ANZ Executors & Trustee Co Ltd v McNab

Supreme Court of NSW|2019-06-05|Before: Hallen J, Needham J, Powell J, Hodgson J

angelos Kandros (also known as Evangello Kandros) (first Defendant), submitting appearance Constantine Kazacos (second Defendant), submitting appearance Stephanie Kazacos (third Defendant), submitting appearance Marie Kazacos (fourth Defendant), submitting appearance Vicki Kazacos (fifth Defendant), submitting appearance Representation: Counsel: Mr M J Heath (Applicant)

Solicitors: Law Corporation Pty Ltd (Applicant) File Number(s): 2019/33670

Judgment

HIS HONOUR: Aspasia Kandros ("the deceased") died on 18 November 2018.
The deceased left a duly executed Will made on 8 April 2008. On 17 May 2019, this Court granted Probate of the Will to the Plaintiff, Peter Kazacos, one of the three executors appointed under the Will. The second and third executors nominated in the Will, being Steven Naris and Con Passas, each renounced Probate by notice dated 5 February 2019, and 5 March 2019, respectively.

The deceased's Will

The deceased's Will, omitting the underlining contained in the original document and the precise addresses referred to, relevantly, provided: "… 3. I GIVE DEVISE AND BEQUEATH all my real and personal property whatsoever and wheresoever my Trustees UPON TRUST to sell, call in and convert the same or any part thereof to cash and I give to my Trustees the power in their absolute uncontrolled discretion to postpone any such sale calling in and conversion for whatever period of time they deem appropriate and I direct them out of the proceeds of such sale, calling in and conversion or any money on hand or at bank or on deposit as at the date of my death to pay all my just debts, funeral and testamentary expenses and all other duties and imposts payable by reason of or in consequence of my death whether they arise by way of death, succession, capital gains, capital transfer or other legislation of a like or similar nature and to hold the residue after payment as aforesaid upon the following trusts. 4. I MAKE the following specific bequests, viz:- (a) I GIVE my son EVANGELOS KANDROS (also known as ANGELO KANDROS) property known as 47 [xx] Avenue, Dolls Point. (b) I GIVE to my son EVANGELOS KANDROS property known as 124-126 xx Road, Marrickville. (c) I GIVE to my grandchildren CONSTANTINE KAZACOS, MARIE KAZACOS and STEPHANIE KAZACOS property known as 136 [xx] Road, Marrickville as tenants in common in equal shares. (d) I GIVE to my son EVANGELOS KANDROS my property known as 17/1A [xx] Street, Alexandria. (e) I GIVE to my daughter VICKI KAZACOS my property known as 5 [xx] Road, Caringbah. (f) I GIVE to my granddaughter ASPASIA KANDROS, daughter of Evangelos Kandros, property known as 122 [xx] Street, Monterey. (g) I GIVE my properties in Samos, Greece to my children VICKI KAZACOS and EVANGELOS KANDROS in equal shares as tenants in common. (h) I GIVE $10,000.00 each to my grandchildren STEVEN KANDROS, ROBERT KANDROS, ALLANA KANDROS and ALEXANDRA KANDROS. My reason for leaving only $10,000.00 to each of these grandchildren is that I provided for them during their lifetime and at the date of the death of their father Con Kandros when properties at Eve Street, Alexandria were sold and the proceeds unequally shared. (i) I GIVE the rest and residue of my estate as follows: i. As to one half to my daughter VICKI KAZACOS; ii. As to one half to my son EVANGELOS KANDROS."
The deceased's Will gave the executors named in the Will a number of powers, expressly specified at Clauses 7 to 11 of the Will. Relevantly, the Will does not, in any way, refer to, or otherwise provide for, means by which any real property devised in the Will could, or may, be partitioned.
The attestation Clause to the deceased's Will stated: "THE TESTATRIX not being able to read or speak the English language the will was read over to her in the Greek language by STEVEN NARIS who then informed us that the Testatrix had said that she approved of the will. It was then signed by the Testatrix in our presence and attested by us in the presence of her and each other".
Beside the attestation clause is what appears to be the signature of the deceased and then underneath that, the signature, handwritten name, and occupation, of each attesting witness.
Although the reading of the Will in the Greek language to the deceased is not referred to in the affidavit of Mr S Naris, to which reference will be made, I accept that, in accordance with the attestation clause, the Will had been translated into the Greek language and read to the deceased. I also accept that in 2008, the deceased was not able to read, or speak fluently, the English language.
In the Inventory of Property attached to, and placed in, the Probate document (Ex. A), the property owned solely by the deceased at the date of her death, was the real property at 47 xx Avenue, Dolls Point ("the Dolls Point property") ($2,100,000), several parcels of real property at Marrickville ("Nos 120 to 136 Marrickville") ($10,000,000), real property at Unit 5 xx Road, Caringbah ("the Caringbah property") ($899,000), real property at 122 xx Street, Monterey ("the Monterey property") ($1,600,000), cash in an investment savings account ($358,309) and an amount in a cheque account ($92). (I have omitted the reference to cents in the amounts to which I have referred).
In addition, the deceased was said to own "Vacant Lots in Greece", the value of which was unknown "but estimated to be negligible". The case does not concern immoveable property outside Australia.

