Joseph Mark Zuvela as Executor of the Estate of Marija Zuvela Grizun v Joseph Mark Zuvela Beneficiary of the Estate Marija Zuvela Grizun
[2015] WASC 410
•4 NOVEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JOSEPH MARK ZUVELA AS EXECUTOR OF THE ESTATE OF MARIJA ZUVELA GRIZUN -v- JOSEPH MARK ZUVELA BENEFICIARY OF THE ESTATE MARIJA ZUVELA GRIZUN [2015] WASC 410
CORAM: TOTTLE J
HEARD: 28 AUGUST 2015
DELIVERED : 4 NOVEMBER 2015
FILE NO/S: CIV 1878 of 2014
MATTER :The Estate of the late Marija Zuvela Grizun (otherwise known as Maria Zuvela) of 62 Maddington Road, Orange Grove in the State of Western Australia, Home Duties, Deceased
AND
Section 45 Administration Act and section 92 of the Trustees Act
BETWEEN: JOSEPH MARK ZUVELA AS EXECUTOR OF THE ESTATE OF MARIJA ZUVELA GRIZUN
Plaintiff
AND
JOSEPH MARK ZUVELA BENEFICIARY OF THE ESTATE MARIJA ZUVELA GRIZUN
First DefendantVINCENT PAUL ZUVELA BENEFICIARY OF THE ESTATE OF MARIJA ZULVELA GRIZUN
Second DefendantPAUL JOSEPH ZUVELA
Third DefendantARI ZUVELA
ELIJAH ZUVELA
Fourth DefendantsTHE AS YET UNBORN MALE CHILDREN OF PAUL ZUVELA
Fifth Defendant
Catchwords:
Construction of will - Property which is the subject of the gift - Whether gift absolute or conferred life interest only - Entitlement to remainder interest
Legislation:
Administration Act 1903 (WA), s 45
Adoption Act 1994 (WA), s 75
Trustees Act 1962 (WA), s 92
Wills Act 1970 (WA), s 28A
Wills Amendment Act 2007 (WA), s 22
Result:
Asnwers provided on s 45, Administration Act 1903 (WA) application
Category: B
Representation:
Counsel:
Plaintiff: Ms M J Elliott
First Defendant : In person
Second Defendant : Mr D Markovich
Third Defendant : In person
Fourth Defendants : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiff: Elliott & Co
First Defendant : In person
Second Defendant : Murfett Legal
Third Defendant : In person
Fourth Defendants : Munro Doig
Fifth Defendant : Munro Doig
Case(s) referred to in judgment(s):
Elliot v Lord Joicey [1935] AC 209
In re Bruce; Tasmanian Permanent Executors & Trustees Association v Macfarlane [1979] Tas R 110
In the Matter of the Will of Lysaght (decd) (1987) 48 SASR 457
Pringle v Pringle [2010] WASC 206
TOTTLE J:
Introduction
These proceedings involve the construction of the will made on 13 October 1987 (the will) by Maria Zuvela Grizun (the deceased). At the time the deceased made the will she was 84 years old.
The deceased died on 2 October 1992 aged 89 years.
Probate was granted in respect of the will to the plaintiff, Joseph Mark Zuvela, on 20 May 2013.
Without intending any disrespect, after introduction, I shall refer to each of the parties and their family members by his or her given name.
The proceedings were commenced by Joseph, in his capacity as the executor of the deceased's estate, by an originating summons issued on 15 June 2014 seeking directions on the proper construction of the will and other orders pursuant to s 45 of the Administration Act 1903 (WA) and s 92 of the Trustees Act 1962 (WA). The originating summons was amended on 11 September 2014 and further amended on 26 February 2015.
Joseph is named as the first defendant in his capacity as a beneficiary of the estate. In that capacity, he filed a notice that he intended to abide by the decision of the court.
The second defendant is Vincent Paul Zuvela, who is Joseph's twin brother. Vincent was represented and took an active part in the proceedings.
The third defendant, Paul Joseph Zuvela, is Vincent's son.
The fourth defendants, Ari Zuvela and Elijah Zuvela, are Paul's sons, and are both under 18 years of age. They were represented in the proceedings by their guardian ad litem, Ms Amanda Zuvela.
