[2026] SASC 45

Applicants: ALAN RAYMOND PEPPER, BRIAN JAMES PEPPER AND DEBRA SUE DONALDSON Counsel: MR E BELPERIO - Solicitor: WELDEN & COLUCCIO LAWYERS First to Seventh Respondents: ALAN RAYMOND PEPPER (AS BENEFICIARY), BRIAN JAMES PEPPER (AS BENEFICIARY), DEBRA SUE DONALDSON (AS BENEFICIARY), GUY JAMES PEPPER, KATE DEBORAH PEPPER, TIMOTHY AARON DONALDSON AND CHRISTOPHER SCOTT DONALDSON No Attendance Eighth to Eleventh Respondents: AVRIL SHEA PEPPER, ZANDER JAMES PEPPER, PENELOPE JUNE DONALDSON AND ISLA GRACE DONALDSON Counsel: MR M DOUGLAS - Solicitor: TRACK LEGAL Hearing Date/s: 12/02/2026 File No/s: PROB-24-007769 B SUPREME COURT OF SOUTH AUSTRALIA (Testamentary Causes Jurisdiction) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. IN THE ESTATE OF PEPPER (No 2) [2026] SASC 45 Judgment of the Honourable Justice Hughes 15 April 2026 SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR’S INTENTION SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - GENERALLY SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - READING WILL AS A WHOLE SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WORDS TO HAVE ORDINARY AND GRAMMATICAL MEANING SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - DESCRIPTION OF BENEFICIARIES OR PERSONS - ISSUE - CONSTRUED TO MEAN DESCENDENTS -- 1 of 10 -- The executors of an estate, being three of the deceased’s children, applied for advice and directions from the Court with regard to the deceased’s Will. This decision considered the second of the two questions posed to the Court. The respondent are the children, grandchildren, and greatgrandchildren of the deceased who were alive at the time of the deceased’s death. The Will was executed in 1992, at which time none of the deceased’s greatgrandchildren (respondents 8–11) had been born. The deceased did not alter her Will after 1992. The relevant clause of the Will provided that the residue of the estate was to be “held for the benefit of such of my children and their issue as survive me by thirty (30) days and attain the age of twenty one (21) years…”. The question was whether, for the purposes of the Will, the deceased by use of the word “issue” intended to include only her children and their children, or all descendants born at the date of her death. Accordingly, the Court was required to determine: 1. Whether greatgrandchildren of the deceased that were born as at the date of death of the deceased and survived the deceased by thirty days qualify as issue of the deceased’s children and accordingly are entitled to share in the residue of the estate of the deceased pursuant to clause 4(c) of the Will? Held 1. The deceased’s greatgrandchildren born as at the date of death qualify as “issue” and are entitled to share in the residue of the estate. 2. The presumption of early vesting ought not be afforded much weight where the potential beneficiaries and the dates of their entitlement are known. 3. Considering the Will as a whole, and in particular the express reference to the deceased’s “children and their issue” without equating “issue” to “children”, there is no contextual ambiguity raised by the use of “issue” in the Will to justify extrinsic evidence of intention being considered. 4. “Issue”, as used in the Will, is to take its ordinary meaning where nothing in the Will suggests an alternative meaning is preferred. 5. The inclusion of the greatgrandchildren produces no uncertainty, incoherence or administrative difficulty where the deceased had contemplated a possibility of her grandchildren, who were under the age of 21 at the date of execution, needing to wait to satisfy the age contingency. Succession Act 2023 (SA), referred to. Public Trustee v Loney [2009] SASC 17, applied. Nicol v Chant (1909) 7 CLR 569; Farrelly v Phillips (2017) 128 SASR 502; Fairbairn v Varvaressos [2010] NSWCA 234; Matthews v Williams (1941) 65 CLR 639; Ritchie v Magree (1964) 114 CLR 173; Fell v Fell (1922) 31 CLR 268; Will of Loughlin; Acheson v O’Meara [1906] VLR 597; Lang and Ors v Davey and Ors [2020] SASC 160; Boyes v Cook (1880) 14 Ch D 53; Allgood v Blake (1873) LR 8 Ex 160, considered. -- 2 of 10 -- IN THE ESTATE OF PEPPER (No 2) [2026] SASC 45 Testamentary Causes Jurisdiction HUGHES J: 1 In 1979, Cox J commenced a decision In re Wardle1 with the words: This is another regrettable instance of difficulties being caused by the ambiguous use of the word “issue” in a will. 2 His Honour found that although the trustee had identified sufficient ambiguity in that term to seek the Court’s determination, the proper construction of the Will yielded the answer that the word “issue” carried its ordinary meaning and did not attract a special meaning when considered in the context of the surrounding clauses.2 For the reasons that follow, I have reached a similar conclusion in the current proceedings. 