The Issues

Despite Nos 120 to 136 Marrickville, apparently, having different street addresses, the evidence reveals that the land is comprised in one Folio Identifier (Folio Identifier 1/77xx). The area of land referred to in that Folio Identifier is approximately 3,517 square metres.
On part of the land comprised in Folio Identifier 1/77xx are, what was described as, factory units, which are known as Nos 126-132, and on another part of the land is, what was described as, a shop, which is known as No 136. (The shop has been described as "the double storage warehouse office" or "the brick building" by Vicki in her affidavit.)
The evidence reveals that in November 1987, the title of the land on which the factory units are situated, and the title to the land on which the shop is situated, were consolidated in Folio Identifier 1/77xx. However, prior to 1987, the factory units were identified as Nos 124-126, being the whole of the land in Lot C in Deposited Plan 418xx, and the shop was identified as No 136, being the whole of the land in Certificate of Title Vol 45xx Folio xx, being Lot 1 in Deposited Plan 81xx.
There are three different rate notices that issue in respect of the land comprised in Folio Identifier 1/77xx, one for No 126, one for No 136, and one for Nos 120-134.
In November 1995, the deceased and her husband, George Kandros, purchased the whole of the land in Folio Identifier 1/77xx, as joint tenants. On George's death in September 2015, the title to the land in the Folio Identifier passed, by survivorship, to the deceased. The Notice of Death was registered on the title Folio Identifier 1/77xx on 17 June 2016.
Thus, the issue that arises in relation to the devise in Clause 4(b) and Clause 4(c) of the deceased's Will is that the deceased, strictly speaking, could not devise Nos 124-126 to Evangelos, or No 136 to Constantine, Marie and Stephanie, as no separate titles exist in respect of each of the land on which the different structures are built. That was the case at the time the deceased made her Will; it remained the case at the time of her death; and it remains the case today.
In addition to that issue, since the death of the deceased, it has been ascertained that the Caringbah property, although described as "No 5" in the Will, is, in fact, unit 5, which unit is situated at a different address in xx Road, Caringbah. The issue that arises in relation to the devise in Clause 5(e) of the deceased's Will is that the parcel of land, devised to Vicki, is not, in fact, No 5, but Unit 5 at a different address.

