Plaintiff v Defendants

2 Clause 3 of the deceased's will provides as follows:

I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal unto my Trustees and I DIRECT my Trustees to hold the same upon the following trusts:

(a) As to the interest I hold in the freehold property known as 4 Simpson Street Point Lonsdale for my son SHANE ASHLEY HENRY and my daughter ANDREA ROSE BOWMAN as tenants in common for their own use and benefit absolutely.

(b) As to the sum of Two hundred thousand dollars for my daughter MICHELLE MARGARET JEPSON for her own use and benefit absolutely AND I FURTHER DIRECT that this bequest shall not be due and payable by my Trustees to the said MICHELLE MARGARET JEPSON until the expiration of two years from the date of my death.

(c) As to the rest and residue of my estate for my son SHANE ASHLEY HENRY and my daughter ANDREA ROSE BOWMAN as tenants in common in equal shares for their own use and benefit absolutely PROVIDED HOWEVER that should any of my said children predecease me leaving a child or children surviving at the date of my death then such child or children shall take and if more than one equally between them the share or shares of my estate bequeathed to my children pursuant to this my Will which his her or their parent would have taken had he or she survived me and attained a vested interest.

3 By originating motion filed 19 May 2014, Michelle Margaret Jepson (the plaintiff in this proceeding and the deceased's other daughter) seeks, in substance, payment of the $200,000 referred to in cl 3(b), or further provision pursuant to Pt IV of the Administration and Probate Act 1958. Only a limited agreed question arising from that originating motion is before the Court in this judgment.

4 Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005, the parties seek the determination of three agreed questions arising in the proceeding as follows:

(a) Pursuant to clause 3(b) of the deceased's will dated 17 December 2008 and taking into account any admissible evidence upon a proper interpretation thereof, is the plaintiff entitled to be paid the sum of $200,000 either:

• (i) from the proceeds of sale of 4 Simpson Street, Point Lonsdale ('the property'); or
• (ii) by the defendants as a condition of their entitlement to receive the gift of the property made to them by the deceased by her said will?

(b) If yes to question (a)(i) and/or (a)(ii) is the plaintiff entitled to be paid interest on the legacy and, if so, from what date?

(c) If yes to question (a)(i) and/or (a)(ii) what relief and consequential orders in relation to sale of the property and as to costs should be made?

5 Before setting out the evidence led in answering this question, it is helpful to set out the general principles relating to the construction of wills applicable to this case.

6 At common law, the task of a court of construction is to discover the testator's intention by examination of the words used in the will, having regard to the will construed as a whole in light of any admissible extrinsic evidence In the opening words of Lord Romer's judgment in Perrin v Morgan:

My Lords, 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.[1]

7 A detailed and succinct summary of the 10 principles relating to the construction of wills is set out by Isaacs J in Fell v Fell, principles that his Honour described as '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] As articulated in the second principle of Issacs J in Fell v Fell:

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]

8 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 does not make sense, extrinsic evidence is admissible in a court of construction under the 'armchair principle'.[5] This principle allows the court to place itself in the position of the testator at the time of executing the will and take into account all of the circumstances actually known to the testator when the will was made.[6] Referring again to the opening of Lord Romer in Perrin v Morgan:

To understand the language employed the Court is entitled, to use the familiar expression, to sit in the testator's armchair.[7]

9 This approach was also 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.[8]

10 At common law, the general rule is that a testator's declarations as to his or her intentions and the meanings of words used in the testamentary document are inadmissible as direct evidence of testamentary intentions. This means that in most circumstances evidence of instructions of a testator to his or her solicitor would be inadmissible in construing the meaning of a will.

11 The circumstances in which extrinsic evidence may be used and the purposes for which it may be used in interpreting a will are also governed by statute. In Victoria, pursuant to s 36 of the Wills Act 1997, where a will is made on or after 20 July 1998, evidence of the testator's intention is admissible in certain circumstances.[9] The legislation does not oust the armchair principle but supplements it.

