NSW Trustee and Guardian v Matthews

Solicitors: NSW Trustee and Guardian (Plaintiff) N Dan (First, Second and Third Defendants) File Number(s): 2023/443421

Introduction

1. HIS HONOUR: The relatively rare occurrence of two siblings dying on the same day, at different locations and from different causes, forms part of the sombre events that have given rise to an interesting issue as to the construction of the short, and at first glance simple, Will of the late Bridget Christina Matthews (the deceased).
2. The plaintiff, the NSW Trustee and Guardian, is the successor to the Public Trustee, who obtained probate of the deceased's Will dated 19 June 1972 (Will) on 2 July 1975. The deceased's husband, William, predeceased her. As will be noted below, all of the deceased's nine children are now deceased.
3. Broadly speaking, the question to be determined is: Who is entitled to the remainder interest of the deceased's estate?

Procedural background

1. By summons filed on 7 December 2023, accompanied shortly after by a statement of facts filed on 14 December 2023, the plaintiff sought judicial advice that it is justified in distributing the estate in a certain way.
2. Judicial advice may be sought in respect of the interpretation of a trust instrument: s 63 Trustee Act 1925 (NSW); Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church Case) at [58] per Gummow ACJ, Kirby, Hayne and Heydon JJ.
3. There is no necessity for an application for judicial advice to name a defendant to the proceedings.
4. Questions regarding the construction of a Will may arise in a number of different contexts. On some occasions, it is necessary and appropriate for particular parties to be joined to the proceedings and for the matter to be determined with all of the relevant parties bound by the outcome. On other occasions, the obtaining of advice from the Court suffices, in a practical sense, to enable an estate to be appropriately distributed, without the necessity for a formal binding contest over the construction of the Will.
5. Judicial advice allows a form of risk management for executors. Where the proceedings remain as a form of judicial advice, the advice permits the trustee to act on a specified basis; the advice does not create a declaration of a legal right: Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; (2013) 10 ASTLR 251 at [30]-[31] per Lindsay J.
6. Whether the proceedings commence as a claim for "private" advice and continue that way or, alternatively, are transformed by the joinder of parties to become a contest between opposing interests, will depend upon a number of different factors, including: the nature and extent of any disputed issue of construction; the value of the property in issue; the size of the estate; and the tolerance of executors, beneficiaries or other interested parties of risks (forensic or otherwise) in being bound by an adverse outcome, including in respect of costs.
7. In any event, as the exigencies of each case may dictate, the Court has significant powers under its related jurisdiction regarding the administration of estates pursuant to Pt 54 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): see e.g. Macedonian Church Case at [41]-[42]. The Court also has powers under Pts 6 and 7 of the UCPR, which deal with the joinder of any necessary parties and the framing of proceedings in a manner which is appropriate to accommodate any relevant interested parties and conducive to the just, quick and cheap disposition of the real issues in the proceedings.
8. The Court has been provided with submissions from Mr Birtles, counsel for the plaintiff, regarding the judicial advice application and an opinion from him (as is a usual "requirement" on judicial advice applications) in respect of the construction issue.
9. I have been assisted by those documents, and also by oral submissions from Mr Birtles.
10. The summons and the statement of facts were served on Nicholas Dan, a solicitor acting in the interests of the executors of the estates of two of the deceased's children (Marie and Carmel), under cover of a letter dated 15 December 2023. There has been subsequent correspondence with Mr Dan on 7 February 2024 and 3 April 2024.
11. In a late development close to the time of the hearing, the executors for those estates sought to be heard on the application.
12. In the late afternoon of 14 May 2024, Mr Birtles communicated with my Associate and intimated that Mr Brown of counsel intended to seek leave to appear in the interests of the executors for whom Mr Dan acts.
13. I listed the matter at 2 pm on 15 May 2024 to clarify the intention of those parties. On that listing, I observed that there appeared to be a conflict in Mr Brown acting for the executors of both estates. He acknowledged that issue and indicated that he would have the opportunity to confer with Mr Dan and the interested parties in the morning. There being nothing further that could usefully be done on that occasion (yesterday afternoon), I simply noted that the matter would remain listed for hearing this morning and I would await any application that might be made by Mr Brown.
14. At 9 am this morning, Mr Brown, with the consent of Mr Birtles and another counsel, Mr Wiggins, sent an email to my Associate noting that it was anticipated that the hearing could proceed. In short, it was intimated that the executors of the estate of the deceased's daughter, Marie, wished to advance an intestacy outcome, but also that the residuary beneficiary of Marie's estate (described by Mr Wiggins as the Institute of Sisters of Mercy of Australia and Papua New Guinea) wished, by Mr Wiggins, to advance separate submissions.
15. There was no real dispute that there are essentially three tenable constructions of the relevant clause of the deceased's Will, to which I will refer below. On those constructions, the estates of respectively one child, three children or seven children would be entitled.
16. It is in the interests of the deceased's estate that all of the parties who may potentially have an interest in the matter be bound by the outcome. Each of Mr Birtles, Mr Brown and Mr Wiggins helpfully co-operated to facilitate such an outcome.
17. Ultimately, Mr Brown indicated that he would contend for an intestacy and, in that respect, would be submitting matters consistent with Mr Birtles' submissions for an intestacy. Mr Brown did not seek to formally appear but nonetheless remained in court to assist the Court, if required.
18. Mr Wiggins, on the other hand, acting in the interests of the residuary beneficiary of Marie's Will, sought to contend that Marie's estate was solely entitled.
19. I asked counsel to communicate with one another and formulate orders to facilitate the binding of parties. During the course of the morning, I proceeded, with the agreement of counsel, to hear the submissions on the construction issue.
20. Counsel for the parties have, after the luncheon adjournment today, provided the Court with proposed short minutes of order which have the effect of joining appropriate parties and making representative orders, as well as other facilitative orders, to enable the matter to be determined. At the conclusion of these reasons, I will make a form of those orders, together with other orders, to dispose of the matter.
21. The submissions on the matter were presented in a clear and efficient way, which has assisted me in determining the construction questions.
22. Prior to more precisely stating the construction questions, it is necessary to outline sufficient details of the deceased and her family, which matters are not in dispute.

