SUCCESSION - Construction - Gifts - Absolute gift
Cases Cited: Fell v Fell (1922) 31 CLR 268[1922] HCA 55
Sidle v Queensland Trustees Ltd (1915) 20 CLR 557
Judgment (3 paragraphs)
[1]
Solicitors: Somerville Legal (plaintiff)
Digital Age Lawyers (first to fifth defendants)
File Number(s): 2020 / 41013
[2]
Judgment
This case raises a question of the true construction of the will of the late Thomas Henry Marlow who died on 8 September 2016.
The plaintiff and the deceased were married on 22 January 1982 and were married at the time the deceased died.
The first and second defendants were nominated in the deceased's will as his executors. They were neighbours of the plaintiff and the deceased for many years. Probate of the last will of the deceased was granted to the first and second defendants on 19 December 2016.
The fourth and fifth defendants are children of the deceased and a sister of the plaintiff under an earlier marriage between the deceased and the sister. The third defendant is not a natural child of the deceased, because he was a child of the plaintiff's sister as a result of an earlier relationship. There was an unresolved suggestion at the hearing that the deceased may have adopted the third defendant.
By her summons filed on 7 February 2020, the plaintiff sought the following relief after correcting an erroneous reference to the subject property:
1. Determination whether, on a true construction of the will dated 16 November 2002 of the late Thomas Henry Marlow, and in the events that have happened:
a. The property at [redacted] Blacktown ("the Blacktown property") forms part of the residue of the estate of the deceased, and Violet Marlow receives the whole of the deceased's estate absolutely;
b. Violet Marlow receives a life estate in the Blacktown property, with the remainder to Mark Marlow, Tracy Marlow, and Joanne Roe in equal shares.
2. Determination whether, on the true construction of the will of the late Thomas Henry Marlow dated 16 November 2002, and in the events that have happened, in the event that the Blacktown property is sold during the lifetime of Violet Marlow:
a. Violet Marlow is entitled to the proceeds of sale of the Blacktown property absolutely;
b. Mark Marlow, Tracy Marlow, and Joanne Roe are entitled to the proceeds of sale of the Blacktown property in equal shares.
3. Such other orders the court sees fit.
4. Costs, including an order that the first and second defendant do not have recourse to the assets of the estate in respect of their costs of the proceedings.
The entire estate of the deceased has been administered and distributed save for the Blacktown property. The Blacktown property was in the sole name of the deceased. It was the matrimonial home. The Blacktown property was purchased before the marriage of the plaintiff to the deceased, and was transferred into the sole name of the deceased on 9 April 1981 in execution of the estate of the plaintiff's sister.
It was not in issue that, on or about 8 May 2017, the first and second defendants lodged and registered a transmission application for the Blacktown property to the third to fifth defendants.
The solicitors who acted for the third to fifth defendants at the time advised the plaintiff, by letter dated 29 October 2019, that the third to fifth defendants believed that the plaintiff had abandoned whatever interest she had in the Blacktown property.
On or around 20 or 21 January 2020, the third to fifth defendants, as vendors, entered into a contract to sell the Blacktown property.
The plaintiff caused a caveat to be lodged against the title to the Blacktown property on 24 January 2020.
For the sake of chronological completeness, I repeat that the plaintiff's summons was filed on 7 February 2020.
The third to fifth defendants issued a lapsing notice in respect of the plaintiff's caveat on 18 February 2020.
At a hearing before Lindsay J on 24 February 2020, his Honour made the following notation:
1) NOTE that, as presently advised, the parties agree that the central question for determination in these proceedings is whether (if, contrary to her contention that she has an interest in land more extensive than a "life interest") the plaintiff has "abandoned" her "life estate" in the property known as [redacted], Blacktown (in the context of the will of the deceased dated 16 November 2002 probate of which was granted to the first and second defendants on 19 December 2016).
Lindsay J made directions for the service of evidence and stood the matter over before himself on 3 March 2020.
On 3 March 2020, Lindsay J made a number of orders, including an order extending the caveat until further order of the court, upon the plaintiff by her counsel giving to the Court the usual undertaking as to damages. His Honour ordered that, upon any application for an order that the caveat be withdrawn, the plaintiff bear the onus of persuading the Court that it should continue in operation.
His Honour also noted the following matters:
6) NOTE that the central question for determination by the Court is whether, upon the true construction of clause 5 of the Will dated 16 November 2002 of the deceased, the plaintiff is entitled to a life estate in the property known as [redacted] Blacktown.
