Equity Trustees Wealth Services Limited v Astill

1. [1]

   These proceedings concern the construction of the will dated 15 August 1988 of the late Cedric Charles Hopping (the Will). Under the Will, the deceased (Cedric) left a right of residence in a property at 1 Summerside Street, Toukley, NSW (the Toukley property) to Margaret Astill (Margaret). The central issue is who, on the proper construction of cll 3 and 4 of the Will, is entitled to the remainder interest in the Toukley property.

2. [2]

   The plaintiff, Equity Trustees Wealth Services Limited (Equity Trustees), is the executor and trustee appointed under the Will and was granted probate on 24 August 1990. The defendant is the executor of Margaret’s estate. The administration of Cedric’s estate is complete except for the outstanding issue relating to the Toukley property. By an amended summons filed in Court with the leave of Williams J on 10 June 2022, Equity Trustees initially sought orders both for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) and declarations as to the construction of the Will.

3. [3]

   The plaintiff does not press its application for judicial advice and instead seeks declarations in respect of the meaning of the Will, particularly cll 3 and 4, and an order under s 138 of the Real Property Act 1900 (NSW) to amend the folio of the Register for the Toukley property, relying on r 54.3 of the Uniform Civil Procedure Rules 2005 (NSW). The precise form of the relief sought is set out in prayers 3-5 of the amended summons which are as follows:

4. [4]

   The plaintiff, as executor, has no interest in the outcome of the Court’s determination of the construction issue and its role is to assist the Court by advancing all relevant arguments on the construction issue. The defendant, as executor of Margaret’s estate, has an interest in the outcome and has actively participated in the proceedings, including by advancing arguments on the construction issue contrary to those put by the plaintiff. Although other potential beneficiaries have not been joined as parties to the proceedings, I am satisfied that all potential beneficiaries have either received notice of the proceedings or reasonable steps have been taken to notify them.

5. [5]

   For convenience, and without intending any disrespect, I will identify relevant persons using their first names.

The terms of the Will

1. [6]

   The dispositive provisions of the Will are as follows.

2. [7]

   Clauses 3(a)–(d) contain a gift to Margaret of Cedric’s motor vehicle, a gift to Robert Astill (the defendant’s brother and Margaret’s son) of Cedric’s 20-foot fishing vessel “Marlin”, a gift to the defendant of “such other boats and accessories” and a gift to Mark Hopping (one of Cedric’s sons) of Cedric’s caravan accessories.

3. [8]

   Clauses 3(e) and (f) then deal with the two properties which Cedric owned at the time he made the Will (and still owned at his death 18 months later), being the Toukley property and another property at 40 The Strand, Gladesville (Gladesville property), and provide as follows:

4. [9]

   The right of residence conferred on Margaret, if she survived Cedric, by cl 3(e) had three significant features: (a) it would continue rent free until Margaret’s death provided that she paid all rates, taxes (other than capital gains tax) and outgoings on the property, kept the property insured and maintained the property in a good state of repair; (b) Margaret could terminate the right of residence at any time by notice to the Trustee; (c) the Trustee was given the power to sell the Toukley property if Margaret so requested, and to reinvest the proceeds in a new property for Margaret to live in during her life, but on terms that preserved for Cedric’s estate an interest in the substitute property, reflecting the proportion of the purchase price contributed from the proceeds of sale of the Toukley property.

5. [10]

   It is not in dispute that the date of termination of the right of residence of the Toukley property (date of termination) was the date of Margaret’s death under cl 3(e)(vi) and the residuary estate to which the Toukley property then became an accretion is governed by cl 4, which provides as follows:

6. [11]

   Each of the gifts of residue in cl 4(a) to (i) is a class gift because the persons who are to take each of the nine parts are “united or connected by a common tie so you can say that the testator was looking to the body as a whole rather than to members as individuals”; Re Michell (deceased) (1971) 2 SASR 312 at 320; G E Dal Pont, Law of Succession, (LexisNexis, 3rd ed, 2021) at [8.61]. The evidence establishes that there were one or more beneficiaries within each class at the date of Cedric’s death. Two beneficiaries named in cl 4(h) and (i) predeceased Margaret, being Denise Astill (who died on 27 November 2009) and Amanda Hopping (who died on 14 April 2008). However, it appears from the evidence that each of them had children who were alive at the date of Margaret’s death and that for each of the nine classes there were surviving members at Margaret’s death capable of taking the share assigned to that class.

