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[2023] VSC 185
Supreme Court of Victoria
2023-04-20
O’Meara J
Original judgment source is linked above.
WILLS - Construction of will - Principles of construction - Properly construed, relevant clause conveys a gift 'in separate and equal parcels of shares' to each of four children - Rectification - Intentions and instructions of testator - Whether clerical error or whether will does not give effect to the deceased's instructions - Reliability of solicitor's recollection of deceased's instructions - Wills Act 1997 (Vic), ss 31 & 36 - Fell v Fell (1922) 31 CLR 268, Pearce v Edmeades [1838] EngR 1086; ; , ; , ; , , , , , , ; considered - Order for rectification.
1 Paolo (Paul) Mirabella ('the deceased') passed away on 20 February 2021 leaving a sizeable estate including shareholdings in certain 'Mirabella' companies.
2 Mirabella International Pty Ltd, which is the trading company, sells light globes, downlights and Christmas lights.[1]
3 Historically, the deceased held 50% of the voting shares in Mirabella International Pty Ltd, with the other 50% held by his wife, Silvana.[2] Silvana now suffers from dementia.
4 The deceased left four adult children. The defendant - known as 'Joe' - is the eldest. There are two other sons, George and Vincent. The plaintiff, Angelica Longhitano, is the only daughter.
5 Historically, the deceased's children each held separate and equal parcels of non-voting shares in Mirabella International Pty Ltd.[3]
6 It is plain enough that there has been friction within the group of siblings, particularly between the plaintiff and the defendant concerning their late father's will.
7 The deceased made a will on 19 December 2006 ('the 2006 will').[4] Clauses 2, 3, 4, 5 and 6 provide as follows -
(a) all my shares in the capital of any company both private and public together with dividends accrued thereon in equal shares to the date of my death AND I DIRECT > > > (i) If any of my said shares are as a result of amalgamation or reconstruction of any company represented by a different holding in that Company this gift shall take effect as a gift of that holding. > > > > (iii) If any of the shares comprised in this gift are acquired by another company in consideration in whole or part of shares in that or any other company this gift shall take effect as a gift of those shares. > > (b) the whole of my personal property as tenants in common in equal shares
PROVIDED THAT if the trusts declared in respect of one of the said parts shall fail for want of a beneficiary such part shall be held upon the trusts declared in respect of the other of the said parts.
- Subject as aforesaid and SUBJECT to my wife SILVANA MIRABELLA surviving me for a period of thirty days I GIVE DEVISE AND BEQUEATH all the residue of my real and personal property to my said wife absolutely.
- IF my said wife fails to survive me for a period of thirty days then I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever kind and wheresoever situated to my Trustee UPON TRUST to sell call in collect and convert the same into money at such time or times and in such manner as my Trustee shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property (including leaseholds or other property of a terminable hazardous or wasting nature) during such period as my Trustee shall think proper and my Trustee shall out of the monies arising therefrom pay all my just debts funeral and testamentary expenses and all duties and taxes payable in respect of my estate both actual and notional or occasioned by my death or the administration of my estate so as to exonerate all persons from payment thereof or contribution thereto and to hold the balance of my said property (herein called "my residuary estate") UPON TRUST for such of my children as survive me and if more than one equally between them PROVIDED THAT if any child of mine shall fail to attain a vested interest leaving a child or children surviving him/her and who shall survive me or be born after the date of my death who attains the age of thirty (30) years then such child or children shall take, and if more than one equally, the share which his, her or their deceased parent would otherwise have taken had he or she attained a vested interest.
8 The 2006 will was witnessed by Donato Smarrelli, the deceased's long-time solicitor, and John Semmens, his long-time accountant. Pursuant to cl 2 of the 2006 will, Mr Smarrelli could be appointed executor and trustee in the event that the appointed trustees refused or were unable to act.
(a) the fact that Mr Smarrelli had witnessed the 2006 will but could be appointed executor and trustee caused the deceased's will to be remade on 3 April 2007 ('the 2007 will');[5] and
(b) it was intended only that the witnesses to the 2007 will should be different.
10 The witnesses to the 2007 will were Liliana Donati, who then worked for the deceased, and Michael Laino, a solicitor in Mr Smarrelli's firm.[6] The 2007 will was the deceased's last will.
11 Clauses 2, 3, 4, 5 and 6 of the 2007 will provide as follows[7] -
(a) all my shares in the capital of any company together with dividends accrued thereon AND I DIRECT
(i) If any of my said shares are as a result of amalgamation or reconstruction of any company represented by a different holding in that Company this gift shall take effect as a gift of that holding.
(ii) If any of the shares comprised in this gift are acquired by another company in consideration in whole or part of shares in that or any other company this gift shall take effect as a gift of those shares.
(b) the whole of my personal property as tenants in common in equal shares
PROVIDED THAT if the trusts declared in respect of one of the said parts shall fail for want of a beneficiary such part shall be held upon the trusts declared in respect of the other of the said parts.
- Subject as aforesaid and SUBJECT to my wife SILVANA MIRABELLA surviving me for a period of thirty days I GIVE DEVISE AND BEQUEATH all the residue of my real and personal property to my said wife absolutely.
- IF my said wife fails to survive me for a period of thirty days then I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever kind and wheresoever situated to my Trustee UPON TRUST to sell call in collect and convert the same into money at such time or times and in such manner as my Trustee shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property (including leaseholds or other property of a terminable hazardous or wasting nature) during such period as my Trustee shall think proper and my Trustee shall out of the monies arising therefrom pay all my just debts funeral and testamentary expenses and all duties and taxes payable in respect of my estate both actual and notional or occasioned by my death or the administration of my estate so as to exonerate all persons from payment thereof or contribution thereto and to hold the balance of my said property (herein called "my residuary estate") UPON TRUST for such of my children as survive me and if more than one equally between them PROVIDED THAT if any child of mine shall fail to attain a vested interest leaving a child or children surviving him/her and who shall survive me or be born after the date of my death who attains the age of thirty (30) years then such child or children shall take, and if more than one equally, the share which his, her or their deceased parent would otherwise have taken had he or she attained a vested interest.
12 It will be evident that the underlined words in the extract of cl 4(a) of the 2006 will (appearing at [7] above) were not reproduced in cl 4(a) of the 2007 will (appearing at [11] above). Mr Smarrelli deposed that the omissions were a mistake occasioned by using 'the wrong draft of the 2006 Will ... as the template for the last Will'.[8] Otherwise, the terms of the clauses to which I have referred are identical.
13 The plaintiff is the trustee and executor of her father's estate. Probate was granted on 28 July 2022.
14 The essential point in all of the above is that the plaintiff contends, and the defendant denies, that the 2007 will does not give effect to the deceased's instructions, in that -
(a) the deceased intended that his shareholdings should be divided between his children in four separate and equal parcels, not bequeathed as a joint holding (which, the defendant contends, is the effect of the relevant clause);
(b) the deceased intended that all of his personal property should be given to his wife; and
(c) if necessary, the 2007 will should be rectified to give effect to both of the above intentions of the deceased.
15 Part of the foundation for the plaintiff's complaint seems to relate to the potential operation of the following provision in the constitution of Mirabella International Pty Ltd -
In the case of joint holders the vote of the senior present who tenders a vote shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names stand in the register of members.[9]
16 The plaintiff submits that if the deceased's children are bequeathed a joint holding in the deceased's shareholdings (whether as a joint tenancy or a tenancy in common), the consequence of that provision is that the defendant, as the plaintiff put it, 'effectively has a 50 percent vote in the Mirabella empire simply by reason of being the first-named shareholder'.[10]
17 The defendant contends that the consequence of the proper disposition of the present issues is strictly irrelevant. That may be accepted.
18 Perhaps for completeness, however, I should note that the defendant submitted that the situation is not as simple as that suggested by the plaintiff; indeed, it was submitted that the plaintiff's contentions were 'not accurate'. It was, however, acknowledged that 'the significance of the outcome is how [the defendant] exercises voting power over the shares'.[11]
19 By summons dated 7 September 2022, the plaintiff seeks rectification of cls 4(a) and (b) of the 2007 will as follows -
a. deleting subclause 4(a); and
- inserting a new subclause 4(a) in substitution of the abovementioned subclause 4(a) as follows:
'all of my shares in the capital of any company both private and public together with dividends accrued thereon in equal shares to the date of my death AND I DIRECT'
- Pursuant to s 31(1)(b) of the Wills Act 1997, alternatively pursuant to s 31(1)(a) of the Wills Act 1997, the Will of the Deceased be rectified by deleting subclause 4(b).
20 The effect of paragraph 2(b) of the summons would be to alter cl 4(a) of the 2007 will to the form of cl 4(a) of the 2006 will.
21 In respect of that clause, and paragraph 2 of the plaintiff's summons, in opening senior counsel for the defendant submitted that -
... [it] would result in the will which disposed of the shares as tenants in common, jointly held as tenants in common, and we've referred to authorities. We say that's the conventional construction and it's consistent with the language of the will and consistent with [what] Mr Smarrelli says were the instructions provided to him.
So that does achieve a rectification but doesn't achieve the rectification that the plaintiff seeks, in our submission, because it still is joint holders as tenants in common. And our cross-examination is unlikely to persuade Your Honour that there wasn't a clerical error [in cl 4(a) of the 2007 will]. It seems words were omitted and the consequence is likely to be, if our construction arguments are accepted, that the effect of 4(a) [of the 2007 will] was to effect a disposition of the shares to be jointly held as joint tenants. But that change was due to the clerical error, and when that error is corrected the result is that the will will effect a disposition to the children as joint holders as tenants in common.[12]
[Emphases added]
22 Perhaps in response, the substance of the plaintiff's argument expanded and came to be as follows -
(a) the 2007 will, 'on its proper construction, does not carry out the Deceased's intentions';[13]
(b) in particular, cl 4(a) of the 2007 will should be rectified so as to take the form of cl 4(a) of the 2006 will (which rectification ultimately became common ground);[14]
(c) properly construed, that form of cl 4(a) makes 'individual gifts of the company shares in equal shares (or parts) ... to the four named children'[15] - in that regard, the plaintiff therefore submits that 'it may be argued that further rectification of clause 4(a) ... is unnecessary';[16]
(d) out of an abundance of caution, however, the plaintiff submits that the Court should rectify cl 4(a) 'so that it makes clear the Deceased's intention in the Will and the matter is put beyond doubt';[17]
(e) alternatively, if cl 4(a) in the form appearing in the 2006 will gifts the shareholdings as 'some form of joint shareholding', the plaintiff submits that the Court should rectify it in order to 'carr[y] out the testator's intentions';[18] and
(f) as to cl 4(b) of the 2007 will, the plaintiff submits that the clause does not express the intention of the deceased and should be deleted.[19]
23 In that connection, the plaintiff tendered parts of -
(a) Mr Semmens deposed to no discussions with the deceased concerning joint ownership of shares between the deceased's children and also deposes that such shares as had been held by the children were 'the same number ... in separate parcels'.[23] Mr Semmens deposed further that -
During my time as Mr Mirabella's accountant, I only ever observed him treating his children equally with regards to the shares in any of the Mirabella companies. This was consistent with Mr Mirabella's statements to me over the years, and from my own observations, that financially, and in personal matters, he always wanted to treat his children equally.[24]
(b) among other things, Mr Smarrelli deposed that -
[19] In or around November or December 2006, during one of our Saturday meetings at Brunswick, Mr Mirabella said he wanted to get his affairs in order regarding his estate and gave me instructions for his Will and power of attorney. Mr Mirabella instructed me to put Angelica as his attorney because she was his 'right hand person'.