7) NOTE that it is agreed between the parties that:
a) it would be open to the Court to determine that, upon the proper construction of the Will of the deceased, the plaintiff is entitled to a right of residence or some similar entitlement rather than a life estate.
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c) if the Court were to determine that any entitlement the plaintiff may have had to the property known as [redacted] Blacktown has been determined, it would be open to the Court (without any need for a cross claim to be filed) to make in favour of the defendants a declaration to that effect, and to make in favour of the first and second defendants (as executors of the Will of the deceased) an order for possession, together with consequential orders.
The parties agreed that the proceedings required urgent final determination because of the existence of the contract for the sale of the property.
Accordingly, Lindsay J made an order that the proceedings be listed before the Duty Judge on 16 March 2020 for final hearing of the proceedings, subject to the exigencies of the Duty List.
The need for urgency has been reinforced by the fact that, on 4 March 2020, the purchaser under the contract for sale served a notice to complete on the third to fifth defendants that required completion to take place at 2 PM on 18 March 2020.
A hearing took place in the Duty List on 16 March 2020.
The effect of the service of the notice to complete has been that the Court is required to deliver its judgment within a period of two days. The parties joined in requesting the Court to decide the case within this urgent framework.
At the hearing, the plaintiff did not read her affidavits that had been served on the defendants. The plaintiff tendered a number of documents. The defendants read the affidavits of the first and fifth defendants. There was no cross examination.
Strictly, some of the background facts that I have related above were not proved by evidence that was tendered at the hearing. A number of matters were dealt with in affidavits of the plaintiff that were not read. However, the facts were set out in the written submissions of the plaintiff, and I take the parties to have conducted the hearing on the basis that the facts were either agreed (Exhibit P3) or were uncontroversial.
A number of aspects of these proceedings are unfortunate, including the fact that the Court has had virtually no time to consider the construction issue.
Evidence was given by the first defendant, which was not objected to by the plaintiff, that throughout the 49 year period when the first defendant knew the deceased, "he has always indicated that the three children… would inherit their home in equal shares. I believe this is the reason why the Deceased did not have the house registered in Joint names after he married the Plaintiff, as it had been with his previous wife".
The first defendant also gave evidence, without objection, that, at the time the deceased asked the first and second defendants to be the executors under wills of both the deceased and the plaintiff signed on 16 November 2002: "the Deceased affirmed to me that Mark, Tracy and Joanne would inherit the house whilst the Plaintiff would have the house to live in until she desired". I do not know whether the first defendant meant to say "desired" or "died".
It may be that the plaintiff did not object to this evidence, because she put submissions to support her case based upon the terms of the plaintiff's 16 November 2002 will, which relevantly, in clear terms, after making a gift of her rings to her niece, left the residue of her estate to the deceased, but if he predeceased her, she gave the residue of her estate to the third to fifth defendants in equal shares.
It would appear that the first and second defendants caused the Blacktown property to be transmitted to the third to fifth defendants, acting on what they understood to be the wishes of the deceased, as verbally expressed to them.
The fifth defendant gave some evidence of the circumstances in which the plaintiff ceased to reside in the Blacktown property.
In about November 2016, the plaintiff went to Queensland and stayed with her niece for approximately four months.
On 30 October 2017, the plaintiff had a fall and injured herself. Soon after that date, the plaintiff left the Blacktown property and moved in with the niece in Queensland.
After the plaintiff went to Queensland, she wrote a letter to the third defendant that included the following statement: "I do not want you telling me who I can and cannot have in my house. It is not your house until it is sold". The terms of the letter suggested that there had been a falling out between the plaintiff and the third defendant.
On 2 March 2020, a solicitor acting for the plaintiff informed the defendant's solicitor: "… I have instructions that the sale can continue and the proceeds thereof be held in trust until the resolution of these proceedings".
The Court was informed that, on that or the next day, the plaintiff changed her mind and withdrew her agreement to the contract for sale being completed.
Therefore, there appears to be some evidence that, on a number of occasions, the plaintiff made statements to the third to fifth defendants that were consistent with her knowing that the Blacktown property was being sold, and not opposing that course. The evidence is very limited and was not explored at the recent hearing, even though it may have been relevant to the issue of whether the plaintiff had abandoned any interest that she had in the Blacktown property.
Although, in her affidavit, the third defendant asserted that the defendants' solicitor "kept the sale going" on the basis of the agreement of the plaintiff conveyed on 2 March 2020, the evidence does not show whether, in any significant way, the third to fifth defendants acted to their detriment on the basis of any representation made by the plaintiff.
