Morgan v Moore [2000] VSC 94

[2000] VSC 94

Supreme Court of Victoria|2000-03-23|Before: Warren J

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Court

Supreme Court of Victoria

Decision date

2000-03-23

Before

Warren J

Source

Original judgment source is linked above.

Judgment (65 paragraphs)

[1]

These proceedings were brought by the plaintiff in his capacity as executor seeking declarations as to the meaning of the words in the will of the testator "for such of them my grandchildren". It was said that there is uncertainty as to when the testator referred to "grandchildren" in the will whether she meant the children of Judith Ward and Kevin Stafford whom I refer to hereafter as "the Group A Grandchildren" and the children of Colleen Moore and Veronica Bowman whom I refer to hereafter as "the Group B Grandchildren" or the latter group only. The Group B Grandchildren asserted that the residuary estate of the deceased should be distributed on the basis that the expression "grandchildren" in the will referred to those grandchildren only. The Group A Grandchildren contended that the expression "grandchildren" in the will included them as well as the Group B Grandchildren. Accordingly, the plaintiff sought a construction by the court of clauses 3(a) to (d) of the will as to who is included in the expression "for such of them my grandchildren as shall survive me and attain the age of ... ". The plaintiff conceded that the Group A Grandchildren and the Group B Grandchildren were all the "grandchildren" of the testator but that they may not necessarily all be "the grandchildren" for the purposes of the will. The first defendant, Andrew Percy Moore by his litigation guardian represented the Group B Grandchildren and the second defendant, Sherry May Stafford represented the Group A Grandchildren.

[2]

The matters described with respect to the taking of instructions by Mr McDonough were deposed to by him in affidavits filed in the proceeding. Mr McDonough was called to give evidence and he confirmed and adopted his two affidavits. He was cross-examined by Mr P. Barton, counsel for the second defendant, representing the Group A Grandchildren. In the course of cross-examination Mr McDonough said that the time taken to obtain instructions for the previous will was approximately 20 to 30 minutes. Mr McDonough said that when the testator made the previous will leaving the bulk of her estate to the hospital he had expressed concerns to the testator as to whether the will would be vulnerable to challenge under Part IV of the Administration and Probate Act 1958. Mr McDonough said that the testator came back to see him some days later and said that she had re-thought the previous will and wanted at that point to leave the three-quarter share that she had previously provided for the hospital to her grandchildren. Mr McDonough said that he asked the testator how many grandchildren she had and she informed him that she had five grandchildren. He asked the testator, also, how many children she had and she said that she had two children. The testator instructed Mr McDonough as to the value of her estate and on the basis of that information he prepared calculations for the testator saying how much each of the children and the five grandchildren would receive. Mr McDonough gave evidence that the testator said "That's in order". Furthermore, in the course of instructions for the will there was some discussion concerning the age at which the grandchildren were to receive their share. Originally the testator wanted the grandchildren to attain 25 years before becoming entitled under the will. Mr McDonough provided the testator with further advice concerning the enforceability of such a provision and ultimately the testator decided to make provision for the grandchildren on a graduated basis. Such instructions explain the unusual basis upon which the provision for the grandchildren was drawn in the will.

[4]

Belinda Lee Stafford, one of the Group A Grandchildren deposed by affidavit that she and her three sisters met the testator once during her lifetime. Belinda Stafford recalled that when she was about ten years old, her father, Kevin Stafford took his four daughters from Western Australia to Gippsland, Victoria for about two days to meet the testator. Ms Stafford recalled that the testator was cold towards her father and his children. Ms Stafford deposed that she and her three sisters were physically distinctive as they were part Aboriginal, their mother being Aboriginal. An affidavit was made, also, by Sherry May Maree Stafford. Another daughter of Kevin Stafford. She deposed that she recalled her father taking she and her sisters to Victoria in about 1976 to meet the testator. Sherry Stafford described in her affidavit that the testator rejected the children and asked Kevin Stafford to take them away. She recalled an argument between the testator and her father Mr Stafford but that they stayed at the testator's house for a short period. Kevin John Stafford deposed by affidavit that he took his four daughters to visit the testator in 1978. Mr Stafford confirmed the recollection of his daughters of the conduct of the testator on the occasion of the visit. Mr Stafford deposed by affidavit that he visited the testator on a later occasion in 1993 and that he believed that the attitude of the testator towards him mellowed on that occasion. Mr Stafford was not called to give evidence. Reliance was placed by the second defendant upon an affidavit sworn by Mr Stafford in this proceeding and another affidavit sworn by him in separate proceedings wherein he brought a claim under Part IV of the Administration and Probate Act 1958 against the testator's estate. Mr Stafford deposed that on the occasion of the 1993 visit to the testator" ... During the time I stayed with her she enquired as to the welfare of my daughters and their progress in life. There is no doubt that she was fully aware of their existence and was concerned enough to enquire as to their welfare." There was no objection taken to the evidence of Mr Stafford as contained in his affidavits.