7. [12]

   The scheme of the Will is that after making specific gifts of certain chattels in cll 3(a) to (d) to named beneficiaries, the two remaining assets of significance (being the Toukley and Gladesville properties) are dealt with differently depending on whether Margaret predeceased Cedric:

8. [13]

   It is the interaction of cl 3(e)(vi) and cl 4 in this second alternative scenario which has created the difficulties of construction in this case.

Background to the proceedings

1. [14]

   Cedric was at the date of his death the registered proprietor of the Toukley property.

2. [15]

   Cedric had four children from his first marriage which ended on 18 November 1975, being Mark Charles Hopping, Maxine Gay Bennell, Colin William Hopping, and Evelyn May Hopping.

3. [16]

   In or around 1984, Cedric commenced living with Margaret and at the time of his death they were in a de facto relationship. The defendant, Peter Astill (Peter) is one of Margaret’s four children and the executor of her estate.

4. [17]

   Cedric made two wills before the Will — one on 22 March 1986 (the 1986 Will) and another on 8 August 1988 (8 August Will). There is no dispute between the parties that all three wills were substantially similar.

5. [18]

   Cedric died on 23 February 1990, and, on 24 August of that year, probate of the Will was granted to Equity Trustees (formerly known as ANZ Executors & Trustee Company Limited).

6. [19]

   In 1991, each of Cedric’s four children commenced family provision proceedings in this Court claiming provision under the Family Provision Act 1982 (NSW) (1991 proceedings). On 9 September 1992, Master Macready delivered judgment making provision for each of Cedric’s children.

7. [20]

   Master Macready did not disturb Margaret’s right of residence in the 1991 proceedings.

8. [21]

   On 9 May 2015, Margaret died, and on 19 November 2020 probate was granted to Peter as executor under her will dated 19 January 2015. Margaret lived in the Toukley Property until her death.

9. [22]

   On 22 August 2017, Equity Trustees obtained an opinion from a barrister as to the proper construction of the Will, who took the view that the preferable construction was that the Toukley Property was devised to Margaret and formed part of her estate (the Counsel’s Advice). The relevant part of the Counsel’s Advice is as follows (underlining in original):

10. [23]

    Counsel’s Advice went on to recommend that as there was some uncertainty regarding the correct construction of the Will, the consent of Cedric’s children, and certain other potential beneficiaries under the Will should be obtained before the Toukley property was transferred to Margaret’s legal personal representative.

11. [24]

    On 14 November 2019, Equity Trustees wrote to Peter’s solicitors indicating that it would transfer of the Toukley Property to Peter in his capacity as the legal personal representative of Margaret’s estate “as per Counsel’s advice”, subject to payment of certain disbursements incurred by Equity Trustees in the administration of the Estate.

12. [25]

    On 17 July 2020, two of Cedric’s children, Evelyn and Colin, contacted Equity Trustees and stated their opposition to the transfer of the Toukley Property to Peter, and that they were seeking independent legal advice.

13. [26]

    On 21 July 2020, Equity Trustees conducted a title search which showed that Cedric was still recorded as the registered proprietor of the Toukley property, and on the same day sent Peter’s solicitors an email seeking confirmation that the transfer of the Toukley property had not taken place and would not proceed until the issue as to the proper construction of the Will was resolved. In subsequent emails from Equity Trustees to Peter’s solicitors over the period from late July 2020 to 23 June 2021, Equity Trustees stated that its consent to the transfer of the Toukley property to Peter had been withdrawn, given the dispute which had arisen regarding the proper construction of the Will.