The fifth defendants are a class of potential beneficiaries, 'The As Yet Unborn Male Children of Paul Zuvela'. They were represented by a guardian ad litem, Ms Amanda Zuvela.
Paul, Ari and Elijah and the class of beneficiaries did not play any part in the proceedings. Paul and solicitors acting on behalf of Ari and Elijah and the class filed notices of intention to abide the outcome.
Orders were made on 11 September 2014 directing that those persons who were potential beneficiaries of the estate in the event of intestacy not otherwise named as parties be given notice of these proceedings and be served with the originating summons, the supporting affidavits, and a draft copy of the order. An affidavit sworn by the plaintiff's solicitor establishing that those potential beneficiaries were served in accordance with the order has been filed and served and this was read at the hearing.
The issues
The will was a 'home made' will. The deceased completed a printed form of the kind available from stationers. The printed parts of the will and the deceased's name, her address, and name and address of her executor (Joseph), and the date were all written in English. The dispositive provisions were written in Croatian.
The will and a translation of it were annexed to the grant of probate. The translation attached to the grant of probate was made by Mr Željko Palčić, and I will refer to it as 'the Palčić translation'. The dispositive provisions were translated as follows:
[I Give Devise and Bequeath] Unto my sons Vince and Joseph Zuvela, both of Orange Grove I leave to them property - after my death - while they are alive - and after their death it goes to Vince's son Paul and to his male children. But if Joseph has no children then it still goes in this way; to daughter Mary Neskovic of 455 Main Street, Balcatta they have to give $2,000; property in Yugoslavia I leave to my daughter Mary Neskovic lower house and house at Prapatna, she is not to sale it to anyone but to the Council (meaning Municipal Council - translator's remark) at Vela Luka, that is how it is noted (written) at the Council; I leave to my son Peter properties at Uzaravac and at Humic, for a duration of his life and after his death to go to his son Peter; to my daughter Katica Burmas I leave gardens at Dolac, at Prigomile, at Bradat and Gora, and at Stazje close to Grebe; and those other properties to go to my two sons Vince and Joseph, for a duration of their life and after that to Paul as it is already written above; the house at Dolac and Potoracje, and Bradat, paddock in front of Lokva and the paddock at Omis near the Tecar as well as olive-tree fields at Tecar and Takaraca and bush (uncultivated land) at Bliznaca, all that for a duration of their life and on their death as it is already written above; to my sister Joze Oreb at San Pedro, Ca. I leave enclosed polot at Plitvine, I owe her this.
The further amended originating summons sought directions in relation to two gifts expressed in the following passage in the Palčić translation of the will:
Unto my sons Vince and Joseph Zuvela, both of Orange Grove I leave to them property - after my death - while they are alive - and after their death it goes to Vince's son Paul and to his male children. But if Joseph has no children then it still goes in this way; to daughter Mary Neskovic of 455 Main Street, Balcatta they have to give $2,000;
Three principal questions and 18 subsidiary questions were set out in the further amended originating summons. The questions and my answers to them are set out at the end of these reasons but, in overview, the issues in relation to the gift to Joseph and Vincent are as follows:
(a)What is the property which is the subject of the gift ‑ is it the market garden and vineyard property on which the deceased lived at the date she made the will and when she died, 62 Maddington Road, Orange Grove (the Orange Grove Property), or is it some other property forming part of the deceased's estate?
(b)Is the gift an absolute gift to Joseph and Vincent or did it confer on them a life interest?
(c)If the gift was of a life interest only, who was entitled to the remainder?
Various questions concerning the gift to Mary Neskovic were also raised in the further amended originating summons. Mary was one of the deceased's daughters. She died on 22 April 2000. In the course of the hearing, Joseph and Vincent reached an agreement in relation to this gift obviating the need to answer the questions regarding the gift to Mary.
The evidence
Affidavits from Joseph and Vincent were read at the hearing. Various paragraphs in Vincent's affidavit were struck out as a consequence of objections taken by Joseph's counsel. Otherwise, Joseph's and Vincent's affidavits stood as their evidence‑in‑chief. Neither was cross-examined.
