Motum v Motum [1999] NSWSC 761

New South Wales Supreme Court CITATION : Motum v Motum [1999] NSWSC 761 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1648/99 HEARING DATE(S) : 20/07/99 JUDGMENT DATE : 20 July 1999

Ronald Archie Motum (P) PARTIES : Graham Arthur Motum (D1) Trevor Leslie Motum (D2) Delma Wark (D3) JUDGMENT OF : Young J

M S Willmott (P) COUNSEL : D1 and 2 in person B Sharpe (D3) SOLICITORS : McNeil James (P) Whitelaw McDonald (D3) CATCHWORDS : Succession [174] & [234]- Will- Construction- Absolute interest- Cut down by life estate- Presumption against intestacy- Indications that absolute interest to remain. Words & Phrases- "Equally"- "Revert" Fell v Fell (1922) 31 CLR 268 CASES CITED : Re James's Will Trusts [1962] Ch 226 Re Norman's Trusts [1879] WN (Eng) 175 Rentoul v Rentoul [1944] VLR 205 DECISION : See para 17

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

TUESDAY 20 JULY 1999

1648/99 - RONALD ARCHIE MOTUM V GRAHAM ARTHUR MOTUM & ORS

JUDGMENT

1 HIS HONOUR : Herbert Arthur Motum, retired fisherman of Tea Gardens, Port Stephens, died on 19 August 1950 having first duly made and published his last will on 16 December 1947, probate of which was granted by this Court on 12 September 1952. 2 The will is a handwritten will and it is necessary to set out the dispositive provisions in full:

"I give and bequeath to my Dear Wife Mary Sophia Motum all my Private and Personal estate consisting of all monies in hand or in Banks and my house and ground Known as Myall Villa lot 32 of A. A Company Estate Fronting River Reservation Street Tea Gardens and Lot 7 Being portion of Jacob Houghs Subdivision where are erected 2 small Cottages for Rental Purposes. The shed erected their on with all nets and gear there in is the sole Property of my two Sons Gordon Leslie Motum and Ronald Archie Motum At my Wifes Death this Property is to be left to my Daughter Kate. Elisa. Motum and my Son Arthur. Maxwell. Motum equally between them for Life if my Daughter should Marry then the (sic) Her Share to revert to Arthur Maxwell Motum My Oyster Leases No 44.11. No 45, 50 and Leases on Witts Island to my Son Eric Arthur Motum And my Launch and Boats to Arthur Maxwell Motum to rent with the Cottages."

3 The testator had eleven children. All except the plaintiff Ronald are now deceased. Kate was the second child. She was born on 8 September 1903 and died on 26 September 1998. Arthur was the youngest. He was born on 21 December 1922 and died on 19 July 1996. The widow died on 4 July 1965. 4 The only remaining property in the estate is real estate at 8 Jacob Street, Tea Gardens, the current value of which is $150,000. However, the answer to the problem posed in this case may also have some effect on past transactions. 5 The essential question is whether on the true construction of the testator's will, and the events which have happened, the property at 8 Jacob Street, Tea Gardens is held by the legal representatives of Kate and Arthur absolutely, or whether the property passes as on a partial intestacy to the testator's next of kin. 6 Mr Willmott appeared for the plaintiff and also put arguments in favour of an absolute interest. The first and second defendants appeared in person but took no part in the argument. They represent the estate of Arthur, the plaintiff being the representative of Kate. The third defendant represents the next of kin. 7 Mr Sharpe, who appeared for the third defendant, has reminded me of the stricture in the authorities that courts need to look at the words which the testator has used and construe those words, rather than embark on any speculative exercise as to what the testator might have wanted to say had he thought about it. He says this is so even if the result may be bizarre: Fell v Fell (1922) 31 CLR 268, 274; Re James's Will Trusts [1962] Ch 226. Mr Sharpe then says one sees in this will the words "for life" and when one sees those words it is evident that the testator meant to grant only a life estate. It is just that simple. 8 Unfortunately, it is not that simple for a number of reasons. First, giving Kate and Arthur an estate "equally between them for life" could mean a variety of different things. Kate was 19 years older than Arthur. The testator might have thought that she would die before Arthur, but the way in which the will is expressed no provision has been made for what would happen if one of the children did die before the other. 9 Mr Sharpe says that the proper construction is that Kate was a tenant in common of a moiety for life and Arthur was tenant in common with her of the other moiety. Accordingly, upon Arthur's death there was an intestacy as to the income of his moiety, while Kate only continued to enjoy the income from the other moiety. That is possible as the word "equally" tends to denote a tenancy in common: Rentoul v Rentoul [1944] VLR 205, 206. However, another construction is that Kate and Arthur enjoyed the income equally for their joint lives and then when one of them died the survivor took the whole of the income of the estate until he or she died. This would avoid assuming that the testator intended an intestacy as to the income from a moiety. 10 But there is another complication and that is caused by the word "revert". That word usually means turns back again or vests back again: cf Re Norman's Trusts [1879] WN (Eng) 175. How could Kate's share ever go back again to Arthur? On the view that the words "for life" mean what Mr Sharpe says they mean there is no answer to that question. The only possible view is that the testator tried to be clever by using words he did not understand. That is a possibility, but it is speculation. 11 There are then other odd things about the will. The property included eventually the house in which the widow was living and two cottages which were for rental purposes. The final words of the will say that Arthur is to have the launch and boats outright to rent with the cottages, but how can he rent the boats and cottages if he does not own them? 12 Everyone seems to have assumed that the widow took a life estate in the house and the cottages and all the land, and I will just assume that that was so. However, the words at the end of the will seem to indicate that Arthur was to have an overriding interest in the cottages, at least, and that he was to be the one controlling them. 13 It may well be that as Arthur was the youngest male, and the daughter Kate at the date of the will being forty-four and unmarried, the testator thought that that was the natural thing to do and that Kate would predecease Arthur. Thus he considered that the cottages would be Arthur's at least for life. That sort of flavour does seem to come into the will. 14 The testator seems to have understood what a life interest was and that he needed to make provision after the death of his widow. He has not made any provision as to what was to happen after the death of Arthur and Kate. It may be that like many people who are making a will they think of the immediate disposition of their property and forget to put in a residuary clause. However, there is a presumption, albeit a slight presumption, against intestacy on the basis that people who go to the trouble to make a will are not intending to take part in a solemn farce. 15 The will can be read sensibly if one takes the words commencing "for life" as if they were in parentheses, that is that Kate and Arthur are to take the property in remainder after the widow's death equally between them absolutely, but that should the daughter marry she should only enjoy her interest for life and then her share would revert to Arthur. This might be able to be explained because the testator had eleven children, he only made provision for two and he seemed to make provision for his unmarried daughter because it was necessary for her to have somewhere to live, but he did not intend that the property should go outside the family to her husband after her death. 16 Whichever way one looks at the will, one gets problems. I have to do the best I can with the words the testator used and it seems to me that the true construction of the will is that Kate and Arthur and accordingly their estates take the property absolutely. 17 Accordingly, I answer question 1(b) in the summons "Yes". I appoint the third defendant to represent the interests of the next of kin and I order that the costs of all parties be paid on the indemnity basis out of the estate. The exhibits may be returned and the original will may go back to the Probate Office. ***************

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