Aileen Barbara Fotiadis v Mervyn Patrick Jinks & Anor

• 10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1235/02 AILEEN BARBARA FOTIADIS V MERVYN PATRICK JINKS & ANOR JUDGMENT 1 This is a will construction case. The plaintiff and the first defendant are executors and the second defendant is a beneficiary under the will of the late Ivy Elizabeth Jinks who died on 14 February 2001. Probate of the will was granted on 18 July 2001 to the plaintiff and the first defendant.

2 The deceased's will, made on 27 November 1998, was on a printed form and is in the following terms: "This is the last will and testament of me, Ivy Elizabeth Jinks of 284 Fullerton Street, Stockton, in the State of New South Wales. I give, devise and bequeath all my personal estate and goods and $15,000 invested in Commonwealth Bank to:

Mervyn Patrick Jinks, Taralba Road, Adamstown, Aileen Barbara Fotiadis, Flat 1, Billyard Avenue, Elizabeth Bay, Gloria Kay Bower, Wurley Drive, Wurtulla, Queensland, Karen Jinks, 33 Milson Street, Charlestown.

I direct payment of all my just debts, testamentary and funeral expenses.

I revoke all former wills made by me and appoint Mervyn Patrick Jinks and Aileen Barbara Fotiadis, of Adamstown, Elizabeth Bay, execut of this my will."

3 There is no issue between the parties that the deceased did not have legal advice in respect of the making of this will. It is submitted that if there had been legal advice, a lawyer would have completed or corrected "execut" to read "executors", "executrix and executor" or a relevant word to describe both Mr Jinks and Ms Fotiadis.

4 Within the Probate, (Ex A), is the inventory of property of the estate of the deceased. That includes a description of the property owned solely by the deceased as follows: Real property, 284 Fullerton Street, Stockton, being whole of the property in Folio Identifier A/7/10895, with an estimated or known value of $165,000.

There was also reference to bank accounts, two at the Commonwealth Bank, the first being No. 281450086466 in the amount of $5108.12; the second being No. 28145007009 in the amount of $3.57; the third bank account is the Newcastle Permanent Building Society Account No. 865513104 in the amount of $5855.85.

5 In the case before me today, Mr J Azzi, of counsel, appears for the plaintiff, Mr M S Willmott, of counsel, appears for the first defendant, and Ms Y Holt, of counsel, appears for the second defendant. Mr Azzi has outlined his submissions in a most helpful document referring the court to numerous matters that may well have been in issue before this case was called on for hearing. I should indicate that the evidence that was tendered was subsequently objected to after being marked as Exhibit A. I allowed the re-opening of that debate and Mr Azzi, having heard Mr Willmott's objection to paragraphs 5 through to 16 of the affidavit of Sean Simon Shotter of 19 December 2001, withdrew the evidence contained in paragraphs 5 to 16 of that affidavit and withdrew annexures C to H which formed part of Exhibit A. There was also objection to paragraphs 20, 21 and 32. Those paragraphs and the annexures to those paragraphs are not in evidence. 6 One document that Mr Azzi tendered, which was not objected to, was the advice provided by Mr Willmott to the executors on 20 August 2001. That advice contains reference to facts or matters that are not in evidence. I do not intend to have regard to the advice of Mr Willmott other than to note that it forms part of his submission in this case. It is, however, a fact that the parties to these proceedings took different views about the meaning of the will and it is a fact that Mr Willmott's advice was given in an attempt to assist the executors, to reach a conclusion without having to resort to litigation.

7 The plaintiff submitted that the words used by the deceased in her will do not include real property and that the deceased died intestate as to the real property. The defendants contend that the words in the deceased's will include the real property at Stockton.

8 Mr Azzi, in his submissions, has been very careful to take the court to the rules of construction and in particular has referred the court to the decision in Perrin v Morgan [1943] AC 399, in particular at page 406 where Viscount Simon said: "My Lords, the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator."

9 Mr Azzi also referred the court to In Re Bailey; Barrett v Hyder (1951) Ch 407 at 421, and the caution that it is not the role of the court to improve upon or perfect testamentary dispositions. Ms Holt reminded the court of the Master at Rolls' judgment in Re Harrison; Turner v Hellard (1885) 30 Ch D 390, but in particular at 393 - 394 where Lord Esher said: "There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce, - that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. That is the golden rule."

10 The words in the will for construction are "all my personal estate and goods and $15,000 invested in Commonwealth Bank". Mr Azzi submitted that "personal estate" is a technical term and should be given the proper legal meaning. In this regard he and others at the bar table have referred the court to Lord Wensleydale's speech in Roddy v Fitzgerald (1858) 6 HL Cas 823 at 877: "... technical terms, or words of known legal import, must have their proper legal effect attributed to them, although the testator uses inconsistent terms or gives repugnant and impossible directions. To deprive the technical words of their appropriate sense there must be sufficient to satisfy a judicial mind that they were meant by the testator to be used in some other sense, and to show what that sense is."

