Corda v Davey [2000] VSC 27

8. During the life of the deceased he had two sons, namely, the third defendant, Christopher Coralluzzo, who was born on 14 February 1957, and the fourth defendant, Gregory Coralluzzo, who was born on 14 April 1954. Both of those sons of the deceased were born to Joyce Irene Oliver. At no time was the deceased married to Joyce Irene Oliver. On 5 July 1992, the deceased married Valerie Mortean. She had been previously married and had one child by her previous marriage. Her name by her previous marriage was Mase. She bore no child by the deceased. This marriage was dissolved by a decree of dissolution of marriage made by the Family Court of Australia which became absolute on 21 July 1996. Other than the third and fourth defendants there was no child born to the deceased before or after his death.

11. Each of the third and fourth defendants are married. The third defendant, Christopher, was married on 27 March 1982 to Lorraine Macartney. They remain married to each other. By this marriage Christopher has two children, Natalie Coralluzzo who was born on 14 July 1983 and Mark Coralluzzo who was born on 15 November 1984. The fourth defendant, Gregory, was married to Kristine McCann on 8 January 1975. They remain married to each other. By this marriage there has been born to Gregory two children, namely, Anthony Coralluzzo, born on 27 August 1983 and Luke Coralluzzo, born on 9 December 1984. These four grandchildren of the deceased were alive at the death of the deceased and remain living.

14. During the life of the deceased no other child, other than these four grandchildren, was born who was a grandchild of the deceased. Since the death of the deceased no other child has been born, to this time, who is a grandchild of the deceased.

17. At the time of the death of the deceased he left a will which had been made by him on 27 October 1995. Probate of that will was granted to the plaintiff on 31 December 1998. At the time of his death the deceased left property, both real and personal, which was valued at some $3.7M.

20. By clause 3 of the will of the deceased he devised and bequeathed the whole of his estate, both real and personal, to his trustee upon trust, first to pay his debts, expenses and duties charged on his estate, secondly, to permit Gregory to reside in an identified property, which the court was informed did not form part of the estate of the deceased but rather formed part of the property of a separate family trust and thirdly, by sub-paragraph 'c' of that clause -

"(c) To pay and transfer the whole of the rest and residue of my estate both real and personal of whatsoever nature and wheresoever situate unto my grandchildren who shall survive me for their own use and benefit absolutely upon attaining the age of 30 years and if more than one as tenants in common in equal shares."

24. Further, by clause 4 of the will of the deceased it was provided -

"4. I FIRSTLY DECLARE that my trustee may from time to time at his absolute discretion but subject to any prior interest therein pay and apply the whole or any part of my estate to which any beneficiary under this my will is contingently entitled and any income that shall have arisen or which may arise from that share for or towards any or any combination of the following objects, viz:- the maintenance, education, support, advancement or benefit of that beneficiary."

28. By the Origination Motion and Summons which initiated these proceedings the plaintiff seeks that the court answer the following questions in respect of the will of the deceased, namely -

"(1) Does 'my grandchildren' where appearing in clause 3(c) of the will only include grandchildren of Lino Carmine Coralluzzo who were born before his death on 14 July 1998? (2) Does 'my grandchildren' where appearing in the said clause 3(c) include grandchildren of Lino Carmine Coralluzzo who are born after his death on 14 July 1998?"

32. The plaintiff further sought an order that the first defendant, Davey, represent the grandchildren of the deceased who were alive as at 14 July 1998 being the date of death of the deceased and an order that the second defendant, McNabb, represent grandchildren of the deceased born after 14 July 1998.

35. At the outset of the hearing of these proceedings I ordered that the first defendant, Davey, represent the four grandchildren of the deceased born before his death and who remained living at his death, namely, Natalie, Mark, Anthony and Luke. I further ordered that the second defendant, McNabb, represent any grandchildren of the deceased born after the death of the deceased, although on the evidence I am satisfied that since the death of the deceased no such child has been born.

38. By order of a Master made on 13 October 1999, each of the sons of the deceased, the third and fourth defendants, were joined as parties to the proceeding. At the outset of the hearing I was informed that no difference existed between these persons as to the manner in which the questions, addressed to the court for its consideration, should be answered. They were represented by the same counsel.