3 Mrs Olive Pepper and her husband had three children together: Brian, Alan and Debra (the Applicants). Mrs Pepper executed her will in 1992 when she was 69 years old. 4 Mrs Pepper’s son, Alan, did not have children. Mrs Pepper’s son, Brian Pepper, had two children who are biologically-related to her: Guy Pepper and Kate Pepper. Mrs Pepper’s daughter Debra had two children who are biologically- related to her: Timothy Donaldson and Christopher Donaldson. 5 These four (Guy, Kate, Timothy and Christopher) are referred to as “the grandchildren”. All four grandchildren were each aged between 5 and 8 years old when the Deceased executed her will on 31 August 1992. All of the grand-children attained the age of 21 and survived the Deceased. Between the date of the execution of her Will, and her death some 31 years later, the Deceased became a great-grandmother. 6 Guy and his wife had children Avril Pepper and Zander Pepper. Christopher and his wife had children Penelope Donaldson and Isla Donaldson. These four are referred to as “the great-grandchildren”. A further great-grandchild, Thomas Donaldson, was born to Christopher after the death of the Deceased. 7 The question for the Court is whether the four great-grandchildren of the Deceased, who were born as at the date of the Deceased’s death and survived the Deceased, are within the class of person referred to as “issue” in the Deceased’s Will and accordingly are entitled to share in the residue of the Deceased’s estate pursuant to clause 4(c) of the Will. That clause states that the residue of the estate: 1 (1979) 23 SASR 214. 2 At 220. -- 3 of 10 -- [2026] SASC 45 Hughes J 2 shall be held for the benefit of any such of my children and their issue as survive me by thirty (30) days and attain the age of twenty one (21) years and if more than one in equal shares. 8 Because Thomas Donaldson was not alive when Mrs Pepper died, he cannot meet the requirements of the clause and is not one of the great-grandchildren considered in this decision. Given that the question as posed excludes Thomas Donaldson, the outcome of the question will determine whether the residue of the estate is to be divided seven ways (amongst the children and the grandchildren), or eleven ways (amongst the children, the four grandchildren and the four great- grandchildren who were alive at the time Mrs Pepper died). Governing Law 9 Although the construction of the Will is informed by the Succession Act 2023, there is nothing in the Act that provides an answer to the question posed, such that the principles established at common law must be used to discern the testator’s intention from a proper construction of the Will. Principles for construing the Will 10 The task of the Court is to examine the Will and “discover the meaning of the language of the testator as applied to the circumstances existing at the date of the will, and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion”.3 11 Even where there is compelling extrinsic evidence as to a testator’s intentions, it is necessary to examine the words of the Will. As Stanley J (as his Honour then was) said in Farrelly v Phillips:4 While the task of the Court in construing the will is to ascertain the intention of the testatrix, the Court must take care to avoid interpreting the will on the basis of some a priori assumption about the testatrix’s intentions. The surest guide to the testatrix’s intention is the language of her will. Her expressed intentions are embodied in its text read in light of the surrounding circumstances in accordance with the armchair principle. The search is for her expressed intentions,5 not what she meant to say, but what she actually said.6 12 The whole of the Will must be examined to understand its individual terms.7 Mrs Pepper’s Will was prepared by a solicitor and follows an orthodox format. It contains the usual opening and revocation clauses. It appoints executors using the terms “my children” followed by their names. It gives specific gifts using terms of relationship and names e.g. “my daughter Deborah Sue Donaldson”. Clause 4, 3 Nicol v Chant & Ors (1909) 7 CLR 569, per Griffith CJ at 577. 4 Farrelly v Phillips & Ors [2017] SASCFC 111, per Stanley J (Kourakis CJ concurring) at [32]. 5 Perrin v Morgan [1943] AC 399, at 406. 6 Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 339 ALR 200, at 206 [18]. 