HELEN ROWENA O'BRIEN as Executor of the Will of Jeffrey Charles Hogan -v- WARBURTON [2012] WASC 82 (14 March 2012)

3 The deceased had been born on 25 February 1958 and was aged 52 years at the date of his death. His last will was prepared by him or at his direction apparently without any legal advice or assistance. Major difficulties have arisen in determining the proper construction of the testament and, in particular, whether or not it fails fully to dispose of the testator's estate, so leaving a partial intestacy.

4 The precise value of his net assets does not readily appear. The administration of the estate is not complete and the process of administration may yet involve the sale or other realisation of assets which might give rise to substantial transaction costs, in the way of sale commissions and expenses and, potentially, to significant capital gains tax or other taxation liabilities. This in turn gives rise to the question whether or not the executor is entitled to distribute certain assets to named beneficiaries in specie because, if she may, that may spare the estate some of those costs and expenses.

5 For this and other reasons, it is not possible at this stage to determine the value of the estate available for distribution but the latest estimate contained in the evidence shows that the net value of the estate at the date of death was some $32,775,000 and, as at 12 April 2011, the estimated value of was some $39,257,000. Both figures include an amount of approximately $2.4 million to $2.6 million, being the assets of 'the J C Hogan Superannuation Fund'. There is some doubt as to whether or not this fund, or all of it, will become an asset of the estate. However, it is not necessary to determine that question in these proceedings.

6 In a later affidavit sworn 3 October 2011, the plaintiff filed a revised statement of assets and liabilities of the deceased which showed the then estimated value of the net assets was some $30,512,000 after making allowances for income tax liabilities of $770,560.71. The reduction in the value as shown in this more recent statement follows from a revaluation of certain of the assets and partial distributions and advances made by the executor to date pursuant to directions to make such payments contained in the will. This gives rise to another question posed in the originating summons, namely whether the recipients of some of those payments are obliged to bring them to credit against legacies or other bequests to them.

7 Four generations of the Hogan family feature in the distributions provided for by the will. A schematic diagram of the family tree showing the relationship between the 14 defendants is set out in Appendix A.

8 Provision is made by the deceased for his mother, for two of his brothers and his sister and the latter's husband, the two children of the deceased and one granddaughter, and for two nephews, being children of his sister. At the time of his death Jeffrey Charles Hogan was divorced from his former wife, Rhonda Hogan, who is not a beneficiary and who is not a party to this action. He had, however, been living in an established relationship for a substantial time with Kerry Janeene Warburton, the first defendant, for whom substantial provision is made under the will but the extent of which is in issue. The deceased also provided for Mrs Warburton's three children who were treated as part of the family.

9 AnitaLee Hogan, the second defendant, and Joshua Kane Hogan, the third defendant, are the two children of the deceased by his marriage to his former wife. The second defendant, AnitaLee Hogan, has a daughter, Anai Tayla HoganSmedley, the fourth defendant, born on 2 May 2004 and the granddaughter of the deceased. She is represented in these proceedings by her guardian ad litem, Michele Ann Kershaw, appointed by order of the court dated 25 October 2011.

10 The parents of the deceased are both referred to in the will. They are his mother, Margaret Vina Hogan, the fifth defendant, and his father, William Kenneth Charles Hogan, sometimes known as Kenneth Charles Hogan. The deceased's father died on 22 September 2010, that is before the death of the deceased, with the result that testamentary gifts to him have lapsed. The deceased is also survived by his two brothers and his sister. One brother, Robert Kenneth Hogan, is the sixth defendant. The deceased's sister, Margaret Dianne Martin, is the seventh defendant. In the will there is reference to Margaret Denise Hogan and also Dianne Hogan/Martin and family. It is accepted that these are references to the seventh defendant, who is known within the family as Dianne Martin. No member of the family is named Margaret Denise Martin. Her husband, Leslie John Martin, is the twelfth defendant. The deceased's other brother, Kevin Raymond Hogan, is the eighth defendant.

11 Mrs Warburton has three children by her previous marriage. They are Leon Rodney Warburton, the ninth defendant, Justin Neil Warburton, the tenth defendant, and Dannika Paige Warburton, the eleventh defendant.

12 Margaret Dianne Martin and Leslie John Martin, who have already been introduced as the seventh and twelfth defendants, have two children Christopher David Martin, the thirteenth defendant, and Michael Kenneth Martin, the fourteenth defendant, nephews of the deceased.

13 All of these named beneficiaries who survived the deceased are over the age of 18 years except for the deceased's granddaughter, Anai Taylor HoganSmedley, the fourth defendant, born in 2004, and who, as already mentioned, is represented in these proceedings by her guardian ad litem, and the deceased's nephew, Michael Kenneth Martin, born in December 2004, the fourteenth defendant. No steps have been taken to have a guardian ad litem appointed for Michael Martin. The consequences of this omission are dealt with later.

Service of process and representation of defendants

14 Service of the originating process and supporting affidavits upon all defendants has been proved. The first, second, third and fourth defendants have all appeared by counsel and have been heard on this application. The eighth, ninth, tenth and eleventh defendants have filed notices or undertakings by which each has indicated that he or she submits to any order made by the court. However, no response has been received from the fifth, sixth, seventh, twelfth, thirteenth or fourteenth defendants. All of these except for the fourteenth defendant are of or above the age of 18 years and, having been served, will be bound by any decision of the court.

15 As for the fourteenth defendant, no explanation has been offered as to why no steps have been taken to have a guardian ad litem appointed to represent his interest. In view of RSC O 70 r 5, in the absence of any application to the court for an order appointing a guardian ad litem of the fourteenth defendant by the plaintiff, the court may appoint a guardian ad litem for him or direct that an application be made for the appointment of such a guardian O 70 r 5(3). No attention was given to such a necessity at the hearing and, in the absence of any such application, I consider that I should now direct that the plaintiff apply for the appointment of a suitable guardian ad litem for the fourteenth defendant and, once an appointment has been made, seek further directions as to the determination of these proceedings insofar as they might affect the fourteenth defendant.

16 In the meantime, I consider that the court should proceed to determine the issues posed on the originating summons as between the plaintiff and all other defendants except the fourteenth defendant. This determination will not, having regard to these circumstances, bind the fourteenth defendant. However, upon the fourteenth defendant having a guardian appointed and upon his guardian appearing, there will be an opportunity for the fourteenth defendant to make any submissions which his guardian may be advised to advance. Then all questions in the originating summons insofar as they affect or may affect the fourteenth defendant can be determined after he has had an opportunity to be heard by his guardian. This will result in the proceedings as against the fourteenth defendant being adjourned and left open for determination but, unfortunately, no other course is feasible.

17 There are three separate parcels of real property owned by the deceased or in which he had an interest at the date of his death. These, and the values attributed to them in the statement of the deceased's assets, are as follows:

1. The house and land situate at and known as 17 Colonial Gardens, Mosman Park, in the State of Western Australia, more particularly described as lot 9 on plan 22787 and being all of the land comprised in certificate of title vol 2137 folio 766 ('the Mosman

Park property') registered in the names of the deceased and the first defendant as tenants in common in equal shares.

1. The house and land situate at and known as 1 Barnes Way, Success, in the State of Western Australia, more particularly described as lot 235 on plan 38446 and being the whole of the land comprised in certificate of title vol 2554 folio 410, registered in the sole name of the deceased ('the Success property').

Estimated value: $560,000 Deceased's share: $560,000

1. The land and apartment situate at and known as Unit 5304, 1 Queensbridge Square, Southbank, in the State of Victoria, more particularly described on the plan of subdivision 504017Y and being all of the land comprised in certificate of title vol 10928 folio 645 and registered in the names of the deceased and the first defendant as tenants in common in equal shares ('the Melbourne unit').

Estimated value: $2,250,000 Deceased's share: $1,125,000

18 At the time the will was made and until the death of the deceased, he and the first defendant, Mrs Warburton, lived together at the Mosman Park property and treated that as their home. At the date of the deceased's death two of Mrs Warburton's children, namely Justin Neil Warburton and Dannika Paige Warburton, the tenth and eleventh defendants, also lived at the Mosman Park property as the family home. Since the date of the death of Mr Hogan's death, Mrs Warburton's daughter, Dannika Paige Warburton, the eleventh defendant, has moved from the Mosman Park home to Sydney but more recently has returned and is living with her mother and brother at the Mosman Park property. It is likely that that arrangement will come to an end relatively soon.

19 In recent times the decision has been made to sell the Mosman Park property and, as coowner, Mrs Warburton has joined in this decision. At her request, the plaintiff executor has put the property up for sale and has appointed a selling agent. It is anticipated that if and when the property is sold onehalf of the net proceeds of the sale after all proper selling expenses will be paid to Mrs Warburton in her own right and the remaining half-share of the proceeds will be paid to the plaintiff as executor of the estate.

20 Since the deceased's death, the costs of all outgoings and maintenance for the Mosman Park property have been shared equally by Mrs Warburton and by the estate of the deceased. No rent or other occupation allowance is paid by Mrs Warburton to the estate for her occupation of the Mosman Park property.

21 At the time of the will and up until shortly before the death of the deceased the Success property was occupied by the deceased's mother, the fifth defendant, and his late father who, as already mentioned, predeceased him by a little over two months. The fifth defendant, Margaret Vina Hogan, has, sadly, been in illhealth for some time and is obliged to use a wheelchair. The Success property had been modified by the deceased to make it suitable for wheelchair access. The fifth defendant continued to reside at the Success property for nearly a year after her son's death but the progress of her deteriorating health has recently made it necessary for her to move into a home where she will receive care and assistance and so to vacate the Success property. It seems very unlikely that she will be able to return. The plaintiff, as executor, is making arrangements to prepare the Success property for letting and is engaging a letting agent to seek suitable tenants.

22 A question in these proceedings is whether or not the fifth defendant has been left any interest in the Success property under the will and, if so, of what nature and extent.

23 The third defendant, the deceased's son, Joshua Kane Hogan, has expressed an interest in taking the Success property in part satisfaction of his entitlement under his father's will if it is determined that the executor is empowered to dispose of that asset in specie.

24 The Melbourne unit is being let to tenants under the management of a real estate agent. Onehalf of the net income is being paid regularly to the estate of the deceased and the other half is being paid to Mrs Warburton as equal cotenant in common. Unless there is recourse to court proceedings to force a sale of the Melbourne unit, it cannot be sold without the consent of Mrs Warburton. The latest known position is that she is opposed to a sale of that unit and desires to have the interest of the estate in onehalf share of the property transferred to her in part satisfaction of her entitlements under the will. As foreshadowed, a question arises as to whether or not such a disposition by the executor is permissible.

25 As will be seen, the will makes reference to the deceased's assets including 100% of his 'Positron Group assets' to which he then attributed an approximate value of $25 million. All parties accept that this reference in the will refers to certain businesses which Mr Hogan operated through various entities at the time the will was made. However, since the date of the will, and it seems later in 2007, Mr Hogan sold all his interests in those businesses and in return received a cash consideration and a large shareholding in the company RCR Tomlinson Ltd in settlement of the purchase price. The estimated value of the shareholding in RCR Tomlinson Ltd held by the estate shortly before this hearing was approximately $15.795 million. Cash on hand in five cash management accounts shortly before the trial totalled approximately $3.08 million. After that sale the deceased had no interest in any of the businesses or entities which had previously operated under the umbrella name of the 'Positron Group'.

26 This gives rise to another question as to the effect of cl 2.5 of the will which provides that all assets identified in an earlier part of the will, including the 'Positron Group assets' are to be realised/sold at market value and the proceeds distributed in certain shares between the first defendant, Mrs Warburton, the second defendant, Mrs AnitaLee Hogan, the third defendant, Joshua Kane Hogan, and the fourth defendant, the deceased's grandchild, Anai Tayla HoganSmedley. The question so arising is whether the other assets obtained by the deceased in exchange for the sale of the 'Positron Group assets' are to be distributed in the same way or whether that gift has been adeemed.

27 As already noted, the list of assets of the deceased includes the capital of the J C Hogan superannuation fund, the latest estimated value of which is $2,600,000. Those funds are presently held by the plaintiff in her capacity as trustee of the superannuation fund, rather than as executor of the estate of the deceased. Mr Hogan left no binding nomination as to the allocation of the proceeds of the superannuation fund upon his death but it is contended by the trustee, without opposition from any interest appearing in these proceedings, that she has a discretion under the superannuation trust deed relating to the payment of those proceeds. The superannuation trust deed is not in evidence and no question directly arises in these proceedings in relation to the powers of the trustee or the entitlements of any potential beneficiary or class of beneficiaries.

28 It seems to have been tacitly assumed, however, that the trustee has a power of appointment of the whole of the proceeds of the superannuation fund to the estate of the deceased which, if so exercised, would increase the proceeds of the estate available for distribution accordingly. Alternatively, it may be assumed that the trustee of the superannuation fund may appoint some or all of the proceeds of the superannuation fund to beneficiaries other than the estate, in which case those proceeds would not form any part of the assets of the estate. In any event, the plaintiff has deposed that a sum of $327,000 or thereabouts will need to be paid by the superannuation fund for estimated GST and taxation liability of the fund before distribution. It is possible that that liability may be greater if the distribution of proceeds was made other than to the estate.

29 Pursuant to powers contained in the will, the plaintiff, as executor, has already made interim distributions of estate assets in cash as follows:

(a) to the first defendant, Mrs Warburton, $ 715,000

(b) to the second defendant, AnitaLee Hogan, $ 615,000

(c) to the third defendant, Joshua Kane Hogan, $ 615,000

for the fourth defendant, Anai Tayla HoganSmedley, $ 102,500

30 Questions are posed by the originating summons over whether or not each of those beneficiaries is entitled to the whole of those distributions in addition to bequests or devises made to him or her by the will or whether the 'weekly cash allowances' components of these payments should be brought to account and offset against the entitlements due to each beneficiary under the will and so treated as partial advance payments towards satisfaction of their testamentary gifts.

31 In several places in the will the deceased makes reference to his share portfolio but, for reasons which will appear, it was submitted that these references give rise to uncertainty. One reason for this is that at the time of the will and up until his death the deceased had a major share portfolio which he managed through his sharebrokers, Patersons Securities Ltd. However, in addition, he had other shareholdings. Uncertainty exists as to whether or not these other shares are included in references in the will to 'my share portfolio'. These other shareholdings can broadly be allocated to three categories comprising:

(a) The large shareholding in RCR Tomlinson Ltd which, as already noted, was received by the deceased in partial consideration of the sale of his assets in the Positron businesses. This shareholding did not exist at the time the will was made.

(b) Various shareholdings in companies not listed on the Australian Stock Exchange or on any other exchange. These shareholdings are listed in the latest available statement of assets and liabilities as comprising securities in six separate companies but comprising seven parcels in total, with an estimated value of in excess of $180,000. They are shareholdings in:

(c) There is also a series of convertible notes in:

32 Only the notes in Peru Gold Ltd are believed to have value and the latest estimated value for these is $280,754. In an affidavit of the plaintiff executor sworn 3 October 2011, she deposes that Peru Gold Pty Ltd has advised its shareholders that the company will be endeavouring to list on the ASX during the next six to 12 months. If this occurs, the shares in that company held by the estate will be able to be freely sold on the open market.

33 Since the original statement of assets and liabilities was prepared the executor has discovered further holdings of shares and options in a company, Latin Resources Ltd, the additional options of which are estimated to be worth $33,600.

34 In both the second and third of these categories of shares there are individual holdings which are either worthless or of slight value (the securities in Sun Energy Pty Ltd which is in liquidation) and other holdings which the executor deposes are difficult to realise. According to the executor, these shares cannot be sold on the open market and the only practical means of dealing with them is to transfer them to beneficiaries in specie. The question, therefore, arises as to whether or not such a disposition of these assets by the executor is permissible and, if so, how such a disposition could be reconciled when the will assumes that the whole of the shareholdings will be sold and the proceeds distributed as directed.

35 Within the share portfolio controlled by Patersons Securities Ltd is a parcel of shares in Cobar Consolidated Resources Ltd (Cobar shares). This is a large shareholding representing some 3.89% of the whole of the issued capital of that company. The current value of the parcel is estimated to be $4.925 million (the value at death $2.626 million). Since Mr Hogan's death the executor has sold 710,000 Cobar shares out of a total holding of 5,710,000 shares, leaving 5 million Cobar shares on hand. The executor is concerned that if this parcel of shares was put on the market for sale that would be likely to affect detrimentally any available selling price. Accordingly, the question arises on this originating summons as to whether, in the circumstances and consistently with the provisions of the will, she may further defer the sale of the Cobar shares or, alternatively, distribute some or all of them in specie to beneficiaries otherwise entitled to the proceeds of their sale.