41. Counsel on behalf of the first defendant, who represented the four grandchildren of the deceased who were born before his death and were alive thereafter, and counsel representing the third and fourth defendants, the fathers of those four grandchildren, each submitted to the court that on a proper construction of the will of the deceased the expression in clause 3(c), "my grandchildren who shall survive me" means and should be held by the court to mean those grandchildren of the deceased who were born before his death and who were alive thereafter. It was submitted on behalf of these parties that such phrase ought not to be interpreted or understood to mean that "my grandchildren" therein referred to included a grandchild of the deceased who was not born before his death but who was born thereafter. Accordingly, it was submitted on behalf of these parties that the first question should be answered in the affirmative. It was submitted that it followed that the only grandchildren of the deceased who may take under clause 3(c) of his will were the four grandchildren of the deceased to whom I have referred and were born before his death and who remained living thereafter.

44. On behalf of the second defendant it was submitted that on a proper construction of the aforesaid phrase and when regard is had to the circumstances of this case and also in particular to clause 4 of the will that it should be held by the court that it was the intention of the deceased by use of the expression "my grandchildren" to not limit those persons to children born before the death of the deceased and who remained alive thereafter but also to include any person being a grandchild of the deceased who may be born after the death of the deceased and who was alive at the time when a grandchild of the deceased first attained the age of 30 years. On behalf of the second defendant it was submitted that the first question should be answered in the negative and the second question should be answered, "Yes, but only those grandchildren living when a grandchild of the deceased first attains 30 years of age."

47. In Knight v Knight [1912] HCA 36; (1912) 14 CLR 86 a testator left the residue of his property to trustees upon trust - "to pay and divide the same equally between and amongst such of the children of the said Elizabeth Mary Steinbach and of the said Josia Charles Eagle Knight as shall survive me and live to attain the age of 21 years on their respectively attaining such age. And if there shall be only one such child then the whole shall be paid to one such child provided always that if any of the children of the said Elizabeth Mary Steinbach or of the said Josia Charles Eagle Knight shall die under the age of 21 years leaving issue such issue shall take and if more than one equally between them the share or shares whether original or accruing to which their his or her parent would have been entitled had he or she survived me and attained the age of 21 years." On appeal the issue before the court was whether children of Knight who were born after the testator's death could take as beneficiaries of the residuary estate. It was held by Barton and Isaacs JJ (Griffith CJ dissenting) that the meaning of "survive" in the will was "outlived", that is, to be in existence at the time of the testator's death and to be alive thereafter. At p.98 Barton J stated "... A search of the English dictionaries has convinced me that the ordinary and usual meaning of the words 'survive me', as here used is 'outlast or outlive me'. That expression is not ambiguous. It clearly implies the existence, at the testator's death, of the persons who may 'survive' the testator. If they come into existence after that time they cannot be said to survive him. They may survive somebody or something else, but not the testator. Or they may 'survive, in some general sense unconnected with the testator' but neither of these is the use of the words as they occur in the text, for it is the testator and not another person, or an event, that is to be survived".

50. Each of their Honours further considered the use of the words 'survive me' in the context of the will. Each concluding that there was nothing in the context of the will which would effect the meaning of those words as to give them a meaning other than their ordinary and usual sense. At p.102 after further examining the provisions of the will Barton J stated, "I do not find therefore that the other provisions of the will afford convincing reasons - indeed, I cannot see that they afford any - for the reading of the residuary gift in a sense different from that which the terms used would ordinarily convey." Isaacs J at p.112 stated, "... I cannot perceive that there is any clear intention to use the words 'survives me' in any but the ordinary sense of 'outlive me'."

53. Each of their Honours in their judgments reviewed the decisions in Re Clarke's Estate 3 DJ and S, 112; Gee v Liddell LR 2 Eq, 341; in Re Delany 39 Sol J, 468 and in Re Heath; Jackson v Norman Sol J, 416. It is not necessary for me to re-visit these decisions.

56. In Brennan v Permanent Trustee Co of New South Wales Ltd, (1945) 73 CLR, Rich J at p.409 said -

"No one can doubt that according to correct use of English the word 'survive' imparts life before and after the event survived. A man does not survive another unless he was born before the other's death."

60. In Re Hodgson [1952] 1 All ER 769 Roxburgh J declined to follow in Re Clarke's Estate, and in Re Sing [1914] WN 90 in which it was held that "survive" was capable of meaning "live after" and determined that there was nothing in the context of the will or the surrounding circumstances that caused him in that case to conclude that the words "survive me" should be given anything but their natural meaning, that is, "that the propositus is alive at and after the point of time or event in question".

