Kinloch v Manzione [2022] ACTSC 76

Parties: Elizabeth Vasantha Kinloch (First Plaintiff) Eleanor Ai-Lin Kinloch (Second Plaintiff) Lara Leigh Manzione (Defendant)

Representation: Counsel M Pringle (Plaintiffs) R Arthur (Defendant)

Solicitors BAL Lawyers (Plaintiffs) Elringtons Lawyers (Defendant)

File Number: SC 485 of 2021

KENNETT J:

Introduction

1. Lucy Maniam Kinloch (the testator) died on 19 August 2019. This case concerns the interpretation of a provision of her will, made on 18 February 2015 (the will).

2. The testator had three children: Robert (born in 1967); Elizabeth (born in 1968); and Eleanor (born in 1972). In these reasons, they will be referred to by their Christian names. At the time the testator made her will (and also at the time of her death), Robert lived in Maryland, USA, and had two young children (born in 2008 and 2009). Neither Elizabeth nor Eleanor had children.

3. Robert died on 24 November 2019. It is his death that gives rise to the issue in this case.

4. Probate in the will was granted to Elizabeth and Eleanor on 16 December 2019. Administration of the estate has been proceeding but has not been completed.

5. The plaintiffs in the proceeding are Elizabeth and Eleanor, as executors of the will. The defendant is the executor of Robert’s will.

The will

6. Clause 2 of the will appointed the testator’s three children as her executors and provided that they were to hold her estate on trust to distribute it in accordance with the clauses that followed. Robert renounced his role as executor on 8 October 2019, leaving Elizabeth and Eleanor as the executors.

7. The distribution of the estate is dealt with by cl 3, which provides as follows:

3.1 Survivorship Where any gift is made to a person who does not survive me for a period of 30 days, the person is deemed to have died before me, and the gift fails. 3.2 Distribution (a) If at the date of my death I own the property located at 54 Foveaux Street Ainslie in the Australian Capital Territory (the Ainslie Property), I leave the Ainslie Property together with all household chattels to my daughter Elizabeth Vasantha Kinloch, but if she does not survive me then I leave the property to my children Robert Gilchrist Kinloch and Eleanor Ai-Lin Kinloch in equal shares. (b) I leave the balance of my estate to my children Robert Gilchrist Kinloch, Elizabeth Vasantha Kinloch and Eleanor Ai-Lin Kinloch in equal shares. (c) If a child of mine has already died or dies before me or before attaining a vested interest leaving children who survive me and who attain their majority then those children on attaining their respective majorities take equally the share which their parent would otherwise have taken.

8. At the time of her death, the testator still owned the Ainslie property. Pursuant to cl 3.2(a), therefore, it was to go to her daughter Elizabeth. The property was transferred to Elizabeth in January 2020.

The issue

9. Final distribution of the residue of the estate cannot occur until the parties have resolved the issue that has arisen between them. That is, whether:

(a) Robert died “before attaining a vested interest” within the meaning of cl 3.2(c), in which case his share of the residue is to be held on trust for his two children until they attain their respective majorities; or

(b) Robert attained a “vested interest” before his death, in which case his share of the residue passed to him and forms part of his estate.

Consideration

The relationship between the relevant clauses

10. It will be noted that there is some tension between cls 3.1 and 3.2. Where a person to whom a gift is made does not survive the testator by a period of 30 days, cl 3.1 does two things. First, it deems that person to have died before the testator. Secondly, it provides that in that event “the gift fails”. As to the second aspect, however, provisions in cl 3.2 make express provision for what is to occur if a beneficiary dies before the testator. Paragraph (a) provides, if Elizabeth “does not survive me”, a gift over of the Ainslie property to the testator’s other children (the gift over is not expressly conditioned on Robert or Eleanor surviving the testator, so that further issues might have arisen if it had come into effect). Paragraph (c), which is the focus of the present controversy, makes express provision for what is to occur if one of the beneficiaries of the gift effected by paragraph (b) “dies before me”. No doubt, the meaning of the phrases “does not survive me” and “dies before me” is controlled by cl 3.1. However, the substance of these provisions is clearly inconsistent with the gifts to which they relate failing together. That aspect of cl 3.1 is, in my view, to be read subject to the provisions in cl 3.2 and not so as to lead to an intestacy (see Fell v Fell (1922) 31 CLR 268 at 275–276, and other cases nd cited in Herzfeld and Prince, Interpretation (Thomson Reuters, 2 ed 2020), [31.120] (Herzfeld and Prince)).