36 According to the latest affidavit of the executor plaintiff, the following additional assets of the estate have recently been discovered:

(a) Directors' fees due to the deceased by a company Merredin Power Pty Ltd in the amount of $43,808. A demand for payment of those fees has been made on behalf of the estate but payment had not been received on the date of that affidavit.

(b) The deceased had an interest in a racehorse called 'More Than Ready' which has since been realised for the sum of $17,500,

which has been paid to the plaintiff executor on behalf of the estate.

(c) Two more paintings in the deceased's art collection.

The structure of the will, its dispositions and inconsistencies

37 Because of its unconventional format, it is necessary to set out in full the terms of the last will of Jeffrey Charles Hogan (dec). It appears, verbatim, in Annexure B to these reasons. In saying that the format is unconventional does not in any way detract from its validity or effectiveness nor does it imply that anything other than the fundamental task of ascertaining the intention of the testator should be followed when construing the will and answering the questions posed by the executor.

38 In this particular case, it is essential that this testament should be read as a whole and that each of its particular provisions be read in that entire context. The more so is this important when answering questions posed in the summons which are affected by absences or omissions of provisions which might otherwise have been expected to have been included in a professionally drawn will such as a clause or clauses dealing specifically with the disposition of any residue of the estate or dealing with the situation which may arise if certain assets have been sold or disposed of prior to death.

39 The structure of the will demonstrates a personal idea which is not entirely consistent. The first three pages culminating in the attestation clause at first appear to describe and contain the entire scheme of distribution but it becomes evident that this is not so.

40 Dealing with those first three pages, they commence with a clause nominating the document as the will of the deceased, taking place and precedence over a previous will and identifying by name, by cl 1.1, eleven 'immediate members of my family' who are to benefit directly from his estate. These are eleven of the fourteen defendants but the twelfth, thirteenth and fourteenth defendants are not expressly named among this group although they are identified, as members of the Martin family, who are collectively to receive $500,000 in Attachment 3. No other beneficiaries are named directly or by implication in any part of the will or its attachments. Furthermore, in cl 1.1, after naming the eleven immediate members of the family who are to benefit directly from the testator's estate, the clause goes on to state that specific amounts are detailed in Attachments 1 to 4 generally which, as just noted, include the twelfth, thirteenth and fourteenth defendants.

41 Next, by cl 1.3, the testator provides that his 50% interest in the Mosman Park property should 'be passed on in cash to my children, AnitaLee Hogan and Joshua Kane Hogan, within 12 months of my death others are generally gifted as detailed in the Attachments'. This provision appears to devise the testator's 50% interest in Mosman Park only to the second and third defendants, his children, by implication equally between them.

42 Clause 1.3 needs to be compared with cl 2.4 and cl 2.5 which, on the face of the will, provide that certain named assets (all of the deceased's assets at the date of the will with the exception of cash at bank and items of personal property otherwise disposed of by cl 2.6.4) are to be sold, including his share in Mosman Park, and divided between the first, second, third and fourth defendants in shares of 35%, 30%, 30% and 5% respectively. Those clauses have the effect of providing that the first defendant and the fourth defendant, together with the deceased's children, the second and third defendants, share in the distribution of his 50% interest in Mosman Park. That result appears to be inconsistent with the approximate values of the moneys estimated to be payable to each of the beneficiaries set out in Attachment 3, which states that the approximate value of the moneys payable to the first, second and third defendants will be $10.4 million each and that an amount of $1.8 million will be payable to the fourth defendant, a result which is more achievable by distributing the deceased's 50% interest in Mosman Park between the second and third defendants alone.

43 This creates the question of whether there is, and if so what is the effect of, an inconsistency between cl 1.3 and Attachment C on the one hand and cl 2.4, cl 2.5 on the other.

44 The next peculiarity, already noted, is that the twelfth, thirteenth and fourteenth defendants are not named in the first three pages of the will, nor is any express provision made for them in that part of the testament except for the reference in cl 1.3 that 'others are generally gifted as detailed in the Attachments'. Yet as already noted, Attachment 3 provides for $500,000 to be paid to those three beneficiaries.

45 A similar anomaly is that while the Warburton children, the ninth, tenth and eleventh defendants, are mentioned in cl 1.1 as members of the immediate family meant to benefit directly from the estate, there is no other provision in the first three pages of the will making any provision for them or directing that they share in the distribution of any part of the estate. Similarly, however, the ninth, tenth and eleventh defendants are mentioned specifically in Attachment 3 as receiving, respectively, $300,000, $300,000 and $1 million, which is the only provision conferring upon them any benefit.

46 Similarly, although provision is contained in Attachment 3 for the deceased's brothers, Robert Kenneth Hogan and Kevin Raymond Hogan, the sixth and eighth defendants, and his mother and father (the latter who predeceased him) his mother being the fifth defendant, and while each of those persons is named as a member of the immediate family referred to in cl 1.1, there is no disposition in the first three pages of the will to any of them save for the provision in cl 2.6.2 that Margaret Vina Hogan remain in 1 Barnes Way, Success, a provision which, all the parties accept, gives to the fifth defendant a right of residence in that property.

47 This raises the question of whether or not Attachment 3, at least when providing for specific pecuniary amounts to be paid to the twelfth, thirteenth and fourteenth defendants and to the ninth, tenth and eleventh defendants, and also the sixth, eighth and fifth defendants, provides for effective dispositions in favour of each of those persons as beneficiaries.

48 The next factor which gives rise to questions is the absence of any specific reference to certain valuable assets of the deceased acquired after the date of the will. The following list may not be a complete reference to all such after acquired property but it does identify the more prominent or valuable assets and, by doing so, that is sufficient to raise and address the question which emerges. These are:

(a) the apartment at Southbank, Melbourne, with a value at the date of death of approximately $2,250,000 in which the deceased's 50% interest was $1,125,000;

(b) the deceased's total shareholding in RCR Tomlinson Ltd, the current value of which is put at $15,795,000.

(i) newly discovered Aboriginal ochre 'Crocodile and Fish', $1,300; and

49 The will does not contain, in conventional form, any clause dealing expressly with the disposition of the residue of the estate remaining after specific devises, bequests and legacies have been made and paid. This gives rise to the question of whether or not the will contains any effective disposition of the deceased's interest in the Southbank apartment in Melbourne or whether, being undisposed of, the distribution of that asset would take effect as a partial intestacy in favour of the persons entitled under s 14 of the Administration Act, in this case to be divided between the first, second and third defendants.

50 A similar question may arise in relation to the disposition of the shares in RCR Tomlinson Ltd although, in that regard, an anterior question arises as to whether or not the provisions of cl 2.4 and cl 2.5, read together with the arithmetic approximations contained in Attachment 3, have the effect that the shareholding in RCR Tomlinson Ltd, together with all other shareholdings whether acquired before or after the date of the will, are included in the testator's disposition of 'my share portfolio' referred to in cl 2.4 and cl 2.5.

51 On the question of whether or not the will as a whole, construed in its context, contains an effective disposition of the residuary estate regard must be paid to cl 2.4 and cl 2.5 to determine whether they evince an intention by the testator to dispose of the whole of his estate, not otherwise specifically disposed of in the will. If so, they would constitute an effective residuary bequest which would include his share in the Southbank apartment at Melbourne.

52 Attachment 1 contains a direction that cash flows of the testator's estate are to be controlled in such a way that the immediate living standards of the first, second, third, fourth and fifth defendants (and the deceased's father who predeceased him) should benefit so that their living standards are not changed until after the estate had been settled. This is echoed by the provisions of Attachment 2, which provides for weekly cash allowances to be made from the proceeds of the sale of the share portfolio to each of those five sets of defendants.

53 The question of whether Attachment 3 includes effective dispositions of parts of the testator's estate has already been mentioned. Similar questions arise over Attachments 1 and 2. It will be necessary to examine each of these in fuller detail later. For present purposes, it is sufficient to notice that Attachment 2 provides for a weekly allowance to be paid to six beneficiaries, five groups, one including the deceased's mother and father, in an aggregate amount of $10,000 or $520,000 per annum, to be funded from the proceeds of 'an immediate share sale ... of my portfolio'.

54 All the parties are agreed that the provision for such weekly allowances is a valid and effective provision. The only question arising in relation to it is whether such allowances should be brought to account when calculating other amounts payable under the will to those named beneficiaries. What emerges, however, is that Attachment 2, in providing for the weekly allowances, does contain dispositive provisions by the testator in addition to those mentioned in the first three pages of the testament, although such payments can be seen as included within the reference of 'others are generally gifted as detailed in the Attachments' in cl 1.3.

55 In the same way, Attachment 4 contains specific provisions for the disposition of certain items in the deceased's art collection and must be regarded as containing a series of specific bequests in that respect. Again, all parties accept that Attachment 4 includes effective dispositions which form part of this will.

56 This demonstrates that each of the four attachments should be regarded as part of the will and as containing dispositive provisions. If this were not so, and the dispositions of the will were confined to the first three pages, no specific amounts from the estate would be payable to any of the Martin family, the seventh, twelfth, thirteenth and fourteenth defendants, or to the deceased's mother, the fifth defendant, or to the Warburton children, the ninth, tenth and eleventh, defendants. It is inconceivable that having mentioned in Attachment 3 that the tenth defendant, Justin Warburton, should be paid $1 million, the deceased did not intend any such gift to take effect because the tenth defendant was not otherwise specifically provided for by the first three pages of the will. The same observation can be made in relation to each of the dispositions in favour of the other defendants just mentioned.

57 Counsel for the plaintiff submits, and I accept, that the approach towards the construction of a will, particularly a will which may contain inconsistent or possibly repugnant provisions, should be that described by Vickery J in Thomson v Thomson [2008] VSC 375. In that case, his Honour observed as follows:

[11] No rule of construction is better settled than that the intention of the testatrix, as expressed in the will, shall prevail. The intention of the maker of the will has been referred to as the 'pole star' in a construction of wills. Thus where the intent of the testator or testatrix is obvious it should be carried out if possible.

[12] Where, however, a will contains provisions which are apparently inconsistent or repugnant, every effort must be made to construe the instrument so as to harmonise the conflicting provisions. Where such a case arises, the inconsistent clauses should be construed if possible so as to give effect to each clause. Inconsistency does not inevitably result in irreconcilability if in fact the clauses operate for different purposes. The clauses in these circumstances can be seen as complementary.

[13] Intention is sometimes made doubtful through repugnancy between several parts of the will. If two plainly repugnant intentions are then discovered, one must give way to the other.

[14] The sole question in a case of totally repugnant intentions is, of course, which clause in the will shall control the disposition of the estate. The ancient maxim that the first deed and the last will prevailed was applied to inconsistent clauses within instruments so that the former of such clauses prevailed in deeds and the latter in wills.

[15] This principle, as applied to wills, emerged as the socalled 'rule of despair' to the effect that where two clauses in a will are irreconcilable, the last clause as it is written in the will shall prevail. Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est. Most courts acknowledge the rationale of the rule to be that the last clause embodies the last expression of the testator's intention; or that, as between two repugnant clauses, the latter of the two should prevail on the basis that what the testator writes last in his 'last will'; or on the footing that where the clauses are entirely irreconcilable, so that they cannot possibly stand together, the clause which is last in position shall prevail, the subsequent words being considered to denote a subsequent intention.

[16] This highly technical rule, which smacks of the days when legal fictions once flourished, has been severely criticised, and is never applied, it seems except as a last resort. (footnotes omitted)

58 Obvious difficulties arise when parts of a will are ambiguous or, worse still, inconsistent. Such problems are often experienced in homemade wills such as this but there is clear judicial guidance to the approach which should be taken when dealing with any such situation. In Perpetual Trustee Co Ltd v Wright and Others Re Will of the late James Paul Gee Cox (Junior) Deceased (1987) 9 NSWLR 18, 33 Bryson J cited with approval a passage from the judgment of Powell J in Coorey v Coorey (Unreported, NSWSC, 22 February 1986) that:

It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.

59 In the later case of Hatzantonis and Anor v Lawrence; Cox v Lawrence [2003] NSWSC 914 [10] Bryson J cited the following passage from the advice of the Judicial Committee in Towns v Wentworth [1858] EngR 371; [1858] 11 Moo PC 526, 542 583; [1858] EngR 371; 14 ER 794, 800:

The rules of construction ... do not seem open to any doubt.

In order to determine the meaning of a will, the court must read the language of the testator in the sense in which it appears he himself attached to the expressions which he has used ...

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 such intention, though not sufficient to control it, or which indicate an intention to which the law will not permit to take effect, such expressions must be discarded or modified; and, on the other hand, if the Will shows that the testator must necessarily have intended an interest to 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.

60 This was expressly adopted and applied by Dixon J in Brennan v Permanent Trustee Co of NSW Ltd [1945] HCA 17; (1945) 73 CLR 404.

61 Other applicable authorities have recently been helpfully collected in the judgment of Master Sanderson in Faithfull v Pine [2012] WASC 75 where the learned master referred to observations in Re Taylor; Taylor v Tweedie [1923] 1 Ch 99, 105 to the effect that the words of a testator who has made his or her own Will may be considered 'less strictly than in the case where the Will is drawn by a skilled professional'.

62 In Re Redfer; Redfern v Bryning (1877) 6 Ch D 133 Bacon VC observed, at 136:

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.

63 There is a presumption in the construction of wills which is rebuttable and which may be weak in the face of the particular terms of testament to the effect that the court should, in doubtful cases, incline against concluding that the testator intended a partially intestate distribution of his assets. Two extracts from leading texts will suffice to describe this presumption, its varying strength and application and effect. In Halsbury's Laws of England (4th ed) vol 50 par 494, omitting footnotes, the learned authors write:

A testator may well intend to die partially intestate for, when he makes a will, he is testate only so far as he has expressed himself in his will. Accordingly, there is no reason for the court in all cases to lean too heavily against a construction which involves a partial intestacy. Where, however, the construction of the will is doubtful, a court acts on the presumption that the testator did not intend to die either wholly or even partially intestate, provided that on a fair and reasonable construction there is no ground for a contrary conclusion. Where the will shows an intention of the testator to dispose of the whole of his property, but, as regards the interests created, two constructions are possible, according to one of which the will effects a complete disposition of the whole, but according to the other the will leaves a gap, the court inclines to the former construction.

64 The second extract is to be found in DM Haines QC, 'Construction of Wills in Australia' (2007) Butterworths, at 3.3, 3.5, 3.6 and 3.7.

3.3 The Golden Rule of construction of wills stipulates that a court should adopt an interpretation which will not lead to an intestacy or partial intestacy and which will lean towards a construction which preserves rather than destroys the gifts under a will. If a gift fails for any reason, a resulting trust arises in favour of the testator and it falls as on an intestacy. The presumption that a testator having executed a will does not wish to die intestate or to leave a partial intestacy may be used as an aid to construction if there is an ambiguity in a will. The expression 'Golden Rule' in respect of this principle was coined by Lord Esher MR in Re Harrision; Turner v Hellard (1855) 30 Ch D 390 at 393 4. The rationale behind the rule is simple. Where a person executes a will in solemn form, it must be assumed that he or she did not intend to die intestate. Courts have taken a firm view in this regard. A court 'never inclines towards intestacy; it is a dernier ressort in the construction of wills': Lightfoot v Maybery [1914] AC 781, at 802. This proposition has the status of a presumption but may be rebutted by the context. It is rebuttable because 'the guiding principle [is] always to construe the will in accordance with the wishes of the testator' Thomas v Strickland [2001] WASC 156.

...

3.5 The presumption against an intestacy has been the source of judicial criticism. It has been said that it involves speculation as to the intention of a testator. Some persons die intestate deliberately and it is very dangerous to place too much reliance on the supposed wish of a testator not to die intestate.

3.6 If, however, there are two possible constructions, one of which would result in an intestacy and the other which would not, a court should adopt the latter. A presumption is said to arise in favour of a testacy rather than an intestacy because a testator went through the act of making a will.

