The Application of the NSW Trustee and Guardian; The Estate of Alice Maude Critchley [2020] NSWSC 1635 - NSWSC 2020 case summary — Zoe

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The Application of the NSW Trustee and Guardian; The Estate of Alice Maude Critchley [2020] NSWSC 1635

[2020] NSWSC 1635

Supreme Court of NSW|2020-11-16|Before: Slattery J

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Court

Supreme Court of NSW

Decision date

2020-11-16

Before

Slattery J

Source

Original judgment source is linked above.

Judgment (9 paragraphs)

[1]

Judgment

By its Summons dated 22 January 2020, the plaintiff, the NSW Trustee and Guardian, seeks the determination of questions arising under the will of the late Alice Maude Critchley. In support of the relief sought, the plaintiff relies upon the affidavit of Sevil Ozaras sworn 20 January 2020.

[2]

The Testator's Will - December 1967

Alice Maude Critchley (the testator) died on 30 December 1967. She was survived by her eleven children. Probate of the testator's will of 1 October 1964 ("the Will") was granted to Leslie Reginald Critchley and David Dransfield on 9 May 1968. The plaintiff was appointed as trustee of the trusts created under the Will by deed dated 15 April 1992.
In the Will, the testator gave a right of residence in her property at Kirrawee ("the Kirrawee property") and the income from her estate to two of her daughters, Dulcie Jean Critchley and Leonie Merle Turner (now referred to as Leonie Merle Brooks) during their lives. The Will consisted of only four clauses, which provided: "1. I DEVISE my house and land situated at Kirrawee free of all debts to my trustees upon trust to permit my daughters DULCIE JEAN CRJTCHLEY and LEONIE MERLE TURNER to use and enjoy the same during their lifetimes they paying the rates and taxes and fire insurance premiums in respect thereof and on the death of both my daughters such house and land shall fall into and form part of my residuary estate, PROVIDED however that if both my said daughters request the trustee to sell my house and land at Kirrawee my trustees shall be authorized to acquire such other house or land or home unit from the proceeds of the sale of the property at Kirrawee and permit my said daughters to use and enjoy the same on the same terms as above. 2. SUBJECT to payment of my debts funeral and testamentary expenses and all death duties on the whole of my estate I DEVISE AND BEQUETH all the rest and residue of my estate both real and personal to my trustees upon trust to pay the income therefrom to my daughters DULCIE JEAN CRITCHLEY and LEONIE MERLE TURNER." 3. NOTWITHSTANDING the foregoing upon the remarriage of either of my aforementioned daughters the other daughter shall be entitled to the exclusive use of the property at Kirrawee or such other property as may be acquired and the income from the residue of my estate until her death or remarriage." 4. UPON the death or remarriage of both my said daughters I AUTHORISE my trustee to divide the residue of my estate amongst my surviving children equally."

[3]

