Re Negrean; Borbil v Borbil [2025] QSC 66

GENERALLY - where the executor of a will seeks declarations as to its proper construction - where the will is "homemade" and written by a testator with limited written English ability - where a beneficiary contends that the will gifts to him a life interest in real property - where a beneficiary may be owed debts by the estate - whether the will should be construed as requiring the executor to any pay proceeds of the real property sale to a beneficiary who claims to be owed debts by the estate - how the will should be construed generally

Carson v Presbyterian Church of Queensland [1956] St R Qd 466

Fell v Fell (1922) 31 CLR 268

Houston v Burns [1918] UKHL 3; [1918] AC 337

Hurley v Hurley [1947] HCA 22; (1947) 75 CLR 289

King v King [2012] 2 Qd R 44

Langston v Langston [1834] EngR 190; (1834) 2 Cl & F 194

Lennon v Opalicki [2005] QSC 307

Lewis v O'Loughlin [1971] HCA 53; (1971) 125 CLR 320

Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 Qd R 26

Re Burn (1918) 14 Tas LR 83

Re Bywater [1881] UKLawRpCh 115; (1881) LR 18 Ch D 17

Re Crocombe [1949] SAStRp 19; [1949] SASR 302

Re Hoppe [1961] VicRp 64; [1961] VR 381

Re O'Sullivan [1969] Qd R 516

Re Potter's Will Trusts [1944] Ch 70

Re the Will of Mayer [1995] 2 Qd R 150

Rice v Rice (2015) 52 Fam LR 618

J Negrean for the third respondent / applicant (self- represented)

• [1] Three applications in two proceedings were listed for hearing on 26 March 2025.
• [2] The persons appearing on the applications were Timotei Borbil (Tim) as executor of the estate of Raveica Negrean (Raveica), deceased, and John Negrean (John), one of the beneficiaries of the estate of Raveica.
• [3] Raveica's husband pre-deceased her. She left five children - Cosmin Borbil (Cosmin), Crina Bocos (Crina), John, Elisei Borbil (Elisei) and Tim. All of those children, except John, have their own children - the grandchildren of Raveica.
• [4] Raveica died on 2 March 2019 leaving a will dated 18 February 2019. Probate of the will was granted to Tim on 14 July 2023.
• [5] Two of the applications were brought by John against Tim (as executor) on file 4542/23 (the probate file), filed 8 November 2024 and 3 December 2024. John indicated he did not wish to proceed with those applications and they have been dismissed.
• [6] The third application (an originating application) was brought by Tim (as executor) on file 327/25, filed 24 January 2025. An amended originating application (AOA) was filed on 11 March 2025. The AOA seeks two things -

(a) declarations as to the proper construction of Raveica's will;

(b) the delivery up of vacant possession of the real property that forms the main asset of Ravecia's estate (3 Falstaff Street, Sunnybank Hills - the Property).

• [7] Whatever the proper construction of Raveica's will, all parties seem to now accept that, absent some agreement with John to purchase the Property, the Property is going to have to be sold to satisfy the debts of the estate, which cannot be satisfied without the Property being sold. I will not immediately make orders for possession so as to give the parties some time to negotiate a possible purchase by John and otherwise (if no agreement can be reached) for the court to hear submissions about the terms that ought attach to any delivery up of vacant possession.
• [8] Accordingly, these reasons are concerned only with paragraphs 1 to 3 of the AOA regarding the proper construction of Raveica's will.
• [9] I note that all of the beneficiaries (including the minors, being grandchildren of Raveica, through a parent) appear to have notice of the application and none have appeared. There is material from some of them. John has appeared (self-represented) and made submissions. Tim (as executor) has appeared and made submissions through counsel. As befits his role as executor, despite also being a beneficiary, he has taken a neutral position of attempting to assist the Court rather than advocating for any particular position that might suit his personal interests in regards the proper construction of the will.
• [10] In the circumstances of John being self-represented, and there being two related files, I have had regard to the material filed on both files, not only the file on which the AOA appears. That is how the parties asked me to proceed.
• [11] As the hearing unfolded, it became evident that there is in fact not a significant amount of dispute between the parties about the proper construction of Raveica's will. And the proper construction of the will may not be of practical application in some respects where I have seen evidence that the Property was the subject of a break-in and many of the specifically identified chattels in the will were apparently stolen. Regardless, I will identify the proper construction of Raveica's will where any dispute about same exists or has existed.

