//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2019] VSC 534
Supreme Court of Victoria
2019-08-13
McMillan J
Original judgment source is linked above.
SUCCESSION LAW - Construction of will - Whether grandchildren not born at date of death to be included in class of beneficiaries - Meaning of the word 'survive' - Extrinsic evidence - The 'armchair principle' - Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 - Crane v Crane [1949] HCA 52; (1949) 80 CLR 327 - Re Laird [1982] 2 NZLR 325 - Wills Act 1997 (Vic) ss 36, 46.
1 Roberta Claire Lapalme died on 13 September 2015. Probate of the deceased's last will dated 17 May 2004 was granted to Geoffrey David Leeton ('the defendant') on 7 September 2016. The deceased's estate consists of real property in Oakleigh South valued at $1,000,000, real property in Canada valued at $355,000, money in the bank of $245,921.53 and personal chattels valued at $6,000.
2 The will bequeaths monetary legacies totalling $330,000 and some pieces of jewellery, with the balance falling into the residue of the estate.
3 The plaintiff is a minor grandchild of the deceased, represented by his litigation guardian, James David Daly. The plaintiff seeks judicial advice as to the construction of clause 9 of the will, specifically, as to who is eligible to be considered within the class of beneficiaries created by the words 'those of my grandchildren as shall survive me and attain the age of eighteen (18) years'.
I GIVE DEVISE AND BEQUATH the rest and residue of my estate both real and personal whatsoever and wheresoever situate to my Trustees UPON TRUST to sell call in collect and convert the same into money at such time or times and in such manner as my Trustees shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property (including leaseholds or other property of a terminable hazardous or wasting nature) during such period as my Trustees shall think proper and my Trustees shall out of the moneys arising therefrom pay all my just debts funeral and testamentary expenses and all duties and taxes payable in respect of my estate both actual and notional or occasioned by my death or the administration of my estate so as to exonerate all persons from payment thereof or contribution thereto and to hold the balance of my said property (herein called "my residuary estate") UPON TRUST to divide my residuary estate among those of my grandchildren as shall survive me and attain the age of eighteen (18) years as tenants in common in equal shares.
5 Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff seeks determination of the following questions:
6 The deceased was survived by her three children: Conan Stuart Daley ('Conan'), Carling Janine Lapalme-Daley ('Carling') and Tyson John Daley ('Tyson'). At the date of the deceased's will, Conan was aged 22, Carling was 21, Tyson was 19 and the deceased had one grandchild, Charlotte, aged 2 years.
7 At the date of her death, the deceased's grandchildren were:
(a) Charlotte May Lapalme Daley, born on 27 April 2002 (Carling's daughter);
(b) Emily Louise Daley, born on 30 June 2007 (Conan's daughter); and
(c) Hannah Grace Daley, born on 10 February 2010 (Conan's daughter).
8 After the deceased's death, two further grandchildren were born:
(a) the plaintiff, born on 20 July 2016 (Conan's son); and
(b) Henry Tomislav Daley, born on 25 March 2017 (Tyson's son).
9 The plaintiff filed an affidavit of Conan Stuart Daley sworn 9 November 2017.
10 The defendant filed an affidavit of Michael Francis Hyde ('Mr Hyde') sworn around 22 or 23 March 2018. Mr Hyde is a law clerk in the employ of Campbell and Shaw Solicitors, and took instructions for and drafted the will of the deceased.
11 The deceased was born in Canada on 14 July 1943. In the 1970s, the deceased was widowed when her husband, Ralph Lapalme, died in a car accident. In about 1980, she commenced a relationship with John Charteris Daley ('John'). The deceased and John never married and subsequently separated in the early 1990s. The deceased and John had three children together, being Conan, Carling and Tyson.
12 From the 1960s through to her retirement in the early 1990s, the deceased worked as a registered nurse. She suffered from a number of chronic illnesses in the approximate 30 years prior to her death. From about 1992 or 1993 until her death, the deceased spent either weeks or months each year hospitalised or in rehabilitation due to her illnesses. Further, from the early 1990s onwards, the deceased was resuscitated by paramedics and hospital staff on multiple occasions. Although Conan does not specify how many times this occurred, he says it was 'on a regular basis' and 'many times each year'. The deceased's death certificate records her cause of death as chronic obstructive pulmonary disease.
13 Conan states that, prior to 2002, his relationship with the deceased was distant. In April 2003, he became engaged to Anne and, following his engagement, Conan says his relationship with the deceased improved and contact between the two became more regular. In December 2003, the deceased hosted Christmas with her children and John in attendance. During this gathering, the deceased asked Conan about his intentions with respect to starting a family. She asked how many children Conan intended to have and when he planned to have his first child.
14 Conan married Anne in August 2004 and they had their first daughter, Emily, in June 2007. The deceased visited Conan, Anne and Emily in Benalla on around 7 or 8 July 2007. In February 2010, Conan's second daughter, Hannah, was born. Conan was living in Darwin at the time. When Conan visited Melbourne during the Christmas period in 2010, the deceased asked Conan whether he would be having more children.
