Jones v Robinson & Ors

This matter concerns the will (the will) of the late Daisy Roach (the Deceased). By amended summons dated 6 June 2019, the plaintiffs sought a determination as to the true construction of the handwritten will of the Deceased dated 25 September 2013.

The Deceased died on 24 November 2017.

At the time of her death, the Deceased was not married and was not in a de facto relationship, nor did she have any natural or adoptive children. The Deceased’s parents predeceased her, as did her two siblings. The Deceased did have multiple nieces and nephews who survived her.

Probate was granted to the Plaintiffs on 30 November 2018.

The First Plaintiff is Lynette Jones (Lynette) and the Second Plaintiff is Joy London (Joy) (referred to as Joy Ashley in the will). The Plaintiffs were both nieces of the Deceased and are both executors and beneficiaries under the will.

The first to sixteenth defendants are other potential beneficiaries of the Deceased’s estate if the Deceased is found to have died intestate. By order of Justice Lindsay dated 3 April 2019, the Seventh Defendant, Noel Jeffery, was appointed to represent the interests of the other defendants except for the eighth, ninth and tenth Defendants. The eighth, ninth and tenth Defendants did not appear or participate in the matter.

The Plaintiffs as the executors estimate the gross value of the estate at $2,786,173.25 (although this appears to be an erroneous calculation), including the following property:

The Plaintiffs are seeking determination as to the set issues described in the amended summons:

The will, dated 25 September 2013, is in the Deceased’s handwriting.

The attesting witnesses are Mr Richard Murphy, a solicitor practicing at Newcastle, and his secretary, Ms May Warne.

In a letter dated 4 June 2018, Mr Murphy stated that the Deceased had brought the document to his office in Newcastle, and had told Mr Murphy that she wished him to retain it for safe keeping. Mr Murphy noted that although the document had been signed by the Deceased, it had not been witnessed. He then proposed that the will should be witnessed and he himself wrote on the second page, “Executed as my last will and testament on 25 September 2013”. The Deceased then signed in the presence of Mr Murphy and Ms Warne who thereupon signed the will as well (CB/49).

Generally the will appoints executors and trustees, makes arrangements for the Deceased’s funeral and burial, and makes several gifts to named beneficiaries.

It is appropriate to set out the text of the will below:

In particular, the issue in dispute concerns the disposal of a property mentioned in the penultimate clause of the will. I have marked the relevant clause with an asterisk for convenience. The clause was referred to as ‘clause 5’ by the parties.

It is uncontroversial that the ‘villa’ referred to in clause 5 is the Veda Street Property.

The Plaintiffs note the following:

According to the affidavit of Ms Jessie Preece dated 1 September 2018, she states that she was a friend of the Deceased and who visited her frequently. She states:

Ms Judith Taffe in her affidavit dated 1 September 2018, stated she recalled having conversations with the Deceased about her will:

At the time of the Deceased’s death the Veda Street Property had not been sold.

The Plaintiffs make several submissions with respect to each of the questions for determination by the court.

The Plaintiffs submit that clause 5 should be read as if the gifts after the words ‘…if it has been sold…’ take effect even though the villa has not been sold (per para 1(b) of the Amended summons).

Clause 5, as set out above, deals with two parts of the Deceased’s estate, the ‘villa’ and ‘investments’ and proscribes the two Plaintiffs as beneficiaries.

The Plaintiffs submit that had the ‘villa’ been sold prior to the Deceased’s death, the combined value of her liquid assets (assuming the proceeds of the sale of the ‘villa’ were included under the word ‘investments’) would have been divided between Lynette and Joy in proportions 75%:25% after payment of the other proscribed legacies and funeral and testamentary expenses (Plf subs [15]).

However, the villa had not been sold prior to the Deceased’s death. Therefore, the first alternative, on its face makes no provision for the distribution of the ‘investments’ after payment of the legacies (Plf subs [15]).

The Plaintiffs note that under para 1(a) of the Amended Summons, if the phrase ‘if it has been sold’ is omitted, would seem to remove the alternatives and arguably defeats the Deceased’s intentions (Plf subs [16]).

The Plaintiffs further note that if the Deceased’s intention can be construed such that her nieces were to receive her assets at about a proportion of 75%:25%, the Court could add after the words ‘goes to Lyn’, the words ‘and whatever is left after the others get their share’. Therefore the gifts after the words ‘…if it has been sold…’ take effect regardless of whether the villa has been sold (Plf subs [18]).

If these words cannot be imputed and the gifts after the words ‘…if it has been sold’ are void for uncertainty (as per para 1(c) of the Amended summons), there will be an intestacy. This is clearly against the Deceased’s intentions as she intended the will to have effect and dispose of all her assets (Plf subs [19]).