14. [27]

    On 19 November 2020, Peter obtained probate in respect of Margaret’s will.

15. [28]

    In July 2021, the Toukley Property was transmitted from Cedric to Peter, after his solicitors registered a transmission application. That transmission application identified Peter as the executor of the will of the deceased registered proprietor, Cedric. There is no dispute that Peter was not the executor of Cedric’s estate, and that the transmission application was therefore incorrect. Peter, by his solicitors, has given an undertaking to transfer the Toukley property to the plaintiff, if that is the consequence of the orders made in these proceedings.

16. [29]

    On 4 August 2021, Equity Trustees lodged caveat no AR373183 over the Toukley property. On 9 May 2022, Peter filed a lapsing notice in respect of the caveat. On 1 June 2022, Equity Trustees commenced these proceedings, and on 3 June 2022 obtained an order extending the operation of the caveat until further order of the court.

17. [30]

    If Equity Trustees is successful in the proceedings, consequential orders will need to be made to remove Peter as the registered proprietor.

Cedric’s prior wills

1. [31]

   Cedric made two prior wills. The first is dated 22 March 1986 (1986 Will) and is structured in broadly the same way as the Will but there are subtle differences. So far as relevant, these differences are as follows:

2. [32]

   Cedric made a further will on 8 August 1988 (August 1988 Will) which makes the following material changes to the 1986 Will:

3. [33]

   The only difference between the August 1988 Will and the Will (made one week later) is that the opening words of cl 3(e) are amended to include a specific reference to the Toukley property. It can be inferred that this was done for the avoidance of doubt.

4. [34]

   The only relevant changes in the drafting of the three Wills occurred when cl 3(e) and cl 4 were included in the August 1988 Will: (a) cl 3(e) altered the treatment of the remainder interest in the Toukley property on the termination of the right of residence by introducing cl 3(e)(vi) in place of a trust for nine named beneficiaries and their children (identical to those named in the proviso to cl 4 of the Will); and (b) cl 4 removed one of the categories of residuary beneficiary (Dawn McLeod and her children) where Margaret predeceased Cedric so that the residuary beneficiaries in that situation were now the same as the beneficiaries who had in the 1986 Will been entitled by the express provision in cl 4 of the 1986 Will to the remainder interest in the Toukley property on Margaret’s death.

Issues

1. [35]

   There is a clear difficulty in reading cl 3(e)(vi) and cl 4 together. Clause 3(e)(vi) provides that the Toukley property will form part of the residuary estate once the date of termination arrives and directs that the interest of a beneficiary in the Toukley property as part of the residuary estate is contingent on that beneficiary surviving the date of termination. Clause 4, read in isolation, does not contemplate a situation where any interest in residue will arise in favour of any person, other than Margaret, where Margaret survives Cedric. This creates an issue as to how cl 3(e)(vi) and cl 4 are to operate in relation to the Toukley property where, as has occurred, Margaret survives Cedric so that the proviso in cl 4 cannot, read literally, apply to that property.

2. [36]

   The parties agree that there are four possible constructions:

   1. (1)

      the Toukley property forms part of the residuary estate that was gifted absolutely to Margaret, and now forms part of her estate to be distributed by Peter in his position as executor.

   2. (2)

      the Toukley property fell into intestacy at the date of termination as cl 3(e)(vi) as an incomplete gift.

   3. (3)

      the Toukley property falls into the residuary estate and is to be held for the beneficiaries in each of the nine classes named in cl 4, irrespective of whether they survived the date of termination.

   4. (4)

      the Toukley property falls into the residuary estate and is to be held for the beneficiaries in each of the nine classes named in cl 4 who survived the date of termination.

3. [37]

   In the 1991 proceedings, it was not necessary for Master Macready to determine the proper construction of the Will, but his Honour expressed the following view, by way of obiter dictum:

4. [38]

   While these observations involve a rejection of the first and second construction and might be seen as support for the third construction, I do not regard them as inconsistent with (or a rejection of) the fourth construction, which is a variation of the third and was not raised before Master Macready.

