Grabovic v Yang
[2022] VSC 417
•28 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2021 04774
IN THE MATTER of the Will of XINWEI XU, deceased
| RACHEL GRABOVIC | Plaintiff |
| v | |
| YU YANG | Defendant |
---
JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 July 2022 |
DATE OF JUDGMENT: | 28 July 2022 |
CASE MAY BE CITED AS: | Grabovic v Yang |
MEDIUM NEUTRAL CITATION: | [2022] VSC 417 |
---
ADMINISTRATION AND PROBATE – Administrators and executors – Will made in China – Application brought by plaintiff for letters of administration with Chinese will annexed – Whether Chinese will dealt with Australian assets – Application granted – s 17 of the Wills Act 1997 – ss 63, 67, 135 and 136 of the Evidence Act 2008 – rr 44A.06 and 43.02.1 of the Supreme Court (General Civil Procedure) Rules 2015 – Kirby-Smith v Parnell (1903) 1 Ch 489; Fell v Fell (1922) 31 CLR 268; Re Page [1969] 1 NSWR 471; Re Resch’s Will Trusts [1969] 1 AC 514; Re Barker [1995] 2 VR 439.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Jeremy Smith | Rigby Cooke Lawyers |
| For the Defendant | Thomas Mah | AFL Kordos Lawyers |
HIS HONOUR:
Xinwei Xu died on 23 September 2017 leaving a will dated 18 March 2016 (the 2016 will). He had been diagnosed with cancer in 2015.
The deceased was the father of four children to three women. Zhenfeng Xu, who has appointed the plaintiff as his attorney, is the deceased’s eldest child from his first marriage.
The plaintiff seeks a grant of letters of administration with the 2016 will annexed. The defendant, who was married to the deceased at the time of his death and who is the mother of his fourth child, has filed a probate caveat in relation to the plaintiff’s application.
The defendant objects to a grant of probate of the 2016 will on the basis that it does not deal with the deceased’s assets in Australia. At the time of his death, the deceased owned various real and personal assets in China and Australia.[1] The defendant contends that the deceased intended the 2016 will to only deal with his assets in China and that, because he did not leave any other testamentary documents dealing with his Australian assets, his assets in Australia are to be distributed in accordance with the intestacy provisions in Victoria. It was uncontroversial that, if the 2016 will does not deal with the deceased’s Victorian assets, the defendant would be entitled to a grant of representation as the person with the most substantial interest on intestacy.
[1]This included four real properties in mainland China and bank accounts in mainland China and Hong Kong. The deceased’s Australian assets included properties in Point Cook and Westmeadows in Victoria and cash held in various bank accounts and a solicitor’s trust account.
The issue for determination is therefore whether or not, properly construed, the 2016 will deals with the deceased’s assets located in Victoria. In determining that issue, the plaintiff sought to rely on affidavits sworn by her on 22 March 2021, 11 May 2021 and 25 February 2022. The defendant sought to rely on an affidavit affirmed by her on 18 November 2021 and an affidavit of Yianni Kordos sworn on 19 July 2022.
Legal principles
This question of construction arises in the Court acting as a ‘court of probate’, not a ‘court of construction’. Because the main functions of the Court in exercising its jurisdiction to make grants of probate are to ‘ascertain and determine what testamentary paper or papers are to be regarded as the deceased’s last will, and who is entitled to be constituted as his or her representatives’,[2] it is well established that, in undertaking that task, the Court is entitled to consider many facts which would be inadmissible in a court of construction.[3] In Re Resch’s Will Trusts, Lord Wilberforce, giving the advice of the Privy Council, drew attention to the breadth of evidence that is admissible in a court of probate:[4]
The principles which ought to be applied on such a question is this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl. “In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation”[5]… and “in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator”.[6]
[2]As described by the learned authors of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (John Ross Martyn and Nicholas Cannick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed, Sweet & Maxwell, 2013)).
[3]Re Hawksley’s Settlement; Black v Tidy [1934] Ch 384, 396.
[4][1969] 1 AC 514, 547C.
[5]Menthuen v Menthuen (I 817) 2 Phillim 416, 426.
[6]Greenough v Martin (1824) 2 Add 239, 243.
