application such as this are of long-standing. The object is to discover the testator’s
intention through examination of the words used in the will.2 To do so, regard is had to
the rules of construction traditionally applied by the courts and the aids to construction
contained in s 33C of the Succession Act 1981 (Qld).3
[4] At the heart of this interpretative exercise is the consideration of the usual meaning of the
language used in the testamentary provision in question, and this is to be done in light of
the will read as a whole.4
If the meaning of the provision is clear, the will shall be given
that construction.5 However, in determining what a testator meant by the words used in
the will, the court may receive evidence under the “armchair rule” so as to place itself in
the position of the testator at the time when the will was made. In this way, the court can
take account of the material circumstances which were known (or ought to have been
known) by the testator at the time when he or she used the words contained in the will.
The rationale for the rule is to be found in the proposition that “the meaning of words
varies according to the circumstances of and concerning which they are used”6
and,
because of that, the court is often assisted by establishing the context in which the
testamentary intentions were expressed. Importantly, such a rule applies where those
intentions appear, on a plain reading of the will, to be clear as well as in circumstances
where s 33C of the Act applies.Section 33C applies where the language used in the will, or part of it, is: (1) meaningless;
(2) ambiguous on the face of the will; or (3) ambiguous in the light of surrounding
circumstances. The provision does not prevent the admission of evidence that would
otherwise be admissible in a proceeding to interpret a will,8
but it makes clear that the
court may have regard to extrinsic evidence to help in the interpretation of language which
may be characterised in one of the three ways to which I have just referred. Where the
language is meaningless or ambiguous on the face of the will, such extrinsic evidence can
include evidence of the testator’s intention but, where the language is considered to be
ambiguous in the light of surrounding circumstances, evidence of the testator’s intention
is not admissible to establish any of those circumstances.
[6] The court is bound to construe the will “as trained legal minds would do”.9 That, however,
is not to say that the will must be construed in a strictly technical or legalistic sense; its
As to which, see Smith at 32-33, [24]-[25] per Atkinson J.
9 Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ; cited with approval by Isaacs J in Fell at 273.4
construction should be “sensitive to the factual context of ordinary life and
circumstances”.10 Further, the court should lean towards a construction which preserves,
rather than destroys, its effect.11 If the will shows that the testator must necessarily have
intended that an interest be given but there are no words in the will which expressly have
that effect, the court is to “supply the defect by implication, and thus to mould the
language of the testator, so as to carry into effect, as far as possible, the intention which
it is of opinion that the testator has on the whole will, sufficiently declared”.
12 But, as to
this, the court will not give effect to any intention which is “not expressed or plainly
implied”13 in the language of the will; there is no room for “gratuitous, groundless,
fanciful implication”.14 On the other hand, if the contents of a will show that a word has
been “undesignedly omitted or undesignedly inserted, and demonstrate what addition by
construction or what rejection by construction will fulfil the intention with which the
document was written, the addition or rejection will by construction be made”.15
Background
SUPREME COURT OF QUEENSLAND
CITATION: Suthers & Anor v Suthers & Ors [2015] QSC 285
PARTIES: ANDREA SUTHERS and ANTHONY DAVID