[20] Mr Mirabella also instructed me to put Angelica and his wife to be his executors. Mr Mirabella also instructed that he wanted his 50 per cent interest in the Mirabella companies to go to his children in equal shares, which would give them a 12.5 per cent interest each in the business, and that his wife would retain her 50 per cent share if she survived him. Mr Mirabella said his intention was that when his wife also passed away, that his children would each have a 25 per cent share in the companies. Mr Mirabella instructed me that his wife wanted the same thing.
[21] Mr Mirabella also gave instructions that he wanted his personal property to be given to his wife on his death. Mr Mirabella said he wanted his wife to have everything surrounding her at home, including motor vehicles, except one motor vehicle that had been handed over to Angelica, an old Maserati. Mr Mirabella said he basically wanted his wife to have his personal items in order to maintain the status quo for her. Mr Mirabella also instructed that he wanted his money in the bank to go to Silvana in his Will.
...
[37] A comparison of the two Wills shows that in Mr Mirabella's last Will, the following words are missing from clause 4(a):
(a) 'both private and public' after the word 'company'; and
(b) 'in equal shares to the date of my death' after the word 'thereon'.
[38] The omission of these words is an error made by me and my firm. I received no instructions from Mr Mirabella to omit these words in the last Will. ...
...
[40] When speaking about his children, including when he gave instructions for his Will, Mr Mirabella always told me that he wanted to treat them equally. Mr Mirabella never said to me that he wanted to prefer his eldest son, Joseph, over his other children. Mr Mirabella never discussed with me wanting to give his shares in his companies as jointly held shares with his children. Mr Mirabella did not give me instructions to draft his Will so that his shares in his companies would be given to his children as joint holders. I believe that if Mr Mirabella had given me those instructions, it would have been memorable and would have stuck in my mind, because [it] would have been contrary to Mr Mirabella's longstanding approach to his business endeavours, his attitude to his children and his beliefs in their respective characters.[25]
25 Only Mr Smarrelli was required for cross-examination. Much of that was directed to testing his reliability as a witness; it was not submitted that Mr Smarrelli was in any way dishonest.
26 The defendant submits that part of Mr Smarrelli's evidence is unreliable, particularly his evidence concerning the instructions received from the deceased in respect of the disposition of his personal property.[26] I will come to that issue in due course.
27 The defendant objected to limited parts of the plaintiff's tendered affidavit material. The items concerned are peripheral, at best. However, the parties agreed that I should rule on the objections in these reasons.
28 Objection is taken (on the ground of relevance) to the first two sentences of a paragraph in the affidavit of the plaintiff sworn 16 September 2022, which sentences read as follows -
I understood from discussions with my father that he wanted his personal property, including his money, to be given to his wife (my mother) by his will. I have had conversations with my three siblings, including at the reading of the last will on 2 March 2021, and I recall that each of them said words to the effect that they agreed that our father intended our mother to receive his personal property under his will.[27]
29 I accept that the first sentence is admissible in respect of the issue of rectification. The sentence speaks to discussions with the deceased concerning his intentions. Admissibility does not turn upon when such discussions occurred.[28] Weight is another matter.
30 The plaintiff seeks to rely upon the second sentence in respect of the credit of the defendant. It is said to be inconsistent with the defendant's oral evidence, particularly the following -
... In your experience and in your observations and your discussions with your father, and your siblings for that matter, it was always your understanding, wasn't it Mr Mirabella, that your father intended to give all of his personal belongings and chattels, money, etc. to your mother, apart from the shares? That's the case, isn't it? - - - No, it's not.
...
... Is it your evidence that your father never discussed his will with you? - - - Not with me, and not with any other siblings.[29]
31 In my view, there is no inconsistency. The second sentence concerns an alleged agreement between the siblings concerning the intention of the deceased. The agreement is not strictly identified as based in any prior discussion with the deceased. It follows that the second sentence is inadmissible.
33 As I have generally indicated, the defendant opposes the plaintiff's application. In that connection, he tendered -
34 Only the defendant was required for cross-examination. The plaintiff submitted that the defendant was in some respects deliberately evasive in his evidence.[37]
35 The defendant gave evidence that he had worked in marketing, buying and sales.[38] He presented as relatively straightforward. He was not sophisticated and his evidence contained no real guile; indeed, at points he gave evidence contrary to his own interests. I do not accept that he was deliberately evasive in the course of giving evidence.
36 In this general context, the defendant posed the following 'key question' -
To rectify a will, the Court requires clear and convincing proof that the will does not reflect the testator's intentions. No notes were retained [by Mr Smarrelli] and the memory of the solicitor who took the testator's instructions sixteen years ago [Mr Smarrelli] is so unreliable that the will itself is the most reliable repository of instructions. Should the Court rectify the will to accord with what the solicitor now believes the testator's intentions were?[39]
37 It will be evident that the 'key question' is interleaved with elements of submission.
38 In connection with the above, the defendant emphasises various statements in the authorities to which I will shortly come and otherwise contends, in substance, that -
(a) properly construed, in respect of the deceased's shareholdings, cl 4(a) of the 2006 will 'created a tenancy in common' and cl 4(a) of the 2007 will 'created a joint tenancy';[40]
(b) cl 4(a) of the 2007 will was, however, likely intended to be substantially identical to cl 4(a) of the 2006 will;[41]
(c) it follows that cl 4(a) of the 2007 will was affected by clerical error and the defendant would not oppose rectifying it to reflect the terms stated in cl 4(a) of the 2006 will;[42]
(d) the Court cannot be satisfied that the deceased gave instructions that his shareholdings should be divided and given to his children in equal sized parcels rather than in 'equal shares in the whole parcel of shares' as, it was submitted, cl 4(a) in the 2006 will provided;[43] and
(e) cl 4(b) of the 2007 will is the same as cl 4(b) in the 2006 will and Mr Smarrelli's present recollection concerning the relevant instructions of the deceased is mistaken and unreliable.[44]
39 In respect of the latter point, counsel for the defendant submitted that -
The 2006 will, which was read, reviewed and explained on many occasions in late 2006 and early 2007 while the instructions were fresh in Mr Smarrelli's mind, is more reliable than Mr Smarrelli's current recollection. The 2006 will is an accurate record of the testator's instructions.[45]
40 In light of the above, the essential issues for determination are -
(a) the proper construction of the wills, particularly cl 4(a) of the 2006 will;
(b) the making of the wills, particularly whether they are affected by clerical error or do not reflect the intentions and instructions of the deceased; and
(c) whether and, if so in what form, the 2007 will ought be rectified.
41 As to the issue of construction, the defendant emphasised that[46] -
(a) the meaning of a will must be discovered from the writing itself aided only by such extrinsic evidence as is necessary in order to enable the testator's words to be understood;
(b) the will must be construed according to its plain meaning, although the whole will must be examined; and
(c) effect may not be given to an intention which is not expressed or plainly implied in the language of the will.
42 The plaintiff acknowledged such principles as well settled, albeit that she emphasised certain further principles,[47] including that -
If the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must, prima facie, be given.[48]
43 The plaintiff submitted, however, that in some respects the defendant's submissions concerning the principles of construction were incorrect.[49]
44 In any event, in respect of cl 4(a) of the 2006 will (particularly, the reference to a gift to the deceased's children of 'all my shares ... in equal shares'), the 'authorities' referred to by senior counsel for the defendant in opening as expressing a 'conventional construction' of such terms, were essentially to the following effect -
It is well settled that the Court leans against a construction of a gift to several as a gift to them as joint tenants, and if any reasonable ground exists for treating the gift to them as tenants in common, it will be so construed. "Words of division or distribution, such as 'to be divided' or 'equally' or 'between' or 'amongst' or 'respectively' make a tenancy in common." - Theobald on Wills (10th ed.), p.299. Thus a direction, such as in the present will "to divide between" children creates a tenancy in common.[50]
45 In closing address, however, counsel for the plaintiff emphasised a different authority as well as a passage in an authoritative text to a slightly different effect.[51]
47 Beyond that, each party referred to s 36 of the Wills Act 1997 (Vic) ('the Act'),[54] which provides that -
(1) In any proceedings to construe a will, if the language used in a will renders the will or any part of the will -
(a) meaningless; or
(b) uncertain or ambiguous on the face of the will; or
(c) uncertain or ambiguous in the light of surrounding circumstances -
evidence may be admitted to assist in the interpretation of that language.
(2) Evidence which may be admitted under subsection (1)(c) does not include evidence of the testator's intention.
(3) Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will.
48 As to rectification, the application relies upon s 31(1) of the Act, which provides that -
The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator's intentions because -
(a) a clerical error was made; or
(b) the will does not give effect to the testator's instructions.
49 In closing address, counsel for the defendant highlighted the difference in s 31(1) between the words 'intentions' and 'instructions'.[55]
50 In any event, the principles applicable to an application directed to s 31(1) of the Act were summarised by Whelan J (as his Honour then was) in Re Estate of Prevost (deceased)[56] -
The authorities caution that the Court should recognise the gravity of altering a will to change the disposition of a person's property, and should take great care in evaluating the evidence of the deceased's intention. I accept ... that the Court must feel an actual persuasion that the testator's intentions are not given effect in the will before contemplating its rectification, commensurate with the gravity of that step.[60]
[Footnotes omitted]
52 Finally, I have noted the defendant's submission concerning the unreliability of part of the evidence of Mr Smarrelli. In that connection, counsel particularly emphasised the following passage from the reasoning of McLelland CJ in Eq in Watson v Foxman ('Watson')[61] -
... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions [of] self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[62]
53 Albeit that the plaintiff's written submissions advanced a rather complicated argument in support of the proposition that, via a process of construction, cl 4(b) in each of the wills could 'yield to clause 5',[63] in the course of closing submissions it was acknowledged that the 'real' argument was that cl 4(b) is in error and the 2007 will should be rectified to delete it.[64]
54 As to cl 4(a) of the 2007 will, I have noted the defendant's acknowledgement that it should be accepted as having been included as a result of a clerical error and, consequently, cl 4(a) of the 2007 will should be rectified to take the form of cl 4(a) of the 2006 will.[65]
55 It follows that the only 'real' construction issue arises in respect of, in effect, cl 4(a) of the 2006 will.[66]
56 Although cl 4 of the 2006 will has earlier been extracted, it is convenient to here repeat it -
(a) all my shares in the capital of any company both private and public together with dividends accrued thereon in equal shares to the date of my death AND I DIRECT > > > (i) If any of my said shares are as a result of amalgamation or reconstruction of any company represented by a different holding in that Company this gift shall take effect as a gift of that holding. > > > > (iii) If any of the shares comprised in this gift are acquired by another company in consideration in whole or part of shares in that or any other company this gift shall take effect as a gift of those shares. > > (b) the whole of my personal property as tenants in common in equal shares
PROVIDED THAT if the trusts declared in respect of one of the said parts shall fail for want of a beneficiary such part shall be held upon the trusts declared in respect of the other of the said parts.
