FAITHFULL -v- PINE [2012] WASC 75 (8 March 2012)

4 The Will of the deceased is in the following terms:

I give devise and bequeath unto

Jacqueline Hilda Pine, all monies and properties of whatever kind.

Monies which are at present held in a Commonwealth Bank Cash Management Trust, are to be used for the purchase of a home for Jacqueline in either of the States of Western Australia or Tasmania.

Upon the death of Jacqueline Hilda Pine, the above home and any property of whatever kind remaining from my estate shall be divided equally and shared by my sons Shane Paul Wilkins and Daniel Jason Wilkins.

5 The Will was dated 10 April 1997. On 28 January 1997, the deceased received from a divorce settlement the sum of $98,303.17. There is no evidence these funds were actually paid into a Commonwealth Bank Cash Management Trust. The executrix has been unable to ascertain where and in which bank account the funds were deposited. It is probably reasonable to assume they were, in fact, deposited in a Commonwealth Bank Cash Management Trust account.

6 On 10 September 1997, the deceased paid a deposit on real estate at 11 Durrant Avenue, Parmelia. He paid the balance of the purchase price for that property on 26 September 1997. The total cost of the property, including adjustments for rates and other expenses was $75,126.70. That property, which was in the sole name of the deceased, forms the bulk of his estate. As at the date of death, there were other funds held in other bank accounts.

7 At the date of death of the deceased, he did not have any funds in the Commonwealth Bank Cash Management Trust.

8 The first defendant says the Will is clear. She says the Durrant Avenue property passes to her under the first paragraph of the deceased's Will. She says as there was no money in the account referred to in the second paragraph in the Will, no home can be purchased and that part of the disposition fails. She says the clear meaning of the Will does not provide her with only a life interest in the Durrant Avenue.

9 On behalf of the second and third defendants, it is said it is clear what was intended by the testator was the first defendant have a life interest in any real estate forming part of the deceased's property. As at the date of the making of the Will, the deceased did not own any real estate. Subsequently, a property was purchased out of the funds held in the Commonwealth Bank Cash Management Trust. The deceased clearly intended the first defendant would have only a life interest in any such property and that is the way the Will ought be interpreted.

10 There was no issue between the parties as to the proper legal principles to be applied in a case such as this. The first duty of a court is to ascertain, if possible, whether the testator intended by his or her words, expressly or implicitly, and to give effect as far as possible to that declared intention. In Nicol v Chant [1909] HCA 4; (1909) 7 CLR 569, Griffiths CJ put the position in this way (at 577):

The question to be determined is purely one of construction. In construing a Will the first duty of the court is to examine it, and to discover the language of the testator as applied to the circumstances existing at the date of the Will, and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion. The inverse process, a first taking up a supposed rule assumed to be prima facie applicable, and then enquiring whether the words of the Will exclude the operation of the rule, is, as has often been said, likely to lead to erroneous conclusions.

11 If words or phrases in a Will are clear and unambiguous, effect is to be given to them irrespective of the result: see Public Trustee v Executors Trustees & Agency Co of South Australia Ltd (1984) 36 SASR 32. The words of a testator who has made his or her own Will may be considered 'less strictly than in a case where the Will is drawn by a skilled professional': see Re Taylor; Taylor v Tweedie [1923] 1 Ch 99, 105.

12 Where a court is able to identify from the Will as a whole the purpose and intention of the testator, then if particular expressions are found in the Will which are inconsistent with that intention, though not sufficient to control it, such expressions are to be discarded or modified. In Brennan v Permanent Trustee Co of New South Wales Ltd [1945] HCA 17; (1945) 73 CLR 404, Dixon J put the position in this way (at 414):

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 which 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. ... 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.

13 There is one further canon of construction which should be mentioned. It seems first to have found expression in the case of In re Redfern (1878) 47 LJ Ch at 18 where the Vice Chancellor said:

Now, no doubt, the mere letter of the will ... is not to be adhered to if a contrary signification can be suggested by the whole context of the instrument. The spirit is to prevail, and the letter is not to be allowed to kill. That I take to be plain, clear canon of construction.

14 This passage was quoted with approval by McMillan J in In the Will of Dyer (dec) (1910) 12 WALR 155, 157.

15 While all these rules of construction are clear and logical, it is their application to this case which is difficult. Drawing back and looking at the Will overall, it seems clear the testator intended the first defendant would have a life interest in any property acquired with cash he had in his estate as at the date of his death. Perhaps he was satisfied with living in rental accommodation and never anticipated acquiring property in his own right. That situation changed, but the Will was not changed to meet the altered circumstances.

16 There is no ambiguity about the first sentence of the deceased's Will, nor can there be any doubt as to its effect. All his property at the date of his death was to go to the first defendant. Clearly, and unambiguously, that must include the Durrant Avenue property. It is simply not possible to massage the subsequent two paragraphs to limit in some way the absolute gift in the first paragraph. In the end, I think the operation of the Will is clear and the Durrant Avenue property must pass to the first defendant. As a consequence, the second and third paragraphs of the deceased's Will are inoperative.

17 Subject to hearing from the parties, I will make orders in terms of the minute proposed by the first defendant.