//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] VSC 375
Supreme Court of Victoria
2008-09-25
VICKERY J
Original judgment source is linked above.
Will construction - irreconcilable clauses- whether same object devised to two different persons - whether reconciliation of clauses possible - 'rule of despair' in construction of wills - whether to apply the 'rule of despair' or harmonise the will's provisions - reading clauses consistently with the testatrixes intention - discovering intention by reading the will as a whole.
1 The present application comes before this Court by way of amended summons dated 15 September 2008 to either rectify the will, or construe the will in order to determine the effect of the relationship between clauses 3(g) and 4.
2 The rectification application was abandoned by both plaintiff parties at the hearing. The application remaining on foot is for a construction of the will under Order 54 of the Supreme Court Rules and Part 4 of the Wills Act 1997.
3 The parties agreed to a set of facts by which they were guided in argument. The agreed facts are set out below.
4 Miriam May Thomson ("the testatrix"), born on 27 March 1920, died on 1 November 2007 at 87 years of age. At the time of her death the testatrix was residing at 29 Everard Road, Ringwood East. The testatrix left a will dated 19 May 1999. On 22 January 2008 probate of the will was granted to the executor Kenneth Douglas Thomson ("Kenneth"), a son of the deceased and the defendant in these proceedings. The testatrix had another son, Raymond Robert Thomson ("Raymond") who predeceased her dying in April 2007. Raymond left two children, Robert Glen Thomson ("Robert") and Paul Sturt Vilkonen (formerly Paul Sturt Thomson) ("Paul"), the present plaintiffs, who have both attained 18 years of age. At the hearing of the application the parties agreed to include among the agreed facts the further fact that at the time of the execution of the will all the grandchildren of testatrix were over the age of 18 years.
5 The will, leaving aside the usual formal matters, provided by clause 3(a)-(f) for a number of specific bequests to grandsons and daughters-in-law of the testatrix, and by clause 3(g) a gift of the balance in the following terms:
(g) the balance then remaining to be divided equally between my said sons as tenants in common in equal shares but should only one survive me then all for that one.
7 In the events that have happened, an issue has arisen as to the proper construction of clause 3(g) and clause 4 of the will.
8 On the one hand, by applying clause 3(g) in isolation, in the case of a son dying before she did, the testatrix's surviving son would be the beneficiary of the entirety of the balance of the estate that would otherwise have been divided between the testatrix's two sons. Adopting this construction, the surviving son Kenneth would inherit the entire residue of the estate.
9 However, clause 4 directs seemingly to the contrary by providing that a surviving son would not take his predeceased brother's share of the balance of the estate on the death of the testatrix, but that share would pass to the predeceased brother's children upon them attaining the age of 18 years. Adopting this provision to the exclusion of clause 3(g), half the residue of the estate passes to Raymond's two sons Robert and Paul, and half to Kenneth.
10 The question that arises in this case is whether the very same object has been irreconcilably devised to two different persons or groups of persons, and if the two provisions can be reconciled, how is this to be achieved in a manner which is consistent with the intention of the will.
11 No rule of construction is better settled than that the intention of the testatrix, as expressed in the will, shall prevail.[1] The intention of the maker of the will has been referred to as the "pole star" in the construction of wills.[2] Thus where the intent of the testator or testatrix is obvious it should be carried out if possible.
12 Where, however, a will contains provisions which are apparently inconsistent or repugnant, every effort must be made to construe the instrument so as to harmonize the conflicting provisions.[3] When such a case arises, the inconsistent clauses should be construed if possible so as to give effect to each clause.[4] Inconsistency does not inevitably result in irreconcilability if in fact the clauses operate for different purposes. The clauses in these circumstances can be seen as complementary.