Both Joseph and Vincent read and relied upon affidavits sworn by persons professing to have expertise in the Croatian language as to the correct translation of the will. Submissions were made by Joseph's counsel as to why the evidence of his expert witness, Ms Vesna Tenodi, should be preferred over the evidence of Vincent's expert, Mr Luka Budak. As the hearing progressed, and as a result of some relatively minor concessions (sensibly) made by Vincent's counsel, it became clear that there was no material difference between Ms Tenodi's translation and that of Mr Budak and the Palčić translation.
Before setting out my findings of fact, I make two observations about the evidence of Joseph and Vincent.
First, each gave evidence directed to establishing the deceased's actual testamentary intentions on the basis of statements that she and her late husband made in the course of their lifetimes. There was tension between the evidence given by each of them though neither challenged the evidence of the other directly and there was no cross‑examination. The deceased died before the limited statutory exception to the common law principle that evidence of testamentary intentions may not be admitted on the construction of a will came into operation (s 22 of the Wills Amendment Act 2007 (WA) and s 28A of the Wills Act 1970 (WA)). None of the exceptions to the common law principle applied and thus I have not taken into account the evidence of the deceased's actual intentions. I have taken this approach even though the evidence was adduced without objection because my task is to construe the deceased's testamentary intentions as expressed in the will. Moreover, in my view, the most controversial question concerning the nature of the gift of 'property' to Joseph and Vincent can be answered satisfactorily by reference to the text of the will itself and without reference to any extrinsic evidence.
Secondly, there was a good deal of evidence adduced by Joseph and Vincent about the circumstances in which the will was found and about the retainer of a solicitor to advise on the will and the administration of the estate. Whilst I have read this evidence, it does not assist me with the task of construing the will.
Factual findings
Much of the relevant history was not in dispute and I make the following findings.
The deceased was born in Croatia on 24 May1903.
She married Petar Zuvela in Croatia on 3 February 1923. Over the next five years, the deceased and Petar had three children. Mary was born on 5 March 1925. Katie was born on 10 January 1927. Peter was born on 24 March 1928.
Petar came to live in Australia in 1927. In 1938 he purchased lot 497 Maddington Road, Orange Grove.
The deceased, Mary, Katie, and Peter came to live with Petar in Australia in about 1940. Joseph and Vincent were born on 29 June 1943.
In 1944 Petar purchased lot 477 Kenwick Road (now Dale Place), Orange Grove.
A market garden and vineyard were established on lot 497 Maddington Road. The deceased worked in the market garden and vineyard along with her children and generated an income.
In 1948 Petar went to live in Croatia. By 1949 Mary, Katie and Peter had married and moved out of the family home.
In 1952 Petar returned from Croatia. In 1954 he purchased a truck and for a short while he and Peter worked together using the truck to haul logs.
In February 1965 Joseph married Mirona. After they were married Joseph and Mirona lived in the family home with the deceased and Petar.
Vincent lived in the family home until he married Josephine in April 1966. The deceased and Petar provided financial assistance to Vincent so he could buy a house in the suburb of Kenwick, which adjoins Orange Grove.
Both Joseph and Vincent assisted the deceased with work in the market garden and vineyard.
The deceased and Petar provided assistance to each of their other children. They provided financial assistance to Mary. They gave Katie a property in Shoalwater Bay. They gave Peter financial assistance with the purchase of a house in Maddington. The evidence was that Peter was not favoured by the deceased.
Petar died on 30 September 1970.
In 1972 the deceased made a will with the assistance of the firm of solicitors, Corser & Corser. This will could not be located.
Before Petar died, Joseph had assisted him with plans to subdivide the Orange Grove properties. After Petar died, Joseph continued the subdivision project on behalf of the deceased, and consulted Vincent from time to time. As a result of Joseph's work in 1973, lot 497 Maddington Road and lot 477 Kenwick Road were subdivided into lots 60 and 61 Dale Place and lot 62 Maddington Road, Orange Grove. Lot 60 Dale Place was transferred into Vincent's name and lot 61 was transferred into Joseph's name. Lot 62 comprised the vineyard and market garden and the deceased's home. It is the Orange Grove Property.
Joseph and Mirona built a house on lot 61 Dale Place. They moved into the house in 1975.
