Hyde v Holland

IN THE SUPREME COURT OF NEW SOUTH WALES PROBATE DIVISION

110698/01 PATRICIA HYDE & ANOR V VINCENT JOSEPH HOLLAND BY HIS TUTOR, THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES & ANOR JUDGMENT (Revised 12 August 2003) 1 HIS HONOUR: Thomas Simon Holland died on 23 March 1999. His sole surviving brother is Vincent Joseph Holland. For convenience and without intending any disrespect, I shall refer to them as Thomas and Vincent. 2 By his last will made on 25 May 1992, Thomas appointed the plaintiffs his executors and trustees, and after several specific bequests (including a gift of $2,000 to Vincent "for his own use absolutely"), he disposed of the residue of his estate as follows: "7. I GIVE the rest and residue of my estate of whatsoever kind and nature and wheresoever situate to my Trustees upon trust to hold the same for my brother the said VINCENT JOSEPH HOLLAND , on the condition that my said brother has attended Alcoholics Anonymous and complied with their requirements concerning sobriety for a period of not less than two (2) years. A letter from a recognised official of Alcoholics Anonymous of such compliance shall be sufficient evidence for my Trustees to then distribute the residue of my estate to my brother." 3 Probate of that will was granted to the plaintiffs on 16 February 2000. The estate, valued for probate purposes at $792,879.94 (now over $1.1 million), has been fully administered, legacies have been paid, and residue has been ascertained. I note in passing that the value of the estate includes the value of some shares which, having regard to my decision in Howell v Hyde [2003] NSWSC 732, should now be excluded from the estate. 4 The executors commenced the present proceeding, originally cast as a summons for judicial advice, on 16 September 2001. By their amended summons, the executors seek answers to four questions, as follows: "1. A determination as to whether in the events which have occurred, paragraph 7 of the last will and testament of Thomas Simon Holland, made 25 May 1992, who died 23 March 1999, creates: (a) a valid condition precedent or (b) a valid condition subsequent. 2. If the answer to either part of (1) is yes, has the said Vincent Joseph Holland satisfied the condition? 3. If the answer to (2) is yes, what is the interest of the said Vincent Joseph Holland in the gift? 4. If the answer to (1) or (2) is no, who is entitled to take the gift, and in what share(s)?" 5 There are two defendants. The first defendant is Vincent, by his tutor the Protective Commissioner. Vincent is now aged 81, and the Protective Commissioner has been managing his affairs since 3 May 2002, pursuant to the Court's order of that date. He lives in a nursing home. As at July 2001, he received $797.13 per fortnight by way of pensions and superannuation payments and paid $428.44 per fortnight to the nursing home for fees and other incidentals. He had assets of $64,000 (mainly invested in the Commonwealth Investment Income Fund) as well as his personal belongings. There is no evidence that there has been any significant change from that time until the present. 6 Vincent is one of Thomas' seven next of kin. The other next of kin are the children of Francis and Greg, deceased brothers of Thomas and Vincent. The second defendant, Paulene Hertslet, is a daughter of Francis Holland. She was joined as a defendant to represent the next of kin. 7 Vincent contends that clause 7 of the will creates a valid condition precedent, and he says he has satisfied or substantially satisfied that condition on the facts, and consequently he is entitled to the residue of the estate. The next of kin say that either clause 7 creates a condition precedent invalid for uncertainty, or it creates a valid condition precedent which has not and cannot now be satisfied, with the consequence in either case that the gift of residue fails and the next of kin take on intestacy. 8 Vincent and the next of kin are the true protagonists. Counsel for the plaintiffs informed the Court at the conclusion of the hearing that his clients, acting as executors, would not put forward a position, since one of the executors is a member of the class of next of kin, and his clients were then satisfied that the defendants had placed all relevant and appropriate matters before the Court. Facts 9 Vincent was the youngest of seven children. His father died when he was 12 years of age. After his father's death his mother moved to Sydney for a few years but had to leave because of severe asthma. This meant that Vincent lived in Sydney with his brother, Thomas, and went to school here. He went to work at the railways after leaving school, and he worked for the railways both before and after the Second World War, until he lost his job in 1962 at the age of 40. He joined the army in 1941, and became a paratrooper and also served in Japan with the Occupation Forces following the war. 10 Paulene Hertslet gave evidence that, along with other members of the family, she observed over the years that Vincent drank alcohol to excess. She said she believed his experiences during the war led him to drink too much. At family gatherings he would ask if anyone wanted to go with him to the pub, and he would go alone if no one wanted to accompany him. Paulene said her father told her that Vincent lost his job after he shunted a train up the wrong track, and had been found drinking at work on several occasions. 