SUTHERS (as executors of the Will of JESSIE ANNIE
SUTHERS)
(applicants)
v
ANDREA SUTHERS and ANTHONY DAVID
SUTHERS and RODERICK JOHN SUTHERS
(as beneficiaries under the Will of JESSIE ANNIE
SUTHERS)
(respondents)
FILE NO/S: SC 7638 of 2015
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT:
Supreme Court at Brisbane
DELIVERED ON: 14 October 2015
DELIVERED AT: Brisbane
JUDGE: Burns J
Read full judgment here; Click here
ORDER Declare that, on the true construction of the last will of
Jessie Annie Suthers dated 26 February 2009, Andrea
Suthers is entitled, pursuant to clause 4.1.1 of the said will,
to the payment of $240,559.90
CATCHWORDS: SUCCESSION – CONSTRUCTION AND EFFECT OF
TESTAMENTARY DISPOSITIONS – CONSTRUCTION
GENERALLY – ASCERTAINMENT OF TESTATOR'S
INTENTION – GENERALLY – where the testator entered
into a lease of a retirement village apartment in 2003 – where
the testator subsequently left a pecuniary legacy to her
daughter under her last will in “an amount of money equivalent
to that amount received by my estate upon the sale of my
interest in” the apartment – where the testator moved to an
aged care facility in 2010 and disposed of her interest in that
apartment prior to her death in 2014 – where the consideration
received for the disposal of that interest was deposited into the
testator’s bank account and there remained until the date of her
death – where the sum banked was received as part of the
testator’s estate following death – where probate of the will
was granted in 2015 – where the applicant executors seek a 2
declaration as to the proper construction of the will – whether
the consideration received for the disposal of the testator’s
leasehold interest in the retirement village apartment was
received in consequence of a “sale” – whether the sum
received as part of the testator’s estate following death was
received by the testator’s estate – whether the pecuniary legacy
is effectual or falls into residue
Retirement Villages Act 1999 (Qld), s 9, s 16
Succession Act 1981 (Qld), s 33C
Allgood & Ors v Blake (1872–73) LR 8 Ex 160, cited
Fell & Anor v Fell & Anor (1922) 31 CLR 268; [1922] HCA
55, applied
King v Wogandt: Re Beutel (deceased) [2014] 2 Qd R 488;
[2014] QSC 175, cited
Langston v Langston (1834) 2 Cl & F 194, cited
Moylan v Rickard [2010] QSC 327, cited
Perrin & Ors v Morgan & Ors [1943] AC 399, cited
Pride v Fooks (1858) 3 De G & J 252, cited
Ralph v Carrick (1879) 11 Ch D 873, cited
Re Culbertson (1966) 59 DLR (2d) 381, cited
Re Willis [1996] 2 Qd R 664, cited
Scalé v Rawlins (1892) AC 342, cited
Tatham & Anor v Huxtable & Ors (1950) 81 CLR 639;
[1950] HCA 56, cited
The Public Trustee of Queensland v Smith [2009] 1 Qd R 26;
[2008] QSC 339, cited
The Trust Company Limited & Anor v Zdilar & Ors (2011) 4
ASTLR 379; [2011] QSC 5, cited
Towns v Wentworth (1858) 11 Moo PCC 526, cited
Williams v Carlyle Villages Pty Ltd [2010] 2 Qd R 379;
[2009] QCA 301, cited
COUNSEL: K N Wilson QC for the applicants
C A Brewer for the respondent Roderick Suthers
SOLICITORS: Stockley Furlong Lawyers for the applicants
Suthers Lawyers for the respondent Roderick Suthers
[1] Mrs Jessie Suthers was 99 years of age when she died on 14 November 2014. She was
survived by her three children – Andrea, Anthony and Roderick. Her last will was
executed on 26 February 2009 and, although it was admitted to probate on 11 February
2015, a dispute has arisen as to the meaning of one of its provisions.
[2] Andrea and Anthony, as the executors appointed under the will, have therefore applied to
the court for a declaration as to the proper construction of the will.
1 At issue is whether a
1 For observations about the source of the court’s jurisdiction to make such a declaration, see King v
Wogandt: Re Beutel (deceased) [2014] 2 Qd R 488 at [38]-[41] per Jackson J.3
pecuniary legacy – in an amount to be calculated by reference to the sum received on the
disposition of Mrs Suthers’ interest in a retirement village apartment – is effectual.