(a) the task of construction is to give effect to the intention of the deceased;
(b) one does not search for what the deceased 'would have thought' via 'some general enquiry' or speculation as to what the deceased 'might have had in mind' when giving instructions;[67]
(c) it is 'not a broader process as if it were rectification';[68]
(d) the surest guide to the intention of the deceased is the language of the will - which, it was submitted, is not presently 'uncertain or ambiguous' (nor, it was submitted, do the surrounding circumstances make the language of the will 'uncertain or ambiguous');[69]
(e) cl 4(a) does not convey a 'class gift' - it is a single gift to the four children 'equally';[70]
(f) there are no words in cl 4(a) 'requiring or providing that ... [the] shares are to be divided into four parcels each of an equal number of shares and one parcel to be provided to each of ... [the] children';[71]
(g) as a 'matter of authority', cl 4(a) makes a single gift to the people named as tenants in common - not an individual gift of separate parcels to each of them;[72] and
(h) in respect of a gift of the latter kind, there are 'plenty of precedents'.[73]
58 In respect of the so-called 'matter of authority', senior counsel for the defendant addressed a sequence of passages extracted from learned texts,[74] including the following sufficiently representative passages from Williams on Wills -
[86.2] Gifts in joint tenancy. Where property is given to several persons concurrently, the questions whether those persons take as joint tenants or tenants in common, and in the latter case in what shares they take, depend on the context of the whole will. Prima facie they take as joint tenants, but it has been said that, in considering the context, anything in the slightest degree indicating an intention to divide the property negatives the idea of a joint tenancy, and in the case of ambiguity the court leans to the construction which creates a tenancy in common in preference to that which creates a joint tenancy. ...
[86.5] Particular words of severance. Any words indicating in the slightest degree an intention to divide the property abrogates the idea of a joint tenancy and creates a tenancy in common. The following words have been held sufficient for the purpose: 'between'; 'divided'; 'equally'; 'equal proportions'; 'equal shares'; 'equally to be divided'; 'share and share alike'; and 'among'. ...
59 In contrast to the above, counsel for the plaintiff -
(a) emphasised, in particular, the textual difference between the reference in cl 4(a) to 'in equal shares' and the reference in cl 4(b) to 'tenants in common in equal shares'; and
(b) otherwise referred to -
60 It is plain that the proper construction of a will must commence with a consideration of its terms. In some instances, that will also be the practical end point of the analysis. In the present instance, as I have noted, the defendant particularly emphasised the terms of the relevant clauses of the 2006 will.
61 I have earlier extracted cls 2, 3, 4, 5 and 6 of both wills; however, it is convenient to here re-state cls 3, 4, 5 and 6 of the 2006 will -
(a) all my shares in the capital of any company both private and public together with dividends accrued thereon in equal shares to the date of my death AND I DIRECT > > > (i) If any of my said shares are as a result of amalgamation or reconstruction of any company represented by a different holding in that Company this gift shall take effect as a gift of that holding. > > > > (iii) If any of the shares comprised in this gift are acquired by another company in consideration in whole or part of shares in that or any other company this gift shall take effect as a gift of those shares.
(b) the whole of my personal property as tenants in common in equal shares
PROVIDED THAT if the trusts declared in respect of one of the said parts shall fail for want of a beneficiary such part shall be held upon the trusts declared in respect of the other of the said parts.
Subject as aforesaid and SUBJECT to my wife SILVANA MIRABELLA surviving me for a period of thirty days I GIVE DEVISE AND BEQUEATH all the residue of my real and personal property to my said wife absolutely.
IF my said wife fails to survive me for a period of thirty days then I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever kind and wheresoever situated to my Trustee UPON TRUST to sell call in collect and convert the same into money at such time or times and in such manner as my Trustee shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property (including leaseholds or other property of a terminable hazardous or wasting nature) during such period as my Trustee shall think proper and my Trustee shall out of the monies arising therefrom pay all my just debts funeral and testamentary expenses and all duties and taxes payable in respect of my estate both actual and notional or occasioned by my death or the administration of my estate so as to exonerate all persons from payment thereof or contribution thereto and to hold the balance of my said property (herein called "my residuary estate") UPON TRUST for such of my children as survive me and if more than one equally between them PROVIDED THAT if any child of mine shall fail to attain a vested interest leaving a child or children surviving him/her and who shall survive me or be born after the date of my death who attains the age of thirty (30) years then such child or children shall take, and if more than one equally, the share which his, her or their deceased parent would otherwise have taken had he or she attained a vested interest.
[Emphases added].
62 Clause 3 might at first be thought to be directed to gifting 'all personal chattels' to the deceased's wife. However, the definition of 'personal chattels' in s 5(1) of the Administration and Probate Act 1958 (Vic) reads as follows -
personal chattels means carriages horses stable furniture and effects (not used for business purposes) motor cars and accessories (not used for business purposes) garden effects domestic animals plate plated articles linen china glass books pictures prints furniture jewellery articles of household or personal use or ornamental musical or scientific instruments and apparatus wines liquors and consumable stores but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money
63 It follows that cl 3 specifically excludes certain classes of chattels - particularly, 'money or securities for money'. Thus, contrary to what might be thought to be the contemplation evident in the use in cl 3 of the word 'all', the gift in fact comprises only a part of the deceased's personal property or chattels.
64 That said, cl 4(a) is directed to shareholdings and therefore securities, which may suggest that the drafter of cl 4 was alive to the content of the said definition, albeit that the position is further confused by cl 4(b), which immediately follows.
65 In that regard, cl 4(b) is not directed to 'money', which is another of the potentially relevant exclusions from the definition of 'personal chattels'. Instead, it is directed to 'the whole of my personal property', and, it will be evident from the extract above that the statutory definition of 'personal chattels' makes no direct reference to 'personal property'.
66 At that point, if the relevant clauses were to be read in sequence[77] -
(a) cl 3 has gifted a defined portion of the deceased's 'personal chattels' - and thus his 'personal property' - to Mrs Mirabella; yet
(b) cl 4(b) then purports to gift 'the whole of my personal property' to 'my children'.
67 In that sense, the reference to the 'whole of my personal property' is something of a misnomer. At most it can be a reference to only what senior counsel for the defendant described as the 'balance' of the deceased's personal property.
68 In truth, despite its form, cl 4(b) must operate in a practical sense to gift a residue of the personal property to the children. However, 'all the residue of my real and personal property' is the specific subject matter of cl 5; and is there gifted to Mrs Mirabella.
69 Further, as I have indicated, while the chapeau to cl 4 effects a gift 'to my children', who are thereafter named -
(a) cl 4(a) effects a gift of 'all my shares ... in equal shares'; but
(b) cl 4(b) effects a gift of the 'whole' of the personal property as 'tenants in common in equal shares'.
[Emphases added]
70 The difference in language - within different parts of the same clause - is striking and raises a real question about the proper construction of cl 4(a). On the face of it, the quality or kind of the gift made 'in equal shares' via cl 4(a) is different to that made to 'tenants in common in equal shares' via cl 4(b).
71 The question concerning the proper construction of cl 4(a) is, if anything, further provoked by the form of cl 6 - which was referred to in argument as the 'gift over provision in the residuary clause'.[78] As I have noted, curiously cl 5 is expressly a clause directed to residue, albeit that cl 4(b) has a similar practical effect, at least in respect to the deceased's personal property.
72 In any event, cl 6 speaks of 'all my real and personal property' being converted into 'money' and, after payment of certain identified outgoings, the balance - described as the 'residuary estate' - being held on trust for surviving children 'equally between them'. Clause 6 appears to contemplate that the interest of each such child is a 'vested interest'.
73 Further, if such an interest does not vest, leaving a surviving child or children, such child or children shall take, and if more than one equally, the 'share' which his, her or their deceased parent would otherwise have taken.
74 It seems implicit that the 'share' referred to in cl 6 is an individual and at least arguably separate gift.
75 In that regard, the written closing submissions of the plaintiff contended as follows -
... the gift over provision in the residuary clause, which takes effect in the event the Deceased's wife predeceases him, gives the Deceased's residuary estate 'for such of my children as survive me and if more than one equally between them'. Additionally, the residuary clause further provides for equal individual gifts to the children of the Deceased's children who fail to attain a vested share. This equal gift is very broadly drafted and includes not only children of the Deceased's issue alive at the time of his Will or at the time of his death, but includes children born after the date of his death, which emphasises the Deceased's concern to effect equality between his children and if any of them predeceased him, equality in the secondary gift to his children's children.[79]
76 The defendant's closing submissions did not relevantly address the meaning and operation of cl 6.[80]
77 No other clause of the will presently appears relevant. Nor did either of the parties relevantly refer to any other clause of the will.
78 It should be evident from the above that there is a considerable degree of imprecision and even an apparent element of confusion in the scheme of the relevant clauses of the will.
(a) cl 4 is not making a 'class gift' - neither party ultimately seemed to suggest that it was;[81]
(b) there was no suggestion by either party that cl 4 of the 2006 will creates a joint tenancy in any gift;
(c) where, in cl 4(b), the will confers a gift as a 'tenancy in common in equal shares', that is specifically stated;
(d) it follows that the gift made via cl 4(a) simply 'in equal shares' is prima facie directed to conveying a gift of a different quality or kind - if 'in equal shares' were intended to mean 'as tenants in common in equal shares', it is not clear why that would not be said in cl 4(a) as it is in cl 4(b);
(e) in that regard, to the extent that the 'authorities' relied upon by the defendant consider the expression 'in equal shares' to be indicative of a tenancy in common, none of those authorities do so in circumstances where a different part of the same clause deploys the more specifically descriptive expression 'as tenants in common in equal shares';
(f) in that context, the only alternative construction posited was, in effect, a gift to each of the children 'in separate and equal parcels of shares' (or similar);
(g) while the defendant strongly resisted such a construction, primarily by reference to the 'authorities' to which I have referred, no part of that argument amounted to contending that such a construction was not otherwise reasonably within the contemplation of the words 'in equal shares' or, for any other specifically identified reason, either unreasonable or inconvenient;
(h) in the circumstances, such a construction seems to me to more likely be the proper construction; and
(i) in that regard, although it is perhaps no more than confirmatory of the above, cl 6 also seems to be directed to gifts of an individual, separate and equal kind.
80 As I have indicated, senior counsel for the defendant strongly resisted any general suggestion of the above, or that there was any degree of confusion in any of the relevant provisions of the will.[82]
81 Part of that resistance was advanced by reference to the proposition that, as a relatively straightforward matter of construction, the meaning of the terms of the relevant clauses could readily be adjusted in order to achieve a harmonious overall operation.
82 For example, in respect of cl 3 (directed to 'personal chattels', as defined) and cl 4(b) (directed, as I have noted, to 'the whole of my personal property'), senior counsel submitted that the former should take precedence over the latter as a consequence of which the word 'the whole' in cl 4(b) should be read to mean 'the balance'.[83]
83 If that is the case, however, it is not altogether clear why, in the circumstances described, a similarly straightforward process of construction should not operate to adjust and thereby harmonise the plain difference between the reference to 'in equal shares' in cl 4(a) and the reference to 'as tenants in common in equal shares' in cl 4(b) such that 'in equal shares' in cl 4(a) should be taken to mean 'in separate and equal parcels of shares' (or similar).
