2B. On the true construction of the February will what is meant by "my properties"?
43 It may well be that my judgment to date means that this is no longer a live question. Submissions were addressed to me that the word was "properties", not "property" and that we were not dealing with a standard residue clause, but were dealing with a specific clause. There is some support for that submission in the New Zealand decision of In re Suisted [1933] NZLR 119 where Herdman J did find it most significant when a testator had used the word "properties" in the will rather than "property". However, there, the testator had given "all his properties, stock and moneys" to X and the question was whether that covered furniture, a life insurance policy and shares. The learned judge held that the words "stock and moneys" had limited what properties meant. However, he did make the point that even though the person who says "all my property" means to give all his property both real and personal (see, for instance, Doe d Wall v Langlands (1811) 14 EAST 370; 104 ER 644) that method of interpretation would not normally be carried over where the word is "properties".
44 Both counsel were agreed that the word "properties" in ordinary usage meant land, however, that does not mean that in any particular will the testator does not use it in some special sense.
45 It is unusual for a will not to contain a residue clause. The affidavit of Mr Naidu shows that he contemplated a usual residue clause, but did not think he could use it because he was worried about the fact that it was only a will dealing with Fijian property. He did, however, include "the gift of my properties" to the widow and there is no residue clause. It would be, despite Mr Rich's submission that the presumption against intestacy is only a weak one, very odd indeed that a man who would go to all this trouble in a large estate would mean to die intestate and, accordingly, in my view the words "my properties" must mean "my other property".
46 3. So far as rectification is concerned, it does not seem to me that in view of what I have already said I need to go into this area. However, as I have already hinted, it is abundantly clear that if I am wrong on my construction of the will that section 29A of the Wills, Probate and Administration Act 1898 should be employed to rectify the will to get the same result.
47 So that, accordingly, probate in solemn form should be granted to the first defendant of the wills of both January and February 2004 and I refer the matter to the Registrar in Probate to complete the grant with liberty to apply.
48 I discharge orders 1, 2 and 3 made by Barrett J by consent on 6 November 2007.
49 Since saying what I have said on the merits, questions of costs have been argued. The principal argument of Mr Rich was that prima facie the will of February 2004 meant what it said and revoked the earlier will and it was the fault of the testator that has led to this litigation and, accordingly, as was said in Brown v McEncroe (1890) 11 LR (NSW) (Eq) 134 at 145, and followed many times since, the estate must bear all the costs of both parties.
50 However, as I have said in my earlier judgment, whilst it is true that a person who has the benefit of a revocation clause starts ahead, the whole question is a question of fact. Even if the plaintiff had reasonable doubts when the proceedings were commenced as at the end of January of this year, he had available virtually all the evidence that would be called against him. He called no evidence, he asked no interrogatories and the matter proceeded to trial and every witness, with some immaterial exceptions, was cross-examined and every statement was challenged.
51 Had the plaintiff come to the court at the end of January and said: "Well, look, I have seen it all now and I don't want to go any further", there would have been quite a strong case for having the costs of all parties being borne by the estate, but certainly not after that time. There is a common fallacy that whenever there is an argument about a will, somehow or other the estate must pay the costs for everybody. That has never been the law.
52 The situation is, in my assessment, this is basically adversarial litigation. However, there were problems caused by the deceased such as the fact that the two wills were made which did not explicitly indicate that they were confined to particular territories and there are other infelicities of expression in them. I think that that just amounts to a discount of, say, 25 percent of the costs which would have been the situation had the plaintiff acknowledged the inevitable in January.
53 Accordingly, I think the proper order for costs is that the plaintiff pay 75 percent of the defendants' costs of the proceedings. Of course, the executor under the revoked grant is entitled to her costs as between her and the estate out of the estate in the normal way. I do not need to make an order for that.
54 The exhibits will go down to the probate office to be dealt with in accordance with the Registrar's orders and I will formally reserve further consideration.