Estate of Jack Alexander Warren [2001] NSWSC 104

New South Wales Supreme Court

CITATION : Estate of Jack Alexander Warren [2001] NSWSC 104 CURRENT JURISDICTION: Equity Division (Probate) FILE NUMBER(S) : SC 105676/00 HEARING DATE(S) : 23 February 2001 JUDGMENT DATE : 23 February 2001

Estate of Jack Alexander Warren PARTIES : Norman Keith Warren and Keith Thompson (Plaintiffs) JUDGMENT OF : Davies AJ at 1

COUNSEL : P: Mr M Gorrick SOLICITORS : P: Peter Blackwell & Associates CATCHWORDS : Wills - whether residuary bequest includes step-children - meaning of the term "children". Hill v Crook (1873) LR 6 HL 265 Harris v Ashdown (1985) 3 NSWLR 193 CASES CITED : In Re Davidson, Deceased [1949] 1 Ch 670 In The Will of Ahchay (1997) 6 TasR 369 Jarman On Wills, 8th Edition DECISION : See paragraphs 14-16.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION (PROBATE)

DAVIES AJ

FRIDAY, 23 FEBRUARY 2001 105676/00 - THE ESTATE OF JACK ALEXANDER WARREN

NORMAN KEITH WARREN and KEITH THOMPSON JUDGMENT 1 HIS HONOUR: The plaintiffs, who are the executors of the estate of the late Jack Alexander Warren, seek in their summons, inter alia, a declaration that the residuary bequest made in the deceased's will executed 17 November 1977 to his "children" included his two step-children, George John Warren and Norman Keith Warren. 2 The deceased married Iris Ruby Griffith on 23 September 1946. Mrs Warren already had two children, George, born 14 November 1936, and Norman, born 12 April 1940. She had not been married prior to her marriage to the deceased. The father of the two boys was not named in the Register of Births. After the marriage, George and Norman went to live with their mother and the deceased and took the name "Warren". Subsequently, a further five children were born of the marriage. 3 In Hill v Crook (1873) LR 6 HL 265 at 282-283, Lord Cairns said that the term "children" in a will, prima facie, meant "legitimate children", but there were two exceptions. His Lordship said:- "But there are two classes of cases in which that prima facie interpretation is departed from. One class of cases is where it is impossible from the circumstances of the parties that any legitimate children could take under the bequest." 4 His Lordship went on to say:- "The other class of cases is of this kind. Where there is upon the face of the will itself, and upon a just and proper construction and interpretation of the words used in it, an expression of the intention of the testator to use the term 'children' not merely according to its prima facie meaning of legitimate children, but according to a meaning which will apply to, and which will include, illegitimate children." 5 However, it is to be kept in mind that the denotation of the word "children" has altered somewhat over the last century as familial relationships and social attitudes have altered. In Harris v Ashdown (1985) 3 NSWLR 193 at 199-200, Kirby P referred to some of the changes which have occurred both in community attitudes and in legislation. At p 200, his Honour said:- "… in my view it is no longer safe to approach the construction of words such as 'child' and 'children' from the starting point of Lord Cairns' dictum. Nowadays, it would be much safer to include in the expression 'child', as used in a will, legitimate and ex-nuptial, adopted and step-children, unless, from the language of the will itself, or from admissible surrounding circumstances, it is shown that a narrower meaning was intended by the testator. Such an approach acknowledges at once the changing nature of personal obligations in today's society and the demise of earlier prejudices against illegitimacy which help to explain the starting point taken by Lord Cairns and, consequently, those who have since followed his dictum. That starting point may well have been appropriate in the social circumstances in which wills were written in 1873. It is scarcely appropriate in modern Australia." 6 Notwithstanding his Honour's words, which were not adopted by his colleagues, Priestley JA who dissented on this point and McHugh JA, I consider that, in a will, the word "children" should ordinarily be read as referring to natural children for that is its primary meaning, but that other persons should be included within the term when legislation so requires or when the terms of the will or evidence show that there is reason for doing so. Thus, in Jarman On Wills, Eighth Edition, at p 1659, it is said:- "But a gift to 'children' may take effect in favour of step-children, if circumstances show that that was the testator's intention. Thus in Re Jeans 72 LT 835, a testator had been married for thirteen years and had no children of his own; he and his wife were each about sixty years old when he made a will in favour of his 'children': it was held that his step-children, whom he had treated as his own children, were entitled under the gift." 7 It is, therefore, necessary to look both at the will itself and at the circumstances to the date of the testator's death which were known to the testator in order to ascertain whom the description was intended to benefit. 8 With respect to Norman Warren, there is little doubt that he was intended to benefit by the bequest. Norman was brought up as one of the deceased's children. It was not until he turned 21 that he was informed that the deceased was not his natural father. He was fully a part of the family unit. In his will, the deceased described Norman as "my son" and he appointed him and Keith Thompson, a son-in-law, as executors and trustees of his will. 9 In the case of In Re Davidson, Deceased [1949] 1 Ch 670, the issue was whether the children of John Foster Davidson could take under a bequest to "grandchildren". John Foster Davidson had been a step-son of the deceased. In the will, he was described as "my son" and one of his daughters was described as "my granddaughter". It was held by Roxburgh J that the terminology of the will and the facts were such that the bequest should be read as including the children of John Foster Davidson. 10 The position with respect to George is, however, different. Although he initially went to live with the deceased and his mother, he left home after about two years, at the age of 12 or 13. He did not thereafter form a member of the family unit. So far as the children, including Norman, can recall, George did not have further contact with the family until 1957, in which year he married. Some time after the marriage, George and his wife stayed in the family home at Mortdale for a period which is said to have been three or four weeks. It appears that George and his wife left after George had an argument with the deceased. George had no contact with the family thereafter. Attempts to trace him have failed. 11 When George was married on 27 April 1957, he did so under the name, George John Griffith. Subsequently, on 24 June 1957, the Register was noted to say, "In column 3 for 'George John Griffith' read 'GEORGE JOHN GRIFFITH known as WARREN' ". That note was signed by George, whose address was stated to be 131 Morts Road, Mortdale, the address of the deceased's home. The address previously recorded on the Register was 2 Clovelly Road, Randwick. Accordingly, it seems likely that, prior to his marriage, George was using the surname "Griffith", but, whilst living in the deceased's home at Mortdale shortly after the marriage, he decided to adopt, again, the surname "Warren". It may well be that, after quarrelling with the deceased and leaving his home in the middle of 1957, George reverted to the surname "Griffith". 12 There is nothing in these background circumstances which shows reason why the word "children" in the 1977 will should be read as including George. Apart from the period of three or four weeks spent at Mortdale in 1957, George was not a part of the family after he left the home in about 1948 or 1949. Nor does the description in the will of Norman as "my son" carry the implication that Norman's brother was so regarded. In and after 1977, George was not a part of the deceased's family unit. 13 A reading of the word "children" to include one step-child does not necessarily require an inclusion of all step-children. The matter must be determined having regard to the facts of the case. In In The Will of Ahchay (1997) 6 TasR 369, where the facts were that only three out of seven of the deceased's step-children had gone to live with the deceased and been brought up as if they were his children, Slicer J limited a residuary bequest expressed favour of "my children" to the three step-children who had become part of the family unit. 14 For these reasons, I shall declare that, upon a construction of the last will and testament of Jack Alexander Warren deceased and in the events which have happened, the bequest of the whole of the deceased's residuary estate to his children was intended by the testator to include and does include his step-child Norman Keith Warren, but not his step-child George John Griffith or Warren. 15 In this circumstance, it is not necessary to deal with the issue as to whether the estate may be distributed on the footing that George John Griffith or Warren predeceased the testator and died without issue. 16 I order that the costs of the proceedings be paid out of the estate. **********