Perpetual Trustees WA Ltd (As Executor of the Estate of Eleanor Anne Seward (Dec)) v Riverwest Pty Ltd - [2004] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PERPETUAL TRUSTEES WA LTD (As Executor of the Estate of ELEANOR ANNE SEWARD (Dec)) -v- RIVERWEST PTY LTD & ORS [2004] WASC 81

CORAM: BARKER J

HEARD: 18 SEPTEMBER, 17 OCTOBER 2003

DELIVERED : 7 MAY 2004

FILE NO/S: CIV 2332 of 2002

BETWEEN: PERPETUAL TRUSTEES WA LTD (As Executor of the Estate of ELEANOR ANNE SEWARD (Dec))
Plaintiff
AND
RIVERWEST PTY LTD
First Defendant
MICHAEL GILES SEWARD
Second Defendant
KATHRYN MARY SEWARD
Third Defendant
ANGELA MARGARET SEWARD
Fourth Defendant
PETER MAURICE SEWARD
Fifth Defendant
JAMES PATRICK McCARTHY SEWARD
Sixth Defendant
SCOTT LACHLAN SEWARD
Seventh Defendant
CHRISTINA FRANCIS LYALL
Eighth Defendant

Catchwords:

Succession - Will - Construction - Devises of portions of single lot - Whether devises void for uncertainty - Portions of land not "lots" as defined in Town Planning & Development Act 1928 (WA) - Proscription against unapproved subdivision - Whether plaintiff holds land in trust - Trustee's obligation to subdivide - Whether certain assets belong to estate

Legislation:

Limitation Act 1935 (WA)

Property Law Act 1969 (WA), s 34
Town Planning and Development Act 1928 (WA), s 2, s 20, s 21
Trustees Act 1962 (WA), s 30(1), s 92(1)

Wills Act 1970 (WA), s 26

Result:

Parts of Will fail for want of certainty

Category: A

Representation:

Counsel:

Plaintiff:     Ms M R Bloch
First Defendant             :     Mr M J McPhee
Second Defendant         :     Mr M J McPhee
Third Defendant           :     Ms H J Finch
Fourth Defendant          :     Mr M J McPhee
Fifth Defendant            :     No appearance
Sixth Defendant            :     Mr S G Scott & Mr T R Hill
Seventh Defendant        :     No appearance
Eighth Defendant          :     Mr M W Fatharly

Solicitors:

Plaintiff:     Merle Bloch
First Defendant             :     Michell Sillar McPhee
Second Defendant         :     Michell Sillar McPhee
Third Defendant           :     Public Trustee
Fourth Defendant          :     Michell Sillar McPhee
Fifth Defendant            :     No appearance
Sixth Defendant            :     Stables Scott
Seventh Defendant        :     No appearance
Eighth Defendant          :     Kott Gunning

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

Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41
Cobanov v Cobanov [2002] WASC 257
Donaldson v Leaf [1907] VLR 278
In re Barrance; Barrance v Ellis [1910] 2 Ch 419
In re Hodgson; Nowell v Flannery [1936] 1 Ch 203
In the Will of Rayner (1928) 23 Tas LR 41
Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
Napier v Public Trustee (WA) (1980) 32 ALR 153
Nevin v The Beneficiaries of the Bremer Bay Estate Trust [2002] WASC 24
Palamore Pty Ltd v Clode, unreported; SCt of WA; Library No 980599; 16 October 1998
Perpetual Trustee Co Ltd v Gilmore [1979] 2 NSWLR 716
Re J S Mitchell (1913) 30 WN (NSW) 137
Re Leaver [1997] 1 Qd R 55
Tatham v Huxtable (1950) 81 CLR 639

Case(s) also cited:

Asten v Asten [1894] 3 Ch 260
Boyes v Cook (1880) 14 Ch D 53
Dyer v Dyer (1788) 2 Cox Eq Cas 92
Hiscocks (Dec) v Hiscocks (1839) 5 M&W 363
Horton v Public Trustee [1977] 1 NSWLR 182
Lombe v Stoughton (1849) 17 Sim 84
National Society for Prevention of Cruelty to Children v Scottish National Society for Prevention of Cruelty to Children [1915] AC 207
O'Connor v O'Connor (1870) 4 IR Eq 483
Olsen v Olsen [1977] 1 NSWLR 189
Orr v Ford (1989) 167 CLR 316
Pearce v Pearce [1977] 1 NSWLR 170
Public Trustee as Administrator of the Estate of Houden (Dec) v Houden [1999] WASC 85
Re Lewis' Will Trusts; Lewis v Williams [1984] 3 All ER 930
Re Marchetti; Perpetual Executors Trustees & Agency Co Ltd (WA) v Marchetti (1950) 52 WALR 20
Re Mulder; Westminster Bank Ltd v Mulder [1943] 2 All ER 150
Rennes v Death [2003] NSWSC 708
Smith v Martin (1672) 2 Wms Saund 394
Timber Top Realty Pty Ltd v Mullens [1974] VR 312
Wood v Browne [1984] 2 Qd R 593