In 1989, when the will was made, Joseph and Mirona had no children, but they had not given up hope of having children. This was something which Joseph had discussed with the deceased. Ultimately, however, Joseph and Mirona did not have any children
Vincent and Josephine built a house on lot 60 Dale Place and moved into it in 1979.
Petar died on 19 June 1990 and was survived by five children. Katie died on 23 November 1992 and was survived by three children. Mary died on 22 April 2000 and was survived by two children.
Vincent had one son, Paul, born on 20 May 1977 and two daughters. Paul has two sons, Ari and Elijah, and one daughter.
The deceased lived a simple, frugal and somewhat isolated life. She had a close relationship with both Joseph and Vincent and was on good terms with each of them. She was generous towards her children but had a forceful and dominating personality.
The house on the Orange Grove Property was a timber frame house with asbestos cladding. It was severely infested with white ants and was demolished in 2002. The Orange Grove Property was capable of generating a small income but if the appreciation in its value was ignored then it was a liability as the income which could be derived from it did not cover the local council rates and land tax.
When she made the will, the deceased owned the following property:
(a)the Orange Grove Property;
(b)the contents of the house and outbuildings situated on the Orange Grove Property;
(c)cash;
(d)money standing to her credit in a bank account into which her pension was paid;
(e)interests in the real property in Croatia.
The deceased conversed in Croatian interspersed with some words of English. The deceased sought assistance to deal with paperwork in English. Following Petar's death the deceased was somewhat reclusive and relied on family members to assist her with shopping, banking and similar tasks.
From time to time the deceased used the English word 'property'. It was common ground that when the deceased used the word 'property' she did so in relation to real estate. By way of example, she would refer to her 'Orange Grove Property' or to her 'Safety Bay property'.
The deceased did not own two properties in Orange Grove.
In a material sense, the Orange Grove Property was the focus of the deceased's world.
The deceased's asset position was fairly stable from the date of the will until the date she died. The deceased left assets in addition to land worth just $813.91.
At the date of the deceased's death the value of the estate in Western Australia was estimated to be $275,813.91 and the value of the estate outside Western Australia, being the deceased's real estate in Croatia, was estimated to be $36,000. At the date of the deceased's death the Orange Grove Property was valued at $275,000 but it increased in value substantially and it was sold in early 2015 for $875,000.
The deceased did not anticipate having any property of significant value other than her real property to gift when she died.
Principles of construction: testamentary instruments
In Pringle v Pringle [2010] WASC 206 [25] Kenneth Martin J summarised the principles applicable to the interpretation of wills. I gratefully adopt that summary which was in the following terms:
1.The object of construing a will is to ascertain the testator's intention as expressed in the will itself. In a passage frequently cited from Perrin v Morgan [1943] AC 399, 406, Lord Simon LC famously observed:
[T]he fundamental rule in construing the language of a 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.
2.The overriding consideration is always the language used in the testamentary instrument. In Parnell v Hinkley [2007] WASC 102 [12] and [15], Master Newnes (as he then was) observed:
The Will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made. The language employed in the Will should be read in the sense which the testator appears to have attached to the expressions used, albeit it is not to be construed on the basis of what it is suspected the testator intended, other than as expressed in the terms of the Will: Fell v Fell (1922) 31 CLR 268 at 273; WA Trustee, Executor & Agency Co Ltd v Birkbeck (1921) 23 WALR 27 at 29, 31 - 32; Perrin v Morgan [1943] AC 399 at 406, 414 - 415, 416, 420; Borlaug v The University of Western Australia [2001] WASCA 425 at [15]. The overriding consideration is the language used by the testator and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed: In re Crocombe (decd) [1949] SASR 302 at 315.
…
There is a presumption against intestacy, namely that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy: Fell v Fell (supra) at 275 - 276, 284; Hamersley v Newton (2005) 30 WAR 568 at 583. But the presumption against intestacy 'is not a strong presumption': Marks v Pope [2001] NSWSC 105 at [17]. A court should not lean too heavily against a construction that produces an intestacy and, cannot, in order to avoid an intestacy, misconstrue the language of the will: In re Edwards; Jones v Jones [1906] 1 Ch 570 at 574; Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922 at 929.