11. The infelicity noted in the previous paragraph indicates that the will (which was drafted by a firm of solicitors) may have been constructed by putting together standard clauses taken from precedents without deep thought as to how they would work together. The practice sometimes referred to as “agglutinative drafting” can sometimes produce a document in which the testator’s intention is so completely obscured that all the court can do is give each word its ordinary meaning (Re Bruce; Bruce v Bruce [1949] Tas SR 79 at 88 (Re Bruce)). However, as will appear below, the will in the present case is not in that category.

12. The issue which divides the parties in the present case concerns the phrase “before attaining a vested interest” in cl 3.2(c). Subclause (c), of course, qualifies the gift in sub-cl (b) by specifying what is to happen if any of the testator’s children should die before her or within a particular period after her death. The problem is identifying the end of that period. More specifically, because Robert did not die either before the making of the will or before the testator’s death (even taking into account the effect of cl 3.1 on the latter concept), the issue turns on when sub-cl (c) regards him as having attained a “vested interest”.

“Vested interest” in context

13. “Vested” is capable of more than one meaning. Counsel for the defendant submitted that its usual or ordinary meaning is “vested in interest”—a phrase which is usually used in contradistinction to “vested in possession”. He referred to Re Bruce at 87 and to Fairbairn v Varvaressos [2010] NSWCA 234; 78 NSWLR 577 (Fairbairn), particularly at [34]–[39], [58], [65] and [98]. The latter of these cases, however, turned on the construction of a clause which did not use the term “vested” at all. Rather, the critical clause gave a house and its contents to one of the deceased’s daughters for her life and then, if she died childless, to two of his other children in equal shares. At the time of the litigation the primary beneficiary of this clause was still alive but practically certain to die childless. The subsidiary beneficiaries under the clause had both died. The issue was in substance whether or not they had interests in the property (contingent on their sister dying childless) which, on the occurrence of the contingency, would become part of their estates. Thus, the issue in Fairbairn could be framed as a question about when an interest in the property “vested” pursuant to the clause. However, reflecting on that terminology, Campbell JA observed at [34] that the real question at issue had been “obscured, rather than enlightened, by technical legal language”. This was because, as his Honour noted at [35], “the term “vested” itself is in need of explanation”.

14. The question addressed in Fairbairn (as to when the critical clause in that case operated to “vest” an interest in the subsidiary beneficiaries) was different from the question that arises in the present case, as to what the testator meant when she used the term “vested interest” in cl 3.2(c). So too, the presumption in favour of early vesting that forms part of the accepted approach to interpreting wills (adverted to in Fairbairn at [72]–[76]) reflects a baseline assumption about what a testator intends to do, rather than a dictionary meaning of the term “vested”. Accepting that the term “vested interest” is capable of bearing more than one meaning, the question is in which of those senses the testator used the term. That depends on reading the term in its context.

15. On the defendant’s approach, a child of the testator had a “vested interest” as soon as he or she came within the terms of cl 3.2(b); that is, having regard to cl 3.1, if he or she was still living 30 days after the death of the testator. It was at that moment that each child could say with certainty that a share in the residue of the estate would in time come to him or her. At that moment, it was said, a share of the residue was “vested in interest”. However, there are two problems with that reading.

16. First, analysed strictly, the right that a beneficiary has during the administration of an estate is a right to insist on that administration being properly carried out. He or she does not have a legal or equitable interest in any specific property that forms part of the estate, if only because any such property may be subject to being sold in order to meet expenses of administration: see Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 (Livingston) at 438 per Fullagar J, 458–459 per Menzies J (reasoning upheld by the Privy Council on appeal: Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12); Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 313–314. Thus, while a chose in action might be said to vest in a beneficiary as soon as the conditions of a gift to him or her are satisfied, that is of a somewhat different character to the interest in specific property or the right to receive proceeds of property that arises when the administration of the estate is complete. It is only in an attenuated sense that an interest in part of the actual estate can be said to have “vested” in a beneficiary at the earlier stage.

