Longmore v Longmore & Ors; The Estate of Jean Longmore

1. [1]

   The point in issue in these proceedings may be shortly stated. A testatrix was pre-deceased by one of her four children. That deceased child was survived by his spouse and one child. The testatrix’s will provided “I give the whole of my estate equally between such of my children as survive me in equal shares as tenants in common”. The Wills, Probate and Administration Act 1898 (“the WPA Act”), s 29 is now repealed. But it applies to the testatrix’s will. It relevantly provides that where a child of a testator dies during the lifetime of a testator, leaving issue who survives the testator, the bequest will not lapse but “shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will”.

2. [2]

   The point in issue is whether the words in the will, “between such of my children as survive me in equal shares as tenants in common”, constitute a contrary intention, so as to negative the operation of WPA Act, s 29. These reasons conclude that it does express a contrary intention and negatives the operation of WPA Act, s 29.

3. [3]

   Jean Longmore (“the testatrix”) died on 10 May 2016. She and her late husband, Noel Walter Longmore, had four children: Wayne Longmore, Kathleen Lawrence, Robert Walter John Longmore and Roseanna Thelma Longmore.

4. [4]

   Both the testatrix’s husband Noel and her son Robert predeceased her. Robert was survived by his wife Beryl Edna Longmore and his son Duncan Walter John Longmore.

5. [5]

   The testatrix’s last will was dated 27 February 1980. Probate of her will was granted on 13 December 2016 to Roseanna Longmore, the sole survivor of the two substitute executors under the will. The will relevantly provided as follows:

6. [6]

   Robert Longmore had died in 1983. Probate of his last will dated 20 March 1980 was granted to Stanislaus Anthony Carroll, the executor appointed by that will. After appointing Mr Carroll as his executor, Robert’s will provided:

7. [7]

   Succession Act 2006, s 41 repealed much of Part 1 of the WPA Act, including s 29. But through transitional provisions WPA Act, s 29 continues to apply in respect of wills made before 1 March 2008, whether or not the testator died on, before, or after 1 March 2008: Succession Act, Schedule 1.3, Item 2(2). WPA Act, s 29 therefore applies to the testatrix’s will, which was made in 1980.

8. [8]

   WPA Act, s 29 provides as follows:

9. [9]

   If WPA Act, s 29 is applied to clause 4 of the testatrix’s will, the gift of a one quarter share of the estate would not lapse and that portion of the estate would pass to Mr Carroll, the executor of Robert’s estate, and would be dealt with under Robert’s will.

10. [10]

    By her Summons dated 22 June 2017, the testatrix’s executrix, Roseanna Longmore, seeks a determination as to whether “a contrary intention appears” in clause 4 of the will, which would prevent the application of WPA Act, s 29 to clause 4 of the testatrix’s will. A finding of such a contrary intention and the consequent non-application of s 29 would permit the gift to Robert to lapse and Robert’s share of the testatrix’s estate to pass to her other surviving children under her will.

11. [11]

    The relief claimed in prayers 1 and 2 of the Summons is as follows:

12. [12]

    The Summons joins as first and second defendants, Wayne Longmore and Kathleen Lawrence, the testatrix’s two surviving children other than the plaintiff. The Summons also joins as third defendant, Mr Carroll as executor of Robert Longmore’s estate. He was not intending to take an active part in these proceedings. So Mr Duncan Longmore, Robert’s son and co-beneficiary of his estate, was on his application joined as the fourth defendant in the proceedings.

13. [13]

    The first and second defendants filed submitting appearances. The fourth defendant appeared and put submissions contrary to those advanced by the plaintiff.

14. [14]

    The plaintiff/executrix contends that the words in clause 4 of the testatrix’s will “by such of my children as survive me in equal shares” constitute a contrary intention for the purposes of WPA Act, s 29, so as to negative the operation the section. If the contention of the plaintiff/executrix is correct, Robert Longmore’s share of the testatrix’s estate lapses and passes under clause 4 to her three surviving children.

15. [15]

    The fourth defendant, Duncan Longmore, contended for the contrary result: that the words in clause 4 do not constitute a contrary intention for the purposes of WPA Act, s 29, so that the section applies and Robert’s one quarter share of the testatrix’s estate would pass to Robert’s executor under Robert’s will. That share would then be distributed under Robert’s will to his mother Beryl Edna Longmore and to him, Duncan Walter John Longmore.

