DISPUTE OVER WILL

Dominion, Volume 28, Issue 284, 28 August 1935, Page 13

DISPUTE OVER WILL

Interpretation of Clause

COURT DECIDES QUESTION

Points arising out of the will of the late Herbert Samuel Wardell, stipendiary magistrate, who died iu 1912, were the subject of litigation in the Wellington Supreme Court yesterday. The Chief Justice (Sir Michael Myers) presided. , , „ . . In his will deceased provided tor his daughter, Theresa Mary Wardell, by setting aside £lOOO upon trust for her s o long as she remained unmarried, and in the event of her dying unmarried his trustees were directed to pay her funeral and other expenses and her debts up to the sum of £l5O. 'The questions for determination were: What expenses were payable by the trustees under the heading "other expenses,” and did they include (a) testamentary expenses, (b) expenses incidental to administration, (c) estate duty, (d) succession duty. A further question was as to whether the limit of £l5O was applicable to funeral aud other expenses and debts as a whole, or was it applicable only to the debt's of the late Miss T. M. Wardell. Mr. A. B. Buxton appeared for plaintiff, Elizabeth Helen Young, the solv surviving trustee of the late Mr. H. 8. Wardell; Mr. J. S. Hanna for defendants, H. J. Wardell and H. R. W. Beetham, trustees of the will of the late Miss Wardell; and Mr. P. B. Broad for the Public Trustee. Plaintiff's submission, said Mr. Buxton, was that the limitation of £l5O applied to all of the items contemplated by funeral and other expenses, and that any other construction would lead to results not possibly contemplated by •testator and would not be in accordance with the scheme of his will. Mr. Hanna submitted that authority was given the trustees to pay Miss Wardell’s funeral and other expenses without any limitation and her debts up to a limit of £l5O. “Mr. Hanna at first contended that the clause of the will which I am asked to construe directs payment of both funeral and other expenses of Theresa Mary Wardell and also her debts without any limitation,” said his Honour in giving his decision. “This contention he based upon a statement in plaintiff’s affidavit as to the precise wording of the clause in the original will, but upon the original will being produced at my request out of the registry, it appears that the statement in Miss Young’s affidavit is erroneous. The actual wording of the clause of the will- in the document itself is as follows: Tn the event of her dying unmarried before the happening of the event upon which she shall become entitled to moneys under the said settlement, my trustees shall pay her funeral and other expenses and her debts to the sum of £150.’ Mr. Hanna, as soon as he saw the wording of the original will admitted that his first contention could not possibly succeed. He then contended in the alternative that the clause directs payment out of the £lOOO therein referred to of (a) the funeral and other expenses of Theresa Mary Wardell, and (b) her debts up to the sum of £l5O. ' x “Mr. Buxton, on the other hand, contends that this maximum of £l5O includes both funeral and other expenses and debts. That is to say, he contends the £l5O is the maximum payable, although the various items, funeral, other expenses and debts, may exceed that sum/’ .

His Honour said he was strongly inclined to think that Mr. Hanna's contention was the correct one. He found it unnecessary, however, to express a concluded opinion on the point, because he felt bound to find against Mr. Hanna on the construction pf the words "funeral and other expenses," and if he was right in so doing, then the question as to whether or not he (Mr. Hanna) was right ou his previous contention became quite Immaterial. Mr. Hanna contended that the words funeral and other expenses Included actual funeral expenses, the cost of the erection of a memorial on Miss Wardell’s grave, estate duty assessed upon her estate, succession duty assessed upon the succession under her will, solicitor’s costs of administration on her estate, and various other items. “I do not think that this contention can be upheld,” continued his Honour. “In my opinion, the words ‘other expenses’ must be read in jusdem generis with funeral expenses, so read, I think, that the reasonable cost of the erection of a memorial, though not a funeral expense, Is an expense in jusdem generis of the funeral expense, and is, therefore, included in the expression of the will. I feel clear that the words ‘other expenses’ cannot be read as including administration expenses or estate duty or succession duty. The only items which come within the expression are, I think, the first three items set out in paragraph 4 of the affidavit of defendants, namely, the debts of Miss Wardell amounting to £27/19/9, funeral expenses amounting to £2B, and the cost of the erection of a memorial, £4B. The last-mentioned amount certainly seems to be heavy, but this may be explained by the fact, as Mr. Hanna tells me he is Informed, that th burial was in a family plot necessitating something more than the ordinary expenditure for the purpose of securing uniformity of style.”