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Butlin v Butlin [1966] HCA 4; (1966) 113 CLR 353 (25 February 1966)

CATCHWORDS

HEARING

DECISION

2. The real estate consisted of two properties, a residence, used by him and his wife as a home for some fifteen years before his death, known as No. 155 Attunga Road, Yowie Bay, and another residence No. 71 Lancelot Street, Five Dock, held by the deceased and his wife as joint tenants. (at p356)

3. The taxi plate was valued at 6,700 pounds and was a means of production of income. (at p356)

4. Probate of his last will was duly granted to his widow who was thereby appointed his sole executrix and trustee. The will was in the following terms:

"This is the last Will and Testament of me George William Butlin of 155 Attunga Road Yowie Bay in the State of New South Wales Retired.

I hereby revoke all former Wills Codicils and Testamentary Dispositions heretofore made by me and declare this to be my last Will and Testament.

I appoint my wife Constance Butlin to be sole Executrix and Trustee of this my Will.

I give and bequeath free of all death and estate duties funeral and testamentary expenses my rights in Taxi Plate Number T-278 to my said wife for her life and from and after her death to my daughter Rita Chapman absolutely.

But if my wife should predecease me then and in such event I give devise bequeath and appoint my cottage number 155 Attunga Road Yowie Bay to my three daughters Hazel Woods Joyce Jones and Rita Chapman as tenants in common subject to payment thereout of all funeral and testamentary expenses death and estate duties and also in such event I give devise bequeath and appoint the rest and residue of my Estate both real and personal and wheresoever situate to my daughters the said Hazel Woods and Joyce Jones in equal shares absolutely.

And I declare that my Trustees may and notwithstanding anything hereinbefore contained postpone the sale or conversion of any part of my real and personal estate for so long as they shall think fit.

And I also declare that with regard to any of my real and personal estate remaining unsold my Trustee shall be at liberty to let or demise the same for any term she may think fit at such rent and subject to such covenants and conditions as she may think fit to accept surrenders of leases and tenancies to expend money in repairs and improvements and generally to manage the same according to her absolute discretion." (at p356)

5. Evidently the will was drawn by a solicitor having regard to the attestation and to other indications in the phraseology of the will itself. It makes no provision for the destination of his estate, other than the taxi plate, in the event that he should predecease his wife. (at p357)

6. Two questions arise: first, is it certain that the testator intended to dispose of his other assets in that event, a disposition which by oversight or mischance has not found its way into the express terms of his will; and, second, if so, has the testator in what he has said in his will given such an indication of what he intended but omitted that that intention can be inferred with convincing certainty. (at p357)

7. The occasions when a court supplies words when it is clear that words have been omitted, whether single words or words in the form of a sentence importing an additional provision into the will, are all, in my opinion, occasions for the discovery of a necessary implication, for a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived to be by, the testator. In supplying the omitted words or the omitted gift, where it is certain that there has been an omission, it is the disclosed intention, expressed or necessarily implied in what he has said, that is the only relevant factor. The Court is not authorized to supply the gift he might reasonably have made but the gift he has indicated that he did actually intend to make: see Fell v. Fell [1922] HCA 55; (1922) 31 CLR 268 , per Isaacs J. (1922) 31 CLR, at pp 274, 275 , and authorities there cited. (at p357)

8. The Supreme Court recognized these as the principles applicable to the construction of the will. Applying them the Court felt, to use Vaisey J.'s words in In re Smith; Veasey v. Smith (1948) Ch 49, at p 53 , a "compelling conviction" that "what has been omitted has been a gift of the residue of the testator's estate to his widow." His Honour who constituted the Supreme Court considered that the implication in favour of such a gift was so strong, so probable that he was not able to suppose anything to the contrary. This conclusion was derived basically from the presence of the word "but" in introducing the second gift in the will. (at p357)

9. With very great respect, I am unable to accept these views. It may be that the presence of the word "but" indicates that the testator at that point thought he had already expressed himself with respect to the situation of his wife not predeceasing him by some gift beyond the provisions made about the taxi plate. I am content to accept the position that it sufficiently appears from the terms of the will in the circumstances that the testator did intend to make a gift or gifts of his property, other than the taxi plate, in the event that his wife survived him. (at p358)

