Day v Perpetual Trustee Co Ltd [1999] NSWSC 149

New South Wales Supreme Court CITATION : Day v Perpetual Trustee Co Ltd [1999] NSWSC 149 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4106/98 HEARING DATE(S) : 22/02/99 JUDGMENT DATE : 22 February 1999

PARTIES : Lucie Jane Day by her tutor Jill Anne Day (Plaintiff) Perpetual Trustee Company Limited as Executor of the Estate of Valmai Grafton Marshall deceased (Defendant) JUDGMENT OF : Young J

COUNSEL : Plaintiff: J E Thomson Defendant: W Haffenden SOLICITORS : Plaintiff: P A Keith Defendant: Cutler Hughes & Harris CATCHWORDS : Succession [152]; Extrinsic evidence; To identify beneficiary; "Grandchildren"; Equivocation; Evidence admissible; Succession [183]; Gift to grandchildren; Prior reference to "only child"; In fact testatrix had three children DECISION : See paras 30 and 31

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

MONDAY 22 FEBRUARY 1999

4106/98 - LUCIE JANE DAY by her tutor JILL ANNE DAY V PERPETUAL TRUSTEE COMPANY LIMITED as Executor of the Estate of Valmai Grafton Marshall deceased

JUDGMENT 1 HIS HONOUR : These proceedings are to construe the will of the late Valmai Marshall, who died on 5 January 1998. 2 Mrs Marshall made her last will and testament on 4 May 1990. 3 Clauses 3, 4 and 5 of the will are as follows: "3. I GIVE all my furniture, pictures, prints, musical instruments, television receivers, video recorders, radio receivers, electrical appliances, furnishings, jewellery, clothing, ornaments, china, glass, books and other household effects to my only child, my daughter JILL ANNE DAY provided that she shall survive me by more than thirty (30) days. 4. I GIVE DEVISE AND BEQUEATH the residue of my real and personal estate whatsoever wheresoever unto my Trustee UPON TRUST to pay thereout all my debts funeral and testamentary expenses and all duties and taxes payable in consequence of my death and I direct my Trustee TO HOLD the residue thereof (herein called my "residuary estate") upon the following trusts: A. TO PAY the income arising from three-fifths of my residuary estate to my said daughter JILL ANNE DAY during her lifetime and TO HOLD the capital comprising the said three-fifths of my residuary estate, subject to the said life interest of my said daughter UPON TRUST for such of my grandchildren as shall survive me and attain the age of twenty one (21) years if more than one in equal shares absolutely. B. To hold two-fifths of my residuary estate UPON TRUST for such of my grandchildren as shall survive me and attain the age of twenty one (21) years, if more than one, in equal shares absolutely. C. If no grandchild or grandchildren of mine shall survive me and attain the age of twenty one (21) years my Trustee shall hold the whole of my residuary estate UPON TRUST for my said daughter JILL ANNE DAY absolutely provided she shall have survived me by more than thirty (30) days and be living at the date of death of my last surviving grandchild. 5. IF neither my said daughter nor any grandchild of mine shall attain a vested interest in my estate my Trustee shall hold any residuary estate UPON TRUST for my great-grandchildren (if any) in equal shares and if I have no great-grandchildren my Trustee shall hold my residuary estate UPON TRUST for the Cancer Research Foundation for research into the causes, treatment and cure of cancer in humans. " 4 Mrs Marshall had been twice married, the first time, it would appear, to a Mr Williams, and there were two children of that marriage, Pamela and Judith. She then married Mr Marshall and there was one child of that union, Jill Anne Day. 5 The will was made by a well-known and experienced Sydney solicitor. 6 The plaintiff is the only child of Jill Anne Day and is now aged seventeen. She says that on the true construction of the will she is the only person to take under clauses 4A and 4B. The executor put before the Court arguments to show that all the grandchildren of the deceased, of whom there are seven, take the gift given to the "grandchildren". 7 The first matter that I had to decide during the running of the case was whether to admit extrinsic evidence. The extrinsic evidence was to the effect that the solicitor who made the will was only aware of one child. He did not know the testatrix had been previously married. He does not have any papers that will assist, but he said he could not understand why the will in clause 3 uses the words "my only child". In any event he certainly drew the will on the basis that that was the only advice that the testatrix gave him. 8 The second piece of evidence was that the testatrix, shortly before she died, arranged for a new will to be made, in which she was to leave all her property to Jill Anne Day and the present plaintiff. Although a draft was prepared, the testatrix died before she could sign it. 9 The rules as to the admissibility of extrinsic evidence in cases of this sort are quite clear, though there is sometimes difficulty in applying them to given facts. The rules are: 1. If there is only one person who exactly answers the description in the will, no extrinsic evidence is admitted. (An example is National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207). 2. If no-one exactly answers the description, evidence of surrounding circumstances will be admissible, but not direct declarations of intention (eg Bernasconi v Atkinson (1853) 10 Hare 345; 68 ER 959). 