Thomson & Ors v Down & Ors [2012] QSC 171

K Hyde appeared on her own behalf and on behalf of the seventh respondent

[1] This is an application for a declaration as to the proper construction of the last will and testament of Gilbert James Down who died on 19 May 2010, leaving a will dated 17 December 1999.

[2] Gilbert Down died on 19 May 2010. During his lifetime he had been married twice. His first wife and he had six children who are the first to sixth respondents. The sixth respondent has Down syndrome. After his first wife died, Gilbert Down married again in October 1999, that is, around three months before making the will which is the subject of this application. By his will Gilbert Down appointed his second wife, Patricia Down, as his executor and trustee and left his whole estate to her unless she did not survive him. Patricia Down did not survive him, she passed away on 7 September 2006. Patricia Down had three adult children of her own at the time she married Gilbert Down, these are the seventh, eighth and ninth respondents.

[3] The first to fifth respondents did not appear on the application. The sixth respondent was represented. The eighth and ninth respondents did appear in person and sought leave to appear for their sister, the seventh respondent. I granted that leave. The seventh respondent was too ill to attend Court herself.

[4] The parts of the will which operate in the event that Patricia Down does not survive Gilbert Down are as follows:

1. 5. I APPOINT my said daughters, HELEN DORIS KATHLEEN THOMSON and SHIRLEY ANN SOMMER to be the Executors and Trustees of this my Will.
2. 6. I APPOINT my said daughters, HELEN DORIS KATHLEEN THOMSON and SHIRLEY ANN SOMMER to be the legal guardians of my daughter REBECCA JAN DOWN.
3. 7. I APPOINT absolutely and irrevocably all my children as beneficiaries of the REBECCA JAN DOWN Trust, but direct my Trustees to make no distribution to the beneficiaries until such time as the REBECCA JAN DOWN is deceased.
4. I DIRECT that my Executors sell my property both real and personal wheresoever situate and the proceeds of such sale less all testamentary and other expenses be paid to the Trust and administered by the Trustees for her benefit.
5. IN addition to all other powers conferred upon a Trustee by law MY Executors shall have the following powers:

(a) to apply for the maintenance education or benefit of any minor beneficiary as my Executors may think fit the whole or any part of the capital of that part of my estate to which that beneficiary is entitled or may in future be entitled provided that on becoming absolutely entitled he or she shall bring into account any payments received under this clause, and

(b) to invest and change investment freely in any investment or securities of whatever nature and kind whether authorised Trustee investments as if my Executors are beneficially entitled and this power includes the right to invest in property for occupation or use by a beneficiary,

(c) the power to carry on any business or business in which I may be engaged at the date of my death for such periods as my Trustees think fit,

(d) to appropriate and partition any real or personal property forming part of my Estate (and for such purposes to determine the value thereof) to or towards the share of my beneficiary or beneficiaries under this will."

[5] There are two matters the subject of the application before me. The first is as to whether or not the will creates a trust, and if so what are the terms of that trust. The second matter is the meaning of the phrase "all my children" in paragraph 7 of the will.

[6] It was submitted by the applicant that paragraphs 7, 8 and 9 should be seen as a direction to the executors to sell all the property of Gilbert Down and hold the proceeds of sale on trust for Rebecca Jan Down during her lifetime. The seventh to ninth respondents did not oppose that construction and accepted that the estate of the deceased ought to be applied for the benefit of Rebecca Jan Down during her lifetime.

[7] The more contentious aspect of the application is as to the distribution to be made by the trustees upon the death of Rebecca Jan Down. It was agreed that upon her death distribution ought to be made to the persons comprehended by the phrase "all my children" at paragraph 7 of the will. On behalf of the executors it was contended that this phrase meant the children of the testator and his first wife. The seventh to ninth respondents contended that the phrase should be construed so as to include them.

[8] The description "children" in its ordinary sense refers to natural children, although it can be construed as extending to step-children if the context and circumstances of the case (based on admissible evidence) show this is the preferable construction.[1] That is, the words, "all my children" should be construed as meaning the first to sixth respondents, unless there is something in the will, or the context and surrounding circumstances to which I am entitled to have regard, which indicates that in this will the phrase, "all my children" should be interpreted to include the three adult children of Patricia Down.