5. [39]

   If any of constructions (2)–(4) identified in [36] is preferred, the Court will be required to make attendant orders correcting the folio of the register maintained in relation to the Toukley property.

Relevant principles

1. [40]

   The starting point for the construction of a will is the following statement of Viscount Simon LC in Perrin v Morgan [1943] AC 399 at 406:

2. [41]

   This fundamental principle was recently stated by White JA (with whom Gleeson JA agreed) in De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50]:

3. [42]

   It is necessary to consider the terms of the Will as a whole to ascertain, if possible, the basic scheme which the deceased had conceived for dealing with his estate and then to construe the Will, if possible, to give effect to that scheme: Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [19].

4. [43]

   Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 273–275 identified these and other relevant principles of construction as follows (citations omitted):

5. [44]

   The last of these principles, sometimes referred to as the ‘golden rule of construction’, is that the Court should prefer a construction that avoids an intestacy: In re Harrison (1885) 30 Ch D 390 at 393–394; Estate of Kallidis; Kallidis v Kallidis [2012] NSWSC 1485 at [118]–[121].

6. [45]

   As indicated in the first proposition stated by Isaacs J in Fell v Fell, extrinsic evidence of the facts and circumstances known to the testator at the time of making the will is admissible to assist in the construction of the will under the “armchair principle”. This principle was summarised by White J (as his Honour then was) in Parry v Haisma [2012] NSWSC 290 at [10] (emphasis in original):

7. [46]

   Section 32 of the Succession Act 2006 (NSW), which permits the admission of extrinsic evidence to assist in the construction of a will in certain circumstances, does not apply in the present case because the Will was made before it commenced operation.

8. [47]

   The defendant relied on two subsidiary rules of construction which are sometimes resorted to: first, the rule that absolute gifts should not be cut down except by clear words; and, second, the ‘rule of despair’.

9. [48]

   The rule that absolute gifts should not be cut down except by clear words was explained by Young AJ in Cobcroft v Bruce (2013) 9 ASTLR 397; [2013] NSWSC 774 at [22]–[23]:

10. [49]

    The so called “rule of despair” provides that where two clauses in a will are irreconcilable, the latter will prevail. As the name suggests, it is a rule of last resort: Dal Pont, Law of Succession, at [8.34]. It was explained by Vickery J in Thomson v Thomson [2008] VSC 375 (footnotes omitted) as follows:

Submissions

1. [50]

   The plaintiff submits that the preferable construction of the Will is that the Toukley property is intended to be devised to such of the nine beneficiaries identified in cl 4 as survive the date of termination. This is construction (4) identified in [36] above.

2. [51]

   The plaintiff submits that cl 3(e)(vi) is designed to set out the instructions as to the remainder interest in the Toukley property once Margaret’s right of residence has come to an end, and it can be divided into two parts:

   1. (1)

      a provision for the remainder interest in the Toukley property to fall into the residuary estate following termination of the right of residence:

   2. (2)

      a direction that makes the entitlement of any residuary beneficiary to so much of the residue as consists of the Toukley property contingent upon that beneficiary surviving the date of termination of Margaret’s right of residence:

3. [52]

   The effect of the second part of cl 3(e)(vi) is to split the residue into two parts: the part of the residue that consists of the remainder interest in the Toukley property, and the part that does not. The part that contains the Toukley property must be dealt with in accordance with cl 3(e)(vi) read in conjunction with cl 4.

4. [53]

   In other words, the gift of the residue to Margaret in cl 4 should be read subject to the second part of cl 3(e)(vi) to the extent that the residue includes the Toukley property following the termination of her right of residence.

5. [54]

   The plaintiff submits that reading cl 4 as subject to cl 3(e)(vi), the next question which arises is whether the remainder interest in the Toukley property (a) falls on a partial intestacy to the beneficiaries entitled to Cedric’s estate on an intestacy, or (b) falls to the residuary beneficiaries in cl 4 in nine shares, or (c) falls to such of the nine residuary beneficiaries in cl 4 who survived the deceased and Margaret.

