Parry v Haisma

Judgment 1HIS HONOUR: The plaintiff is the executor of the will of the late Hinka Haisma who died on 19 September 2009. The deceased left a will dated 1 October 2003. She appointed her de facto partner, Mr Richard Brewer, and her solicitor, Mr Parry (the plaintiff) as her executors and trustees. The will relevantly provided: "3. I GIVE the whole of my estate to RICHARD JAMES BREWER contingent upon him surviving me by 90 days, and if he does not survive me by 90 days, then and only then, clause 4 will apply. 4. I GIVE the whole of my estate to such of my nephews and nieces as survive me by 90 days, and if more than one in equal shares. 5. MY EXECUTOR has the following powers: a. In respect of property vested in them, the powers of a trustee for sale; b. With the consent of the recipient beneficiary, to appropriate in full or partial satisfaction of a share of my estate, any asset at a value acceptable to my Executor, without the necessity to obtain the consent of any other beneficiary. The exercise of this power will constitute a specific bequest by me of such asset to the beneficiary entitled, in lieu of the share of my estate it replaces; c. In their absolute discretion, to apply all or part of the income attributable to a share of my estate to which a beneficiary under 18 will become entitled to receive on attaining that age, for the benefit of that beneficiary; d. To invest in any shares or security quoted on the Australian Stock Exchange; e. To place money on deposit with any Bank in Australia or in acquisition of a bill of exchange on which any such Bank is liable." 2Richard Brewer survived the deceased, but he did not survive her by 90 days. Clause 4 is the operative provision of the will. 3The plaintiff seeks the following relief: "1 A determination of the following questions in relation to the estate of the late Hinka Haisma ('the deceased') who died on 19 September 2009 leaving a Will dated 1 October 2003 ('the Will'), probate of which was granted to the Plaintiff on 4 March 2010, namely whether on the true construction of the Will and in the events which have occurred, the gift by the deceased in clause 4 of the Will of 'the whole of my estate to such of my nephews and nieces as survive me by 90 days, and if more than one in equal shares' is a gift which includes: (1) Nephews and nieces of the whole blood (which includes the First to Seventh Defendants) and (2) Nephews and nieces of the half blood (which includes the Eighth to Twelfth Defendants) and (3) The children of Peter Brewer the brother of the deceased's (now deceased) partner Richard James Brewer (being the Thirteenth and Fourteenth Defendants). 2A An order pursuant to section 63 Trustee Act 1925 that the Plaintiff is justified in distributing the net estate to the parties determined by the Court to be the nephews and nieces of the deceased within the meaning of clause 4 of the will." 4The deceased was born on 11 January 1948. Her father Jan Pieter Haisma married twice. His first marriage was to the deceased's mother, Klaske Liezenga. They had four children, namely the deceased and her twin sister Trijnitje, also known as "Nynka", and two sons, Haye Haisma and Romke Haisma. The deceased did not have any children. Neither did her twin sister Nynka. The deceased's brother Haye had three children, being the first, second and seventh defendants, and her brother Romke had four children, being the third to sixth defendants. They are nephews and nieces of the deceased and entitled to inherit under clause 4 of the will. 5The deceased's parents separated in the early 1960s and divorced some time later. Her father remarried. There were two children born of that marriage, namely Elisabeth and Tjalling Haisma. Tjalling and Elisabeth each had children. Those children are the eighth to twelfth defendants. They are the nephews and nieces of the half-blood of the deceased. 6It was common ground that the expression "my nephews and nieces" in clause 4 included nephews and nieces of the half-blood. Haines, Construction of Wills in Australia, LexisNexis Butterworths 2007 states at [16.28] that: "The ordinary and natural meaning of 'nephews and nieces' means 'nephews and nieces by blood' ... The words do not include relatives by half-blood." 7The inclusion of the words "do not" may be a typographical error. The only authority for the proposition is a reference to para [16.19] of the same text where the learned author states: "A gift to A's nephews and nieces means prima facie the children of brothers and sisters including those of the half-blood." 