16. [16]

    Mr L. Ellison SC of counsel instructed by Turner Freeman appeared for the plaintiffs. Mr A. Rogers of counsel instructed by Boulton Julian Squire appeared for the fourth defendant.

17. [17]

    The Court has been much assisted by the careful submissions advanced on behalf of both sides, in a case which has required a survey of relevant New South Wales and interstate authority, together with the opinions of a number of text writers.

18. [18]

    The parties’ submissions are conveniently set out in the course of the Court’s discussion of the cases cited by each side in argument.

19. [19]

    Whether “a contrary intention appears by the will” for the purposes of s 29 requires the construction of the testatrix’s will. In Fell v Fell (1922) 31 CLR 268 at 272-276 Isaacs J stated the ten essential principles of the construction of wills. The second of Isaac J’s principles is that the instrument must receive a construction according to the plain meaning of the words and sentences therein contained. But the Court must at the same time “look at the whole instrument”. And the fifth of Isaac J’s principles is that the Court cannot “give effect to any intention which is not expressed or plainly implied in the language” of the will.

20. [20]

    When applying the second principle and looking at the instrument as a whole, a useful approach is the one taken by Bryson J in Perpetual Trustee Co Ltd v Wright & Ors; Re the Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18 at 33, where his Honour said, “it seems to me that one’s task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect to the scheme so revealed”.

21. [21]

    In this case, the plaintiff’s contention is straight-forward: that the testatrix’s scheme was to benefit only her surviving children.

22. [22]

    The plaintiff submits that this scheme derives from three sources:

    1. (1)

       The testatrix uses the precise words “such of my children as survived”;

    2. (2)

       Such scheme as the testatrix evinces is one which appears to demonstrate an intention to benefit the testator’s surviving children; and

    3. (3)

       The comments of judges at first instance with regard to the interpretation of the particular words in question here also support the conclusion that this was the testatrix’s scheme.

23. [23]

    The plaintiff contends these are all the basis for the Court to conclude that the deceased did demonstrate a “contrary intention” within the meaning of WPA Act, s 29.

24. [24]

    There has been some conflict in authority over decades as to whether provisions such as that in clause 4 of the testatrix’s will, “to such of my children as survived me and in more than one in equal shares” or words to similar effect, amount to an expression of a contrary intention to negative the operation of WPA Act, s 29 and its equivalent. A number of academic authorities led by Professor H A J Ford in “Lapse of Devises and Bequests” (1962) 78 LQR 88 and I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Lawbook Co) at [916] submit that gifts that merely refer to such of a group of persons as “surviving” do not express a contrary intention. The academic opinion is largely based upon the contention that although such words do indeed provide for what is to occur if a child pre-deceases the testator, they do not expressly cover the situation that WPA Act, s 29 and similar sections contemplate, of a child or other issue pre-deceasing the testator and leaving issue, who survive the testator. Some support for this view is gained from the English decision Re Meredith [1924] 2 Ch 552 (“Re Meredith”).

25. [25]

    But the counter argument is that such words do express a contrary intention by the testator to vest the property in the surviving persons within the clause and not in those who would take if the sections operated. Cases such as Re King [1953] VLR 648 (“Re King”) and Public Trustee v Freeman; In Re Lathbridge, deceased (1958) VR 366 are authorities for this latter approach.

26. [26]

    The Court must first address the question of whether it is bound by authority on this issue. The plaintiff contends that the Court is bound to follow Bassett & Ors v Hall [1994] 1 VR 432 (“Bassett v Hall”), a decision of the Full Court of the Supreme Court of Victoria which followed Re King.

27. [27]

    If Bassett v Hall is directly on point then the plaintiff’s submissions must be approached bearing in mind the relationship between a single judge of a state Supreme Court and a full court of another state, a relationship which was re-stated by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, at [135]:

28. [28]

    In my view, the Victorian legislation considered in Bassett v Hall is relevantly indistinguishable in substance from WPA Act, s 29 and the ratio of Bassett v Hall deals with the same issue which is now before me. In consequence I have reached the conclusion that I should follow Bassett v Hall. Moreover, I see no reason to question the authority of Bassett v Hall. The case has been followed by well-considered authority on the same subject in New South Wales, Queensland and Victoria. This authority is now briefly surveyed followed by a consideration of the arguments advanced on behalf of Mr Duncan Longmore.