The Plaintiff submits, therefore, that the villa should go to Lynette, the jewellery should go to Joy, the legacies and expenses are paid from the remaining ‘monies’ and whatever is left should be split; 75% to Lynette and 25% to Joy. In the alternative, the Plaintiff submits that the villa be included as part of the monies, so that the jewellery goes to Joy, the rest of the estate including the villa is liquidated, the legacies and expenses paid and whatever is left be split; 75% to Lynette and 25% to Joy (T10/37-11/3).

The Plaintiffs submit that the ‘villa’ in the will refers to the Veda Street Property (Plf subs [23]).

The Plaintiffs further submit that ‘investments’, as used by the Deceased should be wide enough to include monies in the Building Society and Police Bank accounts, the AMP life policy, the BUPA refund, the shares in Boardroom Pty Ltd. and the MLC Account (Plf subs [26]).

Lastly the Plaintiff’s submit the 2013 will should revoke the 2002 will. Although the later will contains no express revocation clause, it is clear the Deceased intended the later will to revoke the earlier will. This is apparent from the words ‘executed as my last will testament’ on the document as well as the fact the later will purports to make complete disposition of the testator’s assets.

The Defendant submits the following:

With regards to the true construction of clause 5, the Defendants make several submissions.

They submit that the Deceased did not adequately turn her mind to critical aspects of the will, particularly residue. They note she did not provide for what should happen if the proposed beneficiaries predeceased her, particularly in regards to the individual items of jewellery (Def subs [19]). Further, clause 5 makes a specific bequest of the villa. This is not a logical place to deal (concurrently) with residue. They note that the conventional course is to make specific bequests and then deal with what is left (Def subs [21]).

They note that there is no evidence that the Deceased intended to gift the whole of the residue to the Plaintiffs (Def subs [36]). In particular, the residue clause present in the 2002 will is absent from the later will. The witnesses called by the Plaintiffs do not recall any conversation by which the Deceased stated that she intended the Plaintiffs would receive the residue (Def subs [36]).

The Defendants submit that the word ‘investments’ refers only to the Boardroom shares. They note according to the ordinary and usual grammatical meaning of ‘investments’, it does not include money in bank accounts (Def subs [27]). Further, it cannot be said with confidence that the Deceased did not own investments in the traditional sense at the time she made the last will. The Deceased herself appears to have accepted that there was a difference between ‘money’ and ‘investments’, as the two terms are used differently in clause 5 (Def subs [30]).

It is well accepted that the principles as set out by Justice Isaacs in Fell v Fell (1922) 31 CLR 268, are still regarded as instructive as to the various factors to take into account when construing a will. At 276, His Honour laid out, what he described as ‘incontestable’ principles in the construction of a will:

His Honour later noted (at 276):

Justice Higgins in the same case, embraced the following principles (at 283-284):

Issacs J in Fell v Fell has been applied more recently, by Hallen AsJ (as His Honour then was) in Lockrey v Ferris [2011] NSWSC 179; (2011) 8 ASTLR 529 (at [43]) and by Rein J in The Estate of Nicholas Paul Enright [2017] NSWSC 1646 (at [22]-[23]).

In addition, s 32 of the Succession Act 2006 (NSW), permits the Court to have regard to extrinsic material in construing a will;

Additional factors will apply when the will was prepared by the Deceased himself or herself and is so to speak ‘homemade’.

In Lewis v O’Loughlin (1971) 125 CLR 320, Barwick CJ considered the construction of a ‘homemade’ will (at 326-327):

Menzies J in the same case similarly considered the differences between the construction of a will drawn by the deceased themselves, over that of a lawyer. His Honour noted (at 330):

It is therefore tolerably clear that the misuse of language should not too readily defeat the deceased’s otherwise clear intentions.

In addition as Lord Upjohn remarked in Re Gulbenkian’s Settlement Trust [1970] AC 508; [1968] 3 All ER 785, it is the duty of the court when construing instruments generally including a will, a will to ascertain the testator’s intentions behind the will (at 522):

With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator’s intention and that approach should be a predominant consideration in the construction of the instrument.

Before coming to the particular words which have been the central focus of the litigation, it is important to make some general comments about the will as a whole and particularly about some aspects of the Deceased’s intentions which I consider to be uncontroversial and/or of significance.

First it is apparent in my view, both from their appointment as executors and other matters to which I shall return in due course, that the Deceased favoured her two nieces Lynette and Joy and wished them to be the principal beneficiaries under her will.

