Douglas v James

The will

1. Stan's will was made on 4 May 2011. The solicitor who drafted it was Mr Samuel Roberts.
2. The will was of great length (some 30 pages) and greater complexity. It appointed Mr Palmieri as executor. The substantive provisions of the will created the CPT and a number of "Beneficiary Controlled Testamentary Trusts" (BCTTs). Clause 2.6 provided that, in the events that have happened, Zeta, Marea and Ms Kik were to be the trustees of the CPT: 2.6 Subject to clause 20.7 ("Appointment and Removal of Trustees") in Part C, my wife Zeta Kathleen Douglas of [a residential address] ("Zeta Kathleen Douglas"), my daughter Marea Gilbert of [a residential address] ("Marea Gilbert") and my friend Janina Kik of [a residential address] ("Janina Kik") shall be the Trustees of the Capital Protected Trust created at clause 10 of this Will.
3. Although it is of no particular significance, cl 2.5 provided that, for each BCTT, the "Primary Beneficiary" (if nominated and determined in respect of that trust) or that person's nominee should be the trustee.
4. For each category of trust, there was provision for an "Appointor". Thus, for the CPT, cl 10.4 of the will provided: 10.4 My son-in-law David James shall be the Appointor of the Capital Protected Trust created by this clause and: (a) shall have the power to nominate any person or persons or company to act together or in his place as Appointor, and may place such conditions or restrictions on such nomination (and may make such nomination revocable or irrevocable) by any notice in writing to the Trustee, or by Will; (b) in the case of more than one Appointor, if the nomination is otherwise silent, they shall act jointly; (c) a successive Appointor, if the nomination is otherwise silent, shall also have the power to nominate a successor or alternate Appointor as if they were the initial Appointor, (d) the Appointor or any person nominated or appointed to become the Appointor either presently or at some subsequent time, may by notice in writing given to the Trustees of the Capital Protected Trust, resign or renounce such office and such resignation or renunciation shall take effect irrevocably upon such notice being given.
5. Apart from the functions described in cl 10.4, the only function that the will expressly gave to the Appointor of the CPT was that described in cl 10.7(a): 10.7(a) [The Trustees] may distribute, apply or allocate all or any part of any capital gain to or for the benefit of Zeta Kathleen Douglas, or with her consent and the consent of the Appointor in respect of the Capital Protected Trust to any other discretionary beneficiary identified in this clause;
6. For each BCTT, cl 20.6 covered the question of who should be the "Appointor": 20.6 The Appointor of the Beneficiary Controlled Testamentary Trust shall be determined as follows: (a) the Primary Beneficiary, shall be the initial Appointor or Appointors, and shall have the power to nominate any person or persons or company to act together or in place of the initial Appointor, and may place such conditions or restrictions on such nomination (and may make such nomination revocable or irrevocable) by any notice in writing to the Trustee, or by Will; (b) in the case of more than one Appointor, if the nomination is otherwise silent, they shall act jointly; (c) a successive Appointor, if the nomination is otherwise silent, shall also have the power to nominate a successor or alternate Appointor as if they were the initial Appointor, (d) the Appointor or any person nominated or appointed to become the Appointor either presently or at some subsequent time, may by notice in writing given to the Trustee of the Beneficiary Controlled Testamentary Trust, resign or renounce such office and such resignation or renunciation shall take effect irrevocably upon such notice being given.
7. There was no express, or stand-alone, power to appoint or remove trustees of the CPT. There was however an express power (cl 20.7) to appoint and remove trustees of each BCTT. The extent of that power requires further consideration. I set out that subclause, so far as it is relevant: 20.7 (a) subject to paragraph (d) of this subclause, the Primary Beneficiary, or a person (including a company) nominated by the Primary Beneficiary, shall be the initial Trustee or Trustees; (b) the Appointor (other than an Ineligible Person) may exercise the power to appoint such other person as he, she or they choose to be an additional or replacement Trustee and may subsequently remove the person as a, or the, Trustee;
8. It is not necessary to go to the definitions of all the defined terms (which are those italicised and given initial capital letters).
9. Clause 27.3 of the will contained a large number of definitions. Of present relevance, it defined for each of the BCTTs and the CPT, the "Appointor". It also defined the concept "Power of Appointment", although there was no express provision in the will giving anyone in terms (that is, using the precise phrase) such a power.
10. I set out those definitions: 27.3 (a) "Appointor" in respect of a Beneficiary Controlled Testamentary Trust, shall be determined in accordance with clause 20.6 ("Appointment and Resignation of Appointor"); (b) "Appointor" in respect of the Capital Protected Trust, shall be determined in accordance with clause 10.4; … (p) "Power of Appointment" means the power to appoint, remove or replace the trustee of a trust;
11. Those (and all other) definitions were expressed to be "[s]ubject to cl 27.2". Clause 27.2 said, in effect, that where there was a particular definition in any other part of the will, that definition should apply to the clause in which it appeared, not withstanding any inconsistency between that definition and one of the cl 27.3 definitions.

The impugned transactions

1. On 6 June 2013, Mr James, purporting to exercise a power of appointment given to him by the will, gave notice that he had removed Marea as a trustee of the CPT and appointed himself in her place. He purported to confirm that exercise by a document described as "Deed of Appointment and Removal of Trustee" also dated 6 June 2013. Although the deed purported to remove Marea as a trustee, she was not a party to it. Nor were the other trustees at the time, Zeta and Ms Kik.
2. On 22 January 2014, Mr James again purported to exercise a power of appointment under the will. On this occasion, he purported to remove Zeta as a trustee of the CPT and to appoint Trudy in her place, on the basis that Trudy would act as one of the three trustees (Ms Kik and Mr James being the other two). There was no deed relevant to this purported exercise of power.

The issues in dispute

1. Zeta and Marea contend that Mr James had no power to remove them as trustees of the CPT and to appoint others (i.e., himself and Trudy) in their places. Mr James contended that the will on its proper construction did give him that power. Alternatively, he contended that the will should be rectified to give him such a power. The claim for rectification was brought only under the general law. It did not rely on the limited power of rectification given by s 27 of the Succession Act 2006 (NSW).
2. In arguing the case for Mr James and the other defendants, Mr Dubler of Senior Counsel, who appeared with Ms Dolenec of Counsel for them, submitted that there were three questions to be decided: 1. whether, on the proper construction of the expression "Appointor of the Capital Protected Trust", it should necessarily be implied, reading the will as a whole, that the person who from time to time held the office of Appointor to the CPT should have the power to appoint and remove trustees of that trust? 2. Alternatively, whether, again on the proper construction of that expression in the context of the will as a whole, such a power should be read into the will in some way, by supplying additional words? 3. Whether rectification under the general law is available, and if it is, should be ordered?

