BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec))

Succession - Will - Devises of portions of single lot - Whether devises void for uncertainty - Whether Town Planning & Development Act 1928 (WA) applies to devise - Whether devises void by virtue of s 20(1)(a) of Act

Town Planning and Development Act 1928 (WA), s 20(1)(a)

Wills Act 1970 (WA), s 26

Asten v Asten [1894] 3 Ch 260

Betts v Connolly [1970] HCA 18; (1970) 120 CLR 417

Donaldson v Leaf [1907] VicLawRp 53; [1907] VLR 278

In re Gifford; Gifford v Seaman [1944] Ch 186

In re Hodgson; Nowell v Flannery [1936] 1 Ch 203

In re Taylor; Taylor v Tweedie [1923] 1 Ch 99

Magrath v Morehead (1871) LR 12 Eq 491

Pass v Mills (1886) 7 LR (NSW) Eq 34

Perpetual Trustees Co Ltd v Gilmore [1979] 2 NSWLR 716

Re Lewis's Will Trusts, Lewis v Williams [1984] 3 All ER 930

Re Mulder; Westminster Bank v Mulder [1943] 2 All ER 150

Re Rayner's Will (1928) 23 Tas LR 41

Re Tetsall; Foster v Tetsall [1961] 2 All ER 801

Thellusson v Lord Rendelsham [1859] EngR 741; (1859) 7 HL Cas 429

Davis v Richards & Wallington Industries Ltd [1991] 2 All ER 563

In re Barrance; Barrance v Ellis [1910] 2 Ch 419

In re Cheadle; Bishop v Holt [1900] 2 Ch 620

Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33

Timber Top Realty Pty Ltd v Mullens [1974] VicRp 39; [1974] VR 312

Transport Trading and Agency Co of WA Ltd v Smith (1905) 8 WAR 33

1 MASTER NEWNES: In these proceedings, the plaintiffs seek declarations that certain bequests in the Will of their late father (the "testator") are void.

2 The plaintiffs are the sons of the testator. The fourth defendant is a daughter of the testator. The first defendant and the fourth defendant are husband and wife. The second and third defendants are the children of the first and fourth defendants. The first defendant is the executor of the estate.

3 The deceased died on 17 August 2002. A grant of probate was made to the first defendant on 21 November 2002, the third plaintiff, who was named in the Will as co-executor, having renounced.

4 By his Will, made on 27 March 1986, the testator, relevantly, made the following bequests:

"2. I GIVE DEVISE AND BEQUEATH ... ALL THAT my principal residence at 59 Odin Road, Innaloo ... and the granny flat attached thereto and the lots on which my said principal residence and the said granny flat stand together with the household furniture and effects of my said principal residence and the said granny flat unto my trustees UPON TRUST:

(a) TO HOLD ALL THAT my said principal residence and the lot on which it stands together with the household furniture and effects of my said principal residence for the use occupation and benefit of my grandson PAUL ANTHONY ROBERTSON during his life until he shall attain the age of twenty five (25) years ... AND upon my said grandson the said PAUL ANTHONY ROBERTSON attaining the age of twenty five (25) years TO HOLD my said principal residence and the lot on which it stands and the household furniture and effects thereof for my said grandson for his sole use benefit [sic] absolutely ...

(b) TO HOLD ALL THAT the granny flat attached to my principal residence and the lot on which it stands and the household furniture and effects of such granny flat for the use occupation and benefit of my grandson DAVID GREGORY ROBERTSON during his life until he shall attain the age of twenty five (25) years ... AND upon my said grandson the said DAVID GREGORY ROBERTSON attaining the age of twenty five (25) years TO HOLD the said granny flat and the lot on which it stands and the household furniture and effects thereof for my said grandson for his sole use and benefit absolutely ... "

5 The residuary estate of the testator was left to his six children in equal shares.

6 At the date of the testator's death the second and third defendants had both attained the age of 25 years.

7 In fact, contrary to what appears from cl 2 of the Will, the house and granny flat were not then, and have never been, on separate lots, but are on one lot. The granny flat was constructed as an addition to the house and is connected to the house by a common wall forming part of the northern wall of the principal residence and part of the southern wall of the granny flat. Both dwellings face Odin Road, which runs along the western boundary of the property.

8 Since 1994 the relevant zoning of the land has enabled the property to be strata titled to create two separate titles. After the grant of probate the first defendant, as executor, caused a strata plan to be lodged for registration and that plan has recently been approved. The effect of the strata plan is that two lots have been created, the existing lot being divided from the eastern boundary to the western boundary of the land along the line of the common wall between the residence and the granny flat. That results in two adjoining rectangular lots, one of 418 square metres containing the granny flat and another of 1200 square metres containing the principal residence, both with frontage onto Odin Road.