BARKER J:

Introduction

By originating summons dated 20 September 2002, the plaintiff, as executor and trustee of the Will and estate of Eleanor Anne Seward, deceased, seeks directions and consequential orders with regard to:
(1)the construction and interpretation of the devises and bequests made by the deceased by her Will dated 22 July 1997 as amended by codicil dated 9 September 1997;
(2)the administration, distribution and application of the deceased's real and personal estate; and
(3)the costs of and incidental to the application.
By application dated 25 August 2003, the first defendant (Riverwest Pty Ltd) also seeks orders on the hearing of the originating summons as follows:
(1)a determination from the Court that 4556 Coca Cola Amatil shares were held on trust by the deceased for the Eleanor Anne Seward Trust (the Trust); and
(2)if the Court is satisfied that the shares were held on trust by the deceased for the Trust, a declaration from the Court to that effect and consequential directions to transfer the shares from the plaintiff to the first defendant.
In the context of the plaintiff's originating summons, it appears to me that the issues raised by the first defendant arise as additional issues pertaining to the proper construction of the Will of the deceased or the administration of her estate and should also be resolved in the current proceedings.

The cl 3.1 devises in respect of portions of Lot 366 Horsley Road, Denmark

Probate of the Will and one codicil of the deceased, who died on 25 April 2001 was granted to the plaintiff on 7 August 2001. By her Will, the deceased made various bequests, legacies, and, in some cases, devises to family members, including her children and grandchildren, as well as to a number of other persons.
The manner in which the deceased went about making her Will discloses the perils of a person attempting to make their own Will without professional assistance where the estate to be affected by the Will constitutes many parts, the number of beneficiaries in mind are numerous and considerations of some legal complexity are involved. While the deceased took the precautionary step of instructing her solicitors to prepare her Will, no doubt because of these various matters, in the end she chose to make alterations to a draft Will prepared by her solicitors and to execute it without taking their further legal advice.
The alterations concerned purported devises of land which comprised portions of Lot 366, Horsley Road, Denmark, Western Australia. By her handwritten amendments to the typewritten draft of the Will, the deceased altered the draft by inserting a number of devises of a portion of Lot 366 and apparently making the devise an alternative to a pecuniary legacy, save in the case of one beneficiary. In its altered form, the Will was admitted to probate.
For example, cl 3.1(a)(i) of the draft provided the following pecuniary legacy to the deceased's son, Michael Giles Seward (the second defendant):
"(i)a sum of $60,000.00;"
However, when she executed her Will the deceased wrote adjacent to that legacy, the additional words:
"or 1‑1 acre (approx) block on Lot 366, Horsley Road DENMARK 6333;"
Handwritten alterations were also made to the draft by the deceased in respect of pecuniary legacies made in favour of: her daughter, Angela Margaret Seward (the fourth defendant) (cl 3.1(c)(iii)); her son, Peter Maurice Seward (the fifth defendant) (cl 3.1(d)(i)); her son, James Patrick McCarthy Seward (the sixth defendant) (cl 3.1(e)(i)); her cousin, Christina (Giles) Lyall (the eighth defendant) (cl 3.1(f)(ii)); her cousin, Kate Virginia (Giles) Sutherland (who is not a party to these proceedings) (cl 3.1(g)(i)); Bishop Peter Quinn for Saint Mary's Catholic Church, Denmark (who is not a party to these proceedings) (cl 3.1(h)(i)); Jacqueline Rita Priestley (nee Boyes) (who also is not a party to these proceedings) (cl 3.1(i)(i)); Scott Lachlan Seward (who also is not a party to these proceedings) (cl 3.1(k)(i); Timothy Michael Seward (who also is not a party to these proceedings) (cl 3.1(l)(i)); and Leo Jerome Seward (who also is not a party to these proceedings) (cl 3.1(m)(i)).
In the cases of Angela Margaret Seward and Scott Lachlan Seward respectively, a legacy of $120,000 was amended by providing the apparent alternative:
"or 2 Blocks - 1 acre each on Lot 366 Horsley Road DENMARK 6333."
In the case of Timothy Michael Seward and Leo Jerome Seward respectively, the deceased appeared to amend a pecuniary legacy of $30,000 to each by providing the alternative:
"1/2 share in 1 Block 1 acre (approx) on Lot 366 Horsley Road DENMARK 6333."
The word "or" was not inserted as in the other cases.
In all other cases, the deceased, as in the case of her son, Michael, amended a pecuniary legacy of $60,000 by providing the apparent alternative:
"or 1 - 1 acre (approx) block on Lot 366 Horsley Road DENMARK 6333."
As to the deceased's daughter, Kathryn Mary Seward (the third defendant), a materially different pecuniary legacy and bequest and devise was made in cl 3.1(b) of the Will. As this clause appeared in the draft, it relevantly provided:
"I GIVE AND BEQUEATH … to: -
(b)my daughter KATHRYN MARY SEWARD:
(i)a sum of $120,000.00;
