Succession - Wills, probate and administration - Construction and effect of testamentary dispositions - Generally - Gifts to survivors - Meaning of term and period to which referable - Meaning of "Survivors of them" - Whether extends to spouse of one who did not survive.

Knight v Knight [1912] HCA 36; (1912) 14 CLR 86; Brennan v Permanent Trustee Company of New South Wales Limited [1945] HCA 17; (1945) 73 CLR 404, applied.

Judgment Number: [2009] TASSC 79

TASMANIAN PERPETUAL TRUSTEES LTD v WANDA MAE BELL

1 By clause 1 of his will dated 22 November 1971, the testator, Gordon Bell, appointed one of his brothers, George Bell, to be the sole trustee and executor of the will.

2 By clause 2, the testator gave, devised and bequeathed his residence and certain chattels to George for his own absolute use and benefit.

3 By clause 3, the testator gave, devised and bequeathed the residue of his estate "to my said Trustee to divide equally between my brothers David James Thomas and the said George and my sister Catherine Page or the survivors of them as Tenants-in-Common". The words I have italicised are central to the issue in this case, which is whether the widow of George, who predeceased the testator, is one of "the survivors of them".

4 The testator died on 30 March 2007. He was pre-deceased by all of his siblings other than Catherine. In other words, David, James, Thomas and George died before the testator.

5 On 18 June 2007, after the death of the testator, Catherine also died. At that time the will had not been proved. The plaintiff is the personal representative of Catherine by virtue of probate granted to it on 24 July 2007. Plainly she was entitled to all or part of the residuary estate of the testator, and under the Probate Rules 1936, r21, she was entitled to apply for a grant of administration with the will annexed. However, she made no such application, and on 23 January 2008, the plaintiff, as her personal representative, formally renounced its right to letters of administration with the will annexed.

6 On 19 February 2008, letters of administration with the testator's will annexed were granted to the defendant. There is no evidence as to her status. However, her case was argued upon the unchallenged basis that she is the widow of George, and I will assume that is the case.

7 Subsequently, the plaintiff formed the opinion that the defendant had no entitlement to a share in the estate of the testator, and that it followed that she had no right to apply for and obtain letters of administration with the will annexed. It decided that it should not have renounced, but should instead have applied for letters of administration with the will annexed.

8 On 18 June 2009, the plaintiff commenced this action. It applied for an order revoking the grant to the defendant. Separately, by originating application, it applied for leave to withdraw its renunciation. The resolution of that application awaits the outcome of this action. If the plaintiff succeeds in this action, it expects to be able to obtain leave to withdraw the renunciation and to then apply for letters of administration with the will annexed.

9 There is no argument that the specific devise and bequest to George Bell in clause 2 lapsed by reason of his death prior to the death of the testator. Nor is there any argument that if the words "or the survivors of them" were not in clause 3, the gift of a share in the residuary estate to George would have lapsed and passed to those of the testator's siblings who survived the testator. See Wills Act 1992, s42. It is the use of the words "or the survivors of them" that is in issue.

10 The defendant's argument is that the phrase refers to the surviving spouse and issue, if any, of a sibling who pre-deceased the testator. In other words, the defendant's case is that the words "or the survivors of them" should be read as showing an intention on the part of the testator that if any one of his siblings died before him, leaving a widow or widower or issue who survived the testator, then the widow or widower and issue should take a share of the residuary estate.

11 The plaintiff's case is that the words "or the survivors of them" should be read as showing an intention on the part of the testator that if a sibling died before the testator, those of the siblings who survived the testator should take the share of that deceased sibling. In other words, "them" refers to the siblings of the testator.

12 On both arguments, it is accepted that the testator intended to provide for the event of one or more siblings dying before him.

13 The defendant's counsel argued that if the plaintiff's argument is correct then in the light of s42, the use of the words "or the survivors of them" was unnecessary and surplusage. It was submitted that a construction is to be preferred that will avoid particular words being treated as mere surplusage or having no meaning. The submission has no merit because the testator made the will 21 years before the enactment of the Wills Act.

14 Indeed, I can find no merit in any of the arguments advanced for the defendant. The common and ordinary meaning of "survivor" is not that of a spouse and issue who survives another, but of a person who survives or outlives another or others, or who survives or lives beyond a particular event, Knight v Knight [1912] HCA 36; (1912) 14 CLR 86 at 105 - 108 and 112; Brennan v Permanent Trustee Company of New South Wales Limited [1945] HCA 17; (1945) 73 CLR 404 at 414.

15 The Shorter Oxford English Dictionary, 3rd ed, gives two meanings of "survivor":

"1 One who (or that which) survives or outlives another or others.

2 spec in Law. One of two or more designated persons, esp joint-tenants or other persons having a joint interest, who outlives the other or others; a longer or the longest liver."

16 The Macquarie Dictionary, 2nd ed, has the following definitions:

3 Law. that one of two or more designated persons, as joint tenants or others having a joint interest, who outlives the other or others."

17 Butterworths Australian Legal Dictionary gives these meanings:

"A person who outlives another. The term is used by testators in wills to mean those living beyond the date of their death or in relation to joint ownership and the right of the surviving joint tenant to the interest of the deceased joint tenant."

18 Words and Phrases Legally Defined, 4th ed, explains that "the word 'survive' and its derivatives ordinarily refer to the longest in duration of lives running concurrently; they may, however, refer not to concurrent lives but the fact of living to and after a named event or death".

19 I have considered Jarman on Wills, 8th ed, and particularly ChLIII. A multitude of cases are referred to in the 42 pages of that chapter. Although they demonstrate that considerable difficulty has been experienced in determining the meaning of the word in particular circumstances, I have been unable to find any example, either in Jarman or elsewhere, where it has been argued that the word has the meaning advanced by the defendant.

20 Her counsel submitted that words of a will are to be construed according to their natural and ordinary meaning. I agree and for that reason, she must fail. Everyone living at the time of George's death was a survivor of George, and not just the defendant or his issue. There is no reason why the word "survivor" should be read as referring only to a surviving spouse and issue. The only sensible answer that is true to the meaning of the words used is that the testator used "them" to refer to his siblings, who he had just named.

21 The defendant claims to have been entitled to apply for a grant of administration with the will annexed because she was an ultimate residuary legatee. See Probate Rules 1936, r21(c). I am satisfied that she cannot be so categorised. For that reason, she was not entitled to the grant. An order will be made revoking the letters of administration with the will annexed granted to the defendant on 19 February 2008 and declaring the same to be null and void to all intents and purposes of the law whatsoever.