84 The real resistance of the defendant, however, was mounted by reference to the so-called 'matters of authority'. In that connection, senior counsel submitted -
... what's clear is, the only question that can arise on the language of clause 4(a), is whether it was a joint tenancy or a tenancy in common ...
... it's clear from the authorities ... and all the references in the text[s], that the words 'in equal shares' do have the consequence that it becomes a tenancy in common, but don't have the consequence of dividing it into separate parcels and a separate gift of a parcel containing an equal number of shares to each of the children named.[84]
85 As I have earlier indicated, the 'authorities' referred to by senior counsel were almost entirely passages extracted from learned texts.
86 All of those extracts were directed to an issue that does not presently arise: namely, whether a gift should be construed as a gift to joint tenants or to persons as tenants in common. In the present instance, neither party submitted that cl 4(a) of the 2006 will should be construed as a gift to joint tenants.
87 In any event, many of the extracts were expressed in somewhat less categorical terms than the above submission would tend to suggest. For example, the extract from Williams on Wills cautioned that even the question there under consideration would 'depend on the context of the whole will', and the extract from Construction of Wills in Australia stated that a concurrent gift may give rise to the question.[85]
88 Further, the underlying authorities cited in the course of the extracts to which I have referred tend generally to suggest that in any such process of construction the most important consideration when reconciling terms to an apparently different effect is likely to be the intention of the testator gleaned from the whole of the terms of the relevant will.
89 For example, in Pearce v Edmeades ('Pearce'),[86] the Lord Chief Baron considered a bequest to two tenants 'during their respective lives, in equal shares'. In that connection, his Lordship stated -
It has been settled by a series of decisions, that the words "respectively in equal shares", when not controlled by other words in a will, shall be taken to indicate the nature of an estate or interest bequeathed, and shall constitute a tenancy in common. But when these words are combined with, or followed by, others which would make a tenancy in common inconsistent with the manifest design or the subsequent bequest of the testator, they may be taken to indicate not the nature, but the proportion of the interest each party is to take.
In the present case the bequest to George and Elizabeth Goldsmith during their lives is of the interest and dividends only of the residue of the testator's estate. The corpus of the residue is not to be divided or possessed by the legatees till after the decease of both George and Elizabeth; and then it is to be divided amongst such of their children only as shall be living at the death of the survivor. It is clear, therefore that the mass of the property is to be divided amongst the children who might survive both parents, per capita and not per stirpes. This would be quite inconsistent with a tenancy in common of the parents.
Again, the testator, by his care in pursuing this property through three generations, and bequeathing it, upon the failure of these, to his then personal representatives, shews that he meant to die intestate of no part of it. But as the interest and dividends only are devised to his grand-children, George and Elizabeth Goldsmith, and nothing is devised to the children till the death of both; it would follow that if George Goldsmith is not entitled to the whole interest and dividends accruing after the death of Elizabeth during his life, the portions of interest and dividends which she took in her life-time would be undevised during the remainder of George's life.
For these reasons I think that George and Elizabeth must be taken to be joint-tenants for life, of the interest and dividends, or that he by implication takes an interest for life in the whole after her death.[87]
90 However, in Rentoul v Rentoul ('Rentoul'),[88] Gavan Duffy J considered a will that bequeathed the residue of the testator's estate to his five sons and 'all tanners', 'equally as joint tenants'. In that connection, his Honour stated -
Is that gift given to named persons as joint tenants or tenants in common? Mr Revelman referred to a number of cases which show sufficiently clearly, I think, that a gift to persons "equally", if there is nothing else in the will to show a contrary intention, will constitute a gift to them as tenants in common. In other words, "equally" is itself an indication of intention that the beneficiaries are to take as tenants in common. On the other hand, it is perfectly plain that a gift to various persons as joint tenants, if the words are to be given their technical meaning, is a gift as joint tenants and not tenants in common. The question is what conclusion I should arrive at in this case with those two differing indications of intention. The cases show that a gift to persons "as joint tenants" is not necessarily conclusive if the Court comes to the conclusion that the will is not drawn with art. Having regard to its language in various parts of it, this will must be looked upon as a home-made will. Therefore there is less reason than there would be in other circumstances to act on the technical meaning of the words "joint tenants".
With some doubt I come to the conclusion that the word "equally" is the governing word in the will, and the gift is to the named persons as tenants in common.[89]
(a) in Pearce, the words 'in equal shares' did not ultimately displace a joint tenancy;
(b) by contrast, in Rentoul, the words 'joint tenants' were ultimately considered to be subordinate to the word 'equally' which was taken to be indicative of a tenancy in common (despite the presence and use of the words 'joint tenants').
92 It follows that while 'technical terms' might generally be thought to have a certain effect, that must always be subject to a consideration and construction of the terms of the will as a whole.
93 In my view, that also explains the much more recent case of De Lorenzo,[90] ultimately relied upon in argument by the plaintiff.
94 In that instance, the New South Wales Court of Appeal considered the construction of a bequest conveying two parcels of two company shares to three children. The clause there under consideration stated, relevantly, as follows -
I GIVE AND BEQUEATH to my children the said ... as tenants in common in equal shares in the companies ... AND I DECLARE if in the division of such shares ... the shares are not divisible by three (3) my daughter the said ... is to receive more of such shares than my said sons so as to achieve the intent of this Clause.[91]
95 The appellants contended that the words 'as tenants in common in equal shares' were 'words of severance' to be contrasted with co-ownership and, in particular, pointed to the second half of the clause.
96 All members of the Court agreed, however, that in proper context, the words 'tenants in common' meant what they said.
97 In that regard, it is important for present purposes to note reference in both judgments to the principle that 'technical legal words and expressions used in a will' are 'prima facie' to be given their technical meaning.[92] That is, the proper construction of any such words must ultimately be determined by reference to all of the relevant principles of construction, particularly that the words must be construed in the context of the will read as a whole.
98 In light of the above, I accept that some cases show that the words 'in equal shares', or similar, have been construed to indicate or suggest a tenancy in common when the posited alternative is a joint tenancy. However, none of those cases - or, for that matter, none of the extracts from learned texts to which I was taken - suggest or require that those words must always be taken to suggest a tenancy in common regardless of context.
99 In that connection, as I have indicated, neither party presented a passage from any learned text directed specifically to the present question. In that regard, while in argument it was said that there were 'plenty' of relevant precedents, the only reference proffered was the decision of Richards J in Silva.[93] In that instance her Honour rectified a will in order to give effect to individual gifts of equal parts. However, the present issue did not there arise; nor was the defendant's present argument there apparently deployed, considered or determined.
100 In the end, having considered the principles of construction and 'matters of authority' to which I have referred, I am confirmed in the view that the construction of 'in equal shares' to which I have earlier referred must be both proper and correct.
101 In that regard, in my view, the relevant difference between cl 4(a) and cl 4(b) is stark and strongly suggests that cl 4(a) is not directed to a gift of shares as tenants in common.
102 In particular, even if the words 'in equal shares' might commonly be considered to be 'technical legal words' indicative of a tenancy in common (at least when the issue is whether or not the interest conveyed is to joint tenants as opposed to tenants in common), I do not accept that those words should be so understood in respect of cl 4(a) of the 2006 will. In my view, those words could not have been 'drawn with art'[94] in light of the proximate and specific expression 'as tenants in common in equal shares'.
103 In that context, the only sensible alternative to a tenancy in common is that 'in equal shares' should properly be construed to mean 'in separate and equal parcels of shares' (or similar).
104 In addition to the above, I accept that cl 6 gives some support to the notion that the deceased had an intention to convey individual 'shares' such that cl 4(a) should relevantly be construed to mean 'in separate and equal parcels of shares' (or similar).
105 It follows that I accept the submission of the plaintiff that, properly construed, cl 4(a) has the effect of making 'individual gifts of the company shares in equal shares (or parts) ... to the four named children'.[95]
106 It will be apparent that my acceptance of that submission is not dependent upon having had resort, via s 36 of the Act, to either the 'surrounding circumstances' or any evidence of the deceased's relevant intentions.
107 That said, if I am wrong in the above construction, I would accept that the tension in cl 4 between the terms 'in equal shares' and 'as tenants in common in equal shares' renders that part of the will at least uncertain. In those circumstances, I would accept that the evidence of the deceased's intentions to which I will presently come should be taken to support the construction of cl 4(a) to which I have referred.
E. Rectification: the intentions and instructions of the deceased
108 In light of the above, in respect of cl 4(a) of the will, much of the following assumes that the above construction is wrong.
109 As I have earlier noted, the present aspect of the plaintiff's application - directed to rectification of cls 4(a) and 4(b) of the will - is founded in the provisions of s 31(1) of the Act.
110 At trial, much of the relevant focus fell upon the evidence of the deceased's long time solicitor, Mr Smarrelli. I have already extracted the centrally relevant parts of Mr Smarrelli's affidavit. To some extent, the picture came to be filled out in his oral evidence. In particular -
(a) Mr Smarrelli was admitted to practice in 1979 and has since practised in 'mainly commercial, ... estate planning, wills' in a relatively small firm or firms;[96]
(b) Mr Smarrelli had a 'unique' and 'very, very special relationship' with the deceased[97] - they met 'sometimes twice a week, but definitely once a week' and there would be 'a number of matters that would be raised';[98]
(c) in the overall period, Mr Smarrelli 'knew exactly' what the deceased's intentions were 'in the sense of where he wanted his family to be with his estate';[99]
(d) in the period leading up to the making of the 2006 will, the deceased had said to Mr Smarrelli that the person most likely to assume the role of his sister [Carmel Cendo] in the companies was the plaintiff as 'she was independent of the three boys';[100]
(e) in the same period, it had been 'a matter of discussion' with Mr Smarrelli that the deceased wanted his wife to receive his personal estate;[101]
(f) Mr Smarrelli took instructions from the deceased in connection with the 2006 will in one of the 'Saturday meetings' in Brunswick in November or December 2006[102] - which was the first time that he had taken instructions from the deceased for a will;[103]
(g) the 2006 will was subsequently drafted by a junior lawyer based on precedents which was 'a rather quick process';[104]
(h) 'generally' Mr Smarrelli would review such a will and notice and correct it if the draft did not accord with instructions;[105]
(i) Mr Smarrelli is 'professionally embarrassed' by the clauses dealing with personal property - he said that 'it's certainly not what Mr Mirabella intended';[106]
(j) Mr Smarrelli could not explain how 'these clauses' (ie, cls 4(a) and 4(b)) found their way into the 2006 will when 'they're entirely inconsistent with the instructions you say you received' - although, when pressed, he said 'somehow I obviously overlooked - - -'[107] and that it was 'potentially an issue with attention to detail';[108]
(k) Mr Smarrelli would also have met with the deceased to go through[109] and explain the 2006 will (although he would not necessarily have read it to him);[110]
(l) Mr Smarrelli would not have gone through and discussed the 2007 will with the deceased as there was intended to be 'no change other than the [at]testing name';[111]
(m) Mr Smarrelli discussed Mrs Mirabella's will with her at the 'Mirabella Christmas party' at Tullamarine and it was intended to 'mirror' that of the deceased;[112]
(n) Mr Smarrelli 'presumably' went through Mrs Mirabella's will (and powers of attorney) with her subsequently[113] and was satisfied that they accorded with instructions;[114]
(o) Mr Smarrelli did not notice any errors in the 2007 will when it was 'read' after the passing of the deceased;[115] and
(p) it had not occurred to Mr Smarrelli that there were 'any problems with clause 4' until he was contacted by Gadens shortly before September 2022.[116]
111 I have earlier noted that cross-examination was directed to exposing Mr Smarrelli's unreliability as a witness in respect of the events in 2006 and 2007, particularly in respect of the deceased's intentions and instructions relevant to cl 4(b) of the wills.[117] In that regard -
(a) Mr Smarrelli confirmed that he was relying entirely on his recollection of events and conversations in 2006 and 2007;[118]
(b) Mr Smarrelli confirmed that he had only been able to produce certain documents, but that he had not been able to locate any notes that might have been taken when obtaining instructions from the deceased in 2006;[119]
(c) in that regard, while he acknowledged that it was his 'usual practice' to take such notes, and said that he 'certainly would've taken notes', he could not say that he 'actually did' take notes and explained that his relationship with the deceased was such that 'diary notes became almost ingrained in my mind' and 'the fact that he gave me instructions ... doesn't necessarily correlate to me having taken notes';[120]
(d) while Mr Smarrelli had deposed to obtaining instructions to prepare a power of attorney for the deceased, in which the plaintiff would be appointed attorney, he accepted that, in fact, no such instructions could then have been given and that no such power of attorney had then been prepared;[121]
(e) senior counsel laid a foundation for the submission - to which I have already referred - that Mr Smarrelli having read, checked, explained or confirmed the various wills, one way or another, and on several occasions, cl 4(b) of the 2006 will, in particular, must be an accurate record of the deceased's instructions;[122] and
(f) in respect of cl 4(a) of the 2006 will, Mr Smarrelli was asked to and did confirm that it was drafted 'in accordance with ... instructions'.[123]
112 The latter point assumed particular significance in the course of the closing address of counsel for the defendant. Senior counsel emphasised that s 31(1)(b) of the Act can permit the Court to make an order rectifying a will to carry out the intentions of the testator if it is established that 'the will does not give effect to the testator's instructions'.[124]
113 In that connection, senior counsel referred to several authorities directed to the equivalent provision in the equivalent Act in New South Wales. Particular reference was made to Singh v Singh,[125] in which Gleeson JA (with whom Leeming and White JJA agreed) extracted and referred with approval to the following passage from the reasoning of Barrett J in Vescio v Bannister ('Vescio')[126] -
[12] Implicit in s 27(1)(b) is an assumption that the testator gave "instructions" as to the content of the will. "Instructions" are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally.