(ii)1 Gilt Medal from Sir Norman Giles K.B. (grandfather) - 1969 plus pine log house and also 1 acre of land upon which it is located on the 17 acres of the land at Lot 366 Horsley Road, Denmark and its contents if I own the land at my death."
However, at the time she executed her Will, the deceased altered cl 3.1(b)(ii) in handwriting in the following manner:
(a)first she underlined the words "1 acre of land";
(b)then immediately above the words, "upon which it is", she wrote, "approx 1 Block".
Thus, in the case of Kathryn, the Will does not make the purported devise of a portion of Lot 366 an alternative to the pecuniary legacy referred to in cl 3.1(b)(i) or to any of the bequests (that is, the Gilt Medal and the contents of the house).
The parties accept that the handwritten notations on the Will of the deceased form part of the Will and codicil, probate having been granted to the Will: In re Barrance; Barrance v Ellis [1910] 2 Ch 419. The only questions that now arise concern the construction and validity of the clauses affected by the handwritten amendments to the typewritten draft of the Will.
So far as construction of the Will is concerned, it is well established that the Court is required to give the words used in the Will their ordinary meaning and if there remains some difficulty of construction, to have regard to any surrounding circumstances that may shed light on the proper meaning of the words. In In re Hodgson; Nowell v Flannery [1936] 1 Ch 203 at 206 Farwell J said of the Court's duty:
"I think that it comes to this: the duty of the Court in the first place is to read the will itself. The Court is bound in the first instance to read it, giving the words used their primary and proper meaning. The Court is then entitled to look at the surrounding circumstances. If the surrounding circumstances are such that the words of the will, if construed in accordance with their primary meaning, are not apt to apply to any of the circumstances, then the Court is entitled, having regard to the surrounding circumstances, to see whether the language used is capable of some meaning other than its ordinary meaning, not for the purpose of giving effect to what the Court may think was the intention of the testator, but for the purpose of giving effect to what the intention of the testator is shown to be from the language which used having regard to the surrounding circumstances. In other words, the Court is not entitled to disregard the language which the testator has used in order to give effect to what the Court may think to have been the intention, but the Court is entitled to say that the words which the testator has used were not intended to have their primary meaning if the surrounding circumstances are such as to lead inevitably to that conclusion."
"Williams on Wills", 8th ed, Butterworths (2002), vol 1 at 586 summarises the functions of the Court in this way:
"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 [footnote omitted], but extrinsic evidence of circumstances may be given the nature and effect of which is to explain what the testator has written [footnote omitted], but not what he intended to write [footnote omitted but includes reference to In re Hodgson (supra).] Thus, extrinsic evidence is admissible to make intelligible something in the will which without that evidence would not be intelligible [footnote omitted]."
The Wills Act 1970 (WA) also provides some rules governing the construction of Wills. Most relevantly to the present circumstances, s 26 of the Wills Act provides that:
"Unless the contrary intention appears by the will -
(a)the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;"
In this case, the first question of construction that arises is as to the meaning of the handwritten purported devises made in cl 3.1 of the Will, other than that to Kathryn in cl 3.1(b).
First, I should say I consider that in each of these cases the Will should be construed as providing a pecuniary legacy to the named beneficiary or, in the alternative, a devise of a portion of Lot 366 Horsley Road, Denmark. In those cases where the word "or" does not appear before the handwritten amendment, it is abundantly clear from a perusal of the whole of the Will that the purported devise is intended as an alternative to the pecuniary legacy adjacent to it.
Immediately before her death, the deceased was registered as the proprietor of an estate in fee simple in Denmark Lot 366, being the whole of the land comprised in certificate of title vol 1772 folio 883, on which stood a pine log house. The land is generally described by its street address of Lot 366 Horsley Road, Denmark. It is situate at the corner of Rockford Road and Horsley Road, Denmark.
At all material times, both when the Will was made by the deceased and immediately before her death, as well as when the Will was received into probate, Lot 366 comprised one single, unsubdivided "lot", as that term is defined by s 2 of the Town Planning and Development Act1928 (WA).
Immediately prior to the death of the deceased, Lot 366 was zoned rural under the relevant Shire of Denmark town planning scheme. However, it was also within both the area considered by the Denmark Residential Strategy Review dated December 1996 and the area identified as Planning Unit A by the Settlement Strategy for Denmark adopted by the Shire in 1998. In the Settlement Strategy, Lot 366 and four adjoining lots were identified as Planning Unit A, a favoured location for the extension of residential housing lots in Denmark.