17. Secondly, the immediate context in which the term “vested interest” appears is significant. The clause expressly contemplates three circumstances in which a beneficiary’s share of the gift made by sub-cl (b) is to go to his or her children. The first is if that beneficiary “has already died”, which evidently refers to having died before the 1 execution of the will. The second is if the beneficiary “dies before me”, which, read with cl 3.1, refers to dying either before the testator or within 30 days after her death. The third is where the beneficiary dies “before attaining a vested interest”. The separate identification of these three circumstances suggests that the testator understood them to be different from each other.

18. Importantly, the words “or before attaining a vested interest” in cl 3.2(c) (denoting the third circumstance) are redundant if an interest is relevantly “vested” in a child of the testator at the point when he or she first becomes entitled to a share of the residue of the estate under sub-cl (b), because that occurs if the child does not “die before me” as defined (which is the second circumstance). Generally, a document is to be construed on the understanding that words have not been included in it for no reason; and a construction of the document that avoids surplusage is to be preferred over one that creates it. This principle has often been stated in relation to many kinds of documents (see, e.g, Herzfeld and Prince at [22.50]). It has been applied to wills by Australian courts: Re Hewitt [1945] SASR 102 at 107; Public Trustee v Loney [2009] SASC 17 at [17]; Woodgate v Tanks [2013] QSC 204; 1 Qd R 481 at [24]. The words “or before attaining a vested interest” in cl 3.2(c) have work to do only if they are understood to refer to an event occurring after the date 30 days after the testator’s death. This supports the position of the plaintiffs: that the words are to be understood as referring to the time when the estate administration has been completed, liabilities are paid and the estate can be distributed.

19. The general principle that surplusage is to be avoided is not a rigid one. In some cases, it may be clear that the drafter has added seemingly unnecessary words or an entire

1 Wills are often said to speak at the time of death, a principle reflected in s 24 of the Wills Act 2006 (ACT). However, that principle relates to the identification of the property which forms subject matter of the will rather than the meaning of terms used in it. For the purpose of construing the language of the will, the so-called "armchair rule" holds that the court may consider the circumstances known to the testator at the date he or she made the will (King v Perpetual Trustee Co Ltd (1955) 94 CLR 70 at 78– 79), which is inconsistent with any rule requiring a counterfactual assumption that the testator was actually writing the will at the moment before he or she died. See also Pohlner v Pfeiffer (1964) 112 CLR 52 at 77. provision out of an abundance of caution or for special emphasis. However, that is unlikely to be the explanation for the inclusion of additional words when those words are framed as an alternative to what has gone before (introduced by the word “or”) and when, on a coherent alternative construction, they extend the operation of the provision. The general principle may also give way to other rules of construction if its application produces a result inconsistent with the purpose of the document or the overall intention of those who executed it (e.g, in the context of a will, Marshall v Tasmanian Perpetual Trustees Ltd [2015] TASFC 2; 26 Tas R 120 at [7]).

20. It was submitted for the defendant that the scheme of the will in the present case reveals an intention that the estate of the testator, other than the Ainslie property, was to be divided between her three children in as equal a fashion as possible; and that each of her children who survived her was to be allowed to deal with his or her share of the estate as he or she saw fit. That is, while the testator provided expressly for a share of the estate to pass to the children of one of her children in the event that that child had not survived her (and therefore could not make a decision about the disposition of his or her share), she did not intend to interfere otherwise in how each of her children decided to dispose of their share of the estate. It was submitted that the particular words of cl 3.2(c) needed to be read in the light of that overall intention, with the result that some redundancy in the clause must be accepted.

21. I do not accept this submission. The overall intention of the testator can only be divined from the terms of the will, there being no extrinsic evidence that assists with the present issue. More specifically, the circumstances in which she intended to provide for a gift over of part of the residue of the estate to her grandchildren can be identified only from the terms of cl 3.2(c) itself (whose meaning, of course, is exactly the issue that requires resolution). The manner in which she dealt with specific property (namely the Ainslie property) does not assist, as it is clearly and consciously different. She left that property to Elizabeth, with a gift over to her other children in equal shares if Elizabeth did not survive her. There was no provision here for her grandchildren, and no addition of the problematic words “before attaining a vested interest”. Nor does cl 3.1 assist in identifying any overall intention capable of resolving the issue concerning the construction of cl 3.2.

