Williams v Milone

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3999/03 - WILLIAMS v MILONE; ESTATE OF THOMAS BRINDLE JUDGMENT 1 HIS HONOUR: Thomas Brindle died on 12 November 2001, having first made and published his last will and testament on 18 March 1988. Letters of administration, with the will annexed, were in due course granted to the plaintiff on 3 February 2003. 2 The will contains eight clauses. Clause 3 is a devise of property at Lawson to the testator's children, Linda and Sharon, in equal shares as tenants in common. That mortgage was disposed of and a codicil of 5 January 1989 substituted a property at Lethbridge Park. That gift was also adeemed because that property was absorbed in the testator's divorce settlement. 3 Clause 4 gave the residue of the estate to the person described as "my wife Alison". The testator and Alison subsequently were divorced, which brings into play section 15A of the Wills Probate and Administration Act 1898, which virtually means that one must treat that wife as if she predeceased the testator. 4 Clause 5 provides that if there is a gift to a child and the child dies, then the issue shall take, but there is nothing on which that clause can operate. 5 Clause 6 deals with power of advancement and clause 7 gives powers to sell or postpone sale. 6 Clause 8 then reads as follows: "8. SHOULD I die my wife having predeceased me or having died simultaneously with me or not having survived for the period aforesaid and there being none of my direct issue (children or grandchildren) surviving at the date of my death then I DIRECT my Trustees as follows: (i) To pay the whole of the balance of my Estate both real and personal of whatever kind and wheresoever situate after payment thereout of all my just debts, funeral and testamentary expenses including all duties both State and Federal payable upon my Estate equally as to one-half share thereof to my two daughters LINDA CHRISTINE WILLIAMS and SHARON BRINDLE in equal shares as tenants in common and as to the other one-half share of such residuary Estate to DIANA ALISON YEATES, BRUCE WILLIAM NOEL TOWNHILL and ROSS BRIAN TOWNHILL or the survivor of them in equal shares as tenants in common." 7 Although there was a clause 8(i), there was no clause 8(ii). 8 Ms Yeates and the Messrs Townhill were children of the deceased's second wife, he having been married three times and, it would seem, at the time of his death he had a de facto wife. 9 The problem thrown up is that the introductory words of clause 8(i) show the clause only applies if there is no direct issue surviving at the date of the testator's death, yet the benefaction is to the two daughters who, by definition, are direct issue. 10 There are three possible solutions to this problem:

1. That which is favoured by counsel for the plaintiff, that one inserts or implies into the will the following additional clause: " SHOULD I die my wife having predeceased me or having died simultaneously with me or not having survived for the period aforesaid then I DIRECT my Trustee to pay the whole of the balance of my Estate both real and personal of whatsoever kind and wheresoever situate after payment thereout of all my just debts, funeral and testamentary expenses including all duties both State and Federal payable upon my Estate to my two daughters LINDA CHRISTINE WILLIAMS and SHARON BRINDLE in equal shares as tenants in common." 11 The second possibility is that one omits or disregards as nonsense the words "and there being none of my direct issue ... surviving at the date of my death". 12 The third possibility is that the court is powerless to do either 1 or 2, so that there is an intestacy. 13 The case has been argued before me in a rather surface fashion and it has been necessary for me to do a considerable amount of work myself over the last hour. 14 The daughters are in one interest; the stepchildren in another interest, and on an intestacy it would seem (though there is some part of the estate constituting real estate situated in Queensland) that the major beneficiary would be the de facto wife. 15 The books are full of principles which have some bearing on the case, but the real difficulty is to apply them to the words of this particular will. 16 First, of course, the court leans against intestacy, if any other solution can reasonably be found. Secondly, the court only supplies words (other than in a rectification suit) where it is clear that words have been inadvertently omitted, and it is clear just what sort of words (though not necessarily the exact words) should be inserted; see for instance Butlin v Butlin (1965) 113 CLR 353. 17 In Hope v Potter (1857) 3 K & J 206, 209; 69 ER 1083, 1084 Page Wood VC noted that there were two particular situations where words could be supplied. First, where there would otherwise be an intestacy and the Court can clearly and precisely see what words should be inserted (the obvious case is where the drafter had been clearly following some sort of precedent, and one could see by looking at the precedent where there had been an omission; see eg Phillips v Rail (1906) 54 WR 517), and secondly, where there had been a series of limitations and an obvious gap. 18 The cases where words can be inserted go beyond that but, as the High Court made clear in Butlin, and, indeed, as it has been the rule for a long period of time, words can only be inserted if the court has complete conviction that they have been omitted; see for instance Towns v Wentworth [1858] XI Moore 526; 14 ER 794 (PC). 19 In the 11th edition of Theobald on Wills at page 642 the learned editor JHC Morris said: "With regard to supplying words in a will, the rule seems to be that where the will as it stands is clearly inconsistent, so that the choice lies between rejecting some portion of it or supplying some words, whilst at the same time the latter course will make the will consistent, the court will be justified in making the necessary addition." 20 Hope v Potter, Phillips v Rail and an Irish case are quoted as authority for that proposition which was adopted by Friedman J in British Columbia in Re Le Blanc (1955) 16 WWR 389 at 392. However, that proposition, which has been omitted from the current edition of Theobald, with great respect, seems to be in error. Certainly the authorities cited do not support it. 21 I do not see any reason why, where one has to elect amongst an intestacy, supplying words, or omitting words, one should necessarily opt for the supplying of words. However, the point concerned me for a while, and that is one of the reasons I have been a little delayed in delivering these reasons. 22 Similar principles apply when the court is asked to omit words because, as a general rule, a person construing a will must give semantic significance to each and every word of the will. Again, it is a matter that words should not be omitted or given no significance unless it is clear that that must be the result. 23 However, one of the exceptions to that principle is where words constitute a clear nonsense in something which is otherwise logical: see Boon v Cornforth (1751) 2 Ves Sen 277, 279; 28 ER 179, 181, a decision of Lord Nottingham; see also Smith v Pybus (1804) 9 Ves 566, 576; 32 ER 722 at 726. 24 The exercise that the court must perform is to try and find the true intention of the testator principally from the words he has used, in the factual matrix in which he has used them, and if one finds the intention of the testator then one can discard words or modify them in such a way as to carry out the testator's intention: Smidmore v Smidmore (1905) 3 CLR 344. The exercise must be done with reason and commonsense: Re Macartney's Will (1930) 25 Tas LR 139, 140. 25 Mr Willmott SC for the de facto widow has submitted that this is a situation where, to use the words of Lord Eversheder in Re Follett [1955] 1 WLR 429, 434: "I do not myself think that cases are of much assistance, except to express or enshrine a principle." 26 The cases here show that the principle is fairly plain, but I have had assistance from them to see the way in which other judges have approached this sort of problem. 27 There are oddities about clause 8(i), though not the least of which is that there is no clause 8(ii), or following. There is, however, the reference to the three stepchildren. It would have been quite easy for the testator to have modified clause 3, or, alternatively, to have made no reference to the stepchildren, unless there was no issue. 28 It is a nonsense to name both children and stepchildren as beneficiaries in clause 8(i) if the paragraph were only to apply if there were no children. It seems to me that tending against intestacy, as one needs to, unless there is no other avenue open, that to read out as meaningless or a nonsense the words "there being none of my direct issue" is the way in which one gives effect to the testator's intention. 29 Accordingly, in my view, there should be a declaration in terms of order 1(b) of the summons, and I will order that the costs in these proceedings be part of the costs in the allied Family Provision Act proceedings 1097/02 save that costs of the third and fifth defendants as on the submitting appearance basis, but to include costs of the affidavits of D Yeates, be paid out of the estate.

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