In August 2001 (soon after the deceased's death), Mr R K Snowball, a licensed valuer, ascertained from an officer of the Shire of Denmark, that, from the Shire's point of view, the land within Planning Unit A was a favoured location for closer subdivision under Residential R20 density code, which would permit the eventual subdivision of that land into minimum 450 m²lots with an average size of 500 m². However, Mr Snowball also learned that, before the land within Planning Unit A could be rezoned and subdivided, the Shire would require the preparation of a Structure Plan which would need to be approved by the State Planning Commission, the Shire and all other relevant authorities.
Mr Snowball also learned that the subdivision of the land could not be considered certain as there were several obstacles to overcome, including the removal of a buffer zone surrounding a vineyard, which was a permitted use located on two of the other lots within Planning Unit A, being Lots 50 and 51.
Mr Snowball noted the view of the officer of the Shire that a subdivision of Lot 366 alone was not an option without an overall Structure Plan in place for all of the land within Planning Unit A. The particular reason for this view was the need to provide for drainage discharge from Lot 366 through adjoining Lot 365, the only likely drainage option.
In about August 2001, Mr Snowball also ascertained from a Mr Richard Pawluk of Melvista Park Pty Ltd, the registered proprietor of Lot 372, another lot within Planning Unit A, that the task of achieving rezoning and subdivision of the land within Planning Unit A was not free from difficulty, because the owners of the land within Planning Unit A would first need to reach some agreement concerning the costs of completing the Structure Plan and this, in turn, would require the resolution of differences between owners on lot sizes, open space allocation, drainage location, road realignment and the like.
In the light of this information Mr Snowball, an experienced valuer of land, expressed the view:
"After evaluating the status of the re‑zoning and possible subdivision it is most apparent that final subdivision approval is still a long way off even though the prospects appear good."
There is nothing in the express terms of the Will or codicil that suggest the deceased at the time of her death was aware of the particular subdivision potential of Lot 366 in the manner and detail suggested by Mr Snowball's evidence, although the fact that by her Will the deceased purported to gift 13 "blocks" on Lot 366 may suggest that she had some appreciation of the subdivision potential of Lot 366.
However, extrinsic evidence going to the circumstances in which the deceased made her Will suggests she was well aware of the Shire's views on subdivision and that, through the first defendant, she had indeed contemplated a particular plan of subdivision of Lot 366.
Extrinsic evidence received without objection from the parties to these proceedings, which includes materials that would otherwise constitute hearsay evidence, provides some, although by no means a complete, understanding of the circumstances in which the deceased eventually executed the Will which has been received into probate.
A document handwritten by the deceased, undated, but perhaps from about 1997, outlines at least some of the deceased's intentions, a number of which found expression or partial expression in the Will.
In this document, after some introductory notes, the deceased relevantly wrote:
"Lot 366 House at Denmark Eleanor Anne S Trust with nearly [the numeral is unclear: it appears originally to have been '2', but later written over] ACRES is the Asset of my 2nd begotten child … The Shire Council (?) and I do not agree at this time on any divisions of the rest of the 17 acres other than the Lot 366 House Block. They - I am told - would like 1/4 acre divisions - some of us are adamant on 1 Acre blocks or no division - Hobby Farms of 5 acres are popular so 1 acre for my mainly relatives as beneficiaries is our requirement …" (Emphasis as in original)
This document then goes on to state who should have how many "blocks", etcetera. The deceased even went to the trouble of suggesting that blocks with particular street frontages to Horsley Road and Rockford Road should go to particular beneficiaries.
The deceased further noted, by reference to a valuation made of the land, that "over‑all" the blocks were valued at $50,000 per acre.
A draft Will was initially prepared for the deceased by her solicitors during 1997. A copy of an early draft, with handwritten amendments placed on it by the deceased, included an annexure A, which showed a proposed plan of subdivision of land adjacent to Horsley Road and Rockford Road comprised of 15 lots, together with an area of "POS", or public open space, comprising some 7200 m². The inference may be drawn that each of these lots was approximately one acre in area. Some of the proposed lots were to be serviced by a small road called "Randalls Retreat", which was to run off Rockford Road.