14 The sole question in the case of totally repugnant intentions is, of course, which clause in the will shall control the disposition of the estate. The ancient maxim that the first deed and the last will[7] prevailed was applied to inconsistent clauses within instruments so that the former of such clauses prevailed in deeds and the latter in wills.[8]
15 This principle, as applied to wills, emerged as the so-called "rule of despair" to the effect that where two clauses in a will are irreconcilable, the last clause as it is written in the will shall prevail[9]: Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est. Most courts acknowledge the rationale of the rule to be that the last clause embodies the last expression of the testator's intention[10]; or that, as between two repugnant clauses, the latter of the two should prevail on the basis that what the testator writes last is his "last will"[11]; or on the footing that where the clauses are entirely irreconcilable, so that they cannot possibly stand together, the clause which is last in position shall prevail, the subsequent words being considered to denote a subsequent intention.[12]
16 This highly technical rule, which smacks of the days when legal fictions once flourished, has been severely criticised, and is never applied, it seems, except as a last resort.[13]
17 As Harman J said in Filmer v Carter:[14]
It has been contended that this is a case to which the rule that the latter of two inconsistent phrases, bequests or devises in a will must be preferred to the former applies. No doubt that rule exists. It is, however, like a similar but converse rule applying to deeds, only a counsel of despair, and will be resorted to by the court only where there is absolute inconsistency form which there is no way out. Where two phrases, bequests or devises cannot be reconciled, the court will naturally follow that rule to give effect to the whole document.
18 To like effect, Starke J said in Re Robertson said there was no logical basis for the rule, that the interpretive principle was a highly artificial exercise and that therefore the court should be slow to apply it.[15]
19 The mere position of clauses or words should not be conclusive as against the intention as manifested by the whole instrument. As Marshall CJ said in Smith v. Bell,[16] "both clauses are equally the words of the testator, are equally controlling." Indeed, if there is no will until the instrument is completed and executed then all parts of the will speak together.
20 In State Trustees v Linnett Warren J, as she then was, recognised the rule of despair as a "general rule"[17] but went on to say that:
Notwithstanding this rule the court must construe the will as a whole. On the basis of the principle expressed in Williams effect must be given to every word.
21 The rule of despair is not an absolute directive, and the rule of construction favouring later inconsistent clauses over earlier ones is limited and subject to the guiding principle that a court ascertains the will maker's intention by giving effect to all the terms of the will.[18] Thus if the will is read as a whole, and it is more consistent with the testator's intention that the earlier clause should prevail, then the will should be construed in this way.[19]
22 Further, the so-called "rule of despair" will yield to other approaches to will construction which have been developed to deal with inconsistent clauses. Some examples are:
(a) where the clauses cannot be reconciled and one of the clauses is ambiguous, the unambiguous clause will prevail regardless of their relative positions in the will;[20]
(b) similarly, when a general provision is found to be inconsistent with a specific provision in the same instrument, the specific provision will prevail;[21]
(c) after reading the will as a whole, and ascertaining the intention of the testator, it appears that the intention was more accurately expressed by the earlier clause rather than by the later one, the earlier will prevail;[22]
(d) the rule will not be applied where its application would result in an intestacy;[23]
(e) in some situations conflict between clauses may arise because a testator has given the same property to two different persons. In such a case, if, upon reading the will as a whole, this is consistent with the testator's intention, the court may hold that each beneficiary take a half share.[24]
Lord Brougham LC in Sherrat v Bentley[25] for example said that the earliest authorities which recognised the revocation of an earlier inconsistent clause in a will by a later one did not lay down an absolute rule. Rather, it is consistent with the earliest authorities that repugnance may not be complete where later clauses granting a gift to a second beneficiary did not contain words of exclusion against the first beneficiary of the gift, or the object of the grant was capable of division and a moiety to be given to each devisee; [26]
(f) further, two inconsistent gifts of residue may lead a court to hold that the second residuary gift was intended to catch lapsed shares of the earlier residuary gift.[27]
23 However, it is to be emphasised that technical rules of construction are resorted to only for the aid they provide in arriving at the testator's will. The pre-eminent rule is that the expressed intention shall govern. This provides security to testators in the disposition of their property and goes some way to providing certainty in testamentary dispositions for the guidance of executors, beneficiaries and other interested persons.[28] Indeed, the decided trend of modern adjudication has been to subordinate technical rules of construction in the case of conflict to the rule that the intention as shown by the entire will prevails. Rules of construction only have application where the repugnance is such that the intention of the testator cannot be ascertained with reasonable certainty from the whole instrument or if ascertained cannot be carried into effect.