The deceased and her family

1. The deceased died on 19 April 1975. She was married to William Matthews, who predeceased her in December 1970. There were nine children of the couple, consisting of five sons and four daughters. All of them are now deceased. In order of birth, they were William, Norma, Hugh, Margaret, David, Gordon, Marie, Terence and Carmel.
2. Terence died as an infant in 1940. Hugh predeceased his mother, passing away in 1972. Thus, seven of the children survived their mother. Five of those seven children progressively passed away, with the dates of death being as follows: William, in 1984; Gordon, in 2003; David, in 2006; Norma, in 2006; and Margaret, in 2010.
3. Marie and Carmel both passed away on 20 November 2020. The Court has been asked to assume and proceed on the basis that Marie predeceased Carmel. Each of Mr Brown and Mr Wiggins accepted that as the position. I was informed that one of Gordon's children, Christina Matthews (Ms Matthews), was present on the day that both Marie and Carmel passed away and could, if necessary, give evidence that Marie passed away first. I did not require evidence to be given to that effect, and simply proceeded on that undisputed basis.

The deceased's estate

1. The Court has been informed that the deceased estate included a property at Stockton, which was occupied by Carmel until shortly before her death. That property has been sold, and there are funds in the estate in the sum of approximately $487,978 which are undistributed.

The Will

1. By cl 1 of the Will, the deceased revoked all prior Wills and testamentary dispositions. By cl 2, she appointed the Public Trustee as executor and trustee of her Will. By cl 3, the deceased gave the trustee powers of sale and conversion and also retention of investments.
2. The only other clause of the Will, cl 4, is that which has given rise to the construction issue. It is in the following terms: 4. I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my Trustee UPON TRUST to pay thereout all my just debts funeral and testamentary expenses Probate Estate Death or other Duties AND THEREAFTER to use and apply the whole or any part of the capital or income therefrom for the maintenance comforts and necessities and such other benefits as my Trustee in his absolute discretion shall deem advisable for the welfare and happiness of my daughter CARMEL BERNADETTE MATTHEWS during her lifetime and from and after the death of my said daughter to hold any unexpended balance thereof UPON TRUST for such of them my children NORMA CHRISTINA MATTHEWS (known in Religion as Sister Mary Catherine) MARGARET MARY MATTHEWS (known in Religion as Sister Mary Cyprian) and MARIE THERESE MATTHEWS (known in Religion as Sister Mary Alberta) as shall be living at the date of death of my said daughter CARMEL BERNADETTE MATTHEWS and if more than one in equal shares absolutely.

