Vincent Joseph Fittler v Philip John Fittler & Anor - The Estate of Mary Kathleen Fittler

Perrin & Ors v Morgan & Ors [1943] AC 399 Lutheran Church of Australia South Australia District Incorporated v Farmers' Co-operative Executors and Trustees Ltd & Ors (1970) 121 CLR 628 Scale v Rawlins [1892] AC 342 CASES CITED : Re Bailey; Barrett v Hyder [1951] Ch 407 Hatzantonis & Anor v Lawrence [2003] NSWSC 914 Armstrong v Childrens Hospital Westmead [2008] NSWSC 1315 Re Tyrie, deceased [No 1] [1972] VR 168 Gerhady v South Australian Auxiliary to the British & Foreign Bible Society Inc & Ors (No 3) (1986) 44 SASR 195

Vincent Joseph Fittler PARTIES : Philip John Fittler Carmel Anne Fittler

COUNSEL : MJ Heath (Plaintiff) M Gorrick (Defendants)

SOLICITORS : Rice More & Gibson (Plaintiffs) L Rundle & Co (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

117191/06 VINCENT JOSEPH FITTLER v PHILIP JOHN FITTLER & ANOR - THE ESTATE OF MARY KATHLEEN FITTLER JUDGMENT 1 Horace Joseph Fittler and his wife Mary Kathleen Fittler (the deceased), had three children, Carmel Anne Fittler, the eldest, Vincent Joseph Fittler, the second born and Philip John Fittler, the youngest of the three. Horace Fittler died in September 1988 and the deceased died in November 1999. The deceased made a will on 2 November 1998 and these proceedings relate to the terms of that will. 2 The deceased's Will included the following:

3. I GIVE - (a) The land being Lot 888 in Deposited Plan 755808 and known as the pump paddock to my son PHILIP JOHN FITTLER; (b) The land being Lot 164 in the Parish of Duval Country of Sandon being the land contained in Certificate of Title Vol 5250 Fol 59 and known as the bottom paddock to my son VINCENT JOSEPH FITTLER; (c) The land which is my house block with 10 acres to my son PHILIP JOHN FITTLER; (d) The rest of my land to my son VINCENT JOSEPH FITTLER; 3 Probate was granted to the three children on 15 January 2001. It was not until 2006 that Vincent Joseph Fittler commenced these proceedings, as plaintiff, against his brother and sister as defendants. On 16 March 2009 the plaintiff filed an Amended Summons seeking relief including:

1. A determination as to whether upon the true construction of the last will and testament of Mary Kathleen Fittler deceased and in the events which have happened the purported devise in clause 3 (c) of the said will; (a) fails for uncertainty; or (b) fails as a purported devise of property which is not an 'existing lot' within the meaning of the Conveyancing Act 1919 (NSW); (c) is a valid gift.

2. A determination as to whether in the event the purported devise in clause 3 (c) of the will fails whether the land comprised in that part of lot 892 passes pursuant to clause 3 (d) or falls into residue to be dealt with pursuant to clause 4 of the will.

3. The Plaintiff seeks the opinion advice and direction of the Court in respect of the questions set out in the statement of facts filed herein.