16 Also in 2015, the deceased's health began to deteriorate. For the majority of the six months prior to her death on 13 September 2015, the deceased was either hospitalised, admitted to rehabilitative care, or in palliative care.
17 During this period, Conan visited the deceased multiple times. At one of these visits, the deceased told Conan that she was happy that Tyson was getting married and would soon start a family and that she was disappointed she would not see her grandchildren from Tyson's family.
18 At the date of swearing his affidavit, Mr Hyde had worked as a wills and probate law clerk in the employ of Campbell and Shaw Solicitors for 19 years.
19 Mr Hyde deposes that the reference on the back page of the deceased's will signifies that he prepared the will of the deceased. The file, including the file notes, relating to the preparation of the will of the deceased was destroyed after seven years from the date of the will. Mr Hyde has no independent recollection of taking instructions for drafting the will, or the things said by the deceased when he took instructions.
20 My Hyde deposes that his current practice, and also his practice at the time of preparing the will of the deceased in May 2004, is
to attend the intending testator in conference and take careful instructions, prepare a draft will in accordance with the instructions, mail the draft will to the intending testator, make an appointment at which I again attend the intending testator in person to consider the draft will, confirm that the draft will accords with the intending testator's intentions, satisfy myself that the intending testator has capacity and understands and approves the will, and if so, arrange and attend to the execution of the will ...
21 My Hyde deposes that he would have followed his standard practice to conclude that the will of the deceased accords with the deceased's instructions.
22 In construing a will, the task of the court is to give effect to the intentions of the testator by examination of the words used in the will, having regard to the will as a whole, aided as is necessary by any admissible extrinsic evidence.[1]
23 In Fell v Fell, Isaacs J set out the common law principles relating to construction of wills_,_ principles that his Honour considered 'incontestable'.[2] Prima facie, the written words in the will must be given their ordinary meaning, with the court making a determination of the issue by reference to the words used by the testator in the will, having regard to any established rules of construction and construing a will 'as trained legal minds would do'.[3] His Honour articulated the second principle as follows:
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.[4]
24 In addition to the requirement for a will to be construed by giving the plain meaning to words, it is necessary to examine whether the law has established a particular meaning for the words in question. This approach was succinctly stated by Fullagar J in ANZ Executors & Trustee Co Ltd v McNab:
The search for testamentary intention must be a search for intention disclosed by the words used, and in this search words must prima facie be given their ordinary meanings and, if the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must prima facie be given. Nevertheless, the intention is to be gathered from a study of the will as a whole, and in the light of any relevant and admissible evidence of surrounding circumstances.[5]
25 The task of interpreting a will has been said to be analogous to the task of the court when interpreting a contract. In Marley v Rawlings, Lord Neuberger summarised these considerations as follows:
When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.[6]
His Lordship concluded that the approach taken when interpreting wills should be no different, summarising the modern approach taken by courts in this way:
Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.[7]
26 The first task of a court in the analysis of the will is to consider the ordinary meaning of the words in the will. It is then necessary to consider whether, by giving the ordinary meaning to the words, the will makes sense in the circumstances.
27 If the will does not make sense, the Court is required to consider relevant extrinsic evidence to establish the intention of the testator. In Re Staughton; Grant v McMillan ('Re Staughton'), the Court noted:
If, in the context of the will read as a whole, and of the surrounding circumstances, the ordinary meaning of the words in the will do not make sense, extrinsic evidence is admissible under the 'armchair principle'. In effect, the court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will.[8]
28 The leading case of Perrin v Morgan demonstrates the danger of interpreting language used in a will with strict rules of construction, and without considering the circumstances in which the will was made, as stated by Lord Romer:
I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator's armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said ...[9]
29 In the same case, Lord Atkin commented that the Court is not 'precluded from looking outside the terms of the will' as '[n]o will can be analysed in vacuo'.[10]
30 In Re Allsop, Lord Denning MR cautioned against the Court giving too literal an interpretation to the language in a will where such an interpretation would cause a result that could not have been the intention of the testator:
The object of the court in construing a will is to discover the intention of the testator. I do not think his intention is to be discovered by looking at the literal meaning of the words alone. That has led, times out of number, to the frustration of his intentions. You must look at the will in the light of the surrounding circumstances. Eschewing technical rules and literal interpretation, you must look to see simply what the testator intended. If you find that a literal interpretation gives rise to a capricious result which you are satisfied the testator can never have intended, then you should reject that interpretation and seek for a sensible interpretation which does accord with his intention.[11]
31 The starting point is to determine whether, reading the will as a whole and in light of its surrounding circumstances, the language used by the testator results in the will being rendered meaningless, ambiguous or uncertain. If this is established, evidence may be admitted to assist in the interpretation of the language of the will, both where the uncertainty or ambiguity arises on the face of the will or in light of surrounding circumstances, although in the latter situation evidence of the testator's intention may not be given.[12]