3.The testamentary instrument must obviously be read as a whole. Surrounding clauses may be helpful in explaining, amplifying or modifying the scope of a provision: see Ritchie v Magree [1964] HCA 10; (1964) 114 CLR 173, 181 (Kitto J), Dalton v Dalton [2008] WASC 56 [76] - [77] (Beech J) referring to Brennan v Permanent Trustee Company of New South Wales [1945] HCA 17; (1945) 73 CLR 404. In Brennan, Dixon J said (significantly, I think, in the circumstances of the present application):
When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared (414).
4.In Dalton, Beech J observed by reference to the above passage in Dixon J's reasons in Brennan, that the approach is to be applied only when a court is able to identify from the will as a whole, 'the main purpose and intention of the testator' [77].
5.As to use of surrounding circumstances in the exercise of interpretation, in Bakranich v Robertson [2005] WASC 12, Master Newnes approved a passage at [13] from Williams on Wills, 8th ed, Butterworths (2002) Vol 1 at 586 as follows:
The meaning of the will is dependent upon the intention of the testator and in the court of construction the primary evidence of the testator's intention is the will itself but extrinsic evidence of circumstances may be given the nature and effect of which is to explain what the testator has written, but not what he intended to write. Thus, extrinsic evidence is admissible to make intelligible something in the will which without that evidence would not be intelligible. (Footnotes omitted)
6.Section 28A of the Wills Act 1970 (WA) now, of course, expressly permits the use of extrinsic evidence, including evidence of a testator's intention, to clarify a will. However, s 28A is not applicable in present circumstances, since Mrs Pringle died before s 22 of the Wills Amendment Act 2007 (WA) brought s 28A into operation.
7.The so-called 'armchair principle', by reference to the observations made in Boyes v Cook (1880) 14 Ch D 53 at 56, allows a court to consider the circumstances which surrounded a testator or testatrix, at the time he or she made their will. In Mustard v Oikonomov (Unreported, WASC, Library No 980468, 19 August 1998), Owen J (as he then was) said of the armchair principle:
This principle allows the court to admit extrinsic evidence about the testator's property, family, acquaintances and friends for the purpose of putting the court in a position to read the will as the testator would have read it. That is, the court will allow evidence to be admitted of factual circumstances surrounding the testator when the will was made: Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65. Under this approach, evidence as to the testator's intentions is not admissible. If after the admission of this factual evidence the words still remain ambiguous, then (except in the case of equivocation) no further evidence will be admitted and the disposition will be void for uncertainty (7).
8.But the armchair principle is not to be stretched to a point of giving words or phrases a meaning which they are incapable of bearing or reaching the point of the court, in effect, making a fresh will for the testator or testatrix: see Higgins v Dawson [1902] AC 1, 4 - 6 (Earl of Halsbury LC); Perrin.
9.Broadly, the same principles are applicable to the construction of codicils. If possible, a court will attempt to construe a codicil that does not contain a revocation clause, as standing together with the will as one instrument, representing, when read together, the last will and testament of the testator or testatrix.
10.Under the above approach, the later testamentary instrument would usually prevail over the earlier, to the extent of an express inconsistency.
11.In general, however, an earlier testamentary instrument would be disturbed only to the extent necessary, by reference to an inconsistency identified: see Re the Estate of Collins (No 2) [2000] NSWSC 407 [6] - [8] (Young J).
12.If after applying the principles of construction, a court is still unable to ascertain the testator's intention, the provision must be assessed to be void for uncertainty, see Bakranich [14].
What 'property' did the deceased intend to leave to Vincent and Joseph?
To answer this question it is necessary to have regard to extrinsic evidence in relation to the factual circumstances surrounding the deceased when she made the will in accordance with the 'armchair principle'. When that is done, it is clear that the word 'property' where it appears in the second line of the Palčić translation is a reference to the Orange Grove Property. I find this to be so for the following reasons.
1.The Orange Grove Property was the deceased's most valuable asset. It was the focal point of her life.
2.At the time the deceased made the will, her assets within Western Australia comprised the Orange Grove Property, furniture and personal effects, and a modest amount of cash and a small credit balance in a bank account.
3.It is extremely unlikely that in expressing her testamentary intentions the deceased would have overlooked the disposition of her major asset in Australia, the Orange Grove Property.