4. An order that the costs of the plaintiff to be paid out of the estate of Mary Kathleen Fittler on an indemnity basis. 4 The land the subject of this litigation is identified in Exhibit 1. There are a number of parcels of land to the east of the New England Highway (the Highway) in Puddledock, Armidale, bordered to the west by the Highway, to the north by Biddulph Road and to the east by Lyndon Road. 5 Lot 888 referred to as the "pump paddock", is to the south of Lot 892 and is bordered to the west by the Highway, to the east by Lyndon Road, to the north by Lot 892 and Philip's Lot 2 in DP 572302 known as the "front paddock" across Hoys Road. Lot 164, known as the "bottom paddock" is separate from these Lots to the north but bordered to the west by the Highway. 6 Lot 892 is a rectangular block bordered to the west by Philip's block Lot 2 in DP 572302, and another block owned by a third party, to the north by Biddulph Road and to the east by Lyndon Road. It was on this block that the deceased lived. 7 It was in 1978 that an application was made to the local council in Armidale to sub-divide Lot 892. The deceased's husband wrote to the Shire Clerk in October 1977 advising that he guaranteed that upon the registration of the plan that had apparently been approved, he and the deceased would erect on the land known as Lot 1 in the plan and having an area of about four hectares a new dwelling house "for our own residence". The deceased's husband also acknowledged to the Shire Clerk that he and the deceased, as the subdivider, would be responsible to create access to the Lot. He also said: "We acknowledge that the plan of subdivision will consolidate the balance of Portion 892 with Portion 888." The plan of sub-division shows Lot 1 with a boundary to the north of Biddulph Road and to the east, Lyndon Road. The other two boundaries were within Lot 892. 8 On 29 March 1978 the Council returned the endorsed Linen Plan to the deceased and her husband's solicitors, Tilbury & Co. It is common ground that the Linen Plan was never registered with the Department of Lands and the sub-division and consolidation was never given effect at law. There was a Crown perpetual lease over Lot 888, the pump paddock. That was transmitted to the deceased in 1989 subsequent to her husband's death. There were two portions of the land that had been gifted to Philip and Vincent as wedding gifts. Philip's wedding gift was the house located at the Highway end of Lot 888. That was gifted to him approximately 39 years ago and he sold it approximately 19 years ago. Philip operates a farming operation approximately 20 minutes away from the subject land. Vincent's house is on what has been referred to as the front paddock. 9 It was in October 1998 that the deceased provided instructions to her solicitor, Austin Rummery, for him to draft a will. It would appear that the clauses 3(c) and 3(d) were in the original draft of the will that was sent to the deceased under cover of a letter dated 30 October 1998. Mr Rummery advised the deceased as follows:

In relation to the land I have some concerns about whether the land is described properly because I do not have proper maps. Lot 888 referred to in clause 3(a) is the land which has the easement for the pipeline; Lot 164 referred to in clause 3(d) is clearly near the highway. I think that we can confidently say that those properties are described correctly.

My concern comes in relation to the house block with the 10 acres and the rest of the land. The Title documents are not sufficiently clear to indicate precisely what land we are talking about. Unless you have other maps then I suggest I check these at the Lands Office. 10 Mr Rummery gave affidavit evidence and there was some debate about the admissibility of a great deal of the evidence in this case. In the interests of an efficient trial and a just, quick and cheap resolution of the dispute between the parties, I admitted the evidence subject to relevance. Mr Rummery gave evidence that he sent the letter, of 30 October 1998 to the deceased but that he could not find the draft of the will that went with it. He said that he received instructions from the deceased after he sent the letter to her and he said that he amended the draft will to provide that the house with 10 acres went solely to Philip. His evidence was that he understood that the description "my house block with 10 acres" was mutually understood by the testator and by her family without any further identification. That evidence is most unhelpful and does not assist in the determination of this matter. 11 Mr Gorrick, counsel for the defendants Philip and Carmel Fittler, analysed the nature of the Amended Summons. He submitted that it is a combination of things and referred to it as a "hybrid". He suggested, quite rightly, that prayers 1 and 2 seek relief of the kind normally sought in a will construction suit and that prayer 3 is formulated in a different way in seeking judicial advice; more akin to the administration summons pursuant to the procedure under Uniform Civil Procedure Rules 2005 Part 54.

Will Construction 12 As the matter has developed today, it seemed to me appropriate that I deal with the construction of the will. The object of a construction suit is to ascertain the intention of the testator as expressed in her will when it is read as a whole. It is also of importance to ensure that the Court does not embark upon the making of a new will in so doing: Perrin & Ors v Morgan & Ors [1943] AC 399 at 406; Lutheran Church of Australia South Australia District Incorporated v Farmers' Co-operative Executors and Trustees Ltd & Ors (1970) 121 CLR 628 at 641; Scale v Rawlins; [1892] AC 342; Re Bailey; Barrett v Hyder [1951] Ch 407 at 421; Hatzantonis & Anor v Lawrence [2003] NSWSC 914 at [6] - [10]; Armstrong v Childrens Hospital Westmead [2008] NSWSC 1315. 13 The issue is whether it is possible to construe the will, in particular clause 3(c) of the will, without resort to extrinsic evidence and, if not, whether extrinsic evidence is appropriate in the circumstances of this case. Mr Rummery was right, the words alone do not enable ascertainment of the real intention of the testator. It is not in issue between these parties that extrinsic evidence is admissible for the purpose of identifying things to which a testator intended to refer: Re Tyrie, deceased (No 1) [1972] VR 168 at 186; Gerhady v South Australian Auxiliary to the British & Foreign Bible Society Inc & Ors (No 3) (1986) 44 SASR 195 at 204-206. 14 The evidence relied upon by the plaintiff includes the history to which I have referred in respect of the application for subdivision and the events thereafter. I am satisfied that it is appropriate that I have regard to those maps contained in Exhibit 1 and the correspondence and Linen Plan contained in Exhibit A to assist with the construction of the Will, in particular clauses 3(c) and 3(d). 15 There is also some conversation relied upon by both the plaintiff and the defendant in this regard. The defendant relied upon a conversation between the deceased and Carmel Fittler, who is not a beneficiary of any subject land. Her evidence is that immediately after signing her will at Mr Rummery's office the deceased said:

I want my property to be fairly distributed between the boys after I die. I have left the house and the 10 acres, and also the pump paddock to Philip. Vincent will get the bottom paddock and the front paddock. Vincent will also get what is left.

16 Philip Fittler gave evidence that he had a conversation with the deceased about a week after she executed her will in which the deceased said:

I signed my Will last week. I am leaving you 'the Pump Paddock' and my house with 10 acres. You will have to get the 10 acres subdivided but I don't think that will be a problem.

17 There is a difference, of course, between the expressions used by Carmel Fittler and Philip Fittler. Carmel referred to the words "house and the 10 acres", whereas Philip referred to "my house with 10 acres". 18 I should also say something about the evidence relied upon by the plaintiff in respect of the use of the land as a matter of some relevant history of which the deceased would have been aware at the time of making her will and at her death. Between 1962 and 1968 Lot 892 was cultivated by Mr Fittler Snr. He grew corn for the purpose of providing feed to a poultry business which he operated. It was also used for feeding of sheep during the winter periods. Between 1968 and 1989 Mr Fittler Snr and Vincent grew oats and a hybrid of wheat and rye on Lot 892 for sheep grazing and hay. Since Mr Fittler's demise, Vincent has continued to cultivate the land in this way. It is currently used for light grazing and cultivation of crops for stock feed. The deceased knew that Vincent was grazing cattle on the front paddock and also on Lot 892. 19 I should say something about the house that was built by Philip in which the deceased lived with her husband. It appears that Vincent may have assisted, but Philip is a builder as well as a farmer and it appears it took him about six or seven months to build that house for his parents. The deceased knew this at the time that she made the will. She also knew that Philip had sold his house at the Highway end of Lot 888, the pump paddock, and it would appear that there was no right to build on the balance of the land in the pump paddock. At the time the deceased made her will Vincent had a house in which he was living on the front paddock however Philip did not have a house anywhere on the subject land. 20 The house that the deceased lived in with her husband, built by Philip, is in the area of the rectangle, Lot 1, as depicted on the Linen Plan. There is another house on Lot 892 with some other out-buildings, it appears, and it is common ground that Vincent's daughter lives in that house. No issue has been raised in respect of that occupancy. It is merely a matter of history. 21 The house block to which the deceased referred was, on the evidence before me, clearly within the rectangle of Lot 1 in the Linen Plan. It is also clear that the area of Lot 1 on the Linen Plan is approximately 10 acres. That is common ground. 22 The irresistible conclusion from the correspondence between Mr Rummery and the deceased seems to me to be that there was another map by which the area referred to in clause 3(c) of the Will could be identified and that was the Linen Plan. That is the house block with 10 acres. If it had been uncertain at the time that Mr Rummery consulted with the deceased, having regard to Mr Rummery's correspondence, there would have been a need, on one view of it, to add some words, but it is apparent that the deceased well-knew and intended that the house with the 10 acres was coincident with the rectangle, Lot 1, on the Linen Plan. 23 It seems to me that the deceased knew that the consolidation had not occurred because of clause 3(a) of her Will in which she left Lot 888, the pump paddock, to Philip. She left the land that Vincent was using together with his house to him. It seems to me clear that the deceased wished Vincent to have the rest of the land, that is Lot 892 excluding the land that she left to Philip, being the house with the ten acres, the equivalent of what is in the rectangle Lot 1 on the Linen Plan. 24 Mr Gorrick has put forward a number of very powerful submissions with which I should deal. He has submitted that it would be very odd that the deceased would have left Philip a parcel of land which was not adjoined to the pump paddock. I disagree. It has to be remembered that the deceased was well aware that Philip was farming elsewhere, that it was Vincent who was working the land across from the front paddock through Lot 892 to the boundary at Lyndon Road. I see no illogicality in providing to Vincent that land and leaving to Philip a parcel of land that was not contiguous with Lot 888. However it is clear that the deceased intended that Philip was to have the house that he built for his parents. 25 Mr Gorrick also submitted that a proper construction of the Will would be that Philip was given a right of selection of the ten acres; that is to construe the Will as being a gift of the house and in addition a ten acre parcel of land somewhere, indeed anywhere, in Lot 892. That does not seem to me to be logical or an appropriate construction of the deceased's Will. It would mean that Philip could choose perhaps the house with its surroundings as fenced, and then choose the balance of whatever ten acres he decided to carve out, either in the corner up near Biddulph Road, or perhaps down the bottom contiguous with Lot 888, or perhaps a parcel of land that was totally land-locked. That seems to me to be most uncertain and I do not regard it as consistent with what the deceased intended. 26 The way the deceased put it to her daughter seems to me to be the way in which I have construed the will. The deceased saw it as fair for Philip to have the house with the ten acres, she described it to Carmel, and as "the house and the ten acres" and also the pump paddock. She described the bottom paddock and the front paddock and what was left from what she had done for Philip to be given to Vincent. It is clear that when she spoke to both Carmel and Philip the deceased identified the house with the ten acres and neither of them gave any evidence of speaking with their mother about what she meant. It seems to me to be the case that Lot 1 in the Linen Plan was clearly intended to be the gift to Philip in clause 3(c) of the Will. 27 In those circumstances I regard it as appropriate to make the following declarations; I declare that the words in clause 3(c) of the Will of the late Mary Kathleen Fittler "the land which is my house block with 10 acres" is the land contained in that part of the land identified as Lot 1 in the Linen Plan dated 29 March 1978 forming part of Exhibit A in these proceedings.

