Ferne PETA Meynert (As Executrix of the Estates of Giuseppe and Giuseppina Pittorino) v Pittorino - [2003] WASC 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FERNE PETA MEYNERT (As Executrix of the Estates of GIUSEPPE and GIUSEPPINA PITTORINO) -v- PITTORINO & ORS [2003] WASC 265

CORAM: MASTER NEWNES

HEARD: 24 OCTOBER, 14 NOVEMBER 2003

DELIVERED : 19 DECEMBER 2003

FILE NO/S: CIV 1466 of 2002

BETWEEN: FERNE PETA MEYNERT (As Executrix of the Estates of GIUSEPPE and GIUSEPPINA PITTORINO)
Plaintiff
AND
UMBERTO PITTORINO
First Defendant
AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
Second Defendant
LEAFDALE PTY LTD
Third Defendant

Catchwords:

Trusts - Power of appointor under trust deed to remove trustee by instrument in writing - Provision in appointor's Will removing trustee - Will executed before trust deed - Later codicil - Whether doctrine of republication of Will affects provision removing trustee - Turns on own facts

Legislation:

Trustees Act 1962 (WA), s 7

Result:

Removal of trustee invalid

Category: B

Representation:

Counsel:

Plaintiff:     Mr A S Siopis SC
First Defendant             :     Mr M J Hawkins
Second Defendant         :     Mr M J Hawkins
Third Defendant           :     Mr M J Hawkins

Solicitors:

Plaintiff:     Wojtowicz Kelly
First Defendant             :     Hammond Worthington
Second Defendant         :     Hammond Worthington
Third Defendant           :     Hammond Worthington

Case(s) referred to in judgment(s):

Hawkins v Perpetual Trustee Co (1960) 103 CLR 135
In re Bower, Bower v Mercer [1930] 2 Ch 82
Lutheran Church of Australia South Australia District Incorporated v Farmers Co-operative Executors & Trustees Limited (1970) 121 CLR 628
Orange v Pickford 4 Drew 363
Paykel v Guardian Trust & Executors Company of New Zealand Limited [1963] 168 NZLR 173
Re Elcom [1894] 1 Ch 303
Re Hardyman [1925] Ch 287
Re Moore [1907] 1 IR 315
Re Tredgold [1943] Ch 69
Tatham v Huxtable (1950) 81 CLR 639

Case(s) also cited:

Equity Trustee Executors and Agency Co Ltd v Commissioner of Probate Duties (Victoria) (1976) 135 CLR 268
Ex parte Gilchrist; Re Armstrong (1886) 17 QBD 521
In re Penrose [1933] Ch 793
R & I Bank v Anchorage Investments Pty Ltd (1992) 8 WAR 198
Stones v Rowton (1853) 17 Beav 308

