFER ADELE CORNISH and NOLA LOUISE BENNETT as shall survive me if more than one in equal shares to be divided between them in such manner as my Trustees in their absolute discretion think fit and I express the wish but without imposing any binding obligation on them that in such division my Trustees shall have regard to any list I may leave dividing some or all of the same between my said daughters and I DECLARE that the division by my Trustees shall be final and binding upon my said daughters.

24 The issue to be determined with respect to cl 3 is whether the items in the collection come within the words 'my jewellery and articles of personal use or ornament'.

1. MY TRUSTEE shall hold my residuary estate upon the following trusts:

(a) UPON TRUST to invest the same in his name in any of the investments authorised by law for the investment of Trust Funds with power to vary investment for other of an authorised nature;

(b) UPON TRUST to accumulate for the period expiring fifteen (15) years after the death of myself the said DOROTHEA LOUISA ANNIE CROOKS the income of my residuary estate at compound interest by investing the same and resulting income thereof in any of the investments authorised by law for the investment of Trust Funds or as set out herein and to hold the same as part of the capital of my residuary estate;

(c) UPON TRUST to make during the said period from the date of my death the following payments namely:-

To each of the said JENNIFER ADELE CORNISH, NOLA LOUISE BENNETT, LEAH CORNISH-WARD, AUDRA CORNISH or any issue of the said LEAH CORNISH-WARD or AUDRA CORNISH the sum of TEN THOUSAND DOLLARS ($10,000.00) per annum upon any such person attaining the age eighteen (18) years within the said period;

(d) At the expiration of the said period of fifteen (15) years after the death of the said DOROTHEA LOUISA ANNIE CROOKS my Trustee shall hold my residuary estate and all accretion thereof or so much thereof as shall not have been paid or applied under any Trust in equal shares for such of them that is JENNIFER ADELE CORNISH, NOLA LOUISE BENNETT, LEAH CORNISH-WARD, AUDRA CORNISH and any issue of the abovenamed in equal shares as tenants in common.

26 The issues to be determined with respect to cl 11 is who is entitled to receive an annuity under cl 11(c) and to share in the distribution of the trust fund under cl 11(d).

I DIRECT that the Studio and Gallery etcetera be maintained by my Executor until sold or otherwise disposed of on a rental basis to help provide funds for the maintenance of the property etcetera for project as agreed.

28 The issues to be determined with respect to this clause are, first over what period is the Executor required to maintain the studio and gallery, and second what is meant by the words 'for project as agreed'?

29 The executor does not contend any particular construction of the clauses in question. In her submissions, she sets out the matters which require the court's interpretation and the perceived ramifications of a particular construction.

30 Each defendant has made such submissions as they desire to make about the construction of the will.

32 The executor submits that the words used in cl 3 ('articles of personal use and ornament'), having regard to the case of In Re McFetridge (dec), Speakman v McFetridge [1950] NZLR 176, relate to items of a very personal character and may not include all the items in the collection.

33 Jennifer, Leah and Audra submit that the collection were personal items used to the exclusion of others. It is submitted that Mrs Crooks' hobby was collecting artworks, antiques and furniture and that the items could properly be described as articles of personal use. In support of this submission counsel cited Re Reynolds' Will Trusts [1966] 1 WLR 19.

34 Nola made similar submissions and contended that the collection fell within the description 'articles of personal use or ornament'.

35 Stanton did not make any submissions on this clause, but adopted the submissions of Jennifer, Leah and Audra.

36 The executor submitted that having regard to the words used in cl 11(c) and 11(d) it is unclear whether cl 11(c) is:

(a) a definite gift to all of the daughters and granddaughters and to any issue who reach the age of 18 years during the 15-year life of the trust. It was pointed out that this construction would include Stanton who turns 18 years on 23 April 2011, but no other issue yet to be born as any unborn child would not turn 18 years by the time the trust ends. This construction would require the word 'or' before the words 'any issue' to be read as 'and';

(b) a definite gift insofar as the daughters and granddaughters are concerned, but a discretionary gift insofar as any issue who have reached 18 years are concerned. This construction relies on the word 'or' being construed as giving the trustee a discretion to pay an annuity to any issue. As against this, no other words importing a discretion are used in the clause and the opening words of the clause '[t]o each of the said...' do not suggest discretion; or

(c) a substitution gift so that any issue, in this case, probably only Stanton, takes in place of Leah or Audra should they die in that period and once such issue reaches the age of 18 years. The difficulty with this interpretation is that clearer words of substitution are used in the will in cl 7.

37 Jennifer, Leah and Audra submit that cl 11(c) is a substitution gift for Stanton in the event that Leah or Audra die during the 15-year period of the trust. It is submitted that this is a construction consistent with the natural meaning of the word 'or'.