The Evidence

Many of the factual matters referred to above are taken from two affidavits, each affirmed by Dorian Kratsas, a solicitor in the employ of the firm of solicitors acting for the Plaintiff. The first was dated 26 March 2019 and the second was dated on 29 May 2019.
To the second of the affidavits were plans and photographs that depict the land in Folio Identifier 1/77xx.
In an affidavit sworn on 30 May 2019, Mr Naris, the solicitor who prepared the deceased's Will, stated: 1. At the time he prepared the deceased's Will, he also prepared the Will of her husband, George; 2. He "first received instructions to prepare George's Will and [the deceased's] Will from their daughter, Vicki Kazacos"; 3. He received "formal instructions from George for George's Will and [the deceased's] Will. In preparing all wills for George and [the deceased], I would obtain instructions from George who I understood was authorised to provide these instructions on behalf of [the deceased]". 4. At the time he prepared each of the Wills, "I was not advised, and was unaware, that [Nos 120 to 136] had one title reference and was the consolidation of [Nos 124-126] and [No 136]" and "was not advised and was unaware that the correct address was Unit 5 … Road, Caringbah".
Mr Naris did not give any evidence that the deceased referred to the area of land on which the factory units are situated as Nos 126-132, or that she referred to the land on which the shop is situated, as No 136. Nor could he say that these matters were pointed out to her.
After counsel for the Plaintiff read the affidavits which had been filed, and had spoken to his written submissions, I raised the question of the evidence that would enable the Court to know whether the deceased had been aware of the differentiation of area comprising the factory premises and the area comprising the shop.
Candidly, counsel accepted that there was no evidence of the deceased's knowledge of the differentiation of areas. When it was pointed out that this may prevent the Court determining the deceased's actual intention, counsel sought an adjournment to enable him to ascertain whether any party could give evidence about this aspect.
Shortly before the long adjournment, the matter again proceeded and counsel for the Plaintiff sought leave to file in Court an affidavit sworn by Vicki on 5 June 2019. At the time, Vicki was in Court, although she did not participate in the proceedings. I granted leave to the Plaintiff to file in Court the affidavit referred to and the affidavit was then read.
Importantly, Vicki stated in her affidavit: "1. I am the Fifth Defendant and the only daughter of [the deceased]. 2. I am 64 years old at the time of making this affidavit. 3. My mother was 92 years old at the time of her death. My mother remained active up until the time of her death. She also maintained an active interest in her properties up until the time of her death. 4. My parents owned a number of properties. The properties were formally managed for many years by a professional real estate agent property manager at L J Hooker Marrickville. In my parents [sic] later years, my son Constantine Kazacos and his company Kaz property, managed my parents' properties. … 7. At the Marrickville property there are factory units and then there is separate building which is a double storage warehouse office. I spoke to my mother in the Greek language whenever I spoke to her. This included any discussions [about] their properties. When my mother spoke about the Marrickville property, she always referred to it in separate ways. She referred to what I describe as the factory units as "the factories" and she referred to what I describe as the double storage warehouse as "the brick building". 