This draft Will provided for various beneficiaries, but not including the deceased's grand‑daughter, Josefin, to receive one or other of the lots numbered 1‑15 on this plan. As to Josefin, this draft Will provided in cl 3.1(k)(i) that she should receive "the house situated at 24 Rockford Road, Denmark as set out in annexure 'A' … ". However, no such house appeared on annexure A. Annexure A only included the lots numbered 1‑15 and the area of public open space. All of the lots numbered 1‑15 were accounted for by gifts to other proposed beneficiaries.
In any event, it appears that the deceased gave due consideration to the terms of this draft Will and notionally reallocated the disposition of the lots shown on the proposed plan of subdivision from what was proposed in the draft Will. For example, by cl 3.1(h) of the draft, Lot 13 on the plan was to go to Bishop Peter Quinn for Saint Mary's Catholic Church, Denmark. However, the deceased then wrote over Lot 13 on annexure A the word "Angela". She did the same in respect of Lot 12 on the plan, which, in the draft by cl 3.1(d)(i), was to go to her son, Peter Maurice Seward.
The terms of this draft Will suggest some lack of proper communication between the deceased and her solicitors such that the house and land at 24 Rockford Road, Denmark was thought (perhaps initially by the solicitors) to be a part of the land referred to in annexure A when it appears it was not.
On 11 December 1996, the solicitor with the day‑to‑day responsibility of responding to the deceased's instructions, spoke to the deceased about the terms of her Will and apparently read a draft of the Will to her, including each beneficiary's name and "the property which was bequeathed to them". The solicitor apparently advised the deceased that her solicitors had conducted title searches for her properties and discovered there were only three certificates of title in relation to the Denmark land. The solicitor then pointed out to the deceased that in the draft she had bequeathed "15 separate lots of land" to various members of her family and that this was not legally possible. She mentioned to the deceased that it might be appropriate to leave particular properties to beneficiaries as tenants in common in equal shares or as joint tenants. The solicitor noted:
"Unfortunately I was unable to get this point across to Mrs Seward. She refused to listen to me and didn't appreciate that there were actually only three certificates of title. She kept on referring to them as one block and two blocks and so on."
The solicitor, in her file note dated 11 December 1996, further noted:
"Unfortunately it is still not clear who gets which particular piece of land as she kept on referring to them as one acre block, two acre block, lot 1, lot 2, lot with Moreton Bay Fig, lot with the pine hut etc etc. The only land I could actually clearly ascertain was lot 24 Rockton [sic] Road (the house only) which is going to her grand‑daughter Josephine Gi Gi Seward [sic]. It appears she wants to leave the house to the grand‑daughter on its own and the surrounding land to different people."
The solicitor hoped that, after speaking with the real estate agent in Denmark, the question of real estate could be sorted out once and for all.
It appears that a further draft Will was then prepared, still in 1997, having regard, at least partly, to the deceased's handwritten amendments or observations made on the earlier draft. For example, in this second draft "Perpetual Trustees of Australia (Western Australian Branch)" was nominated as the executor and trustee of the deceased's Will in the place of the "Public Trustee", which was nominated in the first draft. However, no changes of substance seem to have been effected in the second draft in relation to the disposition of the lots numbered 1‑15 on annexure A to the Will, which remained intact and attached to the second draft.
On 2 April 1997, it appears a solicitor from the deceased's solicitors saw or spoke with the deceased and discussed the question of Lot 366. The note was then made:
"If not sub‑div then get that area of the whole & rt to occupy house for her life."
This note also recorded that the deceased would ring "Michael" (presumably her son, the second defendant), the next day in order to have him "send a new plan to be annexure 'A'" (emphasis in original).
There is no evidence of such a further plan having been forwarded to or received by the solicitors (although it is possible it was provided and is the "annexure A" to the two draft Wills). Rather, the next draft of the Will of the deceased put in evidence is a file copy of a draft held by the solicitors upon which amendments were made apparently by a senior solicitor of the firm. This draft, which was in terms of the second draft, replete with references to annexure A, was amended throughout by deleting the devises in cl 3.1 of portions of the unsubdivided Lot 366 and replacing each with a pecuniary legacy. For example, whereas the earlier draft proposed in cl 3.1(a)(i) that Michael Giles Seward should receive "Lot 5 Denmark as set out in annexure 'A'", this was struck through and replaced with "$60,000". Further, the reference to annexure A in cl 3.2 of the draft was wholly deleted.
Until it was deleted, cl 3.2 of the draft Will explained that the reference to annexure A was a reference to land comprising both Lot 366 Horsley Road and number 24, Lot 55 Rockford Road "which if subdivided as at the date of my death then the devises go in accordance with this clause". This draft provision then further provided:
"If the land is not subdivided then my Trustee is to instruct a licensed surveyor to apportion the devises between the Certificates of Title in accordance with the proportions as to area as set out in annexure 'A'."
Just what was meant or intended by this draft provision cl 3.2 in the event that the land was not subdivided at the date of death of the deceased is unclear and is probably the reason why the senior solicitor determined that it and other references to annexure A, and the particular devises in cl 3.1, should be deleted from the draft Will.
These deletions seem to have been confirmed by the deceased. A file note on the solicitors' file dated 22 May 1997 discloses that the deceased that day telephoned and left a message for her solicitors to this effect:
"Want to sign Will regardless of who owns the land. NB Delete reference to the block. Do the rest except Katherine's [sic] two blocks. KB (House) or $170,000 if no land … "
Some other words appear which are not easily decipherable, but include "17 acres … blocks". Subsequently, a further message was received by the solicitors from the deceased to alter the $170,000 to $200,000.
