Dobryden v Wagner & the Assn of Ukrainians in SA Inc - [2004] SASC 413

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of STEFAN TKACZUK (DECEASED)
DOBRYDEN v WAGNER & THE ASSN OF UKRAINIANS IN SA INC
Judgment of The Honourable Justice Duggan
13 December 2004
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - PRESUMPTION AGAINST INTESTACY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - ADMISSIBILITY OF EXTRINSIC EVIDENCE
Construction of homemade will - whether partial intestacy with respect to residue of estate - presumption against partial intestacy discussed - whether extrinsic evidence could be used to determine interest of testator - whether there was a lapse of gift of one-seventh share of proceeds of sale of house property to beneficiary who pre-deceased testator.
Administration and Probate Act 1919 (SA) s 69; Supreme Court Rules 1987 r 63.04, referred to.
In the Estate of Hunter, Deceased [1957] SASR 194; Lewis v O'Loughlin (1971) 125 CLR 320; Re Harrison (1885) 30 Ch D 390; In the Estate of Rigg, Deceased [1960] SASR 197; In Re Edwards [1906] 1 Ch 570; Re Abbott [1944] 2 All ER 457; Hyde v Holland [2003] NSWSC 733; In Re Harvey (Deceased) [1962] NZLR 524; King v Perpetual Trustee Co Ltd (1955) 94 CLR 70; Charter v Charter (1874) LR 7 HL 364; Lutheran Church of Australia v Farmers' Co-operative Executors and Trustees Limited (1970) 121 CLR 628, applied.
In Re Heidenreich (1981) 27 SASR 455; Allgood v Blake (1873) LR Ex 160, considered.

In the Estate of STEFAN TKACZUK (DECEASED)
DOBRYDEN v WAGNER & THE ASSN OF UKRAINIANS IN SA INC
[2004] SASC 413
Civil

DUGGAN J. The plaintiff is the sole executor of the estate of Stefan Tkaczuk (“the testator”) who died on 3 July 2003. Probate of the will of the testator was granted on 29 August 2003. The will is dated 27 September 1992.
The plaintiff has issued an inter partes summons seeking a determination of questions arising on the construction of the will. The summons was bought pursuant to the Administration and Probate Act 1919 s 69 and r 63.04 of the Supreme Court Rules.
As Napier CJ pointed out in In The Estate of Hunter, Deceased [1957] SASR 194 at 195, it is inappropriate to join proceedings under the respective provisions. The s 69 procedure enables an executor, trustee or administrator to seek the advice or direction of the court on aspects of administration or construction, whereas r 63.04 enables a final determination to be made of the rights of the parties. In these circumstances the plaintiff has elected to proceed pursuant to r 63.04.
The plaintiff is the President of the Association of Ukrainians in South Australia Incorporated (“the Association”) and the testator was a member of the Association at the time of this death. The testator is survived by his estranged daughter, Tamara, who is the defendant in the proceedings. The Association, which is a beneficiary under the will, has been joined as a party to the proceedings.
At the time of his death the testator was living at 63 Alabama Avenue, Prospect. The homemade will was written on a one page will form in the Ukranian language. The court has been provided with a translation (P1).
After the appointment of the executor and the giving of directions for the payment of funeral and testamentary expenses and debts, the will provided as follows:
“To sell my house and after all expenses divide for
7 equal parts and send money to the following
person in Ukraine. 1. Tkaczuk Anna, 2 Tkazcuk Marija,
3 Andrijishyn Marija, 4 Andrushko Jaroslawa,
5 Lukynczuk Iryna, 6 Kowalczuk Ivan, 7 Hryshchuk Agnezia.
Because of limited space I write all addresses
in Ukrainian language overside – P.T.O.
For my estranget daughter – Tamara I given china
cabinet and all in it, also 4 set crockery like
Royal Albert 47 pieces, antic Aynsley set 19 pieces,
and two other porcelan set each 36 pieces.
All furniture and everything what in in house
like cloathes, shoes, linen et cetera I leave for
person who will care for me in need, but in case in
my sudden death I leave for Ukrainian Asso-
ciaton in South Australia.
