WALSH -v- ADRIAN CORY SLOAN as executor of the estate of THE LATE LAURETTE DOROTHY KEDDIE [2019] WASCA 107 (2 August 2019)

Surrounding circumstances at the time of the making of the Will

1. Ms Keddie made the Will on 25 January 2005. There is no dispute as to the validity of the Will.
2. As at the time that Ms Keddie made the Will, the following facts were uncontroversial.
3. Ms Keddie and Ms Davies had lived together since the mid-1970s.
4. At some point during the 1980s, Ms Keddie purchased a property at 83 Drabble Road, Scarborough (the Drabble Road property).
5. Ms Keddie and Ms Davies resided together at the Drabble Road property until it was sold in March 2005. They were, accordingly, residing at the Drabble Road property at the time that Ms Keddie made the Will.

1. Ms Keddie sold the Drabble Road property on 27 March 2005 and, on or about 9 May 2005, purchased the Kilpa Court property.
2. Ms Keddie and Ms Davies lived at the Kilpa Court property from that time until 2011.
3. In 2011, Ms Davies was admitted to an aged care facility (the Second Avenue Care Facility, in Mount Lawley).
4. Ms Keddie continued to live at the Kilpa Court property until, in June 2012, she moved to the Aegis Aged Care facility in Yokine (Aegis Yokine).
5. The cause of Ms Keddie moving to Aegis Yokine was her deteriorating health and her increasing frailty. While Ms Keddie's preference was to remain at the Kilpa Court property, she could not do so due to her declining health.
6. At around the same time (June 2012) Ms Davies moved into Aegis Yokine, so that she and Ms Keddie could be together.
7. At all times, Ms Keddie remained the registered proprietor of the Kilpa Court property. Between the years 2012 to 2015, Ms Keddie claimed the Kilpa Court property as her main residence for tax purposes, as she was entitled to do.
8. Ms Keddie passed away on 8 September 2015.
9. There was some contentious evidence before the learned Master as to whether Ms Keddie regarded her presence at Aegis Yokine as temporary or permanent. It is not necessary, for the purposes of the appeal, to resolve those matters, save to observe that it is clear that Ms Keddie's presence at Aegis Yokine was solely the result of her deteriorating health.
10. There was also evidence before the learned Master as to various powers of attorney made by Ms Keddie in her later years, together with evidence as to the making of guardianship and administration orders under the Guardianship and Administration Act 1990 (WA). Those matters are, in our view, irrelevant to the issues in the appeal.

1. The learned Master, having reviewed a number of the authorities (to which we have made reference below), concluded that the Kilpa Court property was not the subject of the disposition in cl 2 of Ms Keddie's Will.
2. In doing so, the learned Master concluded, at [21]:

In my view it is clear on the facts of this case that the Kilpa Court property was not the deceased's principal place of residence as at the date of her death. She was a resident of Aegis Yokine. True it is that when she moved into the aged care facility she was unhappy and initially at least she wished to move back to Kilpa Court. But she did not do so. The furniture that she had at the Kilpa Court property was sold. The deceased parted company with her much loved dog. The Kilpa Court property was leased out from December of 2012. While for tax purposes it may have been referred to as her principal place of residence that was clearly not the case. The fact that Diana moved into Aegis Yokine so she and the deceased could be together further confirms the move out of Kilpa Court was permanent.

1. The grounds of appeal are prolix. The appellant alleges a total of 12 grounds of appeal.
2. It is not necessary to consider each of the grounds individually. Ultimately, in our view, the matter turns upon one issue: the proper construction of cl 2 of the Will and whether, on its proper construction, it reveals an intention on the part of Ms Keddie to gift the Kilpa Court property to Ms Davies. That issue is sufficiently encapsulated in ground 11 of the amended grounds of appeal, namely that 'the learned Master erred in law in holding that Kilpa Court is not the subject of the disposition ... in clause 2 of Ms Keddie's Will'.