As I have said above, on 3 March 2020, Lindsay J made an order extending the caveat on the title to the Blacktown property until further order of the Court.
The third to fifth defendants have not actually made any application to the Court that the caveat be withdrawn, to enable the contract for sale to be completed on 18 March 2020. The parties have not contested the issue of whether an order should be made that the caveat be withdrawn.
The third to fifth defendants are, at present, the registered proprietors of the Blacktown property. That has come about as a result of the transmission application made by the first and second defendants. If the Court finds that, on the proper construction of the will of the deceased, the plaintiff was the beneficiary of an absolute gift of the Blacktown property, or a life interest in that property, it would follow that the plaintiff has an equitable estate in the Blacktown property. The purchaser under the contract for sale is also likely to have an equitable estate in the Blacktown property.
A question as to which equitable estate is entitled to priority appears to arise. Although any estate of the plaintiff will be first in time, the evidence suggests at least a possibility that the plaintiff's conduct may have been partly responsible for the third to fifth defendants entering into the contract for sale. If so, that may have some consequence for the proper determination of the priority issue. I make no finding on this issue, as the evidence is scant.
The purchaser has not been joined to these proceedings, so even if there were time to do so, the Court cannot address the issue of the priority of the competing equitable estates of the plaintiff, if she is found to have one, and the purchaser, in the Blacktown property.
Consequently, if the Court finds that the effect of the deceased's will is to give the plaintiff an equitable estate in the Blacktown property, and the caveat continues to prevent registration of any transfer by the third to fifth defendants to the purchaser, the contract for sale will not be completed on 18 March 2020.
In that event, the purchaser may sue the third to fifth defendants for specific performance or terminate the contract. In the latter event, it is possible that the purchaser may sue the third to fifth defendants for damages.
Nothing that is now before the Court permits the Court to make any observation about whether any of the recent conduct of the plaintiff may have the effect of making her liable in any way to the third to fifth defendants, if they in turn become liable to pay damages to the purchaser. It can only be said that the possibility is one that should be considered by the plaintiff.
If the plaintiff has not changed her will made on 16 November 2002, and if she does not do so in the future, then the consequence will be that, on her death, the whole of her estate, save for her rings, will be given to the third to fifth defendants. That may be an outcome that was contemplated by the plaintiff and the deceased at the time the wills were made. The Court does not know what the position is concerning the terms of the plaintiff's current will. If the third to fifth defendants remain the beneficiaries under the plaintiff's will, then it may be sensible for the parties to consider, in practical terms, whether anything should be done to avoid the risk of the third to fifth defendants becoming liable to the purchaser to pay damages, if the contract for sale cannot be completed on 18 March 2020.
There is no issue presently before the Court as to whether the wills made by the plaintiff and the deceased on 16 November 2002 were mutual wills. The expression 'mutual wills' describes the situation where two persons make their individual wills on the basis of mutual promises that neither will, during their lives, alter their wills without the consent of the other and that each will not change their wills after the death of the other. Mutual wills are not made in cases where each party merely assumes that the other party will not change his or her will, and trusts the other party not to do so. An agreement that neither party will change his or her will without the consent of the other must be proved.
I will mention this issue further below, after I have dealt with the construction question that is before the Court.
There was no issue between the parties concerning the legal principles that must be applied by the Court to the construction of wills.
It is necessary for the Court to read the whole of the will to determine the scheme of the testator's testamentary intentions, before the Court turns to consider the meaning of the portion of the will that is in dispute: Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 at 560-561; [1915] HCA 48. The meaning of the controversial provision must be determined having regard to all of the testator's intentions as disclosed by the will as a whole.
The Court does not look to determine the actual subjective intention of the testator, but must ascertain that intention from the language that the testator has used, understanding that language in the sense that it appears he or she attached to the expressions used in the will: Towns v Wentworth (1858) 14 ER 794 at 800.
The following of the 10 principles of construction set out by Isaacs J in Fell v Fell (1922) 31 CLR 268 at 273-275; [1922] HCA 55, are material in the present case (footnotes omitted):
On this basis I proceed to consider this particular will. Certain principles are incontestable. To prevent misapprehension as to the groundwork of my opinion I state them: -
(1) "Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used" (Lord Cranworth in Abbott v. Middleton; Lord Wensleydale in the same case).
(2) "The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it" (Lord Halsbury L.C. in Leader v. Duffey; Ward v. Brown; Buckley L.J. in Kirby-Smith v. Parnell).