9 The plaintiffs rely on two grounds in contending that the dispositions in cl 2 of the Will are void. It is submitted, first, that the dispositions contravene s 20(1)(a) of the Town Planning and Development Act 1928 (WA) (the "Act") in that they constitute an unlawful sub-division of the existing lot and, secondly, that in any event they are void for uncertainty, it being impossible to say what portion of the existing lot each of the second and third defendant was intended to receive.

10 The defendants, on the other hand, contend that s 20(1)(a) of the Act has no application to a disposition of this nature by Will and that the portion of the land each of the second and third defendant is to receive is sufficiently identified, so the bequests are not uncertain.

11 It is well established that in the construction of a Will the Court is required to give the words used their ordinary meaning and, if there remains some difficulty in construction, to have regard to any admissible evidence of surrounding circumstances that may shed light on the proper meaning to be given to the words. Section 26 of the Wills Act 1970 (WA) provides that_,_ unless the contrary intention appears by the Will, the Will is to be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator.

12 In In re Hodgson; Nowell v Flannery [1936] 1 Ch 203 at 206 Farwell J described the approach the Court is to take in the following way:

"I think that it comes to this: the duty of the Court in the first place is to read the will itself. The Court is bound in the first instance to read it, giving the words used their primary and proper meaning. The Court is then entitled to look at the surrounding circumstances. If the surrounding circumstances are such that the words of the will, if construed in accordance with their primary meaning, are not apt to apply to any of the circumstances, then the Court is entitled, having regard to the surrounding circumstances, to see whether the language used is capable of some meaning other than its ordinary meaning, not for the purpose of giving effect to what the Court may think was the intention of the testator, but for the purpose of giving effect to what the intention of the testator is shown to be from the language which used having regard to the surrounding circumstances. In other words, the Court is not entitled to disregard the language which the testator has used in order to give effect to what the Court may think to have been the intention, but the Court is entitled to say that the words which the testator has used were not intended to have their primary meaning if the surrounding circumstances are such as to lead inevitably to that conclusion."

13 Williams on Wills, 8th ed, Butterworths (2002), vol 1 at 586 summarises the functions of the Court in this way:

"The meaning of the will is dependent upon the intention of the testator and in the court of construction the primary evidence of the testator's intention is the will itself [footnote omitted], but extrinsic evidence of circumstances may be given the nature and effect of which is to explain what the testator has written [footnote omitted], but not what he intended to write [footnote omitted but includes reference to In re Hodgson (supra).] Thus, extrinsic evidence is admissible to make intelligible something in the will which without that evidence would not be intelligible [footnote omitted]."

14 A Court will only find a gift void for uncertainty where the relevant disposition is incapable of any clear meaning, having regard to the language used and any admissible extrinsic evidence: Williams on Wills (supra) at par 53.1 and the cases there cited. But the Court is not at liberty to remake the Will in order to preserve the gift: Betts v Connolly [1970] HCA 18; (1970) 120 CLR 417 at 428; Perpetual Trustees Co Ltd v Gilmore [1979] 2 NSWLR 716 at 719.

15 If upon consideration of the Will the Court comes to the conclusion that the testator intended to pass something and, by the language used and any admissible extrinsic evidence, can clearly determine what it is that the Will refers to, then the gift will be valid; the fact that the testator has given it an erroneous description will not render the gift invalid: In re Gifford; Gifford v Seaman [1944] Ch 186; Re Lewis's Will Trusts, Lewis v Williams [1984] 3 All ER 930 at 932-3. But the language of the Will must be capable of being fairly interpreted as applying to that subject-matter. While the question must be approached "in a spirit of benevolence ... there are limits which it is not proper to exceed. The language must not be stretched and strained upon a bed of Procrustes in order to make it fit a state of circumstances to which on no possible construction it can apply": Re Mulder; Westminster Bank v Mulder [1943] 2 All ER 150 per Lord Greene MR at 151.