22. In effect, the defendant’s submission assumes what it needs to prove. It begins with an assertion as to what the testator intended which has no anchor in the text of the will, and seeks to use that asserted intention to override what is otherwise the preferable construction of the relevant clause. It might be said that it is hard to see a sensible reason why the testator would choose the completion of administration of the estate (rather than her own death or 30 days thereafter) as the point at which, should one of her children die, a gift to that child would no longer be subject to her stipulation. However, that is not the same thing as identifying an intention of the testator in the scheme of the will. It is not permissible to impute an intention to the testator based on what one considers appropriate or sensible, and use that intention to override the terms of the will.

Decisions in New South Wales

23. The construction of cl 3.2(c) contended for by the plaintiffs is also supported by three decisions of the Supreme Court of New South Wales.

24. In Arnott v Kiss [2014] NSWSC 1385 (Arnott), the contest between the parties concerned a quite different clause: one which divided the residue of the testator’s estate between her grandchildren, with each grandchild to take his or her share upon turning 45. The question was whether the executors were justified in distributing the residue without waiting for any of the grandchildren to reach that age. In the course of resolving that issue, Hallen J referred to the general presumption in favour of early vesting, but noted that that presumption must give way to any plain indication in the will as to the deceased’s intention. An example of such a contrary intention, according to his Honour, was a provision referring to a beneficiary dying “before attaining a vested interest”: at [43].

25. Next, and more significantly, in Application by Elizabeth Marie Robinson [2015] NSWSC 1387 (Robinson), Rein J considered a clause which relevantly provided:

(3) (a) $500,000 to my son KONRAD HASKINS (“Konrad“). If KONRAD HASKINS has already died or does not survive me or dies before attaining a vested interest, leaving his daughter AMELIA HASKINS who survives me, then AMELIA HASKINS upon attaining the age of 25 years takes such legacy which my said son would otherwise have taken. … (v) I give the residue of my estate to: (i) … (ii) Konrad as to 55% of the residue of my estate; and (iii) … If KONRAD HASKINS has already died or does not survive me or dies before attaining a vested interest, leaving his daughter AMELIA HASKINS who survives me, then AMELIA HASKINS upon attaining the age of 25 years takes such legacy which my said son would otherwise have taken.

26. The testator died in December 2012. Probate in her will was granted in May 2013. Her son Konrad, who was referred to in the clause, died in March 2014. Amelia, who was also referred to in the clause, was the daughter of Konrad and his first wife. Controversy arose between Amelia on the one hand and Konrad’s second wife on the other, as to whether Konrad had attained a vested interest before his death. Depending on the answer to that question, the property the subject of the gift would either go to Amelia or form part of Konrad’s estate.

27. Rein J referred to the principle that a will should be construed so that effect is given to every word (at [27]–[28]). He also referred to what had been said in Arnott (at [24]) and to older authority supporting the view that, in a context such as this, a reference to attaining a vested interest will usually be understood to mean something more than merely surviving the testator (at [14], [32]). His Honour concluded, at [33]:

If the provision had been to Konrad “if he shall survive me” then on the death of the testatrix, Konrad would be regarded as having a vested interest of which his estate would not be deprived on his death. The addition of the words “dies before attaining a vested interest” indicate that merely by surviving the testatrix he would not be treated as having a vested interest and that more was required, and recognise that, in accordance with Australian law a beneficiary does not have any interest in any particular asset or fund or money until the estate has been administered and the executors are ready to distribute.

28. Counsel for the defendant submitted that the last sentence of this extract was stated too broadly. Whether his Honour’s statement of the general principle under Australian law requires qualification can be left to another day. At least, Livingston (discussed above) suggests that it is broadly correct. What is of more significance is that his Honour accepted that, in a clause similarly constructed to the present cl 3.2(c), the reference to attaining a vested interest was understood to require something in addition to merely surviving the testator.

29. Finally, in Serwin v Dolso [2020] NSWSC 370 (Serwin), Hallen J considered a clause that was framed as follows:

Subject to the preceding trusts to give the rest and residue of my estate to my brother STANISLAW HABEL of … Poland and in the event that my brother STANISLAW HABEL has already died or does not survive me or dies before attaining a vested interest, to give the rest and residue to my brother’s daughter HALINA SERWIN.

30. The testator died in June 2014. Her brother Stanislaw, who is referred to in the clause, survived her and died in November 2014. The sole question before the Court was whether he had died “before attaining a vested interest” (at [19]).