(3) "If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared" (Towns v. Wentworth; Hawkins on Wills, 2nd ed., at p. 6).
(4) An inference cannot be made "that did not necessarily result from all the will taken together" (Sir R. P. Arden M.R. in Upton v. Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James L.J. in Crook v. Hill).
(5) "We cannot give effect to any intention which is not expressed or plainly implied in the language of" the "will" (Lord Watson in Scalé v. Rawlins). "You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication" (Lord Brougham L.C. in Langston v. Langston).
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(8) "There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense …), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention" (Lord Brougham L.C. in Langston v. Langston).
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(10) "The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills" (Lord Shaw in Lightfoot v. Maybery). "In ascertaining the intention, I ought to a certain extent - we all know what the expression means - to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary" (Buckley L.J. in Kirby-Smith v. Parnell).
With these principles in mind, I examine the will itself, remembering, as Chief Justice Wilmot quaintly said in Dodson v. Grew, "Words are only pictures of ideas upon paper." So long as we find the ideas delineated on the paper, it matters nothing how crude the craftsmanship may be.
The Court must, so to speak, construe the testator's will as if sitting in the testator's armchair at the time that he or she contemplated the terms of the will.
For that purpose, the Court should bear in mind that the Blacktown property had been acquired before the plaintiff and the deceased married, and it had previously been in the name of the deceased and the plaintiff's sister. The deceased had had two children by the plaintiff's sister, and the third defendant was the child of the plaintiff's sister through another relationship. It is possible that, though the deceased's primary intention would be to provide for the plaintiff as his current wife, he may have felt an obligation to the plaintiff's late sister to ensure that the Blacktown property, which he had acquired with her, should eventually become the inheritance of her children.
Both the deceased's and the plaintiff's 16 November 2002 wills were prepared using the same pro forma will form.
Clause 1 of the will contained spaces for the name of the testator and his or her address. The clause states that the document is the last will of the testator whose name has been written by hand in the space provided.
By clause 2, each testator appointed the first and second defendants as his or her executors, by inserting their names and addresses in the spaces provided.
Clause 2 also contained a space for inserting the name and address of any alternative executor.
Clause 3 concerned the appointment of a guardian for any minor children, and provided for the insertion of the name and address of the person to be appointed.
Each of the deceased and the plaintiff struck out the provisions dealing with the appointment of an alternative executor and a guardian for minor children. In the deceased's case the striking out was done by four diagonal pen lines going from bottom to top. The plaintiff used the same device, but the diagonal lines went from top to bottom.
Clause 4 of the will form was in the following terms:
4 Special Gifts
I make the following special gifts (legacies, bequests and devises):
……………………………………………………………………………..
In the deceased's case, the seven blank lines were struck through in an apparently casual fashion, again with diagonal pen lines running from bottom to top.
The plaintiff completed clause 4 by inserting (written by hand in capitals): "I leave my rings to Kristy Marlow".
I will now set out the relevant parts of the deceased's will, which is clause 5. The additions were written by hand in capitals:
5. Residuary/Residue of my Estate
I give the residue of my estate to MY WIFE VIOLET MARLOW AND TO STAY AT [STREET ADDRESS INSERTED] TILL SHE DIES THE HOUSE OR BELONGINGS NOT [NOT INTERLINED] TO BE SOLD UNTIL THE DEATH OF MY WIFE VIOLET MARLOW ALSO ALL MONEY IN BANK GOES TO MY WIFE [signed] JH Marlow
But if he/she/they predecease me then I give the residue of my estate to MY CHILDREN MARK MARLOW, TRACY MARLOW, JOANNE ROE, DIVIDED EQUAL SHARE, IN THE EVENT ANY OF MY STATED CHILDREN PREDECEASE ME THEIR SHARE IS TO BE DIVIDED BETWEEN THEIR CHILDREN EQUAL SHARE.
It is not necessary to set out the plaintiff's clause 5 verbatim. She simply gave the residue of her estate to the deceased. The gift, in the event that the deceased predeceased her, was identical to the one in the deceased's will, extending to the precise incomplete language used.
I will now turn to the issue of the proper construction of the deceased's will.
No party suggested that the fact that the deceased had separately signed the first insertion in clause 5 had any particular significance. It is a matter for speculation, but it is possible that the deceased placed his signature on the document to authenticate the insertion of the word "NOT" between "BELONGINGS" and "TO", following the deceased noticing that the word had been omitted.