63. In Re Allsop [1968] 1 Ch 39, the testator by his will dated 17 May 1898, devised property to his granddaughter, Sarah and her husband James Warr using the following words -

"I devise all my property at Stone ... to James Warr and to the said Sarah ... Warr during their joint lives and the life of the survivor of them and after the decease of such survivor I give the same unto and equally between such of the children of the said James Warr and Sarah ... Warr as shall survive me and attain 21 years and the issue of such of them as shall die previously such issue taking nevertheless the share only which his or her or their parent would have taken if he or she had survived me and attained the age of 21 years and if more than one in equal shares as tenants in common".

67. At the date of the will Sarah and James Warr had one child, Fanny, aged four. The testator died shortly after making his will on 6 January 1899. After his death Sarah and James Warr continued to live at Stone and had six more children. James Warr died in 1958 and Sarah died in 1959. Five of their children were still living, including the eldest child Fanny. An Origination Summons taken out to determine whether on the true construction of the testator's will, his property on the death of Sarah was divisible among the seven children of she and her husband who attained the age of 21 or their five children who attained the age of 21 and survived them or whether the property was given to Fanny absolutely. At first instance Plowman J held that there was nothing entitling him to depart from the natural meaning of "surviving me" and declared that the property was to go to Fanny absolutely. On appeal, which was allowed, it was held that by reference to the word "them" in the expression "the issue of such as them" the testator was necessarily referring to all the children of Sarah and James Warr as a class and indicating an intention that the property should become divisible on the death of the surviving life tenant in equal shares among all their children who attained 21 years or their estates if already dead. At p.46 in his judgment Denning MR after making reference to Elliot v Joicey [1935] UKHL 3; [1935] AC 209 and stating that he accepted that the ordinary meaning of the word survive was that "the person who is to survive shall be living both at and after a particular point of time", he said, "There are a number of authorities which show that that meaning is capable of being displaced if it leads to a capricious result which can never have been intended by the testator. In some contexts it may mean simply "live after". At p.47 he further said -

"... In my opinion in Re Hodgson was wrongly decided. I prefer to follow the decision in this court in In Re Clarke's Estate for this simple reason: the object of the court in construing a will is to discover the intention of the testator. I do not think his intention is to be discovered by looking at the literal meaning of the words alone. That has led, time out of number, to frustration of his intentions. You must look at the will in the light of the surrounding circumstances. Eschewing technical rules and literal interpretation you must look to see simply what the testator intended. If you find that a literal interpretation gives rise to a capricious result which you are satisfied the testator can never have intended then you should reject that interpretation and seek a sensible interpretation which does accord with his intention".

71. Lord Denning concluded that the testator did not mean that the one child Fanny alone should take stating at p.47: "Else he would have said so". He concluded that in the circumstances of that case the words "survive me" meant "live after me" as had been held to be so in Re Clarke's Estate. Russell and Davies LJJ in their respective judgments, although not following in Re Clarke's Estate, concluded by reference to the context of the will that the phrase "as shall survive me" should not be read to limit such persons to being those born in the lifetime of the testator. At p.51 Davies LJ stated: "There may be, as has rightly been pointed out, surrounding circumstances or there may be a context which can put a different meaning on the words 'survive' or 'survivor' other than that which it would normally import. But in the absence of such circumstances or context the meaning of the word 'survivor' is that indicated by Lord Russell of Killowen in Elliot's case [1935] UKHL 3; [1935] AC 209, 218. It means that the survivor must be in existence at and live after the date of the postulated event. The word cannot in my view, with the utmost respect to the views expressed by the Master of the Rolls, include a person who comes into existence subsequently." Lord Russell concluded by reference to the terms of the will that the words "survive me" were not to be read to bring about a capricious and improbable result being limited to Fanny being the only child of Sarah and James living before the death of the deceased, but rather, when reference was had to other terms of the will, the provision made by the testator was for the children of the Warrs, in the case of those born in his lifetime survived him and in any other case those who attained the age of 21 years.

