MATTER : Section 45 of the Administration Act 1903 (WA)

Will and Estate of JOHN HOMER late of Lot 7 Mount Shadforth Road, Denmark in the State of Western Australia, Social Worker, (Dec)

BETWEEN : KENNETH EPPS as Executor of the Estate of JOHN HOMER (Dec)

Wills - Proper interpretation of residuary clause in Will - Turns on own facts

Administration Act 1903 (WA), s 45

No ambiguity in Will - Intestacy as to residuary estate

Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family Trust (1997) 19 WAR 1

Hyde & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310

Mustard v Oikonomov, unreported; SCt of WA; Library No 980468; 19 August 1998

Allgood v Blake (1873) LR 8 Ex 160

Ashman v McHugh [2004] VSC 232

Baker v Baker [1858] EngR 480; (1858) 6 HL Cas 616

Brennan v Permanent Trustee Co of New South Wales Ltd [1945] HCA 17; (1945) 73 CLR 404

Burns Philp Hardware Pty Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642

Cinnamon v Public Trustee of Tasmania [1934] HCA 26; (1934) 51 CLR 403

Croker v Marquis of Hertford [1844] EngR 284; (1844) 4 Moo PCC 339

Crook v Hill (1871) LR 6 Ch App 311

Doe Bladwin v Rawding (1819) 2 B & Ald 441

Doe d Gwilliam v Gwilliam [1833] EngR 620; (1833) 5 B & Ad 122

Doe d Hiscocks v Hiscocks [1839] EngR 65; (1839) 151 ER 154

Elder v Timothy Laurence McComish as Executor of the Estate of Roland Daniel Cantwell (Dec) [2005] WASC 119

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268

Grey v Pearson [1857] EngR 335; (1857) 6 HL Cas 61

Harris v Ashdown (1985) 3 NSWLR 193

Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29

Hope v Potter [1857] EngR 377; (1857) 3 K & J 206

Hyde v Holland [2003] NSWSC 733

In re Allen [1933] SASR 122

In re Barrance [1910] 2 Ch 419

In re Benn; Benn v Benn (1885) 29 Ch D 839

In re Cook (decd) [1948] Ch 212

In re Croxon; Croxon v Ferriers [1904] 1 Ch 252

In re Doland's Will Trusts [1970] Ch 267

In re Edwards; Jones v Jones [1906] 1 Ch 570

In re Evans; Public Trustee v Evans [1920] 2 Ch 304

In re Freeman; Hope v Freeman [1910] 1 Ch 681

In re Govier (decd) [1950] P 237

In re Harrison; Turner v Hellard (1885) 30 Ch D 390

In re Hodgson; Nowell v Flannery [1936] Ch 203

In re Pringle; Baker v Matheson [1946] Ch 124

In re Rowland (decd); Smith v Russell [1963] Ch 1

In re Smalley; Smalley v Scotton [1929] 2 Ch 112

In the Goods of Hugo (1877) 2 PD 73

In the Matter of the Will of Arndt [1990] WAR 5

Inderwick v Tatchell [1903] AC 120

James Robert Thomas as Executor of the Will of Nancy Louise Wilson (Dec) v Strickland [2001] WASC 156

Josiak v Settler (1971) 16 DLR (3d) 490

Langston v Langston [1834] 2 Cl & Fin 134

Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60

Limpus v Arnold (1885) 15 QBD 300

Lutheran Church of Australia South Australia District Inc v Farmers Co­operative Executors and Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628

Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60­853

Marks v Pope [2001] NSWSC 105

National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207

Occleston v Fullalove (1874) LR 9 Ch App 147

Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153

Parker v Tootal [1865] EngR 248; (1865) 11 HL Cas 143

Pearce v Wright [1926] HCA 41; (1926) 39 CLR 16

Perpetual Trustee Co v Archbold (1946) 46 SR NSW 327

Perpetual Trustees WA Ltd (As Executor of the Estate of Eleanor Anne Seward (Dec)) v Riverwest Pty Ltd [2004] WASC 81

Re Cargill (1977) 79 DLR (3d) 726

Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85

Re Nash [1979] Qd R 219

Re O'Brien (1977) 77 DLR (3d) 397

Re Scott (decd); Public Trustee v Scott, Nichols & Bond [1965] WAR 112

Re Ward (Dec); Marsden v Ward, unreported; SCt of WA; Library No 980180; 9 April 1998

Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922

Roddy v Fitzgerald [1858] EngR 543; (1858) 6 HL Cas 823

Sayer v Sayer [1849] EngR 557; (1849) 7 Hare 377

Seale v Rawlins [1892] AC 342

Shore v Wilson (1842) 9 Cl & Fin 355

Simpson v Foxon [1907] P 54

South Sydney Council v Royal Botanic Gardens and Domain Trust [1999] NSWCA 478; (1999) 10 BPR 18,961

Sunflower Services Ltd v Unisys New Zealand Ltd [1997] 1 NZLR 385

Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639

The Public Trustee in and for the State of Western Australia v The Salvation Army (Western Australia) Property Trust, unreported; SCt of WA; Library No 9032; 5 September 1991

Towns v Wentworth [1858] EngR 371; (1858) 14 ER 794

Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326

1 MASTER SANDERSON: The making of home-made Wills can lead to problems. That statement is not a paid advertisement for the legal profession. It is a statement of fact. This case illustrates the point.

2 In September 1992, the deceased, Mr John Homer ("Mr Homer"), and his then wife, Mrs Shirley Ann Homer ("Mrs Homer"), were about to embark on an overseas trip. The couple had been married since 1986. Each of them had been married previously. Each of them had children by their former marriage. The first, second and third defendants were the children of Mr Homer by his previous marriage. The fourth, fifth, sixth and seventh defendants were the children of Mrs Homer by her previous marriage. The couple had no children together.

3 Mr Homer died on 23 November 2004. A copy of the Will of Mr Homer is found as annexure "KE1" to the plaintiff's affidavit sworn 17 February 2006 (exhibit 2). The Will was made using a pro forma document available from the local newsagent. After appointing the plaintiff as executor and directing the executor to pay the Estate's debts, funeral expenses and other duties, certain specific bequests are made by Mr Homer to his three natural children. He then makes a bequest of $15,000 to be divided equally between his three children. The rest of his Estate he leaves to his wife, Mrs Homer.

4 There then appears the residuary clause. Before quoting that clause, I should say that what follows is a direct reproduction of the clause. The underlining was put in by Mr Homer and the idiosyncratic punctuation is his. I have also set out the clause by putting each of the named children on a separate line as they appear in the clause in the Will. The clause reads as follows:

"ALL THE REST OF MY ESTATE I LEAVE TO MY WIFE SHIRLEY ANN HOMER

BUT IN THE EVENT THAT MY WIFE SHIRLEY ANN HOMER AND MYSELF SHOULD PASS AWAY AT THE SAME TIME. WITH THE EXCEPTION OF MY PROPERTY KNOWN AS 14 ANDREW STREET KALAMUNDA (SEE STATUTORY DECLARATION)

I LEAVE ALL THAT PART OF MY ESTATE BEQUEATHED TO MY WIFE TO OUR CHILDREN, FIFTY PERCENT (50%) TO BE SHARED EQUALY BETWEEN MY NATURAL CHILDREN, AS PREVIOUSLY NAMED, THE REMAINING FIFTY PERCENT (50%) TO MY STEP CHILDREN, TO BE SHARED EQUALY BETWEEN

DENNIS PATRICK BYRNE

SHIRLEY ANN KING

ANTHONY JAMES BYRNE

AND MARTINA MARIE BUZZA

ALL MONIES RECEIVED FROM 14 ANDREW STREET KALAMUNDA, TO BE SHARED EQUALY BETWEEN MY NATURAL AND STEP CHILDREN THIS TO TAKE PLACE ON A ANNUAL BASIS."

5 Mrs Homer died on 9 December 1998. As her Will (annexure "KE3") was a mirror image of Mr Homer's Will, all of her property passed to him. Probate of Mr Homer's Will was granted on 1 June 2005. A dispute has arisen between the first to third defendants and the fourth to seventh defendants about the proper interpretation of the Will. The plaintiff comes to court seeking directions under s 45 of the Administration Act 1903 (WA).

