1.12.4 I give the remainder of my estate to Andrew Muir (or his nominee) except to the extent, I have elsewhere identified specific items and any wish for such items to be given to other individuals.
13 The will goes on.
Management, income, borrowings and expenses before conversion complete
1.13 Until conversion of my property into money is complete, my trustee may manage my assets in the way my trustee thinks fit. Any income from my estate is to be treated as income and is to be distributed among recipients of cash gifts in the proportions outlined above.
1.14 I recognise that the subdivision of Meadowvale and the sale of part of it required to effect the cash gifts listed above will take some time and require some expenditure for relevant applications, approvals and associated documentation. Accordingly, my trustee may borrow against the assets of my estate whatever funds are required for this purpose and to effect such subdivision and sale(s) and/or, in his absolute discretion, my trustee may borrow funds to pay out the cash gifts listed in clauses 1.6.1 to 1.6.14 inclusive above prior to realisation of any proceeds from the sale of any part of Meadowvale. All interest associated with any such borrowings is to be met by my estate.
Family maintenance claims
1.15 I have thought very carefully about the distribution of my estate and I have given careful consideration to the capacity and character of each recipient of a gift under this document and, equally, to the inclusion or non-inclusion of a range of individuals. Accordingly, I have ensured that Kathryn Muir receives a generous portion of my estate but that she receives it under such terms as best enable the value of the gifts to her to be preserved for her benefit. This has proven necessary in view of how she has handled the inheritance received from her late father.
1.16 I desire the terms of this document to be observed in full and for my executor to, subject to his discretion, contest any family maintenance claim in the event any is made by any person.
My executor's powers
1.17. My executor has the same powers in relation to the investment, realisation, management and every other aspect of my estate as he would have if he were the legal and beneficial owner of my estate. Those powers are exercisable in his absolute discretion.
14 There are further provisions dealing with trustee's remuneration and funeral arrangements.
15 It would not be possible to carry out the provisions of the will without raising money by sale of all or part of Meadowvale. The terms of the will show in several places that the testatrix fully understood this, and made several provisions which contemplated that all or part of Meadowvale would be sold by the executor. Clause 1.6 contains a scheme for a number of cash gifts to be paid by applying money raised by selling "the front 100 acres". Clause 1.7 shows that the testatrix understood and contemplated that this sale may not be possible, and makes other provisions "in order to realise the gifts referred to above."
16 It in fact was impossible to sub-divide the front 100 acres and to sell that part of the land to raise money. Mr Winn attempted to do so, and went to some lengths, including obtaining expert legal advice and making an application to Campbelltown City Council for development approval, which was refused; as it had to be having regard to town planning provisions which imposed minimum sizes of lots.
17 The difficulty with the construction of the will is that if one attempts to apply all the words in it literally the internal logic of the document does not work. If Clause 1.6 is applied literally, the amount of gift in Clause 1.6.15 cannot be known unless there is a sale or sales of the front 100 acres and the various gifts referred to in Clause 1.6.1 to Clause 1.6.14 are paid out of the proceeds. The plaintiff's Senior Counsel contended that the result is that the gift in Clause 1.6.15 does not take effect and no benefits under Clause 1.6.15 pass to Andrew Muir or Kathryn Muir. This would not have any practical adverse effect on Andrew Muir because under the disposition in the last sentence of Clause 1.9 he would receive any part of the proceeds of sale of Meadowvale which had not otherwise been disposed of.
18 The consequence of the plaintiff's argument is not an intestacy or partial intestacy; it is complete lack of effect of a provision of money for Kathryn Muir, leaving all the proceeds of sale to pass to Andrew Muir, so that all references to a gift of money to Kathryn Muir are superfluous. There is no indication anywhere in the terms of the will that the testatrix ever turned aside from the project of making a cash gift to Kathryn Muir. The difficulty is the apparent absence of the fund out of which the gift is to be made, not the absence of an intention to make the gift. There are irreducible defects in the internal logic of the language used in the will. There is a general reluctance of courts to find that a will fails for uncertainty. Making a will is a serious project, obviously intended to achieve the benefactions of which the will speaks.
19 In my opinion the testatrix intended something to pass to Andrew Muir and to Kathryn Muir out of proceeds of sale of "Meadowvale in its entirety" under Clause 1.7. This is clear because there is no qualification or restriction on the reference in Clause 1.7 to the gifts which are to be paid out of those proceeds - " in order to realise the gifts referred to above." The disposition in Clause 1.6.15 is one of "the gifts referred to above"; those dispositions are gifts in the ordinary meaning of the word "gifts" and they are gifts of money, which is what will be realised from the sale of Meadowvale in its entirety. The will refers to them as gifts in the heading "Specific cash gifts" which introduces Clause 1.6 and in the reference to the list of "the following cash gifts" which precedes subclauses 1.6.1 to 1.6.15. Clause 1.7 refers to the decision of the executor in his discretion "to ensure the gifts referred to above are paid".
