Evans (dec'd), Re [1997] QSC 44

IN THE SUPREME COURT OF QUEENSLAND No 1598 of 1997 Brisbane Before the Hon. Justice Williams CATCHWORDS: Counsel: Solicitors: Hearing Date: This only, IN THE MATIER OF O.64r.1A of the Rules of the Supreme Court - and - IN THE MA TIER OF the Will of Mary Martha Cecily Evans, deceased, late of 7 Claire Street, Southport in the State of Queensland, widow - and - IN THE MA TIER OF an application by Rosemary Anne Kitchin and Christopher Charlton Evans, the Executors and Trustees of the said Will JUDGMENT - WILLIAMS J Judgment delivered 03/04/1997 WILL - construction - "children of any maniage" - "sUlvive" - sUlvive two points of time. Mrs D Mullins for applicant TF Wardrobe TIA for McLaughlins 19 March 1997 and private study way without permission. -- 1 of 7 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane No 1598 of 1997 IN THE MATIER OF O.64r.1A of the Rules of the Supreme Court - and - IN THE lVIA TIER OF the Will of Mary Martha Cecily Evans, deceased, late of 7 Claire Street, Southport in the State of Queensland, widow - and - IN THE MA TIER OF an application by Rosemary Anne Kitchin and Christopher Charlton Evans, the Executors and Trustees of the said Will JUDGMENT - WILLIAMS J Judgment delivered 03104/1997 The executors and trustees of the will of Martha Cecily Evans, deceased, seek a declaration as to the proper construction of certain provisions in her will. The whole of the estate of the testatrix, both real and personal, was devised and bequeathed to the trustees upon trust to pay all debts, duties, expenses and the like and then to divide the rest and residue of the estate into six equal parts to be held on designated trusts. This application is primarily concerned with the trust relating to the sixth such part. Broadly it can be said that the first sixth was held for Rosemary Anne Kitchin the daughter of the testatrix, the second sixth for the children of Rosemary Anne Kitchin, the third sixth for Christopher Charlton Evans a son -- 2 of 7 -- 2 of the testatrix, the fourth sixth for the children of Christopher Charlton Evans, and the fifth sixth for Malcolm William Evans another son of the testatrix. Then followed the clause disposing of the sixth sixth, and it was in these terms: "As to the remaining equal part or share for such of the children of any marriage of my said son Malcolm Williams Evans who either survive me to attain the age of twenty-one years, or are born after my death before the eldest surviving child of my said son attains the age of twenty-one years to themselves attain that age, as tenants in common in equal shares and if only one (1) child shall qualify then for such one absolutely. Provided That if there are no such children of any marriage of my said son Malcolm William Evans then for such of the children of my said daughter Rosemary Anne Kitchin and my said son Christopher Charlton Evans as shall survive me and my said son Malcolm William Evans to attain the age of twenty-one years as tenants in common in equal shares and if only one child shall so survive then for such one absolutely." The evidence reveals that the clause is to be construed and applied in the following circumstances: (i) Rosemary Anne Kitchin has three children each of whom is over the age of 21; (ii) Christopher Charlton Evans has four children each of whom is over the age of 21; (iii) Malcolm William Evans is now aged approximately 55 years; (iv) Malcolm William Evans has never married; (v) Malcolm William Evans is the biological father of Amanda Julie Evans who was born on 15 July 1968. Malcolm William Evans and Amanda Julie Evans were each served with all the material but neither appeared. The first question is as to the proper construction of the prOVISIOn In the will benefiting "the children of any marriage of my said son Malcolm William Evans". Solicitors acting for Amanda Julie Evans asserted in correspondence that she was a child "of any marriage" of Malcolm William Evans. That was said to be so on the basis that her mother was married to another person at the time she was born and that on her birth -- 3 of 7 -- 3 pursuant to the provisions of the Status of Children Act she became a child of that marriage. The contention was that Malcolm William Evans was her biological father and she was it child of the marriage of her mother and her mother's lawful husband, and that meant that she was a child of "any marriage" for purposes of the will. That construction is not tenable. The expression must be read as a whole and clearly the intention of the testatrix was that to benefit under the will a child must be a child of a marriage to which Malcolm William Evans was a party. However one regards the factual situation Amanda Julie Evans is not a child of a marriage of Malcolm William Evans. But it is not for the court on this application to determine the question of fact whether there is a child or any children who satisfy the test of being "children of any marriage of my said son Malcolm William Evans". That is a matter for the executors to determine. All the court can now do is declare that on the proper construction the clause only benefits a child of a marriage to which Malcolm William Evans is a party. Given the present age of Malcolm William Evans it is clear that he may marry in the future and may have a child or children by that marriage. The clause in question contemplates that there may be children of a marriage of Malcolm William Evans born after the death of the testatrix. But there are words in the clause which place a time limitation on the ascertaining of that class - "before the eldest surviving child of my son attains the age of 21 years". To be a "survivor" the person must be alive at and