VERNON WILLIAM ELDER as Executor of the Estate of BERNICE JOY ELDER (Dec)

TIMOTHY LAURENCE McCOMISH as Executor of the Estate of ROLAND DANIEL CANTWELL (Dec)

Practice and procedure - Application to strike out parts of affidavits - Turns on own facts

Trustees Act 1962 (WA), s 94(1)

Harris v Ashdown (1985) 3 NSWLR 193

Hill v Crook (1873) LR 6 HL 265

In Re Rowlands (Dec) [1973] VicRp 21; [1973] VR 225

Re Jebb (Dec) [1966] Ch 666

Archer v Channel Seven Perth Pty Ltd [2001] WASCA 195

Festa v The Queen [2001] HCA 72

Hardwick v Hardwick (1873) LR Eq 168

Hiscocks (Dec) v Hiscocks [1839] EngR 65; (1839) 5 M & W 363

Hughes v National Trustees, Executors & Agency Company of Australasia Pty Ltd [1979] HCA 2; (1979) 143 CLR 134

Re Smalley; Smalley v Scotton [1929] Ch 112

Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 WLR 271

Subramaniam v Public Prosecutor [1956] 1 WLR 965

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

1 MASTER SANDERSON: This is the defendant's application to strike out all or alternatively certain parts of six affidavits filed by the plaintiffs in support of their application. A number of the affidavits are lengthy and consequently the material sought to be struck out is considerable. Sensibly, counsel for the defendant decided that the admissibility of the plaintiffs' affidavit should be determined separately from the substantive issues in the application.

2 The action itself has arisen in this way. The defendant in the executor of the Will of Roland Daniel Cantwell ("the deceased"). The deceased died on 17 March 2004. He left a Will dated 6 February 1998. By his Will, the deceased left certain specific legacies to three named beneficiaries. He then left the rest of his estate to his wife, Violet Ellen Gladys Cantwell, if she survived him by 30 days. She did not. The residuary clause then left the deceased's estate "for such of my children who shall survive me".

3 The deceased was married twice. From his first marriage, he had three biological children, Peter Roland Cantwell ("Peter"), Kerry Margaret Usher ("Kerry") and Wendy Clare Solly ("Wendy"). His second marriage was to Violet Ellen Gladys Cantwell ("Gladys"), who, at the date of the marriage, had one son, Verne William Elder, who is the first plaintiff in these proceedings. The first plaintiff was married to Bernice Elder, who is now deceased. She died after the death of the deceased. There were no children of the marriage between the deceased and Gladys and the deceased had no ex-nuptial or adopted children.

4 The defendant has taken the position that the reference to "my children" in the deceased's Will refers only to his biological children - that is, Peter, Kerry and Wendy - and the reference does not include the first plaintiff or Bernice. The plaintiffs dispute that that is the case. They have applied under s 94(1) of the Trustees Act 1962 (WA) for the following orders:

"(1) The Defendant's decision to deny the First Plaintiff is entitled to participate in the estate of Roland Daniel Cantwell (the 'Deceased') be reviewed;

(2) a declaration that the term 'my children' in clause 6 of the will of the deceased dated 6 February 1998 (the 'Will') describes and applies only to the First Plaintiff and the Second Plaintiff to the exclusion of those beneficiaries specifically identified by the Deceased, being Peter Roland Cantwell, Kerry Margaret Usher and Wendy Clare Solly;

(3) alternatively, a direction that the First Plaintiff and the Second Plaintiff both fall within the definition of 'my children' in the Will."

5 It is the executor's position that the term "my children" in the Will is clear and unambiguous and refers only to the biological children of the deceased. The executor says there is no room for argument on that point. The plaintiffs have filed affidavits going into some detail as to the nature of the relationship between them and the deceased. What they are attempting to show is that the relationship was such that in its ordinary and natural meaning the phrase "my children" when used by the deceased would include them.

6 As I understand the submissions of counsel for the defendant, the application was advanced on two grounds. First, it was said that the wording of the Will was so clear that there was no basis upon which evidence of surrounding circumstances could be admitted. On that basis, it was said that all of the affidavits which had been lodged should be struck out. Counsel accepted that this was not the full hearing of the plaintiffs' application. She agreed that final determination of the matters raised in the originating summons must await another day. It has to be said it is difficult to see how, as a matter of logic, if I were to conclude that the words in the Will were so clear as to not warrant the admission of any evidence of surrounding facts, what could be left for final determination. Second, it was said that even if the most generous view was taken of evidence that might be admissible to further the plaintiffs' case, these affidavits contained material which was entirely irrelevant and ought be struck out. Reliance was placed on O 37 r 7 of the Rules of the Supreme Court 1971 (WA).

7 Dealing with the first of these submissions, both counsel relied to the decision of the New South Wales Court of Appeal in Harris v Ashdown (1985) 3 NSWLR 193. That case concerned the question as to whether gifts in a Will to the "children" and "grandchildren" of the testator included a child adopted by a daughter of the testator after his death. Kirby P (as his Honour then was) introduced his decision in the following way (at 194 - 195):

"It is clear that the search in which the Court is engaged is for the intention of the testator, as stated in his will. Wills being written in words, and words being imperfect vehicles for meaning, it is often necessary for courts to have regard to facts, extrinsic to the will, which are proved as the background matrix of surrounding circumstances (if that phrase may be adopted) against which a testator may be presumed to have directed his mind in the preparation of the will. Sometimes described as 'armchair facts', these may be established for the elucidation of the language of the will, on the basis that a testator is generally to be presumed to know the circumstances of his family, and relieved from the obligation to spell out in his will the obvious."

