Iskandarani v Saarelaht and Ors
[2001] VSC 44
•1 March 2001
| SUPREME COURT OF VICTORIA | |
| COMMERCIAL AND EQUITY DIVISION PROBATE JURISDICTION | Not Restricted |
No. 7291 of 2000
IN THE MATTER of s.9(1) of the Wills Act 1997
and
IN THE MATTER of the Will and Estate of Ilmatar Meister, deceased
| MAHMOUD YOUNES ISKANDARANI | Plaintiff |
| v | |
| ENDEL SAARELAHT, | Defendants |
| INDO SAARELAHT and | |
| HELGI SAARELAHT |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2001 | |
DATE OF JUDGMENT: | 1 March 2001 | |
CASE MAY BE CITED AS: | Iskandarani v Saarelaht and Ors | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 44 | |
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Will – Construction – Whether words used impose a condition – Intention of testatrix – No condition imposed.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr P. Bravender-Coyle | Prescott & Associates |
| For the Defendants | Mr R.B. Phillips | Secombs |
HIS HONOUR:
This is the return of a summons in a proceeding instituted by originating motion seeking the determination of the construction of the last Will of the deceased, Ilmatar Meister ("the deceased").
The deceased died on 7 July 1999, leaving an undated Will made on or about 15 October 1998.
Parties
The plaintiff, Mahmoud Younes Iskandarani ("the plaintiff") first met the deceased on 11 February 1976 when he commenced to live at her home. He resided with her until her death.
The deceased was born on 13 May 1913 and was married. There were no children of the marriage. She was survived by her two brothers, Endel and Indo Saarelaht and a niece, Helgi Saarelaht ("Helgi") who lives in the Republic of Estonia.
The two brothers and the niece were joined as defendants to the proceeding.
Preparation of the Will
Prior to 15 October 1998, the plaintiff obtained a Will form from a newsagent. On the morning of 15 October 1998, the deceased directed him to write out her Will and at her direction he wrote the Will in her presence. The deceased spoke Estonian and English and gave her instructions in English. Subsequently the Will was signed by a doctor and a registered nurse.
Application to Court
On 19 October 2000, the plaintiff issued an originating motion and summons seeking an order, inter alia, that the Will of the deceased which was not executed in the manner required to be executed by s.7(1)(c) of the Wills Act 1997 be admitted to probate, pursuant to s.9(1) of the Act.
On 18 December 2000, Beach J made orders by the consent of the parties that the Will be admitted to probate. Letters of administration with the Will annexed were granted to the plaintiff.
The plaintiff was given leave to amend the summons to include relief which had been sought in the originating motion and which was omitted in the summons. The added paragraph sought the construction of the Will.
The Will and construction issue
The Will is in handwriting, contains errors and is difficult to read in parts. I set it out as written:
"2. I GIVE devise and bequeath unto
I wont (sic) the Property my Own of 5 Theodore
Street Mont Albert Vic. 3127 go to My Foster
son MAHMOUD YOUNES ISKANDARAN; and
to my Doughter (sic) of my brother in ESTONIA,
HELGI SAARELAHT of Elvoc limm 61.507
Nooruse 13-13, ESTONIA, Europe
And the money in the Bonk (sic) Commonwealth Bonk (sic) go to
my two Brothers, holf (sic) and holf (sic), Emolel ond (sic)
INDO SAArelaht, and whot (sic) belongs to me in the house, go to
my Foster son. And Helgi
SAARELAHT com (sic) live in her shore (sic) but
connot (sic) sell otherwise her share go to my Foster son."
It is noted that the writer of the Will, namely, the plaintiff, used throughout the Will the letter "o" instead of "a" save where he used a capital "A".
The question to be answered by the court is –
"A determination as to whether upon the true construction of the last will and testament of Ilmatar Meister, deceased, and in the events which have happened, the condition attached to the devise of the land at 5 Theodore Street Mont Albert Victoria being the land more particularly described in Certificate of Title Volume 9475/Folio 791 to the third named defendant:
(a)was a valid condition;
(b)fails for impracticality, uncertainty or otherwise."
Court of construction, fuction and evidence
The function of a court of construction is to determine the intention of the testator and to give effect to that intention.
The primary source of the intention is to be discovered from the words used in the Will aided by such extrinsic evidence as is admissible.
"Every Will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used." Per Lord Cranworth in Abbott v Middleton (1858) 7 HLC 68 at p.88.
In Perrin v Morgan (1943) AC 399, Viscount Simon LC at p.406 expressed the function in the following language –
"My Lords, the fundamental rule in construing the language of the will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the 'expressed intentions' of the testator."
Like the approach of the courts to the interpretation of contracts and statutes the construction of a Will is not to be analysed in a vacuum.