31. Hallen J referred to the earlier judgments in Arnott and Robinson. His Honour’s resolution of the issue, at [74]–[75] and [77]–[79], is worth quoting at some length:

[74] In this case, there are a number of aspects that I consider are of importance in determining the meaning of the deceased’s Will. These are: (1) There was no intermediate gift of the estate, either capital or income, before the gift to Stanislaw; the gift in Cl 3(c) was a gift of the rest and residue. The substitutionary gift appears to have provided for the destination of the rest and residue in certain events and to prevent the gift of the rest and residue lapsing. (2) There was no provision in the deceased’s Will making the vesting of Stanislaw’s interest contingent on the happening of any prescribed event other than the three events to which reference has been made. (3) The intention of the deceased, as appears from the Will, was that she wished to give a small pecuniary legacy to each of the Defendants; and then, her primary intention was to provide for the whole of her residuary estate to pass to Stanislaw, but in certain events, for her estate to pass to the Plaintiff. (4) If all of the interest in residue was intended to vest on the date of the deceased’s death, the relevant clause could have ended at “does not survive me”. There would have been no need to go on to cover the situation of the residuary beneficiary dying “before attaining a vested interest”. However, “does not survive me” was followed by an “or”, thereby denoting that a situation of the residuary beneficiary already having died, or pre-deceasing the deceased, as well as the situation of him dying before attaining a vested interest, were perceived as three distinct, and separate, situations, which would result in the gift of residue passing to the Plaintiff. (5) There was nothing in the Will to indicate that the deceased intended to give any part of her estate to the beneficiaries of Stanislaw’s estate. For example, had the deceased intended that Stanislaw’s other children should receive any part of her estate they could have been included, with the Plaintiff, as substitute beneficiaries. (6) The deceased died on 27 June 2014. The six month period after which an estate may be distributed, as provided for in s 93, had not expired on 18 November 2014, the date of Stanislaw’s death. It follows that if the estate had been distributed before 27 December 2014, the Defendants, as executors, would not have been entitled to the protection accorded to them by s 93, had they otherwise complied with the requirements of the section. (7) There was no dispute that the estate was not capable of being distributed before 18 November 2014, the date of Stanislaw’s death. It was still in the administration phase and the Defendants, at that time, held the estate as executors not as trustees. [75] It seems to me that there are three possible meanings of the words “dies before attaining a vested interest” in Cl 3(c) of the deceased’s Will, namely: (a) that they are tautologous and mean the same as “if [he] dies before does not survive me”; (b) that they mean “vested in possession” and that means the time when Stanislaw would take the estate beneficially; or (c) that they mean “before the estate is fully administered and available to be distributed”: see De Martin v Jacobs [2008] NSWSC 1378 at [13] (Young CJ in Eq). … [77] In the present case, the Court must place reliance on “the testator’s intentions as deduced from the will as a whole”. The Court should ascertain what the basic scheme that the deceased had conceived for dealing with her estate was, and then construe her Will, if it be possible, to give effect to the scheme so revealed. [78] The deceased was concerned with the order of succession. She intended to make provision for three eventualities, including that Stanislaw died before attaining a vested interest in the residuary estate. In that circumstance, she intended the Plaintiff, only, to receive her residuary estate. [79] Considering all of the matters to which I have referred, the deceased intended that the term “dies before attaining a vested interest” in Cl 3(c) of the deceased’s Will meant dies “before the estate is fully administered and available to be distributed” to him. The addition of the words referred to indicate that merely by surviving the deceased, Stanislaw would not be treated as having a vested interest and that more was required. To construe the Will otherwise would give no work to the expression referred to.

32. Of course, the construction of any clause of a will depends on its particular terms and the context in which it is found. It is for that reason that, while rules of construction developed by the courts will often show the way, discussion of the technical legal meaning of a word used by the testator may be of limited assistance. I have set out the reasoning of Hallen J at some length because the considerations listed at [74] also apply, at least to some extent, to the will in the present case. Of course, there are differences. Here, rather than small pecuniary legacies, the testator gave a residential property to one of her children. Also, the testator in the present case did not single out individuals among her grandchildren as substitute beneficiaries. Nor did she single out one relative as the sole recipient of the residue of her estate. However, these points do not make the present case fundamentally different from Serwin. It can also be said of this case that the testator was “concerned with the order of succession” and made provision, in relation to each of her children, for three eventualities.