4.Assessed objectively it is equally unlikely that the deceased intended the word 'property' to refer to personal property. The correctness of this objective assessment is reinforced by the evidence from both Joseph and Vincent that the deceased used the English word 'property' when referring to land.
5.The conclusion that the deceased was referring to the Orange Grove Property when she used the word 'property' in the will is reinforced by the fact she deals separately with her real estate in Croatia and that she prefaces her dispositions of the Croatian real estate with the words 'property in Yugoslavia'. All of the dispositions which follow those words are of real estate. Thus when she referred to 'property' in the context of the first gift to Vincent and Joseph it is likely that she is referring to real estate other her Croatian real estate. The only other real estate owned by the deceased was the Orange Grove Property.
Was the gift of the Orange Grove Property to Joseph and Vincent an absolute gift?
Ms Elliott, counsel for Joseph in his capacity as executor, accepted in her written submissions that it was arguable that the relevant disposition conferred on Joseph and Vincent a life interest in the Orange Grove Property. Quite properly, Ms Elliott drew my attention to the arguments that supported the conclusion that the gift was an absolute gift. Omitting references to the authorities, the primary arguments identified as supporting the interpretation that the gifts were absolute gifts were as follows:
1.The words 'after their death it goes to Vince's son Paul and to his male children' could be construed as an impermissible attempt by the deceased to control the Orange Grove Property from beyond the grave.
2.The prefatory words 'I give devise and bequeath' were words which suggest an absolute gift.
3.The disposition may be interpreted as lacking the certainty required to create a trust.
4.The court should exercise caution before reaching the conclusion that the deceased intended to create a life interest as the deceased was an unsophisticated testatrix who was unlikely to be familiar with the concept of life interest.
I do not think it is necessary to have regard to any extrinsic evidence in order to answer the question of whether the gift of the Orange Grove Property was absolute or whether it conferred a life interest.
In my view, it is plain from reading the gift in the context of the will as a whole that the deceased intended that Joseph and Vincent should have a life interest only in the Orange Grove Property for the following reasons.
First, the words 'I leave to them [the Orange Grove Property] - after my death - while they are alive - and after their death it goes to Vince's son Paul and to his male children' (emphasis supplied) convey an intention that Joseph and Vincent are to have the benefit of the Orange Grove Property 'while they are alive'. The language is plain and unambiguous. The words are words of limitation which do not permit the conclusion that the gift was absolute.
Secondly, whilst the deceased lived a simple life and may have been unsophisticated in her approach to her affairs, the will is expressed in terms which are detailed and reflect deliberation on her part. Even though the deceased may not have been familiar with the phrase 'life interest' and what it connotes to lawyers, it would be wrong to conclude that the creation of a life interest was an unintended consequence of loose language on the part of the deceased. The critical phrases 'while they are alive' and 'after their death' or 'on their death' are repeated in the context of the disposition of the deceased's real estate at Uzaravac and Humic in Croatia to Peter and the disposition of other real property in Croatia to Joseph and Vincent. In the latter instance, the conclusion of a life interest is reinforced by the words 'and after that to Paul as it is already written above;' and 'on their death as it is already written above'.
In my view, the effect of the gift was to grant Joseph and Vincent a life interest in the Orange Grove Property as joint tenants.
As the Orange Grove Property has now been sold, Joseph and Vincent are entitled to share in the income derived from the proceeds of sale equally during their joint lives and the survivor is entitled to all income during the remainder of his life.
Who is entitled to the remainder interest?
The answer lies in the will. 'Paul and his male children' are entitled to the remainder interest.
The question of the date at which the class of persons constituting 'Paul and his male children' is to be ascertained is to be determined by construing the will in accordance with the principles applicable to determining classes of beneficiaries.
In my view, the fact that the words 'Paul and his male children' follow the words 'after their death it goes to Vince's son' support the conclusion that the class is to be determined on the death of the survivor of Joseph and Vincent, cf In the Matter of the Will of Lysaght (decd) (1987) 48 SASR 457, 465.
The class includes male children 'en ventre sa mere': Elliot v Lord Joicey [1935] AC 209, 218 (Lord Russell of Killowen); In re Bruce; Tasmanian Permanent Executors & Trustees Association v Macfarlane [1979] Tas R 110, 123 (Cosgrove J).