20 There are other indications in the terms of the will of the intention of the testatrix that Kathryn Muir should receive a cash gift, that is a gift in addition to the property at Rose Bay. These indications include the detailed provisions in Clause 1.8, and the heading to that clause, dealing with how any cash gift is to be dealt with. It is to be dealt with for as basic a need as the purchase of a home, on terms to which the testatrix gave detailed attention; and for the investment of any residual amount. Clause 1.11.2 shows contemplation that there well may be funds held on trust for Kathryn Muir under the terms of the will at a future time. The statement at Clause 1.15 shows the testatrix' understanding that she had thought very carefully about the distribution of the estate, and that she had ensured that Kathryn Muir received a generous portion of her estate. The generous portion of the estate was a plurality of gifts "… the value of the gifts to her…". Clause 1.16 stated the testatrix' desire for "the terms of this document to be observed in full" (and I have added the emphasis).
21 The plaintiff's counsel contended that the first word - "Any" - in Clause 1.8 showed contemplation by the testatrix that it was possible that there would be no cash gift. I notice also the use of the word "any" in clause 1.6.15 - "… any proceeds to be derived…". This is an available conclusion about the reason for choosing the word "Any" but it is not the only conclusion available. The word "Any" may have been chosen to indicate an intention that Clause 1.8 should apply to a cash gift no matter how much or how little it was. "Any" is susceptible of a distributive meaning in which it extends to each of a plurality of cash gifts. Clause 1.8 could, in concept, have entered the drafting at a point before the testatrix had finally decided all other terms, and before she reached the position in which only one cash gift was possibly available to Kathryn Muir. In theory there is some conditionality about the gift in Clause 1.6.15 in that it is possible that after all the amounts given in Clauses 1.6.1 to 1.6.14 had been paid by applying the proceeds of sale of the front 100 acres there would be no balance left. On an overall view of the value of Meadowvale, this is an unlikely explanation for the choice of the word "Any". In my opinion the reasons contended for that choice put forward by Senior Counsel are unlikely to a similar degree. The choice of the word "Any" as an indication favourable to the construction of the will for which the plaintiff contends is in my opinion overborne by other indications appearing at various places throughout the will, including places later than Clause 1.8, that the testatrix understood that she had ensured that Kathryn Muir received a generous portion of her estate, and that the generous portion was made up of a plurality of gifts.
22 In practical terms it is an impossible reading that the terms of the will as a whole show that the testatrix intended that if the sub-division was refused the first 14 of the gifts referred to in Clause 1.6 would be paid but that nothing would be given under the two gifts referred to in Clause 1.6.15. If it truly was the testatrix' intention that Clause 1.6.15 would not be represented in a distribution under Clause 1.7 it is not in my opinion possible to accept, as rational intended human behaviour, that that intention would be conveyed in the language found in Clause 1.7; that is, that general words apparently adopting all the gifts in Clause 1.6 should be used with the intention that nothing would actually happen with respect to the gift in Clause 1.6.15.
23 It is not in my understanding a correct approach to the construction of wills to understand what they say only in entirely literal terms. It is improbable that the testatrix intended to bring about the result for which the plaintiff contends, and entirely improbable that she would have expressed that intention in the almost undetectably obscure way attributed to Clause 1.7. Interpreting a will is not an exercise from the logic schools nor is it an exercise in entire purity of language. The Court seeks to ascertain the intention of the testator as expressed in the language used, while understanding that the language used might not express that intention perfectly.
24 It is necessary to seek to understand the scheme of a testator's dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important. In that scheme overall it appears to me that, apart from the gifts of stated amounts of money and other gifts of relatively small items of property, the testatrix wished to provide Kathryn Muir with a fund of money to buy a home and also to provide her with the property at Rose Bay, and that she also wished a relatively much larger part of her property to go to Andrew Muir. In this scheme Kathryn Muir would receive a generous portion of her estate, a description which the testatrix gave to that provision after earlier dealing in separate ways with gift and management of a fund of money, and gift and management of the Rose Bay property. It was part of this scheme that if the gifts in Clause 1.6 could not feasibly be raised out of the front 100 acres they should be raised out of Meadowvale as a whole. Clause 1.7 and its provisions for selling Meadowvale as a whole if sub-division should not be possible were means of making sure that the gifts in Clause 1.6 were paid; it was not part of the scheme that provision of Clause 1.7 only dealt partially with the gifts in Clause 1.6, or subtly elided two of them without mentioning the project of leaving them out.
25 Although the failure of an apparent benefaction is a conceivable outcome there is no indication that it was the testatrix' intention that Andrew Muir should take a benefit under Clause 1.7 without a gift of money being available for Kathryn Muir. It can be safely assumed that testators do not intend, and that in this case the testatrix did not intend that words which expressly make a gift should not have effect for a reason which is not expressly indicated but is a lacuna or incomplete expression at some other place. It would not be rational to intend to make a gift and also to intend that it would fail for want of a supporting provision for a fund out of which to pay it. If there does not appear to be such a fund, it should be understood that the testatrix intended that there should be one and there should be a careful search to ascertain what it was, including consideration of whether there are any implications which should be understood from the express language used. Apparent failure of a gift is much more likely to mean that the reader has not fully grasped the testator's intentions than that no effectual intention was expressed; a signal for renewed consideration, and not a sign that consideration has ended.