Relevant legal principles of construction to be applied

• [12] There did not appear to be any real dispute between the parties as to the relevant legal principles to be applied on an application for this nature. Accordingly, I will only summarise the relevant legal principles briefly.
• [13] The Court's function is to ascertain the deceased's intention when interpreting a will. That is done by construing the words of the will accordingly to their ordinary meaning bearing in mind the facts existing at the time the will was made.1 The will is to be considered as a whole2 and ordinarily the Court will strive to give effect to all the words of the will. It is better to give effect to a gift than for a gift to be nullified.3
• [14] The language used in the will should be read in the sense the maker appears to have used the language. Regard can be had to speech habits of the maker - for example, that

1 Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 Qd R 26, [24]-[26] (Atkinson J).

2 Fell v Fell (1922) 31 CLR 268, 273 (Isaacs J).

3 Langston v Langston [1834] EngR 190; (1834) 2 Cl & F 194, 243 (Lord Chancellor).

English was her second language. But the plain meaning of the words used should not be ignored and nor should words be implied to give effect to an intention that is not expressed.

• [15] The Court should not speculate or guess about what the maker intended - the Court must adopt what seems the most probable interpretation of the will.4
• [16] In a case such as this where the will is obviously homemade, words and form (including punctuation)5 might be looked at less strictly.6
• [17] Where there are apparent inconsistencies in the will, an attempt to reconcile the differences should be made. Otherwise, the general rule is that the later part of the will prevails,7 but that general rule is rebuttable on a reading of the will as a whole.8

Relevant legal principles to be applied regarding life interests and rights to reside

• [18] It is a matter of construction (of the whole will) as to whether an interest or rights given to a beneficiary to live in a property is a life interest or merely a licence giving a right to reside.
• [19] The key difference is that a life interest allows the interested person to tenant the property and collect rent from same (a right to profits);9 that is, there is a right to use the property, rather than just reside in it.10 That is not the position in resect of a right to reside.
• [20] No interest in land is conferred by a licence giving a right to reside unless expressly conferred.11

• [21] I make some preliminary comments. Raveica's will is obviously "homemade". The evidence discloses that Raveica was 65 at the time the will was made. She was born in Romania, lived in Australia for 36 years, and was not capable of drafting a document of this kind herself (she was unable to type and had limited written English ability). She has had assistance with the preparation of the will by an unknown person. The language used in the will is imprecise (and at times wrong - for example "live for use" - likely intended to be "youse" (sic)). Grammar and punctation errors are frequent in the will. The will is quite personalised in parts though, indicating Raveica had some close involvement in its preparation.

4 Carson v Presbyterian Church of Queensland [1956] St R Qd 466, 474 (Townley J).

5 Houston v Burns [1918] UKHL 3; [1918] AC 337, 348 (Lord Shaw of Dunfermilne).

1. Lewis v O'Loughlin [1971] HCA 53; (1971) 125 CLR 320, 330 (Menzies J); Re Crocombe [1949] SAStRp 19; [1949] SASR 302, 305 (Mayo J).

7 Re Potter's Will Trusts [1944] Ch 70.

8 Re Bywater [1881] UKLawRpCh 115; (1881) LR 18 Ch D 17, 24-25 (James LJ, Brett and Cotton LJJ agreeing).

9 Re Burn (1918) 14 Tas LR 83.

10 Rice v Rice (2015) 52 Fam LR 618, 636 [94] (Cronin J).

1. King v King [2012] QCA 39; [2012] 2 Qd R 448, 453-455 [32]-[39] (Chesterman JA, White JA and Margaret Wilson AJA agreeing).

• [22] There is no disputed issue of construction in relation to the first paragraph of the will. It merely revokes previous wills.

• [23] There is no disputed issue of construction in relation to the second paragraph of the will. It merely identifies the executors.

• [24] There is no disputed issue of construction in relation to the third paragraph of the will. It expresses love and affection for each of Raveica's children. That is important background information which may assist in the proper construction of other parts of the will.

• [25] The fourth paragraph of the will is headed "Special directions" as compared to the paragraphs five and six of the will which are headed "Specific gifts and legacies".
• [26] In terms, what thereafter follows in the fourth paragraph appears in the nature of expressed requests of the executor with an appreciation that the requests may or may not be able to be carried out. For example, there are repairs dependent on money in a bank account being available.
• [27] There is also, for example, a request for all furniture to stay in the house (bar a particular item), but that is potentially inconsistent with the distribution of the estate chattels that is later expressed in the will. That is suggestive of, and it is in my view, again a request with an appreciation that it may not occur, as distinct from an actual disposition of assets.
• [28] This paragraph contains the words that John contends gives him a life interest (or other interest) in the Property. The relevant words appear after the third sentence and provide:

I would ask that any money in my bank account to use for bills, funeral costs and repairs to house at 3 Falstaff Street Sunnybank Hills, Queensland 4109. Which is my son John Negrean (Ioan Borbil) principal place of residence and I wish it to continue being his home for as long as he wanted to be.

