Re McGilchrist (dec'd) [2024] QSC 322 (17 December 2024)

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - GENERALLY - where the testator's husband owned two pieces of land - where he made a will leaving the land to the testator - where the testator made a will leaving one of the parcels of land to one of her sons and the other parcel to two of her sons jointly - where the land was described partially by real property descriptions - where the testator's husband predeceased her - where the land passed to her - where, after the testator's husband made his will but before the testator died, part of the land had been resumed by a local authority - where the resumption resulted in different real property descriptions for the land than appeared in the testator's will - whether the land passed pursuant to the specific provisions of the will - whether the land fell to residue

Succession Act 1981 (Qld), s 33C, s 44

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26, cited

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, cited

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, cited

Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111, cited

Fell v Fell (1922) 31 CLR 268; [1922] HCA 55, followed

Marley v Rawlings [2014] UKSC 2; [2015] AC 129, followed

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, cited

Padbury Home of Peace for the Dying and Incurable v Solicitor-General (1908) 7 CLR 680; [1908] HCA 72, cited

Reinhard v Bell [2015] NSWSC 818, cited

R v A2 (2019) 269 CLR 507; [2019] HCA 35, cited

Tatham v Huxtable (1950) 81 CLR 639; [1950] HCA 56, followed

The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 Qd R 26, cited

• [1] The applicants, Paul McGilchrist (Paul) and Drew McGilchrist (Drew) are the executors of the deceased estate of Joyce McGilchrist (Joyce). Paul and Drew seek declarations as to the proper construction of Joyce's will. They also seek rectification of what is an obvious typographical error in the will and seek other ancillary relief.

• [2] Joyce was married to Mervyn McGilchrist (Mervyn). Joyce and Mervyn had five children who survived them:

(i) Kim Wheeler (Kim), who is the first respondent;

(ii) Ruth Evolute (Ruth), who is the second respondent;

(iii) Brett McGilchrist (Brett), who is the third respondent;

(iv) Paul, who is one of the applicants; and

(v) Drew, who is the other applicant.

• [3] On 27 October 2020, Mervyn died leaving a last will dated 30 May 2012. That will nominated Joyce as his executor to whom he left his entire estate. By the time of Mervyn's death, Joyce lacked capacity to act as executor. Paul and Drew were granted letters of administration of Mervyn's will as Joyce's attorneys.
• [4] Joyce died on 24 July 2023 leaving a will dated 15 January 2015. Paul and Drew were named as executors of the will and they were granted probate on 25 September 2023.
• [5] The current dispute concerns land on the Sunshine Coast which was owned by Mervyn, left in his will to Joyce, and then specifically dealt with by the terms of her will.
• [6] Relevant history of that land commences on 20 September 2002. On that day by registration of a plan, Lot 8 on SP 147516 was created. The area of that parcel was 14.92 hectares. On 11 November 2003 another plan was registered creating Lot 3 on SP 158563. The area of that parcel was 11.57 hectares.
• [7] Lot 3 and Lot 8 together formed a parcel of 26.49 hectares, through which passes McGilchrist Road. Lot 3 and Lot 8, as already observed, passed to Joyce upon Mervyn's death in 2020. The land then fell to be dealt with pursuant to Joyce's will made in January 2015.
• [8] Critically clause 3 of Joyce's will provides:

"3. I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever nature or kind and wheresoever situate to my Trustees UPON TRUST to pay thereout all of my just debts and funeral and testamentary expenses (and the Duties upon all Successions under this Will) and hold the residue of my estate for my husband MERVYN GEORGE McGILCHRIST PROVIDED HOWEVER that if my husband shall predecease me the my Trustees shall hold such residue UPON TRUST as follows:

(a) as to my land described as Lot 3 on SP 185563 for my son DREW McGILCHRIST PROVIDED HOWEVER that if my said son shall predecease me then my Trustees shall hold the said land for such of them my grandsons ALEXANDER DAVID MCGILCHRIST and MARCUS BRETT McGILCHRIST as shall survive me and attain the age of 18 years and if more than one as tenants in common in equal shares;

(b) as to my land described as Lot 8 on SP 147516 together with all of my cattle and my tractor and implements and all of my farm plant and equipment and tools for such of them my sons PAUL McGILCHRIST and DREW McGILCHRIST as shall survive me and if more than one as tenants in common in equal shares;

(c) as to my land described as Lot 10 on SP 158562 if I have not already transferred this land before my death for my son BRETT McGILCHRIST PROVIDED HOWEVER that if my said son shall predecease me then my Trustees shall hold the said land for such of his children as shall survive and attain the age of 18 years and if more than one as tenants in common in equal shares;

