Gordon Salier v Robert Angius

Supreme Court of NSW|2015-06-10|Before: Ball J, Powell J, Salier AM, Hallen J

Introduction

These proceedings concern the correct construction of an informal testamentary document made by Laura Angius (the deceased) who died on 3 or 4 January 2012 at the age of 79.
On 17 December 2013, Hallen J found that the document stated the testamentary intentions of the deceased and formed the deceased's will: see Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895. His Honour ordered the letters of administration with the undated document attached, in solemn form, be granted to the plaintiff, Mr Gordon A Salier.
The will itself consists of three pages of handwritten notes in a notebook owned by the deceased written in the deceased's native language, which was Italian. The grant of letters of administration (made on 1 April 2014), was in respect of a copy of the will with a translation annexed. The grant is expressed to be "limited until the original is brought into the Registry". The original was not available at the time of the grant. It has been retained by the New South Wales Police in connection with an on-going investigation into the circumstances surrounding the deceased's death. The copy in respect of which the grant was made is not altogether clear.
The translation annexed to the grant was prepared by Mr Blasi. Mr Blasi had been engaged to translate the deceased's notebook by Mr Vlahakis, the principal of Kydon Segal Lawyers, who had been acting for the deceased at the time of her death. Mr Blasi's translation of the will was before Hallen J at the time of the hearing concerning the question whether the three pages of the notebook formed the deceased's will. It is apparent from the translation that some words on the copy from which Mr Blasi worked were illegible. A copy of the translation is Annexure A (36.6 KB, pdf) to this judgment.

Factual background

The deceased was born in Italy in October 1932. She and John married in 1957 and came to Australia together the following year. Robert was born in Australia in 1961 and Jenny was born in Italy in 1964. Over a number of years the deceased and her husband accumulated substantial real estate holdings, primarily in various suburbs of Sydney, but also in other parts of New South Wales. The properties were either held by them personally as joint tenants or through companies which they controlled. The properties that they owned jointly included the matrimonial home at 2 Denning Street, South Coogee.
Gabrielle was born in 1990 from her mother's first marriage and Sean was born in 2004. Robert has six children, four with his first wife and two with his current partner, Ms Jacqueline Varela.
From about 2005, the relationship between the deceased and her husband began to deteriorate.
In April 2007, the deceased made a will by which she left the whole of her estate after the payment of expenses to be divided equally between her two children.
In about 2010, the deceased and John separated, although they never formally divorced. The separation was acrimonious and caused a wider split in the relationships between different members of the family, with Robert taking his mother's side in the separation and Jenny taking her father's side. The relationship between the deceased and Jenny deteriorated substantially during this time to the point where the deceased said in her final will (quoting from the English translation): I don't want Jenny Angius to come to my funeral after she bashed me up for years
Following the separation, the deceased consulted Ms Giannakopoulos, who worked for Kydon Segal Lawyers, in relation to a property settlement. Between April 2011 and November 2011 the deceased and John entered into a number of agreements dealing with the properties they owned in a rather haphazard way. It will be necessary to say more about some of them shortly.
On 9 September 2011, the deceased commenced court proceedings against John and Jenny seeking orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of the matrimonial home at 2 Denning Street and the sale of a property at 46 Denning St, South Coogee. The property at 46 Denning Street is Jenny's home. At the time the proceedings were commenced, the deceased and John owned a two-thirds interest in the property as joint tenants. The remaining one third was owned by Jenny as tenants in common with her parents. The property was the subject of a mortgage to the deceased and John, who held the mortgage as joint tenants.
On 6 October 2011, the deceased and John entered into an agreement (the Separation Agreement) dealing with a number of the properties they owned jointly at the time. That agreement was modified on 15 November 2011 by a Deed of Variation that was entered into in connection with the settlement of the court proceedings that the deceased had commenced. On 16 November 2011, the deceased and John entered into a handwritten agreement (the Handwritten Agreement) which purported to make further amendments to the Separation Agreement and, on 18 November 2011, the parties to the proceedings filed consent orders in relation to the proceedings which dealt with the matrimonial home at Coogee (the Consent Orders).
The validity and effect of these arrangements is the subject of proceedings commenced by John in which Mr Salier is the defendant and cross claimant (the Set Aside Proceedings). Those proceedings have not yet been determined. However, it is apparent from the agreements that John was to transfer his interest in a number of properties he owned jointly with the deceased to her. Under the Separation Agreement, those properties were unit 19 and shop 5 at 8 Allen Street, Waterloo. In exchange, the deceased was to transfer her interest in a number of the properties she owned jointly with John to him. Some other properties were to be sold and the proceeds of sale were to be paid to the parties in accordance with the agreement. The Handwritten Agreement provided, among other things, that the tenancy of 46 Denning Street be changed in order that John, the deceased and Jenny become joint tenants. It also provided that the "rent or sale" in respect of units 19, C5 and 24, 8 Allen Street, Waterloo, "goes to Laura [that is, the deceased]". There can be little doubt that the reference in the Handwritten Agreement to "C5" is a reference to the property described as "Shop 5" in the Separation Agreement. In addition, under the line in the handwritten agreement dealing with unit 24 is the following statement: Laura agrees to sell to Gabrielle (granddaughter) John & Laura will pay GST for this unit That statement appears to be a statement in relation to unit 24.
The Consent Order deals with the matrimonial home. It provides for the deceased to transfer her interest in that property to John, for John to pay the deceased the sum of $2,200,000 and to arrange for the discharge of a mortgage over the property in the amount of approximately $3,200,000 and for the property to be sold and for the net proceeds of sale to be divided between them equally. If the property was not listed for auction by 15 January 2012 or was not sold at auction, trustees for the sale of the property were to be appointed in accordance with s 66G of the Conveyancing Act.
On 15 December 2011, the deceased had a conference with Mr Vlahakis to give instructions in relation to the drafting of a formal will. Mr Vlahakis took a handwritten file note of that meeting.
At the time of her death, the deceased was a shareholder in each of the following companies: 1. Togumi Pty Ltd, which owns the property known as the "Fitzroy Hotel" at 161 George Street, Windsor and a one-half interest in the property known as 167 George Street, Windsor. That latter property is tenanted by an entity which the deceased referred to as "Go Lo" when giving instructions to Ms Giannakopoulos; 2. Angius Investments Pty Ltd, which owns the property known as 180-182 Coogee Bay Road, Coogee; 3. Angius Hotel Investments Pty Ltd, which owns the property known as the New Albury Hotel at 491 Kiewa Street, Albury; 4. J & L Angius Pty Ltd, which owns the property known as "Sodens Hotel", 459 Wilson Street, Albury; 5. Tararba Pty Ltd, which owns the property known as 29-31 Alfreda Street, Coogee. The deceased's precise shareholding in each company varies from company to company. In substance, however, the deceased owned 50 percent in the shares in each company and John owned the remaining 50 percent.
In addition, the deceased owned in her own name the property at unit 8/8 Allen Street, Waterloo. According to an inventory of property prepared by Mr Salier, the deceased's estate also included cash held in various bank accounts totalling approximately $1,591,000, some shares in the Commonwealth Bank, personal effects and jewellery valued at approximately $200,000 and a caravan.
Following the deceased's death, John lodged notices of death dated 10 May and 30 May 2012 at the Land and Property Management Authority with the result that he is now the sole registered owner of all properties they held as joint tenants. That includes the property at 2 Denning Street, their interest in the property at 46 Denning Street and their interests in units 19 and 24 and shop 5 in the mixed strata development known as 8 Allen Street, Waterloo.
In addition, three other properties should be mentioned.
First, Robert is the registered proprietor of the property known as 74 Wild Street, Maroubra. A mortgage in favour of the deceased and her husband is registered over that property. They held that mortgage as joint tenants.
Second, John is the registered proprietor of the property known as 110 Dunning Avenue, Rosebery. It appears that that property was the subject of an agreement dated 12 April 2011 between the deceased and John which stated that the property "is to be retained by John and he is to personally assume the mortgage of $600,000". The status of that agreement is unclear.
Third, the deceased and John were joint owners of a property at 823-825 Botany Road, Rosebery. That property was also referred to in the agreement dated 12 April 2011. The agreement stated that the total rent in respect of a number of properties including that one was "to be dispersed 50/50 between Laura and John".

