Judith Betty Green and Mary Lynette Carter in Their Capacities as Joint Executors of the Estate of the late Mary Ellen Nancarrow v Nancarrow
[2015] WASC 18
•21 JANUARY 2015
JUDITH BETTY GREEN AND MARY LYNETTE CARTER In Their Capacities as Joint Executors of the Estate of the late MARY ELLEN NANCARROW -v- NANCARROW [2015] WASC 18
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 18 | |
| Case No: | CIV:1395/2014 | 1 & 2 SEPTEMBER 2014 | |
| Coram: | LE MIERE J | 21/01/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Answers provided on s 45 Administration Act 1903 (WA) application | ||
| B | |||
| PDF Version |
| Parties: | JUDITH BETTY GREEN AND MARY LYNETTE CARTER In Their Capacities as Joint Executors of the Estate of the late MARY ELLEN NANCARROW ROBERT JAMES NANCARROW JUDITH BETTY GREEN SUSAN ELIZABETH CRONIN MARY LYNETTE CARTER BRIAN HERBERT NANCARROW SHARON VALLELONGA HELEN MARGARET ROZEMA |
Catchwords: | Testamentary instruments Construction Misdescription of property Objective ascertainment of testamentary intention from instruments and surrounding circumstances |
Legislation: | Administration Act 1903 (WA), s 45 |
Case References: | Bakranich v Robertson [2005] WASC 12 Homburg Houtinport BV v Agrosin Private Ltd (the Starsin) [2004] 1 AC 715 In Re Hillier, deceased [1971] 1 SASR 140 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 Pringle v Pringle [2010] WASC 206 Re Gifford, Gifford v Seaman [1944] Ch 186 Re Lewis's Will Trusts; Lewis v Williams [1985] 1 WLR 102 Re Mulder, Westminster Bank Ltd v Mulder [1943] 2 All ER 150 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
The will of MARY ELLEN NANCARROW late of Bedingfield Lodge, 4 Bedingfield Road, Pinjarra in the State of Western Australia, Deceased
- Plaintiffs
AND
ROBERT JAMES NANCARROW
First Defendant
JUDITH BETTY GREEN
Second Defendant
SUSAN ELIZABETH CRONIN
Third Defendant
MARY LYNETTE CARTER
Fourth Defendant
BRIAN HERBERT NANCARROW
Fifth Defendant
SHARON VALLELONGA
Sixth Defendant
HELEN MARGARET ROZEMA
Seventh Defendant
Catchwords:
Testamentary instruments - Construction - Misdescription of property - Objective ascertainment of testamentary intention from instruments and surrounding circumstances
Legislation:
Administration Act 1903 (WA), s 45
Result:
Answers provided on s 45 Administration Act 1903 (WA) application
Category: B
Representation:
Counsel:
Plaintiffs : Mr M Curwood
First Defendant : Ms P E Cahill SC
Second Defendant : Mr T Lampropoulos SC
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Solicitors:
Plaintiffs : De Vita Legal
First Defendant : Frichot & Frichot
Second Defendant : Arns & Associates
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Case(s) referred to in judgment(s):
Bakranich v Robertson [2005] WASC 12
Homburg Houtinport BV v Agrosin Private Ltd (the Starsin) [2004] 1 AC 715
In Re Hillier, deceased [1971] 1 SASR 140
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
Pringle v Pringle [2010] WASC 206
Re Gifford, Gifford v Seaman [1944] Ch 186
Re Lewis's Will Trusts; Lewis v Williams [1985] 1 WLR 102
Re Mulder, Westminster Bank Ltd v Mulder [1943] 2 All ER 150
1 LE MIERE J: The plaintiffs who are the executors of the estate of the late Mary Nancarrow (the testatrix) who died on 2 June 2012, apply for directions in respect of the interpretation of the testatrix's will. The first defendant (Robert) and the second defendant (Judith) are two of the six children of the testatrix. They were each represented at the hearing of this application and made submissions concerning the construction of the will. The remaining defendants are the other four children and a granddaughter of the testatrix. They played no part in this proceeding.