These principles have been applied in this Court. In Re Barker, Tadgell J was required to consider two conflicting applications: one for a grant of probate in respect of a deceased’s will made in Australia, the other for letters of administration in respect of a later will made in Germany.[7] The issues for determination were whether a revocation clause in the German will effected a revocation of the Australian will and whether, in any event, the German will impliedly revoked the Australian will by making inconsistent dispositions of property. After referring to the above authorities, Tadgell J stated:[8]
The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator's intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if there is receivable evidence which is sufficient to rebut it, there can be no doubt that it is the duty of a court of probate to give effect to it.
[7][1995] 2 VR 439. See also Re Tait (deceased) [1957] VR 405.
[8]Re Barker (n 7), 446.
Tadgell J referred at length with approval to the following observations by Helsham J in Re Page[9] concerning the nature of an application for probate and that it:[10]
… includes an enquiry into what document or documents or what parts thereof shall have been proved to set forth the dispositive will of a deceased person in writing and executed in conformity with the requirements of the Wills Probate and Administration Act and as such entitling some person or persons to be constituted the personal representative of the deceased. This means an inquiry inter alia into what the deceased person intended should constitute the whole of his testamentary dispositions; so that the inquiry is not always so much into what a deceased person said or meant in any particular document which does constitute his will, but whether he intended that the document should constitute his will, and if so either wholly or partly, and to the exclusion of other prior documents and so on. The central fact to be proved, assuming formal validity, is a deceased's intention as to the document, which is not necessarily to be found from the document.
The fact that a deceased says in the document which he executes as a will that it is to constitute the whole of his testamentary dispositions to the exclusion of any other instruments (for example by describing it as his will and by including a revocation clause) is a factor which bears upon the proof of whether he intended it to contain the whole of his testamentary dispositions. Normally it is cogent evidence from which the factum of intention can be inferred and will operate to displace other evidence of intention, or at least to outweigh it, for a court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred. But it is not necessarily conclusive proof of a deceased's intention. If it is established by evidence that a particular instrument was not intended by a deceased to contain the whole of his testamentary dispositions, then notwithstanding that the instrument itself has words in it from which it might be inferred that the deceased did so intend, these words will not be allowed to prevail in some cases so as to defeat the true intention. Such cases occur when it can be shown that the words in it do not reflect the deceased's intention at all or only reflect that intention conditionally upon some other event happening. Cases of mistake are instances of the former and cases of dependant relative revocation are instances of the latter type of situation.
[9][1969] 1 NSWR 471.
[10]Re Barker (n 7), 447.
These principles of construction are not confined to cases involving revocation. They are of general application where it is necessary for a court of probate to determine which documents should be admitted to probate and to whom a grant should be made. As Helsham J stated in the following extract from Re Page to which Tadgell J referred in Re Barker in relation to the need to admit evidence as to true intention in cases of mistake and conditional revocation:[11]
Ex hypothesi the true intention cannot be discovered from the document or the act of the deceased; it must be ascertained from the scrutiny of all the relevant surrounding circumstances; any fact relevant to the proof of the factum of intention will be admissible including, of course, evidence of expressions of intention by the deceased himself. For one is not seeking to ascertain what was meant by a deceased from what he said in a document, as in the case of construing a will, but what he intended that the document should do or be; what he said in it in the latter case is only one factor, although in the case of a formal legal document by a deceased a very weighty factor in ascertaining what his intention was. I should add that reported cases seem to adopt a similar approach to the admission of evidence.
[11]Re Barker (n 7), 447 (underlined emphasis added; italicised emphasis added by Tadgell J).
The 2016 will
In accordance with s 17 of the Wills Act 1997, a will is taken to be properly executed if its execution conforms to the internal law in force in the place where it was executed, or which was the testator’s domicile or habitual residence.
It was uncontroversial that the 2016 will was properly executed in accordance with s 17 of the Wills Act. The deceased made the will on 18 March 2016 at the Panyu Notary Public Office in Guangzhou City, Guangdong Province, China. He did so before Zhanfen Guo, a notary public, and Yuyin Zhong, a member of staff of the notary public office. Zhanfen Guo executed a notarial certificate on 21 March 2016, which is annexed to the 2016 will, confirming that it was made in conformity with the provisions of article 55 of the General Principles of the Civil Law of the People’s Republic of China and section 1, article 17 of the law of succession of the People’s Republic of China.
After the deceased’s death, litigation regarding the 2016 will and the deceased’s estate ensued in China. On 13 July 2020, the Intermediate People’s Court of Guangzhou City, Guangdong Province, determined that the deceased was domiciled in China and that the 2016 will was valid.