12 Where there are cases of uncertainty or ambiguity, 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.

13 As concluded by Atkinson J in The Public Trustee of Queensland v Smith, after setting out the principles applicable to the construction of wills, including s 33C of the Succession Act 1981 (Qld) (the Queensland provision equivalent to s 36 of the Wills Act 1997):

It follows from the foregoing discussion that the court of construction should start with the words of the will. If their usual meaning is clear, the will will be given that construction. If not, the court may have regard to such extrinsic evidence as allowed by the rules of construction traditionally applied by the courts with the addition of the aids to construction found in s 33C of the Act.[10]

14 The deceased was 84 years old when she died. She was aged 82 when she signed her will. Prior to her death the deceased lived at the property with the second defendant, who had lived there for approximately 30 years with his child, Ashley. The plaintiff said Ashley and her mother had a comfortable relationship.

15 When the deceased made her will in December 2008, she was retired and received a pension, having done so since she was in her sixties. At the date of her will and at her death, the deceased's major asset was the property. The plaintiff was never aware of the deceased having any more than the sum of $10,000 in savings. The plaintiff said the only way the gift to her in the will could be paid was from the proceeds of sale of the property.

16 The plaintiff said the deceased lived quite modestly and managed her money well. On a couple of occasions she borrowed money from the plaintiff and the deceased always repaid it. The deceased had not worked for a long while. In the 10 years before she died, the deceased had a court case arising from an accident that caused her some disability. She was awarded approximately $10,000, which gave her some savings.

17 In cross-examination, the plaintiff said she believed that at the time her mother signed her will she had a bank account. This was because her mother paid her bills by cheque. The plaintiff said that she lent money to her mother on two occasions and her mother repaid her with a number of payments in cash.

18 She said that the second defendant was 'in and out of work' over his lifetime and she hoped that he was sharing living expenses with his mother. She was aware that for a long time her brother did not contribute to the household expenses and it was a 'bone of contention' with her mother that he did not do so. She had no knowledge as to whether he did any work on the house at the property.

19 The plaintiff had a considerable amount of regular contact with her mother but there was also a considerable amount of dysfunction in the family for the last years of the deceased's life. As a result, the plaintiff was not invited to many family functions over this period of time, which caused ongoing tension and hurt for her. The plaintiff went to church regularly on a Sunday after which she would visit her mother. She genuinely cared about her mother although it was difficult with the tensions going on within the family and these were beyond her ability to sort out. Her sister, the first defendant, also had regular care and contact with the deceased and held her mother's medical power of attorney.

20 At one stage, there was an incident concerning an antique doll that caused the plaintiff to have a deal of concern for her mother's mental condition. She said it was her doll when she was a child, given to her by her aunt. Her mother said she wanted the doll back, as it was hers. This worried the plaintiff as she thought her mother might have some sort of dementia with her reverting to her childhood. There were many conversations about the doll with the deceased asking the plaintiff to return it to her and ultimately the plaintiff did so, albeit reluctantly.

21 The plaintiff was concerned over the deceased's mental state, as she was concerned about many matters within the family arising from many years ago, some involving the second defendant. The plaintiff believed that the issue of the antique doll was not the issue but a symptom of a number of issues for her that were causing pressures within the family.

22 The plaintiff agreed that her mother bought TattsLotto tickets weekly but was not aware that she bet on the horses. She said she may have bet on the horses from time to time as she had a moderate interest in them. She said the second defendant bet on the horses regularly.

The evidence of the solicitor who drew the will

23 The deceased's solicitor, Mr Bruce Wakefield Arthur, said that he was admitted to practise on 1 June 1973 and was practising as a solicitor in Point Lonsdale in December 2008. He prepared the deceased's will and he and his wife witnessed the deceased's signature on the will on 17 December 2008.