16 Where, however, the testator was not merely misdescribing an existing subject but was under the erroneous impression that the subject actually existed as described, or that he could dispose of it, the devise is likely to fail. It is not sufficient that the Court is satisfied as to what the testator would have wished to happen to his property had he correctly understood the position. The Court must be satisfied that the words that have been used, construed in the light of the extrinsic evidence, achieve that result; the Court cannot make a Will for the testator on the basis of evidence as to what he would have done had he had in mind the true position when he made his Will: Re Tetsall; Foster v Tetsall [1961] 2 All ER 801 per Cross J at 803-804; Re Lewis's Will Trusts (supra) at 933. So where the difference between what the testator described and what the testator possessed is a qualitative difference which makes the testator's expressed wishes and directions incapable of fulfilment, the result is that the disposition must fail: Re Mulder; Westminster Bank v Mulder (supra) at 153.

17 It is against that background that I turn to the circumstances of the present application.

18 It appears from the reference to "the lots on which my said principal residence and the said granny flat stand" that at the time of making his Will the testator believed either that those dwellings already stood on separate lots or that such separate lots would be created before his death. That is, it seems that the testator contemplated that upon his death what would be devised to his trustees to hold on trust for the second and third defendant respectively would be existing, separate lots on which stood the principal residence and granny flat respectively.

19 It was not suggested in argument that the reference in the Will to "lots" should be understood in some colloquial sense, rather than in its common legal sense. Words may be given their popular sense rather than their legal sense, in particular, where the Will is a homemade Will rather than one drawn by a lawyer: Thellusson v Lord Rendelsham [1859] EngR 741; (1859) 7 HL Cas 429 at 486; In re Taylor; Taylor v Tweedie [1923] 1 Ch 99 at 105. In this case there is no direct evidence as to who drew the Will but in its form and language it bears all the hallmarks of having been drawn by a lawyer. In any event, there was no evidence that the land had at any stage been treated as two distinct "lots" in any sense of that word.

20 I do not, however, consider that a misapprehension by the testator as to the existence of separate lots is fatal to the gifts, provided it is possible from the language of the Will, and any admissible extrinsic evidence, to determine what portions of the land the testator intended to pass under his Will for the benefit of the second and third defendant respectively.

21 It was submitted on behalf of the plaintiffs that, as the principal residence and granny flat in fact stood on one lot, it was impossible to say what portion of that lot each of the second and third defendant was intended to receive. Nothing in the Will identified the respective portions of the land intended to be devised to them and there was no evidence of circumstances that would enable the testator's intentions in that regard to be ascertained.

22 It was submitted on behalf of the first defendant that the portions of the land devised by the Will could be readily identified. Reliance was placed on an affidavit of the first defendant of 29 October 2004 to which was annexed a copy of a building licence issued to the deceased in 1976 with an attached plan of the land. The plan as submitted for building approval allowed separate access from Odin Road to both the existing house and the proposed granny flat and, it is asserted by the first defendant, would have permitted subdivision in the form that the first defendant has now brought about. The first defendant goes on to say that the application was in fact only for a duplex construction as the Strata Titles Act 1985 (WA) had not been passed and no subdivision would have been possible before that legislation came into force.

23 There is, however, nothing in the building plans which evidences that the testator ever intended, or believed, that two separate lots had been, or would be, created by a division of the lot in a straight line running from east to west along the common wall.

24 The second to fourth defendants submitted that the devise was sufficiently certain, each dwelling having its own curtilage, the portions of land to be held for each of the second and third defendant being sufficiently identified.

25 In my view, the devises are uncertain. It is the case that the devise of a dwelling will not necessarily fail for uncertainty because the testator has not specifically identified the land that is included in the gift. It is generally accepted that words used in a Will describing a house may, according to the context or circumstances, include land occupied and enjoyed with it, especially if the land is necessary for its convenient use or enjoyment. The devise of a "house" will ordinarily include the land on which it stands, unless the context or circumstances give that word a more limited meaning. Thus in Re Rayner's Will (1928) 23 Tas LR 41 the gift of a "home" was held to include the 5 acre property on which the cottage in which testator and legatee had lived stood, Nicholls CJ concluding that the normal meaning of "home", where a house is referred to, includes some land around it and there being no words in the Will to limit the land in this instance to something less than the 5 acre property. See generally: Williams on Wills (supra) at par 64.26.

26 In the present case, however, there is no evidence as to how, prior to the death of the testator, the land surrounding the buildings had been occupied or enjoyed in connection with the residence and the granny flat respectively, assuming that separate parts of the land had in fact been used in connection with each rather than in common, as to which there was no evidence. In particular, there was no evidence that prior to the death of the testator the specific portions of the land constituting the lots proposed by the first defendant had been separately used or enjoyed in conjunction with the residence and the granny flat respectively.