2 The clause of the will which gives rise to the construction question is cl 6. Clause 6 consists of mutually exclusive bequests of the testatrix's interest in Lot 17 which depend upon contingencies in different combinations. The contingencies relate to whether, at the date of the testatrix's death, the settlement under a sale contract had been completed and whether the option under an option deed had been exercised. At the date of the testatrix's death the settlement under the sale contract had been completed but the option had not been exercised. Clause 6 provides that in those circumstances the testatrix gives her interest in Lot 17 to Judith.
3 By cl 7 of her will the testatrix gave a one-sixth share of her residuary estate to each of her children Brian, Mary, Helen, Robert and Judith. The testatrix left the other one-sixth share to her daughter, Susan and granddaughter Sharon in equal shares.
4 The issue for determination is whether cl 6 of the will should be read as gifting Lot 172, which was the land which was formerly part of Lot 17 and which the testatrix owned at the date of her death, to Judith or whether the gift fails because Lot 17 was subdivided into Lot 172 and other lots and therefore Lot 172 falls into the residue of the estate. Before addressing the construction issue it is necessary to outline the relevant history of Lot 17.
Lot 17
5 The testatrix and her late husband owned a cattle farm in Pinjarra, which was comprised in three titles: Lot 17, Part Lot 1 and Lot 1440. The testatrix sold Lot 1440 and Lot 1 to a land developer, Crestview Asset Pty Ltd (Crestview). The testatrix also entered into two contracts with Crestview concerning lot 17 - a sale contract and a put and call option deed.
6 At the date of the contracts Lot 17 was the land in Certificate of Title Volume 1132 Folio 291. The testatrix acknowledged in the contract of sale that Main Roads WA had given notification to her of its intention to resume part of lot 17 for the construction of a road. Subsequently, under a compulsory acquisition taking order, an area adjacent to the eastern boundary of Lot 17 (the Road Reserve) was taken for the purpose of the construction of Forest Highway. Following the taking order, Certificate of Title Volume 1132 Folio 291 was cancelled. Two new certificates of title were created. The Road Reserve, Lot 309, was comprised in Certificate of Title Volume 2229 Folio 755. The remaining land from Lot 17 was described as Lot 550 and comprised in Certificate of Title Volume 2229 Folio 756.
7 The sale contract and the put and call option deed are complex documents but it is not necessary to consider them in detail because it is common ground that the effect of those instruments is as follows. The testatrix was to apply to the Western Australian Planning Commission (WAPC) for approval of the subdivision of Lot 17 into two new lots - the Buyer's Lot and the Seller's Lot. The Buyer's Lot comprised approximately 57 ha of the eastern portion of the lot. The Seller's Lot comprised 40 ha of the western portion of the lot. The testatrix was to transfer the Buyer's Lot to Crestview at settlement. The testatrix was to retain the Seller's Lot. The Seller's Lot was the subject of the put and call option deed. The effect of that deed is that Crestview had an option to buy the Option Property and the testatrix had an option to require Crestview to buy the Option Property. The Option Property consisted of an area of approximately 37 ha which comprised the Seller's Lot excluding an area of approximately 2.7 ha described as the House Lot on which the testatrix's house was located. The Option Deed was conditional on the WAPC approving the subdivision of the Seller's Lot into the Option Property and the House Lot.
8 The subdivision of Lot 17 into the Buyer's Lot and the Seller's Lot was approved and settlement of the sale contract was completed in August 2007. Certificate of Title Volume 2229 Folio 756 which comprised Lot 17 less the area taken under the compulsory taking order (the Road Reserve) was cancelled. Two new titles were issued. The Buyer's Lot became Lot 171 and was comprised in Certificate of Title Volume 2662 Folio 598. The Seller's Lot became Lot 172 and was comprised in Certificate of Title Volume 2662 Folio 599. However, subdivision of the Seller's Lot was not approved. Consequentially, the put and call options were not exercised and the testatrix remained the registered proprietor of Lot 172 (the Seller's Lot).
