Supreme Court New South Wales Medium Neutral Citation: The Estate of William John Gilbert [2017] NSWSC 1138 Hearing dates: 4 July 2017 Date of orders: 23 August 2017 Decision date: 23 August 2017 Jurisdiction: Equity Before: Emmett AJA Decision: 1. Declare that, on the proper construction of the Will of the late William John Gilbert ("the deceased") dated 7 October 1988, the word "children" appearing in clause 5 thereof includes "step-children". 2. Order that the costs of the First Plaintiff, Pamela Webster, and the Second Plaintiff, Helen Anne Barnett, be paid from the Estate of the deceased on the indemnity basis. 3. Order that the Statement of Claim be otherwise dismissed. Catchwords: SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions Legislation Cited: Succession Act 2006 (NSW), Ch 3 Cases Cited: Estate of Warren [2001] NSWSC 104 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Harris v Ashdown (1985) 3 NSWLR 193 Langston v Langston (1834) 2 CL&F Re Estate of Wright [2016] NSWSC 1779 Category: Principal judgment Parties: Pamela Webster (As Executor of the Estate of the Late William John Gilbert) (First Plaintiff) Helen Anne Barnett (Second Plaintiff) Raymond Dunlop (As Executor of the Estate of the Late Janet Gilbert) (Defendant) Representation: Counsel: A Hill (Plaintiffs) No appearance (Defendant) Solicitors: Armstrongs Solicitors Pty Ltd (Plaintiffs) File Number(s): 2016/226482 EX TEMPORE Judgment 1. By statement of claim filed on 8 March 2017, the plaintiffs, Mrs Pamela Webster (Pamela) and Mrs Helen Barnett (Helen), sought an order that probate of a will of William Gilbert (the Testator) made on 7 October 1988 (the Will) be granted to Pamela, an order that the Probate Rules be dispensed with, and an order that the file be returned to the registrar to complete the grant. The statement of claim also sought a declaration as to the proper construction of the Will (the construction question). In the alternative, Pamela and Helen sought family provision orders under Ch 3 of the Succession Act 2006 (NSW) (the Succession Act). 2. The defendant is Mr Raymond Dunlop (Raymond), who is the executor of the will of Janet Gilbert (Janet). Janet, who was also known as Jean Gilbert, was the Testator's mother. Raymond is a great nephew of Janet. In 2009, Janet came to live with the Testator at his Buff Point home when she was aged 99 years. Pamela's husband used to take her on picnics, to the dentist and to the shops. On Janet's 100th birthday, she was given a big party to celebrate the occasion. Pamela arranged for letters of congratulation from Her Majesty, the Queen, and other dignitaries. By the time Janet turned 102, her eyesight was almost gone and by that time the Testator could no longer drive and used an electric scooter. Raymond and his wife then took Janet to live with them in their home at Yamba. However, shortly after that, Janet was admitted to a nursing home because she needed specialist care. Janet died on 31 August 2016, some weeks after the Testator. 3. By her will made on 6 November 2013, after appointing Raymond as executor, Janet gave the residue of her estate to Raymond. No application has been made for the grant of probate of Janet's will. In the event of intestacy on the part of the Testator, his property would have passed to Janet and, upon her death, to Raymond. The construction question will determine whether there was intestacy on the part of the Testator. 4. The statement of claim filed in these proceedings has been served on Raymond in accordance with orders made by the Court on 9 May 2017. Raymond has not appeared and has played no part in the proceedings. However, there is evidence that he was informed, through solicitors who were acting for him, of claims by Pamela and Helen to be entitled to the estate of the Testator. 5. When the matter was called on for hearing on 4 July 2017, I indicated to counsel for Pamela and Helen that I considered that, in the absence of a grant of probate of the Will, it was premature to embark on a hearing of the construction question and the application for family provision orders under the Succession Act. After hearing the affidavit evidence filed on behalf of Pamela and Helen, I adjourned the proceedings to enable Pamela to make an application for the grant of probate of the Will in common form. I also indicated that it would be desirable to have further evidence on several questions. The matter was adjourned part heard to today, 23 August 2017, for further directions. 6. Further affidavits were filed dealing with the evidentiary matters raised by me on 4 July 2017. On 22 August 2017, probate of the Will was granted to Pamela in common form. The probate and the further affidavits were formally noted and read today. On 27 July 2017, the solicitors acting for Pamela and Helen wrote to the solicitor who had been acting for Raymond. A reply by letter dated 31 July 2017 confirmed that Raymond's former solicitor holds no instructions from him and, in particular, has no instructions to apply for probate of Janet's will. On 1 August 2017, the solicitors acting for Pamela and Helen wrote directly to Mr Dunlop at his Yamba address, informing him that the matter was listed before the Court today. Raymond was asked whether he had a copy of Janet's will and whether her estate had been distributed. There has been no response to the letter of 1 August 2017. There was no appearance for Raymond when he was called today. Background 1. Pamela and Helen are the only children of Mrs Lucy Gilbert (Lucy). Lucy's first husband, who was the father of Pamela and Helen, died in 1948. Pamela and Helen were the Testator's step-children. The construction question is whether a reference in the Will to "my children" should be construed as a reference to Pamela and Helen. 2. The Testator was born in 1929. He died on 18 June 2016. In 1954, Lucy and the Testator began living together in a de facto relationship in a rented property at Ashbury, New South Wales and Pamela and Helen were part of their household. Subsequently, the Testator and Lucy purchased a house in Oyster Bay, New South Wales, where they went to live with Pamela and Helen as the family home. Pamela left the family home at Oyster Bay to marry in 1957 but continued a close relationship with the Testator and Lucy. Helen left the family home at Oyster Bay to marry in 1959. She also continued to have a close relationship with the Testator and Lucy. 3. In 1960, the Testator and Lucy sold the family home at Oyster Bay and purchased a shop and residence at Concord, New South Wales. Lucy and the Testator were married in July 1961. The Testator was not otherwise married and had no natural children of his own. The Testator and Lucy managed and operated the shop together until 1969. They lived in the residence. 4. In approximately 1969 or 1970, the Testator and Lucy built a home at Seven Hills. At that time, Pamela was also living at Seven Hills. In 1981, Pamela and her family moved to North Ryde. 5. In 1984, the Testator suffered a stroke and, as a result, became significantly disabled. Lucy took care of the Testator from that time. In January 1989, the Testator and Lucy moved to Buff Point, New South Wales. In 1990, Pamela also moved to Buff Point, within walking distance from where the Testator and Lucy lived. Pamela saw each of them on a daily basis. Lucy died in 1991. From the time of Lucy's death until the death of the Testator, Pamela and Helen took care of the Testator. 6. On 7 October 1988, each of the Testator and Lucy Gilbert made a will. Each appointed the other as executor and gave, devised and bequeathed his or her whole estate to the other absolutely. Each will contained a proviso in the event that the beneficiary predeceased the testator. The two wills were identical as to the disposition of the estate in that contingency. Thus, each appointed Pamela as executrix and gave, devised and bequeathed the whole of the estate to her upon trust to sell, call in, collect and convert into money. Each of the wills provided that Pamela was to stand possessed of the whole of the estate, subject to the payment thereout of funeral and testamentary expenses and debts, upon trust: … in equal shares as tenants-in-common for such of my children as shall survive me. 1. There is no evidence of the grant of probate of Lucy's will or as to the nature of Lucy's estate that passed to the Testator under her will. Further, there is no evidence from the witnesses of the Will. Each of the Will and Lucy's will was witnessed by Katharine Hall of Parramatta, described as "secretary", and John D Plowman of Parramatta, described as "solicitor". The clear inference is that the two virtually identical wills were prepared by Mr Plowman. Mr Plowman's evidence might have been of some relevance if he were available. The circumstances in which instructions were given may throw some light on the question of whether the Testator was intending to include Pamela and Helen in the phase "such of my children as shall survive me". However, attempts to locate the witnesses have been unsuccessful. 2. In approximately 2007, Helen and her husband moved to Kincumber, which is reasonably close to Buff Point. In 2015, the Testator ceased to be able to continue living at home and was admitted to the Aurrum Care Nursing Home at Wyoming, New South Wales, where he died on 18 June 2016. 3. Since Lucy predeceased the Testator, the Testator inherited the whole of Lucy's estate. For the same reason, the gift over in the Will became operative. The question of construction of the Will is whether the phase "such of my children as shall survive me" should be understood as referring to, Pamela and Helen, who were the step-children of the Testator, he having no natural children of his own. Construction of the Will 1. Where a will contains a residuary gift and shows an intention on the part of the testator to dispose of the whole of the testator's estate, but the residuary gift admits of two constructions, the Court will incline to construe the words in a sense that will enable them to operate as a complete disposition. On the other hand, such a presumption against intestacy will not always be enough to satisfy the Court that intestacy is not intended. In order to oust those entitled on intestacy, it must be shown distinctly that the words in the will are sufficient to constitute a gift of the property in question, expressly or by implication, to some beneficiary. [1] 2. Where there are two ways of reading an instrument, including a will, the Court should lean towards a construction that preserves, rather than a construction that destroys: ut res magis valeat quam pereat. Where a question arises as to whether an instrument, such as a will, should be construed literally or in the way in which there is every reason to believe that the maker of the will intended it to be construed, the latter is to be preferred. [2] A testator must be taken to have meant that the words used in the will should have some effect as they stand. [3] 3. In particular, in construing a will, the Court seeks to ascertain the intention of the testator, as stated in the will. It is often necessary for the Court to have regard to facts that are extrinsic to the will and proved as the background matrix of surrounding circumstances against which a testator may be presumed to have directed his mind in the preparation of the will. Such facts may be established for the elucidation of the language of the will on the basis that a testator is generally presumed to know the circumstances of his or her family and does not spell out the obvious in the will. [4] 4. A gift to "children" may take effect in favour of step-children if circumstances show that that was the testator's intention. As a general rule, the term "children", when used in a will, prima facie means legitimate, natural children of the testator. However, if in all the circumstances that must have been known to the testator, the use of the term "children" is nonsensical if limited to natural children, but makes perfect sense when construed as including step-children, it should be so construed. [5] Notwithstanding, the strict meaning of the term "children", the meaning of the term readily extends to step-children in an appropriate case. [6] 5. It is clear from the evidence that the Testator regarded Pamela and Helen as his own daughters. He referred to them regularly as "my girls" and "my daughters". He also referred to them as "our daughters" and "my two daughters, Pam and Helen". Both Pamela and Helen regularly referred to the Testator as "my father". It is also significant that the Testator and Lucy made essentially identical wills that were clearly intended to be reciprocal. It would be curious in the extreme if the term "children" were to be construed in Lucy's will in a manner different from the same term used in the virtually identical will made by the Testator at the same time. Clearly, the Testator knew that he had no natural children of his own. Having regard to his disability, it was clear when he made the Will that he would not have natural children of his own. The reference to "my children" makes no sense if it is to be construed as referring only to natural children. 6. I consider, on the basis of the evidence before me, that the clear intention of the reciprocal wills was that, upon the death of the survivor of Lucy and the Testator, Pamela and Helen would succeed to the estate of the survivor, which would represent the joint estates of Lucy and the Testator. The Testator intended that, if Lucy pre-deceased him, his estate should pass to Pamela and Helen, whom he regarded as his children. The words "my children" in the Will should be understood as referring to Pamela and Helen. Conclusion 1. The total value of the estate of the Testator is approximately $395,000, consisting of bank accounts and a bond held by Aurrum Nursing Home. Pamela and Helen are each entitled to a moiety of that estate. There should be declarations to that effect. In the circumstances, it is unnecessary to deal with the application under the Succession Act. Since probate of the Will has been granted in common form by a registrar, it is not necessary to deal with the prayers concerning the grant of probate. The proceedings should therefore be otherwise dismissed. Pamela's and Helen's costs of the proceedings should be paid out of the estate of the Testator on the indemnity basis. 2. Accordingly, I propose to: 1. Declare that, on the proper construction of the Will of the late William John Gilbert ("the deceased") dated 7 October 1988, the word "children" appearing in clause 5 thereof includes "step-children". 2. Order that the costs of the First Plaintiff, Pamela Webster, and the Second Plaintiff, Helen Anne Barnett, be paid from the Estate of the deceased on the indemnity basis. 3. Order that the Statement of Claim be otherwise dismissed. ********** Endnotes 1. See Fell v Fell (1922) 31 CLR 268 at 271; [1922] HCA 55. 2. Langston v Langston (1834) 2 CL&F at 243. 3. See Fell v Fell at 285. 4. See Harris v Ashdown (1985) 3 NSWLR 193 at 194. 5. See Re Estate of Wright [2016] NSWSC 1779 at [25] and the Estate of Warren [2001] NSWSC 104 at [6]. 6. See Re Estate of Wright at [28]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2017