15.6.1993 I paid $250 for grave in Dudley Park
Cemetry ‘40 row ccc’. I want my funeral to be
in Holy Liturgy but without previous evening
Panachyda and without ‘POMYNOK’ after.
2.6.1987 I gave for Mr and Mrs S. Zabolockyj as
deposit for my funeral $3000.- I have in Ukranian
credit Co-Op. Hindmarsh about $7000. – so I ask executor
to pay expenses for Mr. and Mrs Zabolockyj for funeral, sepa-
rate $1,500 for they grief, and the rest for Ukranian
Associaton.”
The testator was the registered proprietor of the property at 63 Alabama Avenue, Prospect. After his death money totalling $67,000 was found buried in the backyard of the testator’s house. The money was located following the discovery of a handwritten note amongst the testator’s belongings in the house. The translation of the note is as follows:
“In case of my death I request to withdraw this money that I have indicated here and pass them
and after all expenses take for yourself five hundred $500-
1.     in the ground it [sic] front of the Citrus tree under the fence $25,000.-
       is skup* No. 5
2.a little bit further on the same side next to the skup* No. 7 there are $30,000
that is <230 crossed> @$100.- = $23,000.-
                  40 @ $50.- = $2,000.-
  total       $30,000.-
3.On the other side in front of the old walnut tree also next to the fence there are another $25,000.-
4.     A little further from this skup* about 2 meters there are $10,620
All this $75,000 in Australian and
$10,620 in American currency
In the house, rather in the barrack, on the 6^th shelf under [illegible] there are <$5,100.- crossed over> $7000 and in my bedroom there are $250.- in old [notes] and 10 coins each $200.- total $2,250. This all can be exchanged in Reserve without any loss, as these coins are golden.
On 30.9.2001 in Ukrainian Co-op Hoverla there were                  $23,597.16
And on 28.12 in Adelaide Bank, 169 Pirie St, Adelaide        $8,369.08
  $32,966.24
and there are 254.42 in the house for various expenses
*Translator’s Note: unknown word was transliterated from Ukrainian.”
The note was not addressed to a named person. It appears that it was written on or after 28 December 2001.
The inter partes summons seeks a determination of the following questions:
(a)whether money found in cash in the backyard of the premises situate and known as 63 Alabama Avenue Prospect aforesaid and owned by the deceased at the date of his death constitutes part of the residue of his estate;
(b)if not, to whom should such money be distributed from the estate;
(c)who is entitled to the interest of Anna Tkaczuk the first named beneficiary in respect of the proceeds of sale of the abovementioned premises, she having died on the 15 November 2000 and thus having predeceased the deceased.”
The money found in the backyard
There is no specific reference in the will to the money buried in the backyard. Although things buried in the soil will pass with a devise of the real property (Walker v Walker, unreported, Supreme Court of New South Wales, Young J, 17 May 1996), there was no such devise in the present case. The executor was instructed to sell the house (which in this case would include the land) and divide the proceeds.
It was not suggested in argument that the money was included in the gift of items in the house. The use of the words “all furniture and everything what in house like cloathes, shoes, linen et cetera” discloses an intention to include in the gift only everyday personal and household items such as are usually kept in the house. It is highly unlikely that the testator would have intended a significant amount of money to be included in this gift without any reference to it in the list of mundane items which he specified, let alone a significant amount of money which he had buried in the backyard.
It follows that the money is part of the residue of the estate.
Was there a bequest of the residue?
The most contentious issue is whether there has been a bequest of the residue of the estate. Mr Ower, for the Association, argued that the words “and the rest for Ukrainian Association” in the final clause of the will disclose an intention to gift the residue to the Association.
I am unable to accept this contention. The testator began by directing his attention to the major asset, the house. After a gift of specific contents of the house to his daughter, other contents were gifted to the person “who will care for me in need” or, in the case of the testator’s sudden death, to the Association.
The testator then turned to specific issues relating to his funeral. He explained that on 15 June 1983 he paid $250 for his grave and he then directed attention to the funeral service and the religious observances to be associated with it.