24 The starting point in the present case therefore involves a consideration as to whether clauses 3(g) and 4 can be reconciled in a manner which accords with the intention of the testatrix. In Re Robertson, deceased[29] Starke J said:
In my judgment, it is beyond argument that apparently conflicting clauses should be reconciled where possible.
To similar effect is the statement of the Judicial Committee of the Privy Council (per Lord Hoffman) in John A Charkes v Yvette Barzley, it is "only when reconciliation is impossible that a recalcitrant provision must be rejected".[30]
25 Dr Bleechmore, who appeared for the defendant executor of the estate, submitted that clauses 3(g) and 4 of the will operated in this way: clause 3(g) provides specifically for the situation where one of the sons predeceases the other, an event which happened, in which case clause 3(g) should be given full effect. Clause 4 on the other hand was designed to operate in the event that the disposition under clause 3(g) failed because both sons predeceased the testatrix. In these circumstances, it was submitted, it would be natural and logical, consistent with the testatrix's intention, to suppose that if both her sons predeceased her, then her grandchildren should take their share of the residue.
26 The defendant submitted that the testatrix's dispositive intentions repose entirely in clause 3, and that clause 3(g) "unmistakably, clearly and unambiguously" sets out the mechanism the will adopts in the case of the testatrix being predeceased by one of her sons. Sub-clause (g) resides amongst other sub-clauses which taken together dispose of the entire estate. Consequently the will manifests the intention for the surviving son to enjoy the balance of the estate, whilst the grandchildren are given specific bequests.
27 It was further submitted that if the surviving children of the deceased son were the beneficiaries, they would inherit a specific bequest plus this residue, which is more than the other grandchildren. This then would defeat the intention of the will to treat the grandchildren equally. In order to avoid this consequence, clause 4 should be read as devising the remaining estate to the surviving son unless both sons predecease the testatrix in which case the residue is devised in equal shares to the surviving grandchildren, preserving the even-handed intention of the testatrix.
28 The defendant also argued that, if there was any uncertainty in the operation of clauses 3(g) and 4 of the will, it was permissible to rely upon extrinsic evidence. Section 36 of the Wills Act 1997 provides:
(1) In any proceedings to construe a will, if the language used in a will renders the will or any part of the will -
(b) uncertain or ambiguous on the face of the will; or
(c) uncertain or ambiguous in the light of surrounding circumstances -
evidence may be admitted to assist in the interpretation of that language.
(2) Evidence which may be admitted under subsection (1)(c) does not include evidence of the testator's intention.
(3) Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will.
29 The extrinsic evidence relied upon was that, at the time when the testatrix made her will, all the grandchildren of testatrix were over the age of 18 years. Dr Bleechmore submitted that this fact added weight to the construction for which he contended because clause 4 was expressed to benefit only those grandchildren who were living at the death of the testatrix "who shall have attained or shall attain the age of 18 years". It was put that, because the testratrix knew at the time of making her will that her grandchildren had each reached the age of eighteen, this reinforced the conclusion that clause 4 was a "boilerplate" provision with limited effect and "had to be the product of the word processor".
30 The plaintiffs argue that logically, for clauses 3(g) and 4 to coexist in a document manifesting a single intention, clause 4 qualifies clause 3(g). That is to say, by clause 3(g) it was the testatrix's intention to leave the entire residue of the estate to her surviving son should a son predecease her without having left adult children. However, clause 4 becomes operative and qualifies 3(g) in the event that happened in this case, namely if a predeceased son dies leaving adult children, the residue that would have otherwise passed to him passes to his children.
31 According to the plaintiffs, clause 4 is consistent with the underlying intent of the will requiring an equal division of the property between the testatrix's sons and their families. It was submitted that the intention of the testatrix to treat her beneficiaries equally is better understood as treating the families equally, an interpretation which is consistent with contemporary values.
