Plaintiffs v First Defendant

2 The plaintiffs bring this application by way of originating motion and with Ms Grant as their litigation guardian, for the determination of a question arising in the administration of the deceased's estate, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

3 The deceased and Mr Staughton both executed their last wills on 22 November 1997 ('the wills'). The first defendant is the executor of both estates. Probate was granted of both wills on 19 February 2015.

4 The second defendant, who was adopted by the deceased and Mr Staughton when he was nine months old, is married and has two step-children, Jordan Bartlett and Matthew Bartlett. He is representing the interests of Jordan and Matthew in this proceeding.

Who, upon the proper construction of cl 6 of the deceased's last will and cl 4 of Mr Staughton's last will, is within the meaning of the phrase 'my grandchildren'?

6 For the reasons that follow I consider that Jordan and Matthew, in addition to Ms Grant's children, fall within the expression 'my grandchildren'.

7 After revoking former wills, appointing an executor and making specific bequests, the deceased's last will provides:

1. IN THE EVENT of my said Husband predeceasing me or not surviving me by thirty days I GIVE DEVISE AND BEQUEATH the said rest and residue of my property as follows: -

(a) my residence known as 36 Melba Parade Anglesea in the said State (or such other property as is my usual residence at the date of my death) unto such of my said Son and my said Daughter as shall survive me and if more than one in equal shares;

(b) as to the furniture and contents not already specifically bequeathed under this my Will unto my said son NIGEL WILLIAM STAUGHTON absolutely;

(c) as to the balance unto such of my Grandchildren as shall be alive on 30th June 2020 and if more than one in equal shares and I authorize my Trustee prior to 30th June 2020 to apply such part of the income from such balance from time to time as he considers appropriate towards the maintenance education and advancement of my Grandchildren.

8 For the purposes of probate, the deceased's estate comprised a property at 36 Melba Parade ('the property') valued at $2 000 000 and personal estate primarily of shares, valued at approximately $822 568.

1. IN THE EVENT of my said wife predeceasing me or not surviving me by thirty days I GIVE DEVISE AND BEQUEATH the whole of my said property as follows: -

(a) my residence known as 36 Melba Parade Anglesea in the said State (or such other property as is my usual residence at the date of my death) unto such of my Son NIGEL WILLIAM STAUGHTON and my Daughter ANNETTE LOUISE GRANT as shall survive me and if both shall survive me then in equal shares;

(b) as to the furniture and contents of my said property unto my said Son NIGEL WILLIAM STAUGHTON absolutely;

(c) as to the balance unto such of my Grandchildren as shall be alive on 30th June 2020 and if more than one in equal shares and I authorize my Trustee prior to 30th June 2020 to apply such part of the income from such balance from time to time as he considers appropriate towards the maintenance education and advancement of my Grandchildren.

10 For the purposes of probate, Mr Staughton's estate, consisting primarily of shares and money in a bank account, was estimated to have a value of $635 952.

11 On 30 April 2015 the property was sold for $2 350 000. This sum has been distributed to Mrs Grant and the second defendant equally. The deceased's remaining estate is being held in a portfolio of cash and equities to the value of $718 575. The estate of Mr Staughton is similarly being held in a portfolio worth $611 894, bringing the total value of both estates to $1.329 million.

12 The plaintiffs rely upon two affidavits of Ms Grant, sworn 19 October 2016 and 23 November 2016, and an affidavit of the plaintiff's lawyer, Mr Peter Szanto, sworn 23 August 2016.

13 The first defendant filed an affidavit sworn 28 October 2016 and the second defendant filed an affidavit sworn 8 November 2016. Both defendants gave oral evidence at trial.

14 There was substantial agreement between the parties on the relevant facts. The following summary is drawn from all of the evidence before the Court. The plaintiffs objected to the admissibility of certain parts of the second defendant's evidence and this is ruled upon below.

15 In 1992, the deceased's mother, Jeanette Robley, died. It is common ground that Mrs Robley adopted the deceased. Mrs Robley was a beneficiary under a testamentary trust set up by her father, wherein his wife and children, including any adopted child, whether legally adopted or not, had a life interest in the income of part of the testamentary trust, and a power of appointment in relation to the capital upon his or her death. The will of Mrs Robley was drafted by the same law firm that drafted the wills. It left certain property to the deceased, who was described as 'my adopted daughter Janice', and the second defendant, who was described as 'my adopted grandson ...'. The residue was then held on trust for each of Ms Grant and the second defendant in equal shares. Income was to be paid to Ms Grant and the second defendant, with capital payments at the ages of twenty-five, thirty and thirty-five years.

16 On 22 November 1997, when the wills were executed, Ms Grant was 32 years of age. She had been married to Mr Michael Grant for approximately two and a half years and had two children, James, born 22 May 1995, and Christopher, born 18 September 1996. The second defendant was 26 years of age, unmarried and had no children.

17 In the weeks following the execution of the wills, the first defendant was told by the deceased and Mr Staughton that he had been appointed as a substitute executor of the estates and he was handed a photocopy of the wills. The first defendant is an accountant and has deposed that the deceased and Mr Staughton were initially clients of his, but that he also saw them weekly on a social basis. In social discussions, the deceased and Mr Staughton referred to Ms Grant and the second defendant as 'the kids'. Prior to the deaths of the deceased and Mr Staughton, the first defendant had met the second defendant on one occasion, and had never met Ms Grant.

18 The second defendant met his wife, Christine, in November 2001. Jordan and Matthew are children of Christine's first marriage. Their natural father is alive. At the time that the second defendant and Christine met, Jordan was four years old and Matthew was three years old. The deceased and Mr Staughton met Jordan and Matthew in early 2002, introducing themselves as 'Jan' and 'Dick'. In 2007, the second defendant and Christine were married. The second defendant has not adopted Jordan and Matthew.

19 The first defendant was never informed by the deceased or Mr Staughton that Jordan and Matthew were the second defendant's step-children.

20 Ms Grant deposes that between the date of execution of the wills and their deaths in 2014, her family visited the deceased and Mr Staughton more often than the second defendant's family, approximately five to six times per year in Anglesea. The deceased and Mr Staughton visited the families of Ms Grant and the second defendant mostly coinciding with birthdays of the children. According to Ms Grant, the deceased and Mr Staughton were warm and loving people who gave birthday and Christmas presents to Ms Grant's children and Jordan and Matthew.