A further note on the solicitor's file dated 18 June 1997, however, suggests the deceased left a message for the solicitors:
"Keep the annexure A and Riverwest P/L Concept Plan."
This, at the very least, suggests that the proposed plan of subdivision that had been used as annexure A in the earlier drafts of the Will had been prepared by the first defendant.
In any event, under cover of a letter dated 8 July 1997, the deceased's solicitors forwarded to the deceased a further draft of the Will prepared by them. Annexure A did not form any part of the draft. Rather, the draft was that which with her own handwritten amendments, the deceased executed and has now been admitted to probate as her Will.
In the covering letter, the solicitors stated:
"We still raise our concern about the gifts referred to in clause 3.1(b) to Kathryn and clause 3.1(j) to Josefin. Although the properties are registered in your name there seems to be considerable doubt as to whether you have legally effected a transfer of those properties to the family trust controlled by Riverview Pty Ltd [sic] and as such would not be owned by you and could not be gifted by you in your Will. If you are not the beneficial owner of those properties as at the date of your death then the gifts referred to in your Will would fail. We confirm that despite this doubt, you wish to keep the provisions as currently drafted.
Please advise whether the Will is now in an acceptable form for your (sic) to execute."
Also on 8 July, it appears that the deceased left a telephone message at her solicitors' office to the follow effect:
"$120,000/60,000. Is it for now. 17 acres cost $65,000 in 1967. If 13 blocks … "
On 30 July 1997, the deceased advised her solicitors that she had signed her Will with the Mayor of Claremont. The solicitors' file note stated:
"All done, but she changed it, where it sd '$60K or block of land' added as an option … nothing further for us to do."
It is apparent that, despite advice from her solicitors about the difficulties in disposing of land in her Will which had not been subdivided, the deceased was determined to attempt either to convey or earmark portions of land within Lot 366 for certain beneficiaries.
This background shows that, at one point, the deceased, on a proposed plan of subdivision that the first defendant had prepared or caused to be prepared, believed that Lot 366 could support a subdivision of the land into 15 lots each of approximately one acre. For some reason, which is simply not explained on any of the evidence before me, the deceased ultimately determined to dispose of or earmark only 13 "blocks"; the same number apparently mentioned in the message to her solicitors on 8 July.
The evidence of Angela Margaret Seward, the fourth defendant, contained in her affidavit sworn 13 February 2003 also tends to confirm their background facts. Ms Seward says that her mother first wrote down her thoughts about her Will when she was visiting Ms Seward in Sydney. Ms Seward believes this was in either September or at Christmas 1995. At that time, the deceased had already sold Lot 10 Springdale Road in Denmark and intended selling Lot 11. The notes of the deceased produced in evidence bear various notations similar to those in the undated handwritten document of the deceased referred to above. The deceased again refers to Lot 366 and "blocks" of an "acre" and uses the expression "acre blocks approx". She also refers to "Lot 366 pine‑log house & semi‑enclosed nearly 2 acres is the asset of my invalid pensioner daughter … ". On the face of it, these notes suggest a desire to dispose of approximately 15 acres of Lot 366 to various persons referred to, most but not all of whom ultimately were named as beneficiaries in the Will admitted to probate.
What is apparent then, when one comes to the Will admitted to probate, is that the "blocks" referred to in cl 3.1 do not owe themselves to any particular proposed plan of subdivision of Lot 366. Annexure A had obviously been abandoned in this regard. At no stage does it appear that a revised annexure A or proposed plan of subdivision was ever produced to the solicitors for the purposes of the Will.
It might be said, although about this there can be no certainty, having regard to this background, that the deceased had a general appreciation that official approval was required for the subdivision of land before new lots could be created. Her reference in the undated document to her discussions with the Shire of her desire to create one‑acre lots as against the Shire's support for quarter‑acre lots, tends to support this view.
In any event, the question arises whether the purported disposition in the Will of portions of Lot 366 which do not comprise "lots" as defined in the Town Planning and Development Act and which are not otherwise defined, renders those provisions of the Will void for uncertainty.
It should be said at this point that nothing in this background and the extrinsic evidence upon which the background account relies, helps to remove any of the ambiguities in the Will.
This is so in the case of all beneficiaries, including Kathryn. In the earlier typewritten drafts of the Will and on annexure A, as marked by the deceased, Kathryn was, on the face of it, to receive two blocks each of one acre. In the Will as admitted to probate, by cl 3.1(b)(ii), Kathryn is to receive the "pine log house and also 1 acre of land approx 1 Block upon which it is located" (emphasis in original).
Whether or not by a testamentary disposition the deceased effectually granted the named beneficiaries an estate or interest in Lot 366 is a question raised by the plaintiff and a number of defendants in these proceedings. In this regard, the first question to be determined is whether the purported devise of portions of Lot 366 is attended with sufficient certainty to make the gift valid in the first place.
It is well accepted that a provision of a Will must be incapable of any clear meaning before it is avoided on the ground of uncertainty: see "Williams on Wills" 8th ed (supra) at 566 and the authorities referred to in footnote 1. In some cases, uncertainty may be avoided by the admission of extrinsic evidence, but if the evidence offered, even though it resolves the uncertainty, is inadmissible under the rules governing admission of such evidence, then the gift must inevitably be declared void: "Williams on Wills" (supra) at 566 and authorities referred to in footnotes 5 and 6.
It is customary to apply two well‑known maxims for the avoidance of uncertainty: "Williams on Wills" (supra) at 566 ‑ 567. First, that indefinite words added to a gift do not render it uncertain where the gift is substantially ascertained from the nature of the case, and no objection can arise where, though the amount of the gift is indefinite, it is stated to be for a particular purpose and the Court can by inquiry ascertain what is the sum sufficient or necessary to answer the purpose.