The Deed of Family Arrangement - August 2003

On 7 August 2003, seven of the testator's then surviving children and 12 of the testator's grandchildren entered into a Deed of Family Arrangement ("the Deed"). The 12 grandchildren who became parties to the Deed were the children of three of the testator's children who had survived the testator but had died before August 2003, namely Rhoda Alice Cameron, Barbara Esme Todd and Milbar Winifred Smith. These 12 grandchildren are not beneficiaries under the Will. The age of the grandchildren at the time of the Deed is unknown.
One child of the testator, Edward Peter Critchley, renounced his entitlement to the estate before the Deed was executed but he became a party to the Deed. Dulcie Jean Critchley was not a party to the Deed. The plaintiff was acting as trustee of the testator's estate at the time of the Deed but was also not a party to it. The Deed appears to have been an initiative among the children and grandchildren of the testator.
The Deed recites that "the residuary beneficiaries have agreed to a distribution of the estate assets, which in their considered opinion creates a fair and equitable distribution of the estate": Recital J. The operative part of the Deed made clear: that the Deed was dealing with the balance of the estate after any entitlement of Dulcie Jean Critchley; that the scheme of the Deed was that the children of any deceased children of the testator would take instead of their deceased parent; and, the Deed would be binding upon and enforceable by the executors of the parties to it. The Deed relevantly provided as follows: "NOW THIS DEED WITNESSETH that in consideration of natural love and affection and at the request and with the assent of each of the aforesaid parties and notwithstanding the provisions of the said Will, the parties agree that distribution of the residue of the estate of the Testatrix following the death DULCIE JEAN CRITCHLEY; 1. EDWARD PETER CRITCHLEY on behalf of himself, his heirs, executors, administrators and assigns hereby renounces his entitlement, if any, in the estate of the Testatrix in favour of the persons entitled to share in her Estate pursuant to the Will as varied by this Deed. 2. The balance of the moneys remaining in the estate after payment of the just debts funeral and testamentary expenses of the Testatrix including the costs of and incidental to preparation of this Deed and the entitlement, if any, of DULCIE JEAN CRITCHLEY be divided: 1.1 As to a one ninth share thereof to MARGARET LOLA SPENCER absolutely. 1.2 As to a one ninth share thereof to ENID DAISY ANDERSON absolutely. 1.3 As to a one ninth share thereof to LESLIE REGINALD CRITCHLEY absolutely. 1.4 As to a one ninth share thereof to FREDERICK LINLEY CRITCHLEY absolutely. 1.5 As to a one ninth share thereof to ANN MARIE DRANSFIELD absolutely. 1.6 As to a one ninth share thereof to LEONIE MERLE BROOKS absolutely. …"
Clauses 1.7, 1.8 and 1.9 of the Deed make similar provision to clauses 1.1 to 1.6 as to the distribution of a one ninth share but to each of the three groups of grandchildren of the testator, who at the time of the Deed were children of a deceased child of the testator. Then the Deed proceeded: "2. In the event that any of the beneficiaries in clauses 1.1 to 1.10 above should die before attaining a vested interest leaving a child or children who shall survive them then that share of the estate to which he she or they would have been entitled shall pass to the child or children of the deceased and if more than one equally. 3. In consideration for the distribution of the estate in the manner hereinbefore provided each party hereto releases the Trustee from and against all claims over or in relation to the estate whether at law or in equity and including any claims under the provisions of the Family Provision Act New South Wales 1982 (NSW) or any like Act amending or repealing same. 4. This agreement shall be binding upon and enforceable by the parties, their executors, administrators, beneficiaries and assigns. 5. The provisions of this agreement may be pleaded in bar to any claims or proceedings commenced by any of the parties, their executors, beneficiaries or assigns for or in respect of the estate of the late ALICE MAUDE CRITCHLEY whether under the said Family Provision Act 1982 (NSW) or otherwise."
Dulcie Jean Critchley died on 19 December 2017. After the execution of the Deed and before the death of Dulcie Jean Critchley, five more children of the testator had died, namely Edward Peter Critchley, Leslie Reginald Critchley, Enid Daisy Anderson, Margaret Lola Spencer and Frederick Linley Critchley.
Thus in summary, of the testator's 11 children, three had died before the Deed, another five died before the death of Dulcie Jean Critchley. When she died in December 2017, the last two surviving children of the testator were Leonie Merle Brooks and Ann Marie Dransfield.
Both Leonie Merle Brooks and Ann Marie Dransfield were parties to the Deed. They have requested of the plaintiff that the estate be administered in accordance with the terms of the Will, not the Deed.
As can be seen above, the Deed releases the plaintiff from claims that might be brought under the Family Provision Act 1982. But the plaintiff is not a party to the Deed, so the efficacy of such a release is doubtful. No evidence before the Court indicates that any party to the Deed sought to have it approved by the Court under the provisions of the Family Provision Act to attempt to make the releases, such as they were, binding.