Construction principles
[3] The principles of construction governing the approach to be taken by the court on an
application such as this are of long-standing. The object is to discover the testator’s
intention through examination of the words used in the will.2 To do so, regard is had to
the rules of construction traditionally applied by the courts and the aids to construction
contained in s 33C of the Succession Act 1981 (Qld).3
[4] At the heart of this interpretative exercise is the consideration of the usual meaning of the
language used in the testamentary provision in question, and this is to be done in light of
the will read as a whole.4
If the meaning of the provision is clear, the will shall be given
that construction.5 However, in determining what a testator meant by the words used in
the will, the court may receive evidence under the “armchair rule” so as to place itself in
the position of the testator at the time when the will was made. In this way, the court can
take account of the material circumstances which were known (or ought to have been
known) by the testator at the time when he or she used the words contained in the will.
The rationale for the rule is to be found in the proposition that “the meaning of words
varies according to the circumstances of and concerning which they are used”6
and,
because of that, the court is often assisted by establishing the context in which the
testamentary intentions were expressed. Importantly, such a rule applies where those
intentions appear, on a plain reading of the will, to be clear as well as in circumstances
where s 33C of the Act applies.
7
[5] Section 33C applies where the language used in the will, or part of it, is: (1) meaningless;
(2) ambiguous on the face of the will; or (3) ambiguous in the light of surrounding
circumstances. The provision does not prevent the admission of evidence that would
otherwise be admissible in a proceeding to interpret a will,8
but it makes clear that the
court may have regard to extrinsic evidence to help in the interpretation of language which
may be characterised in one of the three ways to which I have just referred. Where the
language is meaningless or ambiguous on the face of the will, such extrinsic evidence can
include evidence of the testator’s intention but, where the language is considered to be
ambiguous in the light of surrounding circumstances, evidence of the testator’s intention
is not admissible to establish any of those circumstances.
[6] The court is bound to construe the will “as trained legal minds would do”.9 That, however,
is not to say that the will must be construed in a strictly technical or legalistic sense; its
2 Perrin & Ors v Morgan & Ors [1943] AC 399 at 406 per Viscount Simon LC; The Public Trustee of
Queensland v Smith [2009] 1 Qd R 26 at 31, [20] per Atkinson J.
3 Smith at 33, [26] per Atkinson J.
4 Fell & Anor v Fell & Anor (1922) 31 CLR 268 at 273-274 per Isaacs J.
5 Smith at 33, [26] per Atkinson J.
6 Allgood & Ors v Blake (1872-73) LR 8 Ex 160 at 162-164 per Blackburn J. And see Perrin at 420 per Lord
Romer; Smith at 32-33, [24] per Atkinson J.
7 The Trust Company Limited & Anor v Zdilar & Ors (2011) 4 ASTLR 379 at 384-385, [21] per Margaret
Wilson J.
8 As to which, see Smith at 32-33, [24]-[25] per Atkinson J.
9 Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ; cited with approval by Isaacs J in Fell at 273.4
construction should be “sensitive to the factual context of ordinary life and
circumstances”.10 Further, the court should lean towards a construction which preserves,
rather than destroys, its effect.11 If the will shows that the testator must necessarily have
intended that an interest be given but there are no words in the will which expressly have
that effect, the court is to “supply the defect by implication, and thus to mould the
language of the testator, so as to carry into effect, as far as possible, the intention which
it is of opinion that the testator has on the whole will, sufficiently declared”.
12 But, as to
this, the court will not give effect to any intention which is “not expressed or plainly
implied”13 in the language of the will; there is no room for “gratuitous, groundless,
fanciful implication”.14 On the other hand, if the contents of a will show that a word has
been “undesignedly omitted or undesignedly inserted, and demonstrate what addition by
construction or what rejection by construction will fulfil the intention with which the
document was written, the addition or rejection will by construction be made”.15
Background
[7] Until 2003, Mrs Suthers resided in a home unit situated in Toowong but, in September of
that year, she moved to an apartment in a retirement village situated in Taringa. In order
to do so, Mrs Suthers entered into a long lease with the owner and a separate written
agreement with the owner and operator.16 What was described as an “ingoing
contribution” in the sum of $252,200.00 was paid by Mrs Suthers for the grant of the
lease along with a sum by way of management fees. The lease was subsequently
registered and, relevantly, it entitled Mrs Suthers to occupy a particular apartment in the
retirement village.