24 He had several meetings with the deceased in relation to her will and also on other matters of a very minor nature. He took instructions for the preparation of the will from the deceased. He said that the deceased mentioned to him the issue about an antique doll on more than one occasion, but not in the context of her giving him instructions in relation to the will. He said the doll had no bearing on the will. He said he spent probably half a dozen occasions sitting at the deceased's kitchen table where she would talk to him about various things, one of which was the doll. The disproportionate distribution of the deceased's estate between the three children was not a reflection of the issue surrounding the doll.

25 When Mr Arthur took instructions from the deceased, she told him that she had her motor car, the property and some money in the bank. He told her how much was in her bank account because he said to her that she did not have $200,000 in her bank account. The gift of $200,000 to the plaintiff was included in her will on the instructions of the testatrix and was to come from the sale of the property.

26 Mr Arthur said the provisions contained in the will were her instructions to him and were not suggested by him. He said it was never the intention of the testatrix to disinherit the plaintiff. The testatrix said to Mr Arthur that she did not want to disinherit the plaintiff and that she actually used those words.

27 They discussed whether she wanted her three children to get different levels of benefit and Mr Arthur said the testatrix was aware that the benefits would be disproportionate and her expectation was that the defendants would receive more than the plaintiff.

28 By way of explanation for the distribution of the estate being disproportionate, Mr Arthur said at the time he took instructions from the deceased, the market value of the property was somewhere between $900,000 and $1,000,000. The deceased's instructions to Mr Arthur were that, when the property was sold, the sum of $200,000 would come out of the sale proceeds and be paid to the plaintiff and the balance of the proceeds of sale would then be divided between the two defendants. Her instructions were to include the two year period because her view was that the defendants could either come to an arrangement with the plaintiff or raise the $200,000 themselves and pay the plaintiff, in which case they would then keep the property themselves. In the absence of those two scenarios, the property would be sold and the proceeds would then be divided in the manner indicated. The deceased included the two year period so the defendants would not be under pressure to make the payment and would not be forced to have to have a 'fire sale' of the property.

29 As a result of the deceased's instructions, Mr Arthur drew the will. He did not receive any instructions from the deceased that the plaintiff would be paid out of any other moneys other than the proceeds of sale of the property. Mr Arthur said that the deceased did not have any significant asset other than the property. The deceased did not ever suggest to Mr Arthur that she contemplated winning money from TattsLotto.

30 In cross-examination, Mr Arthur said he did have a file for the deceased's will but he no longer has the file. He has not kept the file because he has limited storage facilities as he worked from his home and he did not think the file would be of any significance.

31 He said his memory of the events was 'fairly good'. When he took instructions from the deceased, he knew her asset situation because the deceased had told him about her assets. He knew she had a bank account because the deceased paid his accounts by cheque. He said he drew the deceased's will according to her instructions. He said it was the deceased's assumption that, when she died, the property would be sold in the absence of any other arrangement being entered into between the three children.

32 He knew at the time of taking instructions from the deceased that the second defendant lived at the property with the deceased. He did not obtain any instructions from the deceased about any contributions made by the second defendant to the household. He did not obtain any instructions about the deceased's relationship with the first defendant.

33 He said that after he prepared a will his invariable practice was to explain its contents to clients before they signed their wills. He said he would have told the deceased what was in the will, what the trustee clause means and so on and so forth. He would have asked her whether she understood what he had said and whether she was happy with it. He said the deceased was happy with the will and signed it.

34 Mr Arthur was taken to a letter dated 17 December 2008 from him to the deceased, the contents of which set out the provisions of her will. Mr Arthur agreed that he did not provide any other explanation to the deceased that was contrary to that set out in the letter. Mr Arthur said the letter was either posted or hand delivered to the deceased. The letter enclosed a copy of the deceased's will and provided:

I refer to our recent conference and thank you for the instructions received to act on your behalf in relation to the above. I now enclose herewith a copy of your new Will which has been drawn pursuant to your instructions.