6. [55]

   The plaintiff submits that the third alternative is to be preferred, relying on the golden rule of construction referred to above. To avoid an intestacy the words “should my friend Margaret Anne Astill predecease me” would be read as “should the gift of residue to Margaret Anne Astill fail or lapse in part or in whole”.

7. [56]

   In support of this contention, the plaintiff submits that the Court can have regard to the terms of the 1986 Will. In the 1986 Will, Cedric dealt with the Toukley property in a different way. Clause 4 of the 1986 Will provided for a right of residence in favour of Margaret, and upon the termination of that right of residence directed the trustees to:

8. [57]

   Clauses 4(a)–(i) then identify the same nine beneficiaries identified in cl 4 of the Will which tends in favour of a conclusion that the Toukley property was intended to be left to the nine beneficiaries upon the termination of the right of residence.

9. [58]

   The defendant adopts the analysis in the Counsel’s Advice and submits that the first part of cl 3(e)(vi) makes an absolute gift of the Toukley property to Margaret under cl 4 following the termination of the right of residence, and the direction at the end of that clause does not cut down this absolute gift for essentially two reasons. First, the direction is to be treated as a separate clause which is ambiguous and the ambiguity is to be resolved by applying the principle referred to at [48] above that a clear and absolute gift (in this case, the gift in cl 4) should not be cut down without clear words to the contrary (and there are no clear words to the contrary). Second, cl 4 is the specific provision regarding the residuary estate which should prevail over the general provision in cl 3(e)(vi). While the ‘vesting conditions’ which exist in relation to the residuary estate are taken to apply to the Toukley property by the operation of the direction at the end of cl 3(e)(vi), this does not pick up the vesting conditions in the proviso to cl 4 because, as noted in Counsel’s Advice, these are gifts over in the event that Margaret predeceased Cedric which did not occur. Reading the Will as a whole, Cedric’s intention is clear that the residuary estate should be absolutely gifted to Margaret, as set out in cl 4, and by giving effect to this construction of cl 4 the Court will avoid an intestacy in relation to the Toukley property.

10. [59]

    The defendant submitted that this approach was also supported by the rule of despair because, if there is a conflict between the direction in cl 3(e)(vi) and cl 4, the latter as the later clause should prevail.

11. [60]

    The defendant also submitted that the following extrinsic evidence was admissible under the armchair principle to resolve the ambiguity that was created by the direction in cl 3(e)(vi):

    1. (1)

       Clause 4 of the August 1988 Will, which gifted the residuary estate to Margaret entirely;

    2. (2)

       The primacy that Cedric gave to Margaret and her sons Peter and Robert in the gifts of personal property at cll 3(a)–3(c).

    3. (3)

       Cedric and Margaret’s de facto relationship from 1984–1991, and the fact that they resided in and shared the Toukley property as a familial home during this time along with Margaret’s children.

    4. (4)

       Margaret’s understanding that the decision in the 1991 proceedings did not interfere with her interest in the Toukley property.

    5. (5)

       Margaret’s treatment of the Toukley Property as her own, including making significant improvements to the property.

12. [61]

    The defendant submits that the approach taken by the plaintiff is an impermissible rewriting, rather than construction, of the Will. The preferable conclusion is that the Will be construed such as that the Toukley property formed part of the residuary estate that was gifted absolutely to Margaret.

Consideration

1. [62]

   In my opinion, as the plaintiff submits, the fourth alternative construction of the Will set out at [36] above is correct for the following reasons.