17 By 2010, Mrs Suthers required a higher level of care and,
accordingly, it was decided to dispose of her interest in that apartment and for Mrs Suthers
to move to an aged care facility situated at The Gap. Subsequently, that interest was
disposed of and settlement took place on 16 June 2010. In consequence, $240,559.90 was
banked to the credit of an account in Mrs Suthers’ name, being the net consideration
received on the disposal of her interest.
[8] Thus, at the time when her last will was executed, Mrs Suthers was residing in the
retirement village apartment but this was no longer the position as at the date of her death.
By that time, the net consideration which had been received on the disposal of her
apartment had been banked.
[9] At the time of Mrs Suthers’ death, her assets consisted of items of personalty, shares in
various companies, a refund which would become payable by the aged care facility and
funds held in a number of bank accounts in Mrs Suthers’ name. The bank funds included
the money received by Mrs Suthers on the disposal of her interest in the retirement village
10 Moylan v Rickard [2010] QSC 327 at [34] per Peter Lyons J, citing Re Willis [1996] 2 Qd R 664 at 667.
11 Fell at 275 per Isaacs J, citing Langston v Langston (1834) Cl & F 194 at 243 per Lord Brougham LC;
Moylan at [34] per Peter Lyons J.
12 Fell at 274 per Isaacs J, citing Towns v Wentworth (1858) 11 Moo PCC 526 at 543; Moylan at [34] per
Peter Lyons J.
13 Fell at 274 per Isaacs J, citing Scalé v Rawlins (1892) AC 342 at 344-345 per Lord Watson.
14 Fell at 274 per Isaacs J, citing Langston at 236-237 per Lord Brougham LC.
15 Fell at 274 per Isaacs J, citing Pride v Fooks (1858) 3 De G & J 252 at 266 per Knight Bruce LJ. And see
Tatham & Anor v Huxtable & Ors (1950) 81 CLR 639 at 645 per Latham CJ and at 651 per Kitto J.
16 The separate agreement was entitled “Agreement to Lease” and dated 5 September 2003.
17 Apartment 94.5
apartment. Some of that money had, after receipt, been placed on term deposit on
Mrs Suthers’ behalf to attract a higher rate of interest, and such deposits were with the
same bank.
The disputed clause
[10] Clause 4 of Mrs Suthers’ last will provides for the distribution of Mrs Suthers’ estate. It
is, relevantly, in these terms:
“MY EXECUTOR shall hold on trust the whole of my Estate and distribute
the same as follows:
4.1 For my daughter ANDREA SUTHERS:
4.1.1 an amount of money equivalent to that amount received by my
estate upon the sale of my interest in Apartment 94 Aveo, 1
Moore Street, Taringa in the said State;
4.1.2 all my furniture, jewellery, clothing and all other articles of
personal, domestic or household use or ornament;
4.1.3 my shares in [company names omitted].
4.2 For my son ANTHONY DAVID SUTHERS my shares in [company
names omitted];
4.3 For my son RODERICK JOHN SUTHERS my shares in [company
names omitted];
4.4 The residue of my Estate is to be divide (sic) into four (4) equal parts
and distributed in the following manner:
4.4.1 two parts for my daughter ANDREA SUTHERS …;
4.4.2 one part for my son ANTHONY DAVID SUTHERS …;
4.4.3 one part for my son RODERICK JOHN SUTHERS …”
[11] It will be noticed that, under clauses 4.1.3, 4.2 and 4.3, Andrea, Anthony and Roderick is
each to receive a gift of specific shares and that Andrea is also to receive an amount of
money (clause 4.1.1)18 as well as personalty (clause 4.1.2). Otherwise, the residuary estate
is left to the children in the proportions indicated in clause 4.4.