[9] It might be that the word, "all" before the words "my children" gives some indication that a more extensive class of children, than the testator's natural children, was intended. I would not so construe the word "all" in this case. The intention of clause 7 seems to me to be to ensure that one of the testator's children, Rebecca, was particularly cared for due to her special vulnerabilities and needs. Having made special provision for that one child the phrase "all my children" is apt to refer to the group of the testator's other children, in contradistinction to his child Rebecca, as to the remaining gift. In those circumstances I do not see the word "all" as expanding the class of children from natural children to include step-children.

[10] Again confining myself to the words of the will, the testator has made an initial gift to his wife (should she survive him), but in the event that she did not, the remaining terms of his will do not mention the children of Patricia Down by name, in the way that three of his natural children are mentioned. The executors, in the event that Patricia Down does not survive the testator, are named as two of his natural children. Rebecca is also named particularly, due to her circumstances. If, for example, one of the seventh to ninth respondents had been named as executor, or described, as are Helen and Shirley, as a daughter (or son), that might well be an indication from the language of the will itself that the phrase "all my children" was to include step-children as well as natural children. This point is not decisive, but it is an indicator relevant in construing the will.

[11] The rule as to evidence admissible as to context and circumstance is stated in Williams on Wills (above) at [57.13]: for the purpose of ascertaining the object of the testator's bounty, a court of construction must enquire into every material particular relating to the person or persons said to be identified by the particular description. For that purpose, the Court places itself in the testator's position, or as it is said, in the testator's armchair.

[12] The facts as to Mr Down's first marriage and six children, and to Patricia Down's three adult children are obviously facts to which the Court may have regard. So are the ages of those children at the time the will was made and the age of the testator and Mrs Patricia Down at the time the will was made. The dates of birth of the seventh to ninth respondents respectively are 7 March 1957, 3 July 1958 and 23 May 1959. So that at the time the will was made they were 43, 41 and 39 years old. Patricia Down was 75 at the time of her death in 2006, making her around 68 at the time of her marriage to Gilbert Down.

[13] There was no pre-existing Rebecca Jan Down Trust as at the time of the subject will. In August 1995 Mr Gilbert Down had made a previous will and on the same day a document was drawn up for a trust named the Down Family Trust. This document is much more complicated than the simple form of the will. Its provisions differ in substance from the dispositions in the will. There is no evidence that the Down Family Trust ever operated.

[14] There was some factual dispute before me as to the length of time Gilbert and Patricia Down had known each other before marrying. On behalf of the executors it was said that it was a period as short as 12 weeks. On behalf of the children of Patricia Down it was said that in fact Patricia and Gilbert Down met in early 1998. I do not find it necessary to resolve that dispute. Even if the relationship between Gilbert and Patricia Down was as long as is asserted by the seventh to ninth respondents, it was relatively recent before their marriage and the will. And more importantly, the will was made very soon after the marriage. At the time Gilbert and Patricia Down met, they were both in their later years and they both had adult children who (apart from the sixth respondent) lived independently of them and no longer required their support.

[15] The seventh to ninth respondents put evidence before the Court that they had a very good relationship with the testator and that the three of them, together with the testator and their mother shared many happy times together. The testator spent time with the eighth respondent's son who called him "Grandpa Gill". Even accepting that these things are so, I do not see this evidence as compelling the conclusion that these three adult issue of Patricia Downs are comprehended by the words, "all my children", having regard to all the circumstances of the case.

[16] There is considerable evidence from the seventh to ninth respondents as to matters which post-dated the testator's will and which are not able to be considered by me, even if they were relevant to its construction. Likewise, the applicants referred me to the terms of Patricia Down's will made in 2005. That will divided her property between the sixth respondent and her own natural children, but not Gilbert's other five children. Again, it is not something that I can legitimately have recourse to in construing the terms of the will in question here.

[17] On the material before me I am not convinced that circumstances or context admissible in evidence on this application takes the phrase "all my children" outside its ordinary meaning so that it extends to the adult step-children of the testator. In those circumstances I declare that on the proper construction of the will of Gilbert James Down dated 17 December 1999 the will:

(a) directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and

(b) upon the death of Rebecca Jan Down to hold that property on trust for Kenneth Gilbert Down, Geoffrey Phillip Down, Raymond James Down, Helen Doris Kathleen Thomson and Shirley Ann Sommer.

I order that the costs of each party to this application be paid from the estate of Gilbert James Down on an indemnity basis.

[1] Williams on Wills, Vol 1, 8th Ed, Butterworths, London 2002 [74.1]; Estate of Jack Alexander Warren [2001] NSWSC 104, and the authorities cited there.