9 The testatrix executed her final will on 22 April 2009. At that time Lot 17 no longer existed. It had been subdivided into Lot 309 (the Road Reserve) and Lot 550 and Lot 550 had subsequently been subdivided into Lot 171 (Buyer's Lot) and Lot 172 (Seller's Lot).
The will
10 The relevant parts of cl 6 of the will are:
6. …, I give my interest in Lot 17 which is subject to the Sale Contract and Option Deed as follows:
(a) if, at the date of my death, the settlement under the Sale Contract has been completed but the Option has not been exercised, then:
(i) I give my interest in the Seller's Lot, subject to the Option Deed, to my daughter, Judith Betty Green …; and
(ii) the sale proceeds from the Sale Contract or balance thereof will form part of my Residuary Estate and distributed in accordance with clause 7 below;
(b) if, at the date of my death, the Sale Contract has become unconditional but the settlement under the Sale Contract has not been completed, my Trustee shall hold my interest in the Sale Contract ON TRUST and upon settlement being completed, to distribute my interest under the Sale Contract as follows:
(i) my interest in the Seller's Lot to my daughter, Judith Betty Green, subject to the Option Deed. …; and
(ii) the sale proceeds will form part of my Residuary Estate and distributed in accordance with clause 7;
(c) if, for whatever reason, Sale Contract does not become unconditional and settlement is not completed pursuant to the Sale Contract, then I give my interest in Lot 17 to my daughter, Judith Betty Green. …
(d) if, at the date of my death, the settlement under the Sale Contract has been completed, and the settlement under the Option Deed has been completed, then:
(i) I give my interest in the House Lot to my daughter, Judith Betty Green if she survives me for twenty-eight (28) days. …; and
(ii) the sale proceeds or balance thereof under the Option Deed will form part of my Residuary Estate and distributed in accordance with clause 7.
'Lot 17' means Portion of Murray Location 17 formerly comprising the whole of the land in Certificate of Title Volume 1132 Folio 291 and now known, after a taking order, as Lot 550 on Deposited 50770 comprising the whole of the land in Certificate of Title Volume 2229 Folio 362.
12 Sale Contract is defined to mean the sale contract to which I have referred. Option means the option to purchase the Option Property granted to Crestview under the Option Deed, which is the put and call option deed to which I have referred. Option Property and House Lot have the meaning given to them under the Option Deed. Seller's Lot has the meaning given to it in the sale contract. By cl 5 of the will the testatrix acknowledged that:
(a) by the Sale Contract, I sold part of Lot 17 to Crestview subject to Lot 17 being subdivided into 2 separate lots by which I would retain the Seller's Lot comprising 40 hectares of Lot 17; and
(b) by the Option Deed, I granted Crestview an option to purchase the Option Property (being a further part of Lot 17) subject to the Seller's Lot being subdivided into the Option Property and the House Lot.
The issues
13 Robert submits that on a proper construction of the will, cl 6 does not effect a valid gift of any property to Judith and all of the gifts the subject of cl 6 fail because the property described in that clause cannot fairly be construed as applying to the property the testatrix in fact possessed.
14 Judith submits that cl 6 of the will effects a valid gift to her of the Seller's Lot, that is the testatrix's interest in lot 172 comprised in certificate of title volume 2662 folio 599.
15 The executors did not make any submissions as to what is the proper construction of cl 6 of the will and whether or not cl 6 effected a valid gift of any property to Judith.