10. That raises the question whether he has indicated what that gift was or those gifts were. For my part, I can see no certain basis in the language of the will as applied to the circumstances of the testator for implying a gift of the whole residue to his widow absolutely. If one speculates upon the terms of the will, there are several possibilities, none to my mind more probable than any of the others. He might well have left his home to the daughters, or to some one or more of them, with a direction that his widow, who was then in advanced years should reside therein rent free for her life: and given the balance of his estate to the daughters, in differing proportions to those he chose in respect of the real estate. Or he might have given his widow a life estate in the whole of his property other than the taxi plate with remainder to the daughters, or to some one or more of them. Or he might have given his widow the whole of the residue absolutely. There are permutations of these gifts which to my mind are possible. None of these, however, in my opinion, is more probable than any of the others - even if to find one more probable than another were sufficient to justify the addition to the will of the more probable gift. But, of course, that is not enough. It is the indicated gift, not that which in all probability he would have made, to which the Court is authorized to give effect. (at p358)

11. The appellant's counsel sought to obtain some assistance from the presence in the will of the last two clauses. He claims that they indicated that an absolute gift could not have been intended because in that event they would be purposeless and that therefore whatever else might be said, the gift introduced into the will by the Supreme Court was clearly not the intended gift. On the other hand he said there might be some utility in these clauses if a gift of limited interests were intended. I am unable myself to derive any assistance from the inclusion of these clauses in the will. They assist me as little as they have function in the will as it now appears. (at p358)

12. To my mind, there is nothing in the will which, applied to the circumstances of the testator, leads me to the necessary inference that a particular gift was certainly intended by the testator. Assuming that he omitted a gift or gifts to take effect if his wife survived him, I cannot conclude by clear inference from the will what that gift was. (at p358)

13. Accordingly, in my opinion, the appeal should be allowed, the answers given by the Supreme Court to the question asked in the originating summons be set aside and in lieu thereof the following answers to that question be made

(a) No.
(b) Yes.
(c) Unnecessary to answer. (at p359)

KITTO J. This appeal is against a decretal order made by Myers J. in the equitable jurisdiction of the Supreme Court of New South Wales upon an originating summons for the construction of a will. It was the will of a man who, at the time he made it, had been married for more than fifty years, whose wife was still living, and who had three daughters and two sons. The sons were respectively fifty and forty-three years of age. The daughters were respectively forty-seven, thirty-four and thirty-three, and all were or had been married. The testator owned a taxi plate which, when he died four years later, was worth 6,700 pounds. He also owned a house property known as No. 155 Attunga Road, Yowie Bay, which was the home in which he and his wife had lived for eleven years. At his death it was worth 7,000 pounds. He was joint tenant with his wife of a house property at Five Dock (worth 1,400 pounds at his death) which they had owned for fifty years and was let to tenants; but as this would pass to his wife by survivorship on his death he had no occasion to dispose it by his will except in the event of his wife's predeceasing him. His only other assets were presumably small; by the time he died he had only 124 pounds in a savings bank account, and a motor vehicle worth only 165 pounds. (at p359)

2. The will was made with legal assistance, so that the testator had at least the opportunity of knowing that duties and funeral and testamentary expenses would not be negligible: in fact they amounted to nearly 2,000 pounds. (at p359)

3. The will exhibited no unusual feature except that which gives rise to the problem before us. It began with the revocation of former wills and the appointment of the testator's wife as sole executrix and trustee, and it ended with a clause giving the trustees (sic) discretionary powers to postpone sale and conversion (though conversion had not in fact been directed), to let real or personal estate remaining unsold, to accept surrenders of leases and tenancies, to expand money in repairs and improvements and generally to manage the same (sic). (at p359)

4. What may be called the body of the will consisted of two paragraphs. The first gave, free of all death and estate duties and funeral and testamentary expenses, the testator's rights in the taxi plate to his wife for her life and from and after her death to the eldest daughter Rita Chapman absolutely. It made no provision for any other portion of the estate. The second paragraph needs to be quoted in full: "But if my wife should predecease me then and in such event I give devise bequeath and appoint my cottage number 155 Attunga Road Yowie Bay to my three daughters Hazel Woods Joyce Jones and Rita Chapman as tenants in common subject to payments thereout of all funeral and testamentary expenses death and estate duties and also in such event I give devise bequeath and appoint the rest and residue of my Estate both real and personal and wheresoever situate to my daughters the said Hazel Woods and Joyce Jones in equal shares absolutely". (at p360)