2. [63]

   First, reading the Will as a whole and taking into account the scheme of the Will summarised at [12] above, it is clear that Cedric did not intend to make a gift of the Toukley property to Margaret outright, and intended only to give her a right of residence during her lifetime. That right of residence is carefully circumscribed — it contains conditions which Margaret must comply with and also allows for a similar right of residence over a replacement property should she wish to exercise the right conferred by cl 3(e)(v). None of this would have been necessary, and cl 3(e) would not have been included, had Cedric intended to gift the property to her outright. A natural inference from this, and the different treatment given to the Toukley property in cl 3(e) compared to the Gladesville property in cl 3(f) (the net proceeds of sale of which pass to Margaret after certain specific gifts), is that Cedric did not intend the Toukley property to pass to Margaret’s estate on her death.

3. [64]

   Second, several conclusions can be drawn from the words of cl 3(e)(vi):

4. [65]

   In my view it follows from the previous paragraph that: (a) Cedric did not intend a partial intestacy in respect of the Toukley property, and consistently with the “golden rule”, the second construction of cll 3(e)(vi) and 4 referred to in [36] above should be rejected, and (b) something has gone wrong with the drafting of clause 3(e)(vi).

5. [66]

   Third, contrary to the defendant’s submissions, in my opinion cl 3(e)(vi) is the more specific provision for the Toukley property for two reasons: cl 3(e) deals exclusively with the destination of the Toukley property and second, cl 4 only applies to the Toukley property through, and subject to the direction in, cl 3(e)(vi). The primary focus should therefore be on the operation of cl 3(e)(vi) rather than the more general terms of cl 4. This reflects the principle that the more specific provision of the Will should govern the general.

6. [67]

   Fourth, the direction in cl 3(e)(vi) is just that — an instruction or command that while the remainder interest in the Toukley property is to follow the destination of the residuary estate, this is on the basis that the interest in residue in so far as the Toukley property is concerned shall “include a provision” that such interest is contingent on the beneficiary surviving the date of termination. The only way to give effect to that instruction or command where, as here, the right of residence has terminated under cl 3(e)(iv)(a) is to treat that “provision” as adopting the proviso to cl 4 as the destination of the remainder interest in the Toukley property, but subject to the additional requirement that it is only those persons nominated in the proviso who survive the date of termination who will take an interest. This is the fourth alternative construction at [36] above.

7. [68]

   In my view, the fourth alternative construction is more consistent with the scheme of the Will and avoids the absurd result arising from the construction put forward by the defendant, and in Counsel’s Advice, which effectively ignores the direction in cl 3(e)(vi) and indeed makes the regime of cl 3(e) as a whole redundant — if the property is to pass to Margaret under cl 4 on the date of termination it would not have been necessary to give her only a limited right of residence during her lifetime.

8. [69]

   Fifth, it is accepted that a Court can, as part of the process of construction, read words into a will where it is clear on the face of the will that words have been omitted from the will and what those omitted words are. Reading words into or “moulding” the terms of a will in these circumstances to avoid an absurd and irrational result which would otherwise arise, when the will is read as a whole, is long established: see eg. in England: Re Redfern (1877) 6 Ch D 133 at 138; Re Smith [1948] Ch 49 at 53; Re Whitrick (deceased) [1957] 1 WLR 884 at 889, 891–892; Re Doland’s Will Trusts [1970] Ch 267 at 274; in Australia: Towns v Wentworth (1858) XI Moore 526 at 543; 14 ER 794 at 800 (Privy Council); Fell v Fell supra, propositions [5]–[8]; Tatham v Huxtable (1950) 81 CLR 639 at 645 at 651–652; [1950] HCA 56 Re Whelan [1961] VR 706 at 710; In re Solomon [1946] VLR 115 at 120–121; Butlin v Butlin (1966) 113 CLR 353 at 357 and 362; [1966] HCA 4; Betts v Connolly (1970) 120 CLR 417; at 420–421, 427–428 and 428–429; [1970] HCA 18. As noted by Romer LJ in Re Whitrick (deceased) at 892, “it is not necessary … to know the precise language which the testatrix must be deemed to have had in mind; it is sufficient if one knows that she did intend to make a particular provision and what that particular provision was”.