The third issue

1. It is convenient to dispose of the third issue at this point. Mr Dubler accepted that there was authority supporting the proposition that rectification was not available for a will. However, he submitted, the authorities relied upon could be distinguished, because in this case the rectification sought was not of any dispositive provision in the will but, rather, of a mechanical or procedural aspect of the complex trusts created by the will.
2. The general position as to rectification of wills is succinctly stated in the 5th edition of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (Heydon, Leeming and Turner; LexisNexis Butterworths, 2015) at [27-005]: … there is no equitable jurisdiction to rectify a will.
3. That proposition is supported by decisions of the High Court of Australia, including Tatham v Huxtable (1950) 81 CLR 639 and Osborne v Smith (1960) 105 CLR 153.
4. In Tatham, Latham CJ (who dissented in the outcome) said at 645: No evidence is admissible in a court of construction in order to show that words have been placed in a will by mistake. If it can be shown that words have been included by mistake it is for the Court of Probate and not for a court of construction to determine the true terms of the will…
5. Kitto J, with whom in substance Fullagar J agreed and who with Fullagar J constituted the majority, expressed himself to similar effect at 651: Evidence directed to proving that words appearing in a will were inserted therein by a mistake on the part of the draftsman… is not receivable in a court of construction. A court exercising probate jurisdiction may in certain circumstances act upon such evidence by excluding the words erroneously inserted (though not by inserting the words erroneously omitted)…. In a court of construction the probate is conclusive of the testator's knowledge and approval of the will as thereby authenticated… The only sense in which it is true to say that a court of construction may correct mistakes in a will is that a court may give effect to inferences obtained from the will as a whole (with the assistance of evidence of surrounding circumstances if ambiguity in the will justifies resort to such evidence)…
6. Kitto J (this time with the concurrence of Menzies and Windeyer JJ) expressed similar views in Osborne at 159-160.
7. Mr Dubler very properly recognised that the weight of authority was against him. Accordingly, I have done no more than record his submission and set out the reasons why, on the authorities as they stand, I am bound to reject it.
8. I add however that in my view, the evidence does not support the claim for rectification. See at [73], [115], [119] below.

The witnesses in the case; extrinsic evidence

1. Before I turn to the first and second issues (which for reasons that are now obvious were the issues that were contested), I shall identify the witnesses of fact. Because it is relevant to the question of ascertaining extrinsic evidence as an aid to construction, for the purposes of s 32 of the Succession Act, I shall set out my views on their credibility. Since those views depend very much on the detail of what happened, I shall use this section of my reasons to make findings on the extrinsic evidence on which Mr Dubler sought to rely, on the questions of construction, pursuant to s 32 of the Succession Act.