21 The second defendant describes the deceased and Mr Staughton as having a close relationship with Jordan and Matthew from 2002. The deceased and Mr Staughton spent time with Jordan and Matthew at the second defendant's home and during numerous visits to Anglesea, spoke to Jordan and Matthew on the phone regularly and watched their sporting activities. Before the health of the deceased and Mr Staughton deteriorated, they visited the second defendant's home on the weekends, and Christmases were spent either at the second defendant's home or Ms Grant's home.

22 During school holidays, Christine, Jordan and Matthew would visit the deceased and Mr Staughton in Anglesea for a few days, where time would be spent 'on day trips, paddle boating, carnivals, bird feeding and shell collecting on the beach'. Christine, Jordan and Matthew also helped out with household chores.

23 The relationship between Jordan and Matthew and their biological paternal grandparents was said not to be strong. Christine received child support payments from Jordan and Matthew's biological father. Counsel for the plaintiffs suggested that one of Jordan and Matthew's biological grandfathers was Kevin Bartlett, the footballer. This was denied by the second defendant.

24 In his affidavit of 8 November 2016, the second defendant specifically deposes:

1. My father said to me, over the years, words to the effect of 'there's no difference between grandchildren, they're all the same' and 'as far as we're concerned, they're all grandchildren'.
2. My mother often told me over the years that she had done the same in her will as her mother had done in hers for her grandchildren. She told me that she wanted her grandchildren to get a head start in life, and she made various comments to me that she had taken on another person's child (being me) and that I had done the same thing taking on Christine's children.

25 No similar comments were made by the deceased and Mr Staughton to Ms Grant.

26 During cross-examination, the second defendant conceded that the statements of Mr Staughton as to there being 'no difference between grandchildren' were not said in the context of Mr Staughton's last will. Rather, they were said around a barbecue or when the deceased and Mr Staughton visited the second defendant's home. According to the second defendant:

They always said '...not to worry... your sister and you will get half the house and the kids will all be looked after', and I assumed, being kids, all the children would be looked after.

27 The second defendant also conceded that the wills of Mrs Robley and the deceased were significantly different, as while the former refers specifically to the second defendant as an adopted grandson, the latter simply referred to 'my grandchildren'.

28 The first defendant states that over the past ten years, his visits to the deceased and Mr Staughton reduced to approximately one visit per month. In particular, it is deposed that:

1. ... during those visits on a number of times each year they discussed that they were getting older and that 'the kids' received a benefit in the wills and 'the kids; children' were looked after with the investments that they had.
2. Sometimes they used the expression 'the grandchildren' interchangeably with the expression 'the kids' children'.
3. The last time I discussed the wills with either Dick or Jan was approximately 12 months before Jan's death. She had a fall and spent some time in hospital in Geelong. She telephoned me and asked me to visit her... I then visited Jan at the hospital...
4. At hospital in Geelong she told me again that 'the kids' were adequately covered in her will, and that the children of the two 'kids' were adequately provided for.

29 Ms Grant asserts that the deceased had a fall in February 2013 which resulted in a hospital stay, rather than in August 2013 as the first defendant appears to suggest. The deceased was, however, admitted to hospital again in August 2013.

30 From February 2014, due to health issues of both the deceased and Mr Staughton, Ms Grant provided assistance with the deceased's shopping and daily activities. The deceased died in August of that year and Mr Staughton died less than a month thereafter.

31 It is unnecessary to recount all of the evidence surrounding the conduct of the first defendant subsequent to probate being granted on 19 February 2015. Suffice to say, by letter of their lawyers dated 17 March 2015, the plaintiffs raised the issue surrounding the expression 'my grandchildren' with the first defendant. While it was agreed that counsel's advice would be sought on the matter, there were delays in both briefing counsel and obtaining an advice.

32 Contention also surrounds requests by the plaintiffs for the advancement of income from the estates to pay certain education and maintenance expenses, in accordance with cl 6(c) and cl 4(c) of the wills. When testifying on this issue, the first defendant denied that his decision not to make the payments was related to forming a belief that the plaintiffs were in a comfortable household position on account of the distribution to Ms Grant of half of the proceeds of sale of the property. This was inconsistent with a letter dated 28 October 2016 from his lawyers to the plaintiffs' lawyers.

33 The inconsistency in the first defendant's testimony was in association with questions directed at his conduct. Although Ms Grant's affidavit raises some doubt as to the accuracy of the first defendant's evidence in paragraph [16] of his affidavit, I accept the evidence as the deceased was in hospital at the time. I also accept the evidence of the second defendant. I note, however, that the second defendant's evidence as to the statements of the deceased and Mr Staughton is non-specific and seemingly based upon recollections over a number of years. As such, limited weight can be given to it.

34 Before setting out the submissions of the parties, it is beneficial to consider the principles of will construction.

35 At common law, the task of the court when construing a will is to discover the testator's intention by examination of the words used in the will, having regard to the will as a whole and in light of any admissible evidence.[1]

36 In Fell v Fell, Isaacs J espoused ten principles that his Honour described as 'incontestable'. While unnecessary to detail all the principles in the present circumstances, of particular relevance is the second principle described by Isaacs J:

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 framer of it.[2]

37 Prima facie, the words of a will must be given their ordinary meaning. 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'.[3] In effect, the court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will. As discussed by Lord Romer in Perrin v Morgan, the court may sit in the testator's 'armchair' in order to understand the language used in the will.[4] In the same case, Lord Atkin also noted that 'no will can be analysed in vacuo'.[5] Significantly, however, the court cannot 'make a fresh will for the testator merely because it strongly suspects that the testator did not mean what was plainly said'.[6]

38 Despite this capacity to consider the circumstances surrounding the testator, the common law developed a reticence toward receiving direct evidence of a testator's intention.[7] Ordinarily, a testator's declarations as to his or her intention or the meaning of words used in the will are inadmissible. An exception exists in this regard, however, where an equivocation arises in the language of the will. An equivocation is a term that, upon application to external objects, is found to fit two or more of them equally.[8] Where evidence of the circumstances surrounding the testator has failed to resolve the issue and an equivocation is evident, the court may look to any evidence of what the testator's intention really was.[9]