You will note that the Will basically provides as follows:-

❖ Shane and Andrew act jointly as your executors.

❖ Your interest in the Simpson Street property passes equally to Shane and Andrew.

❖ The sum of $200,000.00 has been bequeathed to Michelle, however it is not payable until the expiration of two years after the date of your death.

❖ The rest of your estate is then divided equally between Shane and Andrew. The Will stipulates that should any of your children predecease you leaving children themselves, (your grandchildren), then such children would take the share of your estate that would have been taken by your deceased child had that child survived you.

35 The first defendant is now retired and now lives at the property with the second defendant. She receives the aged pension, having previously worked in aged care as a carer for the past 15 years. As at 17 December 2008, she lived in Queenscliff and worked in Point Lonsdale. She visited her mother on her way to and from work. She said her mother's health was 'reasonable', with her needing some advice from time to time. The first defendant also said her mother had a bank account as well as a Visa card. She also enjoyed a bet on the horses and liked to watch the races on Foxtel. She also liked TattsLotto, buying tickets every week and she would often give TattsLotto tickets to family members for birthday presents.

36 Her mother lived at the property with the second defendant and had done so for about 25-6 years. She was not closely involved with the relationship between the second defendant and her mother but in recent years she thought they shared the outgoings for living at the property. The first defendant thought that as at 17 December 2008 the second defendant did most of the maintenance around the property. She also said the second defendant's son lived at the property until he was 'probably 18 or 19'. After he moved out he visited his grandmother and the first defendant thought her nephew had a good relationship with his grandmother.

37 At the date of the deceased's will, the first defendant thought the plaintiff was not visiting her mother regularly or perhaps at all because they had had a falling out over the antique doll and they had not managed 'to heal their relationship'.

38 The second defendant lives at the property and is retired. In December 2008, he worked at an engineering place in Point Lonsdale doing deliveries and other jobs that needed doing, such as carting steel to and from Geelong. He commenced living at the property with the deceased after he split up from his partner when his son was aged 13 months. He said it made more sense to move back into the family home to raise his son. His mother was very helpful 'along those lines' and he saw the arrangement as the best thing for his situation.

39 The plain words of cl 3 of the will, taken without reference to the surrounding circumstances, contain only a slight ambiguity - there is no explanation as to why the gift of $200,000 should be delayed for two years. That ambiguity, while not alone sufficient to establish the meaning that the plaintiff seeks to establish, provides a vital clue as to the testator's intention.

40 As is clear from the authorities referred to above, however, the plain words must necessarily be read in light of the surrounding circumstances of the deceased - seated in her armchair, as it were. The surrounding circumstances themselves are uncontroversial, but of great significance. The deceased was elderly, and in receipt of a pension. Aside from a motor vehicle of little value, and a small cash sum in the bank, her only asset of any value was her home. There is no suggestion that, at the time she made her will, the deceased was unaware of her assets, and her testamentary capacity is not in issue. That circumstance alone creates, in the words of cl 3, a second ambiguity. She has referred to the payment of the sum of $200,000 when clearly she did not have a fund representing anywhere near that amount other than by reference to her home, which was her only valuable asset.

41 In order to resolve the uncertainty and ambiguity of her will, the evidence of her solicitor may be admitted to assist in the interpretation of her will.[11] In her discussions with her solicitor, she made it clear that, on her death, she wished to benefit all of her children. She also made it clear that she understood the benefits she wished to give to her children would be in disproportionate amounts and that disproportion was not related to any issue over the antique doll referred to in evidence.

42 She also understood that the gift of $200,000 to the plaintiff could not be paid from any other asset other than her home, either by way of the sale of the property, or by way of the defendants mortgaging the property or from the defendants themselves. It was for this reason that she provided the direction in her will that the gift to the plaintiff not be paid for two years from the date of the deceased's death. The form of cl 3, which does not make this intention entirely clear, reflected the deceased's apparent wish to provide the defendants with some flexibility in paying the gift to the plaintiff either by selling the home or, if they were able, raising the funds in another fashion.