1. The principles of construction in relation to a Will are well settled.
2. The starting point is that the object of construing a Will is to ascertain the testator's intention as expressed in the Will itself. As Lord Simon L.C. said in Perrin v Morgan:[1]

[T]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator.

1. In identifying the meaning of the words used by the testator (i.e. in construing the words themselves), the Court must focus on the intention of the testator, objectively ascertained, as at the time that the Will was executed. Insofar as 'surrounding circumstances' are relevant to the construction of a Will, therefore, the surrounding circumstances will be those at the time the Will was made, not (as the appellant contended) at the time of the death of the testator.
2. This is reflected in the so-called armchair principle, of which Owen J said Mustard v Oikonomov:[2]

This principle allows the court to admit extrinsic evidence about the testator's property, family, acquaintances and friends for the purpose of putting the court in a position to read the will as the testator would have read it. That is, the court will allow evidence to be admitted of factual circumstances surrounding the testator when the will was made: Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65. Under this approach, evidence as to the testator's intentions is not admissible. If after the admission of this factual evidence the words still remain ambiguous, then (except in the case of equivocation) no further evidence will be admitted and the disposition will be void for uncertainty.

1. This principle is now largely reflected in s 28A of the Wills Act 1970 (WA) (Wills Act).
2. This principle of construction does not mean that a Will only speaks as at the day of its execution. Indeed, insofar as the property comprised in it is concerned, a Will generally speaks and takes effect as at the date of the testator's death, as reflected in s 26 of the Wills Act:

(1) Unless the contrary intention appears by the will -

(a) the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;

1. It is important to recognise, however, in relation to provisions such as s 26(1)(a), that the meaning of the words in the Will do not change, although owing to events following the execution of the Will, those words may denote different property. In technical terms, the words have a fixed connotation but their denotation may differ from time to time As Dawson J observed in different context:[3]

That is to say, the attributes which the words signify will not vary, but as time passes new and different things may be seen to possess those attributes sufficiently to justify the application of the words to them.

1. A similar point was made, in relation to the construction of a Will, in Re Willis.[4]
2. In construing the words used by the testator, in a case such as the present, it is also important to recognise that what is being construed is a gift: that is, by the words used the testator is expressing an intention to provide for a gift of a certain thing. The question of construction, then, is: what is the thing (if any) that the testator, by the words used in the Will, expressed an intention to give?
3. So in the present case, by bequeathing 'my principal place of residence at my death', the testator is identifying a particular thing that she owns, and is able to give. That involves a very different exercise in construction than if the court were asking, in the abstract, 'what is a person's principal place of residence?' as might, for example, arise under a taxation statute. In this latter case, the exercise of construction is focussed on the abstract concept of 'principal place of residence' rather than on identifying what thing was intended to be given.
4. Moreover, in construing the words, the language must be read in the sense that the testator appears to have attached to the expressions used. In Brennan v Permanent Trustee Company of New South Wales, for example, Dixon J said:[5]

[T]o determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expressions he used, that is, unless a rule of law gives them some fixed operation. When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared.

1. In this context, it is also correct to say, as Derrington J did in Re Willis that:[6]

[A] will should not be construed in a strictly technical or legalistic sense and the construction should be sensitive to the factual context of ordinary life and circumstances.

1. We turn then to the meaning of the words 'my principal place of residence' in the context of the Will in the present case.