As the deceased's will was written in simple terms by a lay testator, in my view the proper approach for the Court to adopt is to try to glean what was most probably the intention of the deceased by using the ordinary meaning of the words that he adopted.
Although the deceased appears to have somewhat casually struck through the parts of the will form that were not relevant for his purposes, the Court should assume that he read the form carefully before he completed it.
By doing that, the deceased would have understood that he did not wish to make any special gifts.
In that context, even though a lay person may not have a sophisticated understanding of the meaning of a residuary gift, the word "residue" is a word of common use, and one that would be understood by a person of ordinary intelligence.
The deceased most probably understood that the purpose of clause 5 was to deal with the balance - or residue - of his estate, and as he had not made any special gifts, the residue would be the whole of his estate.
That conclusion is reinforced by the strong likelihood that both the deceased and the plaintiff knew what was in the other's will - given, in particular, the fact that the terms of the residuary gift, if the primary beneficiary predeceased the testator, was written in identical language. Either the one testator wrote out the relevant part of both wills, or one testator copied what the other had written.
In my view, the use of the word "AND" and the word "ALSO" are significant, because they were written in the deceased's own hand, and are clearly words intended to mean that the expression that followed the use of the word was intended to achieve something in addition to that which was achieved by the words preceding the word.
Viewed in that light, the first part of clause 5, dealing with the gift to the plaintiff, was in three parts, namely: (1) a gift of the residue of the estate to the plaintiff; (2) a statement of the deceased's intended purpose, being that the plaintiff could stay at the Blacktown property until she died, which property was not to be sold until the plaintiff's death; and (3) the plaintiff was to be entitled to all money in the deceased's bank account.
I have not yet attributed a meaning to "or belongings" in what is said above, but take it to mean that the expressed intention was directed at the house and the contents.
The second part of clause 5 was addressed to the event that the plaintiff predeceased the deceased. "Predecease" is a word of ordinary meaning that would have been well understood by the deceased. It is notable that the word "predecease" is repeated in handwriting in respect of the possibility that any of the children would die before the deceased. The context in which the word "predecease" was used in handwriting makes it completely clear that the deceased understood the proper meaning of the word.
The consequence is that, whatever meaning is to be attributed to clause 5 as a whole, it only constituted a contingent gift to the third to fifth defendants that they would take if the plaintiff died before the deceased. There is no other express gift in clause 5 to the third to fifth defendants.
That still leaves the need to make sense, if possible, of the first part of clause 5.
The biggest problem is the logical inconsistency between the deceased's giving the residue of his estate to the plaintiff, and then separately making a statement that the Blacktown property was not to be sold until the plaintiff's death, and she had a right to stay there until she died. The gift of the residue would make the plaintiff absolutely entitled to the Blacktown property, so the additional words would not have any effect.
That position creates a choice as to whether the deceased actually intended to make an absolute gift of residue to the plaintiff, with his next gift being ineffective or meaningless, or whether all that he intended to do was to create some right in the plaintiff for her life in respect of the Blacktown property.
This is a difficult question that can only be answered on balance.
I consider that it is proper to start from the point that, even though the will form is a basic document, it is plainly a form that is intended to make testamentary arrangements with the whole of the user's property. I am satisfied that the deceased would have understood that clause 5 was intended to deal completely with the whole of his residuary estate. The deceased did not intend to die intestate in respect of any part of his estate.
If the part of clause 5 that I have described as being part (2) was intended to grant the plaintiff a life estate or some other right for life in the Blacktown property, it is clear that the will did not deal with the remainder, other than to leave it to fall into the residuary estate.
That is, one thing that it is clear that the deceased will does not do is to give the remainder of the interest in the Blacktown property to the third to fifth defendants, after the end of any life interest in the plaintiff. While, for the reason I suggest below, the deceased may have had a general expectation that his children would ultimately inherit the Blacktown property, the terms of his will do not justify the implication of a term giving the remainder in the Blacktown property to the third to fifth defendants.
The legal effect of the gift of residue to the plaintiff is that she will receive, on the death of the deceased, all of his property that is otherwise not specifically given to some other party.
Consequently, the choice that the Court has is between the possibility that the deceased intended, having regard to the terms of his will, that the gift of the residue to the plaintiff would capture the remainder, or whether the deceased intended the remainder after the end of the plaintiff's life interest to be dealt with on intestacy.
I prefer the former of those possibilities, even though that leads to a difficulty in explaining what the deceased had in mind by effectively giving the plaintiff an absolute interest in the Blacktown property, and then adding instructions as to what was to be done with that property during the plaintiff's lifetime.