43 In my view, taking into account the admissible evidence, upon a proper construction of cl 3 of the deceased's will, the plaintiff is entitled to be paid the sum of $200,000 from either the proceeds of the sale of the property or by the defendants as a condition of their entitlement to receive the property under the deceased's will. Pursuant to cl 3 of the will, the payment of the $200,000 to the plaintiff was deferred until two years after the date of death of the deceased. That construction gives effect to the words of cl 3 in a manner that resolves the two ambiguities referred to above.

44 Although it was not part of the consideration of the construction of the words of the will or the surrounding circumstances before the deceased signed her will, in cross-examination, counsel for the defendants took Mr Arthur to his letter sent to the deceased on the same day that she signed her will. To my mind, the contents of this letter corroborate his and the deceased's understanding of the provisions of the will; that is, the payment of $200,000 to the plaintiff was not payable two years after her date of death with the rest and residue of her estate to pass to the defendants. The letter does not either supplement or detract from the above analysis.

45 For the sake of completeness, counsel for the plaintiff quite properly referred the Court to what is described in Theobald on Wills as the leading case on the 'incapable meaning rule', sometimes called the 'plain meaning rule': the decision of Higgins v Dawson.[12] The facts of Higgins are accurately stated in the headnote to the report:

The testator, after directing payment of his debts and funeral and testamentary expenses, bequeathed a number of pecuniary legacies, and then gave 'all the residue and remainder' of two specified mortgage debts then due to him, after payment of his debts and funeral and testamentary expenses (Not noting adding 'and legacies') to thee persons named. At the date of the will the testator's personal estate consisted of the two mortgage debts, which were just sufficient for the payment of the legacies (if payable thereout), debts, and funeral and testamentary expenses. ... The total personal estate, exclusive of the two mortgage debts, was not sufficient for the payment of the debts, funeral and testamentary expenses and legacies.

46 The pecuniary legatees under the will wished to argue that the specific gifts of the two mortgage debts due to the estate should be construed as charged with the payment of the pecuniary legacies as well as the debts and expenses of the estate. To this end, they sought to adduce extrinsic evidence that, at the date of the testator's will, the testator owned no assets that would have fallen into residue. The House of Lords unanimously rejected this argument on the grounds that the plain language of the will was capable of only one meaning, that is, the testator had charged the two mortgage debts with the payment of debts and expenses and not with the payment of pecuniary legacies.

47 Counsel for the plaintiff submitted, and I agree, that insofar as the decision of Higgins appears to be inconsistent with the plaintiff's submissions in this proceeding, it can be distinguished on the basis that in Higgins the will clearly provided that the mortgage debts due to the estate were only to bear certain payments and not all payments. Because these were the clear provisions in the will, it was unnecessary to apply the armchair principle, indeed to do so would have 'violated' the clear provisions of the will. By contrast, in this case, the words of the deceased's will do not expressly contemplate the fund from which expenses and legacies are to be paid.[13]

48 In submissions opposing the plaintiff's claim, counsel for the defendants submitted that the estate of the testatrix may have increased after she made her will either by a windfall gain with TattsLotto or by way of ademption of her property. In making the submission made on ademption of her property, counsel for the defendants referred to the decision of Pape J in Re Morton,[14] where the testatrix, at the date of the will, owned a house and land at Lilydale. At the date of her death, the house had been sold and the balance of purchase money under the contract of sale together with interest was due to her estate.