[4]

Notice to Interested Parties

Ann Marie Dransfield and Leonie Merle Brooks, the two surviving daughters of the testator, have been notified of these proceedings and this hearing and have expressed their wishes to the plaintiff. No other interested person has sought to be represented at the hearing. But the plaintiff has taken elaborate steps to notify all potentially interested persons of the present application and to make available to them the Summons, the supporting evidence and the plaintiff's submissions. That being said, it may not yet be obvious to parties to the Deed or the legal personal representatives of the testator's children who died after execution of the Deed, that there may be an issue as to whether the Deed is enforceable against Ann Marie Dransfield and Leonie Merle Brooks. This issue is discussed later in these reasons.
In proceedings relating to an estate, all persons having a beneficial interest in or claim against the estate need not be parties but the plaintiff may make parties of such of those persons as the plaintiff thinks fit: Uniform Civil Procedure Rules 2005 ("UCPR"), r 7.12. Proceedings commenced by executors/administrators, like these proceedings, are properly constituted, notwithstanding all potentially interested persons not being joined. But to the extent that the beneficiary (and in this case also a party to the Deed) may wish to propound a contrary view, it is desirable for such persons to be served with initiating process, evidence and submissions to give them an opportunity to appear in the proceedings.
Where a person or class of persons may be interested in or affected by the proceedings, the Court may appoint one or more of those persons to represent one or more of them: UCPR, r 7.6. And once an order has been made in proceedings for representation of a class under UCPR, r 7.6, any judgment or order in the proceedings will bind all members of the class as if they had been parties to the proceedings. But whether or not a representative order is made under UCPR, r 7.6, UCPR, r 7.9 applies such that the judgment in these proceedings will bind the beneficiaries unless the Court determines that the representative does "not in fact represent some or all of the persons having a beneficial interest". UCPR, r 7.9 provides: "Judgments and orders bind beneficiaries 7.9 Judgments and orders bind beneficiaries (1) This rule applies to proceedings that have been commenced by or against a trustee, executor or administrator, including proceedings to enforce a security by way of foreclosure or otherwise. (2) It is not necessary to join as a party any of the persons having a beneficial interest under the trust, or in the estate, concerned. (3) Subject to subrule (4), any judgment that is given, and any order that is made, is as binding on a person having a beneficial interest under the trust, or in the estate, as it is binding on the trustee, executor or administrator. (4) If, in relation to proceedings in which such a judgment or order has been made, the court is satisfied that the representative, trustee, executor or administrator did not in fact represent some or all of the persons having a beneficial interest under the trust, or in the estate, the court may order that the judgment or order does not bind those persons. (5) This rule does not limit the power of the court to order that a party be joined under rule 6.24."
In this case all the children of the testator are deceased except for Ann Marie Dransfield and Leonie Merle Brooks, who are both likely to benefit from the construction of the Will that is propounded by the plaintiff.
But there are other persons who might have had an interest in propounding an alternative construction, or indeed seeking to enforce the Deed. As will be seen later, these proceedings do not concern enforcement of the Deed and the Court will later make directions to reveal whether that is a contentious issue.
But in relation to the construction of the Will, the plaintiff has served everyone who might reasonably be thought to have an interest in propounding a construction of the Will different to that of the plaintiff. But no one has sought to appear. The service on these persons that was effected by the plaintiff satisfied the Court that it should proceed to determine the matter on the basis the plaintiff represents all the beneficiaries who will be bound under the judgment under UCPR, r 7.9.
A brief summary of the extent of service upon these other potentially affected persons may be briefly stated. The Summons was filed on 22 January 2020. On 13 March 2020, Lindsay J made orders for the giving of written notice of the proceedings to Ann Marie Dransfield, Leonie Merle Brooks and these surviving parties to the Deed and any children of any deceased party to the Deed. On 9 April 2020, letters were sent to all those persons in conformity with Lindsay J's orders. The letters which were sent to all those persons included the following statement: "As NSW Trustee and Guardian acts on behalf of the estate only, it is recommended that you each seek your own independent legal advice in relation to the above"
Correspondence was received from a number of persons in the class described in Lindsay J's orders. But none of them sought to appear or to oppose the construction proposed by the plaintiff.
On 24 August 2020, further directions were made by the Court to notify beneficiaries or persons who may be affected by the construction of the Will propounded by the plaintiff. Letters were sent out in compliance with those directions on 1 September 2020. The letters warned the parties that the matter would next be listed on 14 September 2020 and that they could attend by telephone link using the virtual courtroom because of restrictions associated with the COVID 19 pandemic.
In response to this correspondence, emails were received from a number of persons including Ms Fiona Dransfield, the daughter of Ann Marie Dransfield, and Ms Maureen Henbury. A number of persons who corresponded were informed of the hearing before myself on 16 November 2020.
The correspondence received from Ms Maureen Henbury indicated that she would not be attending the hearing or participating via video or audio-link but she said the following: "I only wished to state that I do not approve of the abandonment of the family deed of arrangement that was agreed to many years ago"
Ms Henbury's correspondence, the other correspondence, and the Court's analysis of the issues has enabled the Court to reach the conclusion that it can proceed now to deal with the issues of the construction of the Will but that the Court should act on the basis that some interested persons may yet wish to put argument to the Court about the enforcement of the Deed. Later in these reasons the Court has made provision for that possibility.