29. [29]

    In Bassett v Hall the testator bequeathed the balance of her residuary estate to “my two sons… as shall be alive at the date of my demise”, one of the sons pre-deceased the testator. Upon the testator’s death the children of the deceased’s son claimed an entitlement to the residuary estate under Wills Act 1958 (Vic), s 31. The trial judge in Bassett v Hall had followed Re King. The children of the deceased’s son appealed, and argued that in order for there to be a “contrary intention” within Wills Act 1958 (Vic), s 31 there had to be a specific exclusion of a gift to issue.

30. [30]

    The trial judge in Bassett v Hall had read the words “such of” before the words “my two sons” in the testatrix’s will. One of the issues on the appeal was whether that implication should be made. Such an issue does not arise in the present proceedings because in clause 4 the words “such of” precede the words “my children as survive me in equal shares”. But taking that extra contest into account the full court summarised the appellants’ and the respondents’ arguments as follows:

31. [31]

    In my view, with the exception of the words in s 31(2), Wills Act 1958 (Vic), s 31 is in substantially identical terms to Wills, Probate and Administration Act 1898, s 29, although Mr Duncan Longmore’s submissions argued to the contrary in these proceedings. For completeness Wills Act 1958 (Vic), s 31(1) and (2) are set out below:

32. [32]

    The full court addressed the question of the meaning of “contrary intention” and whether it was disclosed by the terms of the will before them. On that subject their Honours (Marks, Gobbo and Coldrey JJ) said the following:

33. [33]

    Their Honours then dealt with the contrary academic opinion, after noting that such authorities as there were on the operation of Wills Act 1958 (Vic), s 31, including Re King, did not support the appellant’s argument. Their Honour’s treatment of the academic opinion was as follows:

34. [34]

    Bassett v Hall has been followed or approved in several cases in New South Wales, Queensland and Victoria. In the decision of Young J (as his Honour then was), Estate of Elizabeth Emily Jenkinson [2000] NSWSC 495 (“Jenksinson”), Young J considered the English decisions such as Re Meredith (at [9]), the contrary academic opinion (at [11]) but then applied Bassett v Hall (at [12]), as he felt he was obliged to do “as of course”, it being a decision of an intermediate full court (at [13]). His Honour declined to adopt any “strict view” of WPA Act, s 29. Rather he decided (at [14]) to follow the line of cases that it is “ordinarily a sufficient contrary intention if the testator has in the will made a gift over in the event that a particular child has not survived a testator”. In Jenkinson the gift over was expressed in clear terms to the testatrix’s daughter “but if she should pre-decease me then to her husband”. The words of gift over are stronger than those of clause 4 in the present proceedings. But Young J acted on the principle for which Bassett v Hall stands as authority: that it was sufficient for there to be an indication in the will as to who would take in the event of issue pre-deceasing the testator and it was not necessary to go to the lengths of expressly dealing with what is to happen to the property if the legatee pre-deceased the testator leaving issue who survived the testator.

35. [35]

    In two cases in Queensland White J reached the same conclusion. Her Honour decided the Public Trustee of Queensland v Robertson & Murray [2000] QSC 301 (“Robertson”) and the Public Trustee of Queensland v Jacob & Ors [2006] QSC 372 (“Jacob”). In Robertson her Honour considered Bassett v Hall with approval (at [13]). In Jacob her Honour also considered Bassett v Hall with approval (at [44]). In Jacob her Honour also drew attention to McPherson JA’s consideration of Bassett v Hall with apparent approval in Burman v Burman [1998] QCA 250 (“Burman”).

36. [36]

    Jacob considered an aspect of the relevant Queensland legislation, the Succession Act 1981 (Qld) that also appears in the Victorian legislation but not in the New South Wales legislation. As her Honour indicated, the Victorian legislation (Wills Act 1958(Vic), s 31(2)) expresses “less succinctly” the same idea as does Succession Act 1981 (Qld), s 33(2); the legislation “provided for a gift to issue of deceased children who pre-deceased their parent unless a contrary intention appeared in the will, “and that a condition as to survivorship was not a contrary intention” (at [43]).