(d) as to the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) for my daughter KIM WHEELER PROVIDED HOWEVER that if my said daughter shall predecease me then my Trustees shall hold the said sum and coin collection for such of her children as shall survive and attain the age of 18 years and if more than one as tenants in common in equal shares;

(e) as to the balance then remaining equally between such of them my children KIM WHEELER, RUTH WRIGHT, PAUL McGILCHRIST, BRETT McGILCHRIST and DREW McGILCHRIST as shall survive me PROVIDED HOWEVER that if any child of mine shall predecease me or die prior to attaining a vested interest hereunder leaving a child or children living at my death or born after my death who shall attain the age of eighteen years such child or children shall take and if more than one equally between them as tenants in common the share and interest which the parent would have taken had such parent survived me and attained a vested interest hereunder."[1]

• [9] There is an obvious typographical error in the will. Clause 3(a) refers to "Lot 3 on SP 185563", when the proper description is "Lot 3 on SP 158563". I shall return to that issue later.
• [10] The structure of clause 3 is that specific gifts of specified real property, including Lots 3 and 8, are made to nominated children of Mervyn and Joyce. A cash gift is made to one daughter, and the residue is then divided equally between the five offspring.
• [11] Before Mervyn's death but after the making of both his last will and Joyce's, the Sunshine Coast Council sought to resume part of Lot 3 and part of Lot 8 for road widening purposes. At this time[2], Mervyn had lost capacity and Paul, as Mervyn's attorney, dealt with the Council.
• [12] On 13 February 2020, the issue of the acquisition of parts of Lots 3 and 8 was resolved. Paul, on Mervyn's behalf, contracted to sell parts of Lots 3 and 8 to the Council. Of the 26.49 hectares of the parcel of land described in Lot 3 and Lot 8 the Council acquired 677 square metres.
• [13] In order to effect the transfer of what, in context, are small slivers of Lots 3 and 8, it was necessary to register new plans creating new lots. Those lots were the lots to be transferred to the Council and the lots to be retained by Mervyn.
• [14] Upon registration of the plans:

(a) Lot 3 on SP 158563 was cancelled;

(b) Lot 3 on SP 309011 was created and that represented the land formerly known as Lot 3 on SP 158563, less the small area of land transferred to the Council;

(c) Lot 8 on SP 147516 was cancelled;

(d) Lot 8 on SP 309010 was created and that represented the land formerly known as Lot 8 on SP 147516, less the small area of land transferred to the Council; and

(e) other lots were created being the resumed land which was transferred to the Council.

• [15] Upon registration of the plans, Lot 3 on SP 309011 and Lot 8 on SP 309010 were registered in the name of Mervyn, and upon his death both lots passed to Joyce. She held them at the time of her death.
• [16] Kim has made application pursuant to s 44(3) of the Succession Act for an order for family provision. Paul and Drew have agreed not to distribute the estate until that claim is resolved.

• [17] Paul and Drew say that the effect of the will is that Lot 3 on SP 309011 now falls to Drew, pursuant to the specific gift given by clause 3(a) of the will. Their position is that Lot 8 on SP 309010 falls to both Paul and Drew, pursuant to the specific gift made by clause 3(b).
• [18] Kim says that the gifts made by each of clauses 3(a) and (b) have failed. There is, she submits, no "Lot 3 on SP 185563" (or Lot 3 on SP 158563) and no "Lot 8 on SP 147516". Joyce died owning Lot 3 on SP 309011 and Lot 8 on SP 309010 and there are no specific gifts of either of those pieces of land, so they fall to residue to be dealt with pursuant to clause 3(e) of the will.
• [19] Paul and Drew have sought declarations and other relief consistently with their position.

• [20] Rectification is sought of clause 3(a) so Lot 3 is given its proper description as a Lot in SP 158563, not SP 185563.
• [21] Rectification is not necessary when the meaning of the provision is clear from the proper construction of the instrument.[3] That is the position here.
• [22] A will ought to be construed pursuant to the "armchair principle" described by Stanley J sitting in the Full Court of the Supreme Court of South Australia in Farrelly v Phillips[4] as follows:

"[27] The appellant seeks to rely upon the so-called "armchair principle". This was described in Allgood v Blake by Blackburn J as follows:

The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words ... the meaning of words varies according to the circumstances of and concerning which they are used.

