Napper v Miller [2003] NSWSC 376

New South Wales Supreme Court

CITATION : Napper v Miller [2003] NSWSC 376 HEARING DATE(S) : 02/04/03 JUDGMENT DATE : 6 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : On the text of the will the word "survive" is to be given its ordinary legal meaning, therefore any children born after the death of the testatrix do not take under the will.

CATCHWORDS : SUCCESSION [168][179]- Will- Construction- Gift to grandchildren who survive testatrix and attain 25- Whether postnates take. WORDS & PHRASES- Meaning of "survive". Brennan v Permanent Trustee Company of NSW Ltd (1945) 73 CLR 404 Hill v Crook (1873) LR 6 HL 265 In re Stapleton [1969] SASR 115 Knight v Knight (1912) 14 CLR 86 CASES CITED : McGrath v Hughes (Bryson J, 24.7.1991) Phipps v Ackers (1842) 9 CL & F 583; 8 ER 539 Re Andrews [1985] 2 Qd R 161 Re Arndt [1990] WAR 5 Re Clark's Estate (1863) 3 DeGJ & S 111; 46 ER 579 Wilson v Harris (1964) 65 SR (NSW) 329 Howard James Napper (P) PARTIES : Ian Colwell Miller (D1) Deborah Jean Napper (D2) Richard John Neal (D3) FILE NUMBER(S) : SC 4046/01 COUNSEL : G Blake SC (P) P H Blackburn-Hart (D3) SOLICITORS : Hancock Alldis & Co (P) Teece Hodgson & Ward (D3)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 6 May 2003