7 Ritchie v Magree (1964) 114 CLR 173, at 182; Fell v Fell (1922) 31 CLR 268, at 273-4. -- 4 of 10 -- [2026] SASC 45 Hughes J 3 which contains the clause required to be construed for the purpose of this advice, distributes the residue. It states: I give devise and bequeath the rest residue and remainder of my estate both real and personal wheresoever situate unto my trustees upon the following trusts: (a) first to pay thereout all my just debts funeral and testamentary expenses and all duties in respect of my estate without subsequent apportionment thereof; and (b) SHOULD my said husband be living thirty (30) days after the date of my death then the balance shall be held for the benefit of my said husband absolutely; and (c) SHOULD my said husband not be living thirty (30) days after the date of my death then the balance shall be held for the benefit of such of my children and their issue as survive me by thirty (30) days and attain the age of twenty one (21) years and if more than one in equal shares. 13 Clause 5 is relevant insofar as it concerns the Deceased’s children. It provides: SHOULD any child of mine predecease me or die before attaining a vested interest in my estate or part of it leaving a child or children then such last mentioned child or children shall take and if more than one in equal shares upon attaining the age of 21 years the share or shares in my estate which his her or their parent would have taken had they survived and attained a vested interest. 14 Clauses 6 concerns trustees’ powers and does not contain any text that might be said to bear on the proper interpretation of “issue” in clause 4. The Will concludes with the usual jurat. Meaning of “issue” 15 The Applicants submit that on a proper construction of the Will, and consistent with the Deceased’s intentions, the term “issue” for the purposes of the Will has the meaning “immediate progeny”. This will be referred to as the “narrow construction”. The arguments advanced were: a. The presumption of early vesting; and b. That ambiguities in the Will with respect to the use of the word “issue” necessitate or at least make available the use of extrinsic evidence as to the Deceased’s testamentary intent, and such extrinsic evidence supports the conclusion that the Deceased intended only for her grandchildren to benefit from sharing in the residue of the estate. 16 The grandchildren have elected not to participate in the proceedings. 17 Ms Hooper appeared for the litigation guardian for the four great- grandchildren. She submitted that the preferable construction of the Will resulted in the conclusion that “issue” refers to all of the descendants of the Deceased (who otherwise come within the terms of clause 4) and therefore includes the four great- -- 5 of 10 -- [2026] SASC 45 Hughes J 4 grandchildren. Counsel for the great-grandchildren submitted that there was insufficient ambiguity in the Will yo diverge from attributing to the word “issue” its ordinary meaning, namely “all descendants” in the context of the Will. Accordingly, there is no basis for considering extrinsic evidence as to what Mrs Pepper intended or wished, beyond the circumstances at the time of her death pursuant to the “armchair” principle. Presumption of early vesting? 18 Counsel for the Applicants submitted that to attribute a meaning to “issue” in the Will that is confined to “immediate progeny” is consistent with the presumption of early vesting. That presumption favours an interpretation that sees the gifts vest rather than languish awaiting the occurrence of contingent events. In Fairbairn v Varvaressos:8 The principle whereby courts favour construing a grant of property rights in a way that results in early vesting is authoritatively laid down for Australian courts in Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited [1939] HCA 10; (1939) 62 CLR 242. At 265, Dixon J said: “The rule for the guidance of the court in construing devises of real estate is that they are to be held to be vested unless a condition precedent is expressed with reasonable clearness [Bickersteth v Shanu] (1936) AC [290] at 299. As Warrington LJ in Re Blackwell (1926) 1 Ch 223 at 233 expressed it, ‘the court is inclined rather to hold an estate to be vested than contingent if the words of the will will allow it to do so’.” Starke J at 258, said: “... in the construction of gifts of real estate ‘it has long been an established rule for the guidance of the courts ... that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will.” (Duffield v Duffield (1829) 1 Dow & Cl 268 at 311 [6 ER 525 at p 542].” At 266, McTiernan J said: “In re Deighton’s Settled Estates (1876) 2 Ch D 783 at p. 785 James LJ referred to one of these rules in these terms: ‘The court leans strongly in favour of the early vesting of interests in cases where the effect of holding the share of a child of the testator to be contingent on his living to a future period would be that, if he died before that period, leaving a family, his children would take no benefit under the will’.” 