74. Counsel for the second defendant submitted that whereas the normal meaning of the words in a will, "who shall survive me" refer to a person alive before and at the death of the testator, in the context of the use of those words in clause 3(c) of the will of the testator in this case when regard is also had to clause 4 and also when regard was had to surrounding circumstances relevant in this case, that it is improbable that it was the intention of the testator that the beneficiaries of his residuary estate should be limited to his grandchildren who were born before and living at his death. It was submitted that it should be concluded that it was probable that the testator intended to include as beneficiaries of his residuary estate those of his grandchildren born before and living at his death and those born after his death. It was submitted however that the "rule of convenience" laid down in Andrews v Partington [1791] EngR 1535; (1791) 3 Bro C.C. 401 should be applied thereby closing the class of grandchildren who may take as beneficiaries of the residuary estate of the testator being those grandchildren in existence when the first attained the age of 30 years.

77. The relevant surrounding circumstances relied on in support of this argument were that at the time that the testator made his will there had been born and then living four grandchildren whose ages range from 10 to 12 years of age. It was submitted that by the terms of his will the deceased had delayed the entitlement of any grandchild to take a share of the residuary estate until that grandchild attained 30 years, it being contended that by delaying the entitlement to take a share in the residuary estate well beyond the time when a grandchild would gain his or her majority, it was indicative of the intent of the testator to allow such a sufficient period of time for further grandchildren being born to him by his two sons. Again, reference was made by counsel to part of the evidence before the court in this case and in particular part of the affidavit of the son of the deceased, Gregory. In his affidavit sworn on 11 October 1999 Gregory in part deposed that it is his intention to have no more children. He has further deposed, "My father was aware that I had no intention of having any further children. On regular occasions my father would often question me as to whether Kristine and I were going to have another child and I would tell my father that we had no intention of doing so." Gregory, by his affidavit further deposed, "I recall on one occasion that my father attempted to encourage Kristine and I to try for a daughter, given that we had already had two sons. I told my father on that occasion that we had no intention of having any more children at all." It was put on behalf of the second defendant that by the testator raising the question of whether or not Gregory intended to have further children and attempting to encourage his wife Kristine to "try for a daughter" it demonstrated that the testator was at least concerned that further grandchildren may be born and by delaying the period when a grandchild may take a share in the residuary estate until that child attained 30 years of age he provided ample time for that to occur. It was submitted therefore that it was improbable that by the use of the word "survive" the testator intended only those grandchildren born before his death and alive thereafter should be able to take a share in his residuary estate should that grandchild attain 30 years of age. This argument, however, in my opinion, ignores entirely the fact that Gregory made it clear to his father that he intended to have no further children. There is no evidence that any similar conversation was had between the deceased and his other son Christopher. In my view this evidence, taken into account with the terms of the will could not lead to the conclusion that it was probable that the testator meant "survive" in the phrase, "my grandchildren who shall survive me" to have a meaning other than its natural normal meaning.

80. It was further submitted that when regard is had to clause 4 of the testator's will the use of the word "contingent", demonstrated, that when dealing with his residuary estate and the discretionary powers vested in his trustee under that clause, it is to be concluded that the testator regarded the gift of a share in his residuary estate as contingent and in particular until his grandchildren attained 30 years and that that being the case it was improbable that he intended to exclude any grandchildren who may be born after his death.

83. For the remaining step in the submissions made on behalf of the defendant to have effect it is necessary to bring into play the "rule of convenience" in Andrews v Partington. It is sought on behalf of the second defendant to bring into account such a rule so as to close the class of grandchildren who may take a share in the residuary estate to those in existence on the first of such grandchildren attaining the age of 30 years.

"The rule of convenience, as it is called, has, for more than two centuries, been adopted where it has been found impossible to comply with the whole of the testator's intention in the distribution of a proposed gift, and the Court has been compelled to choose the direction in which effect will be given to that intention. One child is immediately entitled to his share; others yet unborn might come within the class if the door were left open. Then the question is, shall the child presently entitled be paid at once, with the necessary consequence that the door be finally closed, or shall he wait until all possible members of the class are qualified. If the child presently entitled is to be paid at once, the necessary consequence follows that the class is considered as closed, because unless that is so, the amount payable to him cannot be determined, and 'if you have once paid it to him you cannot get it back' (Gillman v Daunt 3 K and J 48 at p.49). But as pointed out by Sir George Jessel in In Re Emmet's Estate; Emmet v Emmet 13 Ch D, 484, 'that rule of convenience, being opposed to the intention, is not to be applied where it is not necessary, there being also a rule that you let in all who are born up to the time when a share becomes payable.' I understand that to mean, that, where the Court is not driven to make a choice of convenience, it will not do so, but leave the testator's real intention to operate."