32 Generally, at common law, direct extrinsic evidence of a deceased's testamentary intention or declarations as to the meaning of the words used in a will are inadmissible. An exception arises where an analysis of the evidence surrounding the circumstances of the making of the will fails to resolve an ambiguity present in the ordinary meaning of the words and there is an equivocation. In Re Staughton, an equivocation was defined as 'a term that, upon application to external objects, is found to fit two or more of them equally'.[13]
33 The circumstances in which extrinsic evidence may be considered, and the purposes for which it may be used in interpreting a will, are also governed by statute. In Victoria, s 36 of the Wills Act 1997 applies where the will was made on or after 20 July 1998 and dictates when evidence may be admitted to assist in interpretation of the language of a will - for example, where the language used in the will renders the will or any part of it uncertain or ambiguous in light of surrounding circumstances.[14] Pursuant to s 36(3), the legislation does not override the common law armchair principle or equivocation exception, but explicitly preserves them. Further, the Wills Act 1997 also provides that evidence of the testator's intention is admissible in certain circumstances.[15]
34 Where a beneficiary under a will is identified by way of description, the law presumes those who fulfil that description at the date of execution of the will take the gift.[16] This presumption is displaced where the gift under the will is to a class of beneficiaries, in which case the presumption is that it is those who fulfil the description at the date of death of the deceased who take the gift.[17] This prima facie presumption can be rebutted if the terms of the will dictate otherwise. Any person who asserts that the meaning of the class should be ascertained at a date other than the date of death bears the burden of producing evidence that demonstrates the testator intended to depart from the usual rule.[18]
35 In this proceeding, the parties agree on the persons who are to be considered the grandchildren of the deceased. The issue that arises in interpreting the will concerns whether the words 'survive me' limits the class of beneficiaries to only those grandchildren that were born at the date of death of the deceased, or whether there is sufficient evidence to demonstrate the deceased used the words 'survive me' with a different intent.
36 The word 'survive', or variations of it, has been subject to interpretation by the Court. The ordinary meaning of the word has previously been interpreted as 'to be alive both before and after the testator's death'. This settled meaning was stated by Barton J in Knight v Knight:
As will have been seen, a search of the English dictionaries has convinced me that the ordinary and usual meaning of the words 'survive me', as here used is, 'outlast or outlive me'. That expression is not ambiguous. It clearly implies the existence, at the testator's death, of the persons who may 'survive' the testator. If they come into existence after that time they cannot be said to survive him. They may survive somebody or something else, but not the testator. Or they may 'survive' in some general sense uncon‑nected with the testator. But neither of these is the use of the words as they occur in the text, for it is the testator, and not another person, or an event, that is to be survived.[19]
37 Generally, issues have arisen as to the meaning of the word 'survive' where a will does not expressly state at what time a beneficiary must be considered to have survived. It is an established principle of construction that where the time is not specified the date of death of the testator should be considered the date the beneficiary must survive unless the will provides for a life estate.[20]
38 There may be reasons to depart from the usual meaning given to 'survive'. As with all principles of construction, an ordinary meaning should not be applied inflexibly. In such cases, consideration must be given as to whether circumstances arise that establish a contrary intention by a testator which requires an examination of the language used in the will and the surrounding circumstances.
39 In Brennan v Permanent Trustee Co of New South Wales, it was found that the language of the will functioned to extend the meaning of the word 'survive' to include persons within a prescribed class who were born after the testator's death.[21] The testator executed his will one year prior to his death, leaving legacies in favour of his nieces and prescribing that after the death of each of the nieces, the sum given to each niece shall be held on trust for all her children who survive the testator and attain the age of twenty-one years. At the time of executing the will, six of the twelve nieces of the deceased were married and had children. The factors that influenced the Court to find that the meaning of the word 'survive' did not carry its ordinary meaning were stated in the reasons of William J:
Having regard to the ages of the nieces, to the fact that some of them were not married at the date of the will, and to the age of the testator, it is difficult to believe that the testator could have intended to benefit the children of his nieces who were born in his lifetime to the exclusion of those children who might be born after the date of his death, and there is in my opinion a sufficient context in the will to indicate that the testator intended, as one would expect, that the class should include all children who lived after him.[22]
40 In Re James's Will Trust, Buckley J found in the circumstances of the case before him that there was no reason to attach a different meaning to the word 'survive' other than the natural meaning.[23] His Honour summarised the authorities at the time and derived the following propositions with respect to interpreting whether the word 'survive' has been used in its natural sense or with some secondary meaning:
1. There is no particular rule prescribing when such words as 'survive' or 'survivor' should be construed strictly and when in a secondary sense, or, where they are not to be construed strictly, what secondary sense should be adopted.
2. The question must in every case be answered by applying ordinary principles of construction to the particular language used and having regard to any relevant surrounding circumstances.
3. The language used must be construed in its natural sense unless the context shows that this would defeat the testator's intention.