8 His Honour then considered the facts of the case in some detail. He then dealt with the approach to construction. His Honour said (at 196):

"It was conceded, properly I think, that the words 'child' and 'children' can, in ordinary speech, be used, interchangeably, to mean the natural child, the legitimate child, the illegitimate (or ex-nuptial) child or the adopted child. Courts seeking the meaning in a particular context will sometimes derive assistance from other provisions of the document in which the word appears. Sometimes they will be helped by reference to admissible external circumstances from which it can be inferred that only one meaning could have been intended. Sometimes they will resort to prima facie rules of construction which have been adopted in the past - definitions offered by judges construing the same word in different contexts, in earlier times.

The last-mentioned approach was urged upon the Court in the present case. It was said to be especially applicable because of the fact that the will here in question was drawn by a lawyer who, it was said, could be taken to have been aware of the settled prima facie construction of the word 'child' where appearing in a will, namely that it means the legitimate child of the testator and hence, by inference in the present case, excludes a person with no genetic relationship to the testator, whose sole link with the class to be benefited was the limited link of legal adoption."

9 His Honour goes on to consider the authorities which supported that last-mentioned proposition. He refers in particular to the observations of Lord Cairns in Hill v Crook (1873) LR 6 HL 265, Re Jebb (Dec) [1966] Ch 666 and In Re Rowlands (Dec) [1973] VicRp 21; [1973] VR 225. His Honour then says (at 197):

"This approach [adoption of the rules of construction] has reasons of convenience to recommend it. As I have said, the word 'child' is one frequently used in wills. The provision of a judicial dictionary by which 'child' has a prima facie meaning, only to be displaced in limited circumstances, is convenient. It may facilitate the construction of wills, avoid or reduce litigation and thereby save costs. But these features of convenience must not undermine the basic object of the law in this connection. This is to determine what the testator intended."

10 Having set out that overriding principle, his Honour goes on (at 202):

"Even allowing for the consideration that the will was drawn by a lawyer, that it uses words which had long been given a specific and limited meaning by the courts and that social attitudes to adoption were different in 1948, and perhaps less tolerant, than they are today, there remains an ambiguity on the face of the will. It is one which permits the Court to examine the extraneous circumstances which, it may be inferred, the testator would have had in mind, in order to derive his intention. This may be done not to contradict the language chosen but, rather, to fulfil the intention of the testator as it may be inferred from that language, elaborated by reference to circumstances known to him."

11 There are, I think, two matters which arise from what his Honour had to say which are relevant to this present application. First, there is no basis for suggesting that the use of the phrase "my children" necessarily refers only to the biological children of the deceased. In effect, the decision in Harris is authority for the proposition that no such bald assertion can be maintained. Secondly, and flowing on from the first, it will be for a party who urges upon the Court a construction of the Will which does not limit the phrase "my children" to the deceased's biological children to produce evidence of the surrounding circumstances which can lead a Court to conclude that there is an ambiguity on the face of the Will. That is what was done in Harris and, with respect, that is what the plaintiffs have attempted to do here.

12 On that basis, it seems to me that there is no warrant for striking out these affidavits in their entirety. It is open to the plaintiffs to put before the Court evidence which supports their interpretation of the phrase "my children" in the Will. Put another way, it is open to the plaintiffs to put forward evidence which establishes that there is an ambiguity in the Will. Whether or not, once that evidence is considered by a Court, it will be sufficient to establish the interpretation of the phrase contended for by the plaintiffs is another matter. But the plaintiffs are entitled to put forward that evidence.

13 That, then, leads to the question of whether or not the affidavits contain the irrelevant material which should be struck out. Essentially on this question, the defendant's position can be summarised in this way. They say that they are confronted with a large amount of evidence which is of no probative value whatever. Nonetheless, they are compelled to answer everything put forward by the plaintiffs. They say that this is oppressive and will unnecessarily increase costs. It was also said that the affidavits contained hearsay material and that the deponents purported to give evidence of the state of mind of the deceased when they were clearly not in a position to do so.

14 I accept that there is a significant amount of material in the various affidavits which will be of limited probative value. Much of it should not be in the affidavits. But I am not satisfied that the proper course is to strike out this material. Given that I was not hearing argument on the originating summons and counsel for the plaintiffs did not have the opportunity to put his clients' case in its entirety, I am not in a position to determine what material is relevant and what is not. To attempt to strike out parts of the affidavit in advance of the hearing of the application as a whole, runs the risk of undermining the plaintiffs' case in unexpected ways. Nor am I satisfied that parts of the affidavits which are said to be hearsay or are said to be evidence of the state of mind of the deceased should be struck out. Those parts of the affidavits are not so mischievous as to warrant action being taken in advance of the hearing.

15 That is not to say that I have concluded that all the material in the various affidavits is relevant. All I have determined is that I will not strike any of the parts of the affidavits out. But that does not mean that every matter which is raised in the affidavits needs to be addressed by the defendant. It is for the defendant to determine what parts of the evidence of the plaintiffs need be answered. That is a professional judgment made in the context of the proceedings. In due course, if the defendant takes the view that there are unnecessary matters set out in the affidavits filed by the plaintiffs, then the appropriate costs order can be made under O 37 r 6(3). Doubtless, that is a matter that the defendant's counsel will take up with the trial Judge.

16 In the circumstances, I would dismiss the defendant's application. Subject to hearing from counsel, I propose that the costs of this application be reserved.