MATTER : Section 45 and s 42 of the Administration Act 1903

Will - Construction of a clause "Those of my children that survive me"

Administration Act 1903 (WA), s 42, s 45

Wills Act 1970 (WA), s 27

Re Birchall [1940] 1 Ch 424

1 MASTER BREDMEYER: This is an application by the plaintiffs to construe a clause in a will. The application is made under s 42 and s 45 of the Administration Act 1903 (WA). As such it is normally outside my jurisdiction but the Judge in charge of the civil list has appointed me to hear the case under O 60 r 1(1)(1BA).

2 Agnes Donaldson Lavtas died on 6 November 1997. She left a will dated 26 June 1997 which I reproduce:

"THIS WILL dated the 26th day of June 1997 is made by me AGNES DONALDSON LAVTAS of 898 Calista Avenue, Calista in the State of Western Australia, Widow.

1. I revoke all my former Wills and Testamentary Dispositions and declare this to be my last Will and Testament.

2. I appoint as my Executors and Trustees those of my children ANNA KILSBY, ATHENA FERGUSON and IRENE MATIKA that survive me to act as such in this Will who are referred to as my Trustees (which expression includes my Personal Representative and Trustee for the time being).

3. My Trustee shall hold the whole of my estate on trust to divide it equally among those of my children that survive me but if any child of mine dies before me leaving issue alive at my death, then such issue shall on attaining eighteen years take equally per stirpes the share which their parent would otherwise have taken.

4. I wish to be cremated and have my ashes scattered on the rose gardens at Fremantle Cemetery."

3 The deceased had five children, Sophia Jemina Shelton, Leo Lavtas, Irene Haines Matika, Anna Kilsby and Athena Ferguson. The deceased's children, Sophia Jemina Shelton and Leo Lavtas predeceased her. Both were dead on the day when she made her last will. Sophia died on 14 February 1990. Thus she had been dead for over seven years when her mother made the will. Sophia had four surviving children who are still alive. These are the present plaintiffs. All these children were alive at the date the deceased made her will and the date she died. They are all of age. Leo Lavtas had two children, Martin Lavtas and Louise Lavtas. Both Martin and Louise were alive at the date the deceased made their will and at the date she died. The plaintiffs claim an order that they are entitled under cl 3 of the will of the deceased to an equal one-fifth share in the estate of the deceased to be taken by them in equal shares. They seek an order that the first defendant forthwith pay their residuary bequest to them.

4 In construing a will the golden rule of construction is to give the words their ordinary and natural meaning unless that leads to absurdity or is obviously not in accord with an intention expressed in the will as a whole: Re McPherson (deceased) [1968] VicRp 46; [1968] VR 368 at 371.

5 Clause 3 is in two parts. The first part is to divide the whole of her estate equally "among those of my children that survive me". I consider the natural and ordinary meaning of those words refer to those children that survived the testatrix. "Survive" means alive at the date of her death: see in The Will of Arndt [1990] WAR 5 and Re Hodgson [1952] 1 All ER 769. The phrase refers to every child alive at her death, meaning, in this case, the three daughters Anna, Athena and Irene. It excludes Sophia and Leo who died before the testatrix died. The first part of cl 3 excludes the estates of Sophia and Leo from benefiting under her will. They did not survive her.

6 The second part of the clause provides a substitutionary gift for the children of the dead children, ie for the grandchildren where their parent predeceased the testatrix. At first I thought the two parts of this clause were contradictory but, upon reflection, I do not think they are because of the connecting word "but". The first part, by itself, means that only the three daughters who survived the testatrix take. The word "but" links the two parts together. It introduces an exception. In effect, my estate is to go to my surviving children but where a child has predeceased me leaving children alive at my death - they take their parent's share per stirpes. Giving those words their natural and ordinary meaning, Sophia and Leo did not survive their mother, therefore their children take under the substitutionary gift. That is my initial view but I now wish to test that against the case law cited to me.

7 In Re McPherson (supra), in a very similar clause in a will, Adam J came to the opposite view. In that case there were 10 children. Nine were alive at the testatrix' death. One had died many years before, leaving a son named Alan. He was the claimant in that case, like the claimants in my case. He wanted to claim his father's share under a substitutionary gift. Adam J said that "all my children who shall survive me in equal shares" referred only to those children alive at the time of making the will and who survived her. He said at 370:

"It is not the habit of the testatrix to refer to a child dead when he makes his will as a child for the purpose of benefactions to him under the will. The reference is to those living when the will is made, and a fortiori of course when it is known to the testatrix, as in this case, that a child has died and died long before. So that the gift 'to all my children who shall survive me in equal shares' was a gift intended only for the nine children who were living at the date of the will."