4. The mere fact that, so construed, the will might in certain possible, or even probable, circumstances produce results that seem fanciful or even harsh is not a sufficient ground for adopting another interpretation; for, although this fact may raise doubts whether this construction fulfils the testator's intention, doubts are not enough: you must be able to discover from the language used what the intention was, that is to say, that the testator intended to use the word 'survive' in some secondary sense.
5. The mere fact that a fund is initially given in shares which are settled on stirpital trusts and that, on failure of the trusts in favour of one stirps, the share of that stirps is directed to accrue to the shares of the survivors of the original life tenants to be held upon the trusts of their original shares is an insufficient ground for holding that the testator intended the word 'survive' or 'survivor' to bear a secondary meaning.
6. Where it is proper to adopt a secondary meaning, a meaning which imports some kind or element of survivorship (e.g. survival by issue) is to be preferred to construing 'survivors' as equivalent to 'others'.[24]
41 In Re Laird, in applying the armchair principle, the Court was persuaded that given the circumstances of the testator it was unlikely he intended to exclude grandchildren born after his death when using the words 'as shall survive me'.[25] At the time of executing the will, the testator's children were 13 and 17 years of age and the testator had suffered from significant heart problems. Moller J concluded that 'the only proper inference to be drawn from these circumstances is that he could not have intended to benefit by his will only those grandchildren who might be born during his lifetime'.[26]
42 In Re Andrews, it was held that the word 'survive' was not used by the deceased in its correct sense of 'outlived' and, therefore, all grandchildren of the deceased, whether born before or after the deceased's death, were entitled to share in the legacy.[27] Persuasive to the Court's decision was the fact that the daughter of the deceased was still young at the date the will was executed and had advised the deceased that she intended to have more children.
43 In Corda v Davey, McDonald J found there was no reason to conclude the words 'survive me' should be given anything but their natural meaning:
In the circumstances of this case there exists no reasonable ground for reaching a conclusion that the testator intended to use the words 'grandchildren who shall survive me' other than in their normal meaning. At the time that he made his will the testator had four grandchildren aged between 10 and 12 years of age. There is no good basis, when regard is had to the referred to expression in the context of the will and/or the surrounding circumstances, to conclude that it was the testator's intention to allow for the possibility that one of his sons may cause a further child to be born at some time after the his [sic] death and for such a child also to share in his estate.[28]
44 In The Public Trustee of Queensland v Smith, Atkinson J also considered that there was no reason to depart from the usual meaning of the word 'survive'.[29] The deceased left a share of the residue of his estate to each of his great nieces and great nephews who survived him. Atkinson J concluded that there was nothing in the will to suggest that any other meaning was intended. In this case, one of the parties sought also to make an application for rectification of the deceased's will. Direct extrinsic evidence considered in that application demonstrated the handwritten instructions with respect of the will were that the gift was to be to the testator's great nieces and nephews living at his death.
45 The summary of the case law emphasises the Court's task of construing a will in light of the language used in that will and the circumstances surrounding the making of that will. While the cases demonstrate how a court has interpreted the words 'survive me' in each particular circumstance, they do not bind the Court to a particular meaning in this proceeding. Whether words should be given their primary or some secondary meaning will always depend on the interpretation of the words when considered in the context of both the will as a whole and the surrounding circumstances.
46 The plaintiff accepts that the ordinary and natural meaning of the word 'survive' means to outlive - that is, to be alive before and after the testator - and that in many previous cases there has been no reason to depart from the ordinary meaning.[30] However, the plaintiff submits that in this case the extrinsic evidence concerning the circumstances surrounding the making of the deceased's will, and the language of the will as a whole, indicates it was the deceased's intention to benefit all of her grandchildren, including the ones born after her death.
47 The plaintiff relies on the fact that, at the date of the will, the deceased's children were all young and there was a high probability that the deceased would have more grandchildren. Therefore, it would be appropriate to begin with 'the gross a priori improbability'[31] of the deceased intending to exclude the future children of her unmarried sons and any further children of her daughter.
48 The plaintiff submits that the meaning of the word 'survive' in the context of the will was not intended to exclude grandchildren that were not yet born, but rather grandchildren that may have predeceased the deceased.
49 He seeks to rely on extrinsic evidence as to the deceased's discussions with Conan during her lifetime, during which she asked Conan whether he intended to have more children. He also submits that the deceased was unwell around the time of making the will and she would have known that she was at risk of death at any point after making her will.
50 Further, the plaintiff submits that the language used in the will is a significant factor in establishing the intention of the deceased at the time of making the will. This includes the use of the plural 'grandchildren' and 'tenants in common' when the deceased only had one grandchild at the time of drafting the will.
51 He submits that as the gift to the grandchildren is contingent upon a grandchild attaining the age of 18 years, and at the time of making the will the deceased's only grandchild was two years of age, the Court can infer that the deceased had intended to keep the class open for some time, in light of the possibility of her having further grandchildren.