38 Nola joins with the Jennifer, Leah and Audra in the submission that cl 11(c) is a substitution gift.

39 Stanton submits that cl 11(c) should be construed as providing a definite gift to her once she reaches the age of 18 years. It was submitted on her behalf that this construction is consistent with the words in cl 11(d).

40 In relation to cl 11(d), the executor submits that the use of the words 'for such of them' is a reference to the beneficiaries who are entitled to an annuity pursuant to cl 11(c). If this is so, the use of the word 'and' before the words 'any issue' in cl 11(d) did not enlarge the class to whom the trust distribution may be made, but, rather, fixes the class. Depending upon whether cl 11(c) includes Stanton, cl 11(d) could only apply to the defendants and no-one else.

41 Jennifer, Leah and Audra favour a construction of cl 11(d) which indentifies the beneficiaries as the five defendants. Alternatively, they submit that cl 11(d) does not defer distribution of the trust estate for 15 years and is an immediate class gift to the five defendants. Let me say immediately that this alternative submission cannot be sustained because it is contrary to the clear terms of cl 11(d) which require the trustee to distribute any trust property '[a]t the expiration of the said period of fifteen (15) years after the death of [Mrs Crooks]'.

42 Nola submits that the beneficiaries entitled to receive a distribution of the trust property are the first four defendants and that Stanton is a substitute beneficiary for her mother.

43 Stanton submits that she is, along with the other four defendants, a beneficiary entitled to share in the distribution of the trust estate.

44 The executor makes no particular submission about cl 13 other than to inform the court that the first four defendants are all of the view that Lot 78 on which the gallery and studio are situated should be sold.

45 Jennifer, Leah and Audra submit that the direction in cl 13 creates a trust whereby the executor holds the studio and gallery and the proceeds of sale thereof for the purposes of 'the maintenance of the property etcetera and project as agreed'. This trust, it is submitted, is void for uncertainty as the meaning of the words 'project as agreed' are unknown.

46 Nola submits that the words 'project as agreed' are unclear.

48 As stated in Sherrin CH et al Williams on Wills (8th ed, 2002) Butterworths, at [49.1]:

The first and great rule to which all others must bend is that effect must be given to the intention of the testator; but the intention here in question is not the intention in the mind of the testator at the time he made his will, but that declared and apparent in the will. (footnotes omitted)

49 The focus must be on the words used in the will. The intention expressed by those words is considered to be the maker's actual intention: Simpson v Foxon [1907] P 54, 57 (Barnes P). The whole of the will must be considered.

50 Although some words and expressions used in wills have prima facie meanings, they, and rules which bear on the construction of wills, are subject to any contrary intention expressed in the will itself: Williams on Wills at [50.2].

51 In Brennan v Permanent Trustee Co of New South Wales Ltd [1945] HCA 17; (1945) 73 CLR 404, Dixon J, as he then was, said:

But, to determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expressions he used, that is, unless a rule of law gives them some fixed operation. 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 that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared. That is the rule of interpretation expressed in the well-known passage in the judgment delivered in the Privy Council by Lord Kingsdown in Towns v Wentworth [(1858) [1858] EngR 371; 11 Moore PCC 526, at p 543; [1857] EngR 990; (1858) 14 ER 714 at p 800]. Further, the court may take into account the circumstances to which the will is to be applied as they existed at the time it was executed (414 - 415).

52 Evidence of the testator's subjective intention is inadmissible as an aid to construction. However, the facts and circumstances of the testator's family may be used by the court as an aid to construction: Williams on Wills at [57.11].

53 Where a will contains provisions which are apparently inconsistent, every effort must be made to harmonise conflicting provisions: Thomson v Thomson [2008] VSC 375 [12].

54 Section 26(1) of the Wills Act 1970 (WA) provides:

(1) Unless the contrary intention appears by the will -

(a) the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;

55 As I observed earlier in these reasons, at the date Mrs Crooks made her will, her husband and all the defendants were living. She owned, with her husband, Waterway, to which they were both deeply devoted. Waterway was not just Mrs Crooks' home, it was her business and the place she was able to pursue her artistic talents and hobbies. Waterway was also where Nola and her husband lived. It was also for Nola her place of work and where she pursued her artistic interests.

56 Although I am not aware of the precise value of her assets at the date of death, it is clear that Mrs Crooks had a reasonably substantial estate, principally compromising Waterway. The estate was, I think, substantial enough to enable reasonable provision for her beneficiaries.

57 Mrs Crooks would have been aware that Waterway compromised three titles and that Nola and her husband lived on Lot 74 . In light of Nola's attachment to the property and the work she had done to assist her mother, I have no doubt that it was important for Mrs Crooks to allow Nola the opportunity to remain on Lot 74 for as long as she wished.