8 I have not seen a lot of wills but I respect that view. It makes sense to me. If a testatrix is going to make a will and one of her children is already dead and has left grandchildren and she wants to benefit those grandchildren, that can be done readily by express words. In this case the estate could have been divided into five equal parts. Anna, Athena and Irene could be given one part each, Sophia's children another part and Leo's children another part.

9 That was the main reason for the Judge's view in that case. A subsidiary reason was that a specific legacy had been given to Alan in the will. The testatrix had not left him out completely. That factor is not applicable in the case before me. There is no other provision in the will for the four plaintiffs.

10 A third matter which contributed to the Judge's decision in McPherson was the word "shall" in the phrase "if any child shall predecease me leaving children ...". The Judge gave "shall" its natural and ordinary meaning of "in the future", so the phrase meant "if any child dies after the making of this will and before I die". The word "shall" is not in the clause before me. So only one of the three factors which prompted the decision in McPherson's case is present in this case.

11 I did not find any special assistance in Elliot v Joicey [1935] UKHL 3; [1935] AC 209 or in Re Hodgson (Dec) (supra).

12 The plaintiffs cited to me Re King [1932] NSWLR 669, a decision of Long Innes J. The relevant clause in that will read:

"In trust for all my children who have attained or shall attain the age of 21 years in equal shares ... provided that if any child of mine shall die in my lifetime leaving a child or children who shall survive me and shall attain or have attained the age of 21 years then and in every such case the last mentioned child or children shall take (and if more than one equally between) the share which his her or their parent would have taken in my estate if such parent had survived me and attained the age of 21 years."

13 The facts are similar to the facts of this case. The deceased had 12 children, five of whom survived him. Of the seven who predeceased him, five were unmarried without children. Of the other two, one left a child who survived the testator and another left two children who survived the testator. It was these latter two children who were the plaintiffs in the action seeking to take the share of their late father.

14 The Judge held that they could not take under the substitutionary clause quoted because it said "if any child of mine shall die in my lifetime leaving a child or children who shall survive me ...". The Judge said the word "shall" has its normal meaning of future tense. There was nothing in the context of the will to displace that normal and natural meaning. So the phrase "shall die I my lifetime" meant "shall hereafter die in my lifetime".

15 However, the Judge found for the two claimants under s 29 of the Wills, Probate and Administration Act 1939 (NSW). That provision was a copy of s 33 of the Wills Act 1837 (UK), designed to substitute grandchildren for a parent who was the son or daughter of the testator and who predeceased the testator.

16 Section 27 of the Wills Act 1970 (WA), on which the plaintiffs rely, as an alternative basis for relief, is similar to the New South Wales section except for its opening words "unless the contrary intention appears by the will". I quote s 27:

27(1) Unless the contrary intention appears by the will, where there is a disposition therein to a person who is a child or other issue of the testator for an estate or interest not determinable at or before the death of that person and that person dies in the lifetime of the testator leaving a child or children who survive the testator, the disposition does not lapse but takes effect as a substitutional disposition to such of the children of that person who survive the testator and if more than one in equal shares.

(2) This section applies whether the disposition referred to in subsection (1) of this section is to a person as a name or designated person or as a member of a class.

(3) This section does not apply to a disposition to a person as one of two or more joint tenants."

17 I return to the proper construction of cl 3. Despite the view of Adam J in McPherson that it is not the habit of a testatrix to refer to a dead child as a child when she is seeking to make bequests in her will, I consider the natural and ordinary meaning of cl 3 is that the property is to go to the children that survive her subject to a substitutionary gift in favour of the grandchildren of those children who predecease her. I consider that clause applies for the benefit of the plaintiffs in this case whose mother died long before the testatrix made her will. The construction urged upon me by the defendants seeks to add, in effect, two words so that the clause reads:

"To divide it equally amongst those of my children [now living] that survive me."

That is not a natural interpretation. That is a strained interpretation, adding words to restrict the ordinary and natural interpretation of the clause. I also note that the word "shall" which played a big part in the McPherson decision is not present. Clause 3 does not say "those of my children who shall survive me", "shall" being a word referring to the future. I consider the interpretation advocated by the plaintiffs is correct.

18 I do not consider that s 27 of the Wills Act applies. I think there is contrary intention in the will to benefit the children of the child who predeceased the testatrix so that the substitutionary provision of s 27 is excluded.