Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209

Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209
Supreme Court of New South Wales
Richmond J
Succession – a deceased left a right of residence in a property at Toukley to his friend Margaret – Margaret also later died – the plaintiff was the executor of the deceased’s will, and the defendant was the executor of Margaret’s will – the administration of the deceased’s estate was complete except for the outstanding issue of who was entitled to the remainder of the Toukley property, on the proper construction of the relevant clauses in the will – the executor sought declarations as to the proper construction of those clauses – held: the right of residence conferred on Margaret, if she survived the deceased, 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 the deceased’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 – the date of termination of the right of residence of the Toukley property was the date of Margaret’s death, under clause 3 of the will, and the Toukley property then became an accretion to the estate, the distribution of which was governed by clause 4, which provided for the division of the residue of the estate into nine equal shares and for a gift of each such share to nine named persons – each of those gifts was a class gift because the persons who were 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 individual – there was a clear difficulty in reading clauses 3 and 4 together – clause 3 provided that the Toukley property would form part of the residuary estate after the date of termination and directed 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, did not contemplate a situation where any interest in residue will arise in favour of any person, other than Margaret, where Margaret survived the deceased – the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended – the question is not what the testator meant to do when he made his will, but what the written words he uses mean in the particular case, that is, what are the “expressed intentions” of the testator – the “golden rule of construction” is that the Court should prefer a construction that avoids an intestacy – 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 – the proper construction of the will was that the Toukley property fell into the residuary estate and was to be held for the beneficiaries in each of the nine classes named in clause 4 who survived the date of termination – this construction avoided a partial intestacy, was more consistent with the scheme of the will, and avoided the absurd result put forward by the executor of Margaret’s estate.
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