3.7 Moreover, if it is clear from the whole of the will that the testator had attempted to dispose of his or her entire property to persons who would be expected to inherit the bounty of the estate, that fact is sufficient to invoke the presumption. (footnotes omitted)

65 Construing the deceased's entire will in context, as I must, there are various signs which evidence an intention of the testator to dispose of his entire estate. This is apparent from cl 1.1 in which the testator refers to eleven named beneficiaries as benefiting directly from his estate 'which includes personal effects and company assets'. It is also apparent from cl 2.4 which, although not a compendious list of assets held at the date of death, comprised all the major assets at the date of the will. Even more apparent is it that the will deals with the whole of the estate's assets because of the provisions in Attachment 3 which say, 'I estimate at the time of writing this document, being my last will and testament, my worth is $38 million, less $3.5 million in personal loans ... '. Consideration of that provision and the following arithmetical estimates of the values to be divided to the principal beneficiaries shows that the testator planned for the will to effect a distribution of assets worth in total approximately $36 million, which was the figure of $36 million (+/-) which he then recorded as being his approximate net worth. Furthermore, despite some imperfections, cl 2.4 and cl 2.5 taken in context demonstrate an intention by the deceased to dispose of the whole of his assets (not otherwise specifically disposed of by the will) in the proportions thereunder specified to the first, second, third and fourth defendants. I consider, therefore, that cl 2.4 and cl 2.5 should be taken to have effect as a general residuary bequest and so to include all other assets not specifically or implicitly identified in the remaining portions of the will and, as such, to include the apartment at Southbank in Melbourne.

66 However, I do not regard the RCR Tomlinson Ltd shares as part of the assets not otherwise disposed of by the will because I consider that the term 'my share portfolio' in cl 2.4 refers to all shares on hand by the deceased at the date of death and hence to provide for the manner of distribution of that particular parcel. However, this is not a matter of any ultimate great significance because whether or not the RCR Tomlinson Ltd shares form part of the assets specifically mentioned by cl 2.4 or form part of an otherwise unidentified residuary estate, the effect will be the same, because they form part of all the assets devolving under cl 2.4 and cl 2.5 of the will to the same beneficiaries, the first, second, third and fourth defendants, in the proportions there mentioned.

Disposition of the deceased's interests in Mosman Park

67 A major issue between the parties is how the will provides for the disposition of the deceased's interest in his one undivided halfinterest in the house and land at Mosman Park. As already noted, cl 1.3 purports to advance a wish by the deceased that the testator's 50% share in that asset be passed on in cash to his two children, the second and third defendants, within 12 months of his death. By contrast, cl 2.4 and cl 2.5 include the deceased's 50% interest in Mosman Park as one of a group of assets later to be realised and the proceeds divided between the first, second, third and fourth defendants in the shares of 35%, 30%, 30% and 5% respectively.

68 The first defendant submits that the interest should devolve pursuant to cl 2.4 and cl 2.5 of the will, which would result in her obtaining a 35% interest in the net proceeds (in addition to the 50% interest in Mosman Park which she already holds in her own right), whereas the second and third defendants submit that the whole of the 50% interest of the deceased in Mosman Park should devolve equally to them under cl 1.3 of the will, so that they would obtain 100% of that half share equally between them instead of the 60% share which they would take if its disposition was controlled by cl 2.4 and cl 2.5. It is to be noted that on the approach taken by the second and third defendants that the fourth defendant would not in any way share in the distribution of the proceeds of the deceased's interest in Mosman Park.

69 Submissions have been made for the first defendant that cl 1.3 is precatory only and, further, that it contemplates a sale of the deceased's interest in Mosman Park within 12 months of his death, which is potentially inconsistent with the right of residence given to the first defendant in that interest and which could not, in any event, be achieved without the consent of the first defendant to sell the whole of the property (unless of course she were to be the purchaser of the deceased's half interest). There are also the concluding words of cl 1.3 which contemplate other gifts, counsel for the first defendant submitting that other gifts of the interest in Mosman Park, and to be made to others as detailed in the attachments.

70 The question which therefore arises is whether there is an actual inconsistency in relation to the disposition of the deceased's interest in Mosman Park as between cl 1.3 on the one hand and cl 2.4 and cl 2.5 on the other. To conclude that there is such an inconsistency would be to accept that the testator had, wittingly or unwittingly, intended to make two dispositions providing for different distributions of his share in the one asset. If that is so, it would be the only occasion in the will where such a double distribution had been attempted.

71 The view propounded by the first defendant would treat cl 1.3 as preliminary only and containing a declaration of intent about the timing of the desired distribution without it being obligatory and also as accommodating subsequent specific provisions conferring benefits on others in respect of that and other assets. Taking that approach would recognise cl 2.4 and cl 2.5 as being the principal dispositive clauses of those parts of the estate not otherwise specifically disposed of. The reference in cl 2.4 to the deceased's interest in the property at Mosman Park may be an indication that he had not intended otherwise to dispose of that interest. However, this other approach is less consistent with the arithmetical approximations contained in Attachment 3 which, so far as the disposable capital of the estate is concerned, assume an equality of benefit as between the first, second and third defendants.

72 If the second and third defendants were intended to receive the whole of the deceased's interest in Mosman Park then the smaller share in the residuary estate which each receives under cl 2.5 would mean that there would still be approximate equality in distribution of the residuary estate of the deceased as between the first, second and third defendants because of the first defendant's greater share of 35% under cl 2.5. This will still be the approximate (but not the precise) position after taking into account the distribution of the cash at bank ($870,000 at the date of death) equally between the second and fourth defendants under cl 2.6.4.

73 Significantly, the interests of the fourth defendant in the residuary estate (excluding Mosman Park) is stated to be 5% of the residue plus half the cash at bank. This means that for her to obtain the $1.8 million contemplated in Attachment 3 the residue, after all other dispositions, would need to be a minimum of $27.3 million (cash of $435,000 + 5% Residue = $1.8 million ∴ Residue must be $27.3 million). On the figures available at the dates of the will and at death, that would still broadly be within the deceased's approximations. If the residue were to be $33 million (that is by including the estate interest in Mosman Park) the fourth defendant's share would be approximately $2.085 million.

74 I consider that the better view is that cl 1.3 is intended to make full provision for the disposition of the deceased's interest in Mosman Park. The deceased's interest in that asset covered by cl 2.4 and c 2.5 is inconsistent and repugnant to the overall plan of distribution apparent from the entire will. Clause 2.4 should be read and construed so that no disposition of the estate interest in Mosman Park is effected by it.

75 I have already noted and rejected the submissions advanced on behalf of the first defendant that Attachment 3 has no dispositive effect because, so it was contended, it is precatory, inconsistent with cl 1.1 and cl 2.5. I have also set out that one of the prominent reasons for rejecting that submission is the existence of the provisions in Attachment 3 of monetary dispositions or estimates of benefits totalling $3 million to be shared in various proportions between the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth defendants. Unless effect is given to those provisions as having dispositive effect, none of those defendants would receive anything under the will, notwithstanding that the fifth, sixth, seventh, eighth, ninth, tenth and eleventh defendants are specifically named in cl 1.1 as being members of the immediate family of the deceased who are to benefit directly from his estate. It is anomalous that the twelfth, thirteenth and fourteenth defendants are not expressly included among the list of immediate family referred to in cl 1.1, but they are gathered in by Attachment 3 as being members of the Dianne Hogan/Martin & family group. Accepting, therefore, that Attachment 3 is intended to contain part of the dispositions intended by the testator in this will, the question turns as to what it means and how it takes effect.

76 The view which I prefer is that the latter part of Attachment 3 dealing with the $3 million and mentioning the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth defendants operates to grant to each of them specific legacies in the amounts specified. That concluson has the advantage of simplicity and certainty and is consistent with an intention to benefit named members of the family notwithstanding that the members of the participating group extend beyond the individuals expressly mentioned in par 1.1 In that regard, I consider that Attachment 3 should be treated as supplementary to cl 1.1 when it comes to identifying particular beneficiaries.

77 If that conclusion is adopted, what is the effect of the earlier part of Attachment 3? That provides that it was the testator's wish that the moneys, representing the whole of his estate, should be divided as there follows and then, with reference to the first, second, third and fourth defendants, appear the figures (approximate only) showing the respective entitlements as $10.4 million plus the first defendant's 50% share of the Mosman Park property, $10.4 million for each of the second and third defendants, and $1.8 million for the fourth defendant.

78 Conspicuously, those four defendants are the same four who are to be the recipients of all the assets referred to in cl 2.4 to be shared between them in the proportions set out in cl 2.5. However, the proportions in cl 2.5 do not follow the estimated proportions and the monetary amounts in the first part of Attachment 3. The figures in the attachment contemplate equality instead between the first, second and third defendants with the fourth defendant taking approximately 5% ($1.8 million/$33 million x 100) of the amounts distributable among those four.

79 The lack of correspondence between the proportions for sharing of benefits between those first four defendants as contained in cl 2.5 when contrasted with the proportions to be inferred from the monetary amounts in the first part of Attachment 3 is not great but it does exist. It is that lack of correspondence which causes counsel for the first defendant to maintain the submission that Attachment 3 has no dispositive effect and it is that same lack of correspondence which causes counsel for the plaintiff, second, third and fourth defendants (but to varying extents and in slightly different ways), to contend that Attachment 3 has a dispositive effect operating as a disposition of the whole of the estate or, alternatively, of the residuary estate after specific bequests contained elsewhere in cl 2.6.4 take effect.

80 Additional difficulties and complexities in considering the submissions as to the effect of Attachment 3 arise because of the different approaches taken by the parties to the fate of the deceased's one undivided half share interest in the Mosman Park property. The plaintiff, the second, third and fourth defendants submit that on termination of the right of occupation for the first defendant, the deceased's one undivided half share interest in the Mosman Park property is to be realised and the proceeds divided equally between his children, the second and third defendants, thus giving effect to cl 1.3 of the will and removing the interest in the Mosman Park property from any participation in distribution under cl 2.4 or cl 2.5 of the testament. The first defendant, as already noted, has submitted that the deceased's interest in the Mosman Park property should be distributed in accordance with cl 2.5 of the will in which she, the two children and the granddaughter share in shares of 35%, 30%, 30% and 5% respectively. The resolution of that issue affects the shares which the first, second, third and fourth defendants each take under the will and, depending upon the eventual net value of the estate available for distribution, has the potential to displace the approximate equality of benefits as between the first, second and third defendants assumed in Attachment 3.

81 It is also the case that Attachment 3 proceeds on the premise, admittedly an approximation by the deceased, that the net value of his estate available for distribution was slightly more or less than $36 million, so that on the figures contained in Attachment 3 the first four defendants would share in the distribution of $33 million and the remaining ten defendants would share in the balance of $3 million. That gives rise to the question of what is the effect if the net value of the estate available for distribution were to be significantly more or less than the $36 million postulated in Attachment 3. If it were more, how would the surplus be divided, if it were less who would bear the shortfall?

82 These considerations led the second, third and fourth defendants, and supported to some extent by the plaintiff, to submit that Attachment 3 should be regarded as itself containing comprehensive details for the distribution of the whole estate not otherwise disposed of - that is, all the deceased's property except for that referred to in cl 2.6.4 of the will. The submission, so advanced, is that Attachment 3 evidences a plan of disposition in which the first four defendants would receive between them (in designated shares) eleventwelfths of the net value of the residuary estate (that is, thirtythree thirtysixth shares) and that the remaining ten defendants would receive among themselves onetwelfth share (three thirtysixth shares) of the net distributable value of the residuary estate to be shared between them in the proportions that the figures in the second part of Attachment 3 bear to $3 million.

83 According to these defendants, this suggested plan of distribution will readily accommodate a situation in which the net value of the distributable residue is more or less than the assumed $36 million nominated by the testator as his approximate net worth. However, some of the defendants, as an alternative or substitute submission, advanced the proposition that the first $33 million of the net distributable residue should be shared among the persons named in Attachment 3 in proportion to the figures appearing in that schedule but that any surplus over $36 million should be distributed in accordance with cl 2.5 of the will.

84 One of the factors which bears on the approach to the consideration of these submissions as to the effect of Attachment 3 is the approximate character of the estimate of the overall value of the net distributable estate. Plainly enough, the amount of the residue of the estate available for distribution will depend on the market values of the various assets on the dates of realisation of them. They may or may not clear $36 million but market value fluctuations are not the only uncertainties which apply to estimating the net distributable value of the estate.

85 Most obviously, cl 2.4 includes the deceased's interest in Mosman Park as one of the assets mentioned, but for reasons already given this must be regarded as inconsistent with the will as a whole and rejected in favour of the view that cl 1.3 effectively disposes of the deceased's interest in Mosman Park to the second and third defendants.

86 The other assets listed in cl 2.4 of the will and in the financial statements contained in the plaintiff's affidavits include, without confirming that it is an estate asset, the value of the deceased's superannuation fund which, as at 28 September 2011, was put at $2.66 million and, at the date of death, $2.6 million. However, the evidence is that the superannuation trustee has not yet made any decision or allocation as to the entitlement to the benefit of that fund and it may or may not become an asset of the estate. Similarly, the financial statements show as an asset of the estate an AMP Super Savings account of $813,000 which, so I was informed by counsel without objection, represents the entire proceeds of the deceased's life insurance mentioned in cl 2.4 of the will, to which he had attributed a value of $2 million.

87 It must follow from these considerations, if it is not otherwise sufficiently obvious, that insofar as Attachment 3 of the will identifies money amounts expected by the deceased to be received by the first, second, third and fourth defendants for whom, earlier in the will, specific provision had been made by cl 2.5 for the receipt of specified shares in the proceeds of the sale of designated assets, those figures in Attachment 3 can only be broad estimates. The final value of the net distributable estate will depend upon a number of variables already identified. I regard this factor as illustrating that the figures, for the first, second, third and fourth defendants, in Attachment 3 and the aggregate value of the net distributable estate are very prone to change. Because of that, they do not appear to provide a firm foundation for concluding that eleventhtwelfths (thirty-three thirty-sixths) of the net distributable estate was meant to be shared between the first, second, third and fourth defendants.

88 On the other hand, I must consider the effect of the second part of Attachment 3, providing for specified sums totalling $3 million as the approximate moneys to be divided between the fifth to fourteenth defendants inclusive. It was advanced by counsel for each of the defendants, in various ways, that there would appear to be little justification for treating the amounts contained in the first part of Attachment 3, that is for distribution among the first four defendants, as being different in character, status or effect from the amounts mentioned in the second part to be shared between the fifth to fourteenth defendants inclusive. There is force in that submission and one would not expect to find a different meaning or to give different interpretations to some parts of the same clause or Attachment where to do so would, or might, produce inconsistent consequences.

89 However, this testament is not a model of consistency. I have already noted the apparent inconsistency between cl 1.1 and Attachment 3 when it comes to the identification of beneficiaries. There is also the inconsistency between cl 1.3 on one hand and cl 2.4 and cl 2.5 on the other in relation to the disposition of the estate interest in the Mosman Park property. Undoubtedly, there is an inconsistency, although to a relatively small degree, in the numerical consequences which would result from distributing the assets mentioned in cl 2.4 in the manner provided in cl 2.5 when compared with the estimated monetary results of distribution assumed in the first part of Attachment 3.

90 There is no escape from these inconsistencies. They must be recognised and a construction given to the will as a whole read in context and in identification of the testator's intentions, reconciling if possible the inconsistencies. If that cannot be done, one must accept certain dispositive provisions as more persuasively representing the testamentary intent than other inconsistent provisions which must, therefore, be rejected. I have already said that I do not consider there can be any escape from the conclusion that the second part of Attachment 3, in dealing with specific amounts to be distributed to the fifth to fourteenth defendants, must be regarded as having dispositive effect. There is no provision in the will directly inconsistent with such a construction and this construction produces the result that all of the beneficiaries mentioned in cl 1.1 receive a benefit under the will. If that were not to be done, then none of the fifth to fourteenth defendants would receive anything other than such weekly cash payments as may be paid to the fifth defendant under the provisions of Attachments 1 and 2.

91 To the objection that the twelfth, thirteenth and fourteenth defendants are not specifically named in cl 1.1, I consider the answer to be that they are named, in the sense of being included in the family of the seventh defendant, in Attachment 3 and that in proper context the reference to Margaret Denise Hogan (the misdescription of the seventh defendant) in cl 1.1 should be seen as including her husband and children. On that approach, there is nothing else in the will, including the Attachments, which would deny, or be inconsistent with, monetary dispositions to the fifth to fourteenth defendants as mentioned in Attachment 3. They are, therefore, an integral part of the testamentary scheme and, standing alone as they do (in the sense that they are not duplicated or contradicted by any other provision in the testament) there is every reason to treat them as specific legacies.