[13] In the present case, the will was drawn by a solicitor. There is evidence about the communication by the deceased to the solicitor of "instructions", in the sense of expression by her of her wishes as to how her estate should be disposed of by the will the solicitor was asked to prepare. The court thus has a basis for making findings as to the content of "the testator's instructions".
[14] Having ascertained "the testator's instructions", the court must construe the will as executed and compare its effect, according to its proper construction, with those "instructions": ANZ Trustees Ltd v Hamlet [2010] VSC 207 at [3]; and see the course of analysis and comparison in The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 QdR 26. Only if some discrepancy appears can an order be made under s 27; and the only permissible order is one that causes the will to be in a form that carries out the testator's "intentions".
[15] It follows that the court must also make findings about the "intentions" of the testator - necessarily, of course, the "intentions" existing when the will was made. It is those "intentions" that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the "intentions" of the testator correspond, as to content, with "the testator's instructions". I say this because, in the ordinary course, a testator's intention is that his will should implement the instructions he gives for its preparation. It is with that intention that s 27(1)(b) is concerned. This seems to have been assumed in both Re Hawkes [2005] VSC 93 (at [17]) and Lawler v Herd [2010] QSC 281.
114 In light of the above, counsel submitted that -
... [the] evidence is consistent with clause 4(a) of 19 December 2006, being in accordance [with] and giving effect to the instructions that Mr Smarrelli had received.[127]
115 In that regard, counsel referred to the relevant paragraph of Mr Smarrelli's affidavit, and the question and answer in cross-examination to which I have referred, and submitted -
... [where] the instructions are: 'to leave my shares to my children in equal shares', and that's what the will provides, and that's confirmed by Mr Smarrelli, then [there is] no case for rectification.[128]
116 In respect of the expression 'in equal shares', counsel submitted that 'the question of construction is answered by authority', and otherwise contended that it was not permissible to -
... speculate and form the view that perhaps the instructions and the way they were expressed conformably with those instructions might not have given effect to the subjective intention [of the testator]. Well, that's always possible. But that's not what Your Honour is doing when you're applying s 31.[129]
117 Much of the above is directed to and depends upon the relevant paragraph of Mr Smarrelli's affidavit, which, as I have noted, was confirmed in cross-examination to accord with the instructions that he received. That paragraph reads as follows[130] -
[20] Mr Mirabella also instructed me to put Angelica and his wife to be his executors. Mr Mirabella also instructed that he wanted his 50 per cent interest in the Mirabella companies to go to his children in equal shares, which would give them a 12.5 per cent interest each in the business, and that his wife would retain her 50 per cent share if she survived him. Mr Mirabella said his intention was that when his wife also passed away, that his children would each have a 25 per cent share in the companies. Mr Mirabella instructed me that his wife wanted the same thing.
[Emphases added]
118 The submission of the defendant largely treated what was contended to be the legal meaning of the words 'in equal shares' as controlling the balance of the above paragraph.
119 It may be noted that this part of the defendant's argument focused closely upon and sought to construe and afford a legal meaning to those three words and thereby the entire paragraph of Mr Smarrelli's evidence in circumstances where it was, at the same time, forcefully contended that Mr Smarrelli's evidence concerning other instructions said to have been given by the deceased on the very same occasion was wholly unreliable.[131]
120 In any event, the whole of Mr Smarrelli's evidence conveyed, clearly enough, that he had not been instructed by the deceased to draw the will in terms that would convey a joint holding in the shares, and that if that was the effect of cl 4(a) it did not accord with the instructions that he had received. In that regard -
(a) as I have noted, Mr Smarrelli positively deposed that the deceased had instructed him to convey the shareholdings 'in equal shares' such that the children would be given 'a 12.5 per cent interest in the business' and, in due course, 'each have a 25 per cent share in the companies';
(b) in that sense, Mr Smarrelli's evidence was not simply that he had been instructed that the shareholdings should be gifted 'in equal shares' - the instruction was that the shares should be gifted such that 'each' child ultimately would have a 25% share in the companies; which was at least consistent with, and in my view more likely to mean, that the deceased was instructing Mr Smarrelli to draw his will in order that separate and equal holdings of shares would be conveyed to each of his children rather than a joint holding held as a tenancy in common;
(c) in that regard, Mr Smarrelli directly deposed that the deceased had not instructed him to draft the will so that the shares in his companies would be given to his children as joint holders - which was unchallenged; and
(d) when asked about any review by him of 'clauses 3 and 4', Mr Smarrelli said that he could give no explanation for not picking up that those clauses had not accorded with his instructions - which, in respect of cl 4, was implicitly an acknowledgement that the clause did not accord with what he believed to have been the deceased's instructions.[132]
121 In that sense, while Mr Smarrelli obviously agreed with the proposition that cl 4(a) had been drafted in accordance with instructions, there seems to me to be a distinct difference between what Mr Smarrelli believed those instructions to have meant and what the defendant was saying at trial that they meant. Mr Smarrelli quite obviously did not agree that the deceased's instructions meant that cl 4(a) should have been in a form that would operate to convey a joint holding in the shares.
122 I should add that I do not accept the submission of the defendant that it is, in effect, not open to the Court to discern the true meaning of that paragraph of Mr Smarrelli's evidence. In that regard, it will be evident that I also do not accept the defendant's submission that the words 'in equal shares', in effect, foreclose any further consideration of the meaning of that evidence.
123 Nor do I accept that the effect of the authorities to which I was referred is that the Court may not seek to in any way discern the proper meaning of the relevant evidence. In that regard, I note that the passage from Vescio upon which counsel for the defendant placed heavy reliance refers to the need for the intentions of the testator to reflect, 'as to content', the testator's instructions. Any consideration of 'content' plainly involves correctly understanding the meaning of what was conveyed, and considering whether that was reflected in the terms ultimately drawn.
124 Further, it is evident from that same passage of reasoning in Vescio that the Court is entitled to and, indeed, required to make findings concerning the testator's 'intentions' at the time at which the will was made. It is plain that those 'intentions' must correspond, as to content, with the testator's 'instructions'. However, it does not follow that the Court may not consider the true meaning of those instructions and that, in doing so, the Court may not consider that meaning to be informed by other evidence relevant to a consideration of their true meaning.
125 In the present instance, for the reasons which I have sought to outline, even if it be assumed that the proper construction of cl 4(a) of the 2006 will is that it conveyed to the children a joint holding in the deceased's shares as tenants in common (which I have earlier determined not to be the proper construction of the will), I accept that the intentions of the deceased conveyed via his instructions to Mr Smarrelli were not reflected in such a term and, positively, that the substance of the relevant evidence of Mr Smarrelli was that the intentions and instructions of the deceased were, in effect, that the shareholdings should be divided and conveyed to 'each' of the children 'in separate and equal parcels of shares' (or similar).
(a) Mr Smarrelli's evidence of the deceased's instructions should be found to be unreliable (particularly in respect of the disposition of personal property);[133] and
(b) the best evidence of the deceased's instructions and intentions was ultimately to be found in the written terms of cl 4.
127 As I have earlier noted, Mr Smarrelli gave evidence concerning the circumstances in which the 2007 will was made, including evidence that, in error, cl 4(a) in the 2007 will omitted certain words present in the 2006 will (underlined in the extract at [7] above).
128 Notwithstanding the defendant's challenge in respect of Mr Smarrelli's reliability as a witness -
(a) Mr Smarrelli's evidence concerning the 'missing words' in cl 4(a) of the 2007 will was unchallenged; and
(b) it was ultimately common ground that cl 4(a) in the 2007 will ought properly be rectified in order to take the form of cl 4(a) in the 2006 will.[134]
129 It follows that a significant part of the argument came to be focussed upon the reliability of Mr Smarrelli's evidence concerning the instructions and intentions of the deceased in respect of the 2006 will, particularly cl 4(b). In that regard, I note that cl 4(b) appears in identical terms in both wills.
130 I have already referred to the fact that Mr Smarrelli is a solicitor, and it might often be thought that by reason of the professional training and status of such a witness he should be expected to have presented as clear, concise, focussed and assured.
131 Mr Smarrelli, however, was rather unfocussed in parts of his oral evidence and at times even somewhat bewildered. He may even have been somewhat unprepared.
132 Part of that might have arisen from the fact that Mr Smarrelli was not said to be in the 'camp' of either party, and so may not have been prepared by any counsel prior to giving evidence. Such preparation can sometimes lead to such a witness appearing more focused, clear and assured than would otherwise be the case.