27 The subdivision that has since been achieved by the first defendant, and which the defendants contend gives effect to the testator's intention, has the benefit of simplicity in that it divides the lot into two rectangular blocks (albeit of very different sizes) with a common boundary along the line of the common wall, but there was no evidence to indicate whether or not such a sub-division divides the land in a manner which, as at the testator's death, was convenient for the use and enjoyment of each dwelling. There was also no evidence that that is the only way in which two lots could be created to accommodate the residence and the granny flat, or even that that is the most appropriate way in which to do so. In any event, there is nothing to suggest that such a division is what the testator had in mind.

28 In the present case I therefore consider it is not possible to say what portions of the land are to be held in trust for the second and third defendant respectively. There have never been two "lots" as specified in the Will. There is only one lot and it is not possible to say with the requisite degree of certainty what portions of the land the testator intended to refer to when in his Will he spoke of each "lot".

29 I do not consider it is possible to construe the Will so as to give to the trustee or the beneficiaries the right to divide the land as they consider appropriate. The right to determine the extent or nature of a gift rests with the testator and unless by express words or reasonable inference from the Will he gives it to someone else, no-one else has the right to exercise it and the gift fails: Asten v Asten [1894] 3 Ch 260 at 262-263.

30 In Asten v Asten, the testator owned four houses in a street. In his Will he bequeathed a particular house to each of his four sons but in the Will the number of each house had been left blank, the houses themselves not having been numbered at that time and not in fact being numbered until some considerable time after the Will had been prepared. Romer J held that the testator died intestate as to the houses. Romer J accepted that where a testator gives one of several properties of the same description to each of several legatees then prima facie he intends to give the right of selection to each of the legatees according to the priority of the bequests. But if the Will shows that that the testator intends to give a particular property to a legatee, and if it is impossible to say from the Will itself or from extrinsic evidence which of the several properties the testator referred to, the gift must fail for uncertainty. On the facts, Romer J found that the testator did not intend to give a right of selection but rather that he intended to give a particular house to each son. As it was not possible to determine which house the testator intended to give to each son the gifts failed.

31 In Donaldson v Leaf [1907] VicLawRp 53; [1907] VLR 278, the testatrix in her Will had provided:

"I give devise and bequeath unto William Leaf 40 acres of land situated in the parish of Waaia colony of Victoria being part of 140 acres of land. I also give and bequeath unto my grandchildren the remaining one hundred acres. [sic]"

32 In fact, A'Beckett J found that the testatrix owned about 144 acres of land and that she intended that 40 acres should go to her son, William, and the balance to the grandchildren. His Honour considered, however, that it was impossible to discover either from the Will itself or from extrinsic evidence what portion of the whole the 40 acres that her son was to take was to comprise. It was argued on behalf of the son that he had the right to select the 40 acres the deceased intended he should have. A'Beckett J, at 282 - 283, rejected this contention as follows:

"On behalf of William Leaf it was suggested that the will might be held to give him a right to select any 40 acres of his mother's land if he could not claim the block she intended him to have. Asten v Asten [1894] 3 Ch 261, to which counsel referred me disposes of this contention. It was there held that if it can be gathered from the words used that a testator intended to give a particular property, but owing to the testator having several properties answering the description in the will it is impossible to say, either from the will itself or from extrinsic evidence, which of the several properties the testator referred to, the gift fails for uncertainty, and the court cannot, to avoid an intestacy, construe the will as giving the legatee the option of electing which property he will take. In re Cheadle [2000] 2 Ch 620 is to the same effect."

33 In the present case there is, in my view, nothing in the Will from which it could be inferred that the testator intended to give to anyone else the right of selection of the land that was to go with the principal residence and the granny flat respectively. On the contrary, it appears the testator believed that the property was, or at his death would already be, divided. The gifts were each intended to be of specific portions of the land. No question of selection could therefore arise.

34 It follows that no question arises as to whether, if the Will were construed so as to give to the trustee or the beneficiaries the right to divide the land as they considered appropriate, it would involve an unlawful delegation of the testamentary power of the deceased to the trustee or beneficiaries.

35 In my view, therefore, the devises are in each case uncertain and must fail.

36 It is accordingly unnecessary to deal with the question of whether the devises are void as contrary to s 20(1)(a) of the Act, but as the matter was the subject of argument I will deal briefly with it.

37 The primary contention of the first defendant was that the Will did not "lay out, grant or convey" or "subdivide" or "grant a licence to use or occupy" land within the meaning of s 20(1)(a). Those words, it was submitted, were not apt to include a devise in a Will. If Parliament had intended the Act to apply to Wills, it could have used the word "devise" in s 20(1)(a). Its omission, in the context, should lead to the presumption against such an interpretation.