11 In 1964 Vincent moved to Albury to live in a house belonging to Thomas, and did not work again. After a while he went to Wagga Wagga and in 1973 he was living in a St Vincent de Paul hostel for homeless persons. The manager of the hostel arranged for his admission to a nursing home at Narrandera. His brothers, Thomas and Pat Holland, acted as Vincent's "guardians", helping him with his affairs. Members of the family feared that if Vincent left the nursing home he would be unable to control his drinking, and would go back to living on the streets. The evidence satisfies me that Thomas was well aware of Vincent's alcoholism at the time he made his will in 1992. 12 Ann Bodkin, Director of Nursing at the Narrandera Nursing Home, gave evidence that Vincent was admitted to the nursing home in October 1994, having previously lived at the Edel Quinn Shelter in Wagga Wagga. When admitted, he received medication to treat his alcoholism, which he took in reducing quantities until approximately November 1996 when the treatment ceased. Since then he has neither required nor received any treatment for alcoholism. Ms Bodkin said that Vincent has always declined to join a group of residents of the nursing home who have an alcoholic beverage each afternoon. She said that, on the basis of her perusal of the records of the nursing home, and her own observations from the time when she commenced employment there in 1996, she was unaware of Vincent having consumed any alcohol in the nursing home, except for one light beer on Christmas Day 2001. 13 Dr Sid Williams is a medical practitioner with a particular interest and expertise in the psychological disorders of old age, including illnesses causing dementia. He visits the Narrandera area once every three months as Visiting Medical Officer in Psychogeriatrics. At the request of the plaintiffs' solicitors, he prepared a report about Vincent dated 28 June 2001. 14 Dr Williams had a consultation with Vincent at the nursing home on 1 December 2000. He reported that on formal assessment of cognitive function, Vincent exhibited definite impairment, consistent with alcohol-related brain damage. Shortly before the consultation, a mini-mental state examination had been carried out and the result was abnormal. Dr Williams observed repetitiveness, faulty logic and unreliable memory, as well as significant difficulties in "frontal" skills. 15 Dr Williams gave a summary of his discussion with Vincent, from which it is evident that Vincent's conversation was rambling and disconnected. When Dr Williams told him about the will and asked him what he might do with the money, he said he would go to America to visit cousins, and then live in Wagga, either in private lodging, if he could find it, or in the hostel. When Dr Williams asked him whether he would drink again if he moved back to Wagga, he answered, without hesitation, "yes". 16 Dr Williams' report contains the following: "11. I asked him about Alcoholics Anonymous. He said a chap took him there and two or three days later he saw in the paper that 'this chap was up for DUI'. Mr Holland said he didn't attend again." 17 Dr Williams concluded his report as follows: "14. Mr Holland is not drinking alcohol now and has not done so since admission to the Narrandera Nursing Home five years ago. However he has not attended Alcoholics Anonymous and it is not possible to provide a certificate from AA about his sobriety. He has not been drinking because the opportunity has not presented itself. It is my strong impression that, given an opportunity he would not hesitate to drink again. My confidence in asserting this is based on my assessment of the cognitive and behavioural deficits present as a result of Alcohol Related Brain Damage. Although superficially he may appear reasonably intact, this is only because he is living in a very structured care environment. In that environment he is not placed in a situation which would test his 'skills for living' as an autonomous individual: his judgment, his ability to choose among possibilities, to detect errors in judgment and behaviour and to correct them in his best interest. He will continue to need supervision and care for the rest of his life, without which he will return to uncontrolled drinking and other self-damaging behaviours. I am also sure he could not manage his own financial affairs alone - if left to do so he would be vulnerable to financial abuse." 18 For reasons I shall explain, it is important to Vincent's case to establish that he attended Alcoholics Anonymous on at least one occasion before the Thomas' death in 1999. Counsel for Vincent relied on paragraph 11 of Dr Williams' report as evidence showing that this was so. It contains a categorical statement attributed to Vincent that someone took him to Alcoholics Anonymous but he did not attend again. If I accepted that evidence, I would be prepared to infer that the event occurred prior to March 1999 when Thomas died, although it would be impossible to say (if this be relevant) whether the event occurred before or after Thomas made his will in 1992. 19 However, my opinion is that this evidence is so unsafe that it cannot be treated as establishing, on the balance of probabilities, that Vincent ever attended premises of Alcoholics Anonymous, or a meeting or function organised by that body. It is clear from Dr Williams' report that Vincent's conversation was rambling, affected by faulty logic and unreliable memory, and by overall impairment of his cognitive function because of alcohol-related brain damage. Although Dr Williams reported Vincent's statement in paragraph 11, he said in the conclusion of his report that Vincent had not attended Alcoholics Anonymous. 