[20]

"5.4 At common law evidence of a testator's dispositive intention is only admissible for the purpose of resolving equivocations, i.e., terms which are applicable indifferently to more than one person or thing. If a will contains a gift to 'my niece Mary Brown' and the testator has in fact two or more nieces named Mary Brown, extrinsic evidence of the testator's intention is admitted in order to determine to which of the testator's nieces named Mary Brown he intended to give the property. See Re Robertson [1946] VicLawRp 25; [1946] V.L.R. 162 and Re Smith [1939] VicLawRp 33; [1939] V.L.R. 213. 5.5 The authors of the Nineteenth Report conclude, in terms with which we respectfully agree, that: 'The broad picture is thus one of construing the words of the will according to their primary meaning, with the total exclusion of any other evidence of the testator's dispositive intention save in the case of equivocations, and a strictly limited admission of extrinsic evidence as to surrounding circumstances and possible secondary meanings of words in case of doubt. This system clearly conduces to certainty in the sense that the volume of material to be construed is severely restricted, and only rarely will any of it consist of oral or affidavit evidence, or, indeed, anything except the will itself. In short, there will rarely be any dispute about what material is to be put before the court in order to determine the effect of the will. On the other hand, however restricted the material and however skilled the draftsman, it is impossible to exclude all disputes in all circumstances.' 6. As we have indicated, we support the view that all extrinsic evidence should be admissible in the interpretation of a will, except direct evidence of the testator's dispositive intention (unless the latter be admitted for the purpose of resolving an equivocation: see para.5.4.). 7. We do not consider that an adoption of this approach would subvert the basic requirement of the Wills Act 1958 that testamentary wishes be expressed in writing. The admissible evidence would be factual, in the sense that it would merely be evidence of, for example, the context in which the will was made; it would not amount to direct evidence of the testator's dispositive intention. 8. We also consider that the general admissibility of such evidence will assist the court of construction whose function in interpreting a will is, as far as is consistent with the maintenance of the requirement of writing, to search for the true meaning which the testator intended his words to bear. ... "

[22]

"9. We are supported in our view by the observations and recommendations of the Nineteenth Report of the Lord Chancellor's Committee. We consider it worthwhile citing the relevant parts of that Report at length. We respectfully agree with them and consider that the reasoning contained in them is relevant and applicable to the Victorian situation: 'Mofidication of the Wigram Rules [i.e. the conventional wisdom as stated in para. 5.1 - 5.5 above]. 40. We therefore consider that, in principle and as a minimum, the Wigram Rules ought at least to be modified to allow the admission of extrinsic evidence of material facts for the purpose of establishing the special meaning or significance which the testator was accustomed to attach to any word, name or expression used in the will, or of establishing, as well as resolving, any equivocation in a will, notwithstanding that the ambiguity is not apparent on the face of the will. 41. Special meaning of words to testator. In the more general field of the interpretation of written documents such as contracts, the court is always willing to be instructed as to what the parties intended by the words they used. The words of Odgers on Construction of Deeds and Statutes apply: The admissibility of parol evidence in cases of this kind does not depend on any ambiguity in the expression to be construed: the question merely is 'whether or not the expression has, with reference to the subject matter of the contract, acquired a particular meaning'. The ultimate purpose of construing a will is acknowledged to be to give effect to the wishes of the testator ... there seems no reason not to take the ... step of discovering, by all means available, what those words (i.e. the words used in the will) conveyed to him. 42. This ought not to lead to uncertainty. In every case it will be a question of what the words in question meant to the particular testator, and meant to him as a normal and regular method of expression. Expressions such as 'British Empire Stamps', 'My nephew Bill', and 'The National Society for the Prevention of Cruelty to Animals' would all be fit subjects for this kind of interpretation. But if a testator uses ordinary language, none of the words or phrases employed being a word which is shown to have had a normal special meaning to him, it would be quite useless to proffer evidence that by the totality of this wording he meant something quite distinct from its normal meaning, as interpreted by the courts. If a testator writes 'My sister May is to have a dozen of my armchairs' it would be permissible to show -