[12] It is clause 4.1.1 that is in dispute. The executors contend that, on the proper construction
of this provision, it is effectual to leave to Andrea a sum of money equivalent to the sum
received on the disposal of Mrs Suthers’ interest in the retirement village apartment, that
is to say, $240,559.90, and a declaration is sought accordingly. On the other hand,
Roderick contends that, when the clause is properly construed, the pecuniary legacy fails.
If Roderick is right, that sum of money will fall into residue.
18 It is uncontroversial that the apartment described in clause 4.1.1 is the apartment that was leased by
Mrs Suthers in the retirement village.6
[13] I interpolate that some criticism was made of the approach taken on behalf of the
executors in the making of this application. It was submitted that the executors should
have adopted a “neutral stance” by which “all possible constructions” were placed before
the court but, instead, advanced a particular construction which, if upheld, will result in a
payment from the estate to Andrea pursuant to clause 4.1.1. I think that criticism was
misplaced. It is clear from the correspondence passing between the solicitors representing
the executors and those representing Roderick that the executors (and those advising
them) formed an early view that the pecuniary legacy was effectual, and they have
maintained that view throughout. The executors’ construction of clause 4.1.1 was
contested, and the reasons why articulated, in correspondence forwarded on behalf of
Roderick. The executors placed all such correspondence before the court. Furthermore,
in a letter dated 31 March 2015, Roderick’s solicitors made it clear that their client
disputed the executors’ construction, called on the executors to “obtain an interpretation
by the Court” and said that, if this did not occur, an application would be made to the
court on behalf of Roderick. Given these matters, it was never going to be the case that
the court would be under any misapprehension about the competing arguments, or who
is propounding them. In circumstances where, as here, the executors have no genuine
belief in the merits of a competing construction, they can scarcely be criticised for
declining to advance it to the court.
[14] That said, it is relevant to observe that Mrs Suthers made 12 previous wills between
9 December 1997 and 12 March 2008. A copy of each is in evidence. It is important to
note these features:
(a) Although the disposition of the residuary estate varies in proportion between the
children across the previous wills, each makes additional provision in favour of
Andrea, that is, over and above the provision by gift made in favour of Anthony
or Roderick;
(b) The first six wills in time were executed by Mrs Suthers when she was still
residing at the Toowong home unit. Each of those wills devised to Andrea:
“… my home unit situated at […] Toowong or such other principal
place of residence owned by me at the date of my death.”19
(c) The subsequent six wills in time were executed by Mrs Suthers when she was
residing in the retirement village apartment.20 Each of those wills contains a
pecuniary legacy to Andrea in terms almost identical to clause 4.1.1 of
Mrs Suthers’ last will,21 that is, of:
19 The wills containing a devise in these terms were executed on 9 December 1997, 11 February 1999,
26 March 1999, 25 January 2001, 6 June 2002 and 25 February 2003.
20 These wills were executed on 10 November 2003, 21 February 2005, 28 October 2005, 12 September 2006,
16 March 2007 and 12 March 2008.
21 The only difference is in the description of the apartment; the wills executed on 10 November 2003,
21 February 2005, 28 October 2005, 12 September 2006 and 16 March 2007 use the description “Apartment
94 Forest Place” whereas the will executed on 12 March 2008 and the last will use the description
“Apartment 94 Aveo” (emphasis added).7
“ … an amount of money equivalent to that amount received by my
estate upon the sale of my interest in Apartment 94 Aveo, 1 Moore
Street, Taringa in the said State”.
Consideration
[15] In my opinion, clause 4.1.1 is capable of being construed by a consideration of the usual
meaning of the words used in light of the circumstances in which the will was made.
There is no need to have recourse to the type of extrinsic evidence made admissible by
s 33C of the Succession Act 1981 (Qld) to determine Mrs Suthers’ testamentary intention
or, expressed in another way, to determine what she meant by the words used in that
clause.