After setting out the name and address of the deceased, the 2016 will commences as follows:
To properly dispose of my [Xinwei Xu’s] property, I hereby make the Will and Testament where my property shall be divided as follows after my death.
The 2016 will does not appoint an executor.
Clauses I to VII of the 2016 will provide for five legacies to be paid from a nominated Chinese bank account and certain devises of real property located in China to various family members, including the defendant. This includes three identified ‘housing properties’ in Guangzhou City and ‘all my due shares’ of a house ‘co-owned’ with the defendant, a house ‘co-owned’ with Zhenfeng Xu and a house ‘co-owned’ with the deceased’s second partner.
Clause VIII of the 2016 will then states:
35% of all my other movable and immovable property is bequeathed to XU, ZHENFENG; 25% thereof is bequeathed to XU, JINXIAN; 15% thereof is inherited by XU, ZHUOYA; 15% thereof is bequeathed to DU JOYCE and 10% thereof is bequeathed to XU DANIEL …
Plaintiff’s submissions
The plaintiff submitted that there was no uncertainty, ambiguity or confusion arising from the terms of the 2016 will. On its face, it was a carefully crafted document which dealt with all of the deceased’s property, regardless of its location, and therefore must be understood to have dealt with the deceased’s assets in China and Australia.
In support of this submission, the plaintiff placed particular emphasis on the provision of the 2016 will referred to in [13] above. The reference therein to the phrase ‘my property’, appearing twice, was unconditional on its face and when viewed in the context of the list of property in the following dispositive provisions. That list included both specific property as referred to in clauses I – VII and, in clause VIII, ‘all my other movable and immovable property’. Clause VIII was critical: it was effectively a residuary clause which embraced all property all of the deceased’s property wherever it was located.
Because there was no ambiguity or uncertainty on the face of the will, the plaintiff submitted that no extrinsic evidence should be admitted or referred to as an aid in construing the 2016 will.
The plaintiff also relied upon the principle identified by Isaacs J in Fell v Fell that intestacy is a last resort.[12] His Honour referred to the statement by Buckley LJ in Kirby-Smith v Parnell that:[13]
In ascertaining the intention, I ought to a certain extent — we all know what the expression means — to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary.
Contrary to this principle, the interpretation of the 2016 will advanced by the defendant would give rise to an intestacy.
[12](1922) 31 CLR 268, 275.
[13]Ibid 276, quoting Kirby-Smith v Parnell (1903) 1 Ch 489 (emphasis added by Isaacs J).
Defendant’s submissions
The defendant sought to rely on three categories of extrinsic evidence in support of her submission that the 2016 will does not deal with the deceased’s Australian assets.
First, the defendant purported[14] to annex to her affidavit a transcript of the meeting between the deceased and the notary official referred to in [9] above (which is in Chinese) and what is said to be an English translation of the transcript. The translation records an ‘inquiry’ held at the Panyu Notary Office on 18 March 2016, being the date of the 2016 will. It sets out various questions asked by Zhanfen Guo (identified in the translation as the ‘interviewer’) and answers given by the deceased.
[14]Unfortunately, as explained in an affidavit made by the defendant’s solicitor Yianni Kordos dated 19 July 2022 which annexed the transcript and the translation, by mistake, neither of those documents were in fact exhibited to the plaintiff’s affidavit.
The transcript appears to record the signatures of the interviewer and a ‘recorder’. What is said to be deceased’s signature also appears at the bottom of the transcript under the following words (as read from the translation): ‘The above contents have been verified by me to be correct (for) Signature of the Applicant [signed]’.
The defendant seeks to rely on the following extract from the translation to establish that the deceased expressly stated that the 2016 will was to be used in China:
Q: What document is requested to be notarized?
A: Will
Q:What’s the purpose of the document? What’s the location that it is to be used?
A: Disposal of property; Location to be used: China.
Counsel submitted that the transcript is a contemporaneous record of what was said by the interviewer and the deceased when the 2016 will was made and that it was akin to a note made by a solicitor recording a testator’s intention as to the applicability of their will. It was submitted to be the best extrinsic evidence available to the Court about the deceased's true intention in respect of the 2016 will.