At this point the testator referred to the fact that on 2 June 1987 he gave Mr and Mrs Zabolockyj a deposit of $3,000 for his funeral expenses. He then referred to the sum of $7,000 in the Co-operative account and directed the executor to pay Mr and Mrs Zabolockyj their expenses for the funeral as well as an additional amount of $1,500 “for they [sic] grief” and he added in the same sentence “and the rest for Ukrainian Association”.
In my view, the last six words must refer to the balance of the monies in the Co-operative account. The testator identified the account, referred to the approximate amount deposited in it and gave directions as to what was to be paid out of it. It is clear that he then directed that the balance of the funds were to be given to the Association.
In another context, the words “and the rest for Ukrainian Association” might have been sufficient to pass the residue. However, in the context of this clause in the will they are clearly referrable to the funds in the Co-operative account and to no other property. I reject the suggestion made in argument that the words might have been placed in the same clause as the instructions in relation to the Co-operative account because there was no more space on the page. The use of the word “and” to link this instruction with those which preceded it and the use of the phrase “the rest” which obviously refers to the balance of the funds in the account are strong indications that these words in the will were not meant to stand apart from the words immediately preceding them.
I was invited to take into account the presumption against intestacy when considering whether the last words of the will were intended to effect a bequest of the residue of the estate. The presumption that a testator does not wish to die intestate or that a partial intestacy would not have been intended can be used as an aid to construction in the event of ambiguity in the will: Lewis v O’Loughlin (1971) 125 CLR 320 at 331; Re Harrison (1885) 30 Ch D 390 at 393 and In the Estate of Rigg, Deceased [1960] SASR 197 at 198. However, it is important to bear in mind that the presumption cannot lead the court “to do otherwise than construe plain words according to their plain meaning”: In Re Edwards [1906] 1 Ch 570 per Romer LJ at 574.
See also Re Abbott [1944] 2 All ER 457 per Lord Greene MR at 459 H and Hyde v Holland [2003] NSWSC 733 at [28].
I respectfully adopt the comments of Woodhouse J in In Re Harvey(Deceased) [1962] NZLR 524 at 527:
“But the fact that one interpretation of the word ‘contents’ would give rise to a partial intestacy, whereas a wider interpretation would avoid it, does not necessarily assist me. No doubt the Court will lean in favour of a construction which will avoid an intestacy or a partial intestacy, but only where some obscurity in the provision under consideration makes this possible. I am unable, as it seems to me, to attach any particular weight to the so-called presumption against an intestacy if to do so involves a straining of the words used in the will. The principle in itself is not enough to persuade the Court to interpret the words contained in the will otherwise than according to their plain meaning.”
The presumption cannot be used in the present case to take the words of the testator out of their context so as to give them a meaning far wider than was intended.
Counsel for the Association further submitted that the court could have regard to the testator’s note notifying the whereabouts of the money buried in the backyard and explaining what was to be done with it. According to the argument, the instructions in the note appear to be directed to someone who is performing an “executor-like role” and the effect of the instructions is that this person can keep $500, but is to pass the money on, although the instructions do not say to whom. It was claimed that the contents of the note support the view that, at the time of the making of the will, the testator intended that there would be a bequest of the buried money.
Counsel relied upon In Re Heidenreich (1981) 27 SASR 455 in support of the use of the note for this purpose. In that case the testator, who was a miller, gave a beneficiary under his will an option to purchase land and a business owned by the testator at half of its value. The land was described as “the whole of the land at Salisbury aforesaid upon which I carry on the business of miller”.
The Full Court held that the trial judge rightly permitted evidence to be led to identify the land which came within the description used by the testator. The majority held that a parcel of land with flats erected on it was not part of the land which the testator used in his business as a miller.
However, the court was unanimous in holding that the evidence was properly admitted on the principles enunciated in Allgood v Blake (1873) LR Ex 160. Allgood v Blake is sometimes cited to illustrate the “armchair” principle whereby the court is to consider issues of construction from the position of the testator at the time of the making of the will. Extrinsic evidence may be called to remove ambiguity and provide context. This approach was explained in King v Perpetual Trustee Co Ltd (1955) 94 CLR 70. In the joint judgment of the court at 78 there is reference to the requirement that the court must interpret the will in accordance with the expressions which the testator has used. However, their Honours then referred to the statement of Lord Cairns in Charter v Charter (1874) LR 7 HL 364 at 377 to explain the limited purpose for which extrinsic evidence might be used in interpreting the testator’s words:
“But, my Lords, there is a class of evidence which in this case, as in all cases of testamentary dispositions, is clearly receivable. The court has a right to ascertain all the facts which were known to the testator at the time he made his will, and thus to place itself in the testator’s position, in order to ascertain the bearing and application of the language which he uses, and in order to ascertain whether there exists any person or thing to which the whole description given in the will can be, reasonably and with sufficient certainty, applied.”