38 The first defendant acknowledged that this submission was contrary to the decision of this Court in Perpetual Trustees WA Ltd v Riverwest Pty Ltd (supra), but submitted that that case should not be followed. It was submitted that in that case Barker J was in error in concluding that a devise under a Will falls within the proscription in s 20(1)(a). It was submitted that to interpret the word "subdivide" to include either the act of making a Will or of a testator dying (so as to bring his Will into effect) is to give the word "subdivide" a meaning that does not naturally follow from the context. Counsel drew attention to the fact that, putting aside "sub-divide", the transactions referred to in s 20(1)(a) are all inter vivos transactions. It was submitted that to interpret s 20(1)(a) to apply to devises under a Will would require intending testators to submit their Wills to the relevant authority for approval, or alternatively to seek to have those Wills approved on their deathbed, depending upon the point at which the testamentary process is deemed to constitute a subdivision. Accordingly, it would create anomalous consequences and unexpected burdens on testators and beneficiaries.

39 The plaintiffs submitted that the point had been correctly determined in Perpetual Trustees v Riverwest and it did not follow from the decision that such an interpretation would lead to anomalous results or unexpected burdens. It was submitted that the gift would not have failed if (as the testator apparently believed was the case) the land had already been subdivided into two lots or if the gifts had been made subject to the approval of the relevant authorities and alternative provision made should that approval turn out not to be obtainable.

40 The second and third defendants argued that Perpetual Trustees v Riverwest was not on point because in that case the Court was concerned with the purported devise of part of a lot, not a testamentary trust of an entire lot. In the present case, it was submitted, the testator had created an executory trust, giving the lot to his trustee with the power to do those things necessary to carry the trust into effect, including to subdivide the lot so that the dwellings, the subject of the trust, might be transferred to the nominated beneficiaries lawfully. It was submitted that whilst a devise to a beneficiary of part of a lot may purport to effect a subdivision of a lot, a devise to a trustee on trust to divide the lot does not. The trust only fails if and to the extent that its execution in fact results in a contravention of statute and the mere potential for a contravention does not have that consequence.

41 It was not in issue that, to the extent it was relevant to the issues in this case, I should follow Perpetual Trustees v Riverwest unless I was satisfied that it was wrongly decided. I do not, with respect, consider it was wrongly decided and I would follow it.

42 In Perpetual Trustees v Riverwest, Barker J, having reviewed a number of the authorities, concluded at [124], in essence, that the expression "subdivide any lot" in s 20(1)(a) was intended to prevent any physical or other act which has or is intended to have the practical effect of creating out of an existing lot two or more smaller defined portions of land. His Honour saw no reason to distinguish between an inter vivos transaction having the proscribed effect and a testamentary disposition having that effect. Barker J concluded that a testamentary disposition of the legal and beneficial interest in portions of a lot purports to subdivide it within the meaning of the Act.

43 In the present case, the testator has purported to devise separate portions of the existing lot to his trustee to hold on trust for the second and third defendants respectively for their sole use and benefit absolutely. In doing so, he has, in my view, purported to dispose of the legal and beneficial interest in those different portions of the existing lot and has thereby purported to subdivide the lot within the meaning of the Act.

44 I do not accept the submission on behalf of the second and third defendants that by his Will the testator created what counsel for those defendants described as an executory trust giving to the trustee a power to subdivide the existing lot so that the dwellings could lawfully be conveyed to the second and third defendant respectively. The testator purported by his Will to devise immediate interests in specific portions of the land in favour of the second and third defendants and, if they attained the age of 25 years (as in fact occurred before the testator's death), interests to which they were immediately and absolutely entitled. There is nothing to suggest that it was the intention of the testator that a formal subdivision of the land be effected by the trustees in order to give effect to the gifts nor is there anything in the Will to suggest that the trustee was required or authorised to carry out a subdivision in order to do so.

45 Moreover, no trust will be created unless the testator has indicated his intentions with sufficient certainty: Magrath v Morehead (1871) LR 12 Eq 491; Pass v Mills (1886) 7 LR (NSW) Eq 34. For the reasons I have given, I consider the intention of the testator as to what portions of the land he intended to give to the second and third defendants respectively is not clear.

46 In my view the dispositions in cl 2 of the Will are therefore void as contrary to s 20(1)(a) of the Act.

47 I will hear the parties on the appropriate form of orders and on costs.