133 In any event, Mr Smarrelli presented as a solicitor who has practised in a small and sometimes suburban setting. He is uncomplicated, agreeable and rather old fashioned. He is bilingual in English and Italian and deposed to having 'a broad range of clients, including clients of Italian heritage'.[135]
134 I infer that in many instances - rather like the evidence in respect of the present transactions - Mr Smarrelli simply takes instructions from his general commercial and other clients and gives them broad and practical advice directed to the substance of their problem or requirement. Often enough, the setting is informal and detailed notes are not necessarily taken. If documents are to be prepared, the work is often done by someone else - who is 'junior' and often enough works from 'precedents'. Mr Smarrelli 'supervises', but does not necessarily sweat much on the details.
135 In respect of the latter, it would be hard to conclude otherwise, as there were at least three significant errors of detail associated with documents relevant to Mr Smarrelli's evidence, particularly -
(a) at the suggestion of one of his solicitors, Mr Smarrelli had required the deceased to remake his will in April 2007 - albeit that in oral evidence Mr Smarrelli conceded that there was strictly no reason to have done so;[136]
(b) as I have noted, in adapting the 2006 will to the form of the 2007 will, Mr Smarrelli retrieved the wrong draft and thereby omitted the 'missing words' in cl 4(a);[137] and
(c) in his main affidavit in the present proceeding, Mr Smarrelli deposed to the making of a power of attorney by the deceased in December 2006 in which the plaintiff had been nominated as attorney, only to then have to admit that error in oral evidence as documents had later come to show that powers of attorney had been made in July 2006 and April 2007, not December 2006 (and, at least in the case of the power of attorney made in April 2007, the plaintiff had not been nominated as attorney).[138]
136 In addition, as I have indicated, there was a measure of imprecision and even confusion in some of Mr Smarrelli's oral evidence, particularly concerning the details involved in his dealings with the deceased and others.
137 To some extent, that position was exacerbated by aspects of his affidavit material that tended to distract from his recollections as to matters of present substance by, for example, referring to 'usual practice' in respect of more peripheral matters of detail such as whether he would ordinarily take notes.[139] That also affected aspects of Mr Smarrelli's oral evidence when, for example, he explained that 'we' would 'generally' prepare a will and power of attorney together as a 'package'.[140]
138 In addition, of course, Mr Smarrelli readily admitted to various absences of 'actual recollection' in respect of the events and matters of detail involved.
139 That said, he maintained firmly and repeatedly that cl 4(b) did not reflect his client's instructions.[141] It is, of course, that evidence, and the evidence immediately related to it, which the defendant contends should be concluded to be unreliable.
140 In that regard, the defendant highlighted and relied upon the observations of McLelland CJ in Eq in Watson, and it seems to me also to be appropriate to acknowledge the impact that the passage of time can have upon the reliability of human memory and, consequently, the quality of justice.[142]
141 It will be evident from what I have already said that to some degree the impact of time upon memory was evident in aspects of the evidence of Mr Smarrelli. On the other hand, the observations of McLelland CJ in Eq in Watson speak to the fallibility of human memory influenced by matters such as 'perceptions of self-interest' and the reconstruction of 'plausible details'.
142 In the present instance, it was not said that Mr Smarrelli was either partial or in any way dishonest; nor that he was in any way motivated by perceptions of self interest in maintaining that cl 4 of the wills did not reflect the instructions of the deceased. In that connection, at one relevant point, Mr Smarrelli directly expressed his professional embarrassment[143] and shortly thereafter said that he could not 'invent a story'.[144]
143 In any event, as I have indicated, no party suggested that Mr Smarrelli was anything other than an entirely honest witness.
144 As to 'plausible details', I have referred to some of Mr Smarrelli's evidence concerning his note taking practices as well as reading, checking and explaining the wills. Much of that evidence was, at best, based in assertions concerning 'usual practice'.
145 Although such evidence is, perhaps, not exactly what McLelland CJ in Eq had in mind when speaking of the reconstruction of 'plausible details', that evidence was redolent with elements of reconstruction of exactly that kind. In particular -
(a) as to the 'usual practice' in respect of notes, albeit that Mr Smarrelli at one point said that he 'certainly would've taken notes', he could not say that he 'actually did' take notes and ultimately acknowledged that the fact that the deceased had given him instructions did not necessarily 'correlate' to him having taken notes';[145] and
(b) as to the 'usual practice' of reading, checking and explaining wills, it was quite evident that, in truth, he had no memory of having done so in the present instance and could not say other than that he 'generally' would have done so.
146 Notwithstanding the above, and, indeed, the defendant's broader contention that the relevant evidence of Mr Smarrelli was unreliable, the defendant strongly submitted that Mr Smarrelli's evidence concerning reading, checking and explaining the wills should be accepted.[146]
147 In any event, to say that cl 4 of the wills does not reflect the instructions given to Mr Smarrelli is something more than a 'plausible detail'; it goes to the very substance and therefore the heart of his instructions.
148 In the present instance, in the setting of subsequent litigation, it can sometimes be tempting to criticise a practitioner such as Mr Smarrelli for having been insufficiently precise, technical and careful. However, Mr Smarrelli implicitly acknowledged his limitations and made no particular claims to technical proficiency or expertise.
149 The emphasis in Mr Smarrelli's evidence was upon his long relationship with the deceased, their undisputed bond, their many and regular meetings in an informal or fluid setting and the intimacy of their understanding such that the deceased's intentions and wishes were 'well and truly ingrained'.[147]
150 It was in that setting that Mr Smarrelli maintained that cl 4 of the wills had not reflected the deceased's instructions and I should say that I perceived him to be giving evidence of his recollection in respect of his client's instructions at the time.
151 I appreciate, of course, that the defendant says that that is Mr Smarrelli's evidence 'now', and that it is unreliable. I also acknowledge the warnings directed to judicial evaluations based in the appearance and demeanour of witnesses.[148]
152 On the other hand, his evidence did come across in the manner described and it does not seem to me to be fanciful to accept it as true even though his memory concerning surrounding details is in some respects blurry, non-existent or erroneous.
153 In that regard, it is hardly surprising that Mr Smarrelli's memory of particular details might be blurred, eroded and in some ways erroneous. He had regular meetings with the deceased, usually in the same place, in very informal settings and he did not always take or have the opportunity to take notes. In respect of the latter, I accept that the evidence about whether Mr Smarrelli took notes of the deceased's instructions was ultimately equivocal.[149]
154 That said, the evidence presently under consideration concerns central matters of real substance - as distinct from peripheral or other details. Those matters are also said to have come up several times.
155 In that context, in my view, it is the very kind of thing that a solicitor such as Mr Smarrelli is more likely to recall correctly. After all, his evident professional style was to engage with his instructions at a rather elemental and 'broad brush' kind of level and not to descend into (or perhaps even notice) the surrounding or underlying details.
156 In my view, that also stands to explain several of the related aspects of the evidence and other circumstances that came to be emphasised in the course of argument.
157 In that regard, the defendant emphasised the terms and manner in which cls 4(a) and 4(b) had been drafted, associated matters of 'authority' and the cross-examination directed to Mr Smarrelli's reading, checking and explanation of the effect of the wills.
158 In particular, as I have noted, the defendant emphasised authorities supporting the proposition that the words 'in equal shares' in cl 4(a) in the 2006 will operated to convey a gift to 'multiple beneficiaries' as tenants in common.[150]
159 However, neither that proposition, nor the authorities upon which it was said to be based, were directly put to Mr Smarrelli in cross-examination.
160 Further, as I have earlier indicated, the form of cl 4(a) of the 2006 will is at least consistent with (and in my view more than consistent with) the view that the persons who drew (and checked) the will perceived cl 4(a) to be gifting the shareholdings to 'each' of the children 'in separate and equal parcels of shares' (or similar). In that regard, I note that -
(a) cl 4(a) uses the simple expression 'in equal shares';
(b) however, cl 4(b) uses the different and more specific expression 'as tenants in common in equal shares';
(c) consequently, the drafter (and checker) of the will likely considered cl 4(a) to be doing something other than creating a tenancy in common in respect of the shares;
(d) the only alternative posited was, in effect, a gift to each of the children 'in separate and equal parcels of shares' (or similar);
(e) which is consistent with the fact that when asked whether cl 4(a) as drafted in 2006 had been 'in accordance with instructions', Mr Smarrelli replied 'as far as, yes, shares were concerned, yes'.[151]
161 More particularly, as I have earlier found, the proper construction of cl 4(a) is, on the face of the terms of the will, such as separately to convey 'equal parcels of shares' (or similar) to each of the four children.
(a) I would not assume, or conclude, that at the relevant time Mr Smarrelli (or the junior lawyer who drafted the will) knew of the so called 'matters of authority' now pressed by the defendant;
(b) the relevant terms of the only available contemporaneous material - namely the 2006 will - are, in my view, corroborative of Mr Smarrelli's recollection that there was to be a gift of 12.5% of the shareholding to 'each' of the children and not, as the defendant would have it, a joint holding gifted to all of the children as tenants in common; and
(c) while in 2006 Mr Smarrelli evidently considered cl 4(a) to reflect the instructions that he had received, his position at trial was plainly that it was not intended to and did not reflect the asserted import of the 'matters of authority' pressed by the defendant.
163 In connection with the above, I should add that the plaintiff relied upon Mr Smarrelli's unchallenged evidence that -
164 The substance of that evidence was also corroborated by Mr Semmens,[154] who was not required for cross-examination.
165 I should say that along somewhat similar lines the defendant confirmed in oral evidence that the deceased had treated his children equally in that -
If I got $100, my father would make sure my brother, Vince, my sister, Angela, my brother, George, got $100.[155]
166 In a sense, such evidence might be said to reflect no more than a stance commonly taken by many parents. However, such a stance is usually adopted with a view to avoiding conflict and disputation between siblings, and that is particularly so when the siblings concerned are considered to be at risk of engaging in such disputes.
167 In that regard, I am conscious that other evidence revealed that -
(a) the deceased had said to the defendant, 'hundreds of times' -
Don't worry, you can't trust anyone, if there's ever a fight between the four of you, you've got my sister [Carmel Cendo], and if my sister can't work it out, you ring up my brother, Vince [in Italy], and he'll be there within 48 hours and he'll fix the four of you up.[156]
(b) there had been a physical altercation between the defendant and his brother Vince during a meeting with the deceased which had been 'the start of the cause between me and Vince [his brother]'.[157]
168 The latter incident seems to have occurred in 2020 - well after 2006 and 2007 - but the earlier exhortations seem to have been sprinkled over a much longer period that may well have preceded and included that time.
169 In any event, the deceased is likely to have known the personalities and tendencies of his children and in 2006 and 2007 may well have perceived the risk of future disputation between his children if his established approach was not implemented in his will in respect of his shareholdings. The evidence to which I have referred does not suggest that such a perception would have been misplaced.
170 The defendant sought to dilute the evidence to which I have referred by reference to an aspect of the affidavit of Ms Donati, who worked for the deceased until 2007. Mr Donati was not required for cross-examination and, among other things, deposed as follows -
During my time working for Paul [the deceased] we would regularly have lunch together and talk about all sorts of things. In one of those conversations, Paul said that he had the old Sicilian mentality that the eldest son would ultimately take this spot. When I asked Paul about this Italian tradition where you must have the eldest son in charge, he said that is what is done, the eldest son becomes heir to my position. Paul had explained that it was not so much for the financial interest, but that Joseph [the defendant] would be in control, as managing director. In the conversations I had with Paul about the future of the companies, including conversations at the end of my time working for him in early 2007, he said to me he always planned that he would have all his children become directors with Joseph being the managing director. Paul said to me Joseph had been there the longest.[158]
171 That evidence, of course, was ultimately directed to an expressed intention that the defendant become managing director, which seems never to have occurred. The evidence also says nothing direct about the deceased's shareholdings.