[5]

The Plaintiff's Contentions

The plaintiff submits that the Will does not expressly deal with whether or not the Queensland property may form part of the testator's residuary estate before the death of Leonie Merle Brooks.
The plaintiff submits that the death of Dulcie Jean Critchley on 19 December 2017 arguably triggered the operation of clause 4 of the Will, in that by that point in time each of the testator's two daughters who had been given a life interest had either died or remarried. But the plaintiff submits, on a literal reading of the Will, that the residue of the testator's estate described in clause 4 of the Will does not now include the Queensland property, because under clause 1 of the Will the Queensland property would only fall into residue upon "the death of both my daughters [named in clauses 1 and 2]", which has not yet occurred.
The plaintiff elaborated its submission about proper construction of the Will: "The language of clause 1 of the Will is obscure and the effects of a literal reading of this clause is that despite the death of Dulcie Jean Critchley, the CIW property does not 'fall into and form part of' the testator's residuary estate until the death of Leonie Merle Brooks. The effects of a literal reading of clause 4 of the Will is that following the death of Dulcie Jean Critchley, the trustee is authorised to divide the residue of the testator's estate amongst her surviving children, but that residuary estate would not include the CIW property. It is only on the death of Leonie Merle Brooks, that the CIW property will form part of the testator's residuary estate. In the absence of any passing over clause there is a likelihood that no surviving children will remain at that point and what will be left is a trust without any beneficiaries. Prima face there is some inconsistency in the Will with the use of the terms, 'residuary' and 'residuary estate'. Upon reading the Will as a whole, and in the absence of any other extrinsic evidence, the basic scheme which the testator had conceived for dealing with her estate was to ensure that her two daughters, Dulcie Jean Critchley and Leonie Merle Brooks had the use and enjoyment of the Kirrawee property, or such other property as may be acquired and the income from the residual estate for their lifetime or until they remarried. The effect of remarriage was to forfeit the right to use and enjoy the Kirrawee property or such other property as may be acquired and any income from the residuary estate. On the death of the daughter residing in the Kirrawee property or such other property, the Kirrawee property or such other property acquired formed part of the residuary estate. The whole of the residuary was to be divided amongst the testator's then surviving children. The Plaintiff submits that to construe the Will to give effect to that scheme, the court would need to find that such an intention was plainly implied from the language of the Will and that the CIW property formed part of the testator's residuary estate notwithstanding that the both of the testator's daughters are not deceased. The Plaintiff submits that such a finding is available on the facts. The ten, 'surviving children' is used only once in the Will. The Plaintiff submits that on a proper construction of the Will and having regard to the testator's scheme of disposition, the term, 'surviving children', means those surviving children of the testator as at the date of death of Dulcie Jean Critchley. That is, Leonie Merle Brooks and Ann Dransfield being those children of the testator surviving as at 19 December 2017."
