JUDGMENT OF SUPREME COURT OF QUEENSLAND ON INTERPRETATION OF WILL
application such as this are of long-standing. The object is to discover the testator’s
intention through examination of the words used in the will.2 To do so, regard is had to
the rules of construction traditionally applied by the courts and the aids to construction
contained in s 33C of the Succession Act 1981 (Qld).3
[4] At the heart of this interpretative exercise is the consideration of the usual meaning of the
language used in the testamentary provision in question, and this is to be done in light of
the will read as a whole.4
If the meaning of the provision is clear, the will shall be given
that construction.5 However, in determining what a testator meant by the words used in
the will, the court may receive evidence under the “armchair rule” so as to place itself in
the position of the testator at the time when the will was made. In this way, the court can
take account of the material circumstances which were known (or ought to have been
known) by the testator at the time when he or she used the words contained in the will.
The rationale for the rule is to be found in the proposition that “the meaning of words
varies according to the circumstances of and concerning which they are used”6
and,
because of that, the court is often assisted by establishing the context in which the
testamentary intentions were expressed. Importantly, such a rule applies where those
intentions appear, on a plain reading of the will, to be clear as well as in circumstances
where s 33C of the Act applies.Section 33C applies where the language used in the will, or part of it, is: (1) meaningless;
(2) ambiguous on the face of the will; or (3) ambiguous in the light of surrounding
circumstances. The provision does not prevent the admission of evidence that would
otherwise be admissible in a proceeding to interpret a will,8
but it makes clear that the
court may have regard to extrinsic evidence to help in the interpretation of language which
may be characterised in one of the three ways to which I have just referred. Where the
language is meaningless or ambiguous on the face of the will, such extrinsic evidence can
include evidence of the testator’s intention but, where the language is considered to be
ambiguous in the light of surrounding circumstances, evidence of the testator’s intention
is not admissible to establish any of those circumstances.
[6] The court is bound to construe the will “as trained legal minds would do”.9 That, however,
is not to say that the will must be construed in a strictly technical or legalistic sense; its
As to which, see Smith at 32-33, [24]-[25] per Atkinson J.
9 Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ; cited with approval by Isaacs J in Fell at 273.4
construction should be “sensitive to the factual context of ordinary life and
circumstances”.10 Further, the court should lean towards a construction which preserves,
rather than destroys, its effect.11 If the will shows that the testator must necessarily have
intended that an interest be given but there are no words in the will which expressly have
that effect, the court is to “supply the defect by implication, and thus to mould the
language of the testator, so as to carry into effect, as far as possible, the intention which
it is of opinion that the testator has on the whole will, sufficiently declared”.
12 But, as to
this, the court will not give effect to any intention which is “not expressed or plainly
implied”13 in the language of the will; there is no room for “gratuitous, groundless,
fanciful implication”.14 On the other hand, if the contents of a will show that a word has
been “undesignedly omitted or undesignedly inserted, and demonstrate what addition by
construction or what rejection by construction will fulfil the intention with which the
document was written, the addition or rejection will by construction be made”.15
Background
SUPREME COURT OF QUEENSLAND
CITATION: Suthers & Anor v Suthers & Ors [2015] QSC 285
PARTIES: ANDREA SUTHERS and ANTHONY DAVID
SUTHERS (as executors of the Will of JESSIE ANNIE
SUTHERS)
(applicants)
v
ANDREA SUTHERS and ANTHONY DAVID
SUTHERS and RODERICK JOHN SUTHERS
(as beneficiaries under the Will of JESSIE ANNIE
SUTHERS)
(respondents)
FILE NO/S: SC 7638 of 2015
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT:
Supreme Court at Brisbane
DELIVERED ON: 14 October 2015
DELIVERED AT: Brisbane
JUDGE: Burns J
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