Secondly, the defendant sought to rely on the terms of previous wills made by the deceased. The deceased had previously made a will in mainland China on 10 October 2012 (the 2012 will) and a will in Hong Kong on 16 May 2013 (the 2013 will). The 2012 will specifically referred to the deceased’s real properties in mainland China. The 2013 will was made soon after and expressly provided that it was intended to deal only with one of the deceased’s properties in Hong Kong. It was submitted that it could be inferred from the making of the 2013 will that the deceased intended his 2012 will to only deal with his assets in mainland China; otherwise it would have been unnecessary for him to have made the 2013 will.
The defendant submitted that this history of will-making by the deceased demonstrated that he had previously made wills which ‘compartmentalised’ his testamentary intentions between assets in different jurisdictions. Accordingly, having an intention to make a will dealing with assets in only one jurisdiction – as the defendant submits the deceased intended with the 2016 will in respect of his Chinese assets – was not something which was foreign to him.
The 2016 will and the 2012 will have in common the fact that all of the assets to which specific reference is made are based in mainland China. However, the deceased must be taken to have been aware when he made the 2016 will that he owned properties outside of mainland China. On this basis, the defendant submitted that the deceased’s knowing omission from the 2016 will of any reference to those real properties, as with the 2012 will, was consistent with an intention by him for the 2016 will to only deal with his assets in mainland China.
Thirdly, the defendant sought to rely on the contents of an affidavit made by her in which she deposed that, not long after the deceased made the 2016 will at their home in Guangzhou, the deceased told her that he had made a new will and that, like the 2012 will, it was to deal with his assets in mainland China only.
Counsel for the defendant submitted that I should give weight to this evidence as it was evidence of the deceased’s direct intention in relation to the 2016 will. The evidence was said to be inherently plausible because it occurred soon after the defendant and the deceased had become engaged in February 2016 and after the deceased had been diagnosed with cancer. In those circumstances, it was inherently plausible that they would have a conversation about the making of a will by the deceased and its scope of application.
Admissibility of the transcript and the translation
In relation to the extrinsic material sought to be relied on by the defendant, the plaintiff only maintained an objection in relation to the Court receiving into evidence the transcript and translation of the meeting between the deceased and the notary official on 18 March 2016, as well as those paragraphs in the defendant’s affidavit in which she refers to the their contents. The plaintiff objected to the Court receiving this material into evidence on the basis that it was hearsay. It was common ground that, properly analysed, the transcript and the translation contained two representations by the deceased to the same effect:
(a)an oral representation when he spoke the words said to be reflected in the transcript; and
(b)a written representation that the transcript was a correct record of those words when he signed the document.
Given the unavailability of the deceased, the defendant relied upon the exception in s 63(2)(b) of the Evidence Act2008 as the basis upon which the Court should receive the transcript and translation into evidence. That provision provides that the hearsay rule does not apply to ‘a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation’.
The plaintiff submitted that the defendant could not avail herself of the exception in s 63(2)(b) because she could not give evidence that the transcript contained the deceased’s representations because she did not see the deceased sign it. I reject this submission; s 63(2)(b) does not contain within it such a requirement. That requirement is reflected in the terms of s 63(2)(a) which establishes an exception in relation to ‘evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made’. The defendant disavowed any reliance on s 63(2)(a).
The exceptions in s 63(2) do not apply unless given reasonable notice is given.[15] It was uncontroversial that the defendant failed to give reasonable notice to the plaintiff of her intention to adduce evidence in reliance on the exception in s 63(2).
[15]Section 67(1) of the Evidence Act 2008.
Section 67(4) of the Evidence Act2008 gives the Court a discretion to waive the notice requirement. The plaintiff submitted that there should be no waiver because the ordinary processes should be observed as the transcript was important evidence. Further, it was submitted that this is not a case where the plaintiff would not suffer prejudice from a failure to give any or sufficient notice; the plaintiff had been denied the opportunity to consider the transcript and to make her own enquiries about the circumstances in which it was brought into existence and purportedly signed by the deceased.