52 The plaintiff notes that the High Court has previously cautioned against the use of judicial precedents in a will construction matter.[32] Each case turns on its own facts and the Court is not bound to follow an earlier decision simply because the documents in question are similar. Nevertheless, he relies on several previous decisions to provide guidance to the Court in construing the word 'survive'.[33]
53 In contrast, the plaintiff distinguishes the circumstances of the deceased from the circumstances of the testator in Corda v Davey based on the age of the children of the testator at the time of making the will.[34]
54 In accordance with the established principles regarding the closing of the class of beneficiaries, the plaintiff submits that the class should close on the date the first grandchild of the deceased reaches the vesting age. Further, the plaintiff submits that, as the deceased's intention was to benefit all of her grandchildren, the class of beneficiaries should extend to include all grandchildren conceived but not yet born on the vesting date.
55 The defendant submits the natural meaning of the word 'survive' should be given, as there is nothing in the language of the will to imply that any other meaning was intended. Therefore, there is no uncertainty or ambiguity in the terms of the will and the class of beneficiaries should be restricted to grandchildren who were alive at the date of the deceased's death.
56 The defendant submits that in order for the trustee of the estate to be in a position to exercise his discretion to pay the whole of the income of an expectant or contingent share, as permitted under clause 10 of the will, it is necessary for the trustee to know the number of expectant or contingent shares. If one posits an intention that grandchildren born after the death of the deceased be included in the class of beneficiaries, the discretion established by clause 10 would be impossible of operation.
57 Further, he submits that the use of the word 'grandchildren', in circumstances where the deceased had only one grandchild at the date of executing the will, is consistent with an intention that the gift of residue in clause 9 include grandchildren yet to be born at the date of execution of the will but that are alive at the date of the deceased's death.
58 Finally, the defendant submits that, where on consideration of the words of the will the natural meaning is clear, the authorities establish that there is no recourse to either the armchair principle or s 36 of the Wills Act 1997 and submits that extrinsic evidence should not be admitted.[35]
59 The defendant distinguishes this case from Brennan v Permanent Trustee Co of NSW Ltd on the basis that there is difficulty in discerning within the language of the deceased's will any intention of variance with the use of the word 'survive' from its natural meaning. The defendant also distinguishes this case from Re Staughton, submitting that in that case the Court admitted evidence of events and statements that occurred after the date of the will only on the basis that the evidence was of familial relationships. As this case concerns grandchildren of the deceased who were not alive during the deceased's lifetime, the defendant submits that such evidence cannot be admitted.
Who is eligible to be considered within the class of beneficiaries?
60 The authorities establish that the natural and primary meaning of the word 'survive' requires a person to be alive both before and after the date of the event they have been said to have survived. In the case of a will that uses the words 'survive me', the relevant event is to be considered the testator's death. The authorities also establish that there may be circumstances in which it can be shown that the testator intended to depart from the natural and primary meaning of the word and instead assigned another meaning to the word or used it with a secondary meaning.
61 Although the starting point is to assign the natural meaning to the language used in the will when interpreting the document, the will must be considered as a whole and in the context of the surrounding circumstances. If the words are interpreted in isolation this may result in an interpretation that does not conform with the intention of the testator. It must be remembered that the primary responsibility of a court of construction when interpreting a will is to determine as best as possible what the testator intended at the time of execution of the relevant will.
62 While the defendant submits there is no uncertainty or ambiguity that requires examination of the extrinsic evidence before the Court, the admissibility of extrinsic evidence is not limited to circumstances where an uncertainty or ambiguity is established because the language of the will on its face does not make sense. The armchair principle allows evidence of the surrounding circumstances to be admitted to assist in determining the testator's intention. This common law approach sits alongside, and is somewhat widened by, s 36 of the Wills Act 1997.[36]
63 Although the Court can look to the circumstances of the testator at the time the will was executed, extrinsic evidence cannot be used to create an uncertainty or ambiguity that does not already exist. This is to be contrasted with cases where the surrounding circumstances reveal an uncertainty or ambiguity that requires recourse to extrinsic evidence, but stopping short of allowing direct evidence of the deceased's intentions - for example, evidence of the deceased's instructions to the solicitor.
64 If the language of the deceased's will in this case is read without putting the will in context, there is no reason to think that there is any uncertainty or ambiguity, as it is common for testators to leave a gift to a class of beneficiaries who shall survive that testator. However, when considering the familial circumstances of the deceased at the time the will was executed, there is an uncertainty or ambiguity as to who the deceased intended to be eligible to share in her residuary estate, and it is necessary to consider the extrinsic evidence to resolve that uncertainty. This uncertainty or ambiguity is caused by the use of the word 'grandchildren' when at the time of executing the will she had one grandchild only.