The second is the maxim that, where words are capable of two constructions, it is just and reasonable that such construction should be adopted as tends to make the document effective. Thus, a Will should be construed to give effect, as far as possible, to every word, and to give effect to the gift if it is possible to do so rather than to declare it void for uncertainty and so defeat the testator's intention.
In cl 3.1 of the Will, each gift of a "block" as an alternative to a pecuniary legacy plainly involves a gift of an undefined portion of land, albeit a portion of Lot 366. In my view, the inability to say at all what portion of land each of the beneficiaries in this class is to receive, makes the provision incapable of application and uncertain.
A similar difficulty arose in Donaldson v Leaf [1907] VLR 278 where the testatrix in her Will provided as follows:
"I give devise and bequeath unto William Leaf 40 acres of land situated in the parish of Waaia colony of Victoria being part of 140 land I also give and bequeath unto my grandchildren five grandsons and two granddaughters the remaining one hundred acres to be divided in equal shares." (as in original)
A'Beckett J found that the testatrix owned about 144 acres of land and that she obviously intended that 40 acres should go to her son, William, and the balance to the grandchildren. However, as to the 40 acres that her son was to take, his Honour considered it impossible to discover from either the Will itself or extrinsic evidence what portion of the whole it was to comprise.
In the present case - save with the possible exception of the devise to Kathryn, to which I will shortly turn - each devise of a "block" appears to leave it to the beneficiary concerned first to decide if he or she wishes to take a "block" in preference to the legacy and, if so, to select the "block" he or she will take. In each of these cases it seems the beneficiary has the power of selection.
In relation to a power of selection, as "Williams on Wills" 8th ed (supra) explains at 84 ‑ 85, a testator having several properties of the same description may give a donee a right of selection of one or more such properties, or give the donee a right to select from them property to a stated amount or value. The right to select may be expressly stated or may appear by inference. If no limit is placed on the selection, the donee may take all the properties if he so desires. Where a number of similar properties are given to an equal number of beneficiaries, the selection is to be made by the beneficiaries in the order in which they are named in the Will and where, in such a case, some beneficiaries are collectively referred to, such as children or nephews or nieces, then the order of selection must be determined by lot. Where, by imperfect wording of the Will, a testator gives one of several similar properties to a donee and the Court is unable to say from the Will itself, or from the extrinsic evidence, which of the properties the testator intended the donee to take, the gift fails for uncertainty and the donee cannot select one of the properties. Where a right of selection is given to one donee and a second donee is to take the residue of the property, if the first donee predeceases the testator so he cannot make the selection, the gift to the second donee fails. The right of selection is purely personal to the donee, and, if he dies without having made the selection, the right does not pass to his personal representatives and a donee, once having made a selection, has no power to give up the selected property and make a second selection and any permission by trustees for him to do so is ultra vires.
In Donaldson v Leaf (supra) it was contended that the son had the right to select the 40 acres the deceased intended he should have. A'Beckett J, at 282 ‑ 283, rejected this contention and stated:
"On behalf of William Leaf it was suggested that the will might be held to give him a right to select any forty acres of his mother's land if he could not claim the block she intended him to have. Asten v Asten [1894] 3 Ch 261, to which counsel referred me, disposes of this contention. It was there held that if it can be gathered from the words used that a testator intended to give a particular property, but owing to the testator having several properties answering the description in the will it is impossible to say, either from the will itself or from extrinsic evidence, which of these several properties the testator referred to, the gift fails for uncertainty, and the Court cannot, to avoid an intestacy, construe the will as giving the legatee the option of electing which property he will take. In re Cheadle [1900] 2 Ch 620 is to the same effect."
The same difficulty arises here in relation to the deceased's Will. It is simply not possible to state what items of property the beneficiary is to select from. Apart from any other consideration, this factor makes it difficult, if not impossible, to apply the selection rules referred to above. There is only one property (Lot 366), not several. There are no defined "blocks" of approximately one acre from which a beneficiary can choose. Even if it were possible to create an order of selection between beneficiaries so that each selected in the order named in the Will, or by casting lots, there are no particular portions of land to select from.
The additional difficulty raised by the gifts to the beneficiaries in this class is that the devise of the "block" is an alternative to a pecuniary legacy. The gift is one of the money or the "block". Each beneficiary in this class, by proper construction of the option given to them, may decide whether to take the money or the "block". If some were to take the money and some were to take the "block", then conceivably there would be some "blocks" left over and the whole of Lot 366 would not be disposed of. Such a possible outcome simply adds to the uncertainty created by the gift of undefined "blocks".
In Tatham v Huxtable (1950) 81 CLR 639, the Court was required to construe the provision of a Will which followed the making of various pecuniary legacies and dealt with the residue of the estate in these terms:
"(11)I hereby authorise and empower in law my executor the said Edgar Ernest Huxtable, to distribute any balance of my real and personal estate which may at the time of my decease be possessed wholly or in part by me, to the beneficiaries of this my Will and Testament, in addition to amounts already specified, or to others not otherwise provided for who, in my opinion have rendered service meriting consideration by the Testator."