[28] There are two qualifications to the armchair principle. First, when the court considers the circumstances known to the testator, it is only the circumstances existing at the time the testator made his will that may be considered. Second, extrinsic evidence cannot be used to make words in a will bear a meaning which on the face of the will they are incapable of conveying. This is sometimes described as the "incapable meaning rule" or the "plain meaning rule". In relation to the armchair principle, Lord Romer observed in Perrin v Morgan, that when seated in the armchair the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he plainly said."(footnotes omitted)

• [23] What the evidence shows here is that at the time Joyce signed her will, which included clause 3(a) referring to "my land described as Lot 3 on SP 185563":

(i) Mervyn owned Lot 3 on SP 158563;

(ii) Mervyn made a will leaving all his estate, which included Lot 3 on SP 158563, to Joyce[5];

(iii) clause 3(a) on its face would only be operational if Mervyn predeceased Joyce. In other words, it only operated if, before her death, Joyce had inherited the land referred to in clause 3(a); and

(iv) Joyce does not own, and has never owned, Lot 3 on SP 185563, and therefore that could never have been described by Joyce as "my land".

• [24] It is also appropriate to observe that the difference between the true real property description of the land actually owned by Mervyn, and later by Joyce, and the description appearing in clause 3(a) of the will is the transposition of two figures in the plan number.
• [25] In my view, what was clearly intended by Joyce by clause 3(a) was to leave to Drew the land owned by Mervyn and left to her if, as turned out to be the case, he predeceased her. That is Lot 3 on SP 158563, not land described as "Lot 3 on SP 185563" which Mervyn has never owned and which Joyce had no particular prospect of owning. I draw the inference that there has been a typographical error made in the preparation of the will. This is a case like the one described by Darke J in Reinhard v Bell:[6]

"In some circumstances, it may be clear that words have been deployed in error and that other words must have been intended; if so the will is read as if it contains such words."[7]

• [26] Clause 3(a) shall be construed as if it reads "... as to my land described as Lot 3 on SP 158563", as that is the clear intention of the testator. There is no need to order rectification of clause 3(a).

Effect of the sale of part of Lot 3 and Lot 8

• [27] Paul and Drew submit that the intention of the will was that the land which Joyce might inherit from Mervyn was to be left in accordance with clauses 3(a) and 3(b) of the will. They submit that the fact that the intended gift could not be effected in full because small parts of the land had been acquired by the Council, does not defeat the obvious intention of Joyce.
• [28] Kim submits that what is critical is that Joyce chose to describe the land by reference to its real property description. The new lots are not the same as those described in the will, she submits. In Mr Barr's written submissions on behalf of Kim:

"20. It is submitted that the new lots are not the same as those described in clauses 3(a) and 3(b) of the Will because:

(a) They bear a different legal description;

(b) They differ in shape;

(c) New Lot 3 is 245m2 smaller than the lot described in clause 3(a) of the Will;

(d) New Lot 8 is 432m2 smaller than the lot described in clause 3(b) of the Will;

(d) The payment of compensation by the Sunshine Coast Council recognises the excised portions of the lots described in clauses 3(a) and 3(b) of the Will resulted in the creation of new lots that were of a lesser value." (footnotes omitted)

• [29] Ultimately, the matter is one of construction of Joyce's will. In that exercise, Paul and Drew seek to admit extrinsic evidence.
• [30] Generally speaking, evidence of the actual subjective intention of the maker of any instrument is not admissible. Evidence of the subjective intention of parties to a written contract is not admissible. The task of construction is conducted on the assumption that the intention of the parties is reflected in the words of the contract, which must be objectively construed.[8] Similarly, the actual intention of Members of Parliament when voting a bill into law is not admissible. The statute reflects Parliament's will and the object is to construe the words actually used.[9]
• [31] However, as with the interpretation of other instruments, the object is to ascertain the testator's intention,[10] which might not be reflected by a literal interpretation of the words used. That raises questions as to the admissibility of extrinsic evidence to aid in the interpretation.
• [32] Section 33C of the Succession Act 1981 provides:

(1) In a proceeding to interpret a will, evidence, including evidence of the testator's intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it-

(a) meaningless; or

(b) ambiguous on the face of the will; or

(c) ambiguous in the light of surrounding circumstances.

(2) However, evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).

(3) This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will."

• [33] It can be seen that s 33C creates an exception to the general rule that I have stated, namely, that evidence of the subjective intention of the testator is not admissible. Evidence is admissible for that purpose in the limited circumstances prescribed by the section. The section was analysed by Atkinson J in The Public Trustee of Queensland v Smith.[11] It is unnecessary though, in my view, to resort to s 33C.
• [34] In Marley v Rawlings[12], Lord Neuberger, sitting as President of the Supreme Court of the United Kingdom, considered s 21 of the Administration of Justice Act 1982, which is a section in equivalent terms to s 33C of the Succession Act 1981. After considering s 21, his Lordship made some general observations as to the approach to construing a will. His Lordship explained:

"[19] When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn,[13] at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2001] UKHL 8; [2002] 1 AC 251, para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky,[14] per Lord Clarke of Stone-cum-Ebony JSC, at paras 21-30.