The plaintiff's submissions then refer to some caselaw in relation to the construction of class gifts: Austin & Anor v Wells & Ors [2008] NSWSC 1266, at [12] - [13]; Marks v Trustees Executors and Agency Co Ltd; (1948) 77 CLR 497, at 507; (1948) 22 ALJR 539; and In re Blackwell [1926] Ch 223, at 233-234; (1926) 95 LJ Ch 172.
Drawing upon those authorities, the plaintiff continued its submissions as follows: "The gift in clause 4 of the Will is a "class gift", being "a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal proportions, the share of which being dependent for its amount upon the ultimate number of persons"; Lockrey v Ferris [2011] NSWSC 179 per Hallen J at [50]. The division of the residue of the testator's estate is not to commence to occur until the death or remarriage of both daughters. The death and remarriage of both daughters did not occur until 17 December 2017. It was only then that the class of "surviving children" could be identified. The gift in clause 1 is similarly a "class gift". On a literal reading of the Will, and subject to the submissions set out above, [the Queensland property] does not ''fall into and form part of" the residuary estate until the death of both Dulcie Jean Critchley and Leonie Brooks. The division of this part of the residuary estate is not to commence to occur until the death of both daughters. This is yet to occur. It is only upon the death of Leonie Brooks that the class of "surviving children" can be identified. The plaintiff submits that the gift in clause 4 of the Will is a contingency gift, in the sense that in order to claim the right to the gift, any claiming beneficiary has to satisfy the conditions set out in the Will in order to fall within the class. Firstly, they must be a child of the testator. Secondly with respect to the residue estate (excluding [the Queensland property] and subject to the submissions above) that they survived the death or remarriage of Dulcie Jean Critchley and Leonie Brooks. This strongly indicates a contingent rather than a vested gift, the requirement to be a surviving child as at 17 December 2017 being a quality or description which they must possess in order to claim under the gift; see Re Butler [1980] Qd R 601 per Connolly J at 604E; Austin v Wells [2008] NSWSC 1266 per White J at [25]. At the time that the Deed was made, neither Edward Critchley, Leslie Critchley, Enid Anderson, Margaret Lola and Frederick Linley had an immediate vested interest in the residue of the testator's estate. Clause 2 of the Deed acknowledges this fact."
The plaintiff submitted in conclusion that it follows from this reasoning that on the true construction of the Will and the events which have happened: "The phrase in clause 4 of the Will, "residue of my estate" includes [the Queensland property]; The phrase in clause 4 of the Will, "UPON the death or remarriage of both my said daughters I AUTHORISE my trustee to divide the residue of my estate amongst my surviving children equally " was intended to mean those children of the testator surviving as at the date of death or remarriage of both Dulcie Jean Critchley and Leonie Merle Turner, that is those surviving children of the testator as at 19 December 2017. Leonie Merle Brooks and Ann Dransfield are the only surviving children of the testator as at 19 December 2017. The Plaintiff seeks a declaration that it is a liberty to distribute the residue of the estate of the testator including [the Queensland property] to Leonie Merle Brooks and Ann Dransfield, equally."
The Court's analysis differs somewhat from the plaintiffs. But the Court comes to a similar conclusion to that propounded by the plaintiff.