5. Since the testator's wife survived him, the second paragraph did not take effect, and the question arose whether the estate other than the taxi plate devolved as on the testator's intestacy. The originating summons sought a decision as to the destination of the Yowie Bay property only, but of course that depends upon the answer to the wider question. Myers J. upheld a submission that there was necessarily implied in the will, and in particular at the end of the first paragraph, an absolute gift of the estate other than the taxi plate to the testator's wife in the event of her surviving him. In a brief statement of his reasons, the learned Judge founded himself upon the fact that the dispositions in the second paragraph are introduced by words which presuppose that the whole subject-matter of those dispositions has been disposed of by the first paragraph in the event of the wife's surviving the testator. His Honour recognized, as we in turn must recognize, that the implication which he made cannot be supported unless it is so evident from the will as a whole as to be irresistible. In that sense, though not in a literal sense, it must be a necessary implication; and the implication must go so far that the estate other than the taxi plate not only should be disposed of in the event of the widow's surviving the testator, but in that event should pass to the widow and pass to her absolutely. (at p360)

6. It is of course possible that the draftsman deliberately left the hiatus at the end of the first paragraph, the testator intending that if his wife survived him the law of intestacy should operate save only in respect of the taxi plate. But any reader would reject that possibility, I should think, not only because a professionally prepared will which made specific provision as to everything else would not be likely to leave an intention of that sort unexpressed, but because the result is incongruous with the alternative dispositions which are to take effect in the event of the wife's dying first. What is to happen in that event is that while the three daughters share the Yowie Bay property, subject to the duties and expenses, the two who do not take an interest in the taxi plate are to take the residue of the estate. It is altogether too improbable that the testator who made that provision might have intended that in the opposite event his wife should take the third, and all five children should take amongst them the two-thirds, which the law of intestacy would prescribe. (at p361)

7. Then is it possible to be sufficiently sure what the omitted disposition was intended to be? Plainly enough, it was a disposition which would be defeated or rendered inappropriate by the wife's predeceasing the testator; for the second paragraph opens with words which proclaim it as a directly contrasting disposition to operate in that event. Those words, "But if my wife should pre-decease me", indicate both that the testator thought he had already made provision for the event of his wife's not predeceasing him and that that provision was a provision in favour of his wife, to some extent if not altogether. Moreover, when it is seen that the second paragraph disposes of both the Yowie Bay property and the residue of the estate (leaving, I take it, the gift of the taxi plate to take effect in favour of Rita Chapman) the plain indication of contrast which the opening words provide leaves little room for doubt, it seems to me, that the gift supposedly made to take effect in the event of the wife's surviving the testator was a disposition of the same subject-matter. (at p361)

8. It is not impossible that the omitted provision in favour of the wife if she should survive might have been a provision giving her only a share, divided or undivided, of the estate other than the taxi plate, but if so a further provision would surely have appeared after the second paragraph, to deal with the event of the donee or donees of the other share or shares predeceasing the testator. The fact that the only provision in the second paragraph is for the event of the wife's predeceasing him suggests very strongly that the omitted provision was one which gave the wife either an absolute interest or an interest for her life. (at p361)

9. Then, could it have been only an interest for her life? If so, and if the gift to take effect after her death was intended to follow the pattern of the second paragraph, there was no need for the second paragraph at all. It would have been enough to leave the gift in remainder to be accelerated by the wife's predeceasing the testator, as in fact was done in respect of the taxi plate. The possibility that the omitted gift may have been of a life interest to the wife followed by remainders which deserted the pattern of the second paragraph I shall put aside as too improbable to be entertained in the absence of anything in the will to give it a colour of likelihood. (at p362)

10. There is one possibility I have not mentioned, and that is that the introductory words of the second paragraph may only show that the ensuing dispositions are intended to displace the gift of the taxi plate in the event of the wife's predeceasing the testator; but that hardly needs serious consideration, I think, because it would mean that the taxi plate, valuable as it was, would pass under the gift of residue to Hazel Woods and Joyce Jones, so that the death of the testator's wife would have been made to defeat the daughter Rita Chapman, who was primarily selected to receive the plate on her mother's death, and to put her two sisters in her place. An intention to do that would be in the highest degree unlikely. (at p362)