Balance of relief sought 28 After the demise of the deceased the plaintiff and his two siblings, as executors of the estate of the deceased, submitted a development application to the Armidale Dumaresq Council. The Council sought further information from the executors and it is clear that in July 2005 some information was provided to the council. However, by letter dated 2 August 2005 the Director of Planning and Community Services at the Council wrote to the executors' solicitor's referring to the development application which had been lodged on 26 August 2004 and stated as follows:

In view of the length of time since this application was lodged, and the failure to produce additional information requested by Council since 6 September 2004, the application has been refused.

29 There was then an invitation to telephone the Director if the executors or the solicitors wished to discuss the matter further. A Notice of Determination of a Development Application was also forwarded to the solicitors in which the following reasons for refusal were provided:

1. That no information has been supplied in connection with the application to enable Council to undertake the required assessment pursuant to section 79C(1) of the Environmental Planning and Assessment Act 1979 (as amended) , in response to Council's requests for such information pursuant to cl 54 of the Environmental Planning and Assessment Regulation 2000 .

2. Given Council's duty to consider the matters set out in Section 79C(1) of the Environmental Planning and Assessment Act 1979 (as amended) , the granting of consent would not be in accordance with the Act nor in the public interest.

30 It is apparent that the only basis upon which the council refused the application at that time was a failure to provide information. As Mr Gorrick pointed out, it was not a consideration on the merits of the application. 31 The Development Application that was made was consistent with a subdivision of Lot 892 and with Lot 1 of the Linen Plan being sub-divided off the Lot. Although I have asked counsel and they have very candidly indicated their instructions I do not know why the executors did not go back to Council with the further information that was requested to enable it to consider that application. The balance of the Amended Summons seeks relief that I regard as premature, particularly having regard to the construction of the Will the subject of these reasons. The parties now know what the Will means. They know what their mother intended and it seems to me that every possible step should be taken by the executors to put into place their mother's desire, in other words to do their duty to uphold the Will made by their mother. 32 It is probable that the most cost effective manner in which to proceed, albeit that it does not mean finalisation of the Amended Summons today, would be to allow a period of time in which the executors seek to implement the intention in their mother's will with liberty to apply in the event that as a matter of fact it is not possible to do so. I should also say that it appears to me that the parties had tried to reach some agreement but that they have failed for reasons of which I am unaware. It may be that in due course the Court is made aware of some of that history, although the better course would be to move forward with a fresh approach now, knowing the meaning of the deceased's Will.