33. Counsel for the defendant submitted that an important difference between the circumstances of Serwin and the present case is that the will in Serwin contained no equivalent of cl 3.1. Thus, it was said, cl 3.2(c) contains an intermediate step —surviving the testator by 30 days—that the clause in issue in Serwin did not contain. However, the published reasons in Serwin simply do not show whether the will in that case contained an equivalent of cl 3.1. If it did not (and the operation of s 35 of the Succession Act 2006 (NSW) did not have a similar effect), it nevertheless remains the case that, both in Serwin and here, the testator made provision for three distinct eventualities. The exact timing of the second eventuality does not change the analysis in any fundamental way.

34. Of course, decisions of courts in other jurisdictions are not binding. Different views have been expressed as to whether comity requires a single judge to follow a decision of a single judge in another jurisdiction expounding a principle of the common law unless convinced that it is plainly wrong (see Informax International Pty Ltd v Clarius Group Ltd [2011] FCA 183; 192 FCR 210 at [53]; contrast Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80 at [68]). I do not propose to enter that controversy in the present case. It is sufficient to say that the reasoning in the NSW cases discussed above is persuasive, and consistent with the conclusion I have reached about the construction of the will in this case.

Provisions of the Wills Act 2006 (ACT)

35. The issue that remains is whether the provisions of the Wills Act 2006 (ACT) (Wills Act) require a different approach.

36. My attention was drawn to ss 31, 31B and 31C of the Wills Act. Only s 31B was the subject of competing submissions. The other sections can be dealt with briefly.

(a) The key provision of s 31 is sub-s (1). Subsection (2) supplies a method of distribution for the purposes of sub-s (1)(e) if it is engaged and sub-s (3) qualifies the operation of sub-s (2). Subsection 31(1) applies only where, among other things, the original beneficiary of a gift in a will dies in the lifetime of the testator. That did not occur here.

(b) Section 31C is expressed to apply where, relevantly, a deceased person bequeaths property to a person and that person does not survive the deceased person by 30 days. The operative provision, sub-s (2), provides that the person is taken to have predeceased the deceased person and the gift lapses, unless the contrary intention appears from the will. That is in substance what cl 3.1 of the present will provides; however, so far as the residue of the will is concerned, cl 3.2(c) goes on to provide expressly for what is to occur if one of the principal beneficiaries predeceases (or is deemed to predecease) the testator. Subclause (c), of course, also provides for other circumstances in which a share of the residue of the estate will pass to the children of one of the beneficiaries mentioned in sub-cl (b) rather than to that person. To the extent that these provisions are inconsistent with s 31C(2), they express a contrary intention which displaces its effect.

37. Turning to s 31B, sub-ss (1) and (2) provide that a testator is presumed to have certain intentions when he or she leaves property to his or her issue. The intention to be presumed pursuant to sub-s (1) is that (subject to sub-s (2)) the gift is to be distributed in equal shares between those issue of the testator who: (a) are his or her “nearest issue”, and (b) survive the testator for a period of 30 days (which is defined as “the specified period”). Subsection (1) is expressed to be subject to any contrary intention appearing from the will or from evidence admitted under s 12B.

38. Subsection (2) provides that, if a person who is one of the nearest issue of the testator dies before the end of the “specified period” and leaves issue who survive the testator for that specified period, the testator is presumed to have intended that those surviving children take the share in his or her estate that the deceased nearest issue would have taken. It is apparent that sub-s (2) applies on the assumption, first, that the testator has left property to his or her child or children, and secondly, that sub-s(1) has had effect so as to make that gift in relation to each child subject to that child surviving for the specified period. Therefore, sub-s (2) does not have its own operation independently of sub-s (1). They are elements of a single package. That explains why, unlike other provisions in the Wills Act which impute a presumed intention to the testator, sub-s (2) is not expressed to be subject to any contrary intention appearing from the will.

39. If s 31B(1) applies here, the gift made by cl 3.2(b) is to be interpreted as a gift in equal shares to such of the testator’s children as survive her by 30 days. That is, in any event, the effect of the subclause when it is read together with cl 3.1. Stopping there, the result would be that Robert survived long enough to take under sub-cl (b), and his share now forms part of his estate.