Relevant legal principles

The general principles applicable to the construction of wills are not in dispute. The task of the court is to give effect to the "expressed intentions" of the testator, which requires the court to give to the language of the will the meaning that, according to the terms of the will and the circumstances in which it was made, the testator can be said to have intended: Perrin v Morgan [1943] 1 All ER 187 at 190 per Viscount Simon LC, and at 197 per Lord Romer; Fell v Fell (1922) 31 CLR 268. The court is not concerned with "what the testator intended in some general sense, but what he intended by the words in his will" [emphasis in original]: R Kerridge, Hawkins on the Construction of Wills (5th ed, 2000, Sweet & Maxwell) at 36.
It is some times said that the court is to put itself in the "armchair of the deceased" and in doing so to construe the words in the will knowing what the deceased knew: see G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Law Book Co) at 142.
The will must be construed as a whole: Crumpe v Crumpe [1900] AC 127. In applying that principle, courts have often sought to identify "the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect to the scheme": Coorey v George (Supreme Court of NSW, Powell J, 27 February 1986, unreported), approved in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 32-3. The relative importance of the overall scheme of the will is greater where the "language [of the will] is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely". Conversely, "where the terms of the will are perfectly clear search for the scheme would be of little use": Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ.
These principles are illustrated by the decision of the High Court in Hendry v The Perpetual Executors and Trustees Association of Australia Ltd (1961) 106 CLR 256. In that case, the testator was a partner in a partnership that owned both land and livestock. By his will he left "all my livestock" to a nephew. He described the balance of his estate as "all my real estate" and "the residue of my personal estate". He left the proceeds of the conversion of the former to the sons of a cousin in equal shares and the proceeds of conversion of the latter to his sister. The question in the case was how the testator's estate was to be distributed given that he owned neither livestock nor real estate. In answering that question the High Court said (at 266-7): [T]he enquiry is not what rights did the plaintiff have by virtue of the partnership upon the death of the testator nor even what were the testator's rights as a partner but what did he mean when in his will he used the words "my livestock" and "my real estate" when he had none of his own but he was a member of a partnership which had both livestock and real estate. This question is not to be answered by any strict legal analysis of the rights of the testator as a partner during his life and certainly not by considering the rights of his personal representative after his death. What has to be done is to determine what the testator meant by his words in his will and when the will is looked at in the light of the circumstances as they existed immediately before his death the conclusion is inevitable that he was dividing what he had into three parts, and that he was disposing separately of whatever interest he had in livestock (which could only be his partnership interest), of the net proceeds of whatever interest he had in land (which, again, could only be his partnership interest), and of the net proceeds of whatever interest he had in personalty other than livestock.
The court may also take into account the intentions of the testator if the will is ambiguous in the light of the surrounding circumstances. Section 32 of the Succession Act 2006 (NSW) provides: 32 Use of extrinsic evidence to construe wills (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will: (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances. (2) Despite subsection (1), evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
The court should seek to adopt a construction of the will that avoids intestacy: Fell v Fell (1922) 31 CLR 268. That general rule of construction is supplemented by s 42 of the Succession Act, which provides: 42 Construction of residuary dispositions (1) A disposition of all, or the residue, of the estate of a testator that refers only to the real estate of the testator, or only to the personal estate of the testator, is to be construed to include both the real and personal estate of the testator. (2) If a part of a disposition in fractional parts of all, or the residue, of the testator's estate fails, the part that fails passes to the part that does not fail, and, if there is more than one part that does not fail, to all those parts proportionally. (3) This section does not apply if a contrary intention appears in the will.
Similarly, the court should adopt a construction which preserves the validity of a gift rather than destroys it: Langston v Langston (1834) 2 Cl & Fin 194; (1834) 6 ER 1128.