20 Paulene Hertslet gave affidavit evidence as follows: "Because of my family home and business commitments, it was not until Tom died that I visited Vince in Narrandera. My sister Patricia Hyde and I went to see Vince after Tom's funeral. We showed him a copy of Tom's will and explained the provisions of it to him. Vince said, 'There is no way I'd join AA.' He then told us a rambling story that Tom had tried to 'Get him to join AA and sent [someone's name who I cannot recall] to see me at the pub. He stayed there drinking and I saw in the paper that he'd got picked up for DUI. His missus told me he shouldn't drive when he was drinking' or words to that effect. He also told me at that time words to the effect: 'AA's no good. It's a waste of time and I wouldn't go.' He repeated this or words to that effect several times to me on this visit." 21 While I cannot, on the evidence, conclude that Vincent's statements to Paulene Hertslet referred to the same incident as he described to Dr Williams, Paulene's account tends further to undermine the statement in paragraph 11 of Dr Williams' report. There is sufficient similarity between the two accounts (especially in that, in both cases, the emissary was charged with "DUI", presumably a charge of driving under the influence of alcohol) to make it doubtful that they are referring to different events, and there is the notable discrepancy that in one account the emissary took Vincent to Alcoholics Anonymous, while in the other they met in the pub. 22 My conclusion is that there is no evidence adequate to establish, on the balance of probabilities, that Vincent has ever attended an Alcoholics Anonymous meeting or function or premises occupied by Alcoholics Anonymous. 23 Clause 7 of the will refers to the requirements of Alcoholics Anonymous concerning sobriety. The plaintiffs' solicitor contacted Alcoholics Anonymous in Sydney in August 2003 and spoke to a person called Richard Lee. He asked Mr Lee, "What are the requirements of Alcoholics Anonymous?" Mr Lee replied, "The only requirement for membership of Alcoholics Anonymous is a desire to stop drinking alcohol." The solicitor asked Mr Lee, "Is there any requirement to attend meetings?" Mr Lee replied, "No, only the desire to stop drinking." Unfortunately I can derive no assistance from this evidence, because the representative of Alcoholics Anonymous appears to have directed his mind to the criteria for membership, rather than to the requirements of Alcoholics Anonymous concerning sobriety. Principles of construction 24 The Court's task in construing a will was well described by Blackburn J in Allgood v Blake (1873) 8 LR Ex 160, at 162-4. His Lordship said: "A general rule is that in construing a Will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the Will, and then to decide what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words…. No doubt in many cases the testator has for the moment forgotten or overlooked material facts and circumstances which he well knew. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the Court is to construe the Will as made by the testator, not to make a Will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has, by blunder, expressed what he did not mean…. We apprehend that no precise line can be drawn, but that the Court must, in each case, apply the admitted rules to the case in hand; not deviating from the literal sense of the words without sufficient reason, or more than is justified; yet not adhering slavishly to them, when to do so would obviously defeat the intention which may be collected from the whole Will." 25 A court of construction cannot omit or insert words, and will not admit evidence showing that different words were intended to be used in the will: Tatham v Huxtable (1950) 81 CLR 639, at 645, 651. Words are usually given their ordinary grammatical meaning, but this depends on the context: Towns v Wentworth (1858) 11 Moo PC 526 [14 ER 794]; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327. 26 Pursuant to the principle of construction sometimes called the "armchair" principle, extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator's situation at the time of the will and the context in which he expressed his testamentary intention: Boyes v Cook (1880) 14 Ch D 53, at 56; Day v Collins [1925] NZLR 280; Harris v Ashdown (1985) 3 NSWLR 193. 27 Counsel for both defendants referred me to the well-known presumption against an intestacy, by which a court will lean against finding an intestacy and will not presume that the testator meant to die partially intestate if, on a fair construction, there is reason for saying the contrary: Fell v Fell (1922) 31 CLR 268, at 275-6; Kirby-Smith v Parnell [1903] 1 Ch 483, 489-490. Consequently the Court will lean to avoid the finding that a gift is uncertain and void, and where there is only a slight reason to favour one ambiguous construction over another, the Court will do so if that construction avoids intestacy, on the basis that it is closer to the testator's intention than intestacy: Re Ansell; Wardlaw v Ekblade [1947] Tas SR 36; Gerhardy v South Australian Auxiliary to British and Foreign Bible Society Inc (1982) 30 SASR 12, at 26. 