39 The principles surrounding equivocations were discussed by Herring CJ in In re Cullen where his Honour stated:

In Wigram's Extrinsic Evidence (5th ed)... the learned author ... says: 'From these judgments it will appear that the decisions have affirmed the doctrine, that where the description in the will of the person or thing intended is applicable with legal certainty to each of several subjects, extrinsic evidence is admissible to prove which of such subjects was intended by the testator.' ... 'It can scarcely be necessary to observe, that, in order that a case may be brought within the scope of this proposition it is not necessary that the description in the will should be in all respects accurate or perfect. All that the law requires on this point is, that the description shall be so far perfect as to describe with legal certainty each of the subjects to which it is sought to be applied - it must (as a description) satisfy the mind of the Judge, that it does describe the subject to which he applies it - it must, as a description, be sufficient to his mind.'[10]

40 In In re Smith,[11] O'Bryan AJ considered the phrase 'my will and three previous codicils thereto'. In the circumstances, the testator had in fact executed four previous codicils. O'Bryan AJ determined that the phrase was a latent ambiguity and true equivocation as, once the fact was known that five codicils had been drafted, the words were equally descriptive in all their parts of any three of the four codicils which had previously been executed.[12] Extrinsic evidence of the true intentions of the testator was therefore admissible. O'Bryan AJ found that the rationale for the exception as to equivocations is that:

... while it is forbidden to allow extrinsic evidence of intention to come into competition with the terms of a document on the same subject and possibly prevail against the document, in the case of equivocation no such result follows from resort to extrinsic evidence of intention. 'Since the term of the document describes equally two objects, and since it was aimed to designate one only, there can be no competition with the words of the document by declarations which merely expand and make more specific those words'.[13]

41 In addition to common law principles, the admissibility of extrinsic evidence is also determined by legislation. As the wills were executed on 22 November 1997, the applicable legislation is s 22A of the Wills Act 1958. That section provides:

22A. Provisions as to the construction of wills

(1) In the construction of a will acts, facts and circumstances touching intention of the testator shall be considered and evidence of such acts, facts and circumstances shall be admitted accordingly but evidence of a statement by the testator declaring the intention to be effected or which had been effected by the will or any part thereof shall not be received in proof of the intention declared unless the statement would apart from this section be received in proof of the intention declared.

(2) Where in any matter relating to the construction of the will any evidence adduced by a party is admissible by reason of and by reason only of the provisions of sub-section (1), the party or parties by which that evidence is adduced or relied upon shall bear such part of the costs of the proceedings as is attributable to the introduction of that evidence unless the court or judge otherwise determines.

42 The section was applied by the Full Court in the case of Stone v Bayliss, where the Court stated that the effect s 22A(1) is that, 'subject to the specified exception, extrinsic evidence relevant to the intention of the testator is always admissible upon the construction of a will'.[14]

43 Additionally, Warren J (as her Honour then was) considered the legislative history of s 22A in detail in Morgan v Moore. That case concerned a declaration of the meaning of the phrase 'my grandchildren' in a testator's last will, in circumstances where the testator had been married twice and had children from each marriage. At issue was whether the grandchildren from the testator's first marriage were encompassed within the phrase 'my grandchildren'. Her Honour determined that:

... the effect of s 22A is that in all cases with one exception the court may receive evidence of the circumstances of a testator to assist in the interpretation of the will. As a result of s 22A the examination of the circumstances of the testator may disclose an ambiguity that is not otherwise apparent on the face of the will. Under s 22A it is then open to the court to attempt to resolve such ambiguity by reference to extrinsic evidence. The only exception is that direct evidence of the testator's dispositive intention remains inadmissible except insofar as it is presently admissible under the common law.[15]

44 Notably, the legislative background to s 22A discussed by her Honour referenced the role of the provision in extending the 'dictionary principle', that is, the principle whereby testators may give their own meaning to ordinary words. Section 22A was introduced based upon recommendations of the Victorian Chief Justice's Law Reform Committee, which adopted the report of a sub-committee. That report commended the following obiter comments of Lord Blackburn:

[i]n the cases of wills the testator is speaking of and concerning all his affairs; and therefore evidence is admissible to show all that he knew, and then the Court has to say what is the intention indicated by the words when used with reference to these extrinsic facts, for the same words used in two wills may express one intention when used with the testator's affairs and family, and quite a different one when used with reference to the state of the other testator's affairs and family.[16]

45 In the circumstances of Morgan v Moore, extrinsic evidence was admitted that revealed not only ambiguity in the phrase 'my grandchildren', but also included evidence that:

(a) the instructions given to the testator's solicitor in relation to drafting of the will were silent as to the testator's prior marriage and identified only grandchildren of the second marriage;

(b) although aware of grandchildren from her first marriage, the testator did not maintain a relationship with those grandchildren; and

(c) the testator referred to only the grandchildren of her second marriage as her grandchildren.

Consequently, her Honour determined that the testator adopted the phrase 'my grandchildren' in her will in a way other than the ordinary or literal meaning of such an expression.

Consideration of the plaintiffs' objection to the evidence

46 With these general principles and rules of admissibility in mind, it is necessary to address the plaintiffs' objections to certain evidence of the first and second defendants, before turning to the substantive question for determination.

47 Submissions were made specifically regarding the admissibility of paragraph [10] of the second defendant's affidavit of 8 November 2016 and paragraphs [14] and [17] of the first defendant's affidavit of 28 October 2016.

48 The plaintiffs object to the evidence of the second defendant that:

[10] My mother often told me over the years that she had done the same in her will as her mother had done in hers for her grandchildren. She told me that she wanted her grandchildren to get a head start in life...

49 According to the plaintiffs, those words purport to be direct evidence of the deceased's dispositive intent, in the sense of an intention that had been and was to be effected. Although it is acknowledged that the words 'my grandchildren' are ambiguous as a consequence of the circumstances surrounding the wills, it is asserted that they are not words of equivocation. As such, the exception in relation to evidence of dispositive intent is said not to apply.

(a) '...and 'the kids' children were looked after with the investments that they had'; and

(b) '.... and that the children of the two 'kids' were adequately provided for';

in paragraphs [14] and [17] of the first defendant's affidavit of 28 October 2016. Again, it is asserted that the words purport to be direct evidence of the deceased's and Mr Staughton's dispositive intentions.