• [29] In my view, those words, in the context of the will as a whole, are not sufficient to create a life interest in the Property in favour of John. The reference to the Property being "his home for as long as he wanted to be" strongly points against any interest created including a right of profits. At the most, there is a personal right to live in the Property12 which may or may not be exercised.13
• [30] In fact, I conclude that fourth paragraph is not sufficient to create even a right to reside. Like the balance of the "special directions" in the fourth paragraph, I conclude on the

12 Re the will of Mayer [1995] 2 Qd R 150; Re Hoppe [1961] VicRp 64; [1961] VR 381.

13 Hurley v Hurley [1947] HCA 22; (1947) 75 CLR 289.

proper construction of the will that what Raveica here intended was not the creation of any rights (as appears under the next heading of "specific gifts and legacies") but mere wishes which may or may not come to pass. In this case, with the Property left to John and Elisei, what Raveica was expressing here was simply a wish that John might continue to live in the Property if he wanted to. The effect of the words is not dispositive.

• [31] Even if I am wrong in that conclusion and a right to reside was granted to John, such a right came to an end when John vacated the Property for a period of time and/or when he commenced renting out rooms in the Property14 (which rent he has not remitted to the estate).

• [32] Paragraphs five and six are headed "Specific gifts and legacies". Paragraph seven is headed "Distribution of residue". This is the part of the will that actually disposes of the estate. The paragraphs contain some apparent inconsistencies that are required to be reconciled. And this is one of the rare cases where there are certain words appearing in the sixth paragraph that I conclude have no work to do.
• [33] Paragraphs five to seven of Raveica's will provide:

I give, free of any relevant duties, to my children Cosmin, Crina, John, Elisei, Timothy and my grandchildren I give everything that belong to me. At 3 Falstaff Street Sunnybank Hills, Queensland 4109. For children to keep in equal shares, any of my personal belongs namely being crystal wear and collectibles. The collectibles include: clothes, shoes, drapes, bedlinen, porcelain, statues, Crochet artwork, I would like my children Cosmin, Crina, John, Elisei, Timothy to keep for their children their equal shares of the following, possum collectible coin set, commonwealth games coin set.

Please be mindful that my son John Negrean live with me at that address and to be careful not to take things that belong to him. I ask that the things children wish to keep should be kept and not disposed of as rubbish down the track. But rather to be sold and the money to be used to pay for my funeral costs and repair work to the house. I give to my son John Negrean (Ioan Borbil) all motor vehicles I may own at the time of my death. Also, my pink Argyle diamond, gold rings, gold necklaces, gold watches, gold bracelets, and scrap gold. Oil painting, crystal wear and collectibles, furniture, collectible coins, bank notes, white goods. I would like give. my investment property of 1/15 Wells Street Morwell, Victoria 3840 to my son Timothy Borbil of 408 Mt Gravatt Capalaba Road Wishart, Queensland, 4122.

I give the whole of the residue of my Estate both real state and personal. Including all there in of 3 Falstaff Street Sunnybank Hills QLD 4109 to my son John Negrean (Ioan Borbil) of 3 Falstaff, Street Sunnybank hills Queensland 4109 and to my son Elisei

14 Lennon v Opalicki [2005] QSC 307.

Borbil of 127 Kurrajong Road Narre Warren, Victoria 3805. If the property ever to be sold, the monitory gain from the sale of the property Must first pay John Negrean (Ioan Borbil) for all money owed then the rest be shared equally between John and Elisei or their surviving beneficiary