28 However, the presumption against intestacy is not a strong presumption, and the Court should not "lean too heavily against a construction that produces an intestacy; and certainly cannot, in order to avoid that result, misconstrue the language of the instrument": Re Wragg Dec'd [1959] 1 WLR 922, at 929 per Lord Evershed MR; Marks v Pope [2001] NSWSC 105 (5 March 2001), paragraph [17] per Young J. In Re Wragg a professionally drafted will provided that the trustees were to hold the estate on trust to pay a weekly sum to the widow, and another weekly sum to the deceased's brother, and "after the death of" the widow, and after setting aside a sufficient part of the estate to pay the brother's annuity, to divide the residuary estate into seven parts. Although Lord Evershed acknowledged a "natural inclination against a result that means that the draftsman left a lacuna in his draft", the Court held that, on the proper construction of the will, the surplus income was not disposed of during the wife's life. Construction of clause 7 29 In my opinion clause 7 of the will created a condition precedent to the vesting of the gift. It was not a condition subsequent to vesting, intended to put an end to a vested gift in the stated circumstances. None of the parties submitted otherwise. The condition is expressed in the past tense, requiring that Vincent "has attended … and complied". It is expressed in positive rather than negative terms, and the particular language used is more suitable for a condition which is to be complied with before vesting, than a condition prescribing events which will cause forfeiture of the gift. It is a condition which involves something in the nature of consideration, though admittedly past consideration: compare Acherley v Vernon (1725) Willes 153 [125 ER 1106]; Miller v Miller (1995) 16 ACSR 73. 30 Some cases indicate that the Court will prefer to construe a condition on vesting as a condition subsequent rather than a condition precedent, where the language of the will leaves the testator's intention in doubt, because the law favours early vesting (Theobald on Wills, 14 ed (1982), at 623). That may not be entirely consistent with the presumption against intestacy to which I have referred, given the different tests of certainty for conditions subsequent and precedent. In any event, as Windeyer J observed in Watson v Watson [1999] NSWSC 325 (14 April 1999), at paragraph [11], "all writers agree that it is necessary to establish the intention of the testator as indicated by the words of the will". I regard the words of this will as relatively clear on this issue. 31 Upon my reading of the clause (discussed below), fulfilment of the condition is to be determined as at the date of death, and so treatment of the condition as a condition precedent does not give rise to a lapse of time between the testator's death and vesting. The absence of a gift over upon failure of the condition is immaterial when, as here, the words are clear. 32 A will speaks and takes effect as if it had been made immediately before the death of the testator, unless the contrary intention appears by the will: Wills, Probate and Administration Act 1898 (NSW), s 21. The natural meaning of the words "has attended … and complied with", spoken at the date of the deceased's death, is that one looks to the past to ascertain whether the condition has been satisfied. If the deceased wished to impose a condition concerning Vincent's future conduct, one would have expected prospective language to be used, such as "attends … and complies with … before taking the benefit of this gift". A condition referring to past events is not irrational. It is plausible to say that Thomas intended, by prescribing this condition, to impose a test (admittedly not a precise one) of Vincent's suitability to receive and manage his estate, having regard to his known drinking problem. 33 Counsel for Vincent submitted that clause 7 imposes two separate and cumulative conditions. On this construction, the first condition is that, prior to the deceased's death, Vincent has attended Alcoholics Anonymous. The second condition is that, prior to the deceased's death, Vincent has complied with the requirements of Alcoholics Anonymous concerning sobriety for a period of not less than two years. This submission was coupled with the submission, rejected above, that there is evidence that Vincent attended Alcoholics Anonymous on one occasion. 34 I reject this construction of clause 7. In my opinion clause 7 imposes a single condition, satisfaction of which is to be assessed over a period of two years. The absence of a comma after "has attended Alcoholics Anonymous" suggests that this requirement is to be governed by the words "for a period of not less than two (2) years". The reference to "their" requirements suggests that two parts of the condition are to be read together. To stipulate that Vincent must have attended Alcoholics Anonymous on a single occasion at any time prior to the deceased's death would be irrational and not referable to any comprehensible testamentary intention. 