1. In our view, the intention revealed by the terms of the gift in cl 2 of the Will is clear.
2. By the expression 'my principal place of residence', Ms Keddie intended to give, to Ms Davies, the house that she owned for her residence and, if there were more than one such house at the date of her death, the main one.
3. This accords with the factual circumstances surrounding Ms Keddie at the time that she made the Will, namely, that she owned a house and that she owned that house for her residence. That is what she intended to give. This is confirmed (if confirmation were needed) by the fact that the gift is to Ms Davies, and that Ms Davies was the person with whom she had shared her home, at the time of making the Will, for approximately 40 years.
4. So construed, cl 2 of the Will was effective to bequeath to Ms Davies the Kilpa Court property. The Kilpa Court property was, as at the date of Ms Keddie's death the main (indeed the only) house owned by her for her residence. The fact that she was not physically present in the house, due to her deteriorating health, was not such as to defeat the gift. In that respect, the meaning of the words in cl 2, properly construed, may be more fully rendered as 'the house that I own for my residence (and if there be more than one, the main one) though I cannot physically be there'.
5. This construction accords with the evident intention of Ms Keddie, objectively ascertained, and also pays proper regard to the broader context of ordinary life, namely that people, particularly towards the end of their life will often, by reason of necessity, be unable to be physically present in their normal home (even for quite extended periods of time).
6. In this context, it is in our view irrelevant to ask, on the fundamental question of construction, whether the testator, who by reason of circumstance could not be physically present in their normal home towards the end of their life, was in the other place 'permanently' or 'temporarily'. That is because, while circumstances may arise that mean the testator will never be likely to return to their normal home, the Will may nevertheless reveal, on its proper construction, an intention to gift that home to another person.
7. Again, the question of construction ultimately remains: what do the words of the Will reveal that the testator intended to give (if anything) to the identified beneficiary?

1. The construction we have reached also accords with the result that has been reached, in similar cases, in other Australian States.
2. In In Re Rowell, for example, Wells J was required to construe a bequest of 'such residence as shall form part of my estate and be my principal place of abode at the time of my death'.[7]
3. The issue in In Re Rowell concerned the application of that bequest to a 'dwellinghouse' that the testator owned, and which she would have gone to live, but which she had never occupied by reason of her admission to a hospital. The testator had lived in the hospital from June 1976 until her death in November 1979 - a physical absence of similar duration to Ms Keddie's absence from the Kilpa Court property in the present case.
4. Wells J posed the question before him in the following way:[8]

The first difficulty in the present case has been created by events rather than by the testatrix's choice of language. She owned one dwellinghouse to which she would have gone to live, but, by a trick of fate, she never went into occupation, but was constrained to enter hospital, and to remain there as an inmate until her death. The practical question is: Has her enforced stay in hospital removed from that dwellinghouse the quality of being '[her] principal place of abode'?

I have been urged to hold that the testatrix's principal place of abode (if she had one), during the last three years of her life, was the hospital. It is true that she was present in hospital, and was sustained and treated there, for that period, but can her presence there, and her receipt of sustenance and treatment, have the effect of making the hospital her abode? I should be loath so to hold.

1. The above submission recorded by his Honour, is to the same effect as that of the first respondent in the present case; namely, that it was Aegis Yokine that was Ms Keddie's principal place of residence. That submission, however, proceeds from the wrong question: namely the abstract question, 'what was Ms Keddie's principal place of residence?'. The correct question, as we have said, is 'what is the thing (if any) that Ms Keddie, by the words used in cl 2 of the Will, intended to give?'
2. In concluding that the dwellinghouse in In Re Rowell was the testator's 'principal place of abode', Wells J did not address precisely the meaning to be given to that expression, focussing rather on application of the expression to the factual circumstances in that case (and in particular to the testator's choice or intention subsequent to the making of the Will). His Honour said:[10]

Accordingly, in my judgment, an inmate of a hospital, who is constrained to remain there, for treatment, by the exigencies of a mental or emotional disorder, does not make his or her abode in that hospital, unless it can be proved that he or she has freely decided to look on the hospital, not as a refuge, but as a de facto home. Furthermore, I am of the opinion that the testatrix's inability, and consequent failure, to enter into occupation of her intended home makes no difference to the operation of the disputed passage in the will. Where a person has established a place of abode, mere physical absence from it, does not, in his or her contemplation of it, change its status. It would require the sort of choice or decision referred to above to effect such a change. (original emphasis)