MASTER NEWNES: The issue before me for determination is the identity of the trustee of the Pittorino Family Arrangement Trust (the "Trust"). The plaintiff says that she is the trustee. The first defendant says that the trustee is Leafdale Pty Ltd, a company of which he is the sole director. The assets of the Trust are substantial.
I should mention, however, that the plaintiff, by her counsel, disclaimed any interest in continuing as trustee of the Trust, should it be found that she is the trustee. In that event, the plaintiff intends to appoint another trustee, or other trustees, under her powers under the Trust Deed. I was told that the determination of who is the current trustee is important for other reasons.
The Trust was established by a Deed (the "Deed") of 22 February 1993 made between Kaye Lynette Smith, as settlor, and Leafdale Pty Ltd, as Trustee.
The Deed provided that the "Appointors" were "The said GIUSEPPE PITTORINO and GIUSEPPINA PITTORINO jointly and the survivor of them solely and upon such survivor's death as appointed by such survivor in his or her will".
Clause 26 of the Deed provides, relevantly, as follows:
"1.The Appointor nominated in the schedule hereto any [sic] other person appointed to be the successor to such Appointor in the manner hereinafter provided shall be entitled by instrument in writing at any time from time to time:
(a)to remove any Trustee thereof;
(b)to appoint any additional Trustee or Trustees;
(c)to appoint a new Trustee or Trustees in place of any Trustee who resigns his Trusteeship or ceases to be a Trustee by operation of law … "
Giuseppe Pittorino died on 2 June 1997. By virtue of cl 26 of the Deed, upon his death Giuseppina Pittorino became the Appointor.
On 21 February 1993, one day before the Trust was established, Giuseppina Pittorino made her Will. Clause 1(2) of her Will was in the following terms:
"If my husband, GIUSEPPE PITTORINO shall fail to survive me for a period of twenty eight (28) days THEN BUT NOT OTHERWISE I APPOINT the said FERNE PETA MEYNERT as Trustee of the Pittorino Family Arrangement Trust in lieu of LEAFDALE PTY LTD."
On 6 December 1997, Giuseppina Pittorino made a codicil to her Will. The codicil was in the following terms:
"I insert the following new clause into my Will:
1.I GIVE all my shares in LEAFDALE PTY LTD, A.C.N. 009 063 987 to my son UMBERTO PITTORINO and direct my Trustees to appoint my said son UMBERTO PITTORINO as the sole director of LEAFDALE PTY LTD, A.C.N. 009063987.
2.In all other respects I confirm my Will."
On 16 December 1997, Giuseppina Pittorino died. Probate of her Will was subsequently granted.
Accordingly, Giuseppina Pittorino did not appoint a new Appointor by her Will as provided for in the Deed. Rather, she simply sought, by her Will, to remove Leafdale Pty Ltd as Trustee of the Trust and to appoint Ms Meynert as Trustee in its stead.
The question is whether the appointment of Ms Meynert as Trustee in place of Leafdale Pty Ltd was valid and effective.
It was submitted on behalf of the plaintiff that Ms Meynert had been validly appointed pursuant to cl 26 of the Deed. Senior Counsel for the plaintiff submitted that, whilst there is no express power under that clause to replace a trustee, the power to do so is to be found in s 7 of the Trustees Act 1962 (WA). That provision, relevantly, provides:
"(1)Where a trustee, whether original or substituted, and whether appointed by the Court or otherwise:
…
(h)being a corporation, has ceased to carry on business, is in liquidation or is dissolved,
then the person nominated for the purpose of appointing new trustees by the instrument … creating the trust … may by writing appoint a person or persons, whether or not being the person or persons exercising the power, to be a trustee or trustees in the place of the trustee first in this subsection mentioned.
…
(3)Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, … in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly."
Senior Counsel for the plaintiff submitted that the Will was "an instrument in writing" within the meaning of the Deed: Halsbury's Laws of England (4th ed) vol 36(2) par 268; Orange v Pickford 4 Drew 363.
As I have said, the Will was executed a day before the Trust deed. It was submitted on behalf of the plaintiff that the effect of the codicil of 6 December 1997 was to republish the Will as at the date of the codicil, so that the Will, including cl 1(2), took effect as at 6 December 1997 as if it had been re‑executed on that date. Clause 1(2) was therefore valid.
The defendant, on the other hand, contended that the doctrine of republication had no application because what was in issue was whether an effective instrument in writing under cl 26 of the Deed had been duly executed. Republication was concerned with the effect of the Will as a testamentary instrument.
It is necessary to look first at the nature of republication as it applies to wills.
In Hawkins v Perpetual Trustee Co (1960) 103 CLR 135, Fullagher J said, at 145:
"It is well settled as a general rule that an express confirmation of a will by codicil effects a republication of the will, with the result that the will and codicil are read as one instrument speaking as at the date of the codicil."
An oft‑quoted explanation of the doctrine was given by Simonds J in Re Tredgold [1943] Ch 69, at 73, as follows:
"Generally it may be said that a republication of a will takes place when it is re‑executed or confirmed in such a way as to acquire some force or efficiency which it did not previously possess. Specifically and more commonly the expression is used … to indicate what is sometimes called constructive republication, which takes place where a testator makes a codicil or executes some testamentary instrument from which the inference can be drawn that he wishes it to be read as part of his will … If a testator thus shows that he wishes his codicil to be read as part of his will, it follows that he is re-asserting his testamentary intention. He is republishing his will, and, by a somewhat artificial doctrine, the result of such republication is that for certain purposes the will must be construed and takes effect as if it had been executed at the date of republication."
The limits of the doctrine were described by Barton J in Re Moore [1907] 1 IR 315:
"It is well settled that for many purposes republication brings the will down to the date of the codicil, and makes it speak as a new will of that date, and take effect as if it had been reinserted in the codicil and re‑executed at the date of the codicil. But it is equally well settled that there are limits to the doctrine. 'The rule is subject to the limitation that the intention of the testator is not to be defeated thereby: per Patterson J in Doe d Biddulph v Hole. 'It does not necessarily operate as if the will had been originally made at the date of the codicil': per Lord Campbell LC in Hopwood v Hopwood. … Republication gives the will a fresh starting point, but it does not erase the old date. Nor does it, in my opinion, falsify the fact that the will contained a particular devise and was executed at a particular time. The authorities which have been cited lead me to the conclusion that the courts have always treated the principle that republication makes the will speak as if it had been re‑executed at the date of the codicil not as a rigid formula or technical rule, but as a useful and flexible instrument for effectuating a testator's intentions, by ascertaining them down to the latest date at which they have been expressed."
In Re Hardyman [1925] Ch 287, Lord Romer, after referring to the cases, including In re Moore, said, at 292:
"In other words the court, for the purposes of ascertaining the intention of the testator, would regard the republication of the will by the codicil as an expression of the testator's intention as at that date … It appears to me, in the circumstances, and having regard to the authorities, that I must construe the present will in light of the fact that by republication the testatrix has said to me: 'This will expresses my intentions at this date' (ie. the date at which the codicil was made) and that I must not disregard that fact."
Senior counsel for the plaintiff submitted that the limitation on the doctrine of republication, that it cannot operate so as to defeat the true intentions of the testatrix, did not arise in this case. The true intention of the testatrix is to be derived from the language of the Will and a court cannot have regard to her subjective intentions. Extrinsic evidence of what the testatrix intended to say is not admissible except to explain what the testatrix has written, for in construing the language of a will the question is not what the testatrix meant to do but what the words she used mean, that is, what was the testatrix's expressed intention: Lutheran Church of Australia South Australia District Incorporated v Farmers Co-operative Executors & Trustees Limited (1970) 121 CLR 628, at 648 ‑ 9 per Windeyer J; Tatham v Huxtable (1950) 81 CLR 639. Accordingly, regard cannot be had to instructions given by the testatrix to her solicitors or others: Paykel v Guardian Trust & Executors Company of New Zealand Limited [1963] 168 NZLR 173 (CA).
It was submitted that the same principle applies to ascertaining whether giving effect to the doctrine of republication would defeat the intention of the testatrix; that is, that the intentions of the testatrix are to be derived solely from the words of the Will and codicil and the surrounding circumstances apparent from the testamentary instruments.
That question of the limitation on the doctrine of republication is of significance in this case because it was evident from certain affidavits that the subjective intention of the testatrix was that the control of Leafdale Pty Ltd should be vested solely in Umberto Pittorino and that Leafdale Pty Ltd, under his sole control, should continue as trustee of the Trust. Although the plaintiff, quite properly, made those affidavits available to the defendant, the plaintiff, by her counsel, was obliged to submit that they were not admissible on the question of the testatrix's intention.
Accordingly, it was submitted, Mrs Pittorino had, by her Will, lawfully removed Leafdale Pty Ltd as Trustee by an instrument in writing, under the power contained in the Deed, and had appointed Mrs Meynert in its place.
Counsel for the first defendant argued, among other things, that the Codicil did not have the effect of making cl 1(2) of the Will effective from the date of the codicil because the republication principle only applies to the extent that the Will is a testamentary instrument. Clause 1(2) was not a testamentary disposition, but the exercise of a power by an instrument in writing under the Deed, and therefore the principle had no application to it. Accordingly, as the execution of the Will predated the execution of the Deed, at the time Mrs Pittorino purported to exercise her powers to remove Leafdale she had no power to do so, the Trust not then being in existence, and cl 1(2) was of no effect.