[6]

The Court's Analysis of the Trusts Created Under the Will

Clauses 1 and 2 of the testator's Will divide her estate into two parts to be held by her trustees. Clause 1 deals with the Kirrawee property, or another property that may be acquired with the proceeds of sale of the Kirrawee property. Clause 2 deals with "all the rest and residue of my estate", that is, everything other than the Kirrawee property. Each of the trusts created by clauses 1 and 2 is governed by slightly different rules.
Clause 1 directs that the "house and land situated at Kirawee" is to be held in trust "to permit my daughters DULCIE JEAN CRITCHLEY and LEONIE MERLE TURNER to use and enjoy the same during their lifetimes" (emphasis added). The object of the trust so created is for either of the testators's two named daughters with a life interest to use and enjoy the Kirrawee property during her lifetime. Clause 1 does not itself deprive either named daughter of the use of the Kirrawee property upon her remarriage.
Clause 2 directs that the estate other than the Kirrawee property be held on trust "to pay the income therefrom to my daughters, [with life interests under clause 1]". Clause 2 places no limit on the duration of the payment of income to the daughters named in clause 1. So properly construed, the Will contemplates such payment would be made during their lives. Clause 2 does not itself deprive either such daughter of the clause 2 income upon her remarriage.
But clause 3 modifies the trust structure created by both clauses 1 and 2. Its introductory words, "NOTWITHSTANDING the foregoing", signal that it operates to vary what might otherwise be the effect of clauses 1 and 2. And it does so by providing for the consequences of the remarriage of the daughters named in clauses 1 and 2. In the event of the remarriage of either such daughter, "the other daughter shall be entitled" to (a) "the exclusive use of the property at Kirrawee or such other property as may be acquired" and (b) "the income from the residue of my estate". But this entitlement of the other daughter will only exist "until her death or remarriage."
Leaving aside the operation of clause 4, clause 3 operates upon her remarriage to disentitle a daughter named in clauses 1 and 2 from a right of occupation of the Kirrawee property, and from the income of the residue of the estate. Assume that both the daughters with a life interest were to remarry, one before the other, when the second daughter remarried, clause 3 directs that "the other daughter shall be entitled" to the Kirrawee property and to the clause 2 income "until her death or remarriage". But on the assumption that the first daughter had previously remarried, clause 3 had already caused her to lose any entitlements under both clause 1 and clause 2. In those circumstances, clause 3 would confer no entitlement to a clause 1 right of occupation or clause 2 income on either daughter. So upon the second daughter's remarriage, clause 3 would itself operate to bring to an end the life interests created for both daughters under clauses 1 and 2.
The same result would follow, as has indeed now occurred, where the remarriage of one named daughter is followed by the death of the other. The operation of clause 3 means that when Leonie Merle Brooks remarried, she was disentitled from participating in future benefits under clauses 1 and 2. When Dulcie Jean Critchley died, clause 3 had already removed any entitlement of the "other daughter", Leonie Merle Brooks, from any clause 1 or clause 2 benefits. Properly construed, clause 3 could not operate to revive or permit any clause 1 or clause 2 benefits for Leonie Merle Brooks.
But clause 3's collapsing of the life interests conferred by clauses 1 and 2 meant that the Will needed to make provision for the immediate distribution of the residue of the estate. Clause 4 of the Will does this. It operates in the event of "the death or remarriage of both my said daughters". It operates consistently with clause 3, modifying clauses 1 and 2. And its proper construction reinforces the Court's analysis of the construction of clause 3. Once each daughter with a life interest under clauses 1 and 2 was either dead or remarried, the Will authorised the trustee "to divide the residue of my estate among my surviving children equally".
That equal distribution is to be made "among my surviving children". The "surviving children" are stated to be the objects of the clause 4 distribution; the strong inference is that those objects are the children who survive at the moment of distribution. The Will contains no indication that survivorship is to be determined at any date other than the date of distribution under clause 4. A number of other dates of survival, before the date of distribution, can be postulated. But if any of these earlier dates were intended, it is to be expected that the Will would include a provision which would indicate to whom the estate should be distributed in the event of the death of those children who earlier qualified as "surviving children" before the required time for distribution. No such provision exists in the Will, further strengthening the Court's analysis that "surviving children" in clause 4 speaks at the moment of distribution under clause 4.
This construction is not in tension with clause 1 of the Will, which defers the Queensland property falling into residue until the death of both daughters given a life interest. The Queensland property is part of the residue for clause 4 distribution, because clause 3 and 4 modify the operation of clause 1.
The Court's analysis means that in the events which have happened the Queensland property is no longer held on the trust created by clause 1 of the Will and the other monies held by the trustee are no longer held on the trust created by clause 2 of the Will. They have now all fallen into residue. The plaintiff can sell the Queensland property and distribute its proceeds, together with the other residue of the estate under clause 4 of the Will, to Leonie Merle Brooks and Ann Marie Dransfield.

[7]