32 The testatrix's intention is to be gathered from the entire will, and all of its portions when they are considered together, rather than from any particular clause.[31] In my judgment to ascertain what was intended, the two clauses 3(g) and 4 must be construed together [32] so as to maintain and give expression to each part of the will.
33 Clauses 3(g) and 4 are to be read as complementary indicators of the testatrix's intention. This is not a case of a double gift of residue[33] which might enliven the rule of despair giving effect to the latter clause. The entirety of the intention is not to be found in either clause but only by reading them in conjunction. The clauses are not identically expressed. They operate differently in response to different factual circumstances.
34 Clause 3(g) accounts for two eventualities. In the first place it operates if neither of the testatrix's children predecease her. Then the estate is shared equally between the two sons. Second, it operates where one of the sons predeceases the testatrix but he leaves no surviving issue. In this case the effect of clause 3(g) is that, if the deceased son had no surviving children, the surviving son would get the entire estate.
35 On the other hand, in my view clause 4 is intended to operate where one son predeceases the testatrix and that son leaves surviving children who have attained the age of 18 years. This is a more specific circumstance than that found in 3(g). In this way clause 4 qualifies the operation of the earlier clause under the conditions contemplated by the later clause and the two clauses are able to work together.
36 I accept that s.36(1)(b) of the Wills Act permits the admission of extrinsic evidence by reason of uncertainty appearing on the face of this will. However, I reject the submission of the plaintiff that the extrinsic evidence as to the ages of the grandchildren being eighteen years or more at the time of the making of the will is of assistance. The evidence did not point to clause 4 being merely formulaic writing of no meaningful import except in the limited circumstances contended for by the plaintiff. At the time of the making of the will the testatrix had two living sons. There is no evidence as to the age of the sons at this time. However, even if the position was that they were persons approaching an advanced age, there is no reason to suppose that they were incapable of fathering further children. The phenomenon of the fertile octogenarian is not unknown to medical science or indeed to the law. On this basis, the text in clause 4 which defines the beneficiaries by reference to them having attained the age of eighteen years, could have had an intended operation in the conceivable circumstances which I have described.
37 Further, the effect of the defendant's construction would involve a re-drawing of the text of clause 4 to conform to the reconstructed intentions of the testatrix. If the operation of clause 4 is confined to preventing a lapse in the case of the death of both sons, the clause should be read as referring to "both" sons rather than "any" son. Such a construction does a violence to the language of the clause.
38 In my opinion, the construction of the will urged by the defendant deprives clause 4 of its proper meaning and operation. Further, it would be contrary to an entrenched canon of interpretation that in construing a will a court should give effect to every word of the will, without change or rejection, provided an effect can be given to it which is not inconsistent with the general intent of the whole will taken together [34]. Moreover, as Warren J, as she then was, said in State Trustees Ltd v Linnett, a reading which deprives words of their meaning or effect is a likely cause of misconstruction of the contents of the will.[35]
39 Accordingly, I find that the construction of the will contended for by the plaintiffs is to be preferred. This interpretation allows the intent of the testatrix to govern the operation of the will by taking the entirety of the instrument into account. All parties agreed that if both sons predeceased the testatrix the bequest in clause 3(g) would fail. The residue could then only be dealt with by clause 4 which directs that it go to the surviving grandchildren, with each grandchild taking an equal share of what the deceased father would have received. In my opinion, it is consistent with this intention for clause 4 to also operate in favour of the adult grandchildren in the event of one son predeceasing the testatrix, an event which in fact occurred.
40 Since reconciliation is possible in the manner in which I have found, in the present case there is no need to have recourse to the rule of despair.
41 I make a declaration to accord with my findings in the following form:
It is declared that clause 4 of the will of the late Miriam May Thomson has the effect (notwithstanding clause 3(g) of the will) that the grandsons of the Testatrix, Robert Glen Thomson and Paul Sturt Vilkonen (formerly Paul Sturt Thomson) are entitled to receive the one half share of the residue of the deceased estate that their late father, Raymond Robert Thomson, would have inherited had he survived the Testatrix.