The witnesses

1. The plaintiffs read an affidavit sworn by Zeta. That affidavit went to formal matters. Zeta was not required for cross-examination. I accept her evidence, so far as it goes.
2. The defendants called (in order) Mr Roberts, Ms Kik, Mr Darron Mink and Mr James.
3. Mr Roberts had not sworn an affidavit. Nor had he provided a statement. He was called on subpoena, and gave his evidence in chief orally. He was cross-examined.
4. Mr Dubler relied on a letter dated 21 April 2014 written by Mr Roberts, to show that he (Mr Roberts) had received instructions from Stan specifically authorising the appointment of Mr James as Appointor to the CPT. However, on cross-examination, it become apparent, in my view, that Mr Roberts had received no such instructions (at least, of which he gave evidence, and he was closely pressed on this) directly from Stan.
5. Mr Dubler submitted that, if nothing else, such instructions were given in conference on the occasion when Stan signed his will. For the reasons that I give in discussing that episode, I am not satisfied that Stan did in fact knowingly give such instructions. Perhaps, to put it more accurately, I should say that I am not satisfied that it can be found, from the evidence of what happened when the will was signed, that Stan actually knew that the will nominated Mr James as Appointor to the CPT and that he expressly or by necessary implication (because he executed the will) approved of this.
6. More generally, it appeared from Mr Roberts' evidence, when his recollection was tested, that he had initially received instructions from Stan that others (Zeta, Marea and Trudy) were to be the Appointors to the CPT. The changed instructions, providing that Mr James was to be the Appointor, came from Mr Mink, who purported to be expressing the wishes of Stan on that issue.
7. I accept that Mr Roberts sought to give accurate and truthful evidence. He was, not unnaturally, somewhat defensive. I say "not unnaturally", because it is clear, and Mr Roberts recognised, that the issue between the parties arose from a defect in the drafting of the will that he had prepared.
8. However, my conclusion as to Mr Roberts' evidence, considered in its entirety, is that the statement expressed in the letter on which Mr Dubler placed reliance is not supportable having regard to the whole of Mr Roberts' evidence. I do not find that Mr Roberts did receive, direct from Stan, the instruction that Mr James was to be the Appointor to the CPT. Clearly, that instruction came from Mr Mink, as indeed the letter says.
9. To my mind, there was a real difficulty in the evidence that Ms Kik gave. To the extent that her affidavit was read (paras 1, 4, 41 and 42), the particular evidence on which Mr Dubler placed reliance was Ms Kik's account of a conversation that, she said, she had with Stan "[i]n or about mid April 2011". In the course of that conversation, according to Ms Kik, Stan said: He said: "It is difficult for me to find people I can trust implicitly and I know I can trust you completely to carry out my wishes exactly as I want. Upon my death (or earlier), I think that Zeta will become overly stressed and will not make the right decisions in accordance with our prior discussions and agreements. I have explained my wishes to Zeta but I am not sure that she will be able to carry them out. You will be 1 of 3 powers of attorney and enduring medical guardians. The other 2 being Zeta and I have asked David to consider it." He said: "These are my wishes which I have outlined in my will and I expect that you, together with David and Zeta, will ensure that they be carried out. If at all possible, I want to die at home but I have made arrangements with Dr Tony Bonaventura, an oncology specialist, and Newcastle Private Hospital should I need to go to hospital. I do not want to be a burden to Zeta in any way. I am determined to be as independent as possible for as long as possible. The D&DB will pay for all my medical expenses both at home and in hospital. I want Dedicated Carers to remain as my primary carers even when I will need 24 hour a day care. I also wanted them to remain my primary carers if I have to be admitted into hospital. I want all my family and friends to have access to see me at all time whether at home or in hospital."
10. Further, according to Ms Kik, Stan said, in the same conversation: He said: "I know Marea to be a 'vindictive, bitchy and jealous' person and I am certain she will want to do things her way. Marea is a 'bully'. Marea will react negatively and aggressively when she finds out that I have prepared a will and trust and that she was not included in roles she thought she was automatically entitled to. I am quite adamant about that and I know that she will have an immediate and negative influence on Zeta's ability to carry out my wishes. Whilst I am alive, I am certain that Marea will not challenge my decisions but I am equally certain that she will try to do so after my death, or sooner if I become incapacitated. It will be David's and your responsibility to ensure that Zeta carries out my wishes. Apart from myself, I believe David is the only person who can, and will, stand up to Marea if the situation arises. I have had a similar discussion with David and I have told him that he has full authority to carry out my wishes. In my will, I have put David in a position where he can make decisions as he sees fit to ensure that directives in my will and trust are properly carried out. In this matter I trust David implicitly."
11. The problem with that evidence is that, as at mid April (or, indeed, late April) 2011, Stan had made no will in which he had "outlined" the wishes referred to in the first extract, or in which he had "put David in" the position referred to in the second extract.
12. Mr Palmieri had prepared a draft will for Stan in December 2010. Stan executed that will, seemingly on 18 December 2010. The simple fact is that the will did not contain any provisions remotely to the effect of those said to have been referred to in the conversation.
13. Mr Palmieri wrote to Stan on 20 December 2010 enclosing "copy Will for your records" and stating that the original would be held "in my strongroom for safekeeping". There was enclosed with that letter a copy of a will executed by Stan on 18 December 2010.
14. There is no evidence that Stan executed any other will between 18 December 2010 and 4 May 2011.
15. Further, as to Stan's intentions in what might be described as about mid April, there is Mr Roberts' letter of 13 April 2011 to Stan which stated, among other things: … that the persons to have the power of appointment in respect of the [CPT] are to be Zeta… Marea… and Trudy… .
16. Mr Roberts said that the metadata embedded in the Word electronic version of the will that Stan did execute on 4 May 2011 show that creation of the document did not begin until 2 May 2011.
17. On the chronology that appears from the evidence, it was simply not possible for Stan to have stated, accurately, the words attributed to him by Ms Kik.
18. There has been no suggestion that Stan was in any way out of touch with reality, or other than thoroughly aware from day to day of the state of his affairs. The impression that I have, from the evidence, is of a strong-minded man who kept very close control indeed over his personal affairs. The impression is certainly not one of a person who might have thought that the will executed on 18 December 2010 included provisions to the effect of those described in the words that Ms Kik attributed to Stan. Nor do I have any impression from the evidence that Stan was someone who might have been mistaken as to the current status of his testamentary plans.
19. I add that, if it is correct that the conversation to which Ms Kik deposes took place at around the time the letter of 13 April was written (and this is by no means clear), there is no reason to think that Stan would have sought actively to mislead Ms Kik about his testamentary intentions.
20. Accordingly, I do not regard this aspect of Ms Kik's evidence as according with the probabilities, viewed objectively. I do not accept it as plausible or probative of Stan's wishes or testamentary intentions.
21. The evidence of Mr Mink and Mr James suffers from exactly the same problem. And there are other problems with Mr Mink's evidence.
22. The first is that Mr Mink said that he was not aware that Stan did execute the draft will prepared for him by Mr Palmieri. (That could lead to the inference that Mr Mink was not as close to Stan, or as much conversant with Stan's thoughts and testamentary intentions, as he would have the Court believe, although that is not a matter of dispositive significance.)
23. The next point is that Mr Mink said that he sent "the draft will" prepared by Mr Palmieri to a retired solicitor of his acquaintance, who replied by "email [which] confirmed my concerns with a lot of the will poorly worded". The unfortunate difficulty, which in my mind is adverse to Mr Mink's credibility, is that when one reads the email in question, it says nothing of the kind.