19 In the present case, the narrower interpretation of “issue” would lead to the estate being distributed to seven individuals without any contingent event awaited. The broader interpretation has the effect that four beneficiaries must attain the age of 21 for their gifts to pass. 8 [2010] NSWCA 234, per Campbell JA (Macfarlan and Young JJA concurring) at [72] to [77]. -- 6 of 10 -- [2026] SASC 45 Hughes J 5 20 I do not consider that it can be said that the presumption should be accorded much weight in respect of this Will. The identity of each of the beneficiaries is known. The youngest of them is four years old and cannot take their share until the age of 21. The application of the presumption would not operate to determine whether the children or grandchildren share in the residue, but only the extent of their shares. The presumption could not, in this case, be properly applied to avoid any evident obstruction to the Deceased’s testamentary intent. Broad or narrow meaning of “issue”? 21 Before considering whether any of the context of the Will might be said to modify the meaning of “issue”, it is necessary to determine what the orthodox meaning of that term is. It was not in dispute that the word “issue”, in general parlance and also in many legal contexts, refers to immediate and remoter progeny. The seminal authority in that regard is Matthews v Williams9 in which the High Court held that “issue” refers to all descendants or progeny except where context indicates a contrary intention.10 22 In terms of the contextual indicators, counsel for the great-grandchildren properly raised the argument that the use of the word “issue” within the phrase “my children and their issue” might be said to indicate the testator’s intention to denote only her immediate children and their immediate descendants. That argument was considered in Public Trustee v Loney.11 Sulan J was required to construe the word “issue” in a clause of a will which provided: I DIRECT that should any beneficiary of this my will predecease me leaving issue him her or them surviving and living at my death then such issue shall stand in the place of his her or their deceased parent and take per stirpes and equally between them the share of and interest in my estate which such deceased parent would have taken had he she or they survived me and attained a vested interest. 23 It may be noted that the clause is relevantly identical to that in Mrs Pepper’s will. 24 Sulan J observed that Matthews v Williams is authority for the proposition that the term “issue” usually bears the broader construction of all lineal descendants of a deceased beneficiary, but that a narrower construction limiting the denotation to a child or children of the deceased beneficiary is available depending on the context in which it is used.12 25 Sulan J rejected the proposition that the term “parent” in the clause bore upon the meaning of “issue”, and in particular, limited it to immediate descendants. His Honour said:13 9 (1941) 65 CLR 639. 10 At 650. 11 [2009] SASC 17. 12 At [26]. 13 At [27] to [32]. -- 7 of 10 -- [2026] SASC 45 Hughes J 6 Counsel for the defendants submits that “issue” ought to be interpreted as referring to a child or children of the deceased beneficiary, not the lineal descendants of a deceased beneficiary. This outcome, it is submitted, is more consistent with the reference by the testatrix in clause 4 to issue taking the interest of a “parent”. … The use of the phrase “his her or their deceased parent” may be an indication that the testatrix intended to displace the usual meaning of “issue”, and use that term in a more confined manner. However, as Cox J observed in Re Wardle:14 “… a reference to the parents of issue will not necessarily confine the issue to one generation.” He stated:15 “[I]t comes back then, to, collecting the testator’s meaning from the expressions he has used in this and other parts of the will.” This restates the general principle that the written terms of the Will must be carefully examined to determine the testatrix’s intentions. Both Matthews v Williams16 and Buick v Equity Trustees17 make it clear that “parent” may have what is referred to as a “sliding” application. That is, the term refers and relates to each parent of each successive generation, not necessarily only the parent specifically named as a beneficiary of the Will.18 There is nothing in the Will to indicate whether the testatrix intended “issue” to bear a broad or narrow meaning. I am not persuaded that the use of the term “parent” in clause 4 demonstrates an intention to invest “issue” with a narrow meaning. I conclude that “issue” in clause 4 should be read to include all lineal descendants. … 26 For the same reasons, I do not consider that the reference to “parent” in clause 4 of Mrs Pepper’s Will entails that “issue” in that clause denotes immediate descendants. 