42 The costs of the proceeding should be borne by the estate.
[1] Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18; Roddy v Fitzgerald [1858] EngR 543; (1858) 6 HL Cas 823 at 876; [1858] EngR 543; 10 ER 1518 at 1539; Perrin v Morgan [1943] AC 399 at 408; Peter v Shipway [1908] HCA 52; (1908) 7 CLR 232 at 237 per Griffiths J: "In construing a will the paramount rule is that you must first ascertain the intention of the testator"; See also Kilng v. Melling I Vent. 231; Summit v. Yount 9 Ind 506; Lane v. Vick 3 How. 464.
[5] Russell v Hartley 83 Conn., 654; Pickering v Langdon 22 Me., 430.
[7] Sheppard's Touchstone or The Touchstone of Common Assurances being a Plain and Familiar Treatise on Conveyancing by William Sheppard Esq of the Middle Temple with Copious Notes and a Table of Cases cited therein to which is added an Appendix and an extensive Analytical Index by Edmond Gibson Atherley Esq of Lincoln's Inn, Barrister at Law, The Eighth Edition Vol 1, Samuel Brooke, Pater-Noster Row London 1826, 88.
[8] Leicester v Biggs 2 Taunt. 113; Thompson v Hill 137 Ga. 308, 73 S.E. 640.
[11] Siherrat v Bentley [1834] EngR 996; 2 M. & K., 149; Hamlin v [. S. Express Co., 107 Ill. 443; Hendershot v Shields, 42 N.J. Eq. 317; Jarman on Wills, 6th Ed. at 565.
[13] Schouler on Wills, par. 474. See I8 Michigan Law Review at 785.
[14] Filmer v Carter [1952]Ch 80; [1951] 2 All ER 863.
[15] In Re Robertson (dec'd) [1966] VicRp 26; [1966] VR 196 at 196. See also Tainton v Read [2000] VSC 293.
[17] State Trustees Ltd v Linnett [1999] VSC 308; [1999] 3 VR 499 at 502 "Where there are inconsistent clauses in a will, the general rule is that the last clause prevails over an earlier one." See Doe d Leicester v Biggs [1809] EngR 353; (1809) 2 Taunt 109; 127 ER 1017.
[24] Re Alexander's Will Trusts [1949] 2 All ER 19.
[25] (1833-1834) 2 MY7K 149 ; [1834] EngR 996; 39 ER 901.
[26] White J in Donnelley para [24].
[27] Re Robertson[1966] VicRp 26; [1966] VR 196.
[28] Johnson v Barden 86 Vt 19, 83 Atl. 721.
[29] [1966] VicRp 26; [1966] VR 196 at 196.
"The interpretation of a will is in principle no different from that of any other communication. The question is what a reasonable person, possessed of all the background knowledge which the testatrix might reasonably have been expected to have, would have understood the testatrix to have meant by the words which she used. Furthermore, as Lord Greene MR said in In re Potter's Will Trusts [1944] Ch 70, 77: It is fundamental that apparent inconsistencies must, so far as possible, be reconciled, and that it is only when reconciliation is impossible that a recalcitrant provision must be rejected. Even in that case, of two irreconcilable provisions, it is the later that prevails, but in the present case there is no need to have recourse to this rule of despair."
[31] Rigdon v Cooper 203 Ga. 547, 47 S.E. 2d 633 (1948); White v White 183 Va. 239, 31 S.E. 2d 558 (1944).
[32] Bender v Bender 292 Ill. 358, i27 N.E. 22.
[33] Re Gare [1952] Ch 80 at 84; Re Robertson, deceased [1966] VicRp 26; [1966] VR 196 at 197.
[34] Homer v Shelton 2 Met. (Mass.), 202; Ingersoll's Appeal, 86 Pa. St., 240.
[35] State Trustees Ltd v Linnett [1999] VSC 308; [1999] 3 VR 499 at [14] per Warren J.
Thomson & Anor
Thomson [2008] VSC 375
(1987) 9 NSWLR 18
(1908) 7 CLR 232