90. Again at p.95 in Knight v Knight Griffiths CJ said that, "The rule admittedly defeats the testator's actual intentions. It is never applied unless it is necessary."

93. In this case the "rule of convenience" is sought to be applied and brought into account to defeat what is said to be the testator's intention as a necessity on it being contended that it was not the testator's intention not to give ordinary meaning to the words, "my grandchildren who shall survive me".

96. In Brennan v Permanent Trustee Co of NSW [1945] HCA 17; (1945) 73 CLR 404 the will of the testator provided (as appears from the headnote) that "after directing that the income of certain legacies was to be paid to the respective legatees for their sole and separate use and without power of anticipation, the will provided that after or in the case of the decease of each of the said legatees then the sum given for her benefit was to be held upon trust 'for all her children who shall survive me and attain the age of 21 years or die in my lifetime leaving issue'. At the date of the will, which was made one year before the testator's death, six of the twelve legatees, nieces of the testator, were married and had children. Since the testator's death other legatees had married and more children had been born. It was held by Dixon and Williams JJ (Starke J dissenting) that the provision in question included all the children of the nieces of the testator who lived after his death and attained or should attain the age of 21 years whether such children were born in his lifetime or after his death.

99. In reaching that conclusion Rich J, after examining the language of the will at p.411 held that there were clear indications that the testator had misused the word "survive". His Honour at p.411 further stated that in addressing the question whether "the testator has not sufficiently shown that he did not attached to the word 'survive' its full and precise meaning even if it amount to a grammatical solecism - "I begin with the gross a priori improbability of his intending to exclude the children of his unmarried and the children of his married nieces born after his death".

"... 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] EngR 371; (1858) 11 Moore PC 526 at p.543. 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."

"There can be no doubt that these circumstances give rise an a priori improbability of some strength against an intention on the part of the testator to exclude the children of unmarried nieces from a gift made in succession to a life interest to his nieces. The improbability extends to an intention to exclude children of married nieces born after his death. For it would hardly be reasonable to settle legacies in favour of 12 women, six only of whom were married and to settle them upon limitations on legatee for life and after her death only upon those children in existence at the date when the will came into operation. But an improbability of this kind can only be taken into account when the will itself is so framed as expressed to disclose an intention at variance with the use of the word 'survive' in its natural meaning."

110. At the time that the deceased made his will he had four grandchildren. The use of the word "grandchildren" in clause 3 of his will was appropriate when seeking to provide for them a benefit under his residuary estate. When regard is had to the use of the expression by the testator in his will, "my grandchildren who shall survive me" in clause 3(c) and when also clause 4 of the will is taken into account and in particular the word "contingently", I am unable to conclude otherwise than it was the intention of the deceased that those who were to share in his residuary estate were those grandchildren born before and alive after his death and who attained the age of 30 years. Had the deceased wished to give effect to that which is contended for on behalf of the second defendant and which would involve reliance on a "rule of convenience" so as to close the class of grandchildren who may take benefit of the residuary estate, the words in the will, "who shall survive me" were entirely superfluous and ought to have been not included.

113. In the circumstances of this case there exists no reasonable ground for reaching a conclusion that the testator intended to use the words "grandchildren who shall survive me" other than in their normal meaning. At the time that he made his will the testator had four grandchildren aged between 10 and 12 years of age. There is no good basis, when regard is had to the referred to expression in the context of the will and/or the surrounding circumstances, to conclude that it was the testator's intention to allow for the possibility that one of his sons may cause a further child to be born at some time after the his death and for such a child also to share in his estate. In my view the expression, "my grandchildren who shall survive me" as appearing in clause 3(c) of the will should be given its normal meaning being that it referred to his grandchildren who were born before the testator's death and who were alive thereafter. On the facts of this case those children were Natalie, Anthony, Mark and Luke.

116. It follows that the first question posed by the origination motion and summons in these proceedings, for the court to answer, must be answered -

'My grandchildren' where appearing in clause 3 of the will of the deceased Lino Carmine Coralluzzo only includes grandchildren of Lino Carmine Coralluzzo who were born before his death on 14 July 1998 and who were alive thereafter.

120. It further follows, insofar as it is necessary, that question 2 must be answered, "No".