9. [70]

   The process of correcting a will in this way as part of the process of construction of a will was explained by Barwick CJ in Butlin v Butlin (1966) 113 CLR 353 at 357:

10. [71]

    In my opinion it is clear when the Will is read as a whole that Cedric intended to make a particular provision regarding the remainder interest in the Toukley property under cl 3(e)(vi) and what that provision was: the beneficiaries named in the proviso to cl 4 were to take the Toukley property following Margaret’s death, but only if they survive her (ie. the fourth construction set out at [36] above). This can be achieved by adding to cl 3(e)(vi) after the words “to follow the destination thereof” the words “under, in both cases, the proviso to cl 4”.

11. [72]

    I have borne in mind that a Court does not lightly read words into a will, because the Court is entitled only to construe the will and not to remake it. However, in circumstances where it is clear from reading the Will as a whole that something has gone wrong, as I think it is in this case, the authorities at [69] above indicate that the Court can and should supply the omitted words to give effect to the testator’s expressed intention determined in accordance with the principles referred to earlier.

12. [73]

    The conclusion reached above is confirmed if regard is had to Cedric’s two prior wills. Both parties accepted that the Court could have regard to Cedric’s two prior wills under the armchair principle. In my view, that is correct as those wills are part of the surrounding circumstances known to Cedric when he made the Will and are therefore relevant context for the construction of the Will. Support for this view is found in Re Bowen (deceased) [1965] VR 113 at 117; Rawstron v Freud [2014] EWHC 2577 at [60]–[61]; Farrelly v Phillips (2017) 128 SASR 502, [2017] SASCFC 111 at [33]–[34] (earlier drafts of the final will); Marley v Rawlings [2015] AC 129, [2014] UKSC 2 at [20]–[23]; and Alexander Learmonth QC et al, Theobold on Wills (Thomson Reuters, 19th ed, 2021) at [18-003].

13. [74]

    Under cl 4 of the 1986 Will, the persons identified as those intended to take the Toukley property on the termination of Margaret’s right of residence are the same persons who are identified in the proviso to cl 4 of the Will, but were different from the persons entitled to take the residuary estate if Margaret predeceased Cedric under cl 6 of the 1986 Will. Under the August 1988 Will, that changed, and those two groups of beneficiaries became the same and it was that will which introduced cl 3(e)(vi) (in terms replicated in the Will). When regard is had to this history of Cedric’s will making, an explanation for the drafting of cl 3(e)(vi) in both the August 1988 Will and the Will can be identified: it adopted a “short cut” drafting technique designed to incorporate by reference the persons listed in the proviso to cl 4 for the purposes of the gift in remainder under cl 3(e)(vi) because they were the same persons who had previously been selected in the 1986 Will as the persons to take the Toukley property on the termination of Margaret’s right of residence. However, in doing so, a drafting error was made by the failure to appreciate that those persons appear in cl 4 in a proviso which, read literally, would not apply if Margaret survived Cedric.

14. [75]

    Hence, Cedric’s prior wills tend to confirm (and do not contradict) the conclusion I have reached on the basis of the terms of the will.

Conclusion

1. [76]

   For the above reasons, the correct construction of the Will is that the “trusts and conditions” referred to in cl 3(e)(vi) of the Will are the trusts and conditions in cl 4(a) to (j) of the Will whereby the residue of the deceased’s estate, after payment of all “just debts funeral and testamentary expenses probate estate death and other duties”, is divided into nine equal parts and held on trust in such parts for the beneficiaries described in paras (a) to (i) of cl 4, subject to the relevant beneficiary surviving the death of Margaret Anne Astill on 9 May 2015.

2. [77]

   In light of that conclusion, it is appropriate for an order to be made under s 138 of the Real Property Act 1900 to require the Registrar-General to amend the folio of the registrar maintained for 75/21204 so as to record in the First Schedule the plaintiff as the sole registered proprietor of the land.

3. [78]

   As the parties wish to be heard on costs, I will stand the matter over for directions for the finalisation of the orders and the determination of costs. The parties are to bring in short minutes of order to reflect these reasons.