Napper v Miller [2002] NSWSC 1122

New South Wales Supreme Court

CITATION : Napper v Miller [2002] NSWSC 1122 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4046/01 HEARING DATE(S) : 18/11/02 JUDGMENT DATE : 18 November 2002

Howard James Napper (P) PARTIES : Ian Colwell Miller (D1) Deborah Jean Napper (D2) JUDGMENT OF : Young CJ in Eq

COUNSEL : G Blake SC (P) 1st & 2nd Defendants submit SOLICITORS : Hancock Alldis (P) CATCHWORDS : PROCEDURE [90]- Representative orders- Infants- Duty of representative- Whether order may be made in respect of unborn children. SUCCESSION [168] [179]- Will- Construction- Gift to grandchildren who survive testatrix- Whether postnates take. WORDS & PHRASES- "Survive". Andrews v Partington (1791) 3 Browns Chancery Cases 402; 29 ER 610 Arndt [1990] WAR 5 Brennan v Permanent Trustee Co NSW Ltd (1945) 73 CLR 404 Knight v Knight (1912) 14 CLR 86 McGrath v Hughes (Bryson J, 24 July 1991) CASES CITED : Re Sparke (1907) 24 WN (NSW) 153 Re Staples [1916] 1 Ch 322 Re Whiting's Settlement [1905] 1 Ch 96 Read v Prest (1854) 1 K & J 183, 185; 69 ER 421 Wilson v Harris (1964) 65 SR (NSW) 329 Woodhill v Woodhill (1917) 17 SR (NSW) 647 DECISION : See paras 25-30

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Monday 18 November 2002

4046/01 –NAPPER v MILLER JUDGMENT 1 HIS HONOUR: The proceedings before the court are in a rather odd form. The suit involves the proper construction of the last will of the late Doreen Molly Napper, who made and published her last will on 21 December 1998 and who died on 16 February 2000. Probate of that will was granted to the plaintiff and the first defendant on 16 August 2000. 2 The plaintiff is one of the executors of the will and the father of the children affected by the result of the proceedings. The first defendant, a solicitor, is the other executor. The second defendant is the wife of the plaintiff and the mother of the children concerned. 3 The questions arising from the will were posed in this suit, which was commenced on 16 August 2001. 4 Another suit was commenced by the first defendant, suit 3133 of 2002, which was commenced on 13 June 2002, for judicial advice as to what attitude the defendant, who is a solicitor, should take to these proceedings. This is a rather singular procedure. However, the upshot was that a Master on 20 August 2002 advised the solicitor/executor that he would be justified in not defending the present proceedings, insofar as the plaintiff contended that cl 4(a) of the will extended to any of his children born after the death of the testatrix, but would be justified in arguing other questions. 5 By "hand up" short minutes, the Registrar put the original matter as regards paras 1, 2 and 3(a) of the summons, into the short notice list. 6 The original proceedings then came on before me today. In accordance with the Master's advice, the first defendant submitted. The second defendant, who is the mother of the children, consented to the question being answered "yes". The plaintiff then asked for order 2 in the summons, that is, that his wife represent the unborn children. 7 This creates considerable procedural problems. One is that the present suit also contains a second claim for construction of part of the will which, because of its difficult nature, people would prefer not to litigate, unless they have to do so. There is a claim for relief under the Family Provision Act. Without any order, these claims have effectively been postponed. 8 The second problem is that there are two people, infants, whose interests are vitally affected, namely Juliette Napper and her sister Isabelle, who, if the present question is answered "no", will receive quarter of a million dollars each, plus its increase in value in the next twenty-three years, but may have to share that with two or four other people if I answer question (a) in the way the plaintiff submits I should answer it. Yet these girls do not appear ever to have been properly represented. 9 Paper representation by their mother without any evidence that she has considered their interests separately from the interests of her other children is not good enough. 10 Equity is always tender to the rights of children. The strict rules are that the representative of children in proceedings such as these, is to do everything necessary to protect their interests and to urge every reasonable argument on their behalf, Read v Prest (1854) 1 K & J 183, 185; 69 ER 421, 422. 11 Furthermore, there is good authority for the view that the representation order sought in order 2 of the summons cannot be made whilst every member of the class remains unborn: Re Whiting's Settlement [1905] 1 Ch 96 but cf Woodhill v Woodhill (1917) 17 SR (NSW) 647. 12 The Master advised that there was no need for Mr Miller, the first defendant, to be represented on the current question. It would appear he did so for two reasons. First he must have been convinced by Mr Blake SC's opinion, which was attached to the statement of facts. I consider that there is an almost equally valid argument the other way, which has not been presented. Secondly, the Master was told in the statement of facts that the fund was only $160,000 and so considered costs should be minimised. However, there is sworn evidence before me that it is $500,000-$600,000. 13 Mr Blake SC and I have engaged in debate over the last hour or so and my present feeling is that his opinion is more likely to be correct than not. However, I am still concerned about the position of Juliette and Isabelle. I do not want this fund to bear even more costs. Thus I think that what needs to happen is that I will give some brief reasons now, which would then add Juliette and Isabelle as defendants, a direction should be made that this judgment and the papers should be handed to an independent solicitor and if the independent solicitor does not wish to argue the matter further, I will then make my interim judgment final. 14 I return then to the construction of the will. The will provides, so far as is relevant: "2. I APPOINT as my Executors and Trustees ... my son HOWARD JAMES NAPPER and IAN COLWELL MILLER or the survivor of them. 4. I GIVE the rest and residue of my estate of whatsoever kind to my Executors ... UPON TRUST : (a) as to an undivided one half share thereof for the child or children of my son Howard James Napper who shall survive me and attain the age of twenty five (25) years, and if more than one in equal shares as tenants in common; and (b) as to an undivided one half share thereof for the child or children of my daughter Naomi Elizabeth McGee-Collett who shall survive me and attain the age of twenty five (25) years, and if more than one in equal shares as tenants in common, PROVIDED HOWEVER that if there shall be no child or children who shall survive to attain a vested interest in respect of either or both shares then such share or shares as have failed shall be held by my Executors UPON TRUST in equal shares for (two named hospitals). 5. IF at the date of death or at such later date as there shall be a failure to vest in favour of either part for my grandchildren referred to in clause 4 ... ". 15 The background facts, which would have been known to the testatrix at the time when she made her will, is that her daughter had four children born in 1987, 1990, 1992 and 1995; her son had one child Juliette, born before the making of the will, who was born on 15 April 1998. A second child, Isabelle was born to the testatrix's son and his wife on 7 October 1999, and two other children are due to be born to them very shortly. 16 The problem is the word "survive" in cl 4. If the testatrix had wanted to give a bequest to her grandchildren generally she would not have included the phrase "who shall survive me" at all. She would simply have said "to my grandchildren who attain the age of twenty five years". 17 However, if she had applied the word "survive" in its ordinary sense of "outlive", that is a person who was living contemporaneously with the testatrix and also lived after her, then the postnates are excluded; see Knight v Knight (1912) 14 CLR 86. 18 The summons suggests that the beneficiaries include such children of the plaintiff born after the death of the testatrix who attain twenty five. 19 Mr Blake SC asks why should the testatrix want to exclude grandchildren that were born afterwards, she knew that she had a very small grandchild at the time when she made her will, and she must have known that the probabilities were that her son and daughter-in-law would produce further children? There is nothing in the facts to show that there was some special affection to Juliette, who at this stage was aged about three months, and even if there was such evidence it would not have married up with the words "for the child or children who attain twenty five". Therefore, one can put aside any special affection for living grandchildren and it, accordingly, makes it unlikely that the testatrix meant to exclude the postnates. 20 Mr Blake SC points to the fact that in previous cases of high authority that attitude has been taken, in particular the decision of the High Court of Australia in Brennan v Permanent Trustee Co NSW Ltd (1945) 73 CLR 404 and the decision of Bryson J in this Court of McGrath v Hughes 24 July 1991, unreported. 21 However, (1) previous decisions on the text of other wills are of little use on construction; and (2) there are also cases which go the other way on very similar facts, including the decision of the Court of Appeal in Wilson v Harris (1964) 65 SR (NSW) 329. See also the decision of R D Nicholson J in Arndt [1990] WAR 5, where the authorities to that date are discussed. 22 The argument against the construction for which Mr Blake SC contends is that it goes against the plain ordinary meaning of the word "survive". Furthermore, it deprives the words "who shall survive me" of any semantic significance at all. 23 However, in the present will that argument is diluted to an extent because of the fact that the drafter does not appear to be using the word "survive" in its recognised sense. One illustration is in the appointment of executors in cl 2, which, if literally construed, would cause the Probate Judge some problems. Another is the use of the word in the proviso to cl 4 "survive" to attain a vested interest, where "survive" just seems to mean "live". There are other illustrations in the will of imprecise use of language, such as the "failure to vest" provision in 5, which literally operates so that if something fails to vest in possession then the gift to all of the grandchildren, both of the son and daughter, fail. 24 The indication given by that use of language is that the drafter did not employ the word "survive" in its precise sense and that adds to the strength of the case put by Mr Blake SC. 25 Accordingly, although not without doubt, I presently am of the view that the construction put by Mr Blake SC is more likely to be the correct one. 26 There is also then the problem raised by the class closing rules stemming from the decision of Andrews v Partington (1791) 3 Browns Chancery Cases 402; 29 ER 610. These rules of construction developed about the same time as the modern rule against perpetuities was being put into its final form. 27 The better view seems to be that the class closing rules are independent of the modern rule against perpetuities and merely operated by happy chance to mollify their effect. Accordingly, the better view appears to be that notwithstanding the substantial modification of the law of perpetuities by the Perpetuities Act 1984, which inter alia removed the rule about possibilities and substituted a "wait and see" rule, the classs closing rules are still in force. 28 If they are, then the class will close when the first grandchild attains twenty five and any grandchild born thereafter will not take. 29 The way in which cl 4 of the will divides up the benefaction into two halves would seem to mean that one has to apply that class closing rule separately to each moiety of the estate. Accordingly, it would seem to me that either one has to modify the suggested answer in the summons with that proviso or, alternatively, needs to make it clear that it is open to anyone to argue for that proviso in due course. 30 I would prefer the first, as it is fairly important that all questions of doubt in the estate be laid to rest sooner, rather than later. I note that this view runs against the position taken last century in cases such as Re Staples [1916] 1 Ch 322 (and see also Re Sparke (1907) 24 WN (NSW) 153) where no determination was made of future rights of unborn. The 21st century man and woman want to know where they stand as early as possible and modern courts accommodate them. At this stage I will stand the matter