92 Another consequence of treating them as specific legacies is that it renders the benefits to be derived by each of those beneficiaries as certain and free from any effect or influence which might result from variations in the net disposable value of the residuary estate or uncertainties over whether or not the superannuation fund assets will become part of the estate.

93 Different factors, however, apply to provisions in Attachment 3 estimating the amounts divisible between the first to fourth defendants. I have already drawn attention to the uncertainty and approximate nature of those estimates, dependent as they are upon market valuations and realisations of estate assets in the course of winding up the estate. Acceptance of the submission that eleventwelfths of the net disposable residuary estate should be paid to the first, second, third and fourth defendants on the basis of equality between the first three defendants and a much smaller share to the fourth defendant unquestionably would result in an inconsistency with the terms of cl 2.5 of the will. Accepting that there would be such an inconsistency and that it is incapable of reconciliation, which provision should have effect?

94 In my view, cl 2.4 and cl 2.5 contain the true indication of the testator's intent with respect to the distribution of the assets listed in cl 2. except for the estate interest in Mosman Park. For reasons given elsewhere, these clauses should also be regarded as containing the testator's intentions for the disposition of his entire estate except to the extent that there are other dispositions of his assets contained in the will such as those appearing under cl 1.3 and cl 2.6.4. Clause 2.4 and cl 2.5 are, also for the reasons previously given, apt to avoid the consequence of a partial intestacy. There are many indications in the will as a whole of the intention to dispose of the entire estate and it is to be noted that such a testamentary intent is implicit in the submissions of the plaintiff and all the defendants except the first defendant.

95 The dispositions of the residuary estate contemplated by cl 2.4 and cl 2.5 of the will are better suited to deal with a situation where the value of the estate may increase or decrease beyond the expectations of the testator at the time of the will and the formulation of his approximations as set out in Attachment 3. Clause 2.4 and cl 2.5 are also better suited to deal with the situations which have occurred, namely that certain assets of the deceased were disposed of by him before death so that provisions relating to them have resulted in ademption of those gifts, and that other assets, for example, the Southbank apartment at Melbourne, have been acquired. Nor, on this construction, will the proportionality of the division of the assets between the first four defendants be affected by the resolution of uncertainties over whether or not the benefit of the superannuation fund becomes an estate asset or the accuracy of the deceased's estimate of the realisable value of certain assets such as the insurance policy or his shareholdings. Clause 2.4 and cl 2.5, if read in this way, as providing for comprehensive dispositions of the residue, are flexible and adaptable to deal with the changing value of estate assets over time and the changing composition of estate assets. They provide a firm and certain basis for distribution of the residue.

96 By contrast, the provisions in the first part of Attachment 3 are highly dependent upon the value of the distributable estate being at or near $36 million and unless they are treated to be indicative of proportional entitlements (which is not the language used) there is no obvious mechanism for dealing with a situation where the net distributable value of the estate may be more than $36 million. By contrast with the provisions in Attachment 3 for the fifth to fourteenth defendants inclusive, the provisions for the first four defendants in that attachment provide an alternative but inconsistent method of dealing with the entitlements of the first to fourth defendants. I do not consider that, upon the proper construction of this will, the references to the first, second, third and fourth defendants in Attachment 3 are intended to be or are dispositive but, rather, are no more than indications of estimates of the consequences of giving effect to other provisions in the will, including cl 1.3, cl 2.4 and cl 2.5. If, however, that is not the case and there is a direct inconsistency between cl 2.4 and cl 2.5 on the one hand and the provisions in Attachment 3 dealing with shares in the estate by the first, second, third and fourth defendants, then I consider that those parts of Attachment 3 dealing with those defendants should be disregarded because of the inconsistency and that cl 2.4 and cl 2.5 should be accepted as representing the proper expression of the testator's intent.

97 Having determined the principles applicable to the construction of the will and having addressed and determined the major structural issues and contentions concerning the will and its effect, it is now possible to address the particular questions posed by the originating summons. These are grouped in the headings tabulated in the originating summons.

A1 Does the Will preclude the Plaintiff (the Executor) from postponing the sale under s 27(1)(c) of the Trustees Act?

A2 Does the Will preclude the Plaintiff from making any in specie appropriation of shares or other estate assets?

A3 If the Plaintiff may make in specie appropriations, at what date is the value of the property to be determined for that purpose?

99 The first of these questions arises because of language used by the testator in the will suggesting or implying early sale or realisation of particular assets. These references are as follows:

(a) Clause 1.3 'passed on in cash' - with reference to the Deceased's 50% interest in the Mosman Park property

(b) Clause 2.5 'realised/sold at market value and cash or assets divided up'

(c) Clause 2.6.3 'the assets are sold/cashed in ... and remaining cash is distributed

(d) Attachment 2 'an immediate share sale is to be made ... provide cash for ... '

(e) Attachment 3 'these moneys ... be divided'

100 By her counsel, the plaintiff submits that by the words used in cl 1.3 the deceased contemplated that the Mosman Park property would be sold although the sale would be postponed until the first defendant permanently vacated it and that, accordingly, there is no restriction upon the statutory power to postpone the sale of an estate asset. Counsel for each of the first, second, and third defendants support that construction. The fourth defendant did not file separate written submissions but on this question and most others adopted the submissions of the second and third defendants.

101 With reference to cl 2.5 and the provision relating to the sale at market value of the assets there listed, it is to be noted that those assets include the share portfolio, the Positron Group assets (which had been sold before the date of death) and the Success property. They also include the deceased's life insurance and the superannuation fund. It is not appropriate to speak of the sale of the superannuation fund or of the life insurance policy as opposed to their realisation. I consider that the language employed by the testator in cl 2.5 and cl 2.6.3 directing that these assets be realised/sold at market value or the assets are sold/cashed in is no more than a conventional direction to the executor to collect or realise these assets at the executor's discretion and to apply the proceeds as directed in the will. There is nothing to suggest that an immediate sale or an exclusion of the statutory power to postpone a sale is directed by that language.

102 Insofar as Attachment 2 provides for an immediate share sale, I am satisfied that this is an indication to the executor that all immediate funeral and travelling expenses, the repayment of loans and the payment of legal and accounting expenses, together with the weekly cash allowances to the named beneficiaries totalling $10,000 per week should be sourced from proceeds of the sale of some or all of the share portfolio. The share portfolio constitutes a readily negotiable source of assets which can quickly be realised to provide cash flow for any pressing expenses. Resort to that asset for liquid funds (accepting that the cash at bank has been specifically allocated for the second and fourth defendants) can be effected more easily than the sale of any of the real property and, for that reason, has been identified by the testator as the asset of first resort to provide funds for the satisfaction of these payments. Nothing in this suggests or requires that the whole of the portfolio should be sold immediately or that the statutory power to postpone the sale has been excluded.

103 In Western Australia, by virtue of s 27(1)(c) of the Trustees Act the power to postpone the sale of a trust asset includes the power to postpone the sale of assets regardless of whether or not they are of a wasting, speculative or reversionary nature but, in the case of property of a wasting or speculative nature for no longer than is reasonably necessary to permit its prudent realisation. This is in contrast to the power in some other jurisdictions which does not permit the postponement of the sale of assets of that speculative or wasting character. The obligation of the trustee where there is a power to postpone sale or to retain has been described in Ford & Lee, Principles of the Law of Trusts at [12,180] as follows:

Where the duty to sell is accompanied by a power to postpone sale or a power to retain the property the duty is to sell at a fair price within a reasonable time. In Brown v Gellatly (1867) LR 2 Ch App 751 the duty of trustees is for sale with a power 'to realise when and in such manner as [the trustees] may see fit' was held by Cairns LJ at 759 to impose on them a duty to convert the assets 'at the earliest moment at which they could properly be converted'. In Re Crowther [1895] 2 Ch 56, Chitty J described the effect of a power to postpone sale at 61:

'For myself I cannot see, if a testator says that his trustees may postpone the sale for as long as they deem expedient, how this gives them only some undefined and limited power of postponement, and there is nothing in any of the authorities which have been cited which compels me to come to such a conclusion.'

104 The learned authors then examine a series of other authorities which emphasise the power of trustees to postpone the sale of assets, even those investments which fall in value, so long as the discretion is exercised in good faith and carefully with reference to relevant considerations. Bearing in mind that these are the criteria to be considered by the executor in deciding whether or not to postpone the sale of this estate's assets, there is nothing in the terms of the will or in other considerations to conclude that this power of postponement of sale has been excluded or modified by the terms of the testament.

105 The answer to question A(1) must therefore be 'No'.

106 With reference to question A(2), whether the will precludes the executor from making any in specie distributions of shares or other assets, the position of the executor is that the will requires her to sell the Mosman Park property to realise the deceased's 50% share in that property and that the will requires her to sell sufficient shares from the share portfolio to make payments of debts, weekly allowances and administration costs but otherwise permits the appropriation of assets of the deceased's estate in specie. The first defendant substantially adopts the same position except to contend that, by virtue of cl 2.5 in the will, it is contemplated that the assets the subject of the residuary disposition, or some of them, may be 'divided up' notwithstanding that the earlier wording of that clause directs that they should be realised/sold at market value.

107 The second defendant submits that there is the power to distribute assets in specie and that it should be inferred that the testator would wish his executor to make appropriate judgments about when and how assets should be realised to maximise the value of the estate.

108 There is no reason why the executor should not be able to distribute some or all of the share in this estate to a particular beneficiary or beneficiaries in specie so long as that is done in a manner which would prevent unfairness to other beneficiaries who may have an interest in or deriving from the asset or assets so distributed. Indeed, it may be positively advantageous to distribute partly or wholly in specie to one or more of the beneficiaries in order to defer capital gains tax or other imposts payable in the event of a sale of the particular asset - see Williams Mortimer & Sunnucks Executors, Administrators and Probate, par 55-27.

109 There is an express power for the plaintiff as trustee conferred by s 30(1)(k) of the Trustees Act to appropriate any particular part of the trust property in satisfaction of a legacy or other entitlement of a beneficiary which will, in these present circumstances, allow distribution in specie in appropriate circumstances. This statutory power is as follows:

30(1) Every trustee in respect of any property for the time being vested in him, may:

(a) ...

(k) appropriate any part of a property in or towards satisfaction of any legacy payable thereout, or in or towards satisfaction of any share of the trust property, (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with s 50; but -

(i) the appropriation shall not be made so as to affect adversely any specific gift and

(ii) before any such appropriation is effectual, notice thereof shall be given to all persons of full age and full mental capacity who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation, and to the person having the care and management of the estate of any person who is not of full mental capacity, and any such person may, within one calendar month after receipt of the notice, or, where the person to whom notice has been given is out of the jurisdiction, within such extended period as the Court may, on the application of the trustee or any person interested, allow, apply to the court to vary the appropriation, and the appropriation shall be conclusive save as otherwise directed by the Court;

110 This power is analogous to the power conferred by s 41 of the Administration of Estates Act 1925 (England). In Theobold On Wills (17th ed) the learned authors observe of that power at [35038] that:

Such an appropriation must not affect prejudicially any specific devise or bequest, and can only be made with certain consents, unless such consents are dispensed with by the will. The appropriation binds all persons interested in the property of the deceased whose consent is not requisite. In making the appropriation, the personal representative is to have regard to the rights of any person who may thereafter come into existence or who cannot be found or ascertained at the time of appropriation, and of any other person whose consent is not required.

111 Under the Western Australian statutory power the ability to appropriate is not dependent upon the consent of any co-beneficiaries or other persons affected although, as the subsection itself makes plain, any person with an objection may, after notice, apply to the court to vary the appropriation. The power of such appropriation is further discussed in Ford & Lee, Principles of the Law of Trusts at [16,200] where the learned authors explain that the principle upon which trustees have power to appropriate any specific part of a residuary estate towards satisfying the legacy or share of residue is that they have power to sell the particular asset to the legatee, and to set off the purchase money against the legacy: Re Beverly [1901] 1 Ch 681 and Wigley v Crozier [1909] HCA 86; (1909) 9 CLR 425, 438.

112 Despite the apparent similarities, a power of distribution in specie and a power to appropriate any part of the assets of an estate towards the satisfaction of a legacy, bequest or other entitlement of a beneficiary are not identical. As a result of a distribution in specie the property in the asset being distributed will pass immediately on distribution to the beneficiary. This may not be the case when there is an appropriation which may precede, even by a long time, eventual distribution. The point is that upon such an appropriation becoming effective, the whole of the legal right to the asset may remain with the trustee but the whole of the beneficial interest will pass to the beneficiary in whose favour the appropriation is made notwithstanding that it continues to be held on trust for him or her. From then on, any appreciation or depreciation in the value of the asset or the fund which is the subject of the appropriation will be to the credit or to the cost of that beneficiary rather than to the estate as a whole and the legacy, bequest or other entitlement of the beneficiary to whom the appropriation was made will have been satisfied from the time of the appropriation even if that precedes ultimate distribution.

113 In either case, however, whether a distribution in specie or an appropriation, a valuation of the portion of the assets which are to be distributed in specie or appropriated to the beneficiary will need to be made. The date for the valuation will be the date of distribution or the date of appropriation if the latter is earlier see generally Ford & Lee, Principles of the Law of Trusts at [16,210].

114 Such a power of appropriation, whether derived from the trust instrument itself or from a statutory power of appropriation, will have effect subject to the terms of the relevant trust instrument or will. Such a power of appropriation may be exercised notwithstanding the existence of provisions in the will or deed of settlement directing a trust for sale and conversion or, so it would seem, directions for sale of the particular assets which are to be the subject of the proposed appropriation: see Carr v Carr (1987) 8 NSWLR 492, 496 and Re Beverly; Watson v Watson [1901] 1 Ch 681, 685 686. So if there were express or implied provisions in a will to the effect that no such appropriation or distribution in specie could or should be made either at all or until some later stage in administration is reached (for example, upon the termination of a life interest) that power of appropriation should not be employed: Long v Comptroller of Stamps [1964] VicRp 104; [1964] VR 796, 801 (Adam J).

115 Consequently, question A2, which asks whether this will precludes the plaintiff from making any in specie appropriation of shares or other estate assets, should be answered 'No' and the next question, A3, which asks if an in specie appropriation is to be made at what date is the value of the property to be determined for that purpose, the answer will be at the date of appropriation or distribution.

A3 The date or dates of each appropriation or distribution.

Question B: Estate's half interest in the property at 17 Colonial Gardens, Mosman Park ('the Mosman Park property')

B1 Does the Will give the first defendant (the deceased's de facto wife) a right of occupation of the Mosman Park property?

B2 If so, what is the nature and extent of that right?

B3 If so, what are the respective obligations of the estate and the first defendant in relation to outgoings on the Mosman Park property?

B4 In what proportions do the proceeds of sale of the Mosman Park property pass to the first defendant, the second defendant (the deceased's daughter), the third defendant (the deceased's son) and fourth defendant (the deceased's granddaughter) under the will?

116 The plaintiff, the first defendant and the second and third defendants all submit that under cl 2.6.1 the first defendant is given a personal right of occupation in relation to the deceased's one undivided half share in the house and land at Mosman Park. The second defendant submits that this right of occupation is limited to a period of 12 months. This contention arises from the terms of cl 1.3 which, as already noted, provides that it is the deceased's wish that his half share of that property be passed on in cash to his children within 12 months of his death.

117 For reasons already set out, I have already concluded that cl 1.3 is inconsistent with cl 2.4 and cl 2.5 and prevails over them. Insofar as cl 2.4 and cl 2.5 purport to dispose of the estate's share in Mosman Park, they are ineffective and must be disregarded. But cl 1.3 must be read subject to cl 2.6.1, which provides for the second defendant to remain at Mosman Park.

118 Terms such as a 'right of usage'; 'free use'; 'use and occupation' or 'right to reside' often are found in wills and were examined extensively by Bryson J in Hatzantonis & Anor v Lawrence; Cox v Lawrence [2003] NSWSC 914 where his Honour adopted and applied an extensive review of the applicable authorities conducted by Powell J in Binetta v Dunkel (Unreported, NSWSC, 28 May 1993). Many of those authorities are concerned with whether or not a life interest in land was conferred by such a testamentary disposition or whether no estate in the land was granted but merely a personal right. As Bryson J observed:

The decisions reviewed typically turned on the meaning of the very words used and that meaning was not ascertained narrowly from expressions relating to directions, or rights of residence, or otherwise referring to opportunities to reside, or to use and occupy; the words were addressed by courts in context, an important part of the context often being the terms in which other benefits were given in the same will.