8. Prior to my father's death my mother and my father regularly inspected the Marrickville property. They did this because for a long period there was no fencing in relation to the property and rubbish was often dumped on the property and my parents often came to clean it up and I would help them. … 12. The second matter was the factory … I recall that my mother said and my father agreed that "the factories would go to Vageli". Vageli was a reference [to] Evangelo my younger brother. My mother always referred to the Marrickville property using words to the following effect "the factories at Victoria Road" or sometimes "the factories at Marrickville". I recall in the first will of my parents there was a different approach to giving the property to Evangelo as there were some conditions. I recall prior to the second will of my parents had a change of heart and wanted to change the conditions. I recall on this occasion my mother now said to me words to the effect that the "the factories at Victoria Road should go to Vageli directly". 13. When referring to "the brick building" she referred to that as "the brick building on Victoria Road Marrickville" and sometimes she referred to it as "the brick building on the right" using the Greek word pronounced "thexia" meaning right hand side."

The relief claimed

In the Statement of Claim, the Plaintiff seeks the following relief: "1. A declaration that on a proper construction of the Will dated 8 April 2008 (the Will) of the late Aspasia Kandros (the deceased), the deceased intended: a. In clause 4 (b) of her Will that her Son Evangelos Kandros (also known as Evangello Kandros) would be given the factory units, being what the deceased described as "the property known as 124 - 126 [xx] Road Marrickville"; and b. In clause 4 (c) of her Will that her grandchildren Constantine Kazacos, Marie Kazacos and Stephanie Kazacos (the grandchildren) would be given in equal shares a shop premises the deceased described as "the property known as 136 [xx Road] Marrickville".; properties that are now contained in folio identifier 1/77xx situate at 126 - 132 xx Road Marrickville (also known as 126 - 134 xx Road Marrickville, 120 - 134 xx Road Marrickville, 126 xx Road Marrickville and 136 [xx] Road Marrickville). 2. An order pursuant to s 57 (d) of the Probate Administration Act 1989 (NSW) [sic] that the whole of the property now contained in folio identifier 1/77[xx] situate[d] at 126-132 [xx] Road Marrickville (also known as 126 - 134 [xx] Road Marrickville, 120 - 134 [xx] Road Marrickville, 126 [xx] Road Marrickville and 136 [xx] Road Marrickville) be partitioned so as to ensure that: a. The property identified in clause 4 (b) of the Will, namely, 124 - 126 [xx] Road Marrickville is given to Evangelos Kandros (also known as Evangello Kandros) and be particularised such that it corresponds as nearly as practicably as possible to Lot C previously described in Deposited Plan 18[xx]; and b. The property identified in clause 4 (c) of the Will, namely, 136 [xx] Road Marrickville is given to Constantine Kozacos, Marie Kazacos and Stephanie Kazacos and be particularised such that it corresponds as nearly as practicably as possible to the property as previously described in Volume 45[xx] Folio [xx] being the land described in Lot 1 of the Deposited Plan 81[xx]; or such other expediency and mode of partition that the Court determines best gives effect to the intention of the deceased reflected in clauses 4 (b) and (c) of the Will. (the Partition) 3. Order that (in the absence of any agreement between the interested parties to the Partition) an order pursuant to s 58 (1) the Court appoint an arbitrator to effect the Partition. 4. A declaration that the true intention of the late Aspasia Kandros (the deceased) in her Will dated 8 April 2008 (the Will) was to give to her daughter Vicki Kazacos, the whole of the property contained in folio identifier 5/SP[xx] being Unit 5, … [xx] Road Caringbah (the Caringbah property). 5. An order pursuant to s 27(1) of the Succession Act 2006 (NSW) rectifying the Will of the deceased so as to delete the words "5 [xx] Road Caringbah" in clause 4 (e) of the Will and substitute the words "contained in folio identifier 5/SP[xx] being Unit 5, [xx] Road Caringbah" or such other terms so as to give effect to the intention of the deceased as declared."