The estates of the children who survived the deceased

1. As is evident from the terms of cl 4, three of the four daughters of the deceased had a religious calling. Each of Norma, Margaret and Marie entered the same religious order, being the Sisters of Mercy at Singleton. They never married.
2. The reason for the life estate in favour of Carmel is not revealed by any specific evidence. The cause of death set out in Carmel's death certificate reveals that, apart from the cardio-respiratory arrest which appears to have been the immediate cause of death, she had a number of chronic health conditions, including chronic obstructive pulmonary disease, Parkinson's and developmental delay.
3. Norma and Margaret made uncomplicated Wills on the same day, 9 November 1957, whereby they left their estates to the Trustees of the Sisters of Mercy, Singleton, and appointed what was said to be the body corporate of the Sisters to be the sole executor of their respective Wills.
4. Marie and Carmel also left simple Wills.
5. Marie left a Will dated 2 July 2020. She appointed Timothy James Askew and Ms Matthews as executors and trustees of her Will and, in the events which occurred, left the entirety of her estate to the Congregation of the Sisters of Mercy of Australia and Papua New Guinea for general purposes. Probate of Marie's Will had been granted to the named executors, Mr Askew and Ms Matthews, on 11 May 2021. She had a meagre estate totalling approximately $4,270.
6. Carmel left a Will dated 10 December 2013. She appointed Ms Matthews and Elizabeth Drover as executrices and trustees of her Will. In the events which occurred, she left her whole estate on trust and conversion to be divided amongst those of her nieces and nephews as shall be living at the date of her death and, if more than one, in equal shares. Probate of Carmel's Will was granted to the named executrices. She also had a relatively meagre estate totalling approximately $11,236.
7. William left a Will dated 11 April 1969, appointing the Public Trustee as executor. He left his estate to his wife, Rita, and, in the event that she predeceased him, upon trust for such of his children living at the time of his death and, if more than one, in equal shares.
8. Gordon left a Will dated 5 May 1972, appointing the Public Trustee as executor. He left his estate to his wife, Ann, and, in the event that she predeceased him, upon trust for such of "them my children (including my children Gerald… Paul Michael... Christina... and William…) as shall be living at the date of my death... and if more than one, in equal shares absolutely". The reference to "Christina" is to Ms Matthews.
9. The terms of each of William's and Gordon's Wills also contained an age qualification which might or might not give rise to construction issues. I have not been asked to determine such issues.
10. There are no records of probate having been lodged for the estates of William, Norma, Margaret, David or Gordon.

Issues

1. The dilemma for the plaintiff as the executor of the deceased's estate, and also for the interested parties that have been joined, is essentially whether the remainder of the deceased's estate passes to the legal personal representatives of: 1. Marie's estate (Option 1); 2. the estates of Norma, Margaret and Marie (Option 2); or 3. the estates of the seven children that survived the deceased (Option 3).
2. The above outcomes arise as possibilities based on different constructions of cl 4 of the deceased's Will.
3. The Option 1 outcome arises if the provisions of cl 4 were construed such that Marie satisfied the condition that she be living at the date of the death of Carmel, as the life tenant, as distinct from the time of death of Carmel.
4. The Option 2 and Option 3 outcomes depend on a question of vesting of the remainder interest in the deceased's estate. That question is whether the wording of cl 4 merely denotes the order of successive interests, such that the remainder interest vested in the nominated remainder beneficiaries at the date of the deceased's death but was not to vest in possession until after the death of Carmel, or alternatively, the remainder interest did not vest in interest until after the death of Carmel.