Which document is to be interpreted?

In the present case, the will was written in Italian and letters of administration were granted in respect of a copy with a translation annexed. The grant was expressed to be "limited until the original is brought into the Registry".
The copy of the will which was annexed to the grant was not of good quality, and, as I have said, it is apparent from the translation that the translator was unable to decipher a number of words in the will. A better copy of the will was made available to the court during the course of the hearing.
Mr Willmott SC, who appeared for the plaintiff, submitted that the court was bound to accept the translation attached to the grant of the letters of administration and the court could only go behind the translation if the grant were revoked and a new grant was made in respect of an alternative translation. As a result, he submitted that expert evidence sought to be led by the first defendant concerning the correct translation of the will was not admissible in determining the true construction of the will.
I do not accept that submission. The document in respect of which letters of administration have been granted is the deceased's will as identified by Hallen J. Because the original was not available a copy of the will was annexed to the grant and the grant was expressed to be limited. But it is clear that the grant is in respect of the document identified by Hallen J as the deceased's will. What must be interpreted is that document. Each of the parties expressly or impliedly accepted that the court could have regard to the better copy of the will which was provided to the court during the course of the hearing for the purposes of interpreting the will.
The deceased's will is the document written in Italian, not the English translation. It is in respect of that document that the letters of administration have been granted. The translation is annexed to the grant as an aid in understanding the will which is the subject of the grant. In my opinion, it is open to the court to receive expert evidence concerning the correct meaning of the will, particularly where, as in this case, the translator giving that expert evidence has had regard to what is likely to be a better copy of the will than the copy from which the translation annexed to the grant of letters of administration was prepared.
The conclusion of the previous paragraph is supported by the decision of In re Manners; Manners v Manners [1923] Ch D 220. In that case, Eve J explained (at 224) the approach to be taken where the will was in Spanish and a translation was registered with the original: Here the Spanish will has been admitted to probate in England and a translation into English has been registered with the original. These facts bring the case within the authority of Reynolds v Kortwright [18 Beav 417], and reading this as an English will I must look at the effect of the Spanish language in order to ascertain what are the equivalent expressions in English. Merely looking at the will does not advance me in that direction; I require the assistance of those conversant with both languages. I start with the registered translation certified to be a true and faithful translation from Spanish into English of the will and therein I find the word over which the controversy has arisen is translated into "bonds". Additional evidence has been produced to the effect that such translation of the word is correct and proper. This has been met by further evidence that the word in question, "bonos", is an antiquated word no longer to be found in current Spanish dictionaries and that it was formerly used as an adjective meaning "good". In this condition of affairs I do not feel justified in holding that those on whom the burden lies of showing that the will has been mistranslated have established their case. That decision was cited with approval by Young CJ in Eq in Kobras v Lutheran Church of Australia Inc [2005] NSWSC 817.
It follows that the court can go behind the translation annexed to the grant of letters of administration. However, the onus is on the party contending for a different translation to persuade the court that that is the one that should be adopted.