119 His Honour adopted and applied the observations of AH Simpson CJ in Eq in Re Keenan; Ford v Keenan (1913) 30 WN (NSW) 214, 215 where his Honour observed:

Upon principle I should have said that the question whether Mrs Stuart only has a right to occupy one of the cottages, or has a right to let it during her life, turned on the words of gift. If the words used, or anything in the will, imply that a personal right only is given, the gift must be confined to that. A direction that a person may reside or live in a house prima facie confers a personal right for a man cannot reside by a deputy. But a right to use and occupy, or to occupy only, stands on a different footing for a man can 'occupy' by himself or a tenant.

120 In the present case, the family context and the cotenancy of Mrs Warburton of the Mosman Park house point towards a personal right of occupation only as all parties contend. This is consistent with the language of the will which by cl 2.6.1 confers the right, referring to the second defendant 'remaining' in the house.

121 In the manner in which these questions were argued, very little attention was given to the duration of this right to remain in the Mosman Park house because, so I was informed, Mrs Warburton desires that the property be sold and it has already been placed on the market for that purpose. However, the indications from the will as a whole are that the current living standards of the first, second, third, fourth and fifth defendants are to be maintained until after the estate has been settled (Attachment 1) so signifying that the living arrangements in relation to Mosman Park and Mrs Warburton are not indefinite. I accept the submission made on behalf of the plaintiff that Mrs Warburton's right to remain in Mosman Park will end when she no longer occupies that home as her principal place of residence.

122 The next part of this question is directed to the responsibility for payment of outgoings on the Mosman Park property during the period of continued residence by Mrs Warburton. The position of the plaintiff is that it is open for the court to find that while Mrs Warburton occupies the property and avails herself of the right of occupation, she is fully liable for the costs associated with ownership, but when she vacates the property the estate must from then on pay onehalf of the costs associated with ownership and the first defendant the other half until the sale of the property Re Reid [1943] SASR 254 and Hadzantonis &Anor v Lawrence; Cox v Lawrence. By contrast, the first defendant contends that during the period of occupation the estate must pay the rates and taxes (expenses associated with ownership) of the Mosman Park property and that the first defendant is liable for outgoings (expenses associated with occupation) presumably, electricity, gas, water usage and like expenditure. No mention has been made of the cost of insurance or regular maintenance or repairs but these are addressed later in these reasons. The second defendant and the third defendant each submit that until the sale of Mosman Park the costs of the outgoings in relation to the property should be shared equally between the estate and the first defendant.

123 The obligation of an occupant of premises to bear the outgoings is to be determined primarily, if possible, from the will itself rather than from identifying the nature and extent of the usage of the property conferred upon the occupant. However, there are certain interests which, in the absence of express stipulation to the contrary, conventionally carry an obligation to bear the liability for outgoings such as the position of a life tenant either at law or in equity. Here the interest conferred is in the nature of a personal interest and not of any estate or interest in the land but, both in relation to the Mosman Park property and to the Success property, the extent of the interest is at the discretion of the occupant or at least is dependent upon her ability to continue in possession, indicating that it has the potential to be of significant duration.

124 As was said by Powell J in Benetta v Dunkel (Unreported, NSWSC, 28 May 1993) the general rule would seem to be that because a life tenant is entitled to the rents and profits of the subject land, he is also liable to pay the annual charges, as, for example, rates and taxes (see for example Foley v Cannon (1936) 53 WN (NSW) 223; Re Dawes; The Perpetual Executors & Trustees Association of Australia Ltd v Dawes [1954] VicLawRp 11; [1954] VLR 76; Re Brown; Cavanagh v Cronin [1940] St R Qd 154 but that, in the absence of an express duty to repair (see for example Woodhouse v Walker (197980) LR 5 QBD 404) or liability for permissive waste, is not liable for repair In re Cartwright; Avis v Newman (1889) LR 41 Ch D 532. These approaches have been applied in cases dealing with a right of residence which, when exercised, results in the occupant being liable for the payment of outgoings Reid v Deane [1906] VicLawRp 21; [1906] VLR 138 and Re Reid [1943] SASR 254. That was the result reached by Bryson J in Hatzantonis v Lawrence; Cox v Lawrence.

125 In the present case there is little in the will to indicate the testator's intentions about the liability of the occupants during the rights of occupation conferred in respect of the Mosman Park property and the Success property for recurrent outgoings for each home. However, the will does provide by Attachment 2 for weekly cash allowances to be made to the first defendant and to the fifth defendant which would be available to meet such expenses as well as there being significant pecuniary benefits being provided for each of those two beneficiaries by other provisions of the testament. There does not appear to be any reason or signification in the will to depart from the conventional approach that the occupant, during the period of occupancy, is liable for outgoings of a recurrent but not a capital nature.

126 In the present case, the first defendant, so long as she remains at the Mosman Park house, will have the full benefit of the occupation of the property, that is, the enjoyment of her own undivided half share of the house and land and her personal right of occupation derived under the deceased's will. The deceased's interest in the house and land will remain a capital asset of the estate for eventual sale and distribution as provided by cl 1.3 to the second and third defendants. Accordingly, the preservation of the capital value of the estate's interest in property and any appreciation in that value will accrue to the advantage of the second and third defendants. Meanwhile, all expenses associated with continuing utilisation of the benefits of occupation of the estate's one half interest in the property will be for her advantage alone.

127 I consider, therefore, that regular expenditure associated with the current use and enjoyment, but not improvement, of the property should be met by the occupant. In other words, I consider that municipal rates, water rates and land taxes (if any) on the estate's one half interest in the property should be met by the occupant. In addition, the occupant should meet the cost of consumables, services and utilities for the estate's one undivided half share in the property as well as her own. Such expenses will include electricity consumption, water and gas consumption, telephone charges and like outgoings.

128 The fourth question in relation to Mosman Park is in what shares do the proceeds of the sale of the property pass to the defendants? This refers to the question which has already been determined of whether or not, by virtue of cl 1.3, the proceeds of the estate's share in Mosman Park pass solely to the second and third defendants equally between them or whether, by the combined effect of cl 2.4 and cl 2.5 taken in conjunction with Attachment 3 the house and land forms part of the estate which is to be divided among the first, second, third and fourth defendants. For reasons already set out, I consider that the disposition of the estate interest in Mosman Park is governed by cl 1.3 and, hence, the estate's half interest, upon realisation, should be distributed between the second and third defendants equally between them.

129 For the foregoing reasons, the answers to this section of the originating summons should be as follows:

B2 A right to continue to reside in the Mosman Park property unless and until the first defendant ceases to live there as her permanent home or until the administration of the estate of the deceased has been completed to the point at which a sale or realisation in the estate interest in Mosman Park should occur, whichever first happens.

B3 During the continuation by the first defendant of the right of occupancy of Mosman Park she should pay all outgoings of a recurrent nature associated with the occupation of the property including, but not necessarily limited to, rates, taxes, water rates and charges for services, including electricity, gas, water and telephone and meet any recurrent expenditure for regular maintenance or repairs of a noncapital nature. During this period the estate should be responsible for insurance and for any capital expenditure, repairs or alterations of a capital nature. Upon the termination of the first defendant's right of occupancy and until sale of Mosman Park, the estate and the first defendant will be equally responsible for all expenditure and outgoings on the property both of a capital and recurrent nature.

B4 Upon the sale or realisation of the deceased's interests in the Mosman Park property (whether occurring simultaneously with the sale of the first defendant's interest in that property or not) the net proceeds of sale deriving from the estate share in the property will be distributable between the second and third defendants equally.

Outgoings on the Mosman Park and Success properties for insurance

130 As for insurance expenses, the position is less clear. In Reid v Deane (143) a'Beckett J directed that in comparable circumstances the trustees of the estate have the discretion to insure and pay premiums out of the residuary estate during the term of the widow's occupancy of the former matrimonial home.

131 The insurance question can be partly answered by addressing the issue of who has the insurable interest in the property. For this purpose I put to one side the fact that Mrs Warburton clearly has, in her own right, one undivided half interest in Mosman Park as tenant in common. If, in a case like the present, the will confers on the occupant no proprietary interest, legal or equitable, in the home but only a mere right of residence, it would follow that he or she might have only a limited insurable interest in the home (as distinct from any furniture or chattels within the home which may belong to the occupant). This absence of a proprietary interest may not necessarily exclude an insurable interest in view of s 17 of the Insurance Contracts Act (1984) but it will leave any right to indemnity contingent on the nature of the loss ensuing (see K Sutton, Insurance Law in Australia, 6.31).

132 That being the case, the occupant would have limited power to insure the property against risks of destruction or damage. The same result can be put another way by noticing that the power to insure vests in the trustee, even if no such power is contained in the trust instrument Perpetual Trustee Co Ltd v Adams (1923) 24 SR (NSW) 87. This rule is consistent with the power conferred by s 46(1) of the Trustees Act for the trustee of the property to insure against loss or damage of any insurable property and against any risk or liability against which it would be prudent for a person to insure if the person were acting on the person's own behalf. The insurance may be for not more than the full replacement value of the property, s 46(1), and may be paid out of the income of the property or out of the income of any other property subject to the same trusts unless a contrary intention is expressed in the will or trust instrument Trustees Act s 5(2) and s 5(3).

133 Bearing in mind the power of insurance conferred upon the executor by the statutory provisions and the uncertainty over the extent of an insurable interest by the occupants of the properties, at least in relation to loss or damage to the buildings and improvements being occupied, I conclude that the cost of insurances for the Mosman Park property and for the Success property during the rights of occupation should be borne by the estate and not by the persons exercising the rights of occupation.

Question C: 1 Barnes Way, Success (the Success property)

134 The questions relating to this property posed by the originating summons are as follows:

C1 Is the fifth defendant (the deceased's mother) given a right of occupation of the Success property?

C2 If so, what is the nature and extent of that right?

C3 If so, what are the respective obligations of the estate and the fifth defendant in relation to outgoings of the Success property?

C4 In what proportions do the proceeds of sale of the Success property pass to the first, second, third and fourth defendants under the will?

135 As earlier stated, the Success property was for many years occupied by the deceased's father and mother. There is no evidence as to whether or not they met any of the outgoings or other expenses associated with this property during the life of the testator. The deceased's father, Kenneth Charles Hogan, died on 22 September 2010, that is shortly before the testator, and accordingly dispositions made by the will to him then lapsed.

136 At the date of the deceased's death his mother, the fifth defendant, continued to live at the Success property. She was then in frail health. In or about June 2011, as a result of deterioration in her health, the fifth defendant finally vacated the Success property and is now living in an aged care facility at a high care nursing home in Ellenbrook. There is no prospect of her being able to return to the Success property.

137 All the parties who appeared at the hearing agreed that the interest conferred by the will on the fifth defendant was a permanent right of occupancy at Success only, being a personal right not conferring any interest or estate in the land. These parties also agreed that the right of occupancy would determine, and had determined, on the fifth defendant vacating the property as her permanent home so that, from then on, the Success property came to be dealt with under cl 2.4 and cl 2.5 of the will, requiring its sale and distribution of the proceeds in accordance with the directions contained in the will.

138 At the hearing it was submitted on behalf of the plaintiff that the third defendant had notified the executor that he may wish to take the Success property in part satisfaction of his entitlement in the deceased's estate if this court determined that the executor was empowered to distribute in specie. The issue of distribution in specie or appropriation of particular assets towards satisfaction or part satisfaction of any individual beneficiary's share in this estate has been dealt with earlier and, subject to compliance with the provisions of s 30(1)(k) of the Trustees Act and all associated procedures, the answer to that question is in the affirmative.

139 The succeeding questions dealing with the Success property concerned the nature and extent of the fifth defendant's right of occupation and what were the respective obligations of the estate and the fifth defendant in relation to outgoings on her Success property. The plaintiff has submitted that it is unnecessary to answer these questions because of the vacation of the property by the fifth defendant but the first, second, third and fourth defendants have each made submissions about outgoings which render it still necessary to answer these questions. The nature and extent of the right of personal occupation was for the fifth defendant to reside in the Barnes Street property for as long as she wished as her permanent home. Upon vacation of the property or it being ceased to be used by the fifth defendant as her personal home the right of occupation terminated.

140 As to the respective obligations of the estate and the fifth defendant in relation to outgoings of the Success property, the submissions of the first defendant are that the estate should pay the rates and taxes (expenses associated with ownership) and the fifth defendant pay the outgoings (expenses associated with occupation) until vacation of the property. The second and third defendants each submitted that the estate should be liable for the outgoings on the Success property without specifying which outgoings were included.

141 For the same reasons as set out when dealing with outgoings associated with the Mosman Park property, I am satisfied that the estate should meet all outgoings of a capital nature associated with the Success property during the period of occupation by the fifth defendant but that the fifth defendant should meet occupation expenses such as the costs of rates, land tax, if any, water rates, and outgoings associated with occupation such as charges for services, including electricity, gas, water and telephone expenses. Expenditure for insurance, capital works, improvements or major repairs should be met by the estate but expenditure for minor repairs and maintenance, not of a capital nature, should be met by the fifth defendant. From the date when the fifth defendant vacated the Success property, all expenses and outgoings thereafter accruing should be met by the estate.

142 As to the question in what proportion do the proceeds of the sale of the Success property pass to the first, second and third defendants under the will, the plaintiff and all defendants appearing at the trial agree that the proceeds of sale should be distributed in the shares specified in cl 2.5 of the will. I consider that that submission is correct and, accordingly, the net proceeds of the sale of the property at 1 Barnes Way, Success, should in due course be distributed between the following beneficiaries in the following shares:

143 The questions posed by the originating summons in relation to the socalled Paterson Securities portfolio are as follows:

D1 Is the Paterson Securities portfolio charged with payment of all expenses and debts including funeral and testamentary expenses, debts, loans and all administration costs?

D2 Is the plaintiff obligated to liquidate the whole of the Paterson Securities portfolio?

D3 If the Paterson Securities portfolio is insufficient for meeting the debts with which it is charged, from what part of the estate are expenses and debts to be met?

144 An initial question arises as to what, if anything, is meant by the term 'Paterson share portfolio'. It is not a term utilised by the deceased in his will, although there are similar, but in my view different, references to be found in the testament. By cl 2.4 the deceased identifies among his assets 'my share portfolio' to which he attributed a then present value of $6 million. That portfolio was one of several major assets to be realised and the proceeds distributed in accordance with cl 2.5 of the will. Attachment 2 to the will entitled 'immediate share sale' and providing for the payment of immediate expenses and weekly cash allowances to the first, second, third, fourth and fifth defendants, included the clause 'an immediate share sale is to be made of my Portfolio via Paterson Securities ... '.

145 As mentioned earlier, it is apparent that Mr Hogan left large shareholdings, some but not all of which were listed on the Australian Stock Exchange and, in respect of those which were so listed, some were issuer sponsored and some were CHESS sponsored by Patersons Securities Ltd. According to the statements of assets filed in the affidavits read on this application, the value of the CHESS sponsored shareholdings under the brokerage of Patersons Securities Ltd at the date of death was approximately $2,880,000. There were then other shareholdings owned by the deceased at the date of death worth approximately $20,500,000. The latest valuation figures as at September 2011 shows the Patersons Securities CHESS sponsored shareholdings to be worth approximately $3,450,000 and the other shareholdings to be worth a further $16.7 million.

146 If the characterisation of the Patersons shareholding adopted by the parties is meant to be confined to the deceased's shareholdings which were CHESS sponsored and so controlled by Patersons Securities Ltd, I do not consider that that is correct. The references in the will by the deceased are to 'my shareholding' which I consider refers to all his shareholdings and not merely those which were CHESS sponsored through Patersons Securities Ltd. A direction for sale of the portfolio through Paterson Securities is not inconsistent with that, meaning only that the deceased intended that when his shareholdings were to be realised they should be sold through that broker whether or not they were already CHESS sponsored by that firm. I shall, therefore, proceed to address this question on the footing that it relates to all shareholdings of the deceased, not merely those CHESS sponsored through Patersons Securities Ltd. I add, however, that in the events which have happened it seems most unlikely that any distinction or difference in ultimate outcome will result from adopting this broader definition of the content of the deceased's share portfolio.