Will construction principles

1. In Reeves v Reeves [2024] NSWSC 134 and "Will Construction" (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023, I addressed some of the principles of Will construction. I note the following.
2. There is only one true construction of any legal instrument, including a Will: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [154] per Edelman J; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78-79 per Isaacs J; [1925] HCA 18.
3. There is discussion in estate law texts regarding the correct approach to construction. It has been suggested that there are two types of approaches. The first approach requires looking for the ordinary meaning of the word or passage, and is described as the literal (otherwise referred to as the "grammatical" or "objective") approach, while the second requires looking for the meaning intended by the Willmaker, described as the intentional (otherwise referred to as the "inferential" or "purposive") approach: e.g. Roger Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (12th ed, 2009, Sweet & Maxwell) (Parry and Kerridge) at 240; David M Haines QC, Construction of Wills in Australia (2007, LexisNexis Butterworths) (Haines) at 35; G E Dal Pont, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) (Dal Pont) at 1.
4. The literal approach is premised on the notion that there is a "correct" and "proper" sense of a word in a Will, and is said to have the advantage that whenever a word appears in a Will, it means the same thing: Parry and Kerridge at 241.
5. However, the intentional approach has prevailed in Australia: Haines at 30, 35; Dal Pont at 1.
6. Thus, the object of construction of a Will is to give effect to what can be ascertained, having regard to admissible extrinsic evidence, the Willmaker intended by the words he or she used: e.g. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50] per White JA (Gleeson JA agreeing), citing Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 (Fell v Fell) at 273-274 per Isaacs J; Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC, 416 per Lord Thankerton.
7. Whilst attempting to encapsulate in a shorthand form two approaches to construction, the above-mentioned labels may be misleading as to what may be taken into account in the task of construing Wills.
8. To be clear, whilst the literal ("grammatical"/"objective") approach has been rejected in Australia, it would be wrong to conclude that grammatical considerations play no part in the proper approach to the construction of Wills. Conversely, the intentional approach does not seek to subjectively, as distinct from objectively, ascertain what the Willmaker intended from the words appearing in their context and against the backdrop of admissible extrinsic evidence: Dal Pont at 1.
9. This much is made clear by Issacs J in Fell v Fell at 273-274 (in particular, by the first and second of the ten "incontestable" principles). Put another way, the Court discerns the Willmaker's intended meaning from the Willmaker's expressed intentions; the Court does not seek to discern what the Willmaker subjectively intended or meant to say or do when making the Will, but what the Willmaker actually said by the words in the Will: Middleton v Schofield [2022] NSWSC 1454 at [17] per Robb J.
10. Specifically, grammatical considerations, sentence structure and common English usage are all matters to which the Court may properly have regard in determining the Willmaker's expressed intentions.
11. Moreover, the exercise of reading the Will as a whole instrument may, in appropriate cases, reveal a scheme which the deceased had conceived for dealing with the estate, which in turn assists in discerning intention: Fell v Fell at 273-274 (the second principle); Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 (Fairbairn) at [19] per Campbell JA (Macfarlan and Young JJA agreeing), citing Powell J in Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep) at 14, which passage was approved by Bryson J in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 33.
12. Where the terms of the Will are perfectly clear, searching for the scheme may be of little use, but where the language is obscure or the effects of a literal reading and the reasoning impliedly underlying it are startlingly unlikely, the scheme of dispositions may be very important in construing the Will: Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ.
13. All of the counsel who appeared and made submissions properly accepted that questions of construction are essentially fact specific. In this sense, no case can truly provide any precedent for construction of a Will that subsequently comes before the Court for consideration: see Gibb-Maitland v Perpetual Executors Trustee & Agency Co (WA) Ltd (1947) 74 CLR 579 at 586 per Rich J; [1947] HCA 35.

Extrinsic evidence

1. It is not suggested that there is any particular extrinsic evidence relevant to the construction issues in this case beyond that which I have outlined above.

Class gift construction - rejected

1. In his opinion (which he was content to have treated as submissions on the reconstituted construction suit), Mr Birtles has appropriately addressed the legal principles regarding vesting of remainder interests and class gifts.
2. As Mr Birtles noted, a class gift is a gift where "the persons in question must be united or connected by a common tie so that you can say that the testator was looking to the body as a whole rather than to its members as individuals": Re Michell (deceased) (1971) 2 SASR 312 at 320 per Bray CJ.
3. I am not persuaded that the gift in cl 4 to the remainder beneficiaries is a class gift. As Mr Birtles submitted, where the testatrix identifies individuals within the class by name or number, that fact is an indicator in favour of a construction that the gift is an individual gift rather than a class gift: e.g. Re Smith's Trusts (1878) 9 Ch D 117; Re Selby (deceased) [1952] VLR 273.
4. In any event, the terms of cl 4 and the provisions of s 26(1) of the Conveyancing Act 1919 (NSW) count against the construction of the gift to the nominated remainder beneficiaries as creating a joint tenancy.