51 Counsel for the first defendant agreed that the words 'my grandchildren' were not words of equivocation, and noted that if the evidence is evidence of what the deceased believed to be was the effect of her will, then it is probably direct evidence of dispositive intent.

52 The second defendant submits that the phrase 'my grandchildren' is ambiguous on the basis of both what is described as a 'contemporary approach' to interpretation and in light of the surrounding circumstances. In relation to the former, reliance is placed upon Harris v Ashdown. That case considered whether the word 'child' included an adopted child of the testator's daughter. Although for a time before executing his will the testator was aware that his daughter was looking to a adopt a child, the adoption did not occur until after the testator's death. Kirby P and McHugh JA determined that, in the circumstances, the reference to 'child' did include the adopted child of the testator's daughter. Kirby P's (as his Honour then was) analysis was based upon the language and structure of the will and the circumstances known to the testator. In responding to a submission that 'children' prima facie means legitimate children in accordance with established authority,[17] however, his Honour also commented:

I cannot leave this examination of the authorities without saying that, in my view, the observations of Lord Cairns in 1873 must, even as providing a judicial dictionary, be regarded as of doubtful applicability to the task of deriving the testator's intention, at least in the case of a will drawn today. Attitudes to personal relationships and the provisions of the law on matters such as illegitimacy and adoption, have changed so significantly in the past hundred years, that it is no longer safe to adopt, even as a rule of thumb, the principle that by the use of the word 'child' in his will, a testator must be taken to mean only a legitimate child. Quite apart from the provisions of legislation on adoption and the status of illegitimacy, social attitudes to such children have so changed since the 19th century, as to make the rule laid down by Lord Cairns inapplicable to modern conditions ...

Accordingly, in my view it is no longer safe to approach the construction of words such as 'child' and 'children' from the starting point of Lord Cairns' dictum. Nowadays, it would be much safer to include in the expression 'child', as used in a will, legitimate and ex-nuptial, adopted and step-children, unless, from the language of the will itself, or from admissible surrounding circumstances, it is shown that a narrower meaning was intended by the testator. Such an approach acknowledges at once the changing nature of personal obligations in today's society and the demise of earlier prejudices against illegitimacy which help to explain the starting point taken by Lord Cairns and, consequently, those who have since followed his dictum. That starting point may well have been appropriate in the social circumstances in which wills were written in 1873. It is scarcely appropriate in modern Australia.[18]

53 McHugh JA (as his Honour then was), although agreeing in the outcome, made no reference to the additional comments of Kirby P. Rather, his Honour emphasised the circumstances surrounding the testator, noting that decisions in 'other cases and on the word 'child' in other contexts are in [his Honour's] opinion not decisive; nor, on the facts of the case, are they helpful'.[19] Priestley JA dissented on the issue, concluding that the highest the evidence could be put was that at the time of death the testator knew that his daughter was hoping to adopt a child. Of relevance in his Honour's view was the timing of the testator's death and the subsequent adoption, such that the testator did not have an opportunity to refer to the adopted child as his grandchild or as his daughter's child.[20]

54 According to the second defendant, the 'contemporary approach' to construction of 'child' espoused by Kirby P raises an equivocation or ambiguity on the face of the wills, in that the expression 'my grandchildren' may not necessarily refer to biological children. Ambiguity is also said to arise from the surrounding circumstances.

55 The recounted statements of the deceased and Mr Staughton convey their beliefs as to the intent of the wills and prima facie are inadmissible. In my view, the evidence objected to by the plaintiffs of both the first and second defendants is direct evidence of dispositive intent.

56 The more difficult question is whether the phrase 'my grandchildren' is an equivocation. Insofar as the wills may be considered ambiguous, I reject the second defendant's submission that the 'contemporary approach' suggested by Kirby P in Harris v Ashdown generates such ambiguity. Rather, as both the plaintiffs and second defendant submit, ambiguity in the wills arises from the evidence of surrounding circumstances.

57 The expression 'my grandchildren' is not readily analogous to much of the case law on equivocations, which tend to consider narrower phrases such as 'my Cousin William Cullen'[21] or 'my sister-in-law Mary Ramage'.[22] This lack of authority referring to expressions such as 'children' or 'grandchildren' as equivocations is unsurprising due to rules of construction giving such phrases an ordinary meaning. If 'children' is assumed to have an ordinary meaning of 'legitimate children', for example, an equivocation does not arise.[23] According to Theobald on Wills, however, if the wording of the will and the armchair principle show that the testator intended, for example, 'nephew' in the phrase 'my nephew Arthur' to mean an ex-nuptial nephew as well as a legitimate nephew, then an equivocation exists.[24]

58 The case of Re Fleming affords some assistance in this regard. At issue was whether the expression 'my son John' meant the testator's son from his first marriage, or step-son from his second marriage. Dean J reasoned that if 'son' in the will was confined to the children of the first marriage rather than step-children, no evidence of intent would be admissible. In the circumstances, however, as in the will the testator had referred to his step-daughter as a 'daughter', there was the possibility that 'son' referred to 'step-son'. In the context of such an ambiguity Dean J admitted 'parole evidence to discover what the testator meant by the language which he used', which included the testator's instructions in relation to the will.[25]

59 A similar approach appears to have been adopted by Young J in the case of Day v Perpetual Trustee Co Ltd. There, the testator had devised a proportion of her estate to her 'only child, my daughter Jill Anne Day ' and devised part of her residuary estate to 'such of my grandchildren as may survive me'. In the circumstances, the testator had been married twice and had two children of her first marriage, and Jill Day was the only child of the testator's second marriage. Jill Day had one child of her own, while there were six grandchildren from the testatrix's first marriage. The submission was made by the plaintiff that extrinsic evidence was inadmissible as 'grandchild' was not ambiguous. Young J, however, determined that ambiguity arose as references to 'my only child' and 'said daughter' in the will suggested that the term 'grandchildren' may be confined to issue of Jill Day. His Honour also accepted the submission that the reference to 'grandchild' was an equivocation because:

one [did] not know, just sitting in the testatrix's armchair, whether she meant the children of Jill Anne Day or the children of all her children, even after one look[ed] at the extrinsic evidence admitted under the armchair principle.[26]

60 The extrinsic evidence that was admitted showed that the solicitor who drafted the will was not aware that the testator had more than one child, and that shortly before she died the testator arranged for a new will in which she specifically bequeathed her estate to Jill Day and Jill Day's child. Young J found in favour of all of the grandchildren. Of relevance was the structure of the will and the relationship between the testator and Jill Day.