Secondly there is no suggestion here that the Deceased lacked testamentary capacity. It is clear that she would have understood that she had a substantial estate, the great bulk of which was held in cash. Indeed at the date of probate the amount of cash in various accounts at the Newcastle Permanent Building Society and the Police Bank totalled some $2, 209,351.78 out of a total estate of $2,786,173.25, (approximately 80% of her estate). The next substantial asset was the Veda Street Property. It was estimated to be worth $475,000 at the date of probate. There is no evidence that the Deceased lacked awareness of what assets otherwise comprised her estate.

The Deceased was quite clear in her mind about the persons to whom she wished to leave legacies, which totalled only $108,000. That is the first matter after her directions in relation to her funeral that the Deceased chose to deal with.

Next, in what has been described by the parties as ‘clause 5’, the Deceased purportedly disposes of the ‘villa’ so called as well as her ‘investments’. It is this particular clause that drew the focus of the litigation.

Lastly she left the entirety of her jewellery to her niece Joy.

It is accepted by Counsel on both sides that there are clear grammatical and other problems with the clause the principal focus of the litigation. It purports to deal with alternatives but by no means clearly, and there are difficulties in its construction. There are a number of intriguing aspects of the particular clause. The reference to the villa, it is accepted as uncontroversial, is a reference to the Veda Street Property.

Some time was spent considering the use of the full stops in the will. I am of the view that this emphasis is not particularly helpful. There is no evidence of any other of the Deceased’s writing, nor any indication that the slightly unusual positioning was anything more than a stylistic preference. The full stops disclose no discernible pattern and I found them of little aid in construing the document. I should also say I do not find the evidence of Ms Preece or Ms Taffe especially instructive. They are mere snapshots of what were likely parts of more general conversations; the actual language by the Deceased in her own handwriting is what is fundamental in determining her intentions.

It is clear that if the villa had been sold then “whatever money is left after the others get their share”… the “money” at least was to be divided 75:25 between her nieces. I consider the Deceased also had in mind treating the “investments” as part of the estate which she thought would be made liquid to facilitate distribution. In other words she intended the word “investments” to be regarded as liquid assets or money for the purposes of division. That word in my view, viewing the will as a whole is certainly wide enough to include the monies on deposit, shares and her other assets with AMP, BUPA and MLC.

Although there is no suggestion that she did any or any precise calculations if one takes the estate as valued for probate purposes at $2,786,173.25 and deducts the $108,000 for the legacies and the $5,000 for the jewellery that derives a total of $2,673,173.62. If that sum is divided 75:25 Lynette would get $2,004,880.22 and Joy would get $668,293.31 together with all the jewellery. On the other hand if the value of the villa, jewellery and legacies are taken out, the balance is approximately $2,198,173 which would provide Lynette with approximately $2,123,629 (including the additional value of the villa) and Joy with $549,543. The difference is real but there is nonetheless some symmetry about it in very approximate terms.

Leaving aside the various deficiencies which clearly arise in terms of the construction of this central clause it is plain in my view that apart from the payment of the legacies she wanted her two nieces to be the principal beneficiaries. In particular she wanted her “money” divided three quarters and one quarter after the payment of legacies, and she wanted all of her jewellery to go to her niece Joy. I think that clearly means that, as has happened if the villa was not sold the Deceased intended nonetheless its value would be taken into account whether it be an existing piece of real estate or its cash equivalent. In other words if her entire estate comprised money, then after the payment of the legacies, her jewellery would go to Joy and the balance of the money otherwise would be divided 75:25 between Lynette and Joy. As is the case here, the villa has not been sold, but its value should nonetheless be taken into account in calculating the 75:25 split.

As I have already said, I am of the view, that when the Deceased used the word ‘investments’ she was intending to refer to all of her ‘money’. It is also clear that the Deceased did not have in mind (apart from the legacies) giving particular amounts to her favoured beneficiaries, or drawing a distinction between money and investments. I think she regarded her entire estate as cash or cash equivalent and for good reason, her assets were mainly in cash.

It has been said that the Deceased did not consider adequately or at all the residue of her estate. I do not regard that as fatal nor leading to an intestacy. The mere fact that the creator of a homemade will did not contemplate every legal contingency or the potential of residue does no more than highlight that the maker is not a lawyer.

Finally, in my view, the 2013 will revokes in full the 2002 will. The words ‘executed as my last will and testament’ printed on the document leave no doubt that the Deceased intended the later will to be given force. Further, it is clear to me, that the later will was intended to dispose of the Deceased’s entire estate.

I find in favour of the Plaintiff’s construction of the will. In particular I am of the view that she had an intention that her assets after payment of legacies, funeral expenses and jewellery would be split 75:25 between her nieces Lynette and Joy as discussed above.

I note that costs were a matter of agreement between the parties. I would invite the parties to prepare short minutes to reflect my reasons.