Option 1

1. Option 1 is a possible outcome due to the happenstance that both Marie and Carmel died on 20 November 2020. It might be said that Marie, under the provisions in cl 4, takes the remainder interest as she was, at least in one sense, living at the date of death of Carmel.
2. Mr Wiggins proceeded on the basis that there was a form of remainder interest which was not a class gift. He submitted that, following the expiry of the life estate, a trust was created for the remainder interest which did not involve a requirement that Marie survived Carmel. In particular, he submitted that on the construction of cl 4 itself, the remainder trust is not created until after the death of the life tenant. Mr Wiggins said the fact that the clause does not use the words "after the date of the death of the life tenant" should be of no effect in the Court's interpretation, because the remainder interest could never have been held on trust until Carmen had passed away.
3. Mr Birtles made reference to Haines at 188-189, where the learned author stated that when "survive" is used in an active or transitive sense, it means "to live longer than or beyond, to outlive or overlive, to outlast" a person (citing Knight v Knight (1912) 14 CLR 86 at 96 per Barton J, 106 per Isaacs J; [1912] HCA 36 (Knight v Knight)). In that context, it means "living at some date after my decease": Haines at 188, citing Knight v Knight at 105 per Isaacs J.
4. Mr Wiggins submitted that, within the fifth principle outlined by Isaacs J in Fell v Fell, one cannot give effect to any intention which is not expressed or plainly implied in the language of the Will, and there is no right to fancy or to imply something that is not there.
5. Mr Wiggins further submitted, within the tenth principle outlined by Isaacs J (that the mind never inclines towards intestacy), that the presumption against intestacy supports his construction. He further stated that survivorship by Marie (relevantly of the life tenant, Carmel) is not necessary, nor was survivorship by Marie required by the ordinary meaning of the words "living at the date of death"; that is simply the normal outcome.
6. Ultimately, Mr Wiggins contended that Marie fulfilled the condition that she was living at the date of death of Carmel, and so her estate is solely entitled.
7. Mr Birtles submitted that the construction for which Mr Wiggins contended had an element of artificiality about it.
8. Mr Birtles drew my attention to dictionary definitions of the word "date". He made reference to the Shorter Oxford English Dictionary (6th ed, 2007, Oxford University Press), which included reference to a number of potential meanings: 1. The day of the month; the day of the month, the month, or the year of an event; the time or period at which something happened or the time at which something is to happen. … 2. Term of life or existence; season; duration. 3. The period to which something old belongs; the age (of a thing or person). 4. The limit or end of a period of time or of the duration of something.
9. Mr Birtles submitted that the appropriate choice of wording for "date", in the context of the deceased's Will, was the third part of the first definition, namely, "the time or period at which something happened or the time at which something is to happen"; the "thing" being the death of the life tenant.
10. Mr Wiggins, for his part, focused attention on the opening words of that first definition, being "the day of the month…".
11. Mr Birtles also referenced The Macquarie Dictionary (revised ed, 1985, Macquarie Library Pty Ltd) definition of "date" as follows: 1. a particular point or period of time when something happens or happened. … 3. the time or period of an event or to which anything belongs. 4. the time during which anything lasts; duration. … 7. to date, to the present time.
12. The law does not in general recognise fractions of a day: Combe v Pitt (1763) 3 Burr 1423 at 1434; 97 ER 907 at 913 per Lord Mansfield CJ for the Court; Prowse v McIntyre (1961) 111 CLR 264 at 270 per Dixon CJ, 271 per McTiernan J, 274 per Kitto J, 276 per Taylor J, 278, 280 per Windeyer J; [1961] HCA 79; La Forrest v Ford [2002] 2 Qd R 44; [2001] QCA 455 at [23] per Thomas JA (McMurdo P and Cullinane J agreeing).
13. In most cases, there is usually no real need to be precise about the timing of an event within a day. In Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463; [1952] HCA 71, Kitto J observed at 482 that: The statement frequently made that a valuation for purposes of estate duty is to be made as at the date of the death is not precise, but it is only in an exceptional case that the lack of precision matters. It is natural enough, and sufficiently accurate in the ordinary run of cases, to speak of "the date of death" in this connection, because it is usually true, and one tends to assume, that the circumstances existing at the death remain constant throughout that day. The tendency is doubtless fostered by the refusal of the law, for many purposes, to pay regard to fractions of a day. A good example of the common tendency to use the expressions "the date of death", "the time of death" and "the death" as if they were interchangeable is provided by article 6 itself: see "upon the death" in par. (i); "at the date of his death" in par. (ii) (twice); "from the date aforesaid" in par. (iii); and "from and after the death" in par. (iv).