1. In a number of respects, as the learned Master recognised, In Re Rowell was distinguishable from the present case. Those differences, however, are such as to make the result in In Re Rowell rather less clear than in the present case. In that case, it appears, the testator had never actually occupied the house in question. In the present case, Ms Keddie (and Ms Davies) had occupied the Kilpa Court property for many years.
2. Of greater potential relevance in the present case is the decision of the Supreme Court of Queensland in Re Willis.[11] In that case Derrington J was required to construe a gift of '...the house property in which I shall be residing at the time of my decease'. The deceased in that case had, for many years prior to her death, been permanently living in a hospital and, later, nursing homes.
3. Derrington J commenced his analysis by identifying the relevant issue in the following terms: [12]

The resolution of the matter turns on the construction of the phrase, 'shall be residing'. Manifestly, for many years prior to her death she could not and did not use the house for personal occupation of it or even for entry into it, that is, for residence in it in the more technical use of the term.

The meaning of a term will vary according to its context and may draw colour from the factual circumstances both existing and reasonably anticipated. An expression in a will referring to residence must be subject to a variety of factors that may distinguish its connotation from that which would be understood when the same term is used in, for example, a revenue statute.

1. Critically, his Honour observed: [13]

It is a matter of general experience that some people suffer total incapacity in institutions away from their normal home for a long period immediately prior to death and the concept of their residence must be sufficiently flexible to accommodate this.

In such cases an expression in a will referring to the house in which the testator is residing at the time of death clearly could not be construed as applying only to a house in which there was continuing active daily occupation as a residence. A person of ordinary understanding and knowledge of the factual context would understand that, used in such circumstances in a will, the testator meant the words to carry more than the narrow meaning of the house of which he was or would be in physical occupation.

1. Derrington J concluded, with specific reference to the meaning to be given to the bequest: [14]

It follows that the concept connoted by the word 'residing' should if possible be given such breadth as to accommodate what would seem from all the available material to coincide with the wishes and intent of the testatrix. It is not significant that if this is not done the gift would fail because of circumstances outside the control of the testatrix which did not exist at the time when she had her last testamentary capacity.

If these principles are applied there is no insult to the expression used by the testatrix to read it as meaning 'The house which I shall keep and maintain as my residence though I cannot physically be there'.

1. The reasoning of Derrington J applies with even greater force in the present case. It might have been thought, for example, that the verb 'residing' (in Re Willis) would be more likely to require physical presence, than (as in this case) the noun 'residence'. Moreover, the period of physical absence in Re Willis was 13 years. Nevertheless, as his Honour found, an ordinary person, having regard to the ordinary circumstances of life, would not give the words of the Will a narrow or constricted meaning so as to require physical presence.
2. Finally, a similar result ensued in In Re Hood.[15] In that case Hollingworth J was concerned with a bequest of 'my principal place of residence at the date of my death' and its application to a property owned by the deceased at the time of her death (the Duncans Road property).[16]
3. The deceased had purchased and moved into the Duncans Road property in November 1996 and lived there until April 1997 (some five months). After that time, the deceased lived briefly with her grandson and then moved to an aged care hostel, where she continued to live until her death in May 2001.
4. Hollingworth J concluded that the Duncan Road property fell within the terms of the bequest of the deceased's 'principal place of residence at [her] death'.
5. In approaching the issue of construction, her Honour observed:[17]

Factors that may be relevant in the interpretation of revenue legislation may be less relevant in the context of interpretation of a will. Obviously, death often occurs at times when a person is seriously ill or incapacitated. At such a time, they may be in hospital or some other form of care. They may have been absent from their principal place of residence and in such care for a short or long time prior to their death. They may have lost full mental capacity at some time prior to their death. It would be undesirable if a testator's otherwise clearly expressed testamentary intention could be thwarted by the mere fact of hospitalisation or relocation from their customary abode prior to death.

1. Her Honour also repeated, and agreed with, the observations of Derrington J in Re Willis set out at [53]-[[[18]](2019_107.html#_Ref I don't intend to spend time talking to you about hearsay and opinion and the like, Master. I have every confidence that you're more than capable of dealing with that without my assistance.