The questions

Before turning to the specific questions raised by the summons, it is necessary to make some general observations about the will.
First, in my opinion, it is doubtful that the deceased intended the first three numbered paragraphs to identify gifts that she intended to make. Rather, those paragraphs appear to be notes of matters relevant to her will. The parties agree that it is difficult to make sense of the paragraph numbered 1). Using the best copy of the will that is available, no one is able to give an explanation for what the illegible word is. The paragraph does not refer to any specific property. The paragraph numbered 2) is obviously a reference to 46 Denning Street. All parties accept that that is so. There is no other property in which the deceased had an interest to which the deceased could be referring. The deceased appears to be recording the fact that as between her and John on the one hand, and Jenny on the other, the property was held as tenants in common. That may have had some significance to the deceased because she and John had agreed in the Handwritten Agreement that the basis on which the property was owned should change. It is possible that paragraph 3) is intended to record a gift of a half share of 2 Denning Street to a person who cannot be identified. However, in my opinion, it is more likely that the paragraph simply records the fact that 2 Denning Street is to be sold and the proceeds of sale are to be split between them equally "because there are problems with the Bank". The problems with the Bank were, presumably, the substantial mortgage over the property. This interpretation of the will is supported by the fact that the deceased started to renumber the paragraphs with the first clear gift to the Children's Hospital in Randwick.
Second, leaving aside the first three numbered paragraphs, the structure of the will is simple. There is a gift to the Children's Hospital. Although it is not apparent from the translation, the next line reads "All properties to Roby Angius", with something crossed out at the end. The words commencing "at my death …" appear on the next line, although there was room to include the first word on the previous one. In my opinion, it is likely that the break in the lines reflects the fact that the deceased intended that her statement that "all properties to Roby Angius" was to operate as an independent proposition. The balance of the next two lines (of the translation) deals with what was to happen to rents at her death (they were to go immediately to Robert) and what was to happen "if Roby wants to take some properties". It will be necessary to return to the question of precisely what the deceased intended by these propositions. However, the general intention is clear. Subject to what follows, the deceased wanted all properties to go to Robert.
Next, the will deals with "Flat 24" and "Flat 19". The reference to those two flats is clearly a reference to the properties at 19/8 and 24/8 Allen Street Waterloo. They are the only properties in which the deceased had an interest which could be described as "Flat 24" and "Flat 19". Pursuant to the Handwritten Agreement those properties were to go "to Laura". It is apparent that the deceased had a clear understanding of the difference between ownership as joint tenants and as tenants in common. As is apparent from these gifts and others, the deceased sought to deal in her will with properties that she would no longer hold as joint tenant with her husband and which she understood she would be free to deal with by her will. Moreover, under the handwritten agreement the deceased had agreed to sell Flat 24 to Gabrielle. It is perhaps natural in those circumstances that the deceased would choose to leave that unit to Gabrielle.
The only other disposition of property made by the will is on the second page. The translation annexed to the grant of letters of administration is somewhat misleading and the copy of the original will that is annexed is itself not easy to follow. However, it is clear from the better copy that was made available during the course of the hearing that the material starting with "The debt on 46 …" and ending with the words in the translation "Dowling [?] St" is intended to be a list of properties (or, in the case of the first item on the list, a debt). The list goes both down and across the page and, in most cases, individual properties are separately underlined. The list is clearly bracketed on the left hand side and immediately under the bracketed material are the words "To go to Roby Angius".
Third, I accept the first defendant's submission that, when properly understood, the list is a list of properties that the deceased owned, had an interest in through corporations or expected to own as a consequence of agreements she had entered into with John. It is not easy to read the deceased's writing and there may be differences of view on the precise spelling that the deceased has adopted. However, I largely accept the first defendant's submission that the list reads as follows: The debt on 46 my share is to go to Roby Angius Flat 8 and the architect's office to Roby Angius 74 Wild St [to] Roby Angius Sondens NEW Albry Winsa Galo Allreda St Coogee Bay Rd Rosebery Dunding St It may be that "Galo" is actually "Golo" and "Rosebery" is more like "Rosbey" or "Rosbry". But I think the former must be a reference to "GoLo" and the latter a reference to "Rosebery".
The reference to "46" is plainly a reference to 46 Denning Street. The deceased understood that that property would be held as joint tenants. Consequently, she understood that she could not deal with the property itself under her will. However, that left the amount that Jenny owed her and John. She may not have appreciated that the mortgage she and John held was itself joint. If that is the case, given the breakdown in the relationship between her and Jenny, it was natural for her still to seek to deal with her share of the mortgage and to give it to Robert.
Flat 8 is clearly a reference to unit 8/8 Allen Street, Waterloo. That is the only property that was owned by the deceased that could be described as "Flat 8". Moreover, the reference to the architect's office must be a reference to unit C5/8 Allen Street, Waterloo. The evidence is that shop C5 was frequently referred to as "the architect's office". For example, Ms Giannakopoulos says in an affidavit she swore that, when the deceased gave her instructions in relation to proposals that led to the Separation Agreement, the deceased referred to "the architect's office" and that Ms Giannakopoulos understood that to be a reference to shop C5. Ms Giannakopoulos also says that, when she explained the effect of the Separation Agreement to the deceased and John, she did so by reference to a plan showing the strata units and that she pointed to Shop 5 (which she described in her affidavit as "the architect's office") as one of the units the subject of the agreement.
The reference to "74 Wild St" must be a reference to Robert's home. It is not clear why the deceased felt it was necessary to deal with this property in her will, since it is already owned by Robert. However, the deceased and John held a mortgage over that property as joint tenants and it may be that the deceased intended that that property would be free of any mortgage.
J & L Angius Pty Ltd owns the Sodens Hotel in Albury. The reference to "Sodens" in the will must be a reference to that hotel. Similarly, the reference to "NEW Albry" must be a reference to the New Albury Hotel, which is owned by Angius Hotel Investments Pty Ltd. In context, the reference to "Winsa" must be a reference to the Windsor Hotel and the reference to "Galo" or "Golo" must be a reference to 167 George Street, Windsor which is occupied by "Go Lo". Both those properties are owned by Togumi Pty Ltd. The reference to "Allreda" is likely to be a reference to the property known as 29-31 Alfreda Street, Coogee, which is owned by Tararba Pty Ltd, and the reference to "Coogee Bay Rd" must be a reference to 180-182 Coogee Bay Road, Coogee, which is owned by Angius Investments Pty Ltd. In my opinion, those references are obvious once it is appreciated that the deceased had an indirect interest in each of the properties through the relevant companies and she obviously sought to deal in her will with all the properties owned by each company. It was natural for her to use abbreviations with which she was no doubt familiar and her spelling of a number of the names can be explained by her evident poor command of written English.
I accept the first defendant's submission that the reference to "Rosebery", "Rosbey" or "Rosbry" and the reference to "Dunding St" are likely to be references to the properties at 823-825 Botany Road, Rosebery and 110 Dunning Avenue, Rosebery. Both properties were referred to in the 12 April 2011 agreement and for that reason the deceased may have thought that she was able to deal with them in her will. However, there is not evidence that the deceased had an interest in those properties at the time of her death.
Fourth, the interpretation of the specific gifts to Robert is supported by the fact that when those gifts, interpreted in the way that I have, are taken together with other gifts made in the will, it is apparent that the deceased has sought to deal in her will with all properties in which she thought she held a direct or indirect interest other than as joint tenant with her husband. The only exception is the matrimonial home. That property is referred to in the will. However, there is no specific gift of her interest in it to Robert or anyone else. That can be explained by the fact that, under the Consent Orders, the deceased had agreed to transfer that property to John on the basis that the property would be sold and she would be entitled to half the proceeds of sale. Looked at in that way, the will operates as a coherent whole. After the gift to the Children's Hospital, it contains a general statement of principle in relation to all the deceased's "properties" and the balance of the will gives effect to that general statement by specific gifts subject to the two exceptions in favour of Jenny's children.
Fifth, that interpretation of the will is also consistent with the surrounding circumstances. By her 2007 will, the deceased left her whole estate to be divided equally between her two children. Since making that will, she fell out with her daughter following her separation from her husband. It would be natural in those circumstances for the deceased by her new will to leave most of her estate to her son.
Against that background, it is possible to turn to the specific questions raised by the summons.