• [34] First, it is plain that the full stop after the "everything that belong to me" in the fifth paragraph should not be present. There follows specific gifts and provisions dealing with the residue that make it plain that what is first being dealt with is the property that exists at the Property (but not the Property itself or anything not at the Property - for example, a bank account - and not any other specific gifts later carved out). When reference is then made to "personal belongs", that is to distinguish the items personally belonging to Raveica from some items at the Property that belong to John (as is further indicated by the sixth paragraph).
• [35] Reference is made to the children keeping in equal shares and then a request for the children to keep for their children certain of the items (coin sets) - but in "their equal shares". Despite then the opening words of the fifth paragraph referring to giving everything to the children and grandchildren in equal shares, I do not think that was in fact intended.
• [36] The proper construction of the will is that that category of items (everything that exists at the Property except later specific gifts carved out) is to be divided equally between the children only. There is then just an expressed non-binding wish for the children to pass their equal share of certain items onto their children. The grandchildren are not in fact beneficiaries under the will per se.
• [37] The sixth paragraph disposes of any estate motor vehicle to John. This is not in dispute. It also disposes of a list of specific items that John is to receive - "my pink Argyle diamond, gold rings, gold necklaces, gold watches, gold bracelets, and scrap gold." The use of the word "and" before the reference to scrap gold indicates that was the end of the list intended to be given to John.
• [38] What then follows though, are these words in a separate sentence (albeit not a complete sentence): "Oil painting, crystal wear and collectibles, furniture, collectible coins, bank notes, white goods." It is possible this was intended to be a continuation of the list of chattels being specifically bequeathed to John. But if that be so, it does not sit comfortably with the fifth paragraph, specifically the earlier bequests of crystal wear, collectibles, and the collectible coins specifically mentioned. On the other hand, in the circumstances of the Property being bequeathed to John and Elisei and the expressed wish of John being allowed to continue living in the house, it might be readily appreciated that Raveica may have wished any furniture and white goods of hers to go to John.
• [39] John's position in the application, against his own interests, was to contend that his mother likely was trying to split up different items of the same general description - for example, different collections of crystal wear - but, having not done that effectively with the words in the will, said that the items comprising "oil painting, crystal wear and collectibles, furniture, collectible coins, bank notes, white goods" fell within the bequest in the fifth paragraph and those words had no work to do in the sixth paragraph.

• [40] I agree. I think those items fall within the bequest in the fifth paragraph and in the sixth paragraph are just a list of chattels not tied to any bequest to any specific person. In other words, the list of chattels in the sixth paragraph are no more than a particularisation of some of the items the subject of the bequest in the fifth paragraph and fall within the "personal belong[ing]s" to be divided equally between Raveica's children in accordance with the fifth paragraph.
• [41] The sixth paragraph also disposes of an investment property to Tim. That is not in dispute.
• [42] The seventh paragraph purports to deal with distribution of the residue. It in fact disposes of the Property to John and Elisei (absent any indication to the contrary, in equal shares).15 Insofar as it refers to "all there in of 3 Falstaff Street", the reference to "real state" (sic) is clearly intended to refer to the real property. That there may be no residue of chattels at the Property because of the distribution in the fifth paragraph causes no difficulty. The other residue distributed by this paragraph would include, for example, other property owned by Raveica not located at the Property (for example, bank accounts).
• [43] The second sentence of the seventh paragraph provides -

If the property ever to be sold, the monetary gain from the sale of the property Must first pay John Negrean (Ioan Borbil) for all money owed then the rest be shared equally between John and Elisei or their surviving beneficiary.

• [44] John pointed to this sentence as requiring the executor, if the Property is sold by the executor, to first pay John an amount he claims is owed by Raveica to him (some hundreds of thousands of dollars). The sentence does not operate in that way. The sentence is concerned with if the Property has been sold before the date of death, telling the executor what to do with the proceeds of sale (assuming the proceeds still exist in some traceable form in the estate). The sentence has no effect if the property remains unsold as at the date of death (which is the case here).
• [45] That of course does not mean the executor ignores any debt that might be owed by the estate to John. Any such claim will just be dealt with in the ordinary administration of the estate - that is, estate debts are generally finalised before the balance of the estate is distributed in accordance with the will, and the court can make orders about disputed estate debts as may be necessary in appropriate proceedings.

• [46] There are no disputed issues of construction in relation to the balance of the will.

15 Re O'Sullivan [1969] Qd R 516.

• [47] I summarise the key findings I have made as to the construction of the will as follows -

(a) the will does not create any life interest in the Property in favour of John;

(b) the will does not create any right of residence in the Property in favour of John, and if it did, that right of residence has been terminated;

(c) the will disposes:

(i) the Property to John and Elisei in equal shares;

(ii) the investment property to Tim;

(iii) the pink Argyle diamond, gold rings, gold necklaces, gold watches, gold bracelets and scrap gold to John;

(iv) the motor vehicle to John;

(v) everything else located at the Property belonging to Raveica to the five children in equal shares;

(vi) any residue to John and Elisei in equal shares.

• [48] Subject to hearing argument from the parties, I would propose to order that Tim's (as executor) costs of proceeding 327/25 be paid from the estate on the indemnity basis. That would be the usual order in a case such as this.
• [49] I would further propose to adjourn paragraph 4 of the AOA for further review until a date say three or four weeks hence to allow the parties a short period of time to see if the issue of possession of the Property can be resolved without court orders.
• [50] I will hear from the parties as to the form of orders to be made.