16 Two matters may immediately be put to one side. The first concerns a mis-description of the certificate of title relating to Lot 17. As I have set out earlier in these reasons the will defines Lot 17 to mean Lot 550 comprising the whole of the land in Certificate of Title Volume 2229 Folio 362. That definition contains an obvious error and the parties agree that by mistake it refers to Certificate of Title Volume 2229 Folio 362 rather than Certificate of Title Volume 2229 Folio 756. In their amended originating summons the plaintiffs seek a direction whether the definition of Lot 17 in the will should be rectified to substitute Folio 756 in place of Folio 362. As part of the process of construction, as distinct from the remedy of rectification, the court has power to correct obvious mistakes in the written expression of the intention of the parties: see the cases referred to in Lewison and Hughes The Interpretation of Contracts in Australia (2012) Thompson Reuters [9.01]. The ability of a court in appropriate circumstances to correct an error as a matter of construction rather than by the equitable remedy of rectification was referred to by Lord Millet in Homburg Houtinport BV v Agrosin Private Ltd (the Starsin) [2004] 1 AC 715 [192] where his Lordship referred to the ability of courts in equity to correct errors in wills at a time when there was no power to rectify a will. The error in defining Lot 17 in the will, will be corrected by substituting Folio 756 in place of Folio 362 in the definition. Once corrected, the will is interpreted in its correct form: Lewison and Hughes [9.01].
17 In the amended originating summons the plaintiffs asked whether the will should be further rectified by deleting the word 'now' from the definition of Lot 17. At the hearing no party submitted that the will should be rectified in that or any other way. It is not necessary to further consider the question of rectification.
Principles of construction
18 Relevant principles of construction were summarised by Kenneth Martin J in Pringle v Pringle [2010] WASC 206:
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.'
…
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 …:
'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. …
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 [25].
19 If, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in her will does not prevent the will taking effect in regard to the subject matter intended by the testatrix. This is referred to as the principle of falsa demonstratio non nocet (in full, falsa demonstratio non cum de corpore constat, a false description does not vitiate where there is certainty as to the subject matter: Theobald on Wills (17th ed) [23-012]).
20 In Re Gifford, Gifford v Seaman [1944] Ch 186 a testatrix, by her will, made in 1938, gave her estate to trustees upon trust, amongst other things, to pay the income derived from 'my war bonds' to her grandchild, Mabel, during her life. The testatrix had no war bonds at the date of her will, but in 1920 she had purchased £600 war bonds which in 1928 were converted into consolidated inscribed stock. After she made her will she purchased 500 national saving certificates and £200 defence bonds. Simonds J held, applying the rule of falsa demonstratio non nocet, that the consolidated stock passed under the bequest but that the national saving certificates and defence bonds did not so pass. Simonds J held that the testatrix, by her reference to 'my war bonds' intended to pass the inscribed stock which represented the national war bonds which he had held before that. Simonds J said that the rule of falsa demonstratio non nocet did not apply to the national savings certificates and the defence bonds because:
I see no ground for assuming that [the testatrix] was falsely describing property which she did not then possess and, so far as I know, did not contemplate possessing (189).
21 In Re Mulder, Westminster Bank Ltd v Mulder [1943] 2 All ER 150 the testator and his stepson had equal shares in a business. The testator framed his will on the erroneous assumption that the whole of the business was his. The will conferred an option to purchase the business on the stepson at a sum representing half of the aggregate value of the whole business. If the option to purchase was exercised, the purchase money was to be divided between the residue and the testator's son. If the option was not exercised, the business was to be sold and the proceeds divided in the same manner. The stepson declined to exercise the option. The Court of Appeal of England and Wales held that the expression 'the business' could not be interpreted as meaning the testator's share in the business because that would destroy the clear intention of the testator to confer a benefit on his stepson. Lord Greene MR said, after analysing the provisions of the will relating to the option to purchase 'the business' said:
These considerations, in my opinion, make it quite impossible to treat the language used by the testator as applicable to the subject-matter which he in fact possessed. When his dispositions are analysed it is apparent that the difference between what he described and what he possessed cannot be regarded as a mere difference in quantum. It is a qualitative difference which makes the testator's expressed wishes and directions quite incapable of fulfilment if it is attempted to apply them to a half share only in the business. The result is that, in my opinion, the expression 'the business' must throughout be interpreted as meaning the whole business and nothing else, and both the original bequest of the business to the trustees and the beneficial dispositions are inoperative (153).