Paragraph 2 of the summons

Question 1 is: 2. On the true construction of the number and words viz - "1) [illegible word] of the Flat" - appearing in the first line of the translation of the said document whether such fails for uncertainty?
All parties accept that it is not possible to identify the property or beneficiary that this paragraph of the will is intended to deal with. Consequently, if the deceased intended to make a gift by the words in question, it must fail for uncertainty. The answer to the question is: yes.

Paragraph 3 of the summons

Question 2 is: 3. On the true construction of the number and words viz - "2) 46 Jonh [sic] and [intelligible name] tenat [sic] in common" - appearing in the second line of the translation of the said document: (a) whether it is a valid and effective devise of the deceased's interest in the property, if any, situate and known as 46 Denning Street, Coogee and being the property in Folio Identifier 1/721830; (b) and, if so, whether the beneficiary entitled to take the same is John Angius, or, if it is not that person, the identity of the beneficiary; and (c) whether that beneficiary takes the whole of the interest in the aforesaid property, or, if not, the quantum of that interest?
For the reasons I have given, in my opinion "46" is a reference to the property at 46 Denning Street, South Coogee. The first defendant submits that the effect of this clause of the will may depend on the outcome of the Set Aside Proceedings. How that could be so is not explained. The deceased and John were joint tenants of their interest in the property at the time of the deceased's death. There was nothing in the agreements entered into between the deceased and John that changed that position. Moreover, for the reasons I have given, the clause was not intended to be a bequest of any interest in that property. It follows that the answers to the questions must be (a) No; (b) Not necessary to answer; (c) Not necessary to answer.

Paragraph 4 of the summons

Question 3 is: 4. On the true construction of the numbers and words viz - "3) The sale 2 Denning Street ½ [illegible name] and ½ Jon [sic] because there are problems with the Bank" - appearing in the third and fourth lines of the translation of the said document: (a) whether it is a valid and effective devise of the property situate and known as 2 Denning Street, South Coogee and being the property in Folio Identifier 20/1902 or, if not, whether it is a bequest of the proceeds of sale of that property, or such other moneys, to which the said deceased was entitled to receive pursuant to Consent Orders filed on 18 November 2011 in Common Law proceedings Case No. 2011/29075; (b) whether the beneficiary referred to as Jon refers to John Angius, or if it is not that person, the identity of the beneficiary; and (c) whether that beneficiary is entitled to receive one half of the said proceeds of sale and, if so, how the other one half of the proceeds of sale are to be disposed of?
For the reasons I have given, I do not regard the relevant clause as setting out a bequest that the deceased intended to make. The questions should be answered as follows: (a) No (both limbs); (b) Not necessary to answer; (c) Not necessary to answer.

Paragraph 5 of the summons

Question 4 is: 5. On the true construction of the numbers and words viz - "1) 10,000 to the Children [sic] Hospital in Randwick/5000 every year in memory of the mother" - appearing in the fifth and sixth lines of the translation of the said document: (a) whether it makes a bequest of $10,000 to the Children's Hospital in Randwick or, if not, the nature of such gift, if any; (b) whether the reference to 5,000 involves a purported gift of $5,000 to the Hospital and, if so, whether such is uncertain by reason that it purports to require a payment for an indeterminate number of years?
The first part of this bequest is clearly a bequest of $10,000 to the sixth defendant. The question is what is meant by the words "5000 every year in memory of the mother".
Ms Culkoff, who appeared for Robert, submitted that in answering that question the court, relying on s 32 of the Succession Act, could have regard to Mr Vlahakis's file note dated 15 December 2011. That file note records the following: $10,000 to Randwick Children's Hospital $5,000 to RCH per year for 20 years Robert Angius (son) to be trustee In my opinion, Mr Vlahakis's file note is evidence of the deceased's intention at the time that she met Mr Vlahakis. Moreover, it is apparent from what I have said that the deceased wrote out her will after the Separation Agreement was signed and the Consent Orders were made, since her will takes into account what the deceased might reasonably have understood were the effect of those documents. The likelihood is that the deceased wrote out her will shortly before she met Mr Vlahakis, intending what she wrote to operate as her will until a more formal document could be prepared. However, it does not follow that evidence of the deceased's intention at the time she met with Mr Vlahakis is admissible under s 32. Evidence of intention is admissible under s 32 "to assist in the interpretation of the language used in the will" where that language is meaningless or ambiguous. But the question is still what the deceased intended to mean by the words that she used in the will, not what she intended at some other point in time. In this case, the problem is not merely that the language of the will is meaningless or ambiguous. Rather, the gift is too vague to be enforceable. The language of the will is not being construed by reference to the file note but rather the file note and the intention that it reveals is sought to be used to supplement the will to give content to a gift that is otherwise too vague to take effect. That is not permissible.
It follows that the question should be answered: (a) Yes; (b) Yes. The balance of the gift fails for uncertainty.