61 In contrast, Parry v Haisma was a case in which White J declined to accept that the expression 'my nephews and nieces' was an equivocation. There the evidence indicated that the testator had numerous individuals who could be described as 'nephews and nieces', including those who were related to the testator by blood and those who were the nephews and nieces of the testator's de facto partner.[27]

62 While I am inclined to prefer the approach of Young J in the case of Day v Perpetual Trustee Co Ltd, it is unnecessary to finally decide the matter as I have formed a view on the intended meaning of 'my grandchildren' as expressed in the wills without recourse to the evidence objected to by the plaintiffs.

Does the expression 'my grandchildren' include Jordan and Matthew as 'step-grandchildren'?

63 The plaintiffs seek a declaration as to whom of Ms Grant's four children and Jordan and Matthew are within the expression 'my grandchildren'. It is not disputed that Ms Grant's four children fall within the expression. The issue surrounds the application of the wills to Jordan and Matthew. The plaintiffs and second defendant have provided detailed submissions. The first defendant has taken an impartial position.

64 The plaintiffs submitted that the Court should approach analysis similar to previous authorities considering the meaning of 'descendants' and 'children'. It was noted that while courts have recognised the natural and ordinary meaning of such phrases, in a number of contexts they have been willing to depart from those ordinary meanings and identified an alternative intention of the testator. A number of cases were referred to in their submissions.

65 For example, in Re Estate of Wright, Kunc J determined that the expressions 'descendants' and 'children' included the testator's step-grandchildren. In the circumstances, the testator's son had four children, two of whom were his wife's biological children of a former marriage. Although Kunc J did not think that the natural and ordinary meaning of 'descendant' or 'child' in contemporary Australian usage had reached the point where, without more, it necessarily included step-children, his Honour went on to state:

Notwithstanding adherence to what might be seen as the traditional meaning of the word 'children', the Court has no doubt that in today's society in particular cases its meaning readily extends to stepchildren.[28]

(a) the testator was affectionate toward the children in question;

(b) he encouraged his son to take care of the children as his son's 'responsibility';

(c) the phrase 'step-children' was never used to refer to the children; and

(d) the testator referred to all of his son's children as 'the kid's', 'the children' and 'the grandchildren'.

Additionally, the events surrounding the drafting of the will satisfied the Court that the testator had instructed his solicitor that the step-children were to take as beneficiaries of a testamentary trust. As such, Kunc J concluded that the testator considered the children 'to be an integral part of his extended family and, more importantly perhaps for present purposes, and integral part of his son David's family'.[29]

67 The case of Re Estate of Nies involved construction of the phrase 'my children' in circumstances where the testator had two step-children. Gray J referred to a number of earlier cases in which, although it was acknowledged that the phrase 'children' ordinarily means natural children, the language of the will and evidence of surrounding circumstances led to a finding that 'children' was intended to include 'step-children'.[30] In the event, the evidence demonstrated overwhelmingly that the testator considered his step-children as his children and that he was unlikely to have any natural children.

68 One of the cases to which Gray J referred was Re Estate of Warren. In that case 'children' was construed as including one step-child, who had lived with the testator, was 'fully part of the family unit' and described as a son of the deceased in the will, but not another step-child, who only formed part of the family unit for a limited period. Davies AJ stated:

... I consider that, in a will, the word 'children' should ordinarily be read as referring to natural children for that is its primary meaning, but that other persons should be included within the term when legislation so requires or when the terms of the will or evidence show that there is reason for doing so...

It is, therefore, necessary to look both at the will itself and at the circumstances to the date of the testator's death which were known to the testator in order to ascertain whom the description was intended to benefit.[31]

69 In Warton v Yeo, the New South Wales Court of Appeal overturned a first instance decision on the construction of 'children'. The testator had bequeathed a share of his residuary estate to the children of his sister. His sister had one natural child and four step-children, all of whom she had raised as her children. Other clauses of the will had referred to 'my step-nephew...' and 'my nephew...' with reference to the sister's step-son and son respectively. Based upon this distinction, the primary judge construed 'children' according to its natural and ordinary meaning as excluding the step-children. The continuing relationship between the testator's sister and her step-children was not viewed as of great significance.[32] In contrast, the Court of Appeal, recognising that the testator was aware that his sister had brought up her step-children as part of the family unit for 31 years and had no prospect of having more natural children, viewed use of the plural 'children' as a strong textual indicator that the testator intended to include his sister's step-children within the phrase 'children'.[33]

70 Finally, in Thomson v Down a will created a testamentary trust of which the testator named all of his children as beneficiaries. The testator had six children from his first marriage and three adult step-children of his second marriage. The second marriage occurred less than a year before the will was executed at a time when the step-children were 43, 41 and 39 years old respectively. On the evidence before the Court, Dalton J did not depart from the ordinary and natural sense of 'children' as referring to natural children. Of some note, consideration was not given to a sizeable amount of evidence that post-dated the testator's will. It was acknowledged, however, that the testator did appear to have a very good relationship with the step-children.[34]

71 Although the plaintiffs recognise that cases have departed from the ordinary meaning of 'children' where appropriate, they submitted that in the current circumstances there are insufficient facts pointing to a conclusion that 'my grandchildren' as used in the wills includes the step-children of the second defendant.

72 Use of the plural 'grandchildren' in the wills was appropriate given that two grandchildren already existed and more could be accommodated. However, from February 2002 when Jordan and Matthew were introduced to the deceased and Mr Staughton, the wills were not revisited to expand the meaning of grandchildren, even though the deceased was likely to be aware that her mother expressly extended the meaning of children in her will.

73 While it is conceded that the affidavits of both Ms Grant and the second defendant evidence a continuing intergenerational relationship between the deceased and Mr Staughton on the one hand and Ms Grant's family and the second defendant's family on the other, this is said to be nothing more than what for most people is 'normal family life'.