The Effect of the Deed of Family Arrangement

There is reason to pause before the estate is distributed. Questions potentially raised by the Deed, which may alter the ultimate distribution of the estate, have not yet been the subject of any contest among the beneficiaries. The Court is satisfied that the plaintiff has notified all the parties to the Deed of these proceedings, and none has yet sought to intervene. But the Court can foresee that there may yet be a contest as to whether Ann Marie Dransfield and Leonie Merle Brooks may be required to distribute the estate in accordance with the Deed rather than under the Will. Because the Court foresees that this is at least a possibility, it is better that the Court provide for such a potential contest in an orderly way rather than the issue emerging without prior warning shortly before the distribution of the estate.
If the testator's estate is administered in accordance with the Will, these reasons indicate the plaintiff should distribute half of the estate to each of Ann Marie Dransfield and Leonie Merle Brooks. But if the Deed is successfully enforced by other parties to the Deed against Ann Marie Drensfield and Leonie Merle Brooks, then the half share of the distributable estate of each of Ann Marie Dransfield and Leonie Merle Brooks could be reduced to one ninth of the distributable estate.
The question of the enforceability of the Deed against Ann Marie Dransfield and Leonie Merle Brooks has not been argued before the Court in this application. But it may be helpful to the parties if the Court identifies some of the issues that may have to be considered if a party seeks to enforce the Deed against Ann Marie Dransfield or Leonie Merle Brooks.
Ms Glover has correctly pointed out that the plaintiff is not a party to the Deed. But despite that, there are indications in the Deed that it may be enforceable by or against the plaintiff. By clause 3 of the Deed, "each party hereto releases the trustee from and against all claims over or in relation to the estate". Clause 5 of the Deed allows its provisions to be pleaded in bar in respect of proceedings commenced in respect of the estate of the testator, "whether under the said Family Provision Act 1982 (NSW) or otherwise". Any proceeding under the Family Provision Act would be commenced against the plaintiff, so implicitly clause 5 also is for the advantage of the plaintiff.
The doctrine of privity in the law of deeds is clear that a party cannot enforce a deed unless he or she is named as a party to it: Accordent Pty Ltd and Portellos v Bresimark Nominees Pty Ltd (2008) 101 SASR 286; [2008] SASC 196 ("Accordent") at [66] - [67] (Doyle CJ, Duggan and Anderson JJ concurring). But the plaintiff is not named as a party to the Deed and ordinarily a non-party cannot enforce the deed unless the deed establishes a third party as a beneficiary under a trust: Beswick v Beswick [1968] AC 58 at 102-107; [1967] 2 All ER 1197.
But if the Deed can be construed as a deed poll, it may be able to be enforced by a person who is sufficiently identified as a beneficiary, even though that person is not a named party to the Deed. Whether a deed is a deed poll or not is to be decided as a matter of substance not form, and merely because a deed is for some purposes a deed inter partes, does not mean that it cannot also be for other purposes a deed poll: Accordent; Nicholas Seddon, Seddon on Deeds (2015, The Federation Press) at [6.9]; and see also Moody & Anor v Condor Insurance Ltd & Anor [2006] 1 WLR 1847 at [15].
But the question of whether the plaintiff can enforce the Deed and whether the Deed can be enforced against the plaintiff not only governs the estate when it is in the plaintiff's hands. An interesting question may arise if the estate is being distributed to Ann Marie Dransfield and Leonie Merle Brooks: can the other parties to the Deed enforce the Deed against these two beneficiaries to require the share of the estate that they each receive to be redistributed to the wider class of beneficiaries under the Deed. It seems at least arguable that Ann Marie Dransfield and Leonie Merle Brooks have agreed with the other parties to the Deed that "the balance of the monies remaining in the estate" will "be divided" in accordance with the detailed provisions of the Deed. Once the balance of the monies of the estate is put in to their hands, they may have to respond to an action attempting to enforce the Deed against them. They may have a number of defences to such a claim.
But for present purposes, the plaintiff should notify the result of these proceedings, through these reasons for decision, to all the parties to the Deed so they have a fair opportunity to take advice before the final distribution to Ann Marie Dransfield and Leonie Merle Brooks takes place. The plaintiff has provided the Court with a full list of the persons who may have an interest in seeking to enforce the Deed, which has become Exhibit A. So the Court will require the plaintiff to serve those persons listed in Exhibit A with a copy of these reasons. And the Court will stay the plaintiff's distribution of the estate until all those persons have been served and a further period has passed.
To allow this to be dealt with in an orderly way, the Court will not make final orders in these proceedings until it is clear that such notification has taken place and it is clear that the plaintiff has not heard from any parties to the Deed or persons who may be interested in enforcing it. If a party to the Deed indicates that he or she does wish to enforce it, this may be a case where, in the interests of preserving the estate for the benefit of all, the Court should order a mediation.