147 The plaintiff and each of the defendants who appeared by counsel at this hearing submitted that the Paterson Securities portfolio is charged with the payment of all expenses and debts, including funeral and testamentary expenses, debts loans and all administration costs; that the plaintiff was not obliged immediately to sell or realise the whole of the portfolio and need only resort to realise so much of the portfolio as is necessary to meet such expenses as they accrued and otherwise could postpone the sale of the remaining balance of the portfolio at her discretion until realisation was appropriate in the administration of the estate.

148 With respect, I do not consider that the term 'charge' is an appropriate description of the effect of the provisions of the deceased's will dealing with the source of funds for the designated expenditures. Conventionally, the term 'charge' denotes some form of security interest such as a mortgage, lien or equitable charge to protect or secure a particular claimant, creditor or other party. I do not consider that the testator intended to create a 'charge' in that or any related sense over his share portfolio or, indeed, any other part of his estate. I consider that the proper meaning of Attachment 2 is that it contains a direction by the testator to his executor that the executor should resort first to funds available from the sale of some or all of his share portfolio to meet the expenses and that the fund coming from the realisation of those assets should be exhausted before the payment of expenses from any other asset or assets of the estate was implemented.

149 As to the question of what should happen if the 'Paterson portfolio' proved insufficient to meet the debts with which it was 'charged', and what part of the estate should then be used to meet expenses, the submissions of all of those parties was that it was unlikely that proceeds of the 'Paterson share portfolio' would be insufficient to meet those expenses. The first defendant, however, submitted that the weekly allowances referred to in Attachment 2 were payable only out of the proceeds of the sale of the share portfolio and, therefore, upon that source of funds becoming exhausted, the weekly allowances should stop. Otherwise, the first defendant submitted that in the event of exhaustion of the funds from the share portfolio for debts and related expenses, the executor could resort to other assets of the estate, being those identified in cl 2.4 at her discretion to meet other necessary expenditure.

150 The starting point for determining how the liability for debts of an estate in the course of administration shall be satisfied is s 10(1) of the Administration Act 1903 which provides that the real and personal estate of every deceased is available to the executor to whom probate has been granted for the payment of all duties and fees and of the debts of the deceased in the ordinary course of administration. As a result, the personal representative is entitled to discharge any liability of the estate from whatever funds are available, and both realty and personalty are assets available for this purpose, except in the case of insolvent estates for which special rules apply Administration Act s 10A and Bankruptcy Act 1966 Pt XI s 249: see Hardiman v Beal & Morris (1956) 58 WALR 20.

151 There is a qualification to that rule which applies by virtue of s 28(1) of the Wills Act 1970 which incorporates the principles generally referred to as the rule in Locke King's Act. This provides that where any property of a deceased is specifically disposed of by a will but that property is subject to a charge, in the form of a security at the date of the testator's death, that property must, as between the estate and the persons claiming through the deceased, subject to any contrary intention expressed in the will, bear the burden of that charge. The consequence of the application of this rule, if it applies, is that the other property of the estate, which is not subject to that charge, does not bear any liability for the debt or the amount of the charge if the property the subject of the charge is sufficient to meet the charged liability. The application of the Locke King's Act principle can be excluded by a direction in the will exhibiting such an intention. So, for example, the nomination by a testator of a particular fund or asset to bear the liabilities or expenses of the estate, or more so to discharge the liability charged over some other estate asset, will be a direction sufficient to exclude that principle. Such an intention may be gathered from the will as a whole National Trustees Executor and Agency Co of Australasia Ltd v Murphy (1892) 14 ALT 103 and Gellibrand v Murdoch [1937] HCA 10; (1937) 58 CLR 236, 244 (Latham CJ).

152 In Mr Hogan's estate there is no evidence of any debts or liabilities being secured against any asset of the estate and hence no apparent scope for the application of the Locke King's Act principle applying in Western Australia by virtue of s 28(1) of the Wills Act to apply. Therefore, by virtue of s 10(1) of the Administration Act the plaintiff as the executor may resort at her discretion to any of the assets of the estate for the satisfaction of estate debts, liabilities, administration expenses or other payments due in the course of administration.

153 However, because the testator has nominated the proceeds of the sale of his share portfolio for the creation of a fund to meet those designated expenses, including the weekly allowances payable to certain beneficiaries under Attachment 2, it follows that, so long as the fund thereby nominated is sufficient to meet those liabilities, when it comes to ultimate distribution the executor will be bound to adjust or 'marshal' the assets to ensure that the burden of those expenses and allowances is charged first against the benefits due to the beneficiaries entitled in distribution to the proceeds of sale of the share portfolio and not in reduction of benefits payable from other assets such as Mosman Park, cash at bank or personal legacies or bequests. If, however, the proceeds and the sale of the share portfolio were insufficient to meet all the designated liabilities and the executor had, out of necessity, resorted to other assets of the estate to provide funds to meet those obligations, then in adjusting eventual distributions the cost of meeting those additional liabilities would, in the first instance, be payable out of residue without resorting to specific bequests or legacies.

154 In light of this analysis, it is now possible to answer the questions posed in the originating summons concerning the Paterson Securities portfolio.

D1 Is the Paterson Securities portfolio charged with payment of all expenses and debts including funeral and testamentary expenses, debts loans and all administration costs?

Answer: The will contains a direction that the executor should resort first to the proceeds of sale of his share portfolio for the payment of all expenses and debts, including funeral and testamentary expenses, debts loans and all administration costs, and the weekly advances provided by attachment 2. This reference to the share portfolio of the deceased extends to all shareholdings of the estate and not merely to those shareholdings which were CHESS sponsored through the broker Patersons Securities Ltd.

156 The provisions in the will directing that the designated expenses should be paid from the proceeds of the deceased's share portfolio do not constitute any charge by way of security over the share portfolio or any other assets of the estate but, rather, constitute a direction as to which assets of the estate should ultimately bear the cost of those expenses and, consequently, which bequests in the will should ultimately bear the costs of those expenses.

157 This direction does not inhibit or restrict the executor from resorting to the realisation of any estate assets for the payment of debts, liabilities, administration expenses or other outgoings payable in the course of administration. This, however, is available to the executor by reason of s 10(1) of the Administration Act. Assuming that the aggregate of those expenses does not exceed the net proceeds eventually realised from the sale of the deceased's share portfolio, when it comes to the ultimate distribution of the assets of the estate the distribution should be marshalled to ensure that those expenses are met from funds which would otherwise be payable to the beneficiaries entitled in distribution to the proceeds of sale of the share portfolio and that other specific devises, legacies and bequests in the will are not reduced by reason of that expenditure. In the event that the proceeds of the sale of the deceased's share portfolio are not sufficient to meet all the said expenses then, after resorting to such other asset or assets at her discretion necessary to satisfy those expenses, the executor should marshal distributions in such a way as to ensure that these expenses are debited against distributions payable to the beneficiaries of the residuary estate of the deceased.

D2 Is the plaintiff obliged to liquidate the whole of the Paterson Securities portfolio?

Answer: Not for the purposes of meeting the designated expenditure although, subject to the power to distribute in specie or to appropriate particular assets in favour of entitlements of particular beneficiaries, the eventual sale and realisation of the whole of the deceased's share portfolio will be required to complete the course of administration.

D3 If the Paterson Securities portfolio is insufficient for meeting the debts with which it is charged, from what part of the estate are expenses and debts to be met?

Answer: Expenses and debts of the estate in the course of administration may be met by the executor from any part of the estate assets at the executor's discretion. If such debts and expenses are met from assets of the estate other than the proceeds of sale of the deceased's share portfolio or, in the event that the share portfolio is insufficient to meet all debts and expenses and the executor has resort to other assets to meet them, then on eventual distribution all such costs and expenses shall be applied first in reduction of the benefits payable under the will to the beneficiaries entitled in distribution to the proceeds of the share portfolio and, in the event that the proceeds of that share portfolio are insufficient to meet all debts and expenses, the extra debts and expenses shall be debited pro rata against the benefits payable to the residuary beneficiaries.

160 The questions posed by the originating summons in relation to cash allowances are:

E1 Are the weekly cash allowances to be paid by the plaintiff in the terms of attachment 2?

E2 If so, what are the terms on which the cash allowances are to be paid and are the cash allowances to be brought into account in the distribution of the estate?

161 The cash allowances referred to are the weekly cash allowances totalling $10,000 per week to be paid to the first, second, third, fourth and fifth defendants as directed by Attachment 2 to the will and which are to be sourced from the proceeds of sale of the deceased's share portfolio. This testamentary provision must be read in conjunction with the terms of Attachment 1 which direct that the cash flows of the deceased's estate are to be controlled in such a way that the immediate living standards of those same named beneficiaries are not changed until after the estate has been settled. It is implicit from Attachment 1 that such cash allowances are to be paid from 'cash flows of the estate', which I consider means from income derived by the estate in the course of administration and/or from the cash proceeds of the progressive realisation of other estate assets as such sales may occur in the course of administration.

162 Although there is no direct evidence on the subject, I consider that I can and should infer that significant income for the estate is earned and until the completion of administration will continue to be earned from interest on cash deposited at bank, from dividends or other distributions from various shareholdings and, at least potentially, from rental income which may be derived from the Success property and from the apartment at Southbank, Melbourne, if and when either or both of those properties are let to tenants.

163 The parties appearing at the hearing advanced different contentions with respect to these cash allowances. The plaintiff submitted that the cash allowances are payable from the date of the deceased's death until the time that the estate is distributed and that the cash allowances paid should be offset against partial or final distributions made to the first, second, third and fourth defendants, although it is evident that such distributions may also be paid to the fifth defendant.

164 The first defendant submits that the cash allowances are to be paid until the 'Paterson portfolio' is exhausted or until finalisation of the administration of the estate, whichever first occurs, and are not to be brought into account against other distributions. The second defendant submits that it would be preferable for the allowances not to be paid and for the balance of the share portfolio, after satisfaction of other debts and expenses, to be divided among the beneficiaries as directed under cl 2.5 of the will in the shares there specified.

165 The third defendant submits that all cash allowances paid should be brought into account against distributions under the estate, pending the completion of administration. The plaintiff submits that advances made by way of cash allowances to beneficiaries should be brought into account against distributions ultimately made to those beneficiaries and that otherwise there would be an inequity arising from the vagaries of the time it may take finally to distribute the estate.

166 Despite the submissions of the second defendant, I am satisfied that cash allowances as directed by Attachment 2 to the will should be paid to each of the first, second, third, fourth and fifth defendants in the amounts specified by the deceased. I am also satisfied that these allowances should be met from the proceeds of the sale of some or all of the deceased's share portfolio and that this portfolio is not limited to those shareholdings administered by Patersons Securities Ltd on the CHESS register.

167 There is no suggestion that the proceeds of the sale of the deceased's share portfolio will be insufficient to provide for the payment of such cash allowances for the duration of the administration although, as set out above, the executor is at liberty to resort to other assets of the estate to meet estate debts and expenses should she decide to do so. These cash allowances, however, may only be debited against the proceeds of the sale of the share portfolio and, accordingly, may not be met from other assets because they are not duties, fees or debts of the deceased but, rather, are testamentary dispositions from a specified fund. Nevertheless, if the specified fund were inadequate to meet these progressive cash allowances, the executor would be at liberty to resort to other assets for the satisfaction of debts and administration expenses and so diminish the charges against the proceeds of the sale of the share portfolio in order to allow continuity of payments of cash allowances should that be considered necessary.

168 It follows that the first of these questions should be answered in the affirmative and that the executor should pay the cash allowances as directed by Attachment 2.

169 The question of whether or not the cash allowances should be brought to account in reduction of distributions otherwise payable to those beneficiaries who receive cash allowances depends upon the character of the benefits intended by the testator by such cash allowances. Are the cash allowances a separate series of bequests to those named beneficiaries additional to other legacies or bequests to them provided by the will, including residuary gifts, or are they to be regarded as advance payments made in partial satisfaction of other legacies or bequests in the will to those beneficiaries? Only if they are of the second character should they be brought to account in reduction of other distributions due to those beneficiaries under the will. The answer to this question does not depend upon any general principle or prior authority but must be obtained from discerning, by established principles of construction, the particular intention of the deceased as expressed in this will.

170 The resolution of this issue of construction is assisted by the context of the will as a whole. As already noted, Attachment 1 directs that the cash flows of the estate should be controlled in such a way that the immediate living standards of those five defendants are not changed until after the estate has been settled. This signifies that the deceased contemplated that there would be a period of administration of his estate which might last for some significant time (as appears from the provisions allowing his mother and Mrs Warburton to remain in occupation of the respective properties in which they were living at the date of death) and that, accordingly, the significant capital benefits payable to the respective beneficiaries may not all be available to them, or to some of them, for some time. So far as it may be material, it is evident that, by cl 1.3, the deceased at least envisaged that the proceeds of the realisation of his onehalf share in the Mosman Park property may not available for 12 months. Whatever may have been the period of delay before substantial or complete administration of the estate contemplated by the deceased, it is evident that he foresaw some significant delay and hence directed that the living standards of the five named defendants should not be changed until the final settlement of the estate and provided for the weekly cash allowances to assist in achieving that wish.

171 Of the recipients of the cash allowances only the first, second, third and fourth defendants are entitled to distribution from the realisation of the major, and most valuable, portions of the estate assets namely those referred to in cl 2.4 but excluding Mosman Park. The deceased's mother, the fifth defendant, is to receive only a legacy of $300,000 (together with the deceased's father should he have survived the testator) under the provisions of Attachment 3. The source of the funds to meet the advance cash payments is, as noted, the deceased's share portfolio which, after being utilised for other administration debts and liabilities, is to be distributed to the first, second, third and fourth defendants by virtue of cl 2.5. This, in effect, means that, putting the deceased's mother, the fifth defendant to one side, the extent to which the proceeds of the share portfolio are depleted by the payment of progressive weekly allowances to the first, second, third and fourth defendants, the balance of the estate distributable to those four defendants will be correspondingly reduced. For those four defendants there will no prospect of double payments because what they may gain collectively by the payment of weekly allowances they will lose by the reduction in the residue available for distribution under cl 2.5. That at least is the aggregate effect of the payment of the weekly allowances and the corresponding reduction in the residue available for distribution to those four defendants under cl 2.5.

172 However, it must be acknowledged that the relative proportions of the weekly cash allowances of $4,000 to the first defendant and $2,000 to each of the second and third defendants and $1,000 to the fourth defendant do not precisely correspond with the shares in the residue provided by cl 2.5 which, respectively, as already noted, are 35%, 30%, 30% and 5%, The proportions among those four beneficiaries of the weekly allowances is, of course, 40%, 20%, 20% and 10% respectively. Clearly, these do not coincide with those beneficiaries' entitlements to the residue and this analysis fails to bring into account the effect of the weekly payments of $1,000 to the fifth defendant. However, the proportions are not widely divergent and the continuation of the weekly payments over an extended period when compared with the effect which they will have upon the residue distributable under cl 2.5 will only slightly favour the first defendant and the fourth defendant at the expense of the second and third defendants. Nevertheless, this is a factor which must be considered.

173 Another factor to be considered is the direction by the testator that these weekly allowances should be paid from cash flow of the estate which it is to be inferred, there being no suggestion to the contrary, will remain positive throughout the administration of the estate. Accordingly, such weekly cash advances should not deplete the capital value of the estate at the date of death available for distribution to the several beneficiaries.

174 While the deceased's mother, the fifth defendant, stands in a different position in relation to these cash advances to the other four defendants (because she is not a residuary beneficiary) there is nothing in the provisions of Attachments 1 or 2 relating to cash allowances to suggest that the pecuniary benefit of $300,000 payable to her under Attachment 3 should be reduced by the aggregate of cash advances made to her throughout the course of administration. It does not seem to be consistent with the testator's intention of maintaining the immediate living standards of his mother by the payment of $1,000 per week to her during the administration of his estate, to require that the distribution of $300,000 made for her by Attachment 3 should be correspondingly reduced.

175 It is also significant that the language of the will does not suggest that the cash allowances are to be treated as advances against other distributions or bequests due under the will. Having regard to the context of the will as a whole and the testator's perceptions of the need to make special temporary provision for certain beneficiaries during the course of administration, I consider that the weekly cash allowances are separate and additional provisions made for those beneficiaries in addition to other bequests, legacies or distributions to which any of them may be entitled under other provisions of the testament.