4046/01 – NAPPER v MILLER JUDGMENT 1 HIS HONOUR: The present proceedings concern the true construction of clause 4(a) of the last will and testament of 21 December 1998 of the late Doreen Molly Napper. Mrs Napper died on 16 February 2000, probate of that will being granted to the plaintiff and the first defendant on 16 August 2000. Clause 4 of the will and part of clause 5, so far as is relevant, are as follows: "4. I GIVE the rest and residue of my estate of whatsoever kind to my Executors ... UPON TRUST : (a) as to an undivided one half share thereof for the child or children of my son Howard James Napper who shall survive me and attain the age of twenty five (25) years, and if more than one in equal shares as tenants in common; and (b) as to an undivided one half share thereof for the child or children of my daughter Naomi Elizabeth McGee-Collett who shall survive me and attain the age of twenty five (25) years, and if more than one in equal shares as tenants in common, PROVIDED HOWEVER that if there shall be no child or children who shall survive to attain a vested interest in respect of either or both shares then such share or shares as have failed shall be held by my Executors UPON TRUST in equal shares for (two named hospitals). 5. IF at the date of death or at such later date as there shall be a failure to vest in favour of either part for my grandchildren referred to in clause 4 ... ". 2 As at the date of making of the will, the testatrix would have known that her daughter had four children born in 1987, 1990, 1992 and 1995. Her son had one child, Juliette, born on 15 April 1998. A second child, Isabelle, was born to the son and his wife on 7 October 1999. 3 The evidence is that prior to the birth of Juliette, the testatrix's son, Dr Napper and his wife undertook an IVF programme from which several embryos were created. Four of these embryos were kept frozen for future use. 4 On 21 April 2003, that is, after the testatrix's death, two of the embryos were inserted into the testatrix's son's wife. She gave birth as a result of this procedure to twins, Eric James Napper and Ruby Antonia Napper, on 24 December 2002. The other two embryos are still in existence in frozen form. 5 The essential question is whether the only children of the testatrix's son who can benefit from the testatrix's will are Juliette and Isabelle, assuming that they attain 25 years, or whether Eric and Ruby (and perhaps if they are in due course born, the other two embryos) can also share. 6 I should note that the evidence is, should it be relevant, that in 1991, the testatrix was informed that her son and his wife had undergone an IVF programme, and that there were four frozen embryos in existence. 7 There are other aspects to these proceedings, but the matter I have already mentioned is the only matter with which I have to deal. If I answer that question in a particular way, that will be the end of the proceedings; otherwise, other aspects of it will have to be tried in due course. I will not burden these reasons by setting out the technical questions involved. 8 The key words in clause 4(a) are the words "survive me". Ordinarily, those words mean "outlive me" and refer to a person who was living contemporaneously with the testatrix and also lived after her, postnataes being excluded: Knight v Knight (1912) 14 CLR 86. 9 However, Mr Blake SC, who appeared for the plaintiff, says that the words often have another meaning, namely, that the relevant beneficiary should not predecease the testator. 10 So far as authority is concerned, the high point of Mr Blake's argument is Brennan v Permanent Trustee Company of NSW Ltd (1945) 73 CLR 404. In that case, Rich J said at 409: "No-one can doubt that according to the correct use of English the word 'survive' imports life before and after the event survived. A man does not survive another unless he was born before the other's death. But the testator and his draftsman do not appear to have been masters of English. … It is clear that, according to exact English usage the literal application of the word 'survive' would exclude after born nieces postnatae . … But courts of construction recognise that testators, in common with others, may misuse language. Indeed, we have here another instance of the perpetual conflict between the two ways of solving questions of interpretation. The one is to give effect to rules of grammar or of construction at the expense of what intuition tells us is the real meaning of the man who penned the instrument. The other is to search the whole document and obtain as much light as possible from the circumstances and give effect to the intention you find disclosed notwithstanding grammar, philology, logic, and all the prima facie meanings that case law can supply." 11 At 411, Rich J said that in the circumstances of the case before the court there was a gross a priori improbability of the testator intending to exclude the children of his unmarried and the children of his married nieces born after his death, especially in view of the clear declaration of his general intention to benefit nieces and their issue. Other aspects of the will also pointed in the same direction. Dixon J at 415, agreed that the context raised the strong presumption that the testator did not use the word "survive" in its correct sense and did not intend to deny benefit to postnataes. Williams J agreed and at p 420, quoted the words of Knight Bruce LJ in Re Clark's Estate (1864) 3 DeG J & S 111, 115; 46 ER 579, 581: "I am of opinion that we may without impropriety hold the words 'who shall survive me' to mean 'who shall be living after me;' and I am not sure that this is not their strictly correct meaning." 12 There have been a line of cases since Brennan's case where similar problems have emerged. I will consider the principal authorities in chronological order. 13 In Wilson v Harris (1964) 65 SR (NSW) 329, a decision of the Full Court consisting of Walsh, Hardie and Asprey JJ, the trust was for such of the testator's daughter's children as survived him and attained 21. At the date of the testator's death, the daughter was a married woman having married about 18 months before the will was made, but she had no children. She later had two children and the question was whether the children could take. Jacobs J at first instance answered that question affirmatively. He was greatly influenced by the fact that there would be a partial intestacy if the word "survive" did not have an extended meaning. The Court of Appeal thought that that was not a sufficient reason for departing from the ordinary meaning of the word "survive". Hardie J commented at 336 that Knight Bruce LJ's short statement in Re Clark which I have quoted above, was shown by later decisions not to be correct. 14 In In re Stapleton [1969] SASR 115, 123, Bray CJ commented on Rich J's use of the word "intuition" in Brennan's case and said: "'Intuition' here, I think, means something more than guesswork and something considerably less than conviction." 15 In Re Andrews [1985] 2 Qd R 161, the relevant provision in the will was to transfer the residue to "such of my grandchildren as shall survive me and attain the age of 21". The testatrix died in 1981 and at that date she had two grandchildren, a third was born a year after her death. Ryan J considered that there were sufficient indications in the will that "survive" was not used in its correct sense of outlive and there was a gross a priori improbability of the testatrix intending to exclude postnataes, particularly the fact that the testatrix's daughter was still a young woman. 16 In Re Arndt [1990] WAR 5, R D Nicholson J, when a Judge of the Supreme Court of Western Australia, dealt with a will where the gift was to the children of the testatrix's son who survived her and attained 18. His Honour followed the approach in Brennan's case but held that there was no indication in the will that the word "survive" had other than its ordinary meaning. 17 Finally, there is a decision of Bryson J in this Court in McGrath v Hughes 24 July 1991 (BC 9101749). The gift there was "Upon trust for all of my grandchildren who survive me and attain the age of 25". The testatrix never had any children of her own, but it was clear that she meant her second husband's grandchildren. Of those in existence at the date of the decision, one was born after the testatrix's death. The question was whether that grandchild shared with the others. 18 Bryson J considered Brennan's case and those which followed it. He considered that it was hard to find any purpose which might have been intended to be served by inserting the words "who survive me" and could have no rational meaning. 19 In all the circumstances, he considered that the grandchild born after the testatrix's death, together with any other grandchild that might be born before the class closed when the first grandchild attained 25, took benefaction under the will. 20 It is quite clear that when dealing with problems of this nature, the Court is entitled to look at the family structure as at relevant dates. In Hill v Crook (1873) LR 6 HL 265, 283, Lord Cairns said: '"In order to interpret the words of the will, it is always not only allowable, but it is the duty of the Court to obtain, the knowledge which the testator had of the state of his family." 21 Mr Blake says that when one looks at this, one can see that the testatrix knew that her son and daughter-in-law had one grandchild, they had been involved in an invitro fertilisation programme in which there were more frozen embryos, and that accordingly she would have strongly suspected that more children would come their way. It is glaringly improbable that, first of all, the testatrix would have got so attached to Juliette that she would have intended to exclude all others, and there was just no reason at all as to why she would have excluded postnataes. 22 Mr Blackburn-Hart, who appeared for the representative of Juliette and Isabelle, said that it was quite inadequate merely to look at the family of the testatrix's son. Clause 4 of the will made mirror provisions for both the son and the daughter. The testatrix's daughter, Naomi, had four children aged 3 to 11 at the date the will was made. It would be quite possible for the word "survive" to have meaning for Naomi's children, even though it did not for Dr Napper's children. The point is well made. 23 Mr Blake points to the fact that there is very little work for the word "survive" to catch. This is certainly true with respect to Dr Napper's children. There was some argument before me that the drafter might have intended that the clause prevents s 29 of the Wills Probate and Administration Act 1898 from operating. This thought flows from what Bryson J said in McGrath's case, but I think it is rather a long shot in the instant situation. 24 During the argument attention was also focussed on the use in clause 4 of the will of the proviso which reads: "…if there shall be no child or children who shall survive to attain a vested interest in respect of either or both shares …".

