Lewis v O'Loughlin

[18]

It will be convenient here to consider also the question whether the passage "the total sum of my monetary investments and monies in banks" extends to property answering the general description embodied in that passage, but forming part of the assets, other than real estate, in Phoebe's as yet unadministered estate that, in due course of administration, would have passed into the testatrix's hands as beneficiary by virtue of Phoebe's intestacy. It seems to me that the weight of authority is plainly against the conclusion that the passage does so extend. The phrase " my monetary investments and monies in banks" (the emphasis is mine) denotes personal property of the testatrix over which she had control: see, for example, In re Kidman (dec'd.); Kidman v. Clover [1] where Napier C.J. discusses the authorities. The testatrix's interest in Phoebe's estate is a derivative interest dependent upon the due administration of Phoebe's estate, and it would have been a misuse of words for the testatrix to describe investments forming part of that estate as "my monetary investments", even though she may have confidently expected that those investments would, in course of time, come under her control. I should also add that the word "investments" is, in my view, wholly inappropriate to describe a right in personam, dependent in due administration. His Honour fortified this view by reference to the advice of their Lordships of the Privy Council in Commissioner of Stamp Duties (Q.) v. Livingston [2] . After quoting from that advice, his Honour said [3] : It appears to me to follow inexorably from the principles expounded in Livingston's Case [2] that, at the moment of her death, the testatrix had no estate, right or interest, legal or equitable, in the individual items of property comprising Phoebe's estate, because it still belonged to the administrator for the purpose of administration. It further follows, in my opinion, that it is not possible to give effect to any language used by the testatrix that, expressly or by necessary implication, treats items of property forming part of the unadministered assets of Phoebe's estate as if they had become severally and independently vested in the testatrix, and were hers to deal with by will. 1. [1971] S.A.S.R. 147, at p. 154. 2. [1953] S.A.S.R. 28. 3. [1965] A.C. 694; (1964) 112 C.L.R. 12. 4. [1971] S.A.S.R., at p. 158. 5. [1965] A.C. 694; (1964) 112 C.L.R. 12.

[21]

The problem in the appeal is to determine on a fair construction what the testatrix meant by her relevant expression in the will. Such a question is unlikely to be resolved by resort to authority, however much attention should be paid to the opinions expressed by distinguished judges when construing other wills. The language used in this will is that of the testatrix herself: it is not the language of a person trained in the law. It is language used with at least a layman's understanding of the situation in which the testatrix then stood. Her niece had died about one month before she made the will. She was, and she clearly knew she was, the sole next-of-kin of her niece. She evidently knew that her niece was the sole beneficiary under her father Herbert Matthews' will. The only real property in his estate was the property in Hill Street, Crafers which is the subject of the clause in the testatrix's will. The reference there to that property shows that the testatrix knew that it was part of that estate to which she had become entitled on her niece's death. She probably knew that it consisted of more than one parcel, for she refers to the whole or part of that property. Indeed, there is evidence in the papers that she had once lived in the house on the property. It is to my mind a fair inference from the whole of the material put before the primary judge that the testatrix knew at the time she made her will that this was the only real property in her brother-in-law's estate. Although she did not describe it in her will as her property, she evidently understood that she was then in a position to determine by her will what should be done with it if she had not disposed of it in her lifetime. She became the administrator of her niece's estate by grant of letters by the Supreme Court of South Australia in March of 1968. I think it reasonable to suppose that between her niece's death and the date of her will, a period during which she ascertained that her niece had died intestate, she can be taken to have learnt that besides the Crafers land, the estate of her brother-in-law consisted almost entirely of investments and moneys in banks and that her father's estate to which her niece had become entitled likewise consisted of investments and moneys in banks.

[22]

It seems to me therefore that the will should be approached as the will of a person who knew that she was the only next-of-kin of her niece; that Daphne Shirley Rae Haines was her only next-of-kin; that she was solely entitled to the land, investments and moneys in banks in her niece Phoebe Dawn Matthews' estate and that beside a house she had herself investments and moneys in banks, furniture and personal effects. She was at that time employed. It is not remarkable that she did not realize that if she died whilst in employment there would be money due to her for undrawn leave of various kinds and for prepaid tax. For these items quite clearly she made no provision in her will. It is evident, I think, that reading the will as an entirety against the background of her then known circumstances, the testatrix intended by the expressions used in her will to dispose of all that she then possessed. It is clear enough that she did not cover by her dispositions all the eventualities which might occur; e.g. the possibility of both Melva Beryl Lewis and Janice Helen Lewis predeceasing her. However the question is not whether she provided for all contingencies but whether she made some provision for all the property to which she was then entitled. She evidently had formed a view as to whom she wished to benefit and was aware of her relationship to Daphne Shirley Rae Haines. I find it difficult to conceive that, knowing as she must have done of her entitlement to her niece's property, and that Daphne Shirley Rae Haines, if living at her death would be her next-of-kin, she did intend to leave out of the provisions of her will the most substantial part of what she was able to dispose. She was at the time about sixty-seven years of age. We know nothing of her state of health or manner of living. We do not know whether she had made any will on an earlier occasion. But, whether she had done so or not, it is significant, in my opinion, that she made this will one month after her niece's death.

[24]

The question now is whether the expressions she used in her will were both intended and apt in her circumstances to effect such a disposition. The question is not in my opinion whether she had at that time a specific legal or equitable estate or interest in the assets which comprised the estate of her niece. The question is whether the expression "the total sum of my monetary investments and monies in banks" was intended by the testatrix to include the investments and moneys in banks in the estate of her niece to which she had become solely entitled and if so, was it apt to do so. She dealt with the land in that estate as an asset whose destination she could then determine. Had she died the next day, there could be little doubt that the provisions of the will would have been operative though at its date she had no estate or interest in those parcels of land. The will would so operate because the land was aptly described and, by taking formal steps, her executors or trustees could carry out its terms. Thus, if the description of the investments and moneys in banks is sufficient to include the investments and moneys in banks to come to her in due course, the terms of the will in my opinion, will be effective as to those investments and moneys in banks, notwithstanding the fact that at the date of the will the testatrix had no interest in those specific assets of her niece's estate. The learning to be found in the line of cases beginning with Lord Sudeley v. Attorney-General [1] including McCaughey v. Commissioner of Stamp Duties [1] , and ending with Commissioner of Stamp Duties (Q.) v. Livingston [1] has, in my opinion, no bearing on the construction of the words of the testatrix or upon their operation; nothing said or decided in any of these cases precludes effect being given to her words if they are intended and apt to include such investments or moneys in banks. Nor in my opinion does the decision or reasoning in In re Kidman (dec'd.); Kidman v. Clover [2] touch the matter in hand in this case. That case turned on the circumstances that the words to be applied were "all my shares" in named companies. It was held, if I may say so, quite correctly that that description did not embrace an interest in a residuary estate which included shares in the named companies.

Lewis v O'Loughlin - [1971] HCA 53 - HCA 1971 case summary — Zoe

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Judgment (35 paragraphs)

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