172 In the circumstances, it is just as likely that the evidence of Ms Donati was proffered with a view to offsetting other evidence that tended to suggest that the defendant had at times suffered reversals and that the deceased had described the plaintiff as his 'right hand person'.[159] Whatever might have been its true intention, I do not consider the evidence of Ms Donati to dilute or displace any force in the evidence to which I have earlier referred.
173 The defendant also sought to side-step the evidence to which I have referred by submitting that 'the shares are not readily divisible [by 4]'.[160] In my view, the state of the shares at the present time says nothing direct or particular about the intentions of the deceased at a much earlier time, particularly when the terms of cl 4(a) contemplate that the numbers of such shares may change. More broadly, I prefer - and accept - the relevant contrary submissions of the plaintiff.[161]
174 Notwithstanding all of the above, as I have noted, the defendant submits that the evidence concerning the deceased's practice of allocating shares and gifts between his children equally cannot lead to any satisfaction of the Court that the deceased 'gave instructions preferring division [of his shareholdings] to co-ownership'.[162]
175 However, in circumstances such as the present, the effect of the essentially uncontradicted evidence together with the inherent logic of events are of significance,[163] and do seem to me to make it likely that -
(a) the deceased instructed Mr Smarrelli that he wanted a 12.5% interest in the business to go to 'each' of the children; and
(b) when giving that instruction he meant that his parcel of 50% of the relevant shareholding, in particular, should be divided into parcels of 12.5% and then given to each of the four children.
176 In that sense, I accept that the evidence to which I have referred tends to suggest that Mr Smarrelli's evidence concerning the deceased's instructions and the fact that they did not come to be correctly reflected in cl 4(a) of the 2006 will is not unreliable.
177 As to cl 4(b), as I have earlier noted, the defendant emphasised the form of cl 3 and the definition of 'personal chattels' in s 5(1) of the Administration and Probate Act 1958 (Vic) and submitted that -
[t]he effect of clauses 3 and 4(b) of the will is to bequeath the deceased's money and personalty other than personal chattels to his children as tenants in common in equal shares.[164]
178 I have earlier noted that the terms of cls 3, 4, 5 and 6 of the 2006 will are somewhat curiously expressed. In particular, it is not obvious why it would ever be that the deceased (who was not a lawyer; and for whom English was his second language) would have instructed Mr Smarrelli that 'all' of his 'personal chattels', so defined, would be given to his wife when that was, in fact, only a subset of 'all' of his personal property and chattels.
179 In the circumstances, it is not easy to discern the mind of the drafter of the document and the confusion evident in it does tend to suggest that cl 4(b) could well have been included in error. In that regard, I note that the relief presently sought by the plaintiff is premised in the proposition that cls 3, 5 and 6 in both wills can operate satisfactorily without cl 4(b).
180 I should add that Mr Smarrelli was cross-examined (in some respects indirectly) about cls 3 and 4(b) and the statutory definition of 'personal chattels'. In that regard -
(a) Mr Smarrelli was not taken to the terms of the statutory definition of 'personal chattels';
(b) Mr Smarrelli did, however, concede that he 'would've' understood 'at that time' that cl 3 did not leave all of the personal property to the deceased's wife;[165]
(c) nonetheless, in relation to cls 3 and 4(b), Mr Smarrelli later said -
I can really only make comment now that I've become totally au fait, refreshed - seen the clause, but at the time I can't recall what I thought.[166]
(d) when again asked about cl 3, Mr Smarrelli said that the deceased had wanted -
all his personal ... belongings, motor vehicles, jewellery, money, always to go to Silvana. [167]
[Emphasis added].
181 It will be evident that the evidence to which I have referred was somewhat confused and its true import is unclear. I could not conclude that Mr Smarrelli knew and understood the full content of the statutory definition of 'personal chattels' when the wills were made in 2006 and 2007.
182 That brings me to the defendant's further contentions concerning Mr Smarrelli's reading, checking and explanation of the wills and related documents, particularly the 2006 will.
183 In that regard, the defendant particularly emphasised elements of Mr Smarrelli's oral evidence to the effect that[168] -
(a) he read the will to confirm its accuracy;
(b) it is likely that he would have carefully checked the drafting to make sure that it was accurate;
(c) the only clauses that required considered drafting were cls 3 and 4; and
(d) he was careful to ensure that the deceased understood the contents of the will and that it reflected his intentions.
184 The cross-examination of Mr Smarrelli concerning his reading and checking of the wills was lengthy and it may be accepted that there were elements of his evidence to the effect relied upon by the defendant.
185 However, as I have emphasised, Mr Smarrelli did seem somewhat confused and bewildered at times in the course of his evidence.
186 Further, it is important that the emphasised elements of evidence be understood in the context of the whole of the relevant part of the cross-examination as well as Mr Smarrelli's evidence more generally.
187 In that regard, it was clear enough that the 2006 will was drawn quickly by a junior lawyer based upon instructions conveyed via Mr Smarrelli to which 'precedents' were thereafter applied and adapted.[169]
188 The general perils associated with such a course are well recognised.[170] That might be thought to be especially so when, in the present circumstances -
(a) it is unclear whether there were any notes taken of the instructions;
(b) the task was considered by the supervisor - namely, Mr Smarrelli - to be 'nothing complicated';[171]
(c) the drafter of the will was a junior solicitor;
(d) the supervisor concerned was broad brush in style; and
(e) the supervisor could well have been unfamiliar with the interstices of relevant authorities as well as the full content of an important statutory provision underlying the arcane language of the various 'precedents'.
189 Put forgivingly, as Mr Smarrelli acknowledged, he 'somehow ... obviously overlooked'[172] things and there could have been 'an issue with attention to detail on my part'.[173] However, in the circumstances to which I have referred, it is not at all surprising to me that Mr Smarrelli did not detect any problems in cls 3, 4(a) and 4(b) of the 2006 will, even if he did read and check it.
190 In that context, and in respect of the occasions on which he read, checked and explained the 2006 will, the later elements in the evidence of Mr Smarrelli that came to be relied upon by the defendant in submissions were framed by the following initial explanations -
And she [the junior solicitor] would then have produced the will for you to review within a day or two? - - - Generally speaking, that is what would normally have happened.
And since it was drafted by a junior solicitor who hadn't been present when the instructions were given by you, you'd have reviewed her drafting of the will with some care, wouldn't you? - - - Yes, I would've, generally. [174]
[Emphases added]
191 That is, Mr Smarrelli had no actual memory of reading, reviewing or checking the draft will and his evidence was directed to what he now believes 'would've' happened.
You read a document that says this [cl 3], and you'd have understood at that time ... [w]ould've been as clear as crystal to you that that clause didn't leave all the personal property to Silvana, wouldn't it? - - - Correct.
Yes. And it would've occurred to you ... that that should be changed to say, 'All my personal property'. If you wanted to, you could add, 'including personal chattels and money'. So, if that was your understanding, you would've suggested something to that effect, wouldn't you? - - - Correct.
Now, then you read paragraph 4(a) and you've said in your affidavit what your instructions for 4(a) were, and it's consistent with drafting of clause 4(a). But 4(b) - you read that and you must've read that the will had been drafted so as to provide that Mr Mirabella's ... children were to receive the whole of his personal property as tenants in common in equal shares? - - - Well, that's what it reads, and as I said, I'm professionally embarrassed by that inclusion of that paragraph, but that's not what Mr Mirabella intended. [175]
193 Shortly thereafter, when asked about meeting with the deceased to 'go through the will' and 'again read it', Mr Smarrelli replied 'yes, [I] would've'.[176]
194 Similarly, in respect of his explanation of the will to the deceased, Mr Smarrelli stated -
I would imagine he would've relied on my ... explanation in this case.[177]
195 Immediately thereafter, in respect of explaining cl 4(b), Mr Smarrelli said -
Again, I can't be specific. I can't remember.[178]
196 Mr Smarrelli then referred to what his 'usual practice would've been'[179] and several of the elements of his evidence now relied upon by the defendant followed.
197 Some of that evidence was a little confused, but his concessions concerning 'conclusions' that 'one could draw'[180] were necessarily abstract and based in one or more assumptions,[181] as Mr Smarrelli plainly had no actual memory of what he had done or, indeed, whether in this instance he had actually done it.
198 I should say that no different picture emerged in Mr Smarrelli's later evidence concerning the 2007 will or the preparation and reading of the will of Mrs Mirabella.[182]
199 For completeness, I should add that the likely degree of efficacy in any process of reading and checking undertaken by Mr Smarrelli at any relevant time was highlighted in a particularly revealing way by his evidence concerning the 'reading' of the 2007 will after the passing of the deceased.
(a) the relevant paragraph of his second affidavit was evidently in error and gave rise to a need to clarify its intended meaning at the outset of his oral evidence;[183]
(b) the extent of clarity engendered by that process is debateable - a position that was perhaps accentuated when the topic was revisited in cross-examination and then sought to be further clarified in re-examination;[184]
(c) in any event, it seems that Mr Smarrelli did not detect any problem with cls 3 and 4 of the 2007 will when it was actually read by him at that meeting, notwithstanding the plainly perplexing elements of their form, and albeit that, at the very least, at that time the 2007 will had the words missing from it that both parties now agree should have been there;
(d) in that regard, the problems the subject of at least part of the present debate seem to have been first raised by Gadens (the plaintiff's solicitor) and thus first understood by Mr Smarrelli - and even then perhaps not perfectly clearly - in September 2022.[185]
201 In the circumstances to which I have referred, in my view it does not really matter how many times either will or any of the associated documents were read, checked or explained by Mr Smarrelli; I cannot accept that any of those processes were likely to identify any of the presently controversial features in the will of the deceased.
202 The evidence to which I have referred is plainly imperfect. Time has passed, some memories have been eroded and Mr Smarrelli was not a perfect witness. However, it is commonly the case that courts are required to evaluate the evidence of such witnesses. Indeed, civil juries are regularly instructed that they can accept part of the evidence of such a witness and disregard other parts.
203 In light of all of the evidence to which I have referred -
(a) having seen, heard and carefully considered the evidence of Mr Smarrelli;
(b) having considered the other relevant evidence - particularly the terms of the 2006 will and the 2007 will, the elements of other relevant evidence, and the inherent logic of events; and
(c) having remained mindful -
(i) of the gravity of altering a will to change the disposition of a deceased person's property; and
(ii) that the present task is not about choosing between competing possibilities and choosing which is the more likely,
I am, on the balance of probabilities, persuaded that the deceased's intentions and instructions were not given effect in cl 4 of the 2006 will and 2007 will.
204 In that regard, I am satisfied that, on the evidence, it is on the balance of probabilities 'clear and convincing'[186] that in November or December 2006 the deceased instructed Mr Smarrelli that -
(a) his shareholdings were to be divided into four parcels of shares, one of each of which was to be separately gifted to each of his four children; and
(b) the whole of his personal property was to be given to his wife.