58 The evidence of the surrounding circumstances points to Mrs Crooks having a harmonious relationship with her daughters and granddaughters. It is understandable that she wished to benefit them and any great-grandchildren.

59 It is against this background that I come to ascertain Mrs Crooks' intention from reading the whole of her will.

60 It is evident that Mrs Crooks' primary intention was to benefit her husband provided he did not predecease her. However, in the event that he did predecease her (which he did), her general intention, it seems, was to fairly provide for her daughters, her granddaughters and any great-grandchildren. It seems to me that Mrs Crooks wished to provide for her beneficiaries in an essentially equal way while making special allowance for Nola by providing her with a life tenancy of Lot 74. By the time that life tenancy ceased, Lot 74 would pass to Mrs Crooks' granddaughters and possibly great-grandchildren. There can be little doubt that Mrs Crooks did this in the knowledge that when Nola's life interest ceased, it would be more appropriate for the property to pass to the generations that followed Nola.

61 The establishment of a trust indicates that Mrs Crooks intended to make provision for her family over an extended period. Further, it appears from cl 13, in particular, and the power she gave her trustee, that she hoped that the studio and gallery would remain open and would generate rental income into the future. However, there is nothing to indicate that she intended the gallery and studio to be run at a loss.

62 It must have been known to Mrs Crooks at the time she made her will, that she owned an extensive collection of furniture, ceramic items, paintings and pottery. It is surprising that had she intended in cl 3 to bequeath that collection to Jennifer and Nola, she did not specifically refer to it. It is particularly surprising when the evidence indicates that she was a passionate collector of such objects. I think if Mrs Crooks had wanted these items to be given to Jennifer and Nola in equal shares, she would have said so. Further, I do not think that the items that comprised the collection would usually be defined as articles of personal use or ornament.

63 The words 'articles of personal use or ornament' appear after the words 'all my jewellery'. I think they are meant to describe those things which, like jewellery, have a particularly personal if not intimate connection with their owner: In Re McFetridge (dec), Speakman v McFetridge. There, Finlay J construed a bequest of 'any jewellery and all articles of personal use or ornament', an expression almost identical to the one used in cl 3, narrowly and was not prepared to include in it the testatrix's piano and an interest she had in a motor vehicle.

64 Counsel for Jennifer, Leah and Audra referred to Re Reynolds' Will Trusts. In that case, the question was whether the testator's stamp collection came within the definition of personal chattels defined in s 55(1)(x) of the Administration of Estates Act 1925 (UK). That section defined personal chattels to mean:

[C]arriages, horses, stable furniture and effects (not used for business purposes), motor cars and accessories (not used for business purposes), garden effects, domestic animals, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors and consumable stores, but do not include any chattels used at the death of the intestate for business purposes nor money or securities for money.

65 In that case, the testator's will also included a clause giving a beneficiary 'such articles of domestic or household use or ornament which will be in or about my flat'. The stamp collection did not come within this clause, although Stamp J held that it came within the definition of personal chattels in s 55(1)(x) of the Administration of Estates Act. In his opinion, as the stamp collection was the testator's only or principal hobby it could be properly described as an article of personal use.

66 Each case must be dealt with having regard to its own facts and each will has to be construed having regard to the particular testator's intention. I am of course acutely aware that Jennifer, Nola, Leah and Audra urge upon me a construction which allows the collection to be defined as 'articles of personal use or ornament'. In my opinion, to adopt that construction would be inconsistent with these words and to Mrs Crooks' intention.

67 In my view, the collection does not come within cl 3, but falls into the residuary estate.

68 The use of the word 'or' before the words 'any issue' suggests a substitution in the event of the deaths of any daughter or granddaughter in favour of any issue of the granddaughters who attain the age of 18 years during the life of the trust.

69 However, if cl 11(c) was a substitution clause, it is not expressed in the same clear language as the substitution provision in cl 7. This strongly suggests to me that cl 11(c) is not a substitution gift and I so find. Nor do I think that the clause imports a discretionary gift. As the executor correctly observes in her written submissions, no other words importing a discretion are used by Mrs Crooks in the clause. Further, the opening words of the clause '[t]o each of the said' do not suggest a discretion.

70 The question remains, what is the meaning of the word 'or'? In my view, the use of the word 'or' is almost certainly a drafting error and that the word that was meant to be used was the word 'and': Re Heard; Heard v Messiter [1956] VicLawRp 22; [1956] VLR 102, 106. This construction is consistent with the use of the word 'and' before the words 'any issue' in cl 11(d). It is also consistent with Mrs Crooks' intention manifested in cl 6, to benefit in a significant way her great-grandchildren in addition to her children and grandchildren.