Grant of Declaratory Relief

Section 75 of the Supreme Court Act 1970 (NSW) provides that "[n]o proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not".
In s 3 of the Civil Procedure Act 2005 (NSW), "'claim for relief' includes '(d) a claim for a declaration of right'".
The Court has a wide discretionary power to make declarations under s 75 of the Supreme Court Act.
The position was summarised by Ward CJ in Eq in Crawford v Davidson-Crawford [2019] NSWSC 728 at [32]: "In order to obtain a declaration, a party must satisfy the requirements articulated in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10 per Mason CJ, Dawson, Toohey and Gaudron JJ:, namely that: there be a controversy between the parties for determination and not abstract or hypothetical questions; the person seeking relief must have a "real interest"; and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". Their Honours also stated (at 583) that "where a person's rights or liabilities will or might be affected by the exercise or non-exercise of a statutory power following upon an inquiry, that person is prima facie entitled to be accord natural justice in the conduct of the inquiry".
The Court must also be satisfied that there is a proper contradictor, being someone who has a presently existing interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437- 438; Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at 448.
However, it has been pointed out that there is a difference between having an interest to oppose the granting of declaratory relief and, having that interest, and choosing whether or not to oppose the granting of that relief: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56, at [14]; Hill v Dunn [2019] NSWSC 419, per Henry J, at [44]. Indeed, there is no requirement that all defendants, in an action claiming a declaration, must oppose the relief claimed by the plaintiff: Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60, per Dawson J, at [14].
French J (as his Honour then was) in IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator Appointed) (2004) 211 ALR 231, wrote, at [47]: "The requirement of a proper contradictor in a declaratory context is not merely to ensure that the court will be provided with all materials but also that absent a contradictor there is no person to be bound by the relief sought: Acs v Anderson [1975] 1 NSWLR 212 at 215 per Hutley JA citing PW Young, Declaratory Orders, 1st ed, Butterworths, Sydney, 1975, p 210. A proper contradictor, for jurisdictional purposes, in my opinion cannot be confined to the class of party who comes to court ready to oppose the relief sought. There may be a case in which a party, whether a private person or body or a statutory regulator, expresses opposition to, and an intention to oppose, a proposed course of action by another party on the basis that it is in breach of some contractual or statutory prohibition. The party opposing the conduct may however decide for any one or more of a variety of reasons not to contest declaratory proceedings about the lawfulness of the proposed conduct. So the declaration may be made by consent or may be uncontested. This does not mean that the court lacks jurisdiction or power to grant the declaration in such a case. The proceedings will have resolved a pre-existing controversy. A more difficult question arises where a party with an interest in opposing a particular course of conduct refuses to say whether it will take any action in respect of that conduct. Such a party may be said to be one which, notwithstanding its silence, has an interest in opposing the proposed conduct."
In Zetting v Müller [2017] NSWSC 659, Parker J pointed out that there was "room for debate about whether … the requirement for a proper contradictor] is an essential requirement before a declaration can be made, or is merely a matter of discretion: Meagher, Gummow and Lehane's Equity Doctrines and Remedies at [19-115] to [19-125]".
In the present case, as it was in Zetting v Müller, it is unnecessary to enter the debate, as the five beneficiaries are the named Defendants in the proceedings. As stated earlier, each of the five Defendants has filed a submitting appearance. None, other than Vicki, attended the hearing. Each has an interest to oppose the declaratory relief sought by the Plaintiff, but has filed a submitting appearance. Notwithstanding his, and her, lack of active opposition, this is sufficient to make them proper contradictors.
Zetting v Müller was referred to by Bell P, with approval, in Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 at [16].
In all the circumstances, even though each of the Defendants does not wish to resist the Plaintiff's claims, I am satisfied that this does not deprive the Court of jurisdiction to make a declaration if the circumstances are otherwise appropriate.
I am also satisfied of the other matters that would enable the Court to make a declaration. First, there is a controversy, namely the construction of the deceased's Will. The Court is not being asked to provide an advisory opinion or to answer a question which is purely hypothetical. To the contrary, the resolution of the proceedings, followed by partition, will determine how part of the estate of the deceased is distributed in a manner that accords with the deceased's intentions. Second, the proceedings concern the "interest" of the parties who need to know how part of the estate of the deceased should be distributed in accordance with her intentions. Third, there can be no dispute that the proceedings concern the administration of the deceased's estate and the Plaintiff is the executor to whom Probate has been granted. Fourth, this Court has jurisdiction to construe the deceased's Will, and, if necessary, to rectify it. Fifth, I am satisfied that the Defendants have an interest in opposing the claim but have chosen not to do so by filing the submitting appearance. Sixth, I accept that the making of declarations, if appropriate, will enable partition to be arranged by the parties.