The Court by a majority (Fullagar and Kitto JJ, Latham CJ dissenting), held that the testator had not provided a definite criterion for the ascertainment of his beneficiaries and that the entire residuary bequest was void for uncertainty. Kitto J (with whom Fullagar J agreed, but also added some additional reasons) applied the "cardinal rule" at 653, namely:
"It is 'a cardinal rule', to which a power of selection among charitable objects is the sole exception, that 'a man may not delegate his testamentary power. To him the law gives the right to dispose of his estate in favour of ascertained or ascertainable persons. He does not exercise that right if in effect he empowers his executors to say what persons or objects are to be his beneficiaries': Chichester Diocesan Fund v Simpson [1944] AC 341, per Lord Simonds at 371."
The circumstances of Tatham v Huxtable (supra) were complicated by the fact that the executor was also a beneficiary under the Will and so, on the face of it, could exercise the discretion created by cl (11) to distribute the Will to himself. Kitto J, at 656, stated:
"In my opinion, the clause must be judged upon the principles applicable to special powers of appointment; and so judged it must fail, for the testator has not provided a definite criterion for the ascertainment of his beneficiaries, but has purported to delegate the choice of them to the insufficiently guided judgment of another person."
In my view, the alternative devises, which appear to create a right of selection in each of the beneficiaries in this class to take a "block" instead of a pecuniary legacy fails utterly for uncertainty. In effect, even if the difficulties concerning the identification of the properties from amongst which the beneficiary is entitled to select an item for himself or herself did not invalidate the gift for uncertainty, as I consider it does, the granting of a power to a beneficiary to decide for himself or herself what portion of the deceased's estate he or she should take seems to me to involve an unlawful delegation of the testamentary power by the deceased to each of those beneficiaries.
While one may surmise about the intention of the deceased in adding the handwritten provisions of the Will concerning the "blocks" in the manner that she did, the result is that this Court, as a Court of construction, is left with considerable uncertainty as to how these provisions should be construed.
In those circumstances, the handwritten additions in the case of each of the alternative devises must be considered void for uncertainty.
The result is that the Will should be construed having regard only to the pecuniary legacy in each such case, which provision is quite certain.
That, then, leaves for determination the proper construction of the gift to Kathryn, which has been set out in detail above. Does it, too, fail for want of certainty? The essence of this gift is the "pine log house and also 1 acre of land upon which it is located on the 17 acres of land at Lot 366 Horsley Road, Denmark … " (emphasis in original).
There are many examples of devises of a house where the devise has not been spelled out in metes and bounds or by some more particular description of the land, which have been found not to fail for want of certainty. This is because it is generally accepted that words used in a Will describing a house may, according to the context or the circumstances, include land occupied and enjoyed with it, especially if such land is necessary for its convenient use or enjoyment: see "Williams on Wills" 8th ed (supra) at 642. Sometimes, the word "house" is accompanied by further words such as "and premises" and then something more than the actual building must be included. This may extend to land commonly enjoyed with the house: see for example, In the Will of Rayner (1928) 23 Tas LR 41, where the "home" was held to include five and a half acres of orchard occupied with the house.
The third defendant submits that the gift to her of the pine log house sufficiently particularises the property to prevent the Will being avoided for uncertainty. However, I am not satisfied that this is so. If it were a gift only of the "pine log house", her argument on this point may succeed. However, it is important that sight not be lost of the terms of the devise, including the handwritten amendment to the typewritten form of the Will made by the deceased. To the gift of the "pine log house and also 1 acre of land" the deceased added: "approx 1 Block".
In my view, properly construed, the gift to Kathryn comprises not a separate gift of the "pine log house" and a separate gift of "1 acre of land approx 1 Block", but a compendious gift of the "pine log house and also 1 acre of land approx 1 Block upon which it [