11. These considerations seem to me to leave only one possibility with any likelihood about it, and that is that the omitted disposition was an absolute gift of residue to the wife. This, after all, is inherently the most probable gift for the testator to have intended, for so far as appears it would amount to nothing more than a gift of the matrimonial home, and even that would have to bear the bulk of the duties and expenses. I wondered for a while during the argument whether the explanation of the absence of any residuary gift in the first paragraph might not be that the testator mistakenly supposed that the Yowie Bay property, like the Five Dock property, was held by his wife and himself in joint tenancy, and therefore that he had nothing of substance to dispose of, except the taxi plate, in the event of his wife's surviving him. But as my brother Menzies pointed out, the testator could hardly have intended, as he did, to exonerate the taxi plate from the burden of duties and funeral and testamentary expenses unless he had also intended to make a disposition of other assets of sufficient value to carry that burden. In any case, there is nothing before the Court to suggest that the testator was in fact under any misapprehension as to the state of the title to Yowie Bay. (at p362)

12. When the foregoing considerations are borne in mind, the implication seems to me quite compelling that the testator's wife, if she should survive him, should take absolutely, but subject to duties and expenses, the matrimonial home and whatever else there might be over and above the taxi plate. I am therefore of the opinion that I am "authorized and bound" by the principle of law which is explained in the authorities referred to by Vaisey J. in In re Smith; Veasey v. Smith (1948) Ch 49 to place upon the will the construction which Myers J. gave it. (at p362)

13. I would dismiss the appeal. (at p363)

MENZIES J. The testator's will, as it stands, did not fully express his testamentary intentions. Of this I am sure. After the appointment of his wife as executrix and trustee and the bequest - free of all death and estate duties, funeral and testamentary expenses - of his rights in a taxi-cab plate to his wife for her life and, from and after her death, to his daughter Rita absolutely, the will provides as follows: -

"But if my wife should predecease me then and in such event
I give devise bequeath and appoint my cottage number 155
Attunga Road Yowie Bay to my three daughters Hazel Woods
Joyce Jones and Rita Chapman as tenants in common subject
to payment thereout of all funeral and testamentary expenses
death and estate duties and also in such event I give devise
bequeath and appoint the rest and residue of my Estate both
real and personal and wheresoever situate to my daughters the
said Hazel Woods and Joyce Jones in equal shares absolutely".

2. In construing this will Myers J. implied an absolute gift to the wife, if she should survive the testator, of the property 155 Attunga Road, Yowie Bay. From his Honour's order the testator's sons have appealed to this Court. (at p363)

3. I think it clear that the testator did intend that his whole estate should pass to his widow and his daughters Hazel, Joyce and Rita, but what division he intended in the event of his wife's surviving him - except as to the taxi-cab plate - I cannot determine from the will as it stands. It may have been that his wife was to have been the sole beneficiary; it may have been that the wife was to have had a life interest in the residue of the estate with remainders to either two or three of the daughters; it may have been that as in the succeeding clause the cottage in Yowie Bay and the rest of the estate were to have been dealt with differently. (at p363)

4. The particular implication made by Myers J. seems to me not only to be conjectural but hardly to be squared with the two concluding declarations which give some ground for supposing that earlier in the will provision had been made for some sort of succession to property to be sold by the trustee in the execution of the trusts of the will and which could be the subject of letting or demising. (at p363)

5. It follows that, because I am not reasonably sure what was the intention of the testator, I regard this as one of those cases in which no implication can be made notwithstanding that an intestacy will result with the likely, although not the necessary, consequence that the estate will be divided in a manner contrary to the wishes of the testator. Such a consequence, if it happens, I can do no more than regret, particularly if, as may be the case, the testator's actual intentions are known to the members of his family. (at p364)

6. I would therefore allow the appeal and vary the order made by omitting therefrom the words -

"the plaintiff as Executrix and Trustee of the said Will holds
the cottage known as 155 Attunga Road Yowie Bay upon
trust for herself absolutely"

(a) No
(b) Yes
(c) Not necessary to answer."

ORDER

Costs of all parties of this appeal to be paid out of the estate, those of the respondent, Constance Butlin, as between solicitor and client.