The Law - Construction of the deceased's Will

In Towns v Wentworth [1858] 14 EK 794; (1858) 11 Moo PC 526, the Privy Council wrote: "When the main purpose and intention of the testator are ascertained to the satisfaction of the Court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified."
More recently, in Fulton v Fulton [2014] NSWSC 619, I wrote, at [201]-[206]: "The object of a will construction suit is to ascertain the intention of the deceased as expressed in his, or her, will, or codicil, when it is read as a whole. The intention of the maker of the testamentary instrument has been referred to as the 'pole star' in the construction of wills: Thomson v Thomson [2008] VSC 375. Campbell JA, in Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68, at [2], wrote, in another context, that construction is a process of coming to understand the meaning of a text, which meaning is disputed. It involves a consideration of the disputed text in itself, both as a whole, and in its constituent parts. Recently, in Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213, a decision of the Supreme Court of the United Kingdom, which involved the rectification of wills, Lord Neuberger (with whom Lord Clarke, Lord Sumption and Lord Carnwath agreed), wrote at [19] - [25]: 'When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn at 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21-30. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, 'No one has ever made an a acontextual statement. There is always some context to any utterance, however meagre.' To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that '[c]ourts will never construe words in a vacuum'. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts - see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H-780F. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should 'place [itself] in [the testator's] arm-chair', is consistent with the approach of interpretation by reference to the factual context. However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act ('section 21'). Section 21 is headed 'Interpretation of wills - general rules as to evidence', and is in the following terms: '(1) This section applies to a will - a) in so far as any part of it is meaningless; b) in so far as the language used in any part of it is ambiguous on the face of it; c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. (2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.' In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that 'evidence' is admissible when construing a will, and that that includes the 'surrounding circumstances'. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator's intention is admissible, in order to interpret the will in question. Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator's actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared).' Of course, in New South Wales, in relation to the estate of a person who dies after 1 March 2008, it is necessary to consider the Act, which, so far as is relevant, by s 32, provides: '32 Use of extrinsic evidence to construe wills (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will: (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances. (2) Despite subsection (1), evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.' What has been described as the ten 'incontestable principles' for the construction of wills described by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273-275 should be remembered: '1. "Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence as is necessary in order to enable us to understand the words which the testator has used"... 2. "The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained'. But you must look at the whole instrument, and inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it... 3. "If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, 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"... 4. An inference cannot be made "that did not necessarily result from all the will taken together"... A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed... 5. The court "cannot give effect to any intention which is not expressed or plainly implied in the language of' the 'will'... "You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication"... 6. "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"... 7. "When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy"... 8. "There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity following the law in this respect (for it is a rule of common sense...), that you should rather lean towards that construction which preserves, than towards that which destroys"... 9. If on reading the will you can see some mistake must have happened, 'that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself"... 10. "The mind never inclines towards intestacy: that is a dernier resort in the construction of wills"...' (citations omitted) Finally, in Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep), Powell J said, in a passage approved by Bryson J in Perpetual Trustee Co Ltd v Wright; Re Will of James Paul Gee Cox Junior, Deceased (1987) 9 NSWLR 18, at 33, and repeated again by Hamilton J in Hatzantonis v Lawrence [2003] NSWSC 914, by Gzell J in Peoples v Simpson [2005] NSWSC 355 and by Campbell JA in Fairbairn v Varvaressos [2010] NSWCA 234, at [19]: '... It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect of the scheme so revealed.'"
In Muir v Winn [2009] NSWSC 857, Bryson AJ wrote, at [24]: "It is necessary to seek to understand the scheme of a testator's dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important."
In ANZ Executors & Trustee Co Ltd v McNab and Another [1999] 3 VR 666, Fullager J wrote, at [5]: "The search for testamentary intention must be a search for intention disclosed by the words used, and in this search words must prima facie be given their ordinary meanings and, if the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must prima facie be given. Nevertheless, the intention is to be gathered from a study of the will as a whole, and in the light of any relevant and admissible evidence of surrounding circumstances."
Yet, as was written in The Public Trustee of Queensland v Smith [2009] 1 Qd R 26, per Atkinson J, at [26]: "It follows from the foregoing discussion that the court of construction should start with the words of the will. If their usual meaning is clear, the will will be given that construction. If not, the court may have regard to such extrinsic evidence as allowed by the rules of construction traditionally applied by the courts with the addition of the aids to construction found in s 33C of the Act."
The Court, many times, has had to deal with drafting, or transcription, errors in wills. One way of dealing with such drafting, or transcription, errors is to utilise the principle falsa demonstratio non nocet cum de corpore constat, which translated means (a false description does not vitiate when the thing is described with certainty). The maxim is commonly expressed in the words falsa demonstratio non nocet.
Lord Selborne LC in Hardwick v Hardwick (1873) 16 LR Eq 168, at 175, wrote that: "I apprehend that if the words of description when examined did not fit with accuracy, and if there must be some modification of some part of them in order to pass a sensible construction on the will, then the whole thing must be looked at fairly in order to see what are the leading words of description, and what is the subordinate matter, and for this purpose evidence of extrinsic facts may be regarded."
In In re Gifford; Gifford v Seaman (1944) 1 Ch 186, Simons J wrote: "…the principle of falsa demonstratio non nocet, … means that, if, on consideration of the relevant parts of the will, one comes to the conclusion that the testatrix intended to pass something and can determine what that something is, then the fact that she has given the wrong description will not prevent her will taking effect in regard to that which is wrongly described."
In Woodgate v Tanks [2014] 1 Qd R 481; [2013] QSC 204, Margaret Wilson J wrote, at [37]: "Misdescription is not uncommon in testamentary dispositions. The Court is reluctant to allow misdescription to vitiate a gift, and leans against a finding of intestacy. In such cases, the court of construction will apply the principle of falsa demonstratio, meaning that a false description does not vitiate, provided that the thing or person described can be sufficiently identified." (footnotes omitted)
In Nofz as executor of the estate of Henry Matthew Fitzgerald (deceased) v Kane & Ors [2015] QSC 372, the application of the principle was explained: "In Lee's Manual of Queensland Succession Law, Sixth Edition, at 14.170, the application of the principle is explained as follows: 'It is a major principle of the construction of wills that an inaccuracy of description, whether of property or of persons, will not be permitted to destroy the testator's intention. This is a particular example of the Court of construction's concern to correct the testator's mistakes. It must be clear, from a reading of the will as a whole, what property or person is intended before the erroneous description can be disregarded. A distinction is made between a description which is erroneous and added words which are intended to restrict the generality of the references to property or person.' (citation omitted)."