I reject this submission. The defendant has deposed that the transcript came into her possession from the materials disclosed by Zhenfeng Xu in the legal proceedings in mainland China in relation to the 2016 will. The transcript and the translation are listed as being in the plaintiff’s possession, custody or power in her affidavit of documents sworn on 22 September 2021. Additionally, the plaintiff has been on notice of the defendant’s intention to rely upon the contents of the transcript and translation since at least 25 June 2021 when the defendant filed her amended grounds of objection which included specific reference to these documents. The defendant referred to and purported to annex the transcript and translation to her affidavit filed on 23 November 2021.[16] In these circumstances, the plaintiff’s claim of prejudice in the event that the Court was to waive the notice requirement is without substance. It is clear that the plaintiff was squarely on notice of the defendant’s intention to rely on these documents which originally came to her from Zhenfeng Xu. I accordingly direct that s 63(2) of the Evidence Act 2008 applies in relation to the transcript and the translation, despite the defendant’s failure to give reasonable notice of her intention to rely on the provision.
[16]See further at footnote 14 above.
The plaintiff also submitted that the transcript and the translation should not be received into evidence because of the risk that their contents may be misleading or unfairly prejudicial. The plaintiff relied upon s 135 of the Evidence Act 2008 which gives the Court a discretion to exclude evidence including where ‘its probative value is substantially outweighed by the danger that the evidence might … be unfairly prejudicial to a party; or misleading or confusing’,[17] and s 136 of the Evidence Act 2008 which gives the Court a discretion to limit the use to be made of evidence where relevantly ‘there is a danger that a particular use of the evidence might … be unfairly prejudicial to a party; or misleading or confusing’.[18]
[17]Section 135(b) Evidence Act 2008.
[18]Section 136(b) Evidence Act 2008.
The plaintiff advanced two points as to why the Court should exercise its discretion under the above provisions. First, although the defendant explained the provenance of the transcript to the extent that she was aware of it, neither she nor her solicitor explained how the translation came into existence. There is no indication that there has been compliance with the requirements of rr 44A.06 and 43.02.1 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). Although these provisions appear to be concerned with viva voce evidence or the entirety of an affidavit, they nonetheless set out the rigour that the Court expects in relation to the use of evidence involving interpreters and translators. The Court is entirely dependent on the quality of the translation of the original document; if the translation is in any way unreliable, then the evidence will also be unreliable. In this case, it was submitted that it was possible that the defendant, or a person close to her, created the translation. The reliability of the translation was in sharp focus in the present matter given that the defendant placed reliance on a very specific part of the transcript. Given the nuances and subtleties of different languages, it was submitted that if the Court was to rely upon the translation, additional confidence was required.
The plaintiff next submitted that the Court should exercise its discretion under ss 135 and 136 because it was possible that the contents of the transcript may be in standard form. Given China’s large population and what was described as the ‘convoluted process’ required under Chinese succession law which calls for the involvement of a notary in interviewing a testator, making a transcript and issuing a certificate, it was submitted that there is every possibility that the transcript which a testator signs is in standard form and is simply placed before the testator for their signature.
In response, the defendant reiterated her previous submission that the transcript and translation had been produced having been first obtained from the plaintiff. Further, reliance was placed upon a paragraph in the defendant’s affidavit in which it would appear that she has directly translated from Chinese the key exchange referred to in paragraph [23] above.
Counsel for the plaintiff accepted that rr 43.02.1 and 44A.06 of the Rules do not of themselves bear directly upon the admissibility of the translation. Whether or not they might be said to reflect some broader standard to be applied in considering the admissibility of documents translated from one language to another, given that the transcript came to be in defendant’s possession because it was provided to her by Zhenfeng Xu in the legal proceedings in mainland China in relation to the 2016 will, there can be no is no substance to the claim that the translation might have been created by the defendant or someone person close to her. Further, the availability of the transcript means that it was always open to the plaintiff to adduce evidence that the translation was in some way inaccurate or misleading: no such evidence was adduced. The claim that the transcript may be in standard form is also entirely speculative. The plaintiff did not adduce any evidence about the procedures for making testamentary instruments under Chinese law to provide any foundation for these claims. For these reasons, I reject the plaintiff’s reliance on ss 135 and 136 of the Evidence Act 2008. Any danger that the transcript and the translation may be unfairly prejudicial or misleading does not substantially outweigh their probative value, which is potentially significant.
I will accordingly receive into evidence the transcript and translation of the meeting between the deceased and the notary official on 18 March 2016.
Consideration
The deceased announced his testamentary intention in the first substantive paragraph of the will: ‘To properly dispose of my … property, I hereby make the Will and Testament where my property shall be divided as follows after my death’.[19] After setting out various specific gifts in the following seven clauses, in clause VIII, the deceased disposed of ‘all of my other moveable and immoveable property’ to his four children and one grandchild according to certain percentages.