8The latter proposition, but not the former, is well supported by authority (Grieves v Rawley (1852) 10 Hare 63; (1852) 68 ER 840; Re Hammersley, Kitchen v Myers (1886) 2 TLR 459; In re Cozens, Miles v Wilson [1903] 1 Ch 138 at 141). 9The deceased was married to a John Lindsay Walker, but that marriage was dissolved. In about 1994 she commenced living with Mr Richard Brewer. They did not marry, but lived in a de facto relationship until her death. Richard Brewer had a brother, Peter Brewer, who has two children, Sam and Tess. They are the thirteenth and fourteenth defendants. There is evidence that from time to time the deceased described them as her nephew and niece. The question is whether they also are entitled to share in the deceased's estate. 10There was no real controversy about the admissibility of extrinsic evidence for the purpose of construing the will. In Higgins v Dawson [1902] AC 1 the House of Lords said that evidence of surrounding circumstances could only be adduced where there was ambiguity (at 7, 8 and 11) and endorsed a very narrow approach to finding ambiguity (at 10). That approach is not consistent with the current approach to construction of wills (Perrin v Morgan [1943] AC 399) and was not urged in the present case. Evidence of the circumstances surrounding the testatrix was admissible to assist in the construction of the will so that the court could place itself "so to speak, in [the testatrix's] arm-chair and consider the circumstances by which [she] was surrounded when [she] made [her] will to assist ... in arriving at [her] intention" (Boyes v Cook (1880) 14 Ch D 53 at 56; Allgood v Blake (1872-73) LR 8 Exch 160 at 162). As it was put in Allgood v Blake (at 162): "The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. ... the meaning of words varies according to the circumstances of and concerning which they are used." 11Pursuant to this principle the court may admit evidence of the testator's habits and knowledge of persons or things, including the testator's habit of referring to persons by particular names. 12It was on this principle that evidence of the deceased's describing the children of her de facto partner's brother as her nephew or niece, and the circumstances in which the statements were made, was admitted. 13The first to twelfth defendants sought to lead evidence that the deceased intended her blood relations, but not relations of Mr Brewer, to benefit from her estate if he could not. The evidence was objected to. Part of it was not read. I rejected evidence of the deceased's having told a witness words to the effect of "I worked very hard for my money and I want to make sure it stays in my family as Richard and his brother Peter Brewer come from a well-to-do family". At common law such direct evidence of testamentary intention is only admissible in the case of an equivocation, that is to say, a case when the words of the will, when considered in relation to the testator's surrounding circumstances, apply accurately and equally to two or more persons or things (Hiscocks v Hiscocks (1839) 5 M & W 363; (1839) 151 ER 154 at 156; Gord v Needs (1836) 2 M & W 129 at 140-141; (1836) 150 ER 698 at 703; Public Trustee of New South Wales v Herbert [2009] NSWSC 366 at [33]). Evidence of surrounding circumstances is admitted in order to assist the determination of the testator's probable intention. Direct evidence of the testator's actual intention is admissible in cases of equivocation because "while it is forbidden to allow extrinsic evidence of intention to come into competition with the terms of the document on the same subject and possibly to prevail against the document, in the case of equivocation no such result follows from resort to extrinsic evidence of intention." (Re Smith [1939] VLR 213 at 218; Phipson "Extrinsic Evidence in Aid of Interpretation" (1904) 20 LQR 245 at 268-271). This was not a case of equivocation. 14By s 32 of the Succession Act 2006 direct evidence of the testator's intention is admissible to assist in the interpretation of the language of the will if, among other circumstances, the language makes the will or any part of it ambiguous on the face of the will, or ambiguous in the light of surrounding circumstances (s 32(1)(b) and (c)). However, that section applies only to wills made on or after 1 March 2008. It did not apply to the present will.

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