65 It is clear from the use of the plural grandchildren, when only having one grandchild, that the deceased intended to benefit grandchildren who were not yet born, but it is unknown if the deceased only intended to benefit the children born during her lifetime or also intended to benefit any children born after her death. The question is whether the use of the words 'survive me' is sufficient to show that the intention of the deceased was to limit the class to only those children born during the deceased's lifetime.
66 Although it cannot be said with certainty what the intentions of the deceased were, it is the Court's task of construction to sit in the armchair of the deceased, or consider the circumstances of the deceased at the time of execution of the will, to come to a conclusion as to the most likely intentions of the deceased. There is no recourse in the circumstances of this case to look at direct extrinsic evidence of the deceased's intentions, including evidence as to what the deceased may have said following the execution of the will.
67 When the deceased executed the will in May 2004, the deceased's children were young, being aged 22, 21 and 19 respectively. Although one of the deceased's children had a child, the deceased's other children were not yet married and, to her knowledge, they were not immediately planning to have children. It seems likely that the deceased would have expectations that grandchildren would be born in the future, and that it may be some time before those grandchildren were born.
68 Conan's unchallenged evidence is that the deceased had multiple chronic illnesses, that she spent either weeks or months of each year hospitalised or in rehabilitation, and had been revived by paramedics and hospital staff on multiple occasions prior to the execution of the will. With the deceased's qualifications and occupation as a registered nurse, it is probable that she would have considered the likelihood of her life expectancy being shortened. Having been revived by paramedics and hospital staff on multiple occasions, it is also probable that the deceased would have been conscious that there was a possibility that she could suffer a similar medical incident at any time after executing her will and that she may not survive that next incident.
69 The term 'survive' does not appear elsewhere in the will. Within the clause appointing the executor, the phrase 'if the said Trustee should predecease me' is used. If the deceased intended to only benefit the grandchildren born during her lifetime then she could have chosen to use similar terminology within the residuary clause of the will.
70 Two other aspects of the will to be considered when looking at the will as a whole are: first, the addition of a second test the beneficiaries must pass to share in the estate, that is, they must attain the age of 18 years of age; and secondly, the addition of a discretionary clause with respect to the income of any trusts established by the will.
71 The addition of a second test to clause 9 of the will is significant. If the word 'survive me' is interpreted as being restricted to those grandchildren of the deceased alive at the date of her death, then, effectively, those grandchildren must survive two events. They must survive the deceased and they must attain the age of 18 years. The more likely interpretation of the use of the two tests in clause 9 is that the deceased intended to only benefit those of her grandchildren who survived to the age of 18 years of age, excluding any grandchildren who predecease her and any grandchildren who do not reach the required age.
72 The defendant submits that clause 10 would be impossible of operation if the quantum of beneficiaries is unknown. Clause 10 provides:
I EMPOWER my Trustees in their absolute discretion to pay the whole or any part of the income of the expectant contingent or vested shares of any child or infant beneficiary taking under the trusts of this my Will in or towards the maintenance education or advancement or otherwise for the benefit in life of such child or infant beneficiary and for such purpose to pay the same to the guardian or guardians for the time being of such child or infant beneficiary.
The addition of such a clause to a will is not uncommon even where the beneficiaries remain uncertain at the date of the testator's death. An interpretation of the will that includes grandchildren born after the deceased's death is not inconsistent with the trustee's power created by this clause.
73 Having regard to the circumstances of the deceased when the will was executed, it would be highly improbable that the deceased's intention would be to exclude grandchildren born after her death. Accordingly, the Court is satisfied that the deceased did not use the word 'survive' with the natural meaning and instead intended to use the word with a secondary meaning. Subject to when the class of beneficiaries closes, all grandchildren of the deceased who are born either before or after the deceased's death who attain the age of 18 years are entitled to share in the estate of the deceased.
74 The class-closing principle relevant to a class gift that contains a qualification, such as the beneficiaries attaining a certain age, was summarised in Crane v Crane by Dixon J as follows:
If a fund is bequeathed to a class so that when each member attains a specified age or fulfils some other condition attached to the gift he is enabled to call for his share, only those may take who are in existence when the first member reaches that age or fulfils the prescribed condition and those who come into existence afterwards are excluded. The class is then closed and although the numbers who ultimately share may be diminished by reason of the failure of one or more of them to attain full age or comply with some other condition on which the title to participate may be contingent, the numbers cannot be enlarged by the birth of additional persons who if born earlier would have been eligible for membership of the class.[37]
75 Applying this principle, the class of beneficiaries will close upon one of the grandchildren of the deceased meeting the condition stated in the will - that is, attaining the age of 18 years. At that point in time, that grandchild will be entitled to call in their share, and any further grandchildren born to the deceased will not be entitled to share in the gift created by the residuary clause of the will, except as noted below.