[19]My emphasis.
As was submitted on behalf of the plaintiff, there is no ambiguity or uncertainty on the face of these provisions: the residuary of the deceased’s property not the subject of the dispositions in clauses I-VII is to be gifted in accordance with the proportions set out in clause VIII. The subject matter of that clause is otherwise unconfined and would include the deceased’s residuary real property wherever it may be located.
Although this is not the end of the Court’s task in ascertaining the deceased’s intention in relation to the 2016 will, it is cogent evidence from which the factum of the deceased’s intention may be inferred. Consistent with Helsham J’s statements of principle in Re Page, the ‘court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred’. What a deceased states in a formal testamentary instrument is a ‘very weighty factor’ in ascertaining what he or she ‘intended that the document should do or be’.[20]
[20]See Tadgell J, quoting Helsham J at [9] above.
A contrary intention on the part of the deceased to what appears from the words used in the 2016 will was said to have been made express on the basis of the defendant’s evidence that, soon after the 2016 will was made, the deceased told her that he had made a new will and that, like the 2012 will, it was to deal with his assets in mainland China only. However, in the absence of the deceased or any corroborating witness, evidence of this type must necessarily be treated with caution. There is a further reason for caution in the circumstances of this case. Although the timing of the statement attributed to the deceased lends to it a plausibility as suggested by counsel for the defendant, it is also the case that the deceased’s complex familial arrangements and ill health are such that, even if the deceased said what is attributed to him by the defendant, it does not necessarily follow that they represented his actual testamentary intentions.
As a record of an interview undertaken as part of the requirements under Chinese law in relation to succession law, the transcript is, at least in theory, a potentially more certain basis upon which to ascertain what the deceased intended the 2016 will to do. However, the relevant part of the transcript relied upon by the defendant does not make sufficiently clear that that the deceased did not intend the 2016 will to deal with his Australian assets.
The key question and answer recorded in the translation is as follows:
Q:What’s the purpose of the document? What’s the location that it is to be used?
A: Disposal of property; Location to be used: China.
The translation does not indicate that the deceased was asked whether the 2016 will dealt only with property in China, or that he said as much to the interviewer. In answering ‘China’ to the question ‘location that it is to be used’, the deceased could reasonably be understood as intending to say that all of the property specifically referred to in the 2016 will was located in China. The element of geographical exclusivity or specificity (i.e. China) in the deceased’s intended operation of the 2016 will does not emerge with clarity from a reading of the transcript.
It is unnecessary to resolve these questions of interpretation of the deceased’s intention as conveyed by the words recorded in the translation. While the interpretation posed by the defendant is arguable, the point is that alternative explanations and interpretations about the deceased’s intention drawn from the translation are also available. This evidence alone, and in conjunction with the defendant’s evidence about what the deceased said about the 2016 will, is equivocal and insufficiently clear to displace the ‘solemnly eloquent’[21] expression of the deceased’s intention conveyed by the words used in the 2016 will.
[21]See Tadgell J at [7] above.
A consideration of the deceased’s history of will-making does not assist the defendant in her submissions about what the deceased intended in making the 2016 will and in fact supports the plaintiff’s case that the deceased intended the 2016 will to deal with his assets located in Victoria. The most pertinent fact disclosed by this history is the contents of the 2013 will. As I have already noted, the only property dealt with by the 2013 will was a property located in Hong Kong, and the 2012 property specifically referred to the deceased’s real properties in China. This demonstrates that the deceased was aware of the ability to make wills confined in operation to assets in specific jurisdictions. With that knowledge, it is significant that the deceased did not adopt such an approach in relation to his real property in Australia. It is inherently unlikely that in 2016 the deceased, with a history of will making and at a time when the question of his legacies would likely have been a matter of some active consideration given his medical condition, would have entrusted the disposal of his properties to the principles of intestacy. This approach to construction is also consistent with the principle identified by Isaacs J in Fell v Fell referred to in [19] above. The inference to be drawn from these matters is that the deceased intended his 2016 will to deal with all his assets, including those located in Victoria, an intention conveyed by the plain meaning of the words contained in his will.
The plaintiff is entitled to a grant of letters of administration with the 2016 will annexed. Within seven days, the parties are to submit proposed orders to give effect to these reasons for judgment, including any orders in respect of costs.
---
0