The Law - Rectification of the deceased's Will

Although there is distinction between a suit for construction, and a suit for rectification, of a will, and even though there have been cases in which it is suggested that the different type of suits should be dealt with separately (see, for example, Re Estate of Max Frederick Dippert [2001] NSWSC 167, at [20]-[21]), I am of the view that, since the Civil Procedure Act applies, both matters may be decided in the one proceedings.
One commentator has described the legislative power that enables the court to rectify a will as "obviating the need for an interpretation or construction of the document" (David M Haines QC, Construction of Wills in Australia (2007, LexisNexis Australia), at [1.6]).
In this case, there was no submission that the two issues should be dealt with in separate hearings. The only discussion related to which should be dealt with first, the claim for rectification or the claim for construction. Nor was there evidence able to be read on one suit that could not be read on the other.
Section 27 of the Succession Act 2006 (NSW) provides: "(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because: (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions. (2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. (3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if: (a) the Court considers it necessary, and (b) the final distribution of the estate has not been made."
The proceedings to rectify have been brought within 12 months of the deceased's death. It is clear that final distribution of the estate has not been made.
As it has in this case, the application for rectification may be brought after probate has been granted: The Estate of Cecil Douglas Brisbane (NSWSC, Powell J, 19 June 1992, unreported); Huszar (Re Estate of) [1999] NSWSC 388; Rawack v Spicer [2002] NSWSC 849, at [24].
Importantly, s 27 provides that "[t]he Court may". "May" is permissive; it is not directory, or mandatory. There is nothing in the circumstances contemplated by the section that leads to the conclusion that the Court must rectify the Will.
It is a condition precedent to the exercise of the power in s 27 that the Court be satisfied that the Will does not carry out the will-maker's intentions and that this satisfaction be based on one of two specified reasons, namely, either that a clerical error was made, or that the Will does not give effect to the will-maker's instructions.
It is clear, then, that the Court must make findings about the "intentions" of the testator because, until it does, it cannot be satisfied that the Will does not carry out those intentions. Thus, what it was that the will-maker intended concerning the part of the will that is to be rectified must be established. What must be shown is the actual intention, not what the intention probably would have been had the will-maker thought about the matter: Trimmer v Lax; Estate M A Fresen (unrep, NSWSC, Hodgson J, 9 May 1997).
The intention must be examined as at the date of the Will, not the date of death: Re Estate of Spinks; Application of Mortensen and Eassie (NSWSC, Needham J, 22 August 1990, unreported); in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales (NSWCA, 12 December 1991, unreported), at 5; Rawack v Spicer, at [27]-[28]; and Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274, at [14-15].
Rawack v Spicer was cited, with approval, by Barrett J in Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002. His Honour then went on to say, at [9]: "The important point is that the court must be satisfied, according to the balance of probabilities, as to not only a negative proposition (that the testatrix did not intend the will to be in the form it eventually took) but also a positive proposition (that the testatrix intended the will to be in the form for which the plaintiff contends). This is the effect of the statute and, as Sheller JA observed in Mortensen v State of New South Wales (unreported, NSWCA, 12 December 1991), the court's task is to give effect to the language of the section without paying 'over much regard to the principles evolved by equity as part of the doctrine of rectification'."
Although the standard of proof on the issue is on the balance of probabilities, clear and convincing proof is required: Re Estate of Max Frederick Dippert, at [34]; Rawack v Spicer, at [30]-[31], quoting Hodgson J in Trimmer v Lax at 12-13).
The meaning of "testator's intentions" was considered (albeit in relation to the former section) in Re Swain (Dawn) [2008] NSWSC 1343, at [25]-[27]: "Section 29A refers to the intention of the testator. In Mortensen v New South Wales (NSWCA, 12 December 1991, unreported) Sheller JA, with whom Mahoney and Meagher JJA agreed, said that s 29A: is available for mistakes, not for lack of vision or perception or knowledge. It is a section directed at mistakes in expressing the testator's intentions. In that case the testatrix had made it manifestly clear that she did not want her money to 'go to the government' which for all intents and purposes meant she did not want to die intestate. However, there was a failure of one of the gifts she made and the result was that there was a partial intestacy. It was argued that the testatrix's intentions were that no monies should go to the government, and accordingly the will should be rectified. The Court of Appeal, like Needham J at first instance, dismissed the application. Sheller JA said that it would seem on the evidence that the will was so expressed as not to carry out the testatrix's intentions. However, the section does not only require the court to find that fact, but also to find that the court can rectify the will 'as to carry out the testator's intention'. In the Mortensen case even though the intentions were that no monies should pass to the government, the testatrix had not indicated which of the possible options she would wish to pursue had she realised that her primary gift failed. Accordingly, the will could not be rectified."
Thus, the three questions posed by s 27 are, first, what were the will-maker's actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the will-maker gave instructions in connection with the will, to comply with those instructions?

Determination

Until the affidavit of Vicki was read, there was really no evidence to enable the Court to glean the deceased's intentions in relation to Nos 120 to 136. As stated in her Will, the deceased did not speak, or read, English. This means that even if she had received the rate notices (which it seems she did not as they were sent to her care of a third party), without someone translating these documents to her, she would not have understood their meaning.
Furthermore, as Mr Naris stated, he did not take instructions for her Will from the deceased. Rather, it was her husband, George, who provided those instructions to Mr Naris.
Nor, until the affidavit of Vicki was read, was there any other evidence that the deceased referred to Nos 124-126 as "the factories", or to No 136 as "the brick building" or the shop. It seems more likely than not, on the available evidence, that she did not appreciate the difference between the street addresses to which she referred in the Will.
However, one cannot but come to the conclusion that the deceased intended to pass something by each of the different clauses of her Will, to the named beneficiaries, who are different, and what that something is, can be determined.
The fact that the wrong description was given in the Will does not prevent the clauses in the Will taking effect in regard to that which is wrongly described.
By making two separate devises, one of Nos 124-126 and the other of No 136, it is clear that the deceased intended there to be a difference in what her son, Evangelos, was to receive, and what her three grandchildren, Constantine, Marie and Stephanie, were to receive. There are apparent physical features of the whole of the property that suggest an obvious method of differentiation.
Vicki's evidence enables the deceased's intentions in each of the Clauses to be clarified. There is no reason to not give her evidence weight.
It seems to me to be perfectly consistent with common sense, and with reason, that the entirety of the land that was given to different beneficiaries should not be prejudiced by an imperfect, and inaccurate, description of the subject of each devise to those beneficiaries since the deceased's intention, in relation to each devise, can be determined.
In relation to the devise of No 5 xx Road, Caringbah, I am satisfied that the deceased's Will does not carry out her intentions because at no time did the deceased own No 5 xx Road, Caringbah.
In my view, the deceased signed her Will without appreciating that there was a misdescription of the property that she wished to devise to Vicki. The Court should be reluctant to allow the misdescription to vitiate the devise.
Accordingly, I consider that the proper construction of the deceased's Will calls for the application of the principle of construction that the deceased's true intention should be identified, and that it is that unit 5 was incorrectly described as "my property known as 5 [xx] Road, Caringbah".
I am satisfied that the deceased intended the property at Caringbah, which she, in fact, owned, to be the property that she wished to devise to Vicki in Clause 4(e) of her Will.
It follows, having considered the language of the deceased's Will, with the aid of admissible extrinsic evidence, the Will should be construed to give effect to the intentions of the deceased in respect of both Clause 4 and Clause 5.
For completeness, I should say that I would not be satisfied that rectification of the deceased's Will could occur on the evidence. Importantly, whilst I am satisfied that the deceased's Will does not carry out the deceased's intentions, I am neither satisfied that this occurred because a clerical error had been made in its drafting, or because the Will did not give effect to the deceased's instructions.

Partition

Section 57 of the Probate and Administration Act 1898 (NSW), relevantly, provides: "The Court may upon the application of the administrator … or of any person beneficially interested, and after such previous notice to other parties and inquiry as may seem fit, order and direct the course of proceedings which shall be taken in regard to: (a) … (b) … (c) … (d) the expediency and mode of effecting a partition if applied for, and generally in regard to the administration of such real estate for the greatest advantage of all persons interested."
Other than stating that the section applies, and informing the Court that investigations had been carried out, which investigations suggested that effecting a partition of Nos 124-126 and No 136 could be achieved, counsel for the Plaintiff made no oral submissions about this aspect. His written submissions, however, included the following: "44. It is submitted that the extrinsic evidence is clear as to the conveyancing history of the land encompassed by the factory units and their addresses (by reference to the rates and utility notices sent to the different addresses). So too is the case with the land encompassed by the shop and its address. 45. If the court is so satisfied then a partition order could be made particularly given the prior consolidation of the two titles. The plaintiff understands that there is no particular difficulty from the point of view of NSW Land Registry Services regarding any partition order. It may have to be implemented by an application for subdivision to property to the local consent authority a Court order it is submitted would be relevant to any such application."
There was no evidence about the precise manner in which Nos 124-126 and No 136 would be partitioned, although what is intended is that the partition would be in a manner that gives effect to the declarations regarding the devise of the factory premises to Evangelos and the shop to Constantine, Marie and Stephanie.
Bearing in mind the history of the two different parcels of land, it should be possible to effect partition as this appears to be the only way that the deceased's intentions in relation to Clause 4(b) and Clause 4(c) can be achieved.
In the circumstances, agreement should now be able to be reached, by the parties, as to the precise form of orders. I shall allow them 21 days to agree upon a form of declarations and orders, including an order relating to the manner in which the partition is to be effected.
It is appropriate that the Plaintiff's costs of the application, calculated on the indemnity basis, should be paid out of the estate of the deceased.
The proceedings are to be adjourned to a date to be fixed before me for the making of declarations and orders. In the event that my Associate receives a form of declarations and orders which accord with these reasons, I shall consider them and, if appropriate, deal with them in Chambers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2019

Probate Administration Act 1989(NSW)

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