Paragraph 6 of the summons

Question 5 is: 6. On the true construction of the words viz - "All properties to Roby Angius at my death the rent to go immediately to Roby Angius if Roby wants to take some properties first he has to give his father a choice" - appearing in the seventh, eighth and ninth lines of the said document: (a) whether they are a valid and effective gift to Robert Angius or, if it is not that person, the identity of the beneficiary; (b) whether the word properties involves a valid and effective gift of all realty not otherwise disposed of by the said document or whether that word refers to all property both real and personal not otherwise disposed of; and (c) the meaning and effect of the words "if Roby wants … father a choice"?
It is plain that the gift is a gift to Robert. That much is not contentious. However, the answers to the remaining questions are. It is Robert's position that this clause is a residuary clause and that its effect is to leave the whole of the residue of the deceased's estate to him. The position taken by John and Jenny is that the clause only disposes of real property not otherwise disposed of by the will. In their submission, the clause does not deal with the deceased's shareholding in the companies that owned property or any other assets of the deceased. Mr Willmott made submissions suggesting a middle ground. The clause included the shares in the companies, but does not include other assets of the deceased.
To some extent, the debate centred on the word "properties". The second and third defendants submitted that that word conveys the notion of real property and that was reinforced by the statement "at my death the rent to go immediately to Roby". The reference to "rent" indicates that what the deceased was referring to was real property. To deal with this submission, Robert led expert evidence from a translator who gave evidence that the Italian word that has been translated as "properties" (proprieta) in the context in which it appeared was ambiguous and could refer either to real property or property more generally.
In my opinion, the preferable construction is the one advanced by Robert.
As I have said, the words "All properties to Roby Angius" are intended to be a statement of the deceased's general testamentary intention. The statement was made in a context where the deceased's previous will had left the whole of her estate to be divided equally between her two children. It seems clear that the deceased wanted to change her will to give the bulk of her estate to Robert because she had fallen out with Jenny and she knew her husband had fallen out with Robert as a result of her and her husband's separation. It is evident from the deceased's subsequent specific gifts made to Robert that she intended to include the shares she held in the various companies in her gifts to him. That is what she must have meant when she referred to the properties owned by those companies. There is no evidence to suggest that the companies did anything other than hold real estate and it would be natural in those circumstances for the deceased to refer to her interest in those companies by reference to the real estate they held, which is what she did.
I accept Mr Willmott's submission that to some extent this conclusion is supported by the statement in the will that "at my death the rent to go immediately to Roby Angius". The evidence is that, before the deceased's death, rent earned by the companies was divided between the deceased and John and paid into their bank accounts. The deceased would have appreciated that Robert was not in a position to sell the properties owned by the companies or to bring about their sale, at least immediately. It is for that reason that she said the rent was to go immediately to Robert following her death.
The evidence is that the Italian is ambiguous concerning whether the reference to "properties" is a reference to real property or property more generally. In the context, it is likely to have the broader meaning.
In any event, it is plain that by the clause in question the deceased intended to leave the residue of her real property to Robert. It follows that, under s 42 of the Succession Act, the reference to "properties" is to be construed to include both the real and personal estate of the deceased unless a contrary intention appears in the will. No such intention appears in the will.
It is not clear what is meant by the words "if Roby wants to take some properties first he has to give his father a choice". There is a question whether the Italian verb translated as "to take" was really intended to be the verb "to sell", which involved reading "pr" as "v". However, in at least one other place the deceased has used the same symbol in a way that must be read as a "p", and in my opinion the word in the will is "prendere", which it is accepted is correctly translated as "to take". In my opinion, the clause in question is a statement that if any properties that Robert owns jointly with his father as a result of the gifts made to him by the deceased are to be sold, Robert must first give his father an opportunity to buy them and that he can only "take" (that is, buy) them himself if his father does not want to do so. However, that requirement is not a condition of the gift. It is difficult to see how the statement could operate as a condition. Moreover, the statement can only apply to the properties held through companies. The other properties that the deceased owned jointly with her husband were held as joint tenants. They either passed to John on her death or they were dealt with by one or more of the agreements between them, in which case the property was either to be sold or to be transferred to the deceased absolutely. It is apparent from later provisions of the will that the deceased intended to give her interests in the properties held through companies unconditionally. In my opinion, the statement is an expression of the deceased's wishes.
It follows that that questions should be answered as follows: (a) The gift is to the first defendant, Robert Angius; (b) The gift is a valid and effective gift of all the deceased's assets other than those specifically disposed of by the will; (c) The words express the deceased's wish that if any properties that the first defendant will own directly or indirectly with his father as a result of gifts made by the deceased are sold, then his father be given a first right to acquire those properties.

Paragraph 7 of the summons

Question 6 is: 7. On the true construction of the number and words viz - "Flat 24 to Gabrielle Angius" - appearing in the tenth line of the translation of the said document: (a) whether it refers to the property situate and known as 24/Allen [sic] Street, Waterloo and being the property in Folio Identifier 24/SP84149 (b) and, if so, whether by reason of the provisions of clause 6 of the Separation Agreement made 6 October 2011 between the said deceased and John Angius, the same is a valid and effective gift?
I have already indicated that in my opinion the reference to Flat 24 is a reference to 24/8 Allen Street, Waterloo. If the deceased was entitled to the unit under one or more of the agreements she entered into with John, it is clearly a valid gift to the fifth defendant. Consequently, the answers to the questions are: (a) Yes; (b) Yes - assuming the property forms part of the deceased's estate.