74 The second defendant has not legally adopted Jordan and Matthew, and it is submitted that on the balance of probabilities, the deceased and Mr Staughton knew that this was the case. Further, the relationship between the deceased and Mr Staughton and Jordan and Matthew occurred years after the wills were executed in a context where Jordan and Matthew have natural parents. In contrast, in the cases of Re Estate of Wright and Re Estate of Nies, it was the evidence of family relationships existing before the wills that was determinative. Additionally, in Re Estate of Wright, there was evidence of the testator's instructions to his solicitor that supported the step-children benefitting, and Harris v Ashdown can be distinguished as a case regarding adoption rather than step-children.

75 The Oxford English Dictionary defines 'grandchild' as the child of one's son or daughter. The second defendant points to Kirby P's comments in Harris v Ashdown and Kunc J's statement in Re Estate of Wright and advocates for a contemporary approach to the meaning of 'grandchildren' that extends to step-grandchildren. It is submitted that the law should move with the times, and that the plain meaning of phrases such as 'children' and 'grandchildren' has radically altered since the 1960s and 1970s. When pressed, counsel for the second defendant suggested that such a contemporary meaning would reflect current community standards, with reference made to Elder v McComish,[35] Wilson v Chapman[36] and the first instance decision of Warton v Yeo.[37]

76 Elder v McComish was an application to strike out certain affidavits. The affidavits were in support of the plaintiff's application for a declaration that the phrase 'my children' in the testator's will referred to both the testator's biological children and step-children. Both parties referred to the approach of Kirby P in Harris v Ashdown. In refusing to strike out the affidavits, Master Sanderson stated:

There are, I think, two matters which arise from what his Honour had to say ... First, there is no basis for suggesting that the use of the phrase 'my children' necessarily refers only to the biological children of the deceased. In effect, the decision in Harris is authority for the proposition that no such bald assertion can be maintained. Secondly, and flowing on from the first, it will be for a party who urges upon the Court a construction of the Will which does not limit the phrase 'my children' to the deceased's biological children to produce evidence of the surrounding circumstances which can lead a Court to conclude that there is an ambiguity on the face of the Will. That is what was done in Harris and, with respect, that is what the plaintiffs have attempted to do here.[38]

77 Wilson v Chapman was a case in which Daubney J declared that by virtue of s 89 of the Marriage Act 1961 (Cth) an ex-nuptial child came within the construction of 'child'. His Honour made obiter comments stating that, had the legislation not been applicable, he would have had regard to Kirby P's observations in Harris v Ashdown.

78 Insofar as the second defendant relies upon Warton v Yeo, specific reference was made to Hallen J's comments that:

Importantly, the question in Harris v Ashdown involved the testator's own children and grandchildren. It was in that context that his Honour concluded that, as an ordinary English word, the word 'child' or 'children' was likely to be used by a testator in a broader sense. In other words, 'child' should be interpreted as being any person formally acknowledged, or held out, by the testator in his, or her, lifetime as his, or her, child.[39]

79 It is submitted that in the present context when the deceased and Mr Staughton used the expression 'grandchildren' their intentions were to refer to grandchildren, whether biological, adopted or step-grandchildren. The evidence shows that both the deceased and the second defendant were adopted and there was a liberal attitude towards inheritance. The wills did not name specific grandchildren, presumably on the expectation that there would be further grandchildren after the wills were made.

80 The second defendant additionally emphasises that after the wills were made a close relationship developed between the deceased and Mr Staughton and Jordan and Matthew. The deceased and Mr Staughton were warm and loving and gave all of the children birthday and Christmas presents, and there is evidence that:

(a) Mr Staughton told the second defendant that he regarded Jordan and Matthew as his grandchildren; and

(b) the deceased and Mr Staughton referred to Jordan and Matthew as 'the kids' children', an expression that was used interchangeably with 'the grandchildren'.

81 Finally, it is submitted that although Jordan and Matthew were introduced to the deceased and Mr Staughton some years after the wills were executed, in Harris v Ashdown Kirby P and McHugh JA were willing to construe 'children' as including an adopted child, even though that child was not known to the testator at the time of execution.

82 Insofar as courts have construed the meaning of 'grandchildren', in addition to Morgan v Moore, Re Estate of Wright and Day v Perpetual Trustee Co Ltd, two cases of note are Re Moyle[40] and the Canadian case of Re Estate of Lang.[41]

83 Re Moyle was a decision of Schutt J declaring that the word 'grandchildren' included the children of the testator's step-daughter. Of significance, the will had referred to the testator's step-daughter as 'my daughter'. The parties conceded that in its ordinary sense 'grandchildren' could not include the children of a step-daughter. In the circumstances, however, the testator had supplied his own meaning to the word in accordance with the dictionary principle. Schutt J concluded that in referring to his step-daughter as a daughter, the testator:

... intended to include her children in the expression 'grandchildren', or, in other words, that the expression 'grandchildren' is equivalent to saying 'the children of my son ... and my daughter...'.[42]

84 In Re Estate of Lang, the testator's last will divided the residue of her estate between her 'grandchildren' and 'great-grandchildren'. The testator's husband had two children from a previous marriage, and the testator and her husband also adopted two children. There were three children of the testator's adopted children, and ten children of her step-children. According to Canadian authority, the terms 'children' and 'grandchildren' did not ordinarily include step-children. However, Brown J noted that:

The judge's duty is to decide what a particular testator intended in their individual circumstances. They should not to [sic] colour their interpretation of that intent based on what another court has found another testator, in other circumstances, intended by words they used...[43]

85 Although his Honour accepted that the testator had treated at least some of her step-grandchildren, who referred to her as 'grandma', as relatives, in the event there was no reason to justify departure from the 'legal presumption in favour of legal descendants'. Of particular significance in this regard was a handwritten note of the testator that was contemporaneous with the execution of the will, listing only the children of the testator's adopted children under the heading 'grandchildren'.