- Lord Greene said that if the will had made a bequest of the business to be sold and divided between beneficiaries, it should be construed as applying to the half share which the testator possessed but in view of the provisions relating to the option it could not be so construed.
22 The principle was applied by Walters J in InRe Hillier, deceased [1971] 1 SASR 140. By his will made in 1873 a testator devised sections of land numbered 534 and 546 to his daughter. A land grant for the section of land numbered 534 had been issued to the testator in 1847 and the plan of the section showed that excluded from the section was a road which passed through the section. In 1870, by agreement, the road through the section was closed, and in return for the land in the closed road the testator surrendered other land in the section to enable two new roads to be made. A new certificate of title for the land in the closed road was issued to the testator. The land in the closed road had never been physically separated or cut off from the other land in the section and had been farmed in conjunction with the other land. Walters J held that the devise of section 534 was to be construed as including the land of the closed road comprised in the new certificate of title. Walters J said:
To my mind, it does not involve carrying the principle of falsa demonstratio beyond its proper limits to say that the testator intended that the closed road should pass under the devise of section 534. The choice lies between interpreting the devise in such a way as to make it a gift of the residue of the land in section 534 and the closed road, and interpreting it as a gift of what remains of the land in the original grant of section 534, leaving it to the residuary beneficiaries to take the closed road which intersects it. For my part, I cannot think that the testator contemplated that the closed road would follow a destination different from that intended for the residue of the land held under the original Land Grant. It seems to me to be perfectly consistent with common sense and reason that the entirety which has been given should not be prejudiced by an imperfect and inaccurate description of subject of the devise (146).
23 The first defendant relies upon Re Lewis's Will Trusts; Lewis v Williams [1985] 1 WLR 102. In that case the testator bought a farm. Subsequently a company was formed and the farm was conveyed to it. Of 1,000 shares in the company the testator held 750 shares, his son, the plaintiff, held 200 and the plaintiff's wife held 50. By his will the testator devised 'my freehold farm and premises … together will all stock, fixtures, fittings and implements and machinery, and together with the contents of the farmhouse' to the plaintiff. Scott J held that the words used described the farm and the stock, fixtures, fittings and implements and machinery used in connection with it and could not be construed as referring to the 750 shares out of 1,000 shares in the company which owned the farm. Scott J distinguished the authorities which apply the falsa demonstratio non nocet principle and in particular Re Mulder. Scott J said that where there is a purported gift of the whole and the testator simply owns a part of the whole, as in Re Mulder, it is not difficult to give effect to the intention by simply limiting the operation of the gift to what the testator in facts own. However:
But where the actual asset owned is not simply a part of the whole of which the testator is purporting to dispose but is of quite a different nature, it does not seem to me that the principle which enables the court, in a case where part only of an asset is available to be disposed of and the whole has been purported to be disposed of, to give effect pro tanto to the gift, is applicable (108).
- Scott J held that the testator intended his son to have the farm. The company owned some assets which were separate from the farm. That led Scott J to say that he did not know what gift the testator would have made had he had in mind the true nature of the assets. Scott J added:
Even if I had been satisfied that if [the testator] had directed his mind to the matter he would have disposed of his 750 shares to the plaintiff, in my judgment, as a matter of principle, I cannot so construe clause 5 of the will (109).
24 The testatrix made an earlier will which she executed on 24 April 2007. That will contained the same definition of Lot 17 as in her final will, including the erroneous reference to Certificate of Title Volume 229 Folio 362. Clause 5 is in the same terms as cl 5 of her final will. By those clauses the testatrix acknowledged that she had sold part of Lot 17 to Crestview under the sale contract and by the option deed she had granted Crestview an option to purchase the Option Property.
25 Clause 6 is in the same terms as cl 6 of her final will. Clause 7, the residuary clause, is in the same terms as the residuary clause in her final will except that she gave five-sixths of her residuary estate to her children, and granddaughter Sharon, other than Judith. There was a partial intestacy in relation to the sixth share of the residuary estate.