14. However, the law will have regard to parts of a day where it is necessary for the purposes of the decision to establish a sequence of events: Campbell v Strangeways (1877) 3 CPD 105 at 107 per Grove J; Eaglehill Ltd v J Needham Builders Ltd [1973] AC 992 at 1006 per Viscount Dilhorne; see also R v O'Brien; Ex parte Dalmatia Gold Mining Co Ltd (1880) 6 VLR (L) 429 at 429; Cooper v Chief Commissioner of Land Tax (NSW) (1988) 12 NSWLR 660 at 668 per Yeldham J.
15. The authors of the second edition of Interpretation classify both the general principle and the exception as part of the "principal common law rules" concerning the reckoning of time in private instruments: see Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [21.80].
16. On that basis, the exception that the law will have regard to parts of a day where it is necessary to establish a sequence of events may be applicable in construing the term "date of death" in the deceased's Will.
17. While the deceased's estate is not a large one, the property within it is of some substance, and it may be natural for the parties competing over that property to seek a detailed analysis and reasons for coming to a view of construction.
18. However, the reality of estate law is that, in many cases, the guides to construction of a Will provide relatively barren assistance in construing short Wills which have been put in relatively simple terms. Often, there are only slight indicators which tend to reveal the intention.
19. The structure of cl 4 has three elements which can be readily identified.
20. First, the opening of the clause, up to the words "and thereafter", contains words which are commonly used to convey the deceased's estate to her trustees for the purposes of paying just debts, funeral and testamentary expenses and the like.
21. Secondly, the words "and thereafter" through to the words "during her lifetime" create a form of life estate, or life interest, for Carmel.
22. Thirdly, the words "and from and after the death of" through to the conclusion of the clause create what I have described as the remainder interest.
23. Leaving aside resort to any presumptions and simply focusing upon the actual text of the clause, a number of matters are evident.
24. First, the specification of Carmel as "my said daughter" is immediately connected with, and qualifies, the phrase "as shall be living at the date of death of".
25. Secondly, the opening words of what I have described as being the third element (i.e. the remainder interest) make clear that the unexpended balance of the property that is under the second element, given previously on the life estate, is disposed of with the words commencing "and from and after the death of my said daughter...".
26. The words "and from and after the death of my said daughter" connect with and in my view decisively influence how the words "as shall be living at the date of death of my said daughter" should be understood.
27. Thus, reading the clause as a whole, it is evident that the nomination of Carmel's three sisters as remainder beneficiaries is made in a context in which the clause provides a survivorship condition which requires one or more of Carmel's three sisters to be living at the time of her death.
28. Put another way, the words "and from and after the death of my said daughter" connect with the words "as shall be living at the date of death of my daughter" to create a survivorship condition such that the remainder interest only takes effect and vests in interest if one or more of Carmel's three sisters actually survive her (i.e. are alive at the time of her death).
29. Although, as has been noted, precedents are of little value, I note that there is a decision of the New Zealand Court of Appeal in Re Dawson [1987] 1 NZLR 580 (Re Dawson) which is suggestive (but not determinative) of the necessity for survival in a case such as this. That case provides an example of a gift containing the same phrase "as shall be living at the date of death" that appears in this Will. In Re Dawson, those words referred to the death of the testator's widow. The ordinary import of those words, absent any contrary indication in the Will, was found to be that, in order to take, the intended donees must survive the widow: Re Dawson at 585 per Somers J.
30. The practical consequence of the construction of the words "as shall be living at the date of death" adopted by Somers J in Re Dawson is that the words, taken together, impose a requirement of survivorship; the word "date" itself should not be given undue weight. In this case, the words "as shall be living at the date of death" similarly require that the intended donees, one or more of Carmel's sisters, survive the life tenant, Carmel. In the events which occurred, that necessarily involves construing the words so as to require survival at the time of death of Carmel, with the consequence that Marie did not survive Carmel.
31. Mr Brown, although not formally appearing, drew the Court's attention to a subsequent decision of the New Zealand Court of Appeal in McLean v The Public Trust [2019] NZCA 449, in which the Court (with reasons given by French J) made reference to the decision in Re Dawson without any apparent criticism.