86 The authorities indicate that the testamentary meaning attributed to the expressions 'grandchildren', 'children' or 'descendants' can vary with the circumstances of each case. In none of the cases cited was reliance placed solely on any ordinary meaning of the phrases. Certainly, in accordance with the principles of construction, analysis is directed toward determining the intention of the testator as expressed in the will and in light of the circumstances at hand rather than defining the boundaries of any identified ordinary meaning. This reflects the shift in approach to construction as espoused in Perrin v Morgan, from earlier methods strictly applying the primary meaning of the text.[44] While the language and structure of the will remain paramount, recognition is afforded to the fact that the meaning of an expression can vary from testator to testator. Such an approach was also acknowledged in the legislative history of s 22A.[45]

87 In each of Morgan v Moore, Re Moyle and, although a less persuasive authority, Re Estate of Lang, reference was made to the ordinary meaning of grandchildren as the legal children of one's children. Insofar as the second defendant has encouraged the Court to adopt a contemporary meaning, the Court is not in a position to determine community standards reflecting the intended meaning of 'grandchildren'. Certainly, the difficulties associated with determining community standards have been acknowledged in the context of family provision legislation.[46]

88 While it can be accepted that the ordinary meaning of 'children', and subsequently 'grandchildren', derived from the nineteenth century has less relevance today, in my view, it cannot be assumed that the community would intend for a broad meaning to be applicable in testamentary documents. The present community is diverse, and the meaning of relational descriptors such as 'grandchildren' or 'cousin', for example, may vary from family to family. In any event, the real issue in this proceeding is determining what the testator meant in using the expression, not whether any assumed meaning should stand. Were the Court to adopt a contemporary meaning of 'grandchildren' that extended to legitimate, ex-nuptial, adopted and step-children, this position would not change. Consideration would turn to the same facts and the starting point would remain identification of the testator's intentions as expressed in the will and in light of the admissible evidence.

89 The comments of Kirby P in Harris v Ashdown suggesting a new ordinary meaning for the phrase 'child' or 'children' were obiter. It is clear that his Honour did not advocate a position, or proceed on the basis that any broad meaning should strictly apply. Rather, his Honour rejected submissions that the meaning of 'child' as only 'legitimate child' should be strictly applied in favour of a broader inquiry to determine the testator's intentions. In my view, the cases that the second defendant referred to do not advance the issue any further.

90 The language and structure of the wills give little indication as to the intended meaning of the phrase 'grandchildren'. The wills are relatively short and simply structured. They devise the most significant asset of the estate to Ms Grant and the second defendant, before making the gift to 'my grandchildren'. The use of the phrase 'such of my grandchildren' without specifying those children already in existence by name suggests an intention to include future grandchildren as beneficiaries.

91 There are no textual indicators in the wills as was seen, for example, in Warton v Yeo and Re Moyle. The fact that the deceased and Mr Staughton did not expressly extend the meaning of grandchildren in the wills, as the deceased's grandfather extended the meaning of 'child' to 'whether legally adopted or not' in his will, is equivocal. It may be, for example, that an extended meaning was not provided because the deceased and Mr Staughton assumed that such grandchildren would already be encompassed within the phrase 'my grandchildren'. Similar analysis applies to the fact that the deceased and Mr Staughton did not revisit the wills to expressly include Jordan and Matthew. While such an omission could signify an intent not to include Jordan and Matthew as beneficiaries of the estates, it may equally be accounted for by the deceased and Mr Staughton simply assuming that it was unnecessary, as Jordan and Matthew would fall within the phrase 'my grandchildren'. In any event, Re Estate of Nies, Harris v Ashdown and Re Estate of Wright all indicate that a lack of a specific textual indicator of the testator's intent does not preclude a finding that the testator intended something other than the ordinary meaning of a word.

92 Turning to the circumstances surrounding the wills, I consider there is enough evidence to suggest that, on balance, the expression 'my grandchildren' was intended to include Jordan and Matthew. First, the evidence discloses that over twelve years the deceased and Mr Staughton developed close relationships with Jordan and Matthew. This is indicated particularly by:

(a) Jordan and Matthew spending time at the home of the deceased and Mr Staughton on numerous occasions, and speaking on the phone to the deceased and Mr Staughton regularly;

(b) the deceased and Mr Staughton buying Christmas and birthday presents for Jordan and Matthew, and spending time at either the second defendant's home or Ms Grant's home at Christmas;

(c) Christine, Jordan and Matthew spending days during school holiday periods at the home of the deceased and Mr Staughton, without the second defendant; and

(d) Mr Staughton stating to the second defendant, albeit not specifically in the context of the wills, words to the effect that 'there's no difference between grandchildren; they're all the same'.

93 Of some relevance is also the fact that in discussions with the first defendant, the deceased and Mr Staughton never identified or distinguished Jordan and Matthew as step-children.

94 Secondly, in Re Moyle the Court noted that 'grandchildren' is equivalent to the expression 'the children of my daughter or son'. This is consistent with the dictionary definition of 'grandchild', as submitted by the second defendant, and as in the Macquarie Dictionary applicable in 1997.[47] It affords recognition of the relationship that the second defendant has established with Jordan and Matthew.

95 The second defendant commenced a relationship with Jordan and Matthew when the children were approximately four years old and three years old respectively. He has been involved in the lives of the children for the last sixteen years, and has signified his commitment to Christine by marriage. He has referenced discussions with the deceased as to him having 'taken on' Christine's children, and he has no other children. Jordan and Matthew were introduced to the deceased and Mr Staughton within twelve months of the second defendant meeting Christine, and there is evidence that the deceased and Mr Staughton used the phrases 'grandchildren' and 'the kid's kids' interchangeably. All of these factors point toward Jordan and Matthew becoming, to use the language of Kunc J in Re Estate of Wright, an 'integral part' of the second defendant's family, and as a consequence, the extended family. Similarities exist with both the appellate decision of Warton v Yeo and Re Estate of Warren, in which references were made to the potential beneficiaries becoming part of the 'family unit'.[48] To a degree, this can be contrasted with the evidence of relationships in both Thomson v Down, where the step-children were in middle-age at the time of the relevant marriage, and Day v Perpetual Trustees Co Ltd, in which difficulties in the relationship between the testator and her daughter were cited. For the purposes of the wills, Jordan and Matthew have become part of the family unit such that they can be considered the children of the second defendant, or, as expressed in cl 6(c) and cl 4(c), 'grandchildren'.

96 It is acknowledged that Jordan and Matthew have a natural father, that Christine has received child support from him, and the second defendant has not adopted the children. The cases demonstrate, however, that such legal relationships, or the absence thereof, are not necessarily determinative. What is central is the expressed intentions of the deceased and Mr Staughton in the wills. In my view, it is more probable than not that the deceased and Mr Staughton intended through the expression 'my grandchildren' to include children such as Jordan and Matthew, based both upon the relationship that they subsequently developed with the children, and the second defendant's acceptance of the children as part of the family unit.