176 Accordingly, I conclude that the amounts of cash allowances paid or payable to the first, second, third, fourth and fifth defendants should not be brought to account or used in any way to reduce the benefits to which any of those persons is otherwise entitled in distribution under the will.

177 It follows that the answers to questions E1 and E1 should be:

E1 The weekly cash allowances referred to in attachment 2 should be paid by the plaintiff to each of the beneficiaries named in attachment 2 in the amounts there provided.

E2 The weekly cash allowances are to be paid to each person entitled without deduction and are not to be brought to account in reduction of any other benefits payable to any of those beneficiaries under other provisions of the will.

178 The question posed in respect of this asset by the originating summons is:

1. Are the values of the paintings specified in attachment 4 of the will to be brought into account in the distribution, or are the gifts of the paintings specific bequests and the values immaterial to the distribution?

179 The plaintiff submits that the values attributed to the art works in Attachment 4 of the will are immaterial and that the art works are the subject of specific gifts. The first defendant agrees with that submission. The second and third defendants submit that the gifts of the art works constitute specific bequests and that the value should not be brought to account in reduction of benefits payable under cl 2.4 or cl 2.5 of the will. However, these defendants submit that it is arguable that the value of the paintings should be taken into account for the purpose of any distribution to the beneficiaries referred to in Attachment 3.However, with respect, I cannot accept this submission because, for reasons already given, I consider that cl 2.4 and cl 2.5 of the will, properly construed, amount to a disposition of the whole of the assets of the deceased not otherwise specifically disposed of by other clauses in the will such as 1.3, 2.6.4 and Attachment 4 dealing with what the deceased termed his 'personal effects'. Accordingly, I am satisfied that the dispositions of the art works should be regarded as specific bequests which are not to be brought to account by any of the beneficiaries receiving them in reduction of other distributions due to those beneficiaries under other provisions of the will.

180 Furthermore, having regard to the evidence and submissions that there are certain other art works owned by the deceased and forming part of the estate which are not specifically mentioned in Attachment 4, I consider that the implicit intention of the testator is that the beneficiaries named in Attachment 4 should receive all art works belonging to the deceased at the time of death.

181 Accordingly, the answer to question F is that the values of the art works or paintings specified in Attachment 4 of the will are not to be brought to account in reduction of other benefits provided to the beneficiaries of the art work under different provisions in the will.

182 The question posed by the originating summons in this regard is:

1. Is the gift of cash at bank in cl 2.6.4 a specific legacy in addition to any other benefits the second and fourth defendant receive under the will?

183 The plaintiff and the first, second, third and fourth defendants each submit that the gift of cash at bank provided by cl 2.6.4 of the will is a specific legacy in addition to any other benefits which the second and fourth defendants receive under the will. According to the statements of assets and liabilities contained in the affidavits filed the amount of cash at bank at the date of death was approximately $870,000, the value of bank accounts as at 12 April 2011 was approximately $3.02 million, and the amount in bank accounts as at 28 September 2011 was $3.09 million. No attempt or demand has been made to reconcile those figures or to identify whether all of the current balances are payable to the second and fourth defendants in accordance with the will or not. Nothing in these reasons can, therefore, be regarded as a determination of the amount of cash at bank distributable to the second and fourth defendants under the will. That question has not been addressed or determined in these proceedings.

184 Consistently with the construction previously adopted with respect to cl 2.4 and cl 2.5 of the will, namely that those clauses should be regarded as a disposition of the whole of the available estate of the deceased except for assets otherwise specifically disposed of by other provisions in the will, I am satisfied that the provision for the payment of cash at bank to the second and fourth defendants forming part of cl 2.6.4 is separate from and in addition to any benefits which the second and fourth defendants receive in distribution under cl 2.5 of the will.

185 Accordingly, the answer to question G should be 'Yes'.

186 The questions posed by the originating summons on this subject are as follows:

H1 Does 'all expenses and travelling costs' refer to the costs of travel to the deceased's funeral?

H2 Does 'all expenses and travelling costs' include:

(a) air fares

(b) hotel accommodation

(c) meal costs

(d) taxi or hire car fees

H3 Who falls within the description of 'immediate family'?

187 The plaintiff and the second defendant have submitted that the travel expenses provided for in the will refer to the costs of travel of the deceased's immediate family to his funeral refer to the costs of the immediate family as defined by the will in cl 1.1 and that while the expression 'funeral and all expenses and travelling costs' is imprecise, or at least elastic, that a wide interpretation should be given to the phrase so that it should include air fares, hotel accommodation, meal costs and taxi or hire car fees. The first defendant makes no submissions on this question and the third defendant supports the submissions of the second defendant.

188 With respect, I consider that the submissions of the plaintiff and the second defendant should be accepted. The members of the immediate family are those fourteen persons named in cl 1.1 of the will, being the first to the fourteenth including, by implication, the members of the Martin family defendants inclusive. Attachment 2 refers to funeral and all expenses and travelling costs of his immediate family being met from the share portfolio which, as previously explained, means that the ultimate cost of these expenses will be borne by the beneficiaries entitled to distribution of the balance of the proceeds of sale of the share portfolio regardless of the right of the plaintiff as executor to have resort to other assets to satisfy those expenses in the course of administration at her discretion. Accordingly, the answers to question H in the originating summons should be:

H3 The first to the fourteenth defendants inclusive.

189 The questions posed by the originating summons under this heading are:

I1 Is Dianne Hogan-Martin referred to in aAtachment 3, the seventh defendant (the deceased's sister)?

I2 Is Margaret Denise Hogan, referred to in cl 1.1, the seventh defendant?

190 The plaintiff submits that the person referred to in the will under these names is the seventh defendant, whose correct name is Margaret Dianne Martin (nee Hogan).

191 The court will not allow a gift to fail because of misdescription or erroneous description of the identity of the beneficiary if, otherwise, the identity of the intended beneficiary can be satisfactorily ascertained. If, however, there is no person actually meeting the description of the person referred to in the will and several persons to whom it may apply with more or less accuracy and nothing to distinguish, a gift will fail because of uncertainty (see Theobald On Wills (17th ed) [24010] and Andrew v Dobson (1788) 1 Cox 425; 29 ER 1232. The learned author then proceeds to give many examples of how, despite erroneous descriptions of intended beneficiaries, the true identity of the intended beneficiary can be established and effect given to it.

192 The deceased's sister was born Margaret Dianne Hogan and on her marriage became Margaret Dianne Martin. She is known generally within the family as Dianne. There is no other person to whom the reference Margaret Denise Hogan referred to in cl 1.1 of the will could refer and, similarly, the reference to Dianne Hogan/Martin in Attachment 3 is a reference to the same person, the seventh defendant.

J1 To whom is the gift in Attachment 3 described as Dianne Hogan/Martin and family to pass and in what proportions?

195 This is the gift of $500,000 contained in Attachment 3. Mrs Martin, the sister of the deceased, is married to the twelfth defendant and has two children, the thirteenth and fourteenth defendants. Other pecuniary gifts are contained in Attachment 3 for the two brothers of the deceased, the sixth and eighth defendants. Each of them is to receive $300,000. There is, therefore, scope for an inference that the $500,000 payable to Dianne Hogan/Martin and family is comprised of a gift of $300,000 for her and $100,000 for each of her children, but there is no evidence to support this and such a conclusion would exclude any component for the twelfth defendant. An alternative approach is to identify the beneficiaries referred to by that name who, I am satisfied, are the seventh, twelfth, thirteenth and fourteenth defendants and to treat the gift of $500,000 as a gift to all of them as tenants in common in equal shares on the principle that equality is equity - McPhail v Doulton [1970] UKHL 1; [1971] AC 424, 451; Hulme v Chitty [1846] EngR 562; (1846) 9 Beav 437, 443; [1846] EngR 562; 50 ER 411, 414

196 On this question, the plaintiff submits that the gift is to the seventh defendant and that if she had predeceased the deceased, a gift to her husband and children. The contention underlying that proposition is that the words of the gift are to 'Dianne Hogan/Martin & family' and that the 'slash' (/) suggests a succession of gift and not a concurrent gift, whereas the ampersand sign between 'Martin & family' suggests a concurrent gift.

197 The first defendant submits that no such alleged gift is valid because Attachment 3 has no operative effect. This is a repetition of the second defendant's submissions relating to Attachment 3 being ineffective, internally inconsistent, precatory in nature and inconsistent with cl 2.5 which is said to be the primary dispositive clause of the will and also inconsistent with cl 2.6.4. I have already rejected that submission for reasons earlier given and I am satisfied that Attachment 3 does contain dispositive dispositions, including the pecuniary provisions made to the seventh, twelfth, thirteenth and fourteenth defendants.

198 The third defendant submits that this gift is a gift to Dianne Hogan/Martin and her family collectively and that agreement should be obtained from each of those four defendants to authorise the seventh defendant, Mrs Martin, to distribute any share of the gift as she thinks fit. While that may be a desirable precaution, it does not determine the entitlement to the gift as provided by the will. The persons comprising the class of Dianne Hogan/Martin and family must be members of that class as existing at the date of death and so the class is readily identifiable as the four defendants already mentioned.

199 The identity of these beneficiaries must be determine by construing the reference to the donees in context. Hence a reference to Dianne Hogan/Martin and family connotes some limitation in the word 'family' distinguishing it in this setting from a wider meaning of 'family'. I consider that in this setting the reference to 'family' means the immediate family of Dianne Martin, including her husband and children. Generally speaking, a reference of a gift to 'relations' or to 'family' is construed as a reference to relatives who would take under present intestacy laws see Re Brigden [1938] Ch 205. This must be regarded only as an indicative guide, the true meaning of a description of a donee remaining to be ascertained from the context and relationship of a person or class of persons to the donor. However, in circumstances where the courts have considered gifts to family or to relations who have been identified by this approach, the relatives in question will ordinarily take (jointly or in equal shares per capita) - see Re Brigden and Re Gansloser's Will Trusts [1952] Ch 30.

200 Accordingly, I consider that in the context of this will the gift of $500,000 to Dianne Hogan/Martin and family means a gift of that amount to the seventh, twelfth, thirteenth and fourteenth defendants as tenants in common in equal shares. The answer to this question therefore is:

J1 To the seventh, twelfth, thirteenth and fourteenth defendants as tenants in common in equal shares.

201 The questions posed under this heading in the originating summons are:

(a) legacies; or

(b) a disposition of residue; or

(c) a combination of both?

202 This question has largely been addressed earlier in these reasons but I shall record the particular submissions made by the parties.

203 As already noted, the first defendant submits that the provisions of Attachment 3 have no effect. The second defendant submits that Attachment 3 is valid and effective but that the gifts of fixed amounts to the minor beneficiaries (meaning the fifth, sixth, seventh, eighth, ninth, tenth and eleventh defendants) are bequests of proportions of the net asset pool at the date of distribution of the estate in the same proportion as $3 million is to the value of the estate in Attachment 3 or, in other words, a series of gifts amounting in total to onetwelfth share of the net value of the estate available for distribution (onetwelfth equalling the proportion between $3 million and $36 million, which in turn is the sum of the approximate distributions envisaged by Attachment 3) to be shared among those defendants in the proportions signified by the specific amounts in Attachment 3. That is, one share of onesixth; five shares each of onetenth; and one share of onethird, each of onetwelfth of the divisible estate. In other words, the second defendant submits that the provisions for the fifth to the fourteenth defendants in Attachment 3 are not legacies in the amounts stated in that attachment but are gifts of shares in onetwelfth of the net value of the estate in the proportions which each amount bears to the amount of $3 million. The third defendant supports the second defendant's submissions.

204 The plaintiff's submits that the provisions of Attachment 3 dispose of the residue of the deceased's estate (after the specific gifts are made) and that the implied intention of the deceased was that if his residuary estate was worth $36 million at the date of death, then the fifth to fourteenth defendants would share in $3 million in the stated proportions.

205 The submissions on this issue also raise the question of whether or not there is a partial intestacy. Such a partial intestacy might arise because of the failure to include any specific reference to the Southbank apartment at Melbourne and also, according to the first defendant, because of the invalidity or inefficacy of Attachment 3. On this point, the position of the second and third defendants is that they contend that any assets not otherwise disposed of in the will are to be divided as to 35% to the first defendant, 30% to each of the second and third defendants, and 5% to the fourth defendant. The plaintiff and the second and third defendants submit that this is the effect of Attachment 3 and that Attachment 3 disposes of the estate of the deceased not otherwise dealt with by the will. The further submission of the plaintiff in this regard is that it does not strain the interpretation of the will to treat Attachment 3 as dealing with the whole of the deceased's estate except as specifically given in the will.

206 For reasons previously set out, I am satisfied that Attachment 3 is intended to have dispositive effect because, otherwise, despite the testator's declaration in cl 1.1 that it is his express wish that each of the first eleven defendants should benefit directly from his estate and that the specific amounts are detailed in Attachments 1 to 4 generally, if one were to disregard Attachment 3 there would be no provision for any of the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth or fourteenth defendants.

207 I have already singled out the incongruity which would result if just one of those defendants, the tenth defendant, Justin Warburton, were to be regarded as receiving no specific provision under the will despite the fact that he is noted in Attachment 3 as receiving $1 million. I have also earlier noted that those portions of Attachment 3 which indicate the approximate benefit to be received by the first, second, third and fourth defendants appear to be consistent or reconcilable with the effects of cl 2.5 of the will, taken in conjunction with other benefits payable to those beneficiaries, including the entitlement to cash at bank of the second and fourth defendants.

208 Taken in the entire context of the will, I consider the proper construction is that the specific amounts identified in Attachment 3 as payable to the fifth, sixth, seventh, eighth, ninth, tenth and eleventh defendants take effect as pecuniary legacies payable to each of those defendants. The provisions in Attachment 3 relating to the approximate value of the moneys divisible between the first, second, third and fourth defendants should be treated as the testator's estimate of the approximate benefit which each of those defendants will receive in distribution under the will by virtue of the operation of cl 2.4 and cl 2.5 taken in conjunction with other specific gifts in favour of the second, third and fourth defendants deriving from the gifts the estate interest in Mosman Park and the gifts of the cash at bank.

209 Again, as previously explained, I consider that in the context of this will it is clear that the testator intended to dispose of the whole of his estate and not to leave a partial intestacy. Consistently with the language of the testament, that result can be achieved by treating, as I think they should be treated, cl 2.4 and cl 2.5 of the will as constituting the disposition of all of the estate assets on hand at the date of death except for other gifts specifically mentioned in the will, including the Attachments. Within that excepted class is the interest in Mosman Park, and what I have termed the specific legacies payable to the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth defendants totalling the $3 million referred to in Attachment 3.

210 Accordingly, the answers to questions K1(a) to (c) in the originating summons should be as follows:

K1(a) The gifts in Attachment 3 of specific amounts totalling $3 million in the shares there set out to each of the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth defendants are specific legacies.

K1(b) The provisions in Attachment 3 of approximate amounts distributable to the first, second, third and fourth defendants are estimates of the aggregate amounts distributable to those defendants under the combined effects of cl 1.3, cl 2.5 and cl 2.6.4 of the will and disregarding the total of any weekly cash allowances paid to them under Attachment 2. To the extent that these estimates reflect entitlements under cl 2.5 of the will, they amount to dispositions of residue and, to the extent that they comprise dispositions to the second, third and fourth defendants under cl 1.3 and cl 2.6.4 of the will, they amount to specific bequests.

K1(c) It follows from the answers to questions K1(a) and 1(b) that the gifts in Attachment 3 constitute a combination of legacies, specific bequests and residuary bequests.

211 The question posed under this part of the originating summons is:

L1 Do the terms 'legal and accounting fees' mean and include administration costs?

212 The submission of the plaintiff is that by virtue of cl 2.2 in Attachment 2 to the will it is apparent that the deceased intended that legal and accounting fees payable to an executor who obtained a grant of probate and all reasonable legal and accounting fees required in the execution of his wishes contained in the testament should be paid. The first defendant submits that the term 'legal and accounting fees' includes:

(a) legal costs from the grant of probate, advice in relation to the administration and in relation to these proceedings;

(b) accounting fees, the capital gains calculations, advice in relation to the taxation issues of the estate and the preparation of all necessary taxation returns;

(c) administration costs for the administration of the estate to which the executor is entitled under s 98(5) of the Trustees Act 1962 all usual professional or business charges for business transacted, time expended and acts done by the executor or his firm in connection with the administration of the estate.

213 The second defendant submits that the term 'legal and accounting fees' means and includes reasonable administration costs and the third defendant agrees with the second defendant's submissions.