3. If two or more people exactly answer the description, there is an equivocation and extrinsic evidence including direct declarations of intention are receivable (eg Doe d Morgan v Morgan (1832) 1 Cr & M 235; 149 ER 387, where the testator left property to his nephew Morgan Morgan, but had two nephews of that name. See also as to equivocations Charter v Charter (1874) LR 7 HL 364 and Re Newman [1967] VR 201). 10 Mr Haffenden, for the executor, says that the extrinsic evidence is not admissible. First of all, he says there is no ambiguity in the word "grandchild" and, if there is no ambiguity, no extrinsic evidence is admitted. 11 However, when one sees the words "only child" used in clause 3 and then a reference to "said daughter" in clause 4A followed immediately by a gift to grandchildren, one suspects that the word "grandchildren" may mean issue of that daughter. Accordingly, I thought there was sufficient ambiguity to merit considering extrinsic evidence. 12 The next question is, what sort of extrinsic evidence? 13 Mr Haffenden submitted that if one finds there is an ambiguity, one can let in what he calls "armchair" evidence, that is, the facts and circumstances that were known to the testatrix as she sat in her armchair making out the instructions for her will. 14 Mr Thomson, for the plaintiff, says that the matter goes further, that there is really an equivocation. He submits that the word "grandchild" which, in itself, is unambiguous, in the peculiar circumstances of this will could equally apply to two or more persons; cf Re Hubbuck [1905] P 129. 15 Mr Haffenden says this cannot be a case of equivocation because Theobald on Wills 14th ed (Stevens & Sons, London, 1982) p 215 rightly says that there are three requirements for an equivocation to exist one of which is that: "The will, when construed as a whole with the aid of any extrinsic evidence admissible under the armchair principle, does not show to which of the persons or things the testator was referring." He says the will did not get to that state. 16 I think it probably does, because one does not know, just sitting in the testatrix's armchair, whether she meant the children of Jill Anne Day or the children of all her children, even after one looks at the extrinsic evidence admitted under the armchair principle. 17 I thus admitted the evidence in the affidavits which are the subject of genuine objection to the evidence by Mr Haffenden and the particular objections which he made in the document MIO1 and which have been left with the papers. 18 It seems to me that, even with that evidence, there is not sufficient here to enable the plaintiff to succeed. 19 Normally the word "grandchild" means all the children of a testatrix's children. 20 Secondly, one can see that the testatrix did have in mind that she may be benefiting grandchildren that were yet to be born and by definition, at the time she made her will, of whom she did not know. 21 Mr Thomson refers to Harris v Ashdown (1985) 3 NSWLR 193. I thank him for the reference, but I do not think it takes the matter very much further. 22 I see nothing in the scheme of the will which is of assistance. Indeed, it is a strange will because there does not appear to be any rhyme nor reason for splitting the estate into a 60 per cent share and a 40 per cent share under clauses 4A and 4B. 23 I thought for a while that perhaps the plaintiff took under clause 4A but not 4B. But it would be almost impossible to say that the word "grandchildren" was used in a different sense in the two parts of clause 4. 24 One can see how under clause 4A it would be natural for the grandchildren who descended from Jill Anne Day to take after their mother's death, but there is no such case applicable to clause 4B. 25 Really, the only argument of strength is that the testatrix was proceeding on the basis that, insofar as she was concerned, she only had one child and that was Jill Anne Day. 26 Then when one passes to clause 4A the testatrix refers to "that child" and so on the basis that she only has one child the descendants of that child must be her grandchildren. 27 However, there are other possible scenarios. It is clear that the testatrix did not think in 1990 that her only child was a person to whom she should give the whole of her estate. It would seem that there were some difficulties in that relationship. She, accordingly, thought, as a lot of testators tend to think, that if they have problems with their relationships with their children somehow or other their grandchildren will be better. That sort of thought fits in equally with the possibility that the descendants of all her children were to be the subject of her benefaction as the thought that only those descendants of her named child should take. 28 One must add to the general circumstances of the width of the word "grandchild" the consideration that if it was intended that Jill Anne Day would take 60 per cent of the estate for life and the descendants of Jill Anne Day would take the residue, so much now and so much on the death of the mother, surely the testatrix would just have said so instead of expressing herself in such a convoluted way. 29 Thus, in my view the persons who take the residue are all the grandchildren of the testatrix. 30 Accordingly, the Court declares that upon the true construction of the last will and testament of Valmai Marshall and in the circumstances that have happened, the references to "grandchildren" in clause 4 mean Lucie Jane Day, Peter Anthony Maguire, Suzanne Pamela Lockyer, Judy Anne Kenny, Joanne McLennan, Kristina O'Connor and Scott Andrew McLennan. 31 I order that the costs of the plaintiff and the costs of the defendant in each case on the indemnity basis be paid out of the estate.