26 The testatrix's final will, her 2007 will and an earlier will made on 25 January 2006 were all prepared by a solicitor, Ms Tantiprasut. On 22 April 2009 the testatrix attended on Ms Tantiprasut at her office. Ms Tantiprasut went through the testatrix's 2007 will with her and noted that cl 7 had provided that the residuary estate be divided into six equal shares but had only made provision for five-sixths to be distributed. Ms Tantiprasut recalls that the only change made to the will was to leave a one-sixth share of the residuary estate to Judith. At the time of drawing the final will Ms Tantiprasut did not recall that Lot 17 had been subdivided and did not make any change to the description of Lot 17 to that which was contained in the 2007 will. At the time of drawing the final will Ms Tantiprasut did not know that an application to subdivide Lot 172 into the Option Property and the House Lot had been refused.
27 The house in which the testatrix lived was located on that portion of Lot 17 which was described as the House Lot. Lot 17 was the street address for the house. In discussing matters with Ms Tantiprasut the testatrix used the description Lot 17 when she was referring to the lot on which the house was situated.
Clause 6
28 By cl 6 of her will the testatrix gave 'my interest in Lot 17 which is subject to the Sale Contract and Option Deed' to different persons in different shares depending on stated contingencies. The contingencies related to whether, at the date of the testatrix's death, the settlement under the Sale Contract had been completed and whether the option under the Option Deed had been exercised. At the date of the testatrix's death the settlement under the Sale Contract had been completed but the option had not been exercised and therefore subpar (a) applies. The settlement under the Sale Contract had been completed at the time the testatrix executed her will. In my opinion, par 6(a) applies because the contingency had been satisfied at the date of the testatrix's death and it does not matter that it had been satisfied at the date of execution of the will. The effect of cl 6(a) of the will is that the testatrix gave the Seller's Lot, subject to the Option Deed, to Judith.
29 The first defendant, Robert, submits that cl 6 does not effect a valid gift of any property to Judith because at the date of her death the deceased did not have any 'interest in Lot 17 which is subject to the Sale Contract and Option Deed'. Lot 17 is a defined term. It is defined, in effect, to mean Lot 550 which was the land originally known as Lot 17 minus the Road Reserve. By cl 6 of her will the testatrix did not gift Lot 17. She gifted 'my interest in Lot 17'. Applying the definition of Lot 17 in cl 2 of the will, the testatrix gifted her interest in Lot 550. At the date the testatrix executed her will Lot 550 no longer existed. It had been subdivided into Lots 171 and 172. The certificate of title for Lot 550, Volume 2229, Folio 756, had been cancelled.
30 The first defendant, Robert, submits that the issue for determination is whether having regard to the language of the will and the admissible extrinsic evidence, it can be concluded that the testatrix had in mind when she referred to her 'interest in Lot 17 which is subject to the Sale Contract and the Option Deed' her interest in Lot 172, which was not subject to the Sale Contract but which was subject to the Option Deed. The first defendant says that an analysis of the will and the admissible extrinsic evidence compels the conclusion that in making the bequests the subject of cl 6 the testatrix did not have in mind to bequeath her interest in Lot 172 for the following reasons. The words 'interest in Lot 17 which is subject to the Sale Contract and the Option Deed' cannot support a construction of a bequest of the testatrix's interest in Lot 172 which was not subject to the Sale Contract but was subject to the Option Deed. Further, cl 6 consists of multiple, mutually exclusive bequests which depend upon various contingencies in different combinations that may or may not have eventuated at the date of the testatrix's death. That language conveys the testatrix's intention to bequest her interest in Lot 17 subject to a conditional Sale Contract, subject to the Option Deed and prior to its subdivision. For the subject matter of cl 6 to be construed as if the testatrix intended to refer to her interest in Lot 172 would require the court to attribute to the testatrix an intention to include in her will a number of redundant provisions and invalid bequests incapable of fulfilment. That would amount to stretching and straining the language of cl 6 to make it fit a state of circumstances to which on no possible construction it can apply. The testatrix may not have been aware when executing the will that the Sale Contract had completed and the sale proceeds received and that Lot 17 no longer existed because it had been subdivided. The application that the testatrix made for new titles to be issued, that is Lots 171 and 172, was signed by Judith and the fourth defendant under a power of attorney and not by the testatrix herself.
