In Thompson v Sutherland [2023] WASC 206 an application seeking advice as to the proper interpretation of a provision drafted in a homemade will Master Sanderson states:
These reasons could be subtitled: ‘The curse of the homemade will strikes again’.
Thompson v Sutherland [2023] WASC 206 at 1
Legislation
Section 45 of the Administration Act 1903 (WA) authorises the Supreme Court to settle questions arising in any will or administration.
The Court applies the following principles:
- 1. The Court’s object is to ascertain the testator’s intention as expressed in the will.
- 2. The will in question must be read as a whole and in light of surrounding circumstances.
- 3. The “armchair” principle applies in respect of considering the surrounding circumstances. This allows the Court to receive evidence and consider it as if sitting in the testator’s “armchair”.
- 4. At first glance, words are to be given their ordinary meaning.
s45 of the Administration Act is in broad and general terms. It refers to ‘any question arising in respect of any will or administration’. That phrase is entirely open‑ended. It clearly shows the legislature was intending to provide the court with the widest possible discretion to deal with problems that arise concerning the estate. The reference is to questions arising in respect of ‘any will’ or ‘administration’.
Pacella v Sherborne [2009] WASC 58.
Background
In Thompson v Sutherland [2023] WASC 206 Nicholas James Thompson (the plaintiff) sought advice as to the proper interpretation of a provision in the will of the deceased who died on 28 January 2018 leaving three children: Dorothy (the first and sixth defendant), Kevin (the second defendant)and Maryanne. The clause read:
I give the residue of my estate not otherwise disposed of to be shared equally between my three children Dorothy May Sutherland, Kevin Kenneth Darch and Maryanne Ruth Thompson. The home is to be retained for the use of any or all of my children and is to be disposed of by equal agreement of all surviving parties.
Thompson v Sutherland [2023] WASC 206 at 5
The principal asset of the deceased’s estate is a Property of approximately 5 acres with a small orchard of fruit trees located in Coonabidgee. The plaintiff currently resides at the property.
The matter
The plaintiff contends that upon the proper construction of the ‘residue clause’
- a) each of Maryanne, Kevin and Dorothy receive the residue of the deceased’s estate including the property absolutely as tenants in common in equal shares; and
- b) the sentence ‘the home to be retained for the use of any or all of my children and is to be disposed of by equal agreement of all surviving parties’ is void as an attempt to control the disposition of a gift given absolutely.
Where the court is not convinced that the testator’s intention can be discerned from the will itself the court puts itself in the position of the testator at the point when the will was made; from that vantage point, reads and construes the will in light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”.”
As the deceased had prepared a homemade will there was no extrinsic evidence available of events surrounding the making of the will which might aid in its construction. The evidence submitted to the Court establishes that Maryanne had been the deceased’s live-in carer and helped maintain the property. In or about November 2015, the plaintiff moved into the property with his wife to assist Maryanne with the deceased’s care and with the maintenance of the property. After the deceased’s death, Maryanne, the plaintiff and his wife continued to reside at the property.
On 27 December 2019, probate of the deceased’s will was granted to Maryanne. On 20 November 2020, Maryanne died intestate leaving the plaintiff and the third, fourth and fifth defendants as her next of kin.
On 1 June 2021, letters of administration de bonis non administratis were granted to the first and sixth defendants. Letters of administration de bonis non administratis are granted when the only executor or administrator of the estate of the deceased dies without a will or is unable to perform their duties as executor.
The decision
The Court agreed with the plaintiff that the residue clause passes ownership of the property to the three named beneficiaries as tenants in common in equal shares. Tenancy in common means two or more people co-own property in defined shares. Unlike joint tenants, if one of the owners dies, the shares in the property of the other tenants in common don’t change. Therefore, each tenant can choose to sell or gift their share in their will.
However, as the deceased’s beneficiaries hold the property as tenants in common in equal shares the final sentence of the residue clause is void as it is inconsistent with the rights of the registered proprietors.
Master Sanderson held that there can be no clearer illustration of the folly of a testator making a homemade will than this case as it appears that the deceased intended to create some form of a life interest in the property for one or other of his children.
Any competent lawyer could have drafted a clause that gave effect to this intention. Instead, the deceased drafted an ambiguous clause which has led to confusion and dissent within the family. It has also led to the expense of this litigation. The cost of a professionally drafted will pales in comparison with the legal fees the estate will have to bear as a consequence of this action.
Thompson v Sutherland [2023] WASC 206 at 10
The Court accepted the plaintiff’s interpretation of the residue clause in the will ordering that Maryanne, Kevin and Dorothy receive the residue of the deceased’s estate including the property absolutely as tenants in common in equal shares.
The costs of the application are to be paid out of the estate on an indemnity basis.