The word "survive" here is used in quite a different sense, namely, survive until the propositus attains 25 years rather than survive the testatrix. Attention was drawn to the word "vested". Mr Blackburn-Hart says that the word in the proviso and again the phrase in clause 5 "if … there shall be a failure to vest in favour of either part for my grandchildren" creates difficulties. Normally one would construe a gift such as the present as a gift that is vested subject to divesting if the age is not reached, see Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539. On the other hand, the drafter appears to me to have used the word "vest" in the sense of vest in possession, that is, attain 25. 25 I agree with Mr Blackburn-Hart that if "vest" meant vest in interest and the rule in Phipps v Ackers applied, then it would be more likely that one would need to focus on the date of death of the testatrix. However, I do not consider on the meaning of the words in the will that one can apply this rule of construction. 26 Looking at the will as a whole, it was clearly drawn by a solicitor who appears to have used most terms in their ordinary correct legal sense. Apart from the use of the word "survive" in the proviso to clause 4, it does not otherwise occur in the will and it is difficult to say that the will shows that the word was to be used other than in its strictly grammatical sense. 27 I think when it comes to the crunch, Mr Blake's case really is that it is highly unlikely that the testatrix would wish not to benefit postnataes. It is very easy for people to say that something is obvious and I refer to the words of Bray CJ in Stapleton as to intuition that judges must apply in cases such as the present means more than guesswork. I appreciate that the fact that the word "survive" may have no semantic significance is not necessarily fatal to an argument like Mr Blake's. However, it seems to me that when one considers that there is no real grammatical peculiarities about the will, it was drafted by a solicitor, that one has to take into account Naomi's family as well as Dr Napper's, that there is insufficient there not to take the word "survive" in its ordinary sense. 28 I should point out that there was an interim judgment in this matter given by me on 18 November 2002 [2002] NSWSC 1122 in which I inclined to the other view. However, now having had full time to consider the matter and in the light of Mr Blackburn-Hart's submissions, my view is that the postnataes do not take. 29 The consequence of this being a decision on only part of the case, is that I should publish these reasons, record my determination and then stand the matter over to 20 May 2003 at 9.30 am or some other day that is arranged by counsel with my associate for the purpose of considering further aspects of the hearing. The costs to date of all parties should be paid out

of the share of the estate passing to Dr Napper's children. Further questions of costs are reserved.

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