1. It is perhaps not surprising, then, that the learned Master did not, as ground 1 alleges that he should have, rule on each of the objections in the Schedule. As it was, the matters from the affidavit material referred to by the learned Master in his reasons were not clearly inadmissible. The fact that Ms Keddie made arrangements to find a new home for her dog is not, for example, obviously hearsay. People have been known to witness such things.
2. Be that as it may, it should be clearly stated that the practice adopted in relation to the 'objections' in the present case is one that is to be discouraged.
3. It is the responsibility of the parties (in the first instance) to ensure that only admissible evidence is placed before the Court. If evidence is sought to be led that is inadmissible, and another party wishes to object to it, then the objection should be taken when the evidence tendered (or in the case of an affidavit, read) and a ruling sought. If this is not done, the evidence is, generally speaking, subject to weight, properly before the court.
4. Whatever might be the utility of a document such as the Schedule in giving notice of a proposed objection, simply filing it cannot be taken (without more) as a properly formulated objection to the reception of evidence, which the court is then required to sift in search of material that may be objectionable. On the contrary, if the objection is not properly taken, it should generally be taken to be withdrawn. To reiterate, it is the responsibility of the parties to determine what objections are appropriate to take and if so, to take them. It is not a matter to be delegated to the court.[22]
5. None of these remarks should be taken as a particular criticism of those acting for the appellants in the proceedings before the learned Master in the present case. It has become, after all, something of a Western Australian 'house style'. Nevertheless, it is not helpful.

1. For the foregoing reasons:
   1. The appeal should be allowed; and
   2. Order 1 of the orders made by Master Sanderson on 29 August 2018 should be set aside and in its place an order that:

'The questions raised in the Originating Summons dated 22 November 2017 be answered as follows:

(a) Whether the expression "I give... my principal place of residence at my death to my friend Diana Elaine Davies" in clause 2 of the Will of the late Laurette Dorothy Keddie effects a valid gift of any property to the beneficiaries of the estate of the late Diana Elaine Davies.

(b) If the answer to question (a) is yes, what is the subject matter of that gift?

Answer: The property commonly known as Unit 2, 1 Kilpa Court, City Beach, Western Australia.'

1. The appellants sought, if the appeal were successful, to have the costs of the appeal paid out of Ms Keddie's estate.[23] That was not disputed by the respondent, and the court would also make that order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Quinlan

[1] Perrin v Morgan [1943] AC 399, 406.

[2] Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998) 7.

[3] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 537 (Dawson J).

[4] Re Willis [1996] 2 Qd R 664, 666-667 (Derrington J).

[5] Brennan v Permanent Trustee Company of New South Wales [1945] HCA 17; (1945) 73 CLR 404, 414 (Dixon J).

[6] Re Willis [1996] 2 Qd R 664, 667 (Derrington J).

[7] In Re Rowell (1982) 31 SASR 361, 362 (Wells J).

[8] In Re Rowell (1982) 31 SASR 361, 369 (Wells J).

[9] In Re Rowell (1982) 31 SASR 361, 369 (Wells J).

[10] In Re Rowell (1982) 31 SASR 361, 370 (Wells J).

[11] Re Willis [1996] 2 Qd R 664.

[12] Re Willis [1996] 2 Qd R 664, 666 (Derrington J).

[13] Re Willis [1996] 2 Qd R 664, 667 (Derrington J).

[14] Re Willis [1996] 2 Qd R 664, 668 (Derrington J).

[15] In Re Hood [2004] VSC 328.

[16] In Re Hood [2004] VSC 328 [3], [6].

[17] In Re Hood [2004] VSC 328 [39] (Hollingworth J).

[18] In Re Hood [2004] VSC 328 [48] (Hollingworth J).

[19] See the passage reproduced at [20] above.

[22] Although the court, in dealing with objections, might, in appropriate circumstances, receive the evidence provisionally and rule on it in the course of the court's reasons for judgment.