Paragraph 8 of the summons

Question 7 is: 8. On the true construction of the number and words viz - "Flat 19 [to] Shon [sic] Bates but if Jenny Angius … Hospital in Randwick" - appearing in the eleventh, twelfth and thirteenth lines of the translation of the said document: (a) whether it is a valid and effective devise of the property situate and known as 19/8 Allen Street, Waterloo and being the property in Folio Identifier 19/SP84149; (b) and, if so, whether the beneficiary entitled to take is Sean Batten, or, if it not that person the identity of the beneficiary; and (c) whether the condition purportedly attaching to that gift is valid?
Again, I have already indicated that the reference to "Flat 19" is a reference to 19/8 Allen Street, Waterloo. The reference to "Shon Bates" is clearly a reference to Sean. The gift is expressed to be conditional on there not being an "attack" by Jenny on Robert. Robert's position is that the condition on the gift is valid, that Jenny's position in these proceedings is an "attack" on Robert, but nonetheless Robert intends to honour the gift to Sean. How he could do so is not explained.
In my opinion, the condition on the gift is too uncertain to be enforceable. It is not clear how the condition operates or in what circumstances it is intended to operate. It appears from the following paragraph that Robert is to hold the property on trust for Sean until Sean turns 25. It would presumably be possible for Robert to sell the property if he is attacked by Jenny before that time. But what is to happen after? And, more significantly, what involves an attack on Robert? It cannot mean an involvement in proceedings concerning the correct construction of the will. It is possible that the deceased meant that the gift to Sean should lapse if Jenny brought family provision proceedings. But that involves an attack on the will, not on Robert. It is at least possible that, if Jenny succeeded in family provision proceedings, any order for provision could come out of the bequests to Gabrielle and Sean. In my opinion, the condition is void for uncertainty.
It follows that the questions should be answered: (a) Yes; (b) The fourth defendant; (c) No.

Paragraph 9 of the summons

Question 8 is: 9. On the true construction of the number and words viz - "After my death the rent from 19 must be put aside for him at 18 years [of age] to take what is in the bank both for his studies and whatever else he needs. Roby Angius will look after Shon's interest at 25 years [of age] the Flat will be his" - appearing in the fourteenth, fifteenth and sixteenth lines of translation of the said document is a gift of the said property at 19 Allen Street, Waterloo to the said Sean Batten conditional upon his attaining the age of 18 years or, if not, the nature and extent of such gift, if any?
In my opinion, the effect of these words is reasonably clear. The property is to be held on trust by Robert for Sean. The income derived from the property is to be accumulated until Sean turns 18. The income including any amount accumulated is then to be applied for Sean's benefit. The corpus of the trust is to be transferred to Sean when he turns 25. The only issues are whether the deceased intended any distribution of income to be made to or for the benefit of Sean before he turns 18 and whether there is any restriction on his use of the income after he turns 18. Mr Willmott suggested that Robert was free to apply the income earned before Sean turned 18 to his maintenance, education and advancement in life and was to pay the income to Sean after that time as and when it fell due. Mr O'Loughlin suggested a slightly different interpretation. He submitted that Sean obtained the legal title to the property immediately, that Robert was only trustee of the rent, which was to accumulate until Sean turned 18, at which point it was to be used for his education and advancement in life.
I do not accept that the deceased intended legal title to the property to pass immediately to Sean. It seems clear from the statement "at 25 years the Flat will be his" that Sean was not to have legal title to the flat before he turned 25. On the other hand, the interpretation proposed by Mr Willmott does not give sufficient weight to the words "the rent from 19 must be put aside for him at 18 years". Moreover, it seems to me that the following words, "to take what is in the bank both for his studies and whatever else he needs" are intended to state what is to happen when Sean turns 18. The effect, in my opinion, is that income earned from the property is to accumulate until Sean turns 18. The phrase "whatever else he needs" is so broad that I think those words must be interpreted as saying that from the time Sean turns 18 the amount that has accumulated and future rents are to be paid to him to be used as he sees fit.
It follows that the answer to question 9 is that the property at 19/8 Allen Street Waterloo is to be held by the first defendant on trust for the fourth defendant until the fourth defendant turns 25, at which time the property is to be transferred to him. The income derived from the property is to be accumulated until the fourth defendant turns 18, at which time the amount accumulated and future income is to be paid to the fourth defendant as and when it is earned.

Paragraph 10 of the summons

Question 9 is: 10. On the true construction of the number and words viz - "the debt on 46 my share is to go to Roby Angius" - appearing in the nineteenth line of the translation of the said document: (a) whether it refers to the interest, if any of the said deceased in a mortgage over the property situate at 46 Denning Street, Coogee or, if not, the precise nature and effect of the purported gift, if any; and (b) whether the person named is Robert Angius, or if not that person, the identity of the beneficiary?
The mortgage was held by the deceased and John as joint tenants. There is nothing to suggest that the deceased and John reached some agreement in relation to the mortgage before the deceased's death. It follows that the deceased's interest in the mortgage passes to John. The gift to Robert is ineffective. The question should be answered: no effective gift is made by these words in the will.

Paragraph 11 of the summons

Question 10 is: 11. On the true construction of the number and words viz - "Flat 8 and the architect's office to Roby Angius" - appearing in the twentieth line of the translation of the said document: (a) whether it is a valid and effective devise of the property situate and known as Unit 8, 8 Allen Street, Waterloo being the property in Folio Identifier 8/SP84149; (b) and, if so, whether the beneficiary entitled to take the same is Robert Angius, or, if it is not that person, the identity of the beneficiary; and (c) whether the identity of the asset described as 'architect's office' is the property situated at and known as "Shop 5" or "C5" of 8 Allen Street, Waterloo being the property in Folio Identifier 32/SP84149, or, if it is not that property, the precise identity of the property?
I have already dealt with this question. The question should be answered: (a) Yes; (b) Yes; (c) Yes.