Costs 33 This is an application brought by the plaintiff that the first defendant Philip Fittler not have his costs of these proceedings paid out of the estate. In support of this application, the plaintiff relies on a bundle of correspondence, Exhibit B, between the plaintiff's solicitors and solicitors that have apparently been retained by the executors at a time prior to differences between the plaintiff and the defendants arising. 34 The plaintiff relies upon a letter dated 25 September 2003 and a draft Deed of Family Arrangement to submit that there was agreement reached in respect of the settlement of the differences between the parties relating to their mother's estate. The letter includes the following:

We refer to previous correspondence in the matter and apologise for not having replied to you earlier in relation to Vincent's offer to purchase Lot 888 from Philip for $56,000.00. Vincent's offer is accepted.

Philip and Carmel want a resolution to all outstanding issues to finalise the estate and they propose the execution of a Deed of Family Arrangement to incorporate the sale of Lot 888 to Vincent and the subdivision of Lot 892 in accordance with the terms of the Will. We have prepared a Deed of Family Arrangement and enclose a DRAFT for Vincent's approval. Please note that Philip and Carmel have not perused the draft Deed and it is subject to their final instructions.

We also enclose a Development Application and a copy of the proposed Plan of Subdivision for signature by Vincent where indicated and return to us as soon as possible so that we can arrange to have it lodged at Council. The Application is in accordance with the Will creating two lots of Lot 892 (Lot 1-house and 10 acres and Lot 2-the balance Lot 892). 35 The draft Deed of Family Arrangement recited the terms of the will relevant to the land the subject of these proceedings. It also recited that Philip had agreed to sell Lot 888 to Vincent for $56,000 in accordance with the contract. Clause 2 of the draft Deed stated that Vincent and Philip agreed that on the date of the Deed they would enter into a contract. There was also provision for a development application, registration of the plan and the boundary adjustment. 36 On 28 October 2003 Rice More & Gibson, the plaintiff's solicitors, wrote to the solicitors who had been instructed by the executors advising that they had recently attended on Vincent and Glenda Fittler and had gone through the Deed with them. That letter includes the following:

Vince agrees, once again, that he will buy Lot 888, the Pump Paddock from Phil, but has asked that it be Free Holded by the Estate so that it can be attached to his new Lot 2.

37 The letter went on to indicate that Vincent and his wife had made some enquiries and had informed the solicitors that the application fees were $398 and possibly a further $498, although that is a little unclear. The solicitors said they had not checked the figures but suggested an amendment to the Deed. That amendment was:

A) The costs preparing this Deed, dealing with Council, a Surveyor and Free Holding Lot 888 shall be borne by the Estate. It may well be an advantage that Lot 2 may be a Boundary Adjustment with Lot 888. 38 In any event, on 3 December 2003 a reply was sent that included the following:

Your client's request that Philip Fittler pay the costs of freeholding Lot 888 was not part of the decision to sell Lot 888 to Vince and the offer to sell is now withdrawn.

39 There was then an indication that Philip Fittler required the administration of the estate to proceed in accordance with the Will and that the solicitors held instructions from Carmel Fittler to the same effect and that they were willing to proceed with the development application to create the two lots. The solicitors also advised that they understood that Vincent Fittler had signed the development application and asked that such be returned so that it could be lodged. 40 On 20 January 2004 the plaintiff's solicitors responded offering "in a final effort to resolve matters our client has today instructed that he would pay the cost of free holding Lot 888." The solicitors then requested if Philip would "sell" for the previously offered price of $56,000. There is a further piece of correspondence that indicates that the costs of the freeholding was at the most about $200. 41 Mr Heath, counsel for the plaintiff, submits that because the matter had settled by agreement the first defendant is guilty of disentitling conduct to have his costs paid out of the estate. The plaintiff's submission has some difficulties. True it is that there was an offer at a price and there seemed to be an acceptance at a price, subject to the Deed. Unfortunately, the Deed was not agreed because the issue of the payment of the fees impeded finalisation. Indeed the plaintiff accepted that there was no agreement ultimately reached by its further suggestion that Philip might sell for the "previously offered price". 42 It was the plaintiff who delayed the finalisation of a firm contract by introducing a new clause and in those circumstances I am not satisfied that the defendants are guilty of disentitling conduct. The smallest thing can turn parties who are otherwise co-operative and sensible to a course of conduct that makes it most uncomfortable for them. Unsatisfactorily and unfortunately for these parties it seems to me that this has been such a case. Hopefully, it may be that they will go forward with a fresher approach because it seems to me that, even though the Court had to construe the will, they had a very fair idea what their mother intended for them. 43 I order that the costs of the parties up to and including today are to be paid out of the estate. I stand the matter over before the Registrar in Equity on 22 February 2010. I grant liberty to restore on four days notice.

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