40. However, account also needs to be taken of cl 3.2(c). In this subclause, the testator set out her own express stipulation as to the precise issues dealt with by s 31B(1)(b) and (2). To the extent that that stipulation, on its proper construction, diverges from the intention to be presumed under these provisions, it must be taken to evince a “contrary intention”. In other words, if the correct understanding of sub-cl (c) is that Robert needed to survive long enough to take his interest as part of the final distribution, it would not be correct to impose a different understanding on the basis of a presumed intention. To do so would deny the primacy of the testator’s own expressed intention which s 31B acknowledges.

41. Nor would it be correct to attempt to use the intention presumed under s 31B as a constructional principle bearing on the interpretation of the very clause that is said to demonstrate a contrary intention. Each provision in the will must be interpreted according to its terms, using the traditional canons of construction, before considering whether any clause so construed demonstrates a contrary intention displacing that which is presumed by the legislation: Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80 at [63], citing Pohlner v Pfeiffer (1964) 112 CLR 52 at 77.

42. The defendant submitted that, if cl 3.2(c) on its own rebuts the presumption in s 31B, the picture changes when cl 3.1 is taken into account. Clause 3.1 was said to express an intention that a gift to a beneficiary who does not survive the testator by 30 days lapses, and that by implication, therefore, the gift remains effective if the beneficiary survives for that period.

43. This submission is rejected. As noted above, the actual terms of cl 3.1 (“the gift fails”) need to be reconciled with cl 3.2(c). Further, to the extent that the testator can be said to have provided that a gift would “lapse” if the beneficiary did not survive her by 30 days, that does not logically found any inference that gifts were not to lapse in other circumstances. That is a matter dealt with by other provisions in the will, including relevantly cl 3.2(c). This is, in substance, an argument about how cl 3.2(c) is to be construed in the context of the will rather than whether, properly construed, it demonstrates a contrary intention for the purposes of s 31B.

Conclusions and orders

44. On the proper construction of the will, the phrase “dies before attaining a vested interest” in cl 3.2(c) means “dies before the estate is fully administered and available to be distributed”. The subclause, construed in this way, expresses a contrary intention that displaces the presumption under s 31B(1) of the Wills Act.

45. The plaintiffs seek declarations in substance reflecting the conclusions expressed in the previous paragraph. However, while the declaration is undoubtedly a flexible remedy, its primary purpose is the quelling of concrete controversies by authoritatively stating the respective legal rights and obligations of the parties. Thus, it has been said that “the remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment”: Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 at [8]; Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 at [35]. Although it is not uncommon (for example in trade practices cases) for detailed declarations to be made setting out what are in substance findings about breaches of the law, such declarations are justified on the basis that there is utility in orders that define and publicise the type of conduct that constitutes a contravention and leads to the grant of other relief (e.g, Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53 at [95]) or the court’s disapproval of the relevant conduct (Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 100). In essence, declarations should not be made “unless there are circumstances that call for their making”: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437–438.

46. It is sufficient to quell the controversy in this case to make declarations substantially in the form of prayers 3 and 4 in the Originating Application: that is, to declare, first, that on the proper construction of cl 3.2(c), Robert died before attaining a “vested interest” in the residue of the estate, and secondly that, upon attaining their majority, Robert’s two children are entitled to receive one third of the net residue of the estate as tenants in common in equal shares.

47. The plaintiffs also sought an order directing them to hold one third of the net residue of the estate on trust for Robert’s children. I agree that, as things stand, that is what the will requires the plaintiffs to do in their capacity as executors. However, I do not think there is a need for a formal order of the Court requiring the plaintiffs to do what they themselves assert to be their duty (and presumably intend to do). The declarations that I propose to make will be sufficient to resolve the issues in controversy between the parties. I do not understand there to be any dispute between them as to the consequences of the conclusions embodied in those declarations.

48. The orders of the Court will therefore be as follows.

(1) The Court declares that, on the proper construction of cl 3.2(c) of the will of Lucy Maniam Kinloch (the deceased) dated 19 February 2015, the son of the deceased, Robert Gilchrist Kinloch (Robert), died before attaining a vested interest in the rest and residue of the deceased’s estate.

(2) The Court declares that, upon attaining their majority, Robert’s children, Maya Odessa Kinloch and Felix Odysseus Kinloch, are entitled to receive one third of the net rest and residue of the deceased’s estate as tenants in common in equal shares.

49. I will hear the parties on costs.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett

Associate:

Date: