Love v Williams

These proceedings are concerned with the last will and testament dated 19 February 2014 (the Will) of the late Harold Simmons (the Testator), who died on 4 July 2016. On 22 November 2016, probate of the Will was granted to the plaintiff, Mr Robert Love (the Executor). By further amended summons filed on 12 March 2019, the Executor seeks a determination of certain questions as to the construction of the Will. He also seeks orders for rectification of the Will under the Succession Act 2006 (NSW) (the Succession Act).

Before stating the questions, it is desirable to say something about the Testator’s family. The Testator had seven siblings, Margie, Dolly, Dennis, Betty, Patty, John and Shirley. Six of the Testator’s siblings had biological children of their own, some of whom were given up for adoption. One of the six siblings also adopted a child. The seventh sibling died without children. Five of the Testator’s siblings predeceased him. Set out in Appendix 1 are details of the testator’s siblings and their descendants as known at the time of the making of the Will.

The Testator’s sister, Betty, had at least six biological children of her own, two of whom, being Elizabeth and Lindy, were given up for adoption out of the Testator’s family. There is also evidence to suggest that a third biological child of Betty, Colleen, who is not listed in Appendix 1, was also given up for adoption out of the Testator’s family.

The Testator’s sister, Patricia, had two biological children. One of them, James Maddocks (James), was given up for adoption out of the Testator’s family. The other biological child, Wayne Smith (Wayne), remained in the Testator’s family at the Testator’s death. In addition, Patricia adopted a child, Gregory Smith (Gregory), who is not Patricia’s biological child or the biological child of any other sibling of the Testator. Gregory also remained in the Testator’s family at the Testator’s death.

The first defendant is Dennis Williams (Dennis), who is a biological child of the Testator’s sister, Margie. Dennis has been appointed to represent the class of persons who are biological descendants of a sibling of the Testator. The second defendant is James, who has been appointed to represent the class of persons who are biological descendants of a sibling of the Testator but who have been adopted out of the Testator’s family. The third defendant is Gregory, who has been appointed to represent the class of persons who are not biological descendants of a sibling of the Testator but who have been adopted by a sibling of the Testator or are descendants of a person adopted by a sibling of the Testator. I shall say something further about the classes below.

Shortly before the execution of the Will by the Testator, the Testator and the Executor provided instructions to a solicitor, Mr Benjamin Carroll (Mr Carroll), to prepare a will for the Testator. The Executor spoke to Mr Carroll by telephone in late January 2014 and a meeting was arranged between Mr Carroll and the Testator on 29 January 2014. On 28 January 2014, the Executor sent an email to Mr Carroll attaching a document that he described as “a draft will drawn up by [the Testator]”. The Executor said that he had grammatically corrected the document to make it easier to read (the Instruction Document). The Instruction Document was treated by Mr Carroll as instructions for the preparation of a will for the Testator.

The Instruction Document began as follows:

Mr Carroll took the Instruction Document with him when he saw the Testator on 29 January 2014 and made handwritten notations on the Instruction Document reflecting his understanding of the instructions given to him by the Testator in the course of their meeting (the Notes). The Instruction Document and the Notes have been admitted into evidence, without objection, on the basis that they establish facts known to the Testator at the time of making the Will that may have a bearing on the construction to be given to words and phrases used in the Will. They will also have relevance to the question of rectification of the Will.

Mr Carroll went through the Instruction Document with the Testator and made the Notes as he went. However, he does not recall many of the specific words spoken in the conversation. Mr Carroll first verified the details of the Testator’s assets, which was his standard practice when taking instructions for a will. He made notations against various assets described in the Instruction Document. Those notations are not presently relevant. Next, Mr Carroll went over the details of the Testator’s family, continuing to make notations as he went. In particular, he noted the ages of various members of the Testator’s family and recorded other details.

The Instruction Document stated that the Testator was a widower living alone, that his wife had died in April 1993 and that neither of them had had children. It stated that the Testator was the second youngest of eight siblings, that four of his siblings had died, and that most of his siblings had had children. The Instruction Document then set out the names of the eight children, in order of age. It is important to record the relevant terms of the Instruction Document in relation to each sibling and the notations made by Mr Carroll.

First mentioned was Margie as follows:

Next Dolly was mentioned as follows:

Third was Dennis, as follows:

Next was Betty as follows:

The fifth reference was to Patty as follows:

Next was John as follows:

The seventh sibling was the Testator. Mr Carroll made no notation against that reference.

Finally, Shirley was mentioned as follows:

After going through the part of the Instruction Document dealing with the family, Mr Carroll confirmed with the Testator the ages of his siblings. The Testator had some doubt about some of the ages. However, Mr Carroll considered that the Testator appeared to be “thoroughly across” all of the details that were discussed, other than the ages of some of his older siblings. Mr Carroll considered that the Testator displayed no other confusion or uncertainty.

After listing the testator’s seven siblings, the Instruction Document said as follows:

Further on, the Instruction Document provided as follows:

It is significant that the Testator said expressly that he wanted James (“Jim”) to be given the same benefits as Gregory (“Greg”) and Wayne and that the two daughters of Betty who had been adopted out were to be treated in the same way. Mr Carroll said that the lack of any notation in relation to those references indicates that the Testator confirmed that that was what he wanted.

There were other parts of the Instruction Document and other parts of the Notes. Those other parts do not have any present relevance and there is no need to refer to them.

The Will consisted of Part A and Part B. Part A of the Will, which consisted of cll 1 to 13, contained the specific dispositive provisions. Part B of the Will, which consisted of cll 16 to 20, contained administrative provisions.

Clause 2 of the Will contained the following definitions:

By cl 6.1 to cl 6.8 of the Will, the Testator gave eight separate legacies, including legacies to Dennis, Wayne, James and Gregory as well as to Peter Williams (Peter), who is another biological child of Margie. In addition, cl 6.9 provided as follows:

By cl 8 of the Will, the Testator directed that the balance of his estate be held “for my Beneficiaries” under a trust (the Trust) that is to vest on the day that is 79 years after the date of the Testator’s death (the Vesting Date). Clause 10 of the Will contained directions as to distribution and accumulation of income of the Trust. It provided for distribution of 50% of the net income of the Trust and accumulation of the other 50% of the net income.

Clause 11 dealt with the distribution of the capital of the Trust on the Vesting Date. Clause 12 dealt with the share of a deceased child. Those clauses were relevantly in the following terms:

Part B of the Will contained administrative provisions in relation to the Trust and provided a general power to hold on separate trusts, separate trustees for parts of the Trust fund and general and specific powers for the Executor and the Trustees. It has not been suggested that anything turns on the language of Part B of the Will.

The Executor seeks a determination of the true construction of:

The question is whether the terms “descendants” and “children” in those contexts include only biological descendants of the Testator’s siblings who have not been adopted out or whether they also include:

In the event that the Court concludes that biological children who have been adopted out of the Testator’s family or non-biological children who have been adopted into the Testator’s family are not included, the Executor also seeks a determination, as to whether the Will should be rectified to provide that both of those classes be included. The basis for that application is the evidence from Mr Carroll that the Testator expressed the wish that James, Elizabeth, Lindy and Gregory should be included as beneficiaries. There is a further question raised by the fact that the Instruction Document and the Notes refer expressly to James, Elizabeth, Lindy and Gregory but not to Colleen. The question is whether any rectification should extend to include Colleen, who does not appear to have been within the Testator’s knowledge.

In addition, there are several infelicities of expression in respect of which the Testator seeks determination of the proper construction and possible rectification. Thus, it is fairly apparent that the word “grandchildren” where appearing in cl 12.2 should be a reference to “children”, construed in the same way as the word “children” where it presently secondly appears in cl 12.1. In addition, the usage of the terms “Beneficiary” in cl 6.9, “any Beneficiary” in cl 10.1.1, “each Beneficiary” in cl 10.1.1, “each Beneficiary” in cll 10.1.2 and 10.1.4, “a Beneficiary” in cl 10.1.2 and “any Beneficiary” in cl 10.1.3, cl 10.1.4 and cl 10.1.5 appears to be inconsistent.

The Executor seeks to rectify the Will to ensure consistent use of the defined term “my Beneficiaries”. The possible rectifications of the Will, as raised by the further amended summons, are set out in Appendix 3 to these reasons.

On 9 October 2017, the Court directed the Executor to prepare an outline of the issues in the proceedings and to provide the outline to all persons who may have an interest in the Testator’s estate, so that such persons would be in a position to decide whether they wished to be joined as defendants and, if so, what, if any, submissions, they wished to make. Pursuant to that direction, submissions dated 6 November 2017 were prepared by counsel for the Executor. Having regard to their purpose, the submissions go beyond what would normally be expected from an executor, in so far as the submissions proposed answers to the questions raised in the proceedings.

On 27 February 2018, Parker J ordered that James be joined as second defendant and that Gregory be joined as third defendant. His Honour also ordered, pursuant to r 7.6 of the Uniform Civil Procedure Rules 2005 (NSW), that Dennis be appointed to represent one class of persons (the first class), that James be appointed to represent another class (the second class) and that Gregory be appointed to represent a third class (the third class).

The first class consists of every person, now living or yet to be born on or before the Vesting Date, who is:

The second class consists of:

The third class consists of every person, now living or yet to be born on or before the Vesting Date:

There is no real dispute among the parties as to the relevant principles to be applied in the interpretation of the Will. [1] I shall summarise the relevant principles as I apprehend them.

Under s 32 of the Succession Act, evidence, including evidence of a testator’s intention, is admissible to assist in the interpretation of the language used in the Will if the language makes the Will or any part of the Will meaningless, or ambiguous on the face of the Will, or ambiguous in the light of the surrounding circumstances. On the other hand, subject to the statutory power to rectify a will conferred by the Succession Act, it is not the function of the Court to make a will for the testator.

The terms of s 32 of the Succession Act do not significantly extend the common law rules for the construction of a will, and it is at least arguable that there is little about the Will that is unclear. The Executor, however, suggests that there is some ambiguity in the term “descendant” in the light of the surrounding circumstances, being the fact of children who were adopted out of the Testator’s family. I do not consider that the terms of the Will are ambiguous on the face of the Will or in the light of the surrounding circumstances. That, of course, is a different question from the question of whether the Will should be rectified.

Ultimately, a will must be construed as a whole from the writing itself, according to the plain meaning of the words and sentences contained in it, in order to give effect to the intention of the author. However, assistance may be obtained from such extrinsic evidence as is necessary to enable the words used by the testator to be understood. The words used should be construed according to their plain meaning and should be given their ordinary grammatical meaning, subject to the context in which they appear. The court should not deviate from the literal sense of the words used except to the extent that is necessary to make sense of the whole of a will.

On the other hand, the court should not slavishly adhere to the words used when to do so would defeat the clear intention of the testator as gleaned from the whole of the will. Where there is inaccuracy or inconsistency, it is necessary to look at the whole of the will to ascertain its meaning, in order to give effect, to the extent possible, to the testator’s intention. Thus, it is permissible to take account of a mistake that can be identified from the will itself without going beyond the will.

Inferences should not be drawn unless they necessarily follow from the will as a whole. An intention on the part of a testator should not be found by gratuitous grounds or fanciful implication but must be expressed plainly or must be clearly implied from the words used. However, if a will shows that the testator must have intended a particular gift but did not express the intention fully, the court may overcome the defect by implication. Thus, a word may be added or a word rejected as a matter of construction if it is clear that the word was mistakenly omitted or inserted. Missing words may be supplied by necessary implication if a will is itself incapable of bearing meaning or if there would otherwise be intestacy. If a will shows that the testator must necessarily have intended an interest to be given for which there are no words in the will, the court may supply the defect by implication and, thereby, mould the language used so as to carry into effect, as far as possible, the intention that the testator has declared in the will, taken as a whole.

If the language of the will as a whole indicates that a word has been mistakenly omitted or mistakenly inserted and demonstrates what, as a matter of construction, should be added or rejected to achieve the obvious intention, the additional rejection can be made by construction. If it is apparent from a reading of the will as a whole that some mistake must have occurred, it is legitimate to correct the mistake as a matter of construction, so long as the mistake is apparent from within the four corners of the will itself. However, no inference can be drawn that does not necessarily result from the will, taken as a whole. An inference may be drawn only if it is one the probability of which is so strong that a contrary intention cannot reasonably be supposed. Thus, the court may not give effect to an intention that is not expressed in, or plainly implied from, the language of the will. [2]

When construing the words of a will, the court endeavours to put itself in the position of the testator and to consider all material facts and circumstances that were, or ought to have been, in the mind of the testator when those words were used and with reference to which the testator is to be taken to have used the words. The court endeavours to reach a conclusion as to the intention evidenced by the words used by reference to those facts and circumstances.

In some cases, a testator may, for the moment, have forgotten or overlooked material facts and circumstances that were well known, as a consequence of which the testator may have used words that express an intention different from that intended to be expressed, such that the testator would have altered the words if reminded of the facts and circumstances. Ultimately, however, the court’s task is to construe the will as made by the testator and not to make a will for the testator. The court must construe the will in accordance with the expressed intention, even if there is good reason to believe that the testator has, by a blunder, expressed something that was not intended. [3] On the other hand, the court will prefer a construction that is fairly available if that construction avoids intestacy or partial intestacy. Thus, a construction that preserves the will and gives effect to the testator’s intention is to be preferred to one that destroys the will and defeats the testator’s intention. [4]

Before dealing with the meaning of the terms “descendants” and “children”, it is desirable to say something about the effect of adoption legislation, which is relevant to the context in which the terms “issue” and “descendants” must be considered. The relevant legislation is the Adoption Act 2000 (NSW) (the Adoption Act).

There are some parallels between adoption in New South Wales and adoption in Roman law. However, analogies tend to break down because of the Roman institution of patria potestas, whereby the members of the familia of a paterfamilias are subject to the control of the paterfamilias and do not have capacity to own property separately from the paterfamilias. The offspring of a valid Roman law marriage fell into the potestas of his or her father and remained within that potestas until the death of the paterfamilias or earlier emancipation. Similarly, the offspring of the valid marriage of a son subject to potestas fell within the potestas of the son’s paterfamilias.

The Roman institution of patria potestas is inextricably entwined with the Roman concept of the agnatic relationship, which is the relationship derived through the male line. Adoption of one person into the potestas of another person will create an agnatic relationship between the adoptive paterfamilias and his other agnates, on the one hand, and the adopted person, on the other. On the other hand, emancipation by the paterfamilias of a person subject to his patria potestas would sever the agnatic relationship.

Adoption in modern New South Wales law is analogous to adoption into the potestas of a paterfamilias in Roman law. While emancipation in Roman law is thus analogous to the adoption out of a child in modern New South Wales law, a significant difference is that in Roman law, adoption almost invariably related to an adult child, when the adoptive paterfamilias was too old to produce an heir.

The members of the familia who remain in the potestas of the pater familias had rights of succession on the death of the pater familias. On the other hand, subject to amendments effected by Justinian in the 6th Century, those who were emancipated were no longer members of the familia and had no rights of succession.

Under s 95 of the Adoption Act, if an adoption order is made, the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child. In addition, the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child. However, an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living. [5] Section 95 does not have effect so as to deprive an adopted child of any vested or contingent property right acquired by the child before the making of the adoption order. [6]

Section 95 has effect in relation to a disposition of property, whether by will or otherwise, and whether made before or after the commencement of the relevant provisions, and also has effect in relation to a devolution of property in relation to which a person dies intestate after 7 February 1967. Nothing in s 95 or s 98 affects the operation of any provision in a will or other instrument, whether made or coming into operation before or after the commencement of s 98, distinguishing between adopted children and children other than adopted children. [7]

Thus, ordinarily, an adopted child will be treated as the child of that child’s adoptive parents and the children of the adopted child will be the descendants, such as grandchildren, in law of the adoptive parents. Further, unless an adopted child has been adopted by a step parent and remains the child of a biological parent as well, the adopted child will not benefit from any disposition of property by Will that is made only by reference to the child’s status as a relative of someone in the child’s biological family, unless the adopted child had already acquired a vested or contingent property right before the making of the relevant adoption order. There is nothing to indicate that any property rights in relation to the estate of the Testator were acquired prior to any relevant adoption order.

It follows from the above that, unless there is some indication of a contrary intention on the part of a testator, a reference in a will to “children” or “grandchildren” or “descendants” or “issue” will not include a person who has been adopted out of the testator’s family, but will include a person who has been adopted into the testator’s family and will include that adopted person’s descendants.

The Adoption Act does not use the term “issue”. In normal parlance, the term “issue” would imply those genetically related to a testator and would thus include legitimate and ex-nuptial descendants but not adopted children. However, the term could, in a particular context, simply mean “children” including adopted children. [8]

The term “issue” is used in the Succession Act. However the term is not defined except to clarify the inclusion of issue born after the death of a testator if in utero before the testator’s death. [9] The term “issue” in the Succession Act includes children and, by the operation of s 109, that includes adopted children. Section 109 relevantly provides that an adopted child is to be regarded for the purposes of distribution on intestacy as a child of the adoptive parent or parents. The child’s family relationships are to be determined accordingly and family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are to be ignored. It follows that, for the purposes of succession, without a contrary intention to be found in a will, children given up for adoption are no longer the children of their biological parents and are not issue.

In ordinary parlance, a “descendant” is a person related by blood to another person of a previous generation. That is to say, a descendant of a person is a person related to that person “by descent”. [10]

Thus, a “descendant” of a person is a person who is “descended” from that first person in the sense that the second person comes from or is derived from the first person in the way of generation or is derived by birth or extraction: the first person is the particular progenitor or ancestor or ancestral stock of the second person. [11] The use of terms such as “progenitor”, “stock”, “generation” and “birth” tends to indicate that a “descendant” of a person has a biological connection with that person. Indeed, the definition of “issue” in the Will does little, if anything, to provide a meaning that is different from the ordinary meaning of the word. That is to say, the word “issue” and the word “descendants” mean substantially the same thing and, at least prima facie, are equivalent to “heirs of the body”. [12]

The ordinary meaning of “descendants” is “issue” and would not extend to “collateral relations”. [13] Thus, the adjective “lineal” appears to add nothing in the particular context. Similarly, the adjective “direct” appears to add nothing, in that its usual meaning is the same as “lineal”. Its use can do no more than add emphasis to the phrase “lineal descendants”, making clear that the “Beneficiaries” descend from the Testator’s siblings by direct descent.

The phrase “lineal descent” refers to a direct line of descendants from the same bloodline down successive generations, whether the relationship is a natural relationship or a relationship established by adoption. [14] The term “lineal” means “in a direct line”, as opposed to “collateral”, which indicates “descended from the same stock, but in a different line”.

Since the term “descendants” normally refers to issue of every degree, the words “direct lineal” appear to be otiose. However, the use of those words may indicate an intention to emphasise the actuality of descent, namely, biological connection, so as to express an intention that biological descendants who have been adopted out of a family are to be included. That is to say, it may be arguable that “direct lineal descendants” are biological children, whether given up for adoption or not, and their descendants. However, the preferable view is that “direct” and “lineal” add nothing, and that “descendants” must be read in its ordinary meaning and in the context of the effect of the Adoption Act.

Thus, as indicated above, the effect of the Adoption Act is to make adoptive children the issue or descendants of ancestors in their adoptive families. A corollary is that children given up for adoption cease to be the children of their biological parents and, therefore, cease to be the descendants of other biological ancestors. The context of the Adoption Act therefore suggests that the term “issue”, when used in the Will, does not include a child of a sibling of the Testator, being a child who was adopted out, or the remoter descendants of a sibling through such a child.

Handwritten corrections were made to the engrossment of the Will before it was signed. Further, Mr Carroll’s evidence make it clear that the Will was read over to the Testator and was carefully considered by him before it was signed.

The effect of the definitions in cl 2 of the Will was to create two separate groups as follows:

The use of the terms “my Beneficiaries” and “Beneficiary” in the Will does not compel any particular meaning of “descendant”. For example, James, who was given up for adoption, received a legacy by name. That of itself gave no indication that a child given up for adoption was to be regarded, for the purpose of the Will, as a “descendant” of the biological parent of that child. Persons other than James who are clearly “Beneficiaries” received legacies under cl 6. Accordingly, it cannot be said that James received a legacy because he would not otherwise receive a benefit as a “Beneficiary”: it cannot be said that the gift under cl 6 confirmed the status of James as a “Beneficiary”, because others who are certainly “Beneficiaries” received no legacy under that clause. Similarly, the fact that Gregory received a legacy under cl 6 does not of itself determine whether or not he was intended to be a “Beneficiary”.

The fact that the Testator was aware of the identity of at least two persons who were adopted out of his family is not a basis for treating all persons who have been or might be adopted out, with the consequences that flow under the Adoption Act, as descendants of a sibling of the Testator. The fact that those persons with whom the Testator was actively acquainted during his lifetime were recognised by name, with modest legacies, is not, of itself, a valid basis for extending the ordinary meaning of the word “descendant”.

The legacies for James and Gregory indicate that the Testator was willing to provide for a biological nephew who had been adopted out of his family and a non-biological nephew who had been adopted into his family. However, the legacies identify the legatees by name and not by relationship to the Testator. Accordingly, it is not of itself indicative of an intention that James or Gregory was intended to be included in the term “the Beneficiaries”.

No other part of the Will provides any basis for determining the meaning of the term “descendants”. On the assumption that cl 12.2 is rectified as proposed in the summons and cll 11 and 12 refer to the “children” of the Testator’s siblings, to the “children” of those “children” and to their “children”, those references do not assist in the interpretation of the phrase “direct lineal descendants”. The word “children”, when used in cl 11 and cl 12 of the Will, should be construed as being coextensive with the phrase “direct lineal descendants” in relation to any particular generation.

The remainder of the Will places no limitations on the interpretation of the term “issue”. Its meaning must be limited to the defined meaning, namely, “direct lineal descendants”.

The Instruction Document and the Notes support a conclusion that the Testator’s intention was that the term “issue” would include children who were adopted out of the Testator’s family. They also indicate the Testator’s knowledge of Gregory and his status coupled with an intention to benefit him. In addition, the Instruction Document and the Notes refer to “heirs” of the Testator’s siblings and to “heirs” generally. The Notes annotate the Instruction Document with the gloss “sibling, child or grandchild” in relation to the word “heir”. The Executor suggests that that material is strong evidence of the Testator’s intention to benefit, as “Beneficiaries”, children who were adopted out, and their descendants, and children who were adopted in, and their descendants.

However, I do not consider that those circumstances indicate any ambiguity that would justify reference to the Instruction Document or the Notes to assist in construction of the Will. The definition of “issue” in cl 2 of the Will is not ambiguous, simply because of the circumstances that, to the knowledge of the Testator, there existed both children who were given up for adoption out of the Testator’s family and of a child who was adopted into the Testator’s family. While the Instruction Document and the Notes may be evidence of facts known to the Testator, they cannot be used to change the clear meaning of the words used in the Will, which must not be construed by reference to that material. On the other hand, of course, that material may well be highly relevant in relation to any question of rectification.

The Will draws no distinction between biological children born into the Testator’s family and children adopted into his family, although it would have been open for the Testator to draw that distinction. There is no basis for excluding any person who is able to establish, by appropriate evidence, that he or she has been adopted into the Testator’s family by a sibling of the Testator or child, grandchild or more remote issue, if applicable, of a sibling of the Testator.

Clause 8.1 provides that the residue of the Testator’s estate is to be held in trust “for my Beneficiaries”. Accordingly, the “Beneficiaries” of cl 11 and cl 12, namely, the children, grandchildren and great grandchildren of the Testator’s siblings, must fall within the class of persons who are “my Beneficiaries”. The class of “my Beneficiaries” must, in one sense, be broader than the class of “children” in cl 11 and cl 12, because the class of “my Beneficiaries” does not end with the great grandchildren of the Testator’s siblings. Indeed, it appears that there are already in existence several great grandchildren of siblings of the Testator, as appears from the details set out in Appendix 1. It is quite possible that at least three further generations may be born prior to the Vesting Date. Since the term “children” is more limited in that way, it is possible that it is also more limited in some other way. However, the apparent intention to limit the class by reference to three generations and to distribute the benefits per stirpes provides sufficient reason for the use of the word “children”, by confining each step to a generation, something that could not be achieved felicitously by using the terms “descendants” or “issue”.

There is no other obvious reason for creating any other distinction between the term “children” and the phrase “direct lineal descendants”. Such a distinction would introduce a degree of incoherence into the scheme of the Will. That is to say, under cl 10, benefits are granted to all branches of the family who are “direct lineal descendants” but, under cl 11 and cl 12, benefits are restricted to some branches only. It is more likely that it was intended that there be a coincidence of the persons who are the children, grandchildren and great grandchildren in cl 11 and cl 12, on the one hand, and the persons of the same generations who are “direct lineal descendants”.

The term “children” has possible meanings that depend upon resolution of similar problems of construction, namely, whether or not to include children who have been adopted out and whether or not to include children who have been adopted in. Accordingly, the likely coincidence of meaning between the “children” of cl 11 and cl 12 and the “direct lineal descendants” provides no assistance interpreting the phrase “direct lineal descendants”.

The heading of cl 12 of the Will is “Lineal Descendants to Take the Share of any Deceased Child”. That might suggest that references in cl 12 to “children” should be taken as references to “lineal descendants”. However, cl 15.3 expressly provides that the headings in the Will are not to be taken into account in its interpretation.

Consistently with the conclusions reached in relation to the term “descendant”, the proper construction of the terms “child” and “children” would include not only a biological child of a sibling of the Testator who has not been adopted out of the Testator’s family, but also a person adopted into the Testator’s family by a sibling or a descendant of a sibling of the Testator. By parity of reasoning, a biological child who has been adopted out of the family of the Testator is not within the term “child” or “children”.

If the Court is satisfied that a will does not carry out the testator’s intentions because a clerical error was made or because a will does not give effect to the testator’s instructions, s 27(1) of the Succession Act empowers the Court to make an order to rectify that will to carry out the intentions of the testator. The Court may exercise that power not only to correct an erroneous meaning but also, for more abundant caution, to ensure clearer expression of the intended meaning of the relevant testator. [15]

The Instruction Document indicates that the Testator wanted James to be treated in the same way as Gregory and Wayne. On the proper construction of the Will, James would not be a “descendant” or a “child” of Patricia, having been adopted out. Similarly, the Instruction Document indicates that the Testator expressed the desire that Elizabeth and Lindy, the two daughters of Betty who were given up for adoption and were adopted out of the Testator’s family, should be treated as children of Betty.

The Testator had only recently found out about Betty’s two daughters. There is now a suggestion that there was a third daughter, Colleen. Having regard to the specific instructions given by the Testator in relation to James and to Betty’s two daughters, all of whom had been adopted out, an inference should be drawn that any biological children of a sibling of the Testator was intended to be treated as a child of that sibling, notwithstanding that the child had been adopted out and would, on the ordinary construction of the language used in the Will, not be a “child” or a “descendant” of the biological parents.

However, there is nothing in the material before me to suggest that the Testator intended to treat as a child or descendant of a sibling any biological descendant of that sibling, who had been adopted out, and who is more remote than a child. It may be that, had there been a biological descendant, other than a child, who had been adopted out during the Testator’s lifetime, and the Testator was aware of that fact, he may have extended his beneficence to such a child. However, there is no evidence of any such person beyond the four identified above, namely, James, Elizabeth, Lindy and Colleen.

The word “children” when used in cl 12 should be construed in its ordinary or usual meaning, namely, as indicating the next successive generation. However, it is clear enough that the Testator’s intention was to ensure that the property be distributed per stirpes to the surviving lineal descendants, namely issue, of the Testator’s siblings as defined in cl 2.

Clause 12 provides for the gift in cl 11 to pass per stirpes to the next three generations only. Clauses 12.1 and 12.2 require that any potential beneficiary who is not alive at the Vesting Date must have left “children”, being the next generation, “grandchildren”, being children of the next generation and “further survivors”, namely grandchildren of the next generation who are both alive at the Vesting Date and attain the qualifying age before any entitlement to any part of the trust fund can vest. It is tolerably clear that, although infelicitously expressed, the Testator intended by cl 12.1 and cl 12.2 to ensure that the trust property would be distributed per stirpes to the surviving lineal descendants, namely issue, of the Testator’s siblings as defined in cl 2.

Because of the difficulty in identifying a person who has been adopted out of a family, there may be practical difficulties in treating, as descendants, persons who have been adopted out of the Testator’s family. The Testator was unable to identify all of the persons adopted out of his family at the time he gave instructions for the Will. However, that is an evidentiary matter as to which the Executor and the trustees of the Trust must have regard at the appropriate time. Thus, the Executor and the Trustees must be satisfied, by appropriate evidence, that any claimant is in fact a biological child of a sibling of the Testator.

It follows from the above that there should be declarations to the effect that, on the proper construction of the Will, the term “descendants” and the term “children” include persons who have been adopted by siblings of the Testator into the family of the Testator and that the terms do not include children of siblings of the Testator who have been adopted out of the Testator’s family. On the other hand, there should be orders under s 27 of the Succession Act to the effect that biological children of siblings of the Testator who have been adopted out of the Testator’s family are to be treated as descendants and children. I propose to direct the Executor to bring in short minutes of orders to reflect those conclusions.

In the ordinary course, the costs of the parties to a will construction suit should be paid out of the estate on the trustee basis. However, Dennis contends that, to the extent that there is any ambiguity in the Will, the Executor’s solicitors were responsible for that ambiguity and should bear the costs of the proceedings without recourse to the estate. The other defendants to not advance that contention. In the circumstances, I consider that the appropriate course is that the costs of the Executor and of each of the defendants be paid from the estate of the Testator on the trustee basis. Whether or not the Testator had a claim against the drafter of the Will is not a question presently before the Court.