I could understand why the deceased may have wanted to give the plaintiff a life interest in the Blacktown property, if he had dealt with the remainder in favour of his children. However, as I have said, it is impossible to read into the words used by the deceased any gift at all created by clause 5 in favour of the third to fifth defendants. There is simply no reason for the Court to conclude that the deceased had an intention that the remainder in respect of the Blacktown property would be dealt with on intestacy.
The best explanation that I have been able to deduce arises out of the fact that the plaintiff's and the deceased's wills were drawn and executed at the same time, it being evident that each knew what the terms of the other's will were.
Given the terms of the plaintiff's will, if the deceased understood that the terms of the plaintiff's will would never change, then he would understand that, if the plaintiff died before him, he would inherit the whole of her estate. In that case, the Blacktown property would devolve under his will, and he could be sure that the property would be shared by his children.
However, if he died before the plaintiff, then the Blacktown property would go to the plaintiff. Even though that gift would be absolute, the deceased would think that, eventually, the property would go to the children under the plaintiff's will, because of its terms, and because he had died before the plaintiff.
Looked at in this way, the wording in part (2) of clause 5 is not a gift intended to cut down the absolute gift of residue, but it is an instruction as to what is to happen to the Blacktown property during the course of the plaintiff's lifetime, in the period before the deceased expected that the property would go to the children under the plaintiff's will.
It does not matter whether or not this explanation of what the deceased was thinking is correct. It is offered to explain the probability that the deceased contemplated that the Blacktown property would ultimately go to the third to fifth defendants. However, that would not be by means of the deceased's will, because if that was what he intended, he could explicitly have provided for it. He did not. The more likely explanation of the deceased's contemplation that the third to fifth defendants would ultimately get the Blacktown property is that the deceased assumed that, if he died before the plaintiff, they would get the property under her will, and the deceased - erroneously - thought that he could control what happened to the Blacktown property during the balance of the plaintiff's life.
For these reasons, I conclude that the true effect of clause 5 of the deceased's will was, in the events that have happened, to make an absolute gift of the Blacktown property to the plaintiff.
If that conclusion is wrong, I would have found, with some hesitation because of the lack of clarity in the wording, that the effect of clause 5 of the deceased's will was to give a life estate to the plaintiff. That is for two principal reasons. First, even though the deceased used the expression "TO STAY AT" the Blacktown property, he stipulated that it was not to be sold until the death of the plaintiff. The deceased therefore contemplated that the Blacktown property would remain part of the estate, and not be available to any other person entitled to share in his estate, until the death of the plaintiff. The entitlement of the executors to apply the Blacktown property for the benefit of any other party did not continue only so long as the plaintiff resided at the property. Secondly, I can think of no reason why the deceased would have wanted to limit the plaintiff's rights in respect of the Blacktown property to some right of residence. That is particularly so in light of the appearance that the only person who would have the funds necessary to maintain the Blacktown property during the lifetime of the plaintiff was the plaintiff. There were no other assets in the deceased's estate that would have enabled the executors to maintain the property.
I am satisfied that, whatever estate or interest the plaintiff received under the deceased's will, she has not lost that estate or interest by abandonment. The parties did not deal in any detail with the legal principles that may be involved in the determination of whether a party entitled to an estate or interest in land has lost it by abandonment. Be that as it may, all that has been proved is that the plaintiff left the Blacktown property for a period of four months to visit a relative in Queensland, and then, after she suffered a fall, she went to live with that relative. The time involved was a small number of years. My conclusion in this regard is reinforced by the fact that I have not construed the deceased's will as giving the plaintiff a right in the Blacktown property limited in duration to the period while she was able to reside at the property.
In all of these circumstances there may remain a question, which does not arise on the present proceedings, as to whether in fact the plaintiff and the deceased made mutual wills on 16 November 2002. That is a possibility, but it is also possible that the deceased only acted upon a hope and expectation that the plaintiff would not change the terms of her will without the deceased's consent during his lifetime, and would not do so at all after his death. Some of the evidence given by the first defendant, and the circumstances in which the two wills were produced, suggest that the defendant may have believed that he and the plaintiff had made mutual wills, but that is not an issue that arises for consideration.
The plaintiff is entitled to an appropriately worded declaration concerning the rights granted to her by the deceased's will. I will invite the plaintiff to bring in short minutes of order to give effect to these reasons, after conferral with the defendants.
I will hear the parties as to the costs of the proceedings.
[3]
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Decision last updated: 24 March 2020