The use to which counsel for the Association wishes to put the evidence of the testator’s note goes further than establishing background facts such as the purpose for which the property was used by the testator in In Re Heidenreich. It is argued that statements made by the testator after the making of the will assist in explaining his intention at the time of making the will. This use of evidence goes beyond establishing facts which provide context and attempts to establish the testator’s intention directly from something which he said after the occasion on which his intention must be determined.
To use the evidence in this way would be to ignore the distinction made in the following passage from the judgment of Windeyer J in Lutheran Church of Australia v Farmers’ Co-operative Executors and Trustees Limited (1970) 121 CLR 628 at 648:
“Of course extrinsic evidence is not admissible to contradict what a will unambiguously says. Every testator must be taken to have meant what he said. We were referred in the course of argument to the well-known and forceful statements to this effect of Lord Coleridge in Shore v Wilson (1842) 9 Cl & Fin 355, at pp 525-526 [8 ER 450, at pp 517, 518]. I take the governing principle to be as it has been stated, for well over a century, in Wigram on Extrinsic Evidence in aid of the Interpretation of Wills, at p 8, as follows:
‘… any evidence is admissible, which, in its nature and effect, simply explains what the testator has written; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written. In other words, the question in expounding a will is not, - What the testator meant? as distinguished from – What his words express? And extrinsic evidence, in aid of the exposition of his will, must be admissible or inadmissible with reference to its bearing upon the issue which this question raises.’ ”
In that case extrinsic evidence was led to establish the sense in which the testatrix habitually used the phrase “Commonwealth bonds”. As the expression was capable of a wide and of a narrow meaning, the evidence was used to explain the meaning of the words she wrote in the will.
I should add that, even if the evidence could be used for the purpose put forward by counsel for the Association, it would not assist in determining whether the testator intended to make a bequest of the residue.
It follows from what I have said that there was a partial intestacy in that the testator did not dispose of the residue of his estate. The residue is to be distributed in accordance with the intestacy provisions in Part 3A of the Administration and Probate Act, 1919.
The final question raises the entitlement to the interest of Anna Tkaczuk who was named as a beneficiary in respect of the proceeds of sale of the testator’s house. This beneficiary predeceased the testator. According to the testator’s directions the proceeds of the sale of the house were to be divided into seven equal parts and the individual beneficiaries were named in the will. These instructions leave no room for the proceeds to be divided equally among the surviving beneficiaries entitled to a share of the proceeds. The gift to Anna Tkaczuk lapses and falls into residue.
Although not referred to in the questions posed in the summons, there is a further asset in the form of funds deposited in the Adelaide Bank at the time of the testator’s death. As this asset was not gifted under the terms of the will it also forms part of the residual estate.
The argument before me extended somewhat beyond the precise issues raised in the inter partes summons and it is not necessary to restrict myself to answers to the precise questions which have been posed.
In accordance with the reasons which I have given, I propose to make the following declaration:
1The sum of approximately $67,000 found buried in the backyard of the house at 63 Alabama Avenue, Prospect and the sum of $11,767.07 deposited in the Adelaide Bank, Adelaide Branch A/C No. 190256 AC01 are part of the residue of the estate of the testator.
2The gift to Anna Tkaczuk comprising one-seventh of the proceeds of the sale of the property situated at 63 Alabama Avenue, Prospect has lapsed and passed into the residue of the estate of the testator.
3The residue of the estate of the testator was not disposed of under the terms of the will and must be distributed as on a partial intestacy pursuant to Part 3A of the Administration and Probate Act 1919.

I will hear the parties as to the precise terms of the orders.