6 Before dealing with the respective contentions of the parties, there is one further aspect of the Will that should be noted. On 24 March 1995, Mr Homer amended the Will by changing his address. Originally he was said to reside at 3 Carlisle Road, Kalamunda. He amended this to 120 Brunswick Road, Albany. He initialled that change. The change was not witnessed by anyone. It was common ground between the parties that this change did no more than reflect the reality of the situation.

7 There were numerous affidavits filed by the various parties to this action. Various objections were taken to the affidavit evidence. During the course of the hearing, I indicated to the parties that I would not deal comprehensively with all of the objections. Rather, if I came to consider any part of any affidavit, I would at that time consider any objection taken to the material. In fact, I have considered it unnecessary to refer to any parts of any of the affidavits of any of the parties.

8 There are, however, two evidentiary matters which I determined during the course of the hearing requiring attention. Both of these matters materially affect the way in which the case has been decided. Both of the points were made by counsel for the fourth to seventh defendants and it concerned the evidence given by each of these parties.

9 A significant proportion of the affidavit evidence of the fourth to seventh defendants concerned matters which occurred after the Will was signed. Counsel for these defendants conceded that based upon the decision of Owen J in Mustard v Oikonomov, unreported; SCt of WA; Library No 980468; 19 August 1998, such material would be inadmissible. Counsel submitted that decision should not be followed. He did this on two grounds.

10 First, it was said that the alteration made to the Will by the deceased in March 1995 had the effect of republishing the Will. In fact, it was not submitted that there had been a republication as that expression is generally used, but rather that this was the effect of the alteration. Clearly, there is no substance in that submission. The alteration was simply to the deceased's address. It had no effect on the disposition of the property made when the Will was first drawn up. It was probate of the Will made on that date which was granted. The alteration could not justify admission of any evidence of events occurring after the actual date of the Will.

11 Second, it was submitted that since his Honour's decision in 1998, the law had moved on. It was now the case that recourse could be had to subsequent conduct in interpreting contracts. Reference was made to the decision of the New South Wales Court of Appeal in Hyde & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 and the decision of Parker J in Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family Trust (1997) 19 WAR 1 at 6.

12 There are two things to say about this submission. First, in neither of the two cases mentioned was the Court dealing with the interpretation of a Will. Owen J's decision in Mustard (supra) is direct authority on the point and I would not be prepared to differ from it. Second, the evidence is only relevant in attempting to give ambiguous words a sensible operation (to quote Kirby P (as he then was) in the Oceanic Meat Traders decision (supra)). As will become apparent, I am not satisfied that there is any ambiguity in this case.

13 That leads on, then, to the central question in this litigation. Is the residuary clause in the Will ambiguous? The clear answer is that it is not. It is true that the punctuation is unusual. The fact that it is punctuated as it is, is odd, given that the deceased was, on the evidence, reasonably well-educated and literate. But that is not enough to confuse what is the plain meaning of the residuary clause. It operates if the deceased and his wife pass away "at the same time". It is unnecessary, for present purposes, to decide precisely what that phrase might mean. Here, there were years between the death of the deceased's wife and the deceased. No matter how the language is tortured, the death of the deceased some six years after the death of his wife cannot be fitted within the terms of that bequest.

14 The effect of that interpretation of the Will is that there is an intestacy as to the deceased's residuary estate. That will mean his natural children, the first to third defendants, take the whole of the residuary estate and the remaining defendants are left without bounty. It was contended on behalf of the fourth to seventh defendants that the intestacy could not have been intended by the deceased and that the Will should be interpreted in such a way as to divide the residuary estate 50 per cent shared equally between the first to third defendants and 50 per cent shared between the fourth to seventh defendants.

15 It must be acknowledged that the effect of the residuary clause is bizarre. It operates in such limited circumstances that there must be at least a suspicion that the result of reading the words literally was not what was intended by the deceased. But really the case put by the fourth to seventh defendants amounted to no more than articulating that suspicion. In my view, the clause is simply not ambiguous.

16 Other aids to interpretation are only called into play if there is an ambiguity in the terms of the Will. Here there is no ambiguity.

17 By his originating summons, the plaintiff sought a determination of certain questions. Having looked at the formulation of those questions, it seems to me they may be more advantageously expressed. I will hear the parties in relation to precisely what orders ought be made and as to costs.