11 The plaintiff also placed heavy emphasis upon Harman J's judgment in In Re Cook; Beck v Grant [1948] Ch 212. The will for construction in that case contained words including the following: "I give and bequeath unto my nieces and nephew (named) all my personal estate whatsoever..."

Harman J at 216 said: "It seems unlikely that she intended to dispose only of the personal estate in the lawyer's sense of that word and not to deal with the more substantial part of her property, namely, this house (in which she lived) and her other freehold house; but this is a case where a layman has chosen to use a term of art. The words 'all my personal estate' are words so well-known to lawyers that it must take a very strong context to make them include real estate. Testators can make black mean white if they make the dictionary sufficiently clear, but the testatrix has not done so. It may well be that she thought 'personal estate' meant 'all my worldly goods'; I do not know. In the absence of something to show that the phrase ought not to be so construed, I must suppose that she used the term 'personal estate' in its ordinary meaning as a term of art. Consequently, I hold that the testatrix only succeeded in disposing of what the lawyers would call her 'personal estate' and she did not dispose of this house, No. 16 Kirton Park Terrace, which therefore devolves as on an intestacy."

12 That is the result for which the plaintiff contends in this case, that the deceased did not achieve the disposal of her real property or real estate and it should devolve as on an intestacy. Harman J referred to a "very strong context" to make the term in that case, personal estate, include real estate and also referred to the "absence of something to show that the phrase ought not to be so construed".

13 Another authority to which Mr Azzi took me was Hall v Hall [1891] 3 Ch 389. In that case the will was more sophisticated than the will in this case. It included the following: "I give, devise, and bequeath unto my dear wife, Ann Hall , for her own absolute use and benefit, free from the control of any future husband, all my furniture, goods, chattels, and effects that I may be possessed of at my decease, whatsoever the same may be or wheresoever the same may be situate ... and I give, devise, and bequeath after the decease of my said wife, Ann Hall , to be equally divided amongst three of my children, if they should be living at the time of the decease of my said wife, Ann Hall ... until they shall attain the age of twenty-one years, for their sole and separate use, the furniture and moneys, or any property which my said wife may have become entitled to through this my will or through any other source for their sole and separate use and after my said children have attained the age of twenty-one years, the furniture, goods, chattels, and effects, whatsoever the same may be or wheresoever it may be situated, and any moneys..."

14 Fry LJ referred to the original use of the terms "furniture, goods, chattels, and effects" with the later use of the words "the furniture and moneys or any other property" and said at 392 - 393: "The testator has used the word 'devise,' which is appropriate to realty; he has said, 'whatsoever the same may be or wheresoever the same may be situate,' and he has used the word 'property' as equivalent to the expression he had used before.

The cases establish this, that the word 'effects' will not per se include real estate. They also establish that the word 'devise' is not enough to give to 'effects' a more extended meaning, and that the words 'of what nature, kind, or quality whatsoever' are by themselves not enough. But no case goes to shew that the whole context which we have here is not enough. The Courts were formerly inclined to take a narrow view of the word 'effects,' though there is some authority the other way. Lord Mansfield went one way and Lord Ellenborough another. Vice-Chancellor Malins took the broader view where several circumstances, each of which might have been held insufficient in itself, concurred, and I think that no case precludes this."

15 The plaintiff submitted that it would be unreasonable to construe the will to mean that "all my personal estate" includes the real estate. It is submitted that there is not a very strong context or explicit contrary intention for the word to mean anything other than what the term of art means, that is personal estate only and not inclusive of real estate. A further case that Mr Azzi took me to, in anticipation of reliance upon it by the defendant, was Re Cox (Deceased) (1967) Qd R 173. The will in that case included the following: "I devise and bequeath all my personal estate of whatsoever nature and whosoever situate of which I am personally possessed and which I may in future become possessed…"

16 Lucas J referred to Harman J's judgment to which I have already referred and then at page 177 said: "Counsel for the executrix and beneficiary, on the other hand, relied upon cases in which words such as 'personal estate' or 'personal effects' had been held to pass real property, for example, Hall v Hall (supra), Re Wass (1906) 95 LT 758; Re East (1964) QWN 16."

17 In Re East the will provided: "This is the last will and testament of me, (named). I Give, devise and bequeath…all my monetary and personal possessions..."