27 The Will does not equate “issue” with “children”, nor does it use those terms interchangeably. Such an approach as I adopt is consistent with that taken by Cox J in In re Wardle, in which his Honour said:19 I see no grammatical or linguistic or conceptual problem in giving the reference to “parent or parents” in this paragraph a distributive operation, without limiting it to particular generations. Under this paragraph, the class of unnamed residuary beneficiaries was closed when the testator’s wife died, but a member of that class–any of the issue of Albert and his wife Dorothy who should then be living–does not get a vested interest until he reaches the age of twenty-one years. It is possible that such a descendant of Albert, be he Albert’s child or grandchild, might die before reaching that age but himself leave a child. That child would then succeed to the share his parent would have enjoyed had he lived to the required age. 14 (1979) 23 SASR 214, at 219. 15 Ibid. 16 (1941) 65 CLR 639, at 653-4. 17 (1957) 97 CLR 599, at 603 and 607. 18 Re Carrig (Deceased) [1972] VR 655, at 657. 19 In re Wardle (1979) 23 SASR 214 at 217. -- 8 of 10 -- [2026] SASC 45 Hughes J 7 In my opinion, there is nothing about the notion of issue, or the use of the expression “parent or parents”, that militates against that view. 28 There is no express language of exclusion in the Will, and no indication that remoter descendants were to be excluded if they fell within the ordinary meaning of the word used. 29 Having regard to the whole of the Will, I am not satisfied that there is any contextual matter that creates ambiguity in the use of the term “issue” in the Will. 30 Accordingly, I have not had regard to evidence sought to be adduced, and received de bene esse, by the Applicants, which is relevant only insofar as it is probative of Mrs Pepper’s intent “as an independent fact” because of ambiguity.20 That evidence is not admissible because the threshold for its admission has not been reached. The word “issue” has an ordinary meaning and nothing in the Will points to a usage outside of that ordinary meaning. 31 Although I am not to have regard to extrinsic evidence as to Mrs Pepper’s dispositive intentions, I may have regard to Mrs Pepper’s position and surrounding circumstances to discern her intentions from the words she used in the Will, using the “armchair principle”.21 32 Having regard to the circumstances surrounding Mrs Pepper at the time she executed the Will, aged 69, she was unlikely to (though she may) have envisaging living to an age at which she would have great-grandchildren. Her grand-children at that time were young children. But that is not equivalent to having an intention to exclude any great-grandchildren from taking a share of her estate if she were survived by them. I do not consider that circumstance to be one that conveys an intention of a meaning of “issue” narrower than its usual one. 33 Further, I accept the contentions of counsel for the great-grandchildren that the inclusion of the great-grandchildren alive at the date of Mrs Pepper’s death produces no uncertainty, incoherence or administrative difficulty. Although the grand-children are all now adults, the age contingency allows clause 4 to operate with respect to the great-grandchildren in the same way as it would have if Mrs Pepper had died at age 70, leaving minor grand-children. The scheme established by the Will operates in a coherent manner, which is consistent with the interpretation that is reached on the application of the ordinary meaning of “issue” in the Will. Orders 34 The answer to Question 2 posed by the originating application (FDN 3) in the form “Whether greatgrandchildren of the deceased that were born as at the date of death of the deceased and survived the deceased by thirty days qualify as issue 20 Will of Loughlin; Acheson v O’Meara [1906] VLR 597, per Hood J at 601; Lang and Ors v Davey and Ors [2020] SASC 160, per Bampton J at [39].. 21 Boyes v Cook (1880) 14 Ch D 53, per James LJ at 56; Allgood v Blake (1873) LR 8 Ex 160, at 162. -- 9 of 10 -- [2026] SASC 45 Hughes J 8 of the deceased’s children and accordingly are entitled to share in the residue of the estate of the deceased pursuant to clause 4(c) of the Will” is Yes. 35 The Applicants’ costs, and those of the Respondent great-grandchildren of and incidental to the application, are to be paid by the estate on a solicitor and client basis upon the footing of an indemnity. -- 10 of 10 --