In Perrin v Morgan, supra, at p.414, Lord Atkin said –
"If this is to decide according to the 'context', I am content, but I cannot agree that the court is precluded from looking outside the terms of the will. No will can be analysed in vacuo. There are materials surrounding such as I have suggested in every case, and they have to be taken into account. The sole object is, of course, to ascertain from the will the testator's intentions. The result of your Lordships' decision will be to relieve judges in the future from the thraldom, often I think self-imposed, of judgments in other cases believed to constrain them to give a meaning to wills which they know to be contrary to the testator's intention."
The words must be construed in their normal and every day meaning but it is essential that they be construed after considering the whole instrument.
Lord Denning MR stated the function of the court of construction in these terms –
"In construing this will, we have to look at it as the testator did, sitting in his armchair, with all the circumstances known to him at the time. Then we have to ask ourselves: 'What did he intend?' We ought not to answer this question by reference to any technical rules of law. Those technical rules of law have only too often led the courts astray in the construction of wills. Eschewing technical rules, we look to see simply what the testator intended … The only legitimate purpose (of previous cases) is to use them as a guide towards the meaning of words, so as to help in the search for the testator's intention. They should never be used so as to defeat his intention."
See Re Jebb (1966) Ch at p.672.
See also the observations of Windeyer J in Lutheran Church of Australia v Farmers Co-operative Executors and Trustees Ltd (1970) 121 CLR 628 at 646.
In seeking to determine the intention of the testator, the primary source is the words that have been used in the Will. Whilst in some cases the surrounding circumstances may be admissible it is necessary first of all to consider the words used in the Will. If the meaning is clear then surrounding circumstances cannot be admitted to throw doubt upon that meaning. See Higgins v Dawson (1902) AC 1. Further, the Wills Act 1997 makes it clear that if there is ambiguity or uncertainty with respect to the language used evidence may be admitted to assist in the interpretation of the language but evidence is not admissible as to the testator's actual intention. See s.36.
In the present case there are two questions that first of all have to be addressed. First, what are the words used in the Will concerning the alleged condition? Secondly, what is the meaning of the words?
The words used and meaning
A difficulty arises concerning the word which follows Helgi's name in the last sentence of the Will. The word could be "com" or "con". There may have been an error in writing the word and it should have been "come". The word may be "can".
In my opinion the word is "can".
I reach that conclusion, first, because the plaintiff when writing the letter "a" invariably wrote it "o"; secondly, it makes sense in context; and thirdly, the testatrix would know of the difficulties of a person born outside of Australia being permitted to reside in Australia for a lengthy period or permanently. The testatrix was expressing a view only. She would know that no person born outside this country has a right to live here. She would appreciate she could not require Helgi to live in her house in Australia.
Accordingly, in my opinion the last sentence reads – "And Helgi SAARELAHT can live in her share but cannot sell otherwise her share go to my Foster son."
In the affidavit in support of the summons the plaintiff has sworn that the deceased explained to him why she thought Helgi should have a share. The evidence was objected to and in my opinion it is inadmissible. I do not take it into account in construing the Will – see s.36.
When construed in that way, the words are simply words of desire, hope, expectation or wish and in my view are devoid of legal effect. They are precatory words only. They do not impose any obligation upon Helgi to come and reside at the property. The words do not impose a condition.
The other part of the sentence is concerned with selling "her share" and is a condition. But it is a restraint on alienation of the property and accordingly is void. The words are a complete prohibition on alienation during the life time of Helgi. As Helgi and the plaintiff have been devised absolute interests a restraint of alienation is repugnant to the absolute interest and is void. See Re Paterson; Paterson v Trustees Executors and Agency Co Ltd (1939) VLR 66 at pp.74 and 75 and Re Dugdale (1888) 38 Ch D 176.
In my opinion it is clear from the opening part of the Will that the testatrix intended that the property be given absolutely to the plaintiff and Helgi. That much is clear and there was no argument to the contrary.
The question is, does the last sentence constitute a condition which in any way cuts down or limits the extent of the interest which the testatrix has given to Helgi?
On the basis that the restraint with respect to alienation is of no effect, then in my opinion the last sentence does not in any way limit or qualify Helgi's entitlement to the property jointly with the plaintiff. The words used as I have already stated are no more than words of desire, wish and hope and can have no legal effect upon the devise to Helgi.
In my opinion, on the construction that I have put on the words used, there is no condition attaching to the devise to Helgi.
Conclusion
It follows that in my opinion the questions raised for consideration in the originating motion in paragraph 4 ought to be answered as follows:
(a)No.
(b)Unnecessary to answer.
Subject to the submissions of counsel I propose to make the following orders –
(i)Declare that the answers to the questions asked in paragraph 4 of the originating motion dated 19 October 2000 be answered as follows –
(a)No.
(b)Unnecessary to answer.
(ii)That the plaintiff's costs of and incidental to the proceeding be allowed and taxed on a trustee basis and the costs of the defendants in the proceeding be allowed and taxed on a solicitor and client basis and that the costs be paid out of the estate of the testatrix.
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