The class will also include adopted male children: Adoption Act 1994 (WA), s 75.
Questions in relation to the gift to Mary
As noted, Joseph and Vincent have reached agreement in relation to the gift to Mary. Thus, it is not necessary for me to answer any questions regarding the gift to Mary.
Should Joseph as executor be permitted to pay the liability of the estate incurred with respect to the administration of the estate pursuant to the grant of probate by the court from the proceeds of sale of the Orange Grove Property?
The Orange Grove Property and the proceeds of sale are the only assets of significance in this State. It is the asset which has been the focal point of the questions posed in the further amended originating summons. I am satisfied that the costs of administering the estate in Western Australia should be paid out of the proceeds of sale of the Orange Grove Property.
Questions raised by the further amended originating summons
I will now set out the questions raised by the further amended originating summons and my answers to those questions.
1.Construction of the word 'property' that appears on line 2 after the words 'I Give Devise and Bequeath' of the Will ('the Property Gift'). For example, does it mean:
i.The real property owned by the Deceased when she died commonly known as 62 Maddington Road Orange Grove, Western Australia ('the Orange Grove Property');
ii.All real property owned by the Deceased when she died not otherwise referred to in the Will;
iii.All property owned by the Deceased when she died not otherwise referred to in the Will (i.e. the residue of the Estate);
iv.Something that the court is unable to determine to the requisite degree and therefore, that gift fails resulting in a partial intestacy?
Answer: The Orange Grove Property.
2.Construction of the Property Gift. For example, does it mean:
i.The gift of life interests in the 'property' to Vincent Zuvela and Joseph Zuvela ('the Life Tenants') and on their deaths gifts over to the remaindermen being Paul Zuvela and Paul Zuvela's sons ('the Remaindermen');
ii.An absolute gift to Vincent Zuvela and Paul Zuvela and if so, is that gift to them as tenants in common or joint tenants; or
iii.Some other gift?
Answer: A life interest in the Orange Grove Property to Joseph and Vincent as joint tenants.
iv.If the Property Gift creates life interests with gifts over to the Remaindermen:
1.Given that it is the Executor's intention to sell the Orange Grove Property, are the Life Tenants entitled to receive income earned on the 'property' absolutely for life:
a.equally while they are both alive; and
b.solely when one of them dies until the surviving Life Tenant also dies?
Answer: Equally while Joseph and Vincent are both alive and solely when one of them dies until the survivor also dies.
2.Whom are the Remaindermen, for example, are they:
a.Paul Zuvela;
b.Paul Zuvela and his biological male children whom were born and are en vetre se mere (in the womb) and born alive as at the date of the death of the surviving Life Tenant;
c.Paul Zuvela and his biological male children whenever they are born alive;
d.Some other class of beneficiaries?
Answer: Paul and his male children alive at the date of the death of the surviving life tenant, including male children en ventre sa mere and adopted male children.
3.If the Remaindermen include beneficiaries not determined on the death of the last surviving Life Tenant:
a.In what way and when is that class to be determined; and
b.Can the Remaindermen whom are born alive and/or their estate receive income on the 'property' before that class has been determined;
c.On that class being determined, may the Executor/Trustee divide the remainder of the Property Gift into parts representing each Remaindermen's share of the Property Gift and distribute each of those shares plus income earned on each of those shares from the date that the class determined to each Remainderman once each of them have attained the age of 18 years or in the event that any of them dies before reaching the age of 18 years to that/those predeceasing beneficiaries estate/s.
Answer: No answer required in the light of the answers given above.
3.Construction of the words 'to daughter Mary Neskovic of 455 Main Street Balcatta they have to give $2000; ('Mary Neskovic's Gift') in the Will. For example, do they mean:
i.A charge;
ii.A condition precedent;
iii.Some other result;
iv.In any event are each of the Life Tenants required to:
1.Pay $1000 to the estate of Mary Neskovic;
2.pay $1000 plus 5% interest from 2 October 1993 (one year after the Deceased's death) to date of payment to the estate of Mary Neskovic.
Answer: No answer required.
I will hear the parties in relation to the orders to be made and costs.
0
14
5