[27]

"The second major amendment effected by the Bill is to provide for the admissibility of evidence of the circumstances surrounding, and facts known to, the testator at the time he made his will. Proposed section 22A of the Act implements the Chief Justice's Law Reform Committee's recommendations. The committee was of the view that in construing a will the court should be at liberty to take into account every relevant fact proved to have been known to the testator at the time of making his will. Under present law, the basic rule is that, in ascertaining a testator's wishes, the words of the will, are prima facie to be construed according to their strict and primary acceptation. The basic rule, however, is subject to three principle qualifications, so that the general approach taken is that of exclusion of extrinsic evidence, with limited exceptions to that approach. At common law evidence of a testator's dispositive intention is only admissible for the purpose of equivocations, that is, terms which are applicable indifferently to more than one person or thing. The overall picture is thus one of construing the words of the will according to their primary meaning, with the total exclusion of any other evidence of the testator's dispositive intention, save in the case of equivocations, and a strictly limited admission of extrinsic evidence as to surrounding circumstances and possible secondary meanings of words in case of doubt. The Government accepts the Chief Justice's Law Reform Committee's proposal that the existing law concerning the admissibility of extrinsic evidence to aid in the interpretation of wills be simplified and changed. Proposed section 22A(1) accordingly provides that any extrinsic evidence should be admissible to assist in the interpretation of a will, except direct evidence of the testator's dispositive intention (unless the latter be admitted for the purpose of resolving an equivocation). The primary benefits accruing from the general admissibility of such evidence are:

[29]

The orthodox view as to extrinsic evidence prior to the introduction of s.22A was demonstrated in Re Rowlands [1973] VicRp 21; (1973) VR 225. In that case the testatrix left her residuary estate to her brothers and sisters with a further provision in favour of the children of those brothers and sisters who pre-deceased her. A brother pre-deceased the testatrix leaving a child who was adopted on a defacto basis. At the time of the relevant adoption there was no legislation in Victoria making provision for the adoption of children by court order. The child was brought up as the only child of the testatrix's brother and was known to the testatrix. Many years before the testatrix made her last will the brother of the testatrix and his wife separated and the child moved interstate and had little contact thereafter with the brother of the testatrix or the testatrix. Menhennit J refused to admit any evidence concerning this background on the question of whether the testatrix intended to include the brother's defacto adopted child within the description in the will of children of the deceased brothers and sisters. In this respect, the learned judge reached five conclusions. Firstly, that the meaning of "children" was clear and unambiguous, that is, actually or formally adopted children. Secondly, that by the terms of her will the testatrix had not demonstrated any inclination to deviate from the strict and primary meaning from the word "children". Thirdly, that the testatrix's disposition, when construed according to its strict and primary acceptation and applied to the extrinsic circumstances, was not rendered nugatory. Fourthly, that there was no ambiguity on the face of the will and, therefore, evidence of surrounding circumstances was inadmissible. Fifthly, that, as a consequence, the defacto adopted child of the brother of the testatrix was ineligible to benefit under the substitutionary provision. The view has been expressed that if Re Rowlands came before the court today the extrinsic evidence rejected by Menhennit J would clearly be admissible under s.22A(1) of the Wills Act 1958.[5]

Morgan v Moore [2000] VSC 94

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Judgment (65 paragraphs)

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