49 The substantial question before Pape J was whether the named beneficiaries of her will took any, and if so, what interest in the estate, or the entire gift to them was adeemed so that the next of kin would take as on an intestacy. In the course of his decision, Pape J said:

The true position is, I think, best illustrated by what was said by Farwell J, in Re Dowsett, where he decided that if the gift be given simply by a description of the subject as it exists at the date of the execution of the will, it will be adeemed if the subject be subsequently disposed during the lifetime of the testator, but, if, on the contrary, it be given by a description which not only includes the subject of the gift as it then exists, but still includes it in whatever other form it may happen to exist at the date of the death, it is not then adeemed by any subsequent disposal of it, provided that at the testator's death the original subject of the gift is represented by actual property which can be identified.[15]

50 The factual circumstances in Re Morton are substantially different from the facts in this proceeding, where, on any view, the issue of ademption does not arise. In any event, in construing the deceased's will, the authorities are clear that the Court, in applying the armchair principle, is required to ascertain all the persons and facts known to the testatrix at the time when she made her will. It should not take into account matters of conjecture or, as the defendants put it, inferences relating to the future. Ademption is a legal rule that is not widely known even amongst legal practitioners, let alone an ordinary member of the public. It would be absurd for a testator to write a gift into a will in the expectation that it would subsequently adeem. This is especially so in circumstances where the deceased structured her will in such a manner as to allow the defendants every opportunity to keep her home in the family. She could not have intended the house to be sold prior to her death.

51 The possibility of a windfall gain from Tattslotto is similarly speculative, and could not have been a matter likely to be taken into account by the deceased in making her will. Perhaps, in different circumstances, it would be permissible to take into account future gains the testator expects to receive, but to take into account the arcane operation of legal rules, or the improbable expectation of winning a large sum of money in the lottery, cannot be relevant.

52 Counsel for the defendants also submitted that the choice of period of two years for payment of the legacy to the plaintiff should not enable the Court to infer that any payment to the plaintiff was intended to be made from a fund, because if the testatrix had intended that to be the case, she would have stated so in the will. It was submitted that her choice to fix this period from her death and not from the grant of probate could possibly be explained by the 'rational hypothesis' that, if there were delay in obtaining a grant of probate, the testatrix wanted the plaintiff to have interest on her legacy at that time and not be met by any defence based on the executors' year or otherwise. As with the previous submission, the admission of extrinsic evidence does not allow for mere conjecture and I do not accept the defendants' submissions on this point. The more likely explanation, and the better explanation, is that the deceased's choice of two years was to enable the defendants to raise the necessary funds to meet the gift to the plaintiff.

53 Counsel for the defendants also submitted that the application of Part 2 of Schedule 2 of the Administration and Probate Act 1958 provides that the fund reserved to meet pecuniary legacies must be exhausted before assets that are specifically disposed of by will are used to pay debts. Consequently, if that fund has been exhausted by the payment of debts, the pecuniary legatees receive nothing. Property specifically devised or bequeathed abates only if it has been necessary to draw on such property to pay debts. It does not abate to enable pecuniary legacies to be paid. I reject that submission. The question in this case is not which fund is available for the payment of debts,[16] but whether one gift is charged with the payment of another gift. The schedule to the Administration and Probate Act 1958 is not directed to that question.

54 Counsel for the defendants submitted that the definition in cl 2 of the will, 'and to such of them as shall prove my will I refer to hereinafter as my Trustees', and the identification of the beneficiaries by their names in cl 3(a) and (b) of the will, support the contention that the deceased intended to draw a distinction between the absolute interests given to the beneficiaries and 'payment by the Trustees' pursuant to the direction in cl 3(b) of the will. It was submitted that these words make it clear that the bequest was not due and payable by the defendant beneficiaries out of the absolute interest given to them but was only due and payable by the person described as 'my Trustees', being a representative liability. Thus, by the definition used, the testatrix did not intend to lessen the absolute interest given to the two defendant beneficiaries identified by name in the will. To the extent that I understand this submission, I reject it. The definition of 'my Trustees' is merely to clarify that, where only one of the named executors proves the will, as in fact occurred, the executor choosing not to prove is not held nonetheless to be a trustee. It does not alter the nature of the gifts.