37. [37]

    The form of the Succession Act 1981 (Qld), s 33 that White J considered relevantly provided as follows:

38. [38]

    In Jacob White J was faced with words in a will that contemplated mere survivorship for a period, “as shall survive me for a period of 30 days” which under the Queensland legislation would not (by reason of s 33(2)) ordinarily constitute a contrary intention for the purposes of s 33. So her Honour was required to address the additional question, that did not have to be considered in Bassett v Hall, as to whether the words “and if more than one in equal shares”, in addition to the words “as shall survive me”, were sufficient to indicate a contrary intention beyond the statutory clearance allowed under s 33(2): that conditions that merely indicated survivorship were not, on their own, sufficient to be “a contrary intention”.

39. [39]

    Her Honour found (at [48]) that the words “in more than one in equal shares” could not be surplusage but reinforced the plain meaning of the testatrix to benefit survivors.

40. [40]

    White J said the following in her conclusion (at [48]):

41. [41]

    White J’s decision in Jacob is important for the present case. Her Honour’s reasons identify and rely upon the use of words such as appear in the testarix’s will here “in equal shares as tenants in common” as reinforcing the construction of clause 4 that the testatrix wished to benefit survivors.

42. [42]

    Bassett v Hall was followed by Habersberger J in the later Victorian decision in Kavanagh v Reardon [2012] VSC 174 (“Kavanagh v Reardon”). In that case Habersberger J was considering Wills Act 1997 (Vic), s 45, which contained provisions that reproduced the policy intent of Wills Act 1958 (Vic), s 31 but in a more succinct form. His Honour adverted (at [20]) to the academic opinion of Professor Ford but considered (at [20]-[22]) that it was inconsistent with the reasoning in Bassett v Hall, which bound him. He followed Bassett v Hall.

43. [43]

    In Kavanagh v Reardon Habersberger J considered Young J’s decision in Jenkinson and White J’s decision in Jacob with approval (at [23] and [28]). But importantly his Honour also considered the potentially inconsistent decision of Derrington J in Re Macaudo [1993] 2 Qd R 269, and noted that White J did not follow it in Jacob but applied Bassett v Hall and Douglas J’s judgment in Public Trustee of Queensland v Robertson [2005] 2 Qd R 444.

44. [44]

    This is a very substantial weight of authority. In my view I should take the same course as Young J, White J, Douglas J and Habersberger J and follow Bassett v Hall.

45. [45]

    In very careful submissions Mr Rogers advanced a number of contrary arguments to the conclusion just expressed. In my view, though thoroughly developed by Mr Rogers, they are not ultimately persuasive. Moreover, I do not regard myself at liberty to depart from Bassett v Hall, even if I were minded to do so.

46. [46]

    Mr Rogers argues that Bassett v Hall was decided on substantially different legislation from WPA Act, s 29 or alternatively that the Victorian full court appeared to ignore the words in Wills Act 1958 (Vic), s 31(2) that provided that mere survivorship was not a contrary intention. But the words in the will in Bassett v Hall did not mention “surviving” the testator but were different. That explains why the full court in Bassett v Hall did not need to consider s 31(2).

47. [47]

    Mr Rogers relied on Re Macaudo [1993] 2 Qd R 269 and an earlier unreported decision of Re Trenfield ((unreported) Supreme Court of Queensland, 10 October 1986, Kneipp J). But Re Macaudo [1993] 2 Qd R 269 has not been followed by several other judges who have applied Bassett v Hall and need not now be re-considered.

48. [48]

    Mr Rogers referred the Court to a number of English cases. But in my view they do not displace the reasoning of Bassett v Hall. And his other arguments in substance restated the academic arguments rejected in Bassett v Hall.

49. [49]

    In my view, both the words “such of my children as survive me” and the words “in equal shares in tenants in common” in the testatrix’s will in this case both indicate contrary intention for the purposes of WPA Act, s 29.

Conclusions and Orders

1. [50]

   In the result therefore the Court answers the questions for determination in the Summons as follows:

   1. (1)

      Question 1: In the events which have happened a contrary intention appears in clause 4 of the will of the late Jean Longmore (“the deceased”), which would defeat the application of section 29 of the Wills, Probate and Administration Act 1898 to the said Clause 4.

   2. (2)

      Question 2: As the answer to Question 1 is “yes”, the plaintiff is entitled to distribute the deceased’s estate without regard to the interests of any pre-deceased issue of the deceased (“the pre-deceased issue”) or any persons beneficially entitled to any pre-deceased issue’s estate.

   3. (3)

      Order that the plaintiff’s costs of these proceedings be paid out of the estate on the indemnity basis.

   4. (4)

      Order that the fourth defendant’s costs of these proceedings be paid out of the estate on the ordinary basis.