18 Gibbs J, in a precise analysis of the meaning of the words "possession", "personal" and "all my possessions", said this at 43 - 44: "It appears to me that the expression 'all my monetary and personal possessions' is imprecise and ambiguous and may refer to the whole of the testator's property, real and personal, or may be limited to refer to all or part of his personal estate. In construing an ambiguous will, the courts act on the presumption that the testator intended to dispose of all his property: 'In ascertaining the intention, I ought to a certain extent - we all know what the expression means - to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary. ... In the present case, also, the testator made one gift, and he must either have intended that its words would describe all the property that he might own at the date of his death, or that he would die intestate as to part of that property. In these circumstances, it seems to me that I should presume that the words of the will were used in the widest sense of which they are capable, so as to dispose of the whole of the property owned by the testator at his death and avoid a partial intestacy."

19 His Honour held that the construction was supported by use of the word "will" and also the word "devise". He referred to the fact that those words formed part of the printed form and were entitled to "less weight" in ascertaining the intentions of the testator than the words that the testator had chosen to use. Gibbs J held that the words "all my monetary and personal possessions" comprised the entire estate, real and personal, of the testator. 20 Mr Azzi submitted that each of the cases was different from the present case but by implication that Re Cook is the closest to the circumstances which the court has before it. He submitted that I should follow strictly Harman J in Re Cook and construe the term "all my personal estate" as excluding real estate. I must however look at the whole of the will. This is not the same as the will in Re Cook. The testatrix in this case has added to the words "all my personal estate", the words "and goods and $15,000 invested in Commonwealth Bank". 21 Mr Azzi submitted that I simply do not know what the testatrix had as her personal estate and goods or any real property at the time she made the will. That would be relevant to know if there were an ambiguity in the will. The testatrix used the word, "devise". However that was in the printed form and should be given less weight than the words the testatrix wrote herself.

22 "Devise" is usually used in relation to real property. Prima facie devising personal estate may seem to be an ambiguity. In those circumstances the parties could have tendered evidence of the property owned by the testatrix at the time she made the will to assist in the construction of the will in the face of that ambiguity. That was not done. Indeed, Mr Azzi submitted that I cannot take anything from the inventory of property at all to assist me in construing the will. 23 It seems to me that in the light of the fact that the word "devise" is used in this will, I am entitled to look at what is before me in a common sense approach to the construction of this will. It is clear that at the time the will was made the deceased lived at 284 Fullerton Street, Stockton. It is also clear that she referred specifically to an amount of money in the bank, some $15,000. According to the inventory, that amount, if she did have it in the bank at the time, had been reduced to approximately $11,000, and there is also the addition of the Newcastle Permanent Building Society account to the Commonwealth Bank Account. Mr Azzi submitted that I simply cannot use this material to ascertain what it was that the testatrix owned at the time she made the will.

24 The fact that no evidence has been called to establish otherwise, and having regard to the inventory, I am satisfied that the majority of the testatrix's estate at the time of the making of the will was made up of real property, being the property at Stockton. Even if I am wrong to conclude that to be the case, the terms of the will itself lead me to conclude that the testatrix intended to deal with the whole of her estate, including real property. That conclusion is reached from looking at the words "all my personal estate and goods and $15,000 invested in Commonwealth Bank". The use of the words "and goods", in my view, is a very strong context from which to conclude that "personal estate" was meant to include real estate.

25 It seems to me that this testatrix, in a less sophisticated way than the wills to which I have earlier referred, was careful to delineate goods which are otherwise personal estate from the $15,000 in the bank, and in addition, personal estate. It would not have been necessary to use the words "and goods" if the words "personal estate" meant "personal estate" in the technical sense. I am satisfied that those words, in their context alone, taken with the whole of the will include real estate. That interpretation and construction of the will is supported by taking into account the contents of the inventory but I have not found it necessary to do that to construe the will.

26 I make a declaration that on the true construction of the will dated 27 November 1998 of Ivy Elizabeth Jinks, in respect of which probate was granted on 18 July 2001 to the plaintiff and the first defendant as executors, the second defendant is entitled to participate in the proceeds realised from the sale of the deceased's real property at 284 Fullerton Street, Stockton.

27 Application is made by the plaintiff for the second defendant to pay her own costs of these proceedings. It is not clear to me why such an order should be made. The plaintiff joined the second defendant. It is apparent there were some preliminary skirmishes between the second defendant and the plaintiff as to what was to happen in respect of the proceedings and it may well have been for abundant caution that the plaintiff joined the second defendant. Once the second defendant was joined she was entitled to be present. I am not persuaded there is justification for an order that the second defendant pay her own costs. The costs of the proceedings in respect of each of the parties are to be paid out of the estate. * * * * * *

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