76 Although it is generally a pre-condition for a person to be alive to take a gift under a will, it is an established principle of succession law that a gift to a class of beneficiaries, such as children, can include children that remain in the womb (en ventre sa mère) at the death of the testator and are subsequently born alive.[38]
77 This principle is somewhat at odds with usual rules of construction with respect of the language used in a will, as it is not the natural of ordinary meaning of words that is given, but rather it is acknowledged that an artificial meaning must be assigned to the words as 'the potential existence of such a child places it plainly within the reason and motive of the gift'.[39]
78 In Villar v Gilbey, Loreburn LC summarised this principle of construction as follows:
As a general rule of construction the word 'child' living at or born at a particular date includes a posthumous child, in the absence of any context indicating a contrary intention.[40]
79 In Elliot v Lord Joicey, Lord Russell of Killowen summarised the law as it was settled by Villar v Gilbey, and added that the principle also applies where the word 'surviving' has been used within the testamentary instrument:
The law as settled by Villar v Gilbey may (but subject to any special context in the document to be construed) be summed up thus: First, words referring to children or issue 'born' before, or 'living' at, or (as I think we must add) 'surviving', a particular point of time or event, will not in their ordinary or natural meaning include a child en ventre sa mère at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a child en ventre sa mère at the relevant date and subsequently born alive if, but only if, that fictional construction will secure to the child a benefit to which it would have been entitled if it had been actually born at the relevant date. Thirdly, the only reason and the only justification for applying such a fictional construction is that where a person makes a gift to a class of children or issue described as 'born' before or 'living' at or 'surviving' a particular point of time or event, a child en ventre sa mère must necessarily be within the reason and motive of the gift. Fourthly, that being the only reason and the only justification for applying the fictional construction, it follows that, if the person who uses the words under consideration confers no gift on the children or issue described as above mentioned, but confers the gift on some one else, it is impossible (except in the light of subsequent events) to affirm either that the fictional construction will secure to the child en ventre sa mère a benefit to which if born it would be entitled, or that the child en ventre sa mère must necessarily be within the reason and motive of the gift made. In these circumstances the words used must bear their ordinary or natural meaning.[41]
80 In the circumstances of this proceeding, the relevant date is the date the class closes and the gift vests in the grandchildren of the deceased. Under the terms of this will, excluding any child that is en ventre sa mère would be excluding a grandchild that was within the reason and motive of the gift. For this reason, the class would include any grandchildren conceived but not yet born at the date the class closes.
What happens if a beneficiary dies before attaining 18 years of age?
81 The will is silent as to the effect of any of the residuary beneficiaries dying prior to attaining the age of 18 years.
82 The plaintiff made a brief submission, not supported by reference to legislation or relevant case law, that if a grandchild dies before attaining the age of 18 years, his or her share should be distributed to the other grandchildren in equal shares. The defendant made no submissions on this question.
83 The will of the deceased is subject to the provisions of the Wills Act 1997. Pursuant to s 46(3) of the Wills Act 1997, where a residuary disposition is in fractional parts, any part that fails passes to the part which does not fail, and if there is more than one part which does not fail, to all those parts proportionately. This subsection does not apply if a contrary intention appears in the will.[42]
84 Prima facie, there does not appear to be a contrary intention within the will. It is necessary, however, to consider the effect of the gift being given to the grandchildren 'as tenants in common in equal shares'.
85 In Re Dunster; Brown v Heywood, a gift of residue was given to the deceased's daughters who shall survive him as tenants in common in equal shares.[43] Subsequently, the deceased executed a codicil that revoked the gift to one of the daughters. Neville J summarised the principle relevant to use of the words 'tenants in common' and the effect of such gift being a class gift, as follows:
There is a well-known rule that where residue is given to tenants in common, and one of the tenants in common dies in the testator's lifetime, the lapsed share does not go as an accretion to the gift to the other tenants in common, but it is held that there is an intestacy and the share goes amongst the next of kin. That is, there can be no residue of a residue. The arguments by which this rule was arrived at are perfectly intelligible and, one may say, plausible. Nevertheless I think that the effect of it is to defeat the testator's intention in almost every case in which it is applied; but it is a rule by which I am undoubtedly bound. That rule has been held to apply in cases where the gift is to named persons, but not to apply in cases where the gift is to a class, and I think the reason is obvious, because the difficulty which led to the application of the rule in the case of a gift to designated persons does not apply where the gift is to a class.[44]
86 The residuary trust established by the will is properly considered a class gift. For this reason, the Court considers the deceased was looking at the beneficiaries as a whole and would have intended that if one or more of the beneficiaries died, the survivors should take the gift between them.[45]
87 The use of the words 'tenants in common' is insufficient to demonstrate a contrary intention for the purpose of s 46(4) of the Wills Act 1997. Further, given the consequence of a share failing then falling on intestacy, the presumption against intestacy favours a construction of the will that is available and will avoid such an event occurring.[46]
88 Pursuant to s 46(3) of the Wills Act 1997, if one of the beneficiaries dies before attaining the age of 18, that beneficiary's share will be distributed equally amongst the remaining beneficiaries.
89 The answers to the plaintiff's questions are as follows:
1. In the events that have happened, and on the true construction of the will, does 'my grandchildren' in clause 9 of the deceased's will only include grandchildren of the deceased born before her death on 13 September 2015?