31 The second defendant, Judith, submits that the reference in the will to 'my interest in Lot 17 which is subject to the Sale Contract and Option Deed' is an erroneous description of the property which the testatrix intended to gift and an erroneous description does not destroy or override the testator's intention. The second defendant refers to the statement by Master Newnes in Bakranich v Robertson [2005] WASC 12:
If upon consideration of the Will the Court comes to the conclusion that the testator intended to pass something, and by the language used and any admissible extrinsic evidence, can clearly determine what it is that the Will refers to, then the gift will be valid; the fact that the testator has given it an erroneous description will not render the gift invalid [15].
- The second defendant says that this is not a case like Re Lewis's Will Trusts where the testator was under an erroneous impression that the subject matter of the gift actually existed as described or that the testator could legally dispose of it.
32 The first defendant submits that this is not a case of the testatrix intending to give Judith Lot 172 and having misdescribed that property. The first defendant says that, like in Re Mulder, when the testatrix's dispositions are analysed, the difference between what she described and what she possessed cannot be regarded as a mere misdescription or a mere difference in quantum. It is a qualitative difference which makes the testatrix's expressed wishes and directions incapable of fulfilment if it is attempted to apply them to Lot 172. Counsel for the first defendant, Ms Cahill SC, says that the difference between the testatrix's interest in Lot 17, as defined in the will, and the property actually possessed by the testatrix is not just the difference between 40 ha and 89 ha. In her will the testatrix disposed of 'my interest in Lot 17 which is subject to the Sale Contract and Option Deed'. What the testatrix in fact possessed was Lot 172 subject to the Option Deed but not subject to the Sale Contract. Furthermore, Ms Cahill says that the difference between the testatrix's interest in Lot 17 and Lot 172 is not just a change in the numbering of lots. The title the testatrix held in Lot 172 from August 2007 was not derived from Lot 17. It was a new title and interest obtained by the fact of registration, as if the testatrix had been granted that title direct from the Crown: Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407, 418 - 419. Accordingly, Ms Cahill submitted, the testatrix did not at the date of execution of her will possess any interest in Lot 17. Further, the testatrix did not possess an interest in Lot 17 which was subject to the Sale Contract.
33 In my opinion, the bequest of 'my interest in lot 17 which is subject to the Sale Contract and Option Deed' is to be construed as a bequest of Lot 172. When the definition of 'Lot 17' is substituted for 'Lot 17' in cl 6, the bequest is of 'my interest in [Lot 550]'. At the time of executing her will the testatrix had no interest in Lot 550 because that lot had been subdivided into Lot 171 and Lot 172. The testatrix's interest in the land that had formerly been described as Lot 550 was her interest in Lot 172. The bequest does not fail because the testatrix bequests her interest in Lot 172 'subject to the Sale Contract and Option Deed. At the time of executing the will the testatrix's interest in Lot 172 was no longer subject to the Sale Contract. However, that part of the description of the property bequeathed does not go to a quality of the asset which the testatrix bequeathed; it is a contingency upon which the alternative bequests depended.
Conclusion
34 The questions in the originating summons should be answered as follows.
1(a) Does cl 6 of the Will of the Deceased reflect a valid gift of any property to Judith Betty Green?
Answer: Yes.
1(b) What property does the gift in cl 6 of the will to Judith Betty Green comprise?
Answer: The testatrix's interest in Lot 172 comprised in Certificate of Title Volume 2662 Folio 599.
2 If the answer to question 1(a) is 'No', should the definition of Lot 17 in cl 2 of the will be rectified?
Answer: It is unnecessary to consider this question because the answer to question 1(a) was not 'No'.
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