[16] The circumstance that Mrs Suthers had, over the course of 13 wills (including her last
will), consistently made additional provision in Andrea’s favour can be taken into account
by the court applying the “armchair rule”. Indeed, there would appear to have been good
reason for making additional provision in Andrea’s case; she cared for, and assisted, her
mother in her twilight years.22 It is also to be taken into account in this regard that, in the
first six of the wills to which I have referred, this additional provision was specific – the
home unit “or such other principal place of residence” owned by Mrs Suthers at the date
of her death. That testamentary approach changed when Mrs Suthers moved into the
retirement village. No longer was a devise of specific real property made. Mrs Suthers’
living situation had changed and, as part of that, she had paid the “ingoing contribution”
of $252,200.00 for the grant of the lease of the retirement village apartment. Clearly, the
approach taken by Mrs Suthers from then was to make a pecuniary legacy in Andrea’s
favour, the quantum of which was intended to be equivalent to the amount that she
expected would be received for the disposal of her leasehold interest in that apartment.
But, although Mrs Suthers’ testamentary approach changed, her testamentary intention
did not. To the contrary, I find that, throughout each of the 13 wills, it was consistently
resolute – Mrs Suthers intended to make additional provision for Andrea under her will
either by a devise of her residence or in a money sum calculated by reference to the
proceeds received on the disposal of the leasehold interest in her retirement village
apartment.
[17] Indeed, I am in no doubt that what Mrs Suthers meant by the words used in clause 4.1.1
of her last will was the making of a pecuniary legacy in Andrea’s favour in a sum equal
to the proceeds received on the disposal of the leasehold interest in her retirement village
apartment. This was a demonstrative legacy, as opposed to a specific or general one. In
other words, it was an “an unconditional gift of a specified amount accompanied by a
reference to a particular fund or source for payment thereof”.23
[18] For Roderick, however, although it was not suggested that clause 4.1.1 gave rise to a gift
in specie which was adeemed,
24 or that it was conditional on Mrs Suthers remaining in
22 See exhibit AS-15 to the affidavit of Andrea Suthers (being a letter from Roderick’s solicitors dated
12 January 2015 in which it is acknowledged that “Andrea is entitled to a greater than one third share of
the Estate for her assistance to the Deceased while she has lived in an aged care home and nursing home”).
23 Re Culbertson (1966) 59 DLR (2d) 381 at 384; Moylan at [42].
24 As to which, see the discussion in Moylan at [37]-[46] per Peter Lyons J.8
occupation of the retirement village apartment,
25 it was nevertheless argued that the
pecuniary legacy failed because: (1) there was no “sale” of Mrs Suthers’ interest in the
unit; and (2) no amount of money was received by Mrs Suthers’ estate.
No sale of Mrs Suthers’ interest?
[19] The nature of Mrs Suthers’ interest in the retirement village apartment was a “right to
reside” pursuant to the lease entered into by her with the owner. Such a right is essentially
contractual in nature and, in this case, derived from the lease, but it is also a right which
is recognised by the Retirement Villages Act 1999 (Qld).26 When Mrs Suthers left the
retirement village apartment, she was paid an “exit entitlement”, something which is
defined in that Act27 as well as the lease.28 By s 16 of that Act, an “exit entitlement”
includes the amount that is payable in consequence of the “settlement of the sale of the
right to reside in the accommodation unit”. Otherwise, what was covenanted under the
lease to occur when Mrs Suthers terminated it was that the scheme operator would be
given the exclusive right to find a person to accept a new lease of the apartment, provided
that this occurred within six months of the termination date.29 If the scheme operator was
unsuccessful in finding a person to accept a lease by the end of that period, Mrs Suthers
was at liberty to engage a real estate agent to locate such a person. To facilitate this sale
process, Mrs Suthers was required to negotiate with a view to agreeing with the scheme
operator, if possible, on an “agreed resale value”. When the new lease was entered into,
that person would be required to pay an “ingoing contribution”, just as Mrs Suthers had
in 2003, and, from that sum, was to be deducted various charges including the “costs of
sale”.30 This expression was defined in the lease to mean the “costs of sale of a new lease
over the accommodation unit including any valuation fees”.31 As it happened, the net
proceeds of sale were indeed paid to Mrs Suthers as her “exit entitlement”, and this is the
sum of $240,559.90 which was subsequently deposited to the credit of her bank account.