Answer: No.
2. If the answer to question 1 is 'no', does 'my grandchildren' in clause 9 of the deceased's will include grandchildren of the deceased born after her death on 13 September 2015?
Answer: Yes.
3. If the answer to question 2 is 'yes', does the class of beneficiary who may take a share in the residuary estate under clause 9 of the deceased's will close upon Charlotte May Lapalme-Daley (born 27 April 2002) attaining the age of 18 years (that is, on 27 April 2020)?
Answer: The class closes when the first of one of the deceased's grandchildren attains the age of 18 years of age.
4. If the answer to question 3 is 'yes', does the class of beneficiary who may take a share in the residuary estate under clause 9 of the deceased's will include grandchildren conceived before but not yet born by 27 April 2020?
Answer: Yes.
5. If the answer to question 1 is 'no' how should the executor apportion the residuary estate among the residuary beneficiaries under clause 9 of the deceased's will?
Answer: In accordance with these reasons.
6. If the answer to question 1 is 'no', and if a residuary beneficiary dies before attaining the age of 18 years, how should the share of that beneficiary be distributed?
Answer: To the remaining beneficiaries.
90 The parties are to forward minutes of orders and written submissions as to costs.
[1] Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273-4 (Isaacs J); Perrin v Morgan [1943] AC 399, 420 (Lord Romer); Wills Act 1997 (Vic) s 36. See also Re De Bruyn [2016] VSC 6, [11] (McMillan J).
[3] Ibid 273, quoting Ralph v Carrick (1879) 11 Ch D 873, 878 (Cotton LJ).
[5] (1999) 3 VR 666, 667.
[6] [2014] UKSC 2; [2015] AC 129, 144.
[8] [2017] VSC 359, [37] (McMillan J) (citations omitted) ('Re Staughton').
[9] Perrin v Morgan (n 1) 420. In that decision, in which the House of Lords overturned a 'rule of construction' that money must refer necessarily to cash, Lord Atkin famously celebrated 'with satisfaction that henceforth the group of ghosts of dissatisfied testators who, according to a late Chancery judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills, may be considerably diminished': 415. See also Re Edwards [1981] VicRp 76; [1981] VR 794.
[11] [1968] Ch 39, 47.
[12] Wills Act 1997 (Vic) s 36.
[13] Re Staughton (n 8) [38] (McMillan J), citing Re Smith [1939] VicLawRp 33; [1939] VLR 213, 218 (O'Bryan AJ).
[14] Wills Act 1997 (Vic) s 36(1)(c).
[15] See Morgan v Moore [2000] VSC 94, where a detailed discussion of the legislative history of s 36 of the Wills Act 1997 (Vic) and its precursor, s 22A of the Wills Act 1958 (Vic), is set out.
[16] Re Coley; Hollinshead v Coley [1903] 2 Ch 102, 110 (Romer LJ).
[17] Bullock v Downes [1860] EngR 1040; (1860) 9 HLC 1.
[18] Hutchinson v National Refuges for Homeless and Destitute Children [1920] AC 794, 802 (Viscount Finlay).
[19] [1912] HCA 36; (1912) 14 CLR 86, 98 (emphasis in original).
[20] This is referred to as the rule in Cripps v Wolcott [1819] EngR 186; (1819) 56 ER 613.
[23] Re James's Will Trusts [1962] Ch 226.
[25] Re Laird [1982] 2 NZLR 325.
[28] [2000] VSC 27, [35].
[29] The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 Qd R 26.
[30] Citing as examples, Knight v Knight [1912] HCA 36; (1912) 14 CLR 86; Corda v Davey (n 28); Kristic v STL [2012] VSC 344.
[32] Jenkins v Stewart [1906] HCA 35; (1906) 3 CLR 799.
[35] The defendant relies on Jepson v Bowman [2014] VSC 590 and The Public Trustee of Queensland v Smith (n 29) to support this proposition.
[36] Wills Act 1997 (Vic) s 36(3).
[37] [1949] HCA 52; (1949) 80 CLR 327, 335.
[38] See, for example, Trower v Butts [1823] EngR 342; (1823) 57 ER 72, Villar v Gilbey [1907] AC 139; Elliot v Lord Joicey [1935] UKHL 3; [1935] AC 209.
[42] Wills Act 1997 (Vic) s 46(4). See also Re Melbourne; Wall v Wathen [2016] VSC 514.
[45] See Kingsbury v Walter [1901] AC 187, 191 (Lord McNaghten): 'When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting the body as individuals, and so you can see that he intended that if one or more of that body died in his lifetime the survivors should take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator.'
Re Lapalme; Daley
Leeton [2019] VSC 534
(1922) 31 CLR 268
(1949) 80 CLR 327
(1999) 3 VR 666
(1912) 14 CLR 86
(1945) 73 CLR 404
(1906) 3 CLR 799