Construction of the Gifts - legal principles
40The parties were not in dispute as to the applicable principles governing the construction of the Gifts. I respectfully adopt the well known summary by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 273-276 (citations omitted):
1. Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used (Lord Cranworth in Abbott v. Middleton; Lord Wensleydale in the same case).
2. The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... 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 (Lord Halsbury L.C. in Leader v. Duffey; Ward v. Brown; Buckle L.J. in Kirby-Smith v. Parnell).
3. 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 (Towns v. Wentworth); Hawkins on Wills, 2nd ed., at p. 6).
4. An inference cannot be made "that did not necessarily result from all the will taken together" (Sir R. P. Arden M.R. in Upton v. Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James L.J. in Crook v. Hill).
5. We cannot give effect to any intention which is not expressed or plainly implied in the language of" the "will" (Lord Watson in Scalé v. Rawlins). 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 (Lord Brougham L.C. in Langston v. Langston).
6. If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made (Knight Bruce L.J. in Pride v. Fooks).
7. When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy (Page Wood V.C. in Hope v. Potter).
8. There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense ...), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention (Lord Brougham L.C. in Langston v. Langston).
9. If on reading the will you can see some mistake must have happened, that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself (Langston v. Langston).
10. The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills (Lord Shaw in Lightfoot v. Maybery). In ascertaining the intention, I ought to a certain extent-we all know what the expression means-to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary (Buckley L.J. in Kirby-Smith v. Parnell).
41While their relative antiquity has not dimmed the applicability of Isaacs J's observations, I also respectfully adopt the more recent summary of Austin J in Hyde v Holland [2003] NSWSC 733, particularly for its helpful exposition of what is sometimes referred to as the "armchair" principle:
24 The Court's task in construing a will was well described by Blackburn J in Allgood v Blake (1873) 8 LR Ex 160, at 162-4. His Lordship said:"A 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 decide 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....
No doubt in many cases the testator has for the moment forgotten or overlooked material facts and circumstances which he well knew. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the Court is to construe the Will as made by the testator, not to make a Will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has, by blunder, expressed what he did not mean....
We apprehend that no precise line can be drawn, but that the Court must, in each case, apply the admitted rules to the case in hand; not deviating from the literal sense of the words without sufficient reason, or more than is justified; yet not adhering slavishly to them, when to do so would obviously defeat the intention which may be collected from the whole Will."
25 A court of construction cannot omit or insert words, and will not admit evidence showing that different words were intended to be used in the will: Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639, at 645, 651. Words are usually given their ordinary grammatical meaning, but this depends on the context: Towns v Wentworth [1858] EngR 371; (1858) 11 Moo PC 526 [14 ER 794]; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327.
26 Pursuant to the principle of construction sometimes called the "armchair" principle, extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator's situation at the time of the will and the context in which he expressed his testamentary intention: Boyes v Cook (1880) 14 Ch D 53, at 56; Day v Collins [1925] NZLR 280; Harris v Ashdown (1985) 3 NSWLR 193.
27 Counsel for both defendants referred me to the well-known presumption against an intestacy, by which a court will lean against finding an intestacy and will not presume that the testator meant to die partially intestate if, on a fair construction, there is reason for saying the contrary: Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, at 275-6; Kirby-Smith v Parnell [1903] 1 Ch 483, 489-490. Consequently the Court will lean to avoid the finding that a gifts is uncertain and void, and where there is only a slight reason to favour one ambiguous construction over another, the Court will do so if that construction avoids intestacy, on the basis that it is closer to the testator's intention than intestacy: Re Ansell; Wardlaw v Ekblade [1947] Tas SR 36; Gerhardy v South Australian Auxiliary to British and Foreign Bible Society Inc (1982) 30 SASR 12, at 26.
28 However, the presumption against intestacy is not a strong presumption, and the Court should not "lean too heavily against a construction that produces an intestacy; and certainly cannot, in order to avoid that result, misconstrue the language of the instrument": Re Wragg Dec'd [1959] 1 WLR 922, at 929 per Lord Evershed MR; Marks v Pope [2001] NSWSC 105 (5 March 2001), paragraph [17] per Young J. In Re Wragg a professionally drafted will provided that the trustees were to hold the estate on trust to pay a weekly sum to the widow, and another weekly sum to the deceased's brother, and "after the death of" the widow, and after setting aside a sufficient part of the estate to pay the brother's annuity, to divide the residuary estate into seven parts. Although Lord Evershed acknowledged a "natural inclination against a result that means that the draftsman left a lacuna in his draft", the Court held that, on the proper construction of the will, the surplus income was not disposed of during the wife's life.