24. It appears from the email to which Mr Mink referred that the retired solicitor in question, Mr John Loughnan, had been sent "copies of the signed wills" of Zeta and Stan. (In passing, if the better inference is that Mr Mink sent copies of the signed wills to Mr Loughnan for comment, then the paragraphs of Mr Mink's affidavit referring only to Stan's "draft will" could be described as disingenuous.) Mr Loughnan did have some concerns at the wording of Zeta's will. However, he said that Stan's will was: Correctly done to meet instructions.
25. Again, Mr Mink said that he met Stan and Zeta on 27 April 2011 at their house, adding: The sole purpose of this meeting was to discuss the final draft of the will drawn up by Sam [Roberts].
26. It is clear from Mr Roberts' evidence that there was no draft, let alone "final draft", will prepared by him in existence at that time. In my view, this aspect of Mr Mink's evidence is simply untrue.
27. I do not accept Mr Mink as a credible witness, on whose evidence any reliance can be placed as to matters that are in contention.
28. There were other difficulties that became apparent in his cross-examination. I do not propose to go into the detail of them. It is sufficient to say that Mr Mink came across as alternately defensive and aggressive. He was inclined to dissemble, and disinclined to answer questions directly, when it seemed that a direct answer might be inconsistent with the story that he had advanced through his affidavit. To the extent that considerations of demeanour offer any reliable guide to truthfulness (and I do not regard them as being of primary assistance), they, too, tell against acceptance of Mr Mink's evidence as reliable.
29. Mr James gave evidence that "some time later in early 2011", he had a conversation with Stan in which Stan said, among other things, that his estate planning documents were being prepared by a solicitor who Messrs Palmieri and Mink had recommended - as it happened, Mr Roberts. According to Mr James, Stan said, among other things: The Will I have made sets up a trust to protect my assets while Zeta is alive. Zeta will be a trustee, but she has never had to look after our assets before, so I am also appointing Janina Kik and Marea to be trustees with her. Janina is strong like you, and she will look after Zeta. All three trustees will have to agree when making decisions for the trust. I want you to be the appointor of the trust in case there is any problem during Zeta's lifetime."
30. If "early 2011" is intended (as one might think) to refer to the first two or perhaps three months of that year, then no such conversation could have taken place. Mr James was pressed on this. Clearly, he perceived that there was a possible inconsistency. Accordingly, he sought to dissemble. At one stage, he went so far as to suggest that the ordinary English meaning of "early 2011" might encompass the first six months of that year.
31. It is clear that Mr Roberts had not received any instructions from (more accurately, purporting to be from) Stan, to prepare a will in which Mr James would be the Appointor of the CPT, until 20 April 2011. On that date, it seems, Mr Roberts had a conversation with Mr Mink in which Mr Mink said among other things that Stan "wants David James to be the appointor of the [CPT]". Mr Mink confirmed those and other instructions in an email sent at 11:50am on 20 April 2011 to Mr Roberts. That, I might add, is the only direct evidence of instructions emanating (or said to emanate) from Stan in relation to the nomination of Mr James as appointor of the CPT. And it is the only evidence of any instruction at all to that effect before preparation of the will commenced on 2 May 2011.
32. For the reasons I have given in discussing Ms Kik's evidence, the conversation that Mr James said he had with Stan, which clearly referred to a will that had been made and which had dispositive or effective provisions, could not have occurred at any time prior to 4 May 2011. And there was no need for such a conversation on or after that day, because Mr James was well aware of the terms of the will that Stan then executed.
33. Thus, I do not regard this aspect of Mr James' evidence as plausible or probative.
34. In addition, there were features of Mr James' evidence overall that led to my forming an unfavourable impression of his demeanour. Again, to the extent that considerations of demeanour are of any assistance, they do not offer any redemptive character to Mr James' testimony.
35. I should add, in respect of Mr James' evidence, that he was cross-examined at some length about other litigation in which he had been involved, in which Bergin J had made sustained and extremely strong credibility findings adverse to Mr James (Hill v James [2004] NSWSC 55). There was no objection to that cross-examination. Because I thought it might have gone to some issue in the case, I did not stop it. However, when I inquired as to its purpose, I was told that it went to credibility. I formed the view, and told Mr Ellison of Senior Counsel (for the plaintiffs), that I did not think that I could use credibility findings made by another judge in other proceedings on other evidence as an aid to fact-finding in the present case. I remain of that view, and I have not taken any account of the matters revealed in that aspect of Mr James' cross-examination, in forming the views that I have.
36. However, there is one matter emerging from that evidence that is relevant to the question of credibility. Mr James volunteered, more than once, that he had appealed, and had been, as he put it, "vindicated". It is correct to say that he appealed. It is correct to say that the Court of Appeal set aside one of the orders made by Bergin J. It is simply not correct to say that Mr James was "vindicated", if by that he meant that the Court of Appeal in effect had said that her Honour had no basis for forming the extremely adverse views that she had as to Mr James' character and conduct. On the contrary, the Court of Appeal dismissed Mr James' appeal from her Honour's award of exemplary damages, and in doing so observed, in effect, that the aspects of his conduct that were referred to in her Honour's findings amply justified the award of exemplary damages. See, generally, James v Hill [2004] NSWCA 301.
37. Mr James seemed to me to be an astute and intelligent man. I do not think that any astute and intelligent person, reading the two judgments, could come to the view that he had been "vindicated" by the decision of the Court of Appeal. On the contrary, the Court of Appeal had in effect confirmed her Honour's adverse findings as to Mr James' character and credibility.
38. I do take this aspect of Mr James' evidence into account. It confirms the impression that I had in any event formed of Mr James, that he is a person who was willing to say anything that might suit him if he thinks it will advance the case he is seeking to put.
39. Finally, there is the affidavit of Mr Lojszczyk. Mr Lojszczyk died before the hearing commenced. His affidavit was read without objection, but with what one might call a reservation as to credibility or weight.
40. Mr Lojszczyk gave evidence of a conversation "[s]ometime after Stan became ill in 2010". He said that Stan said, among other things, "I am going to make David the Appointer [sic] of my Trust".
41. Unless the words "sometime after Stan became ill in 2010" may be read fairly as meaning "in late April 2011", this evidence suffers from exactly the same problem of contextual implausibility as does the evidence of Ms Kik, Mr Mink and Mr James. Since Mr Lojszczyk was not available for cross-examination, the extent of this flaw (if it be a flaw) could not be explored. Equally, Mr Lojszczyk did not have the opportunity to explain why it was that a conversation introduced by the words to which I have referred was, to his recollection, a conversation that occurred in late April 2011.
42. Whilst there is no basis for making any adverse finding as to Mr Lojszczyk's credibility, the difficulty with his evidence, compounded as it is by his unavailability for cross-examination, leads me to conclude that I should not regard it as plausible. Nor do I regard it as probative of Stan's intention, at the time Mr Roberts was preparing to draft and did draft the will that was executed on 4 May 2011, in relation to Mr James as Appointor.
43. I do not think that it is possible to say that even if I were dissatisfied with one or other of the witnesses, or even with aspects of the evidence of each, nonetheless there is some cumulative quality which gives their evidence, overall, a degree of credibility. I say that because to my mind the essential difficultly with their evidence is not just (in the case of Messrs Mink and James at least) considerations of demeanour and other unsatisfactory aspects of their testimony, but the inherent contextual implausibility of the remarks attributed to Stan in the conversations of which each give evidence.