97 The plaintiffs correctly submit that many of the cases discussed relied upon evidence of the testator's relationship with the potential beneficiary prior to execution of the will. There are certain difficulties that arise in relying upon conduct of the deceased and Mr Staughton subsequent to the execution of the wills in 1997 in order to determine their intention as reflected in those documents. Theobald on Wills, for example, discusses whether there are temporal limits on the admission of extrinsic evidence in light of Marley v Rawlings.[49] In my view, however, particularly where the class of potential beneficiaries is open and dependent upon familial relationships, evidence of such relationships after the execution of the will remains relevant and admissible.[50] Of further significance in this proceeding is evidence that the deceased turned her mind to her will in 2013. While I accept that the weight afforded to any evidence of relationships subsequent to the execution of wills may be lessened, I consider that is not enough to distinguish the authorities discussed. I also agree with the second defendant's submission that Harris v Ashdown supports the proposition that the testator does not have to have a relationship with the potential beneficiary at the time that the will is executed.

98 It is apparent that the evidence in this proceeding is perhaps not as strong as that in cases such as Re Estate of Wright and Re Moyle. However, I am satisfied that, on balance, it is enough to support the conclusion that the phrase 'my grandchildren' in cl 6(c) of the deceased's last will and cl 4(c) of Mr Staughton's last will includes Jordan and Matthew as step-children of the second defendant. This conclusion is based upon the evidence of the relationship between the deceased and Mr Staughton, and Jordan and Matthew, including the language used by Mr Staughton that 'there is no difference between the grandchildren', and the relationship between the second defendant, as the son of the deceased and Mr Staughton, and Jordan and Matthew.

99 On the issue of costs, the plaintiffs also seek to make certain submissions surrounding the conduct of the first defendant. Although evidence was heard on the matter, I determined that submissions on costs were to be held in abeyance until the substantive issue in the proceeding was resolved.

[1] Re De Bruyn [2016] VSC 6 (22 January 2016) [11].

[2] Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273-4 (citations omitted and emphasis in original).

[3] Re De Bruyn [2016] VSC 6 (22 January 2016) [14], citing Boyes v Cook (1880) 14 Ch D 53, 56 (James LJ).

[4] Perrin v Morgan [1943] AC 399, 420.

[7] In re Smith [1939] VicLawRp 33; [1939] VLR 213, 218 (O'Bryan AJ).

[10] In re Cullen [1946] VicLawRp 10; [1946] VLR 47, 48-9 (citations omitted and emphasis in original).

[11] See also In the will of Killick, deceased [1960] VicRp 15; [1960] VR 98.

[12] In re Smith [1939] VicLawRp 33; [1939] VLR 213, 216.

[14] Stone v Bayliss (Unreported, Supreme Court of Victoria Full Court, McGarvie, Marks and Southwell JJ, 14 August 1986) 6.

[15] Morgan v Moore [2000] VSC 94 (23 March 2000) [32].

[16] Chief Justice's Law Reform Committee, Report on the Construction of Wills (8 May 1980), Appendix A, [50], citing River Wear Commissioners v Adamson (1877) 2 App Cas 743, 764.

[17] Hill v Crook (1873) LR 6 HL 265.

[18] Harris v Ashdown (1985) 3 NSWLR 193, 199-200.

[21] In re Cullen [1946] VicLawRp 10; [1946] VLR 47.

[22] Re Robertson [1946] VicLawRp 25; [1946] VLR 162.

[23] John G Ross Martyn et al (eds), Theobald on Wills (London Sweet & Maxwell, 18th ed, 2016) ('Theobald on Wills') [12-014].

[25] Re Fleming [1963] VicRp 3; [1963] VR 17, 20.

[26] Day v Perpetual Trustee Co Ltd [1999] NSWSC 149 (22 February 1999) [16].

[27] Parry v Haisma [2012] NSWSC 290 (30 March 2012).

[28] Re Estate of Wright [2016] NSWSC 1779 (8 December 2016) [28].

[30] Re Estate of Nies [2014] SASC 93 (15 July 2014), citing Re Jeans; Upton v Jeans (1895) 72 LT 835; Re Connolly (1964) 47 DLR 2d 465; Re Jamieson Estate (1959) 29 WWR 650; Re will of Ahchay (1997) 6 Tas R 369; Re Estate of Warren [2001] NSWSC 104 (23 February 2001).

[31] Re Estate of Warren [2001] NSWSC 104 (23 February 2001) [6]-[7].

[32] Warton v Yeo [2014] NSWSC 494 (29 April 2014) [79] (Hallen J).

[33] Warton v Yeo [2015] NSWCA 115 (7 May 2015) [56] (Ward JA).

[34] Thomson v Down [2012] QSC 171 (22 June 2012).

[35] Elder v McComish [2005] WASC 119 (9 June 2005).

[36] Wilson v Chapman [2012] QSC 395 (10 December 2012).

[37] Warton v Yeo [2014] NSWSC 494 (29 April 2014).

[38] Elder v McComish [2005] WASC 119 (9 June 2005) [11].

[39] Warton v Yeo [2014] NSWSC 494 (29 April 2014) [63].

[40] Re Moyle [1920] ArgusLawRp 27; [1920] VLR 147.

[41] Re Estate of Lang [2011] BCSC 972 (19 July 2011).

[42] Re Moyle [1920] ArgusLawRp 27; [1920] VLR 147, 150.

[43] Re Estate of Lang [2011] BCSC 972 (19 July 2011) [17] (citation omitted).

[44] Parry v Haisma [2012] NSWSC 290 (30 March 2012) [52] (White J).

[46] See, eg, Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 284 (White J); Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, 664 (Basten JA).

[47] Delbridge, Arthur, The Macquarie Dictionary (Macquarie Library Pty Ltd, 3rd ed, 1997).

[49] Theobald on Wills, above n 23, [13-039], citing Marley v Rawlings [2015] AC 129; [2014] UKSC 2 (22 January 2014).

[50] Harris v Ashdown (1985) 3 NSWLR 193, 205 (McHugh JA); Re Estate of Warren [2001] NSWSC 104 (23 February 2001) [7] (Davies AJ).