Option 2

1. The main arguments in favour of the remainder interest being destined for the estates of the three remainder beneficiaries essentially arise from various legal presumptions.
2. One presumption is that in favour of early vesting. This is supported by the fact that there is no gift over in the events which have occurred, namely, that none of the remainder beneficiaries actually outlived the life tenant, Carmel.
3. Such a construction is also supported by the presumption against an intestacy, as noted by Mr Birtles.
4. In his opinion, Mr Birtles referred to the decision of the Court of Appeal in Fairbairn and the decision of Windeyer J in Bassett v Bassett (2003) 58 NSWLR 258; [2003] NSWSC 691 (Bassett).
5. Mr Birtles distinguished those cases, noting that the survivorship condition was not present in the Wills considered in Fairbairn (other than with respect to the children of Kitty which was not the subject of the judgment, because Kitty died without having children) and Bassett.
6. Mr Birtles further drew my attention to the decision of Vice-Chancellor Sir John Leach in Sturgess v Pearson (1819) 4 Madd 411; 56 ER 757 (Sturgess). In that case, the relevant clause was as follows: I give the interest and dividends of one other fifth part thereof to be paid to my daughter Anne Tatnall, during her natural life; and after her decease, I give the same to be equally divided amongst her three children, or such of them as shall be living at her decease, the same to be paid to them at their age of twenty-one years.
7. The Vice-Chancellor reasoned that the children took vested interests as follows: If the will had stopped with the bequest of the interest and dividends to A. Tatnall for her life, and after her decease to be equally divided amongst her three children, it is clear the children would have taken vested interests; but the testator adds these words, "or such of them as shall be living at her decease;" and upon this expression the difficulty arises. If I were to indulge conjecture, I might think the testator did not intend that the children should take unless they survived their mother; but where the expressions used are capable of a sensible effect, it is not safe to depart from them. The vested interests first given by the will are, by the form of the expression, only defeated in case there shall be some or one, and not all of the children living at the mother's death; but that event did not happen, for there was not one child living at the mother's death. The alternative branch of the sentence, therefore, fails, and the primary expression, which gave vested interests to the children, takes effect. The case of Harrison v. Foreman is in point.
8. Mr Birtles submitted that, in Sturgess, the remainder gift appeared before the contingency. He contended that the sentence structure and form of the contingency were distinguishing features from the Will in this case. Mr Birtles drew my attention to Re Byrne, deceased [1967] VR 96 and Re Gaffney [1961] VR 682 as cases which had in some way followed or applied the decision in Sturgess. He distinguished those cases on the basis that the structure of the clauses in question were, again, instances of where the remainder gift appeared first, followed by a contingency.
9. I am grateful for Mr Birtles drawing those decisions to my attention.
10. Having regard to the wording and sentence structure of cl 4, I accept the submission of Mr Birtles that the proper construction of that clause is such that it does not create an order of succession of remainder interest vesting at the date of the deceased's death.

Option 3

1. The outcome of the matter is that the remainder interest of the deceased's estate is held for those entitled on intestacy, being the estates of the deceased's seven children living at the date of her death. That is, the Option 3 outcome I have outlined above.
2. Mr Birtles drew my attention to the provisions of the Administration of Estates Act 1954 (NSW), which he submitted introduced the intestacy provisions into the Wills, Probate and Administration Act 1898 (NSW) applying to estates of persons dying, relevantly, as of April 1975. I have been able to source a consolidated version of the Wills, Probate and Administration Act 1898 (NSW), certified as at 30 May 1974, which contains the relevant provisions.
3. Part 2 Div 2A contains provisions in respect of persons dying intestate or partially intestate on or after 1 January 1955, but does so in a curious drafting manner. Specifically, s 61A(2) provides the relevant intestacy provisions via substitution of earlier sections, being ss 49, 50 and 51.
4. Thus, within the consolidated version of the Act, there is set out ss 49, 50 and 51 but, in the following division (Div 2A), the (revised) version of those sections, operative in respect of persons dying intestate or partially intestate on or after 1 January 1955, are set out under s 61A(2). Relevantly, s 49(1) as substituted by s 61A(2) is as follows: 49. (1) Subject as aforesaid, and subject to the provisions of sections 50, 52 and 53, the real and personal estate, vesting as aforesaid, as to which any person (in this section referred to as "the intestate") dies intestate shall - (a) be held by the administrator on intestacy, or in the case of partial intestacy by the executor or administrator with the will annexed, as the case may be - (i) as to the real and personal estate - (a) where the intestate leaves issue, in statutory trust for the issue of the intestate; (b) where the intestate leaves no issue but both parents, in trust for the father and the mother in equal shares; (c) where the intestate leaves no issue but one parent, in trust for the surviving father or mother; (d) where the intestate leaves no issue or parent, in trust for the following persons living at the death of the intestate, and in the following order and manner, namely: - … (ii) as to the real estate as if the same had been devised to the persons for whom it is held in trust under this section; and (b) in default of any person taking an interest under paragraph (a) or under section 50, belong to the Crown as bona vacantia. …
5. Considering s 49, the applicable provision is s 49(1)(a)(i)(a), which indicates that where the intestate leaves issue, the estate property is held in "statutory trust" for the issue of the intestate. The meaning of "statutory trust" is set out in s 49(2)(a) as substituted by s 61A(2) as follows: (2) (a) Where under this section real and personal estate of an intestate or any part thereof is directed to be held in statutory trust for the issue of the intestate, the same shall be held upon the following trusts, namely: - (i) In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, and for all or any of the issue living at the death of the intestate of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking. (ii) Where the real and personal estate of the intestate held in statutory trust for issue is divisible into shares, then any money or property which, by way of advancement or on the marriage of a child of the intestate, has been paid to such child by the intestate or settled by the intestate for the benefit of such child (include any life or less interest and including property covenanted to be paid or settled) shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so paid or settled in or towards satisfaction of the share of such child or the share which such child would have taken if living at the death of the intestate, and shall be brought into account, at a valuation (the value to be reckoned as at the death of the intestate), in accordance with the requirements of the administrator, executor or administrator with the will annexed, as the case may be. This subparagraph applies only where the intestate dies totally intestate or, though leaving a will, dies intestate as to the complete beneficial interest in his real and personal estate.