71 My conclusion with respect to cl 11(c) is that on its proper construction the clause should be read as:

(c) UPON TRUST to make during the said period from the date of my death the following payments namely:-

To each of the said JENNIFER ADELE CORNISH, NOLA LOUISE BENNETT, LEAH CORNISH-WARD, AUDRA CORNISH and any issue of the said LEAH CORNISH-WARD or AUDRA CORNISH the sum of TEN THOUSAND DOLLARS ($10,000.00) per annum upon any such person attaining the age eighteen (18) years within the said period; (emphasis added)

72 Accordingly, the beneficiaries under this clause are all five defendants. Stanton will become entitled to the annuity upon her eighteenth birthday. Given the 15-year life of the trust from Mrs Crooks' death, no other person, apart from the five defendants, will be entitled to receive an annuity.

73 As the executor points out, in theory this clause appears to provide for the named beneficiaries and any issue of those beneficiaries. If the word 'issue' is given its normal legal meaning, that is, descendants: Morgan v Thomas (1882) 9 QBD 643, 645 this leads to the possibility that the class of residuary beneficiaries will include infant great-grandchildren and possibly great-great-grandchildren.

74 However, the distribution in cl 11(d) by virtue of the words 'for such of them' preceding the nomination of the beneficiaries, limits the distributions to those who are entitled to take under cl 11(c). In my opinion, these words plainly refer back to those beneficiaries entitled to an annuity in cl 11(c). This interpretation is, then, harmonious with cl 11(c).

75 In my opinion, the beneficiaries who are entitled to take under cl 11(d) are all five named defendants. No other persons are entitled to a distribution pursuant to this clause.

76 For the sake of completeness, I note that some submissions were made concerning the effect of the class-closing rules on cl 11(d). As the Jennifer, Leah and Audra later acknowledge in their supplementary written submissions, there is no need to resort to these rules if I concluded, as I have, that the words in cl 11(d) when read with cl 11(c) define those who will share in a distribution of the trust fund.

78 Jennifer, Leah and Audra submit that it creates a trust in which Ms Keogh 'holds the [s]tudio and [g]allery and the proceeds of sale thereof for certain purposes' namely 'for the maintenance of the property etcetera and project as agreed'. This trust, it was submitted is void for uncertainty.

79 With respect, the clause does not create a trust. It is difficult to see how a direction in the terms of the clause could create a trust, especially when Mrs Crooks in cl 10 plainly created an express trust.

80 The clause is a direction to the executor. It does not bind her to keep running the studio and gallery especially where those ventures are making a loss. It could not have been Mrs Crooks' intention for the studio and gallery to be run on uncommercial terms. This would be contrary to her clear intention to benefit her beneficiaries.

81 Further, the clause does not require the executor to delay any sale of Lot 72 being the lot on which the studio and gallery stand. The executor may exercise the power to sell the property pursuant to cl 9 of the will whenever she sees fit. Nola points out in her written submissions, such a sale will affect her because she uses the studio. However, she will not stand in the way of any sale. Nor will the other defendants.

82 The proceeds of sale will fall into the residuary estate. The submission made by Jennifer, Leah and Audra that the clause may require the proceeds of sale to be used for the 'project as agreed' is incorrect. This construction is not borne out by the words of the clause. The clause makes it clear that any rent received from the studio and gallery is to be used to provide funds for the 'project as agreed'. There is no reference to the proceeds of sale being used for this purpose.

83 As to the words 'project as agreed' none of the defendants, including Nola, who lived at Waterway in close proximity to her mother, know what is meant by these words.

84 In the end, it is unnecessary to construe them. I am told that Lot 78 is not being rented and is receiving no income. It will soon be sold.

85 In my opinion, the questions raised by the executor should be answered as follows:

(a) On a proper construction of cl 3 of the will, the items referred to in annexures HPK3 and HPK4 in Ms Keogh's affidavit sworn 30 July 2009 do not fall within the description of 'articles of personal use or ornament'. Instead, they fall into Ms Crooks' residuary estate.

(b) On a proper construction of cl 11 of the will, the residuary beneficiaries of the estate are, with respect to both cl 11(c) and cl 11(d), Jennifer Adele Cornish, Nola Louise Bennett, Leah Cornish-Wood, Audra Cornish and Stanton Cornish-Ward.

(c) On a proper construction of cl 13, there is no requirement that the executor postpone the sale of Lot 78 and the executor may sell the property at such time as she sees fit. The proceeds of such sale will fall into the residuary estate.

86 I will hear counsel as to the precise terms of the orders and the question of costs. I am minded to order that the costs of all parties be paid from Mrs Crooks' estate.