35 Counsel for the next of kin sought to rely on the last sentence of clause 7, submitting that the condition could not be satisfied in the absence of a letter from a recognised official of Alcoholics Anonymous certifying to compliance with their requirements concerning sobriety. I disagree with that submission. Provision of such a letter from Alcoholics Anonymous is not part of the requirements of the condition itself. The last sentence of clause 7 is an evidentiary provision, setting out a sufficient, but not a necessary and sufficient, method of proving compliance with the condition stated in the previous sentence. Certainty 36 Counsel for the next of kin submitted that the condition is void for uncertainty. Clause 7 does not explain what is meant by "attending" Alcoholics Anonymous; it does not say how often or how regularly Vincent must have attended over the period of two years; it does not explain the requirements of Alcoholics Anonymous concerning sobriety or provide any basis for ascertaining what they are; it does not say when the period of two years must begin and end or whether it must be a continuous period. 37 The courts have developed different tests for ascertaining whether a condition precedent and a condition subsequent are void for uncertainty, the latter being stricter than the former: Blathwayt v Baron Cawley [1976] AC 397, at 424 (per Lord Wilberforce, dissenting but not on this point), and 429 (per Lord Cross of Chelsea). In the case of a condition subsequent, the test of certainty has been enunciated by the House of Lords and applied by their Lordships twice. The condition must be "such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine": Clavering v Ellison (1859) 7 HL Cas 707, 705 per Lord Cranworth; Clayton v Ramsden [1943] AC 320; Blathwayt v Baron Cawley. If the condition in the present case were a condition subsequent, it may well have failed to satisfy that test. 38 Counsel for Vincent submitted that the test for invalidity on the ground of uncertainty, in the case of a condition precedent, is found in Re Allen (dec'd) [1953] Ch 810. There a testator devised property to the eldest of the sons of his nephew "who shall be a member of the Church of England and an adherent to the doctrine of that Church". By majority, the English Court of Appeal held that the will created a condition precedent or qualification in sufficiently certain terms. Evershed MR referred to the test of certainty for a condition subsequent and said (at 817) that in the case of a condition precedent or qualification, no such general or academic test is called for: "All that the claiming devisee has to do is at the relevant date to establish, if he can, that he satisfies the condition or qualification whatever be the appropriate test. If the formula is such as to involve questions of degree (as, prima facie, is implicit in any requirement of 'adherence' or 'attachment' to a particular faith or creed), the uncertainty of the test contemplated may well invalidate the formula as a condition subsequent but will not, in my judgment, necessarily do so in the case of a condition precedent; for if the claimant be able to satisfy any, or at least any reasonable test, is he disentitled to the benefit of the gift?" 39 His Lordship then contemplated that a condition precedent that the devisee should at some relevant date be a tall man would be valid. Even though tallness is a matter of degree, a claimant who is six feet six inches tall could fairly be said to have satisfied the testator's requirement judged by any reasonable standard. He contrasted that example with a condition requiring the devisee to be "a pure blooded Englishman", words which would be incapable of any reasonably clear meaning or sensible definition at all (at 819). 40 Applying that test to the circumstances before the Court, he said (at 821) that "it would not be right to say that the appellant could not seek to establish as a matter of fact that Reginald Seymour Allen was, at whatever may be held to be the relevant date, an adherent to the doctrine of the Church", noting that the onus would be on the appellant to prove compliance with the condition. His Lordship found it unnecessary to attempt a full exposition of the meaning of the clause in the will, in the absence of the appellant's evidence. 41 Birkett LJ expressed similar views as to principle (esp at 827) and reached the same conclusion. Romer LJ, dissenting but applying what appears to be the same principle (see at 831), found that an inquiry whether any particular individual was or was not an adherent to the doctrine of the Church of England (but not an inquiry as to whether a particular individual was or was not a member of the Church) would be doomed to failure from the start, on the ground that it would not be possible to answer that question in regard to anyone at all (at 834). 42 The law concerning certainty of discretionary objects of a power has undergone substantial development and change since 1953, when Re Allen was decided: see, in particular, Re Gulbenkian's Settlement Trusts [1970] AC 508 and Re Baden's Deed Trusts [1971] AC 424. As a result of those decisions, if a dispositive power is vested in a trustee subject to a duty or a power (a trust power or a mere power) to exercise it by selecting from a class of objects, it must be possible to say of any given claimant that they are or are not within the class of objects. That is a stricter test than the test in Re Allen, which only requires that it be possible to say of some claimant or claimants that the condition precedent has or has not been satisfied. Even so, it appears that the test in Re Allen continues to apply as the standard of certainty for conditions precedent. 