214 The starting point for a consideration of these submissions must be the rule that all proper expenses associated with the administration of the estate should be paid by the executor out of estate assets. In this case, provision is made by Attachment 2 for such expenses to be met by the proceeds from the sale of the share portfolio but, for reasons already given and questions already answered, that is subject to the power of the executor under s 10(1) of the Administration Act to resort to other assets if and when necessary but to make corresponding adjustments in distribution by marshalling to ensure that the costs of administration and other expenses are charged first against entitlements of those beneficiaries who are to share in the distribution of the net proceeds of the share portfolio.

215 The real practical significance in the provisions relating to the payment of legal and accounting fees is to permit a professional executor to charge proper professional fees for the work which she does in the course of administration in addition to any other entitlement to trustees' remuneration by way of commission which may be payable to her under s 98 of the Trustees Act. Were it not for such a provision or for s 98(5) of the Trustees Act, a professional trustee or her firm would be precluded from charging fees for professional advice or services rendered in the course of administration.

216 I consider that the answer to be given to this question should be that the costs of administration expenses of this estate may include legal fees incurred by the executor and accounting fees charged by her or her firm in proper amounts for work done and professional services rendered in or in connection with the administration of the estate.

217 This lengthy analysis completes the treatment of the issues arising from the questions posed on this originating summons. The answers given to each question are repeated separately in Appendix C in order to facilitate the making of final orders and declarations upon entry of judgment. However, the answers given are to be read in the light of these reasons for decision.

Fourteenth defendant - absence of guardian ad litem

218 I now repeat the observations contained in [15] and [16] above that, because of the infancy of the fourteenth defendant and the absence of any guardian ad litem appointed to represent his interests, these orders and declarations will not be binding upon him. In this respect, I have earlier indicated that I propose to direct that the plaintiff apply for the appointment of a suitable guardian ad litem for the fourteenth defendant and, upon such a guardian being appointed, this matter be relisted for directions as to whether, and if so how, the proceedings should continue against the fourteenth defendant so represented.

219 I propose to distribute these reasons on a confidential basis to the solicitors for the parties who were represented at the hearing in advance of the formal delivery of reasons so that, when the originating summons is listed for judgment, counsel will be in a position to move for orders in accordance with the answers proposed by these reasons. There will, of course, then be an opportunity for counsel to be heard as to the particular terms of orders or declarations which should formally be pronounced.

1. This Will or Note of Jeffrey Charles Hogan, now of 17 Colonial Gardens,

Mosman Park, takes place and precedence over my will (hand written 26 March

1.1 It is my express wish that only the immediate members of my family in:

Benefit directly from my Estate which includes personal affects and company

Assets. Specific amounts are detailed in Attachments 1 to 4 generally.

1.2 Generally, the property at 17 Colonial Gardens, Mosman Park, Western Australia,

Australia, 6162 owned 50% by myself and 50% by Kerry Janeane Warburton as tenants in common.

1.3 My wish is that my share 50% be passed on in cash to my children, Anita Lee Hogan and Joshua Kane Hogan, within 12 months of my death - others are generally gifted as detailed in the Attachments.

2.1 I would appoint Anthony John Deacon of Twin Branch Drive, Leeming as Executor of my Will and Helen O'Brien of RSM Bird Cameron as CoExecutor on an independent basis.

2.2 Equal legal and accounting fees are to be paid to Anthony Deacon and RSM Bird Cameron for their time in carrying out my wishes.

2.3 Kerry Janeane Warburton retains her 50% of 17 Colonial Gardens.

50% 17 Colonial Gardens, Mosman Park (my share) $3 M

• Property
• Balance Sheet Equity
• Other business assets
• 65% of Spliceline
• 65% of Tripower

2.5 The assets detailed in Clause 2.4 are to be realised / sold at market value and the cash or assets divided up as follows:

2.6.1 Kerry Warburton remains in 17 Colonial Gardens.

2.6.2 Margaret and Ken Hogan remain in 1 Barnes Way, Success.

2.6.3 The assets are sold / cashed in and all debt including banks, mortgages, creditors, is paid

2.6.4 Personal effects are to be divided as follows:

Antiques / Office Including All Artefacts Joshua Kane Hogan 100%

Safe Deposit Box Contents Kerry Janeane Warburton 35%

Vehicles All are to be sold at market Anita Lee Hogan 50%

Clothing / At the sole discretion of Anita Anita Lee Hogan 100%

_______________________________ ____________________________________

________________________________ ____________________________________

Address: _____________________________________________________________

Occupation: ____________________________________________________________

This is a note of Attachment to the Last Will and Testament of Jeffrey Charles Hogan (being Attachment 1).

Jeffrey Johnson or any other Positron Group Employee (Except Kerry Janeane Warburton) has no control of or access to or is any way a beneficiary of my Estate.

Rhonda Hogan (my Ex-Wife) has no claim or right to any of my Estate.

The cash flows of my Estate are to be controlled in such a way that the immediate living standards of:

• Kerry Janeane Warburton
• Anita Lee Hogan
• Joshua Kane Hogan
• Anai Taylor Smedley Hogan
• Ken and Margaret Hogan

Are not changed until after my Estate has been settled.

This is a note of Attachment to the last Will and Testament of Jeffrey Charles Hogan (being Attachment 2).

An immediate share sale is to be made of my Portfolio via Paterson Securities, Mr Jon Young will provide cash for:

• Funeral and all expense and travelling cost of my immediate family
• Pay all personal loans, being property, vehicle, investment.
• Pay all reasonable legal and accounting fees required in the Execution of the wishes of my last will and testament to be paid to Anthon Deacon and RSM Bird Cameron.
• Provide a weekly cash allowance to:

This is a note of Attachment to the Last Will and Testament of Jeffrey Charles Hogan (being Attachment 3).

I estimate that at the time of writing this document, being my last will and testament, my worth is $38 million, less $3.5 million in personal loans of which Kerry Janeane Warburton is responsible for $1.5 million and approximately $36 million (+/-) being the businesses final position, totalling $76 million.

It is my wish that these monies (approximate only) be divided as follows:

Plus her 50% share of 17 Colonial Gardens, Mosman Park

This is a note of Attachment to the Last Will and Testament of Jeffrey Charles Hogan (being

1 Pro Hart Miners Camp In Front of Pond Anai Taylor Hogan Smedley

Proposed orders and declarations in answer to questions posed by originating summons

This court does now order, declare and adjudge that the questions in the originating summons should be answered as follows:

A1 Does the Will preclude the Plaintiff (the Executor) from postponing sale under section 27(1)(c) of the Trustees Act:

A2 Does the Will preclude the Plaintiff from making any in specie appropriations of shares or other estate assets?

A3 If the Plaintiff may make in specie appropriations, at what date is the value of the property to be determined for that purpose?

A3 The date or dates of each appropriation or distribution

Question B: Estate's Half Share Interest in the Property at 17 Colonial Gardens, Mosman Park ('The Mosman Park Property')

B1 Does the Will give the First Defendant (the Deceased's de facto wife) a right of occupation of the Mosman Park property?

B2 If so what is the nature and extent of that right?

B3 If so what are the respective obligations of the estate and the First Defendant in relation to outgoings on the Mosman Park property?

B4 In what proportions do the proceeds of sale of the Mosman Park property pass to the First Defendant, the Second Defendant (the Deceased's daughter), the Third Defendant (the Deceased's son) and Fourth Defendant (the Deceased's granddaughter) under the Will?

B2 A right to continue to reside in the Mosman Park property unless and until the first defendant ceases to live there as her permanent home or until the administration of the estate of the deceased has been completed to the point at which a sale or realisation in the estate interest in Mosman Park should occur, whichever first happens.

B3 During the continuation by the first defendant of the right of occupancy of Mosman Park she should pay all outgoings of a recurrent nature associated with the occupation of the property including, but not necessarily limited to, rates, taxes, water rates and charges for services, including electricity, gas, water and telephone and meet any recurrent expenditure for regular maintenance or repairs of a noncapital nature. During this period the estate should be responsible for insurance and any capital expenditure, repairs or alterations of a capital nature and insurance against fire and other usual risks. Upon the termination of the first defendant's right of occupancy and until sale of Mosman Park, the estate and the first defendant will be equally responsible for all expenditure and outgoings on the property both of a capital and recurrent nature.

B4 Upon the sale or realisation of the deceased's interests in the Mosman Park property (whether occurring simultaneously with the sale of the first defendant's interest in that property or not) the net proceeds of sale deriving from the estate share in the property will be distributable between the second and third defendants equally.

Question C: 1 Barnes Way, Success ('the Success Property')

C1 Is the Fifth Defendant (the Deceased's mother) given a right of occupation of the Success Property?

C2 If so what is the nature and extent of that right?

C3 If so what are the respective obligations of the estate and the Fifth Defendant in relation to outgoings on the Success Property?

C4 In what proportions does the proceeds of sale of the Success Property pass to the first, Second, Third and Fourth Defendants under the Will?

C2 The nature and extent of the right of a personal occupation is for the fifth defendant to reside in the Success property for as long as she wishes as her permanent home. Upon vacation of the property or upon it being ceased to be used by the fifth defendant as her personal home, the right of occupation terminates.

C3 The estate of the deceased should meet all outgoings of a capital nature associated with the Success property during the period of occupation by the fifth defendant but the fifth defendant should meet occupational expenses such as the cost of rates, water rates, land tax, if any, and outgoings associated with occupation such as charges for services including electricity, gas, water and telephone. Insurance against fire and associated risks should be an estate expense. Similarly, expenditure for capital works, improvements or repairs should be met by the estate but expenditure for minor repairs and maintenance not of a capital nature should be met by the fifth defendant. From the date when the fifth defendant vacates the Success property, all expenses and outgoings thereafter accruing should be met by the estate.

C4 The proceeds from the sale of the Success property should be distributed in the shares specified in cl 2.5 of the will between the following beneficiaries in the following shares:

D1 Is the Paterson Securities Portfolio charged with payment of all expenses and debts including funeral and testamentary expenses, debts, loans and all administration costs?

D2 Is the Plaintiff obligated to liquidate the whole of the Paterson Securities Portfolio?

D3 If the Paterson Securities Portfolio is insufficient for meeting the debts with which it is charged, from what part of the estate are expenses and debts to be met?

References in this question to the 'Paterson Securities Portfolio' proceed on an unfounded basis. The references in the will of the deceased to 'my share portfolio' (cl 2.4) and 'my Portfolio' (in Attachment 2) upon the proper construction of these terms in the will as a whole are references to all shares held by the deceased at the date of death and not merely to those shareholdings which were then CHESS sponsored through Patersons Securities Ltd. The following answers to these questions proceed on the basis of this wider meaning of the term 'share portfolio'.

D1 The provisions in the will directing that the designated debts and expenses should be paid from the proceeds of the deceased's share portfolio do not constitute any charge by way of security over the share portfolio or any other asset of the estate but, rather, constitute a direction as to which assets of the estate should ultimately bear the cost of those debts and expenses and, consequently, which bequests in the will should ultimately bear the cost of those expenses.

The will contains a direction that the executor should resort first to the proceeds of sale of the share portfolio for the payment of all expenses, including funeral and testamentary expenses, debts, loans and all administration costs and the weekly advances provided by Attachment 2. This direction does not inhibit or restrict the executor from resorting to the realisation of any other estate assets for the payment of debts, liabilities, administration expenses or other outgoings payable in the course of administration available to the executor by s 10 of the Administration Act. In the event that the aggregate of those expenses does not exceed the net proceeds eventually realised from the sale of the deceased's share portfolio, when it comes to the ultimate distribution of the assets, the distribution should be marshalled to ensure that those debts, and expenses are met from funds which would otherwise be payable to the beneficiaries entitled in distribution to the sale proceeds of the share portfolio and that other specific devises, legacies and bequests in the will are not reduced by reason of that expenditure. In the event that the proceeds of the sale of the deceased's share portfolio are not sufficient to meet all the said expenses then, after resorting to such other asset or assets at her discretion as is necessary to satisfy those expenses, the executor should marshal distributions in such a way as to ensure that these expenses are debited against distributions payable to the beneficiaries of the residuary estate of the deceased.

D2 Not for the purpose of meeting the designated expenditure although, subject to the power to distribute in specie or to appropriate particular assets in satisfaction of entitlements of particular beneficiaries, the eventual sale and realisation of the whole of the deceased's share portfolio will be required to complete the course of administration.

D3 Expenses and debts of the estate in the course of administration may be met by the executor from any part of the estate assets at the executor's discretion. If such debts and expenses are met from assets of the estate other than the proceeds of sale of the deceased's share portfolio or, in the event that these proceeds are insufficient to meet all debts and expenses and the executor has to resort to other assets to meet them, then on eventual distribution all such costs and expenses shall be applied first in reduction of the benefits payable under the will to the beneficiaries entitled in distribution to the proceeds of sale of the share portfolio and, in the event that the proceeds of that share portfolio are insufficient to meet all debts and expenses, the extra debts and expenses should be debited pro rata against the benefits payable to the residuary beneficiaries, that is, the beneficiaries named in cl 2.5.

E1 Are the weekly cash allowances to be paid by the Plaintiff in terms of Attachment 2?

E2 If so, what are the terms on which the cash allowances are to be paid and are the cash allowances to be brought into account in the distribution of the estate?

E1 The weekly cash allowances referred to in Attachment 2 should be paid by the executor to each of the beneficiaries named in Attachment 2 in the amounts there provided.

E2 The weekly cash allowances are to be paid to each person entitled without deduction and are not to be brought to account in reduction of any other benefits payable to any of those beneficiaries under other provisions of the will.

1. Are the values of the paintings specified in Attachment 4 of the Will to be brought into account in the distribution, or are the gifts of the paintings specific bequests and the values immaterial to the distribution?

1. The dispositions of the artworks referred to in Attachment 4 of the will are specific bequests to those named beneficiaries which are not to be brought to account by any of those beneficiaries in reduction of other distributions due to any of them under other provisions of the will. Furthermore, so far as there are certain other artworks owned by the deceased and forming part of the estate not specifically mentioned in Attachment 4, the implicit intention of the testator is that the beneficiaries named in Attachment 4 should receive all artworks belonging to the deceased at time of his death.

1. Is the gift of cash at bank in clause 2.6.4 a specific legacy in addition to any other benefits the Second Defendant and the Fourth Defendant receive under the Will?

H1 Does "all expenses and travelling costs" refer to the costs of travel to the Deceased'sfuneral?

H2 Does "all expenses and travelling costs" include:

H3 Who falls within the description of "immediate family"?

I1 Is "Dianne Hogan/Martin" referred to in Attachment 3, the Seventh Defendant (the Deceased's sister)?

I2 Is "Margaret Denise Hogan" referred to in clause 1.1, the Seventh Defendant?

1. To whom is the gift in Attachment 3 described as "Diane Hogan/Martin & Family" to pass and in what proportions?

1. The gift of $500,000 in Attachment 3 described as being to "Dianne Hogan/Martin & Family" is a gift of that amount to the seventh, twelfth, thirteenth and fourteenth defendants as tenants in common in equal shares.

K1(a) The gifts in Attachment 3 of specific amounts totalling $3 million in the proportions there set out to each of the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth defendants are specific legacies.

K1(b) The provisions in Attachment 3 of approximate amounts distributable to the first, second, third and fourth defendants are estimates by the testator of the aggregate amounts distributable to those defendants under the combined effects of cl 1.3, cl 2.5 and cl 2.6.4 of the will disregarding the total of any weekly cash allowances paid to them under Attachment 2. To the extent that these estimates reflect entitlements under cl 2.5 of the will, they amount to dispositions of residue and to the extent that they comprise dispositions to the second, third and fourth defendants under cl 1.3 and cl 2.6.4 of the will, they amount to specific bequests.

K1(c) The gifts in Attachment 3 constitute a combination of legacies, specific bequests and residuary bequests.

1. Do the terms "legal and accounting fees" mean and include administration costs?

1. The costs of administration expenses of this estate include legal fees properly incurred by the executor and accounting fees properly charged by her or her firm for work done and professional services rendered in or in connection with the administration of the estate but are not limited only to those expenses.

Within a time to be fixed by the court, the plaintiff do apply for the appointment of a suitable guardian ad litem for the infant fourteenth defendant and, upon such a guardian being appointed, the originating summons shall be relisted for directions as to whether and, if so, how the proceedings should continue against the fourteenth defendant so represented.