Senior Counsel for the plaintiff argued that the proposition that republication only applied to testamentary dispositions in a will was inconsistent with In re Bower, Bower v Mercer [1930] 2 Ch 82. In that case, in her will the testatrix recited, among other things, that she may in the future have property settled on her by her father and provided that, to the extent of her powers to do so at the date of her death, she appointed the whole of the income from such property to her husband during his life. Subsequently, in 1918, her father by a settlement provided for certain income to be paid to the testatrix during her lifetime and, if she so appointed by deed or will, to her husband after her death. In 1919 the testatrix executed a codicil to her will making some specific bequests. In 1924 the testatrix's father settled further income upon her on similar terms. After the death of the testatrix, a question arose as to the effect of the appointment to the testatrix's husband of the income settled on the testatrix by her father. Clauson J held that the effect of the execution of the codicil in 1919 was to bring the 1918 settlement within the operation of the appointment of her will, an operation it would not otherwise have had. The appointment to the husband of the income from the 1918 settlement was therefore effective. As no further codicil had been executed after the 1924 settlement on the testatrix, there was, however, no effective appointment to her husband of that income.
I do not consider that that case is inconsistent with the contention advanced by counsel for the defendant. In re Bower was concerned with a disposition of property by will, not with the exercise of a trust or fiduciary power by a written instrument, as in the present case.
A case more closely analogous, in my view, to the present case is Re Elcom [1894] 1 Ch 303. There the testatrix by a will made on 13 March 1856, after making certain specific bequests, gave the residue of her estate to trustees upon trust to pay the income to her niece during her lifetime and after the niece's death to hold the funds in trust for such of the niece's children who attained the age of 21. The testatrix made a codicil dated 28 April 1864 by which she gave a number of pecuniary legacies. The testatrix died on 19 April 1866. Between the date of the will and the date of the codicil, legislation known as Malin's Act came into force which enabled a married woman, with the concurrence of her husband, to dispose of a future or reversionary interest in any personal estate "to which she shall be entitled under any instrument made after the said 31st day of December 1857…". In 1867 one of the nieces daughter's assigned her reversionary interest in the estate of the testatrix to a third party who assigned it to the plaintiff.
The question arose as to whether the assignment by the daughter of her interest was effective. Under Malin's Act it was valid only if her interest arose under an instrument made after 31 December 1857. It was argued for the plaintiff, among other things, that the effect of the codicil was to republish the will at 28 April 1864, after the date specified in the legislation, and the assignment was therefore valid.
That argument was rejected at first instance by Chitty J and, on appeal, by the Court of Appeal. It was held that the term "instrument" in the Act meant the actual instrument by which the person became entitled, in this case the will, and that document was made on 13 March 1856 when it was duly executed by the testatrix. The doctrine of republication was irrelevant.
In my view, similar reasoning applies in the present case. The Appointor is entitled under cl 26 of the Deed to remove a trustee "by instrument in writing". The Will of Mrs Pittorino, executed by her on 21 February 1993, by cl 1(2), is relied upon as that instrument. In these circumstances, the doctrine of republication has no application. That doctrine is concerned with ascertaining the testamentary intentions of the testator or testatrix. Moreover, as Barton J observed in In re Moore (supra), republication does not erase the date nor change the fact that the will contained a particular devise and was executed at a particular time. It is not a rigid formula, but a flexible instrument for effectuating a testator's intentions.
In this case, the question is not as to Mrs Pittorino's intentions or the effect of the Will as a testamentary instrument, but simply whether there is a valid instrument in writing under cl 26 of the Deed by which Mrs Pittorino, in her capacity as Appointor, validly removed Leafdale as trustee and appointed Mrs Meynert in its place. Clause 26 entitled Mrs Pittorino at any time after her appointment as an Appointor, among other things, to remove a trustee. At the date the Will was executed, 21 February 1993, the Deed had not been executed and the Trust did not exist. As an instrument in writing under cl 26 of the Deed, cl 1 (2) of the Will is, accordingly, of no effect. The trustee of the Trust therefore remains Leafdale.
In view of my conclusion, it is unnecessary to consider the other arguments that were put to me on behalf of the defendant on the proper construction of the Deed.