[20] For Roderick, it was submitted that it was the scheme operator, and not Mrs Suthers, who
sold her interest in the apartment. That might be factually correct in the narrow sense that
the scheme operator acted as a broker for the sale, but the clauses of the lease to which I
have referred as well as the overarching provisions of the Act make it clear that
Mrs Suthers was the seller of her interest in the retirement village apartment. Thus, there
was a “sale” within the meaning of clause 4.1.1 of the will. Furthermore, the “exit
entitlement” paid to Mrs Suthers was the “amount of money received… upon the sale of
my interest in apartment 94” which is referred to in that clause.
No money received by the estate?
[21] It was submitted on Roderick’s behalf that the words used in clause 4.1.1 “clearly
contemplate a disposal of the [apartment] post death” and that they “expressly excluded
25 Moylan at [50]-[59] per Peter Lyons J; Re Viertel [1997] 1 Qd R 110.
26 See s 9. The nature of such an interest was discussed by Fraser JA in Williams v Carlyle Villages Pty Ltd
[2010] 2 Qd R 379 at [25]-[33].
27 Section 16.
28 Clauses 1.1 and 17.
29 Clause 15.
30 Clause 17.
31 Clause 1.1.9
a disposal of the [apartment] during the testator’s lifetime”.32 It was contended that,
because the sale occurred more than four years before Mrs Suthers’ death, the “exit
entitlement” was received by Mrs Suthers and not by her deceased estate.
[22] This argument fails on the facts. The net proceeds of sale making up the “exit entitlement”
were effectively preserved as bank deposits in Mrs Suthers’ name and, on her death, those
funds were made available to her executors. When that occurred, those proceeds were
“received by [her] estate”.
[23] But, even if that were not the case, clause 4.1.1 provided for a demonstrative legacy.
Mrs Suthers did not, by that provision, leave the “exit entitlement” to Andrea. Rather, she
left a sum of money to Andrea in an amount equal to the “exit entitlement”. The use of
the words “amount of money equivalent to that amount received” makes that clear. If a
specific legacy was intended, there would have been no need for such words. Instead,
clause 4.1.1 could simply have provided for “the amount of money received … upon the
sale of my interest in Apartment 94”. Further, to the extent that it might be thought that
the use of the word “upon” in clause 4.1.1 reflects an intention that the pecuniary legacy
should only pass if the sale occurred after Mrs Suthers’ death, such a conclusion would
be completely contrary to the testamentary intention I have earlier found to have existed,
that is to say, that what Mrs Suthers meant by clause 4.1.1 was to make a pecuniary legacy
in Andrea’s favour in a sum equal to the proceeds received on the disposal of the leasehold
interest in her retirement village apartment.
Conclusion
[24] It follows that I am of the opinion that the meaning of the language used in clause 4.1.1,
as considered in light of the will read as a whole and the circumstances in which the will
was made, is such as to provide for a pecuniary legacy in Andrea’s favour, in an amount
equivalent to the sum received for the sale of her leasehold interest, whenever that sale
occurred.
[25] For the above reasons, I shall declare that, on the true construction of the last will of
Mrs Suthers dated 26 February 2009, Andrea is entitled, pursuant to clause 4.1.1 of the
said will, to the payment of $240,559.90.
[26] I shall hear the parties on the question of costs.
32 Paragraph 22 of the written submissions on behalf of Roderick dated 10 August 2015.
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