after the happening of the event in question (for example, the death of a particular person) which event has to be survived. (Theobald on Wills, 12th ed., para. 1712 and Elliot v. Lord Joicey (1935) A.c. 209 at 218.) There is a similar provision in each of the clauses benefiting the children of Rosemary Anne Kitchin and Christopher Charlton Evans. Reading this will as a whole it is clear that the event which must be survived is the death of the testatrix. In other words for -- 4 of 7 -- 4 there to be a class of children entitled to take pursuant to the clause there must be a child of a marriage of Malcolm William Evans alive as at the date of death of the testatrix. If there is no child of a marriage of Malcolm William Evans alive as at the date of death of the testatrix then children subsequently born as issue of a marriage of Malcolm William Evans would not be entitled to take. Again it is a question of fact for the executors but it would appear that there was no child of a marriage of Malcolm William Evans alive as at the date of death of the testatrix; in those circumstances, there being no "surviving child", any children of a marriage of Malcolm William Evans born in the future would not benefit. The court is then asked to construe the" gift over". As already noted there are children of Rosemary Anne Kitchin and Christopher Charlton Evans who survived the testatrix and have attained the age of 21. The problem is that for such children to take pursuant to the "gift over" they must survive not only the testatrix but also Malcolm William Evans. Counsel for the executors and trustees submitted that the condition that such children also survive Malcolm William Evans was "meaningless" and should "therefore be ignored". That submission is, in my view, not tenable. The condition is not meaningless; Malcolm William Evans must die at some time and that is likely to occur within the lifetime of the said children. There is nothing necessarily unreasonable, or even peculiar, about a condition in a will requiring a person to "survive two points of time". There is reference to such a condition in Theobald on Wills, 12th ed., para 1712, and In Re Castle: Public Trustee v. Floud (1949) Ch. 46 affords a good illustration of such a provision. The proper construction of the "gift over" is that in order to take the children of Rosemary Anne Kitchin and Christopher Charlton Evans must survive not only the testatrix but also Malcolm William Evans and attain the age of 21. -- 5 of 7 -- 5 On the material before the court, three children of Rosemary Anne Kitchin and four children of Christopher Charlton Evans have already met two of those conditions, namely they have survived the testatrix and attained the age of 21. However their entitlement to participate in the "gift over" would fail if the further condition of surviving Malcolm William Evans was not satisfied. It is certainly possible that Christopher Charlton Evans could have more children, and it may be that it would possible for Rosemary Anne Kitchin to have more children in the future. But any children born after the death of the testatrix would not satisfy the test of surviving the testatrix; only children who "survive" the testatrix can satisfy the relevant conditions. Given the authori"ties referred to above only children alive at the date of the death of the testatrix could satisfy that condition. That means that any future children born to either Rosemary Anne Kitchin or Christopher Charlton Evans could not benefit pursuant to the "gift over". It follows that the maximum number of beneficiaries pursuant to the "gift over" are the seven children to whom reference has already been made. The number ultimately entitled to take according to the provisions of the "gift over" would be less than seven if some failed to survive Malcolm William Evans. In other words the maximum number of children who may constitute the class of beneficiaries is known~ but that number .may be reduced which would mean that those who survived all the conditions would benefit to a somewhat greater extent. The seven possible beneficiaries of the trust are sui juris and, if the factual matters presumed above are accepted by the trustees, would be absolutely entitled to share in the distribution of the sixth sixth. In those circumstances, if they were unanimous, they could -- 6 of 7 -- 6 direct the trustee to depart from the strict terms of the trust and distribute one-seventh of that sixth part to each of them absolutely. That is a possible solution to the problem. There will therefore be declarations that on the proper construction of c1.3(ii)(f) of the will of Mary Martha Cecily Evans dated 2 October 1980:- (i) The one-sixth share of the residue given by that clause is primarily held on trust for a child or the children of a marriage to which Malcolm William Evans was a party; (ii) That a child or children of a marriage to which Malcolm William Evans was a party and born after the death of the testatrix would not benefit unless there was at least one child of a marriage to which Malcolm William Evans was a party alive at and after the date of death of the testatrix; (iii) The "gift over" if there was no child or children of a marriage to which Malcolm William Evans was a party alive at and after the date of death of the testatrix is to the children of Rosemary Anne Kitchin and Christopher Charlton Evans who satisfy the conditions of being alive at and after the date of death of the testatrix and being alive at and after the date of death of Malcolm William Evans and attaining the age of 21. Further order that the costs of and incidental to this application be taxed on a solicitor and client basis and paid out of the estate. -- 7 of 7 --