[20] When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, "No one has ever made an acontextual statement. There is always some context to any utterance, however meagre." To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, 1400 that "courts will never construe words in a vacuum".

[21] Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749, per Lord Steyn at pp 770C-771D, and Lord Hoffmann at pp 779H-780F.

[22] Another example of a unilateral document which is interpreted in the same way as a contract is a patent - see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin-Amgen at paras 27-32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.

[23] In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th ed (2010), chapter l5 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty to Animals v Sharp [2011] l WLR 980, paras 22, 31). Indeed, the well known suggestion of James LJ in Boyes v Cook [1880] UKLawRpCh 76; (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should "place [itself] in [the testator's] arm-chair", is consistent with the approach of interpretation by reference to the factual context."

• [35] Marley v Rawlings has been followed in Australia.[15] His Lordship's observations are also, in my view, consistent with recent decisions of the High Court of Australia which instruct as to the proper approach to the construction of legal instruments.[16] In Byrnes v Kendle[17] Heydon and Crennan JJ, in a case concerning the construction of a declaration of trust identified and explained principles relevant to the construction of various instruments. The effect of that judgment was, in my view, that the approach to the construction of all legal instruments will be basically the same, namely, the objective ascertainment of intention reflected in the words used against relevant context.
• [36] His Lordship's approach is also, in my view, consistent with earlier established principles as to the construction of wills. These principles have been quaintly labelled "fitting the will to the ground" which involves the admission of extrinsic evidence to identify the assets which fall within the terms of the will[18] and "the armchair principle"[19], to which I have already referred.[20]
• [37] In order to solve the current dilemma of construction, it is not necessary to go beyond consideration of the will against the contextual circumstances that I have identified in paragraphs [10]-[15] of these reasons.
• [38] Taken in context, the obvious intention of the words of description "as to my land described as Lot 3 on SP 158563"[21] in clause 3(a) of the will and the words of description "as to my land described as Lot 8 on SP 147516" in clause 3(b) of the will was to identify the two parcels of land which Joyce anticipated were to be inherited by her in the event Mervyn predeceased her. Mervyn did predecease Joyce and the land of which she was seized at the time of her death was the land that she intended to leave to her two nominated sons. All that has happened is that a very small part of the land has been lost. Lot 3 on SP 309011 and Lot 8 on SP 309010 describe that part of the land which was inherited from Mervyn and of which Joyce was seized at the time of her death. The obvious intention is for that land to pass pursuant to clauses 3(a) and 3(b) respectively of the will. The land does not fall to residue.

• [39] It is appropriate to declare that Lot 3 on SP 309011 passes to Drew under the terms of clause 3(a) and Lot 8 on SP 309010 passes to Paul and Drew pursuant to clause 3(b) of the will.
• [40] At the hearing the parties sought an opportunity to consider costs after judgment and I will make directions to facilitate that.

• [41] The orders are as follows:
  1. It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will.
  2. It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will.
  3. The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025.
  4. Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025.
  5. Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.

[1] This extract has been faithfully reproduced notwithstanding the appearance of obvious grammatical errors.

[3] Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639 at 645; and Reinhard v Bell [2015] NSWSC 818 at [25].

[4] (2017) 128 SASR 502.

[5] Although in default, the land misdescribed as Lot 3 on SP 155863 passed to Drew.

[6] [2015] NSWSC 818.

[8] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46]- [47], following Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 and Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640.

[9] R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [31]- [37].

[10] Fell v Fell (1922) 31 CLR 268.

[11] [2008] QSC 339; [2009] 1 Qd R 26 at [22]- [26].

[12] [2014] UKSC 2; [2015] AC 129.

[13] A reference to Prenn v Simmonds [1971] 1 WLR 1381.

[14] A reference to Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900.

[15] Farrelly v Phillips (2017) 128 SASR 502.

[16] R v A2 [2019] HCA 35; (2019) 269 CLR 507.

[17] [2011] HCA 26; (2011) 243 CLR 253.

[18] Padbury Home of Peace for the Dying and Incurable v Solicitor-General [1908] HCA 72; (1908) 7 CLR 680 at 686; and see A A Preece, Lee's Manual of Queensland Succession Law, 8th Ed, Lawbook Co 2019 at [14.250].

[19] The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 Qd R 26 at [24] and Farrelly v Phillips (2017) 128 SASR 502 at [27]-[28].

[20] See paragraph [22] of these reasons.

[21] This is the plan number which should be in clause 3(a).