Costs

1. In relation to costs, the plaintiff, as the executor of the deceased's estate, should receive its costs of and incidental to the proceedings on the indemnity basis.
2. As the issue was one of construction, and the possibility for which Mr Wiggins contended was arguably tenable, I consider that the costs of and incidental to Mr Wiggins being instructed and appearing should be paid out of the deceased's estate on the ordinary basis. No counsel contended otherwise.

Conclusion

1. Accordingly, I make the following orders: 1. Order Christina Majella Matthews be joined as first defendant. 2. Order Timothy James Askew be joined as second defendant. 3. Order Elizabeth Drover be joined as third defendant. 4. Order Sister Karon Donnellon be joined as fourth defendant. 5. Note the first defendant and the second defendant are the executors of the estate of the late Marie Therese Matthews. 6. Note the first defendant and the third defendant are the executors of the estate of the late Carmel Bernadette Matthews. 7. Order pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that the first defendant be appointed to represent, for the purpose of these proceedings: 1. The estate of the late William Eldridge Matthews. 2. The estate of the late David Angus Matthews. 3. The estate of the late Gordon Joseph Matthews. 1. Order pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that the fourth defendant be appointed to represent, for the purpose of these proceedings: 1. The estate of the late Norma Christina Matthews. 2. The estate of the late Margaret Mary Matthews. 1. Order pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that the fourth defendant be appointed to represent the estate of the late Marie Therese Matthews for the purpose of these proceedings. 2. Order that the requirement for the filing of an Amended Summons be dispensed with. 3. Note that the second and third defendants submit to the making of all orders sought, and the giving or entry of judgment in respect of all claims made save as to costs. 4. Note the first defendant in her capacity as executor of the estate of Marie Therese Matthews (but not in her capacity as executor of the estate of Carmel Bernadette Matthews) submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made save as to costs. 5. Grant leave to the first to third defendants to file and serve any submitting appearance within 7 days. 6. Direct the fourth defendant to file and serve a notice of appearance within 7 days. 7. Determine that, on the proper construction of the deceased's Will in the events which have occurred, the remainder interest in the residuary estate of the deceased is to be distributed to the legal personal representatives of the estates of the following children of the deceased who survived her, but later died, in equal one-seventh shares: 1. William Eldridge Matthews; 2. Norma Christina Matthews; 3. Margaret Mary Matthews; 4. David Angus Matthews; 5. Gordon Joseph Matthews; 6. Marie Therese Matthews; and 7. Carmel Bernadette Matthews. 1. Order that the plaintiff's costs of and incidental to the proceedings be paid out of the deceased's estate on the indemnity basis. 2. Order that the fourth defendant's costs of and incidental to its appearance in the proceedings be paid out of the deceased's estate on the ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2024