Conclusions on the testimonial evidence

1. Mr Dubler relied on this and other evidence to make good his submission that, for the purposes of s 32 of the Succession Act, it was Stan's intention that Mr James should have the power to appoint and remove trustees of the CPT. I do not accept that the testimonial evidence that I have been discussing does prove that proposition. I am not satisfied, on the basis of that evidence, that Stan ever expressed directly, to any of the five witnesses in question (Mr Roberts, Ms Kik, Mr Mink, Mr James and Mr Lojszczyk) his desire that Mr James should have that power.

Other extrinsic evidence

1. As I have indicated at [34] above, Mr Dubler relied also on what he said was other evidence from which an inference could be drawn that this was indeed Stan's intention. That evidence concerned the events that occurred when the will was signed, on 4 May 2011.
2. It is important to put that evidence in context. Because of the reservations that I have as to the testimonial evidence (making it clear, if I have not done so already, that my concern with Mr Roberts is as to the specificity or accuracy of his recollection, rather than his truthfulness), I think that the context most accurately appears from such contemporaneous documents as have been proved.

Context: the contemporaneous documents

1. The starting point is the will signed on 18 December 2010. That will established a trust fund. The trustee was to be a company named as "Tramally Pty Ltd", of which Zeta was the sole director and shareholder.
2. That will did not provide for anyone to be an "Appointor". Nor did it provide for the trustee to be removed, or for substitute or additional trustees to be appointed. The only provision relating to control of the trustee was that, upon Zeta's death, the directors and shareholders of "Tramally" were to be Marea, Trudy, Lyn and Angela.
3. Next in the chronological sequence is Mr Roberts' letter of 13 April 2011 to Stan. That letter purported to confirm Stan's instructions. It noted that a CPT (called "a Capital Reserve Testamentary Trust") was to be created for Zeta, to revert to separate BCTTs for each of the daughters upon Zeta's death. It confirmed further, as I have noted, that those who were to have the power of appointment in respect of the CPT were to be Zeta, Marea and Trudy.
4. It is plain that Stan read and considered this letter. Zeta's middle name had been misspelt as "Kathline". Where that mistake first appears, the misspelt name is underlined. There is a marginal note in handwriting "KATHLEEN". It was common ground that this note was in Stan's handwriting.
5. The specification of those who were to have the power of appointment followed immediately the paragraph of the letter in respect of which Stan had noted this mistake. I infer that Stan had read carefully at least those parts of the letter.
6. In sequence, the next documents are Mr Roberts' file note of his conversation with Mr Mink on 20 April 2011, and Mr Mink's email to Mr Roberts of the same date.
7. According to Mr Roberts, the relevant part of that file note read: Only problem is Marea. Zeta looks upon Marea as eldest daughter. Thinks he wanted David James to be the appointor. He said he is seeing Stan. He will clarify whether appointors are to be David James, otherwise going to call back.
8. Thereafter, as I have noted, Mr Mink sent the email noting that Stan "wants David James to be the appointer [sic] of the trust".
9. The next document in the sequence is Mr Roberts' letter to Stan of 21 April 2011, confirming among other things "[t]hat David James shall be the appointor of the [CPT]". That letter forwarded to Stan for his consideration draft powers of attorney and draft appointments of enduring guardian for himself and Zeta.
10. On 2 May 2011, Stan called Mr Roberts' office and apparently said "no modifications needed for my Estate Planning documents".
11. Whatever it was that Stan thereby approved did not include any draft will. Mr Roberts thought that he might have sent a draft will to Stan. He was unable to find any evidence that he had done so. Specifically, he was unable to find any letter to Stan forwarding, for his consideration, a draft will. Mr Roberts accepted that had he sent a draft will to Stan, it would have been under cover a letter, and that he would have retained a file copy of the letter.
12. Further, as I have noted already, it is apparent that preparation of the will which was actually executed occurred between 2 and 4 May 2011. It is unlikely that there would have been a draft will (at least, one prepared by Mr Roberts) available to be sent to Stan before 4 May 2011.
13. I find that Mr Roberts did not send to Stan, for Stan's consideration and approval, any draft will; and thus that on 2 May 2011, Stan did not indicate his satisfaction with any such draft will.
14. Mr Dubler tendered two file notes prepared by Mr Roberts on 3 and 4 May 2011. Mr Roberts said that those notes were in effect reminders to himself of matters that needed to be covered in the draft will. Although the file note of 3 May 2011 included the words "Appointor: David James", it is clear that they reflected Mr Roberts' understanding of his instructions, not instructions given to him directly by Stan. And at this stage, the only evidence of instructions to that effect given to Mr Roberts is that Mr Mink told him, on 20 April 2011, that Stan did want Mr James to be the Appointor to the CPT.
15. On 4 May 2011, at 8:33am, Mr Roberts sent an email to Mr Mink attaching a copy of Stan's draft will. The email confirmed that Mr Mink would attend on Stan with Mr Roberts later that day for the purpose of execution of the will.
16. The letter drew Mr Mink's attention to cls 2.6 and 10. I have set out those clauses, to the extent that they are relevant, at [7], [9] and [10] above. Mr Mink gave no evidence of having paid any particular attention to this letter.
17. Finally, in the documentary evidence, there is Mr Roberts' file note of 4 May 2011. That file note, he agreed, was the note of his attendance on Stan on 4 May 2011. It contains no indication of any instruction received direct from Stan as to the identity of the Appointor of the CPT. So far as I can tell (aided by Mr Roberts' evidence) the note includes the following: CPT - Zeta Ewrap [the form in which Stan's not inconsiderable share investments were held] BCCT - Zeta Children - BCCT
18. Presumably, "BCCT" was intended to refer to the BCTTs. There is some other writing on the file note, but it does not appear to be of any significance (including because it is illegible).