55 Finally, counsel for the defendants submitted that, because cl 4(a) of the will directed that her trustees shall have, inter alia, the power and discretion 'to postpone the sale calling in and conversion of the whole or any part or parts of my estate' this meant that the defendants could postpone the sale calling in and conversion of the property for a period longer than two years from the date of death, yet interest would have begun to accrue. I do not see how this submission goes against the construction proposed by the plaintiff. The fact that the trustees may postpone the sale of the property, and yet still be liable to pay interest if they have not paid the gift, seems if anything to me to suggest that the deceased sought to achieve a flexible solution whereby the defendants would have a discretion as to how they would meet the legacy payable to the plaintiff either by selling the home or by some other means.

Is interest payable on the gift to the plaintiff?

56 Interest on legacies generally start to run at the expiration of one year from the date of death of the testator, unless the time for payment is postponed by the provisions of the will. In the deceased's will, the bequest was not due and payable to the plaintiff until the expiration of two years from the date of her death, which was 7 September 2010. In accordance with these provisions interest on the legacy should run from 7 September 2012, that being the date that it was due and payable.

57 Although the parties made submissions as to the rate of interest that should be payable on the legacy, the agreed questions do not require the Court to answer that issue, and if still in dispute and within the terms of the plaintiff's originating motion, it remains to be determined.

58 Accordingly, the answers to the agreed questions are:

(a) Pursuant to clause 3(b) of the deceased's will dated 17 December 2008 and taking into account any admissible evidence upon a proper interpretation thereof, is the plaintiff entitled to be paid the sum of $200,000 either:

• (i) from the proceeds of sale of 4 Simpson Street, Point Lonsdale ('the property'); or

(ii) by the defendants as a condition of their entitlement to receive the gift of the property made to them by the deceased by her said will?

(b) If yes to question (a)(i) and/or (a)(ii) is the plaintiff entitled to be paid interest on the legacy and, if so, from what date?

(c) If yes to question (a)(i) and/or (a)(ii) what relief and consequential orders in relation to sale of the property and as to costs should be made?

Answer: I shall hear the parties as to what relief and consequential orders should be made.

59 I shall hear the parties as to further directions and costs.

[1] [1943] AC 399, 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.

[2] [1922] HCA 55; (1922) 31 CLR 268, 273-6.

[3] Ibid quoting Ralph v Carrick (1879) 11 Ch D 873, 878 (Cotton LJ).

[5] Boyes v Cook (1880) 14 Ch D 53, 56 (James LJ).

[6] The other instance at common law that allows the admission of extrinsic evidence in a court of construction (which is not relevant in this proceeding) is in the case of equivocations where direct evidence of a testator's actual testamentary intentions: see John G Ross Martyn et al, Theobald on Wills (17th ed, Sweet & Maxwell, 2010) 281-3.

[7] [1943] AC 399, 420.

[8] (1999) 3 VR 666, 667.

[9] See Morgan v Moore [2000] VSC 94 (23 March 2000), where a detailed discussion of the legislative history of s 36 of the Wills Act 1997 and its precursor, s 22A of the Wills Act 1958, is set out.

[10] [2008] QSC 339 (19 December 2008) [26] (Atkinson J).

[11] Indeed, no objection was taken at trial by counsel for the defendants to such evidence being led.

1. [12] [1902] AC 1 ('Higgins') in which the original author of Theobald on Wills, Mr Theobald KC, appeared for the successful party: see John G Ross Martyn et al, Theobald on Wills (17th ed, Sweet & Maxwell, 2010) 234.

[13] In fact, the will (rather unusually) does not contain an express power for the payment of debts, expenses and legacies. It is unnecessary for the purposes of this application to consider the power of the executors to pay debts, expenses and legacies in the absence of an express provision.

1. [14] Re Morton [1963] VicRp 8; [1963] VR 40 (Pape J).

[16] A question in any case subject to the provisions of the will: see s 39(2) of the Administration and Probate Act 1958.