Paragraph 12 of the summons

Question 11 is: 12. On the true construction of the number and words viz - "74 Wild St [to] Roby Angius" - appearing in the twenty first line of the translation of the said document: (a) whether it refers to the interest, if any, of the said deceased in a mortgage over the property situate at 74 Wild Street, Maroubra being the property in Folio Identifier 4089/752015, or, if not, the precise nature and effect of the purported gift, if any, and (b) whether the person named is Robert Angius, or if it not that person, the identity of the beneficiary?
I have already indicated that the reference to "74 Wild St" is a reference to 74 Wild Street, Maroubra, which is Robert's home. The property is owned by Robert. The deceased and John held a mortgage over the property as joint tenants. There is no evidence that they reached an agreement in relation to that mortgage. Consequently, the deceased's interest in the mortgage passed to John on her death. The answer to the question must be that no effective gift is made by these words in the will.

Paragraph 13 of the summons

Question 12 is: 13. On the true construction of the words viz - "[illegible name] NEW Alby [illegible word] Galo/[illegible name] St Coogee Bay Road/Rosebery[?] Dowling [?] St to go to Roby Angius" - appearing in the twenty second, twenty third, twenty fourth and twenty fifth lines of the said document: (a) Whether the words "New Alby" refer to the property known as the New Albury Hotel at 491 Kiewa Street, Albury, being the property in Folio Identifier 2/64740; (b) And if so, whether the words are a valid and effectual gift of the deceased's 1 fully paid ordinary share in the company Angius Hotel Investments Pty Ltd which owns that property; (c) And if so, whether the intended beneficiary of the gift is Robert Angius and if not that person, the identity of the beneficiary; (d) Whether the words "Coogee Bay Road" refer to the property known as 180-182 Coogee Bay Road, Coogee, being the property in Folio Identifier 16/SP22899; (e) And if so, whether the words are a valid and effectual gift of the deceased's 1 fully paid ordinary, 1 "B" class and 1 "D" class shares in Angius Investments Pty Ltd which owns that property; (f) And if so, whether the intended beneficiary of the gift is Robert Angius and if not that person, the identity of the beneficiary; (g) Whether the words otherwise fail for uncertainty or, if not, the precise nature of the purported gifts?
I have already largely dealt with this question. I have indicated which properties in my opinion are identified by the will. A number of those properties were owned by companies in which the deceased had what effectively was a 50 percent shareholding. It is apparent that the deceased did not draw a distinction between properties that she held directly and those in which she held an indirect interest through her shareholdings in the relevant companies. It seems clear that in referring to the properties the deceased was referring to her shares in the companies that held those properties and, in my opinion, her gifts to Robert of her interests in the properties were valid gifts of the shares she held in the companies that owned those properties.
Accordingly, the question should be answered: by the words identified the deceased made valid gifts to the first defendant of all the shares she held in Togumi Pty Ltd, Angius Investments Pty Ltd, Angius Hotel Investments Pty Ltd, J & L Angius Pty Ltd and Tararba Pty Ltd. No other effective gift was made by the words.

Paragraph 14 of the summons

Paragraph 14 of the summons raises a general question concerning the position in the event that the deceased did not dispose of all of her assets by her will. I have concluded that the deceased did dispose of all her assets by her will. Consequently, it is not necessary to address that question.

Orders

The orders of the Court are that the questions raised by paragraphs 2 to 13 of the summons be answered as follows: 1. Paragraph 2: Yes. 2. Paragraph 3: (a) No; (b) Not necessary to answer; (c) Not necessary to answer. 3. Paragraph 4: (a) No (both limbs); (b) Not necessary to answer; (c) Not necessary to answer. 4. Paragraph 5: (a) Yes; (b) Yes. The balance of the gift fails for uncertainty. 5. Paragraph 6: (a) The gift is to the first defendant, Robert Angius; (b) The gift is a valid and effective gift of all the deceased's assets other than those specifically disposed of by the will; (c) The words express the deceased's wish that if any properties that the first defendant will own directly or indirectly with his father as a result of gifts made by the deceased are sold, then his father be given a first right to acquire those properties. 6. Paragraph 7: (a) Yes; (b) Yes - assuming the property forms part of the deceased's estate. 7. Paragraph 8: (a) Yes; (b) the fourth defendant; (c) No. 8. Paragraph 9: The property at 19/8 Allen Street Waterloo is to be held by the first defendant on trust for the fourth defendant until the fourth defendant turns 25, at which time the property is to be transferred to him. The income derived from the property is to be accumulated until the fourth defendant turns 18, at which time the amount accumulated and future income is to be paid to the fourth defendant as and when it is earned. 9. Paragraph 10: No effective gift is made by these words in the will. 10. Paragraph 11: (a) Yes; (b) Yes; (c) Yes. 11. Paragraph 12: No effective gift is made by these words in the will. 12. Paragraph 13: By the words identified the deceased made valid gifts to the first defendant of all the shares she held in Togumi Pty Ltd, Angius Investments Pty Ltd, Angius Hotel Investments Pty Ltd, J & L Angius Pty Ltd and Tararba Pty Ltd. No other effective gift was made by the words.
I will hear the parties in relation to costs at a time to be fixed with my Associate.

Amendments 16 September 2015 - Typographical error in paragraph 86: reference to Folio Identifier "31/SP84149" replaced with Folio Identifier "32/SP84149" 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: 16 September 2015

At a glance

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Judgment (20 paragraphs)

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Legislation Cited (2)

Cases Cited (6)

Cited By (9)