43 The decisions dealing with certainty of discretionary objects do not express or imply any analytical or doctrinal reason for rejecting the test for a condition precedent adopted and applied in Re Allen. The test, though liberal, is rational, for while a person who is liable to suffer a forfeiture must be able to understand precisely what will and will not have that consequence, a claimant to a gift subject to a condition precedent needs only to be able to show that he or she, at least, satisfies the condition, and it is immaterial that it might be difficult for the Court to answer hypothetical problems: Theobald on Wills, op cit at 628. Re Allen has been followed by decisions at first instance in England, including some decided after Re Baden: Re Tarnpolsk [1958] 1 WLR 1157; Re Selby's Will Trusts [1966] 1 WLR 43; Re Lysaght [1966] Ch 191; Re Lowry's Will Trusts [1967] Ch 638; Re Tuck's Settlement Trusts [1978] Ch 49. In Re St George (Dec'd) (1964) 80 WN (NSW) 1423, Jacobs J applied Re Allen to a testamentary gift on a condition precedent which excluded any grandchild brought up as a Roman Catholic who remained of that faith upon attaining the age of 21 years, holding that the condition was not invalid for uncertainty, though it was void as contrary to public policy (see also Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292 (3 April 2003)). 44 In the present case it is not difficult to envisage a claimant to the residuary gift who would be in a position to establish compliance with the condition in clause 7, whatever precisely it may mean. If the evidence were that Vincent had attended regular weekly meetings of Alcoholics Anonymous without fail, for the two years immediately preceding Thomas' death, and had consistently renounced alcohol and had not taken an alcoholic beverage during that time, I think it would be plain that Vincent would have satisfied the condition, however doubtful that conclusion might be in other hypothetical circumstances. His position, in that case, would be equivalent to the position of a man six feet six inches tall claiming to take a gift conditional upon being tall, or a claimant who is a bishop of the Church of England claiming a gift conditional upon being a member of that Church. The questions of degree involved in applying clause 7 in particular circumstances are not such as to make its application impossible, as it would be if the claimant were required to be, say, a pure blooded Australian. This is a case where Vincent should be permitted to establish, if he can, that he satisfies the condition. My conclusion, therefore, is that the condition in clause 7 is not void for uncertainty. 45 However, it is plain on the evidence, especially given my construction of the condition as imposing a single requirement assessed over a period of two years, that Vincent has failed to show, on the balance of probabilities, that he has satisfied the condition. 46 Counsel for Vincent submitted that his client had substantially complied with clause 7, and that this was sufficient, having regard to some observations of Evershed MR, [1953] 1 Ch 810 at 821. In that passage his Lordship referred to evidence that Mr RS Allen's mother was a Roman Catholic, and at one time he was also a member of the Roman Catholic Church. His Lordship said: "If so, proof that RS Allen had genuinely forsaken the Catholic Church for the Church of England might be held to amount to substantial compliance with the requirement and therefore to satisfy the qualification. It also seems to me that the required degree of 'adherence' would be that appropriate to a lay member of the Church rather than to a priest." 47 In my opinion Evershed MR was not saying, in the passage quoted, that the Court could excuse non-compliance with the requirements of a condition precedent if it were shown that the claimant's situation came close enough to compliance that it could be called "substantial compliance". In the absence of some statutory provision (and none has been relied upon here), a court of construction is not permitted to vary the testator's words in such a fashion. The point made by Evershed MR, who was dealing with a requirement the satisfaction of which turned on matters of degree, was that evidence of a certain kind, establishing substantial compliance with the requirement, would satisfy the qualification imposed by the testator's words. 48 Therefore, the Court is not in a position to say that, Vincent having shown that he did not take alcoholic beverages for five years before Thomas died, he has satisfied the condition because of "substantial compliance", notwithstanding his non-attendance at Alcoholics Anonymous at all (or, if it were factually true, on one occasion) during that period. Even if a "substantial compliance" approach were permitted, I would not regard the evidence as satisfying such a requirement in the present case. The condition in clause 7 is not merely a condition requiring sobriety or non-drinking for a period of two years; attendance at Alcoholics Anonymous is an integral part of the condition. Conclusion 49 My answers to the questions set out in the amended summons are as follows: 1. Yes, a valid condition precedent. 2. No. 3. Does not arise. 4. The next of kin, on intestacy. 50 I shall direct the plaintiffs to prepare draft short minutes of orders, and invite submissions on costs.

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