(a) if it be concluded that cl 4(a) of the 2006 will operates to convey to the children a joint interest in the deceased's shareholdings as tenants in common, that did not carry out the deceased's intentions because it did not give effect to the deceased's instructions;
(b) cl 4(b) also did not give effect to the deceased's intentions and instructions; and
(c) consequently, pursuant to s 31(1) of the Act, the 2007 will should be ordered to be rectified in order to carry out the intentions and instructions of the deceased.
206 It is common ground that cl 4(a) of the 2007 will should be rectified in order to reflect the form of cl 4(a) of the 2006 will.
207 It will be evident that I accept that the proper construction of cl 4(a) of the 2006 will (and thus cl 4(a) of the 2007 will as rectified by reference to the present common ground between the parties) is that it conveys the deceased's shareholdings to the children 'in separate and equal parcels of shares' (or similar).
208 Even if I am wrong in that construction, I accept that cl 4(a) of the 2007 will (as rectified by reference to the parties' common ground) did not give effect to the deceased's instructions and, if necessary for the avoidance of doubt, should be rectified pursuant to s 31(1) of the Act in order to do so.
209 I also accept that cl 4(b) of the 2007 will does not give effect to the deceased's instructions and, consequently, the 2007 will should be rectified by deleting that clause.
210 In light of the above, I will allow the parties to consider the form of orders appropriate to give effect to these reasons. If necessary, I will hear the parties in due course, including in connection with any issue of costs.
[5] Exhibit J. At the same time, the deceased made medical and financial powers of attorney - exhibits K and L - as did his wife, who also made a will (Exhibits F, G and H). I should say that it was acknowledged by Mr Smarrelli in evidence that there was no legal reason which required that the 2006 will be remade: T79.
[6] Ms Donati retired in June 2007. The Court was informed that Mr Laino passed away in 2017.
[10] Plaintiff's outline of closing submissions, [88]. See also, T14-15.
[13] Plaintiff's outline of closing submissions, [38].
[14] Plaintiff's outline of closing submissions, [39], Defendant's outline of closing submissions, [4] and T125-126.
[15] Plaintiff's outline of closing submissions, [70].
[16] Plaintiff's outline of closing submissions, [78].
[18] Plaintiff's outline of closing submissions, [82].
[19] If that clause is deleted, it is said that 'there is no remaining tension ... between clauses 3 and 5': see, Plaintiff's outline of closing submissions, [77].
[26] Defendant's outline of closing submissions, [9] & [58]-[60].
[28] Cf., Chan v Valmorbida: IMO the Will of Adrian Valmorbida [2019] VSC 336, [23] ('Chan').
[34] Exhibits C, D, E, F, G, H, K, L and M.
[37] Plaintiff's outline of closing submissions, [57].
[39] Defendant's outline of closing submissions, [1].
[40] Defendant's outline of closing submissions, [42].
[41] Defendant's outline of closing submissions, [2].
[42] Defendant's outline of closing submissions, [4], [37] and [57].
[43] Defendant's outline of closing submissions, [35]-[36].
[44] Defendant's outline of closing submissions, [9] & [59].
[45] Defendant's outline of closing submissions, [39].
[46] Defendant's outline of closing submissions, [25]: quoting Fell v Fell (1922) 31 CLR 268, 273-275.
[47] Plaintiff's outline of closing submissions, [5]; referring, in particular, to Craven v Bradley (2021) 63 VR 567 ('Craven'), 586-587 [74]-[75].
[49] Plaintiff's outline of closing submissions, [6]-[11].
[50] In re Allan [1950] VicLawRp 22; [1950] VLR 405, 408 ('Allan'). That said, in closing address senior counsel for the defendant submitted that it would be necessary to exercise some caution with the case of Allan (T220). In any event, the defendant relied upon several statements from authoritative texts to a similar effect - see, for example, Birtles, Neal & Sims, Hutley's Australian Wills Precedents, 10th ed., 2021, 429 [27.8].
[51] De Lorenzo v De Lorenzo [2020] NSWCA 351; (2020) 104 NSWLR 155 ('De Lorenzo') and Haines, Construction of Wills in Australia, LexisNexis Butterworths, 2007, [19.1]-[19.4].
[52] Boyes v Cook [1880] UKLawRpCh 76; (1880) 14 Ch.D 53, 56. See also, Plaintiff's outline of closing submissions, [11] and [53]-[70].
[53] Defendant's outline of closing submissions, [26].
[54] See also, Re Niall [2019] VSC 423, [23]-[38].
[55] Cf., Vescio v Bannister (Estate of the late Betty Tait) ('Vescio') [2010] NSWSC 1274, [12]-[15], Paltos v Brassil [2013] NSWSC 1408, [14]-[18] and Singh v Singh ('Singh') [2018] NSWCA 30, [178]-[195].
[56] [2004] VSC 537 ('Prevost').
[57] Prevost (n 56), [17]. As to 'clear and convincing proof', in reply counsel for the plaintiff noted the recent decision of the Court of Appeal in Vanta Pty Ltd (as trustee of the Mantovani Family Trust) & Ors v Mantovani & Anor ('Vanta') [2023] VSCA 53, [57]-[92].
[59] [2022] VSC 397 ('Silva').
[61] [1995] NSWCA 497; (1995) 49 NSWLR 315 ('Watson').
[62] Watson (n 61), 319. The defendant also referred to and relied upon Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923, [73]-[95].
[63] Plaintiff's outline of closing submissions, [71]-[77].
[66] I note that in closing address, senior counsel for the defendant submitted that the question of construction of cl 4(a) 'doesn't really arise' if the defendant's submissions in respect of the 'rectification case' are accepted as correct: T160. However, in its written outline of closing submissions the defendant submitted that the 'necessary first step in determining a rectification application is to construe the last will': Defendant's outline of closing submissions, [17]. In light of the manner in which the issue of rectification is ultimately determined, I have considered it desirable to determine the issues in the order suggested in the defendant's written outline.
[72] T170-173. In that connection, senior counsel referred particularly to Martyn et al, Theobald on Wills, 18th ed, Thomson Reuters, [26-060] & [26-062], Sherrin et al, Williams on Wills, 8th ed, Butterworths, 2002, [86.2] & [86.5], Haines, Construction of Wills in Australia, LexisNexis Butterworths, 2007, [24.1] & [24.6] and Hutley's Australian Wills Precedents, 10th ed, [27.8].
[73] T173. The only reference or example proffered in argument was the language utilised in Silva (n 59).
[74] I have earlier referred to and extracted a passage from Allan (n 50), in which Dean J referred to a passage in Theobald on Wills (10th ed) and described it as 'well settled that the Court leans against a construction of a gift to several as a gift to them as joint tenants, and if any reasonable ground exists for treating the gift as a gift to them as tenants in common, it will be so construed'. However, in argument, senior counsel very fairly cautioned care in approaching Allan (n 50): T220.
[76] Haines, Construction of Wills in Australia, LexisNexis Butterworths, 2007, [19.1]-[19.5]. Notably, different passages in the same text were relied upon by the defendant in support of the so-called 'matter of authority'.
[77] I do not overlook the submission of the defendant that cl 3 is a specific bequest and should take precedence over the more general cl 4(b): T147. The present point, however, is a different one.
[78] Plaintiff's outline of closing submissions, [51].
[79] Plaintiff's outline of closing submissions, [51].
[80] Clause 6 was referred to in the defendant's opening submissions, although not in any sense relevant to the submission of the plaintiff identified above: Defendant's outline of submissions on plaintiff's rectification application, [22].
[85] Williams on Wills, 8th ed, Butterworths, 2002, [86.2] and Haines, Construction of Wills in Australia, LexisNexis Butterworths, 2007, [24.1].
[86] [1838] EngR 1086; (1838) 3 Y & C Ex 246; 160 ER 693 ('Pearce').
[88] [1944] VicLawRp 25; [1944] VLR 205 ('Rentoul').
[95] Plaintiff's outline of closing submissions, [70].
[102] T57. Mr Smarrelli deposed that for approximately 30 years he usually met with the deceased on a Saturday, if he was available: Exhibit 6, [17]. The 'Saturday meetings usually went for between one to three hours and were generally initially a social affair that eventually turned to business matters' and the friends of the deceased would 'drop by earlier in the day and then our discussions turned to business matters when we were alone': Exhibit 6, [18].
[106] T69. Mr Smarrelli denied the suggestion 'that's what you say today based on your recollection of the instructions you've received': T70. See also, T73 and 75.
[115] T49-51 and T89-92. Cf., Exhibit A, [8].
[117] In address, particular emphasis was given to the opportunities for reading, checking and confirmation of the terms of the will in respect of Mr Smarrelli's evidence at trial that, contrary to the form of cl 4(b), the deceased had instructed him that he wanted his personal property to be given to his wife. The submission perhaps was not strictly abandoned in respect of cl 4(a), although in respect of that clause it was more muted and was at most a subsidiary submission: see, for example, T127: '... the clause [4(a)] complied with the instructions he'd received, which isn't surprising given the number of occasions on which the will had been reviewed by Mr Smarrelli after receiving the instructions, and by Mr Mirabella'. That was, perhaps, because to emphasise forensically any unreliability in Mr Smarrelli's evidence concerning the instructions received relevant to cl 4(a) would be essentially to undercut the defendant's main submission in respect of that clause: namely, that it accorded with the instructions reflected in Mr Smarrelli's main affidavit: see Exhibit 6, [20].
[132] T72. See also, T74-75: in which reference is made broadly to consistency of 'clauses 3 and 4' with the 'instructions you'd received', in response to which Mr Smarrelli ultimately replied '... I knew exactly what he [the deceased] wanted, but it's not reflected in this document'. Also, T76: '... there is obviously a difference in my understanding of his instructions and what he finally signed. It doesn't match'.
[133] Defendant's outline of closing submissions, [9].
[137] Exhibit 6, [37]-[38]. Cf., T80.
[141] See, for example, T47, T57-58 and T69-70.
[142] Watson (n 61), 319; cf., Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551.
[148] See, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588, 617-618 [88].
[149] Plaintiff's outline of closing submissions, [30].
[150] Defendant's outline of closing submissions, [46]-[49].
[159] See, for example, Exhibit 6, [11], [12], [15] and [19]. See also, T46 and T60.
[160] Defendant's outline of closing submissions, [54]-[55].
[161] Plaintiff's outline of closing submissions, [59]-[67].
[162] Defendant's outline of closing submissions, [36].
[163] Cf., Fox v Percy (2003) 214 CLR 118, 129 [31].
[164] Defendant's outline of closing submissions, [52].
[168] Defendant's outline of closing submissions, [32]-[34].
[170] Cf., ANZ Trustees Ltd v Stanley Hamlet & Ors [2010] VSC 207, [9].
[181] See, for example, at T76: 'One would assume that, yes'.
[186] Cf., Silva (n 59), [11]. For present purposes, I am prepared to assume that I should be so persuaded on the balance of probabilities and in a manner that is 'clear and convincing', although I take leave to doubt that the gloss can survive the reasoning of the Court of Appeal in the recent case of Vanta (n 57).
Plaintiff
GIUSEPPE MIRABELLA
(1922) 31 CLR 268
(2020) 104 NSWLR 155
(1995) 49 NSWLR 315
(2021) 63 VR 567
(1996) 186 CLR 541
(1999) 160 ALR 588
(2003) 214 CLR 118