The events of 4 May 2014

1. I turn to the evidence of execution of the will. Mr Roberts said that the attendance lasted over an hour. He agreed that the documents that were executed included Stan's will and Zeta' will, and powers of attorney and enduring guardianship appointments for each of Stan and Zeta. That is to say, the documents that were signed on that occasion were six in number. They were of some length and complexity.
2. Mr Roberts gave the following evidence (T22.20-.40): Q. Do you agree that there's nothing in your file note of either 4 May or your file between 8 April and 4 May to confirm with Mr Douglas your change in the identity of the capital reserve trust appointor from the three family members, Zeta, Marea and Trudy, to David? A. I thought ‑ I thought there was. Q. Perhaps you might identify that, sir? HIS HONOUR: Nothing in what document? ELLISON Q. There is nothing in your file ‑ you've spoken about a communication with Mr Mink, but there's nothing in your file to indicate there was any communication between you and Mr Douglas after 8 April with regard to the change in the identity of the appointor? A. I thought I'd written a letter about those instructions. Q. I will come to that. Yes, there is a letter but is there anything to indicate that there was any communication other than a letter? A. I don't believe so.
3. He added (T23.1-.7): Q. You had no oral communication with Mr Douglas in which the question of the change of the appointor was discussed, correct? A. I don't recall it, that's right. Q. Your communication was to pass on in a letter what Mr Mink had told you, correct? A. That's correct.
4. Mr Roberts would not agree that he did not discuss with Stan on 4 May 2011 the change in the identity of the Appointor. He accepted that the file note recorded no discussions whatsoever. He said, however, (T23.19) "obviously we discussed quite a lot of things that aren't in the file note".
5. Mr Roberts then gave the following evidence (T23.25-.35): Q. But you didn't discuss with him a fundamental ‑ you've got no record of discussing with him the fundamental question of the change of instruction with regard to the appointor? A. I agree. Q. The fact is you have no independent recollection of discussing with him on 4 May the change in the instruction with regard to the appointor, correct? A. My specific recollection no, but I do recall that this issue of who could have control as a significant issue and I would have definitely gone over it in detail and shown him the provisions that made Mr James the appointor of the capital protected trust.
6. The difficulty with this evidence is that, as we now know, the draft will that was discussed and ultimately signed did not include any "provisions that made Mr James the appointor of the Capital Protected Trust".
7. Mr Roberts said that he did discuss with Stan on 4 May 2011 the role of Mr James as Appointor. He said it was a significant part of the will, and "I mean we went through those parts of the will, yes" (T25.22-.23).
8. Mr Roberts said that this was more than an assumption; he said that he did discuss with Stan, among other things, the different roles of the parties including Mr James. However, Mr Roberts said, he could not recollect if he had "discussed the change in instructions" (T25.32).
9. When asked whether he had discussed with Stan "the pros and cos of having a singular Appointor", Mr Roberts replied, after an introductory and somewhat unresponsive answer, that he "would have discussed that with Mr Douglas when we signed" (T26.8). This answer suggests to me that Mr Roberts was basing his evidence on what he thought was his practice at the time, and on the belief or understanding that he had followed this practice on 4 May 2011. That is not to be critical. It is hardly surprising that a busy solicitor would not recollect the precise detail of a lengthy conversation that took place almost four years ago. It is not surprising that a busy solicitor, who presumably had an established way of attending to important events such as the reading, explanation and execution of draft wills, would rely on that practice in seeking to give evidence of what happened on any particular occasion.
10. Mr Roberts agreed that he did not read the will over to Stan paragraph for paragraph, and that Stan did not so read it either. He then gave the following evidence (T26.31-.40): Q. So at most you summarised the will to him, is that what you say? A. Yes. Q. Do you say unequivocally that you identified the fact that Mr David James was to be the appointor of the capital control trust? A. Yes. Q. And did you identify the powers of Mr James as an appointor? A. Yes, I would've looked at the ‑ we would've gone through the pages and I would have summarised and pointed out different pieces in the will.
11. The last of Mr Roberts' answers in that passage is suggestive of reconstruction rather than recollection.
12. I note that at this part of his evidence, Mr Roberts made the gesture of moving his finger backwards and forwards across a page. It was clear, and I think confirmed by what he said a little later, that he intended to demonstrate that as he explained or summarised parts of the will, he had it open before him, and kept his place by putting his finger on the page.
13. Mr Roberts was asked to identify the part of the will that would have been open before him, and in his mind, when he summarised to Stan the provisions appointing Mr James as Appointor and giving him the power to appoint and remove trustees. Not surprisingly, he was unable to do so. He ventured the following (T27.3-.12): Q. Where in 10.4 that the appointor could remove a trustee? A. I think the appointment provisions are dealt with in part B or part C, the administrative provisions. Q. Sir, you find that part of the will that you summarised when you were dealing with the power of the appointor to remove the trustee of the capital protected trust? A. Well, the ‑ when I would have been going through the will I would have been looking at it and saying, This is where David James is named as the appointor.
14. Again, the last answer in that passage suggests reconstruction rather than recollection.
15. A little later, Mr Roberts gave the following evidence (T27.37-28.8): Q. What did you summarise in 10.4 that indicated that Mr James, as appointor, could remove a trustee? A. Well, I said that he's named as the appointor of the capital protected trust and the role of the appointor was to add or remove trustees. Q. You're not summarising anything. You're making that bit up, aren't you, because it's not in the will that you've got in front of you? A. In the definition‑‑ Q. Sir, to start off with it's not in clause 10.4 if you're purporting to summarise that, is it? A. No, it's not expressly stated there, no. But the way will's structured is that the other parts of the will create, I guess, different standard terms; and this is where the variables, I guess, are extracted. Q. There's no variable with regard to the power of the appointor to remove trustees of the capital protected trust. It's not a variable; it's silent, isn't it? A. Well, in clause 27.3(b) there is a separate ‑ there's two definitions of "appointor" and depending on whether it's in respect of the beneficiary controlled trust and the capital protected trust. So in drafting that provision was so that a reference to Mr James being the appointor of the capital protected trust was to invoke the other provisions about where powers of appointment arose.
16. The last two answers cannot be said to confront or respond to the proposition put to Mr Roberts.
17. Confirmation that Mr Roberts was relying as much on his practice as on actual recollection came from the following answer that he gave me (T28.35-.43): Q. If you did discuss with Mr Douglas that Mr James as appointor would have the power to remove or appoint trustees you must have given that advice not by reference to the particular document before you but by reference to your understanding of what documents of this kind, usually prepared by you, provide. Is that the case? A. Yes, your Honour. I was explaining the intention of the document as I understood, as I'd drafted it, and quite painstakingly. Although, yes, there's a slip in 20.7 in that it doesn't also reference the capital protected trust. That was a particular trust that was added to our testamentary template.
18. I add, although it is of no particular significance, that it is plain from this last answer that Mr Roberts intended cl 20.7 to deal with the power of the Appointor in respect of both the CPT and the BCTTs, in relation to appointment and removal of trustees. It will be necessary to return to cl 20.7 in considering the second issue.
19. That, in part verbatim and in part in summary, is the whole of Mr Roberts' evidence of the circumstances surrounding the explanation and execution of the will on 4 May 2011. That evidence was not corroborated by any of the other persons (including Mr Mink) who, presumably, were present during part or all of the explanation.
20. As I have said, and I wish to repeat, I do think that Mr Roberts was seeking to tell the truth to the best of his ability. Equally, in my view, he had no detailed recollection of the events of that day, so far as they related to the explanation and signing of the draft will. I think that Mr Roberts was relying on his established practice on such occasions, and on the assumption that he would have followed it. And to some extent at least, I thought that Mr Roberts' reliance on practice was informed by his perception that his work had been deficient (see at [36] above).
21. I have no doubt that Mr Roberts did discuss with Stan, at least in outline, what he thought were the significant provisions of the draft will. However, bearing in mind the lengthy and complex nature of that document, I am not satisfied that Mr Roberts gave any explanation, or made any comment, which would have conveyed to Stan that Mr James was to be the Appointor of the CPT. Nor am I satisfied that Mr Roberts gave any explanation, or made any comment, which would have conveyed to Stan that Mr James was to have the power of appointing and removing trustees of the CPT: let alone, that Mr James only was to have that power.
22. Specifically, whilst I accept that Mr Roberts summarised the particular features of the CPT and the BCTTs which were intended to give effect to Stan's clear intention that Zeta should have in effect a life interest, and that the capital should be preserved for the benefit of their four daughters, I am not satisfied that the explanation descended into the detail of identifying the Appointor for the CPT, or describing the powers of that Appointor.
23. Those are the conclusions that I reach having regard to the documentary record to which I have referred and the evidence (such as it is) of what happened on 4 May 2011. There are two other matters that seem to me to confirm those conclusions.
24. The first is, as I have noted, that there were some six documents to be explained, considered and executed. And the process involved Zeta as well as Stan. There simply was not enough time for any detailed explanation to be given of the documents, as opposed to a brief (but no doubt, so far as it went, accurate) description of their effect.
25. The second matter is that Mr Roberts appeared to rely on the contents of the will itself as supporting his view that he had explained the identity and powers of the Appointor to the CPT. However, he could not have done so by reference to any express provision of the document, simply because there was no such express provision.

Conclusion: no extrinsic evidence of direct instructions or actual intention

1. Thus, whilst I find that Stan understood the substance and dispositive effect of the will, and executed it accordingly, I do not find, either in his execution of the will or in the circumstances leading up to that execution, any basis for concluding that he knew specifically that Mr James was to be the sole Appointor to the CPT, or that he knew that Mr James was to have the power of appointment and removal of trustees of the CPT. Thus, I do not find, in the events of 4 May 2011, any basis for inferring that, by executing the will, Stan did in any real or conscious sense give instructions for Mr James to be so appointed and to have that power.

The parties' submissions

1. Mr Dubler submitted that, on basic principles of construction: 1. the instrument being construed should be read as a whole; and 2. the Court should strive to avoid a construction that would render a particular provision of no effect.
2. Mr Dubler referred to numerous authorities on the interpretation of contracts. It is necessary to mention only Jingalong Pty Limited v Todd [2015] NSWCA 7 at [79]. Sackville AJA, with whom Meagher and Leeming JJA agreed, affirmed those basic principles of construction.
3. Mr Dubler submitted, next, that if the Appointor of the CPT did not have any power to appoint and remove trustees (that is to say, a "Power of Appointment" as defined in cl 27.3(p) of the will), the role of the Appointor would be ineffective, lacking both functions and powers.
4. Next, Mr Dubler submitted, cl 2.6 of the will itself contemplated that the trustees from time to time of the CPT might be removed. That followed, he submitted, from the introductory words of the subclause.
5. Mr Dubler submitted that it was inherent in the office of "Appointor" to a trust that the Appointor should have the power to appoint and remove trustees. The content of the power, he submitted, was to be found in the definition of "Power of Appointment" in cl 27.3(p).
6. Accordingly, Mr Dubler submitted, on a fair reading of the will as a whole, the Court should conclude that Mr James, as Appointor to the CPT had the power to appoint and remove trustees.
7. Mr Ellison submitted that on the ordinary meaning of the words used, there was no basis to find in the will any power in the Appointor to the CPT to appoint and remove trustees.
8. Mr Ellison submitted that it did not follow that the office of Appointor was meaningless because entirely bereft of content. He pointed to the requirement for consent in cl 10.7(a).
9. Next, Mr Ellison submitted, if the Court were to conclude that some function was intended to be given to the Appointor (other than the exercise of functions under cl 10.7(a)), the will offered no guidance as to whether that should be some general power to appoint and remove trustees (by reference to the definition of "Power of Appointment"), or what on the face of things was a more limited power, by analogy with cl 20.7.
10. Mr Ellison submitted, in substance, that if the Court were to choose one rather than the other of those powers (and, he submitted, it would have to be the power indicated in the definition of "Power of Appointment" because the cl 20.7(b) power did not authorise the removal of an original trustee), the Court would not be giving effect to the Stan's intention as that appeared from the will as a whole. The construction for which Mr Dubler contended would, Mr Ellison submitted, require the Court to speculate as to the content of the power of appointment that Stan intended (to the extent that he did) to be inherent in the concept of a "Appointor" to the CPT.
11. In reply, Mr Dubler submitted that cl 20.7(b) was not limited to the removal of substitute trustees. He submitted that it extended to the removal of existing trustees. That was so, he submitted, because the power to choose a "replacement" trustee necessarily assumed that the Appointor could vacate the office previously held by a trustee, to which office that replacement trustee would then be appointed.

Decision

1. I accept that the approach to construction of the will should be taken to be that for which Mr Dubler contended (see at [120] above). I do not think that Mr Ellison contended that the task of construing a will should be undertaken in any way differently to the task of construing agreements, deeds and the like. Had Mr Ellison so submitted, I would not accept it, in the absence of some binding authority requiring me to do so.
2. The starting point seems to me to be that, as Mr Dubler contended, the will does contemplate (in cl 2.6) that the trustees of the CPT might be subject to the exercise of some power of removal and replacement. However, the will does not specify what that power is to be.
3. The reference, in cl 2.6, to cl 20.7 could be taken to indicate that the removal and replacement of trustees was to be undertaken in the way outlined by that subclause. More accurately, that cross-reference could be taken to indicate an analogous power of removal and appointment, with whatever limits there might be within cl 20.7(b). The analogy is not entirely clear, given that cl 2.6 deals with the CPT, cl 20.7 with the BCTTs, and the structures of those forms of trust are quite different.
4. That process of reasoning directs attention to the proper construction of cl 20.7(b). To my mind, at least as a matter of plain language, the words "the power to appoint" take their meaning from what follows. The "power to appoint" that it gives is a power to appoint in the manner, and to the extent, described in the following words of the subclause, and no more.
5. Alternatively, if the subclause were to be read as calling up the defined expression "Power of Appointment", it seems to me that the same result would follow. On that hypothesis, the testator (Stan) intended to call up the defined expression "Power of Appointment", but to limit the general content of that power (as it appears from the definition in cl 27.3(p)) by the specific limitations that follow in cl 20.7(b).
6. On either approach, therefore, the key question is whether the reference, in cl 20.7(b), to a "replacement Trustee" should be taken to carry with it the power to remove a trustee for the purpose of replacing her or him.
7. To my mind, the use of the concepts of removal and replacement (or their cognate forms) shows that the concept of removal was not intended to be inherent in the context of replacement. Put more precisely for present purposes, I think that the use of those separate concepts speaks against construing the power of replacement as necessarily including an anterior power of removal.
8. To my mind, that is made clear by the definition of the term "Power of Appointment". That is stated specifically to mean "the power to appoint, or remove or replace the trustee of a trust".
9. In ordinary language, it may be said that: 1. appointment of someone to an office means putting the person into that office; putting the person in a position lawfully to exercise the functions and powers of that office; 2. removal of someone from office means exactly what it says: depriving someone of office, or vacating the person's holding of that office; and 3. replacement means the filling an office which has become vacant in one way or another; including vacancy by removal, vacancy by death, vacancy by resignation, vacancy by incapacity, and perhaps vacancy for other causes.
10. If it were thought that the power of replacement included the anterior power of removal, it would not have been necessary to define Power of Appointment in the way that was done. The words "or replace" would be otiose. Nor would it have been necessary to include the two powers (replacement and removal) in cl 20.7(b).
11. As I have indicated, there are many reasons why a trustee may cease to hold, or cease to exercise the powers of, that office. Removal is but one. The power of replacement is apt to include the filling of an office that is vacated, or the powers of which are no longer exercised, by a particular individual.
12. Thus, I conclude that cl 20.7(b) should be construed so that the Appointor has power: 1. to appoint additional trustees; 2. to appoint replacements for trustees who have ceased to hold or exercise their office for any reason; and 3. to remove trustees appointed under the two foregoing powers.
13. That approach to the construction of cl 20.7(b) makes it clear why Stan did not simply say, in respect of the BCTTs, that the Appointor should have a "Power of Appointment". Further, it reveals an intention that the original trustees should not be subject to removal by the Appointor. They might be removed by other causes, including those (other than removal) that I have mentioned already. Where that happens, they may be replaced; and the replacement trustees would be subject to removal. But for so long as the original trustees are alive and able to exercise their office, they are entitled to remain in office, free from the threat of removal. That could be seen as a measure designed to protect Zeta during her lifetime, by ensuring that she remains a trustee, and thus retains an effective power of veto (because by cl 10.6(a) all decisions of trustees are to be made jointly).
14. Thus, it seems to me, there is a very significant difference between the cl 20.7(b) power of removal and the general power of removal that is inherent in the defined expression "Power of Appointment". The clause 20.7(b) power is different also to the general power of removal that, Mr Dubler submitted, was necessarily inherent in the concept of an "Appointor".
15. I am conscious that this approach to construction renders the office of Appointor, at least to the CPT, substantially devoid of function. I accept of course that there is a very limited function under cl 10.7(a), but it may be wondered whether Stan would have thought it necessary to create the office, and set out the elaborate provisions relating to it, for that purpose alone.
16. I am also conscious that this approach to construction substantially cuts down the intention evident in cl 2.6 that the trustees of the CPT might be removed in some circumstances at least. It could be more accurate to say that the intention is negated by this approach.
17. Regardless of those problems, unless the content of the power to appoint that is said to be inherent in the office of "Appointor" to the CPT can be determined with precision as a matter of construction, it is not possible, objectively, to impute to Stan, reading the will as a whole, the intention that the Appointor should have one rather than the other of the variant powers of appointment for which the will provides. I do not think that the Court should speculate as to which, of those two alternatives, Stan might have chosen.
18. As to s 32 of the Succession Act, the findings of fact that I have made render it unnecessary to deal at any length with that aspect of Mr Dubler's submissions. However, even if it were thought that Stan had understood and intended that Mr James should be an Appointor to the CPT, there would still be left the question of whether he intended Mr James to have an unqualified power of removal, or a more limited power of removal analogous to that specified, for trustees of the BCTTs, by cl 20.7(b).
19. There is nothing in Mr Roberts' evidence to suggest that he explained to Stan at all, let alone in any detail, the two different powers of removal specified in the will, the differences between them, and took instructions, or received an acknowledgment, that Mr James was to have, in respect of the CPT, one rather than the other of those powers.

The parties' submissions

1. Mr Dubler's submissions as to construction of the document as a whole, and construction to avoid inefficacy, are relevant also to this aspect of his case. Mr Dubler submitted that in extreme cases, the Court could read words into a will as part of the process of construction. He relied on the decision of Buckley J in In Re Doland's Will Trusts [1970] Ch 267, in particular at 274.
2. His Lordship's views were cited with apparent approval by Gzell J in Rennes v Death [2003] NSWSC 708 at [17] to [19].
3. Mr Ellison accepted, I think, that in an appropriate case the process of construction could go so far. However, he submitted, it could not be exercised unless the true intention was clear; and in this case, it was not.

Decision

1. In Re Doland, the testator disposed of his residuary estate in shares to a number of named persons. Those trusts concluded with the following words: … if any of the trusts of any of the shares… shall fail my trustees shall stand possessed of my residuary estate for [two named persons] in equal shares absolutely.
2. One of the trusts was void, because the wife of the beneficiary witnessed the will. As a matter of language, that meant all the trusts were void, and the residuary beneficiaries would take everything. Buckley J held, in substance, that the Court would be justified in inserting additional words into the will.
3. After referring to authorities at 272-273, his Lordship said at 274: If one finds a corrupt passage in a will where it is clear that something has gone wrong with the language, the court is entitled to remould the language or to read in addition words if, but only if, the true intention of the testator is clear.
4. His Lordship reasoned that it was apparent overall that the testator had not intended all the trusts to fail, for the benefit of the residuary beneficiary. He said (again at 274) that the testator: … was intending to say that that share of his residuary estate [which had failed] should in that event go to [the named persons]. This can be achieved by inserting the words "such share of" before the words "my residuary estate" in the proviso. In doing that I think that I am moulding the testator's language in a way which gives effect to an intention which is to be ascertained from reading the residuary gift as a whole…
5. The difficulty with that approach to construction arises not at the level of principle but at the level of fact. Buckley J had made it clear that additional words could be read in "if, but only if, the true intention of the testator is clear". His Lordship's insistence on the necessity for clarity of intention is apparent also from the way in which he went about "remoulding" the will.
6. In the present case, for the reasons I have given, even assuming that the will as a whole discloses an intention to give Mr James the power to remove trustees of the CPT, it is not at all clear whether that power was to be unfettered, or was to be a limited power.
7. If the Court were to read in one or other of those powers, it would not be giving effect to the clear intention of Stan as it appears from the will as a whole. It will be imputing a particular intention to Stan by a process of speculation, and then relying upon that imputed intention to rewrite the will. That is not something that the Court should do.
8. Accordingly, I do not accept the alternative approach to construction.

The amended cross-claim

1. Mr James brought a cross-claim for relief, by amended cross-summons filed (by leave) on the morning of the hearing. By that amended cross-summons, Mr James sought: 1. a declaration that he did have the power to appoint, remove and replace trustees of the CPT; 2. declarations that the removal of Marea and Zeta as trustees, and his and Trudy's appointments in their places, were effective; and 3. orders for rectification of the will in one way or another, and either under the general law or pursuant to s 27 of the Succession Act.
2. The amended cross-summons also ensured that all necessary parties were parties to the suit, so as to be bound by the outcome. The additional parties (who had not been joined as defendants to the summons) were Lyn, Angela and Mr Palmieri.
3. The amended cross-summons raised no issue that has not been dealt with by the reasons I have given.
4. Accordingly, it is appropriate that it be dismissed.

Conclusion and orders

1. The plaintiffs have made good their claim for the declaratory relief sought by the summons. Necessarily, the amended cross-summons must fail.
2. On the face of things, the plaintiffs are entitled to an order for their costs. There may be a question as to costs: specifically, as to the identity of those who should pay the plaintiffs' costs. In this context, I note that there were some evidence that at least part of the defendants' costs had been paid out of the estate. On the face of things, it does not seem to me that the estate had any interest in the dispute which would have justified its funds being spent on advancing the cause of one side rather than the other. However, since the question was not argued in detail, I express no concluded view.
3. In those circumstances, I think it appropriate to grant declaratory relief in substance as prayed, but to reserve the question of costs and to stand the matter over for a relatively short time. If there is to be a dispute as to costs, my present view is that the parties should have the opportunity to put in written submissions and written submissions in reply (on each side), and that the issue should be dealt with thereafter "on the papers". However, I will hear from the parties on the adjourned date as to whether they accept this course.
4. Of course, if the parties are able to agree on appropriate costs orders, they may avail themselves of the liberty to apply that I shall reserve to seek the agreed orders to be made in chambers.
5. I make the following orders: 1. Declare that on the true construction of the will dated 4 May 2011 of Stanley Edward Douglas deceased, the Appointor named in cl 10.4 of that will has no power to remove and appoint trustees of the Capital Protected Trust created by that will. 2. Declare that neither Zeta Kathleen Douglas nor Marea Gilbert has been validly removed as a trustee of the said Capital Protected Trust. 3. Declare that neither David James nor Trudy James has been validly appointed as a trustee of the said Capital Protected Trust. 4. Declare that the trustees of the said Capital Protected Trust are and since the date of death of the deceased have been Zeta Kathleen Douglas, Marea Gilbert and Janina Kik. 5. Order that the amended cross-summons be dismissed. 6. Reserve for further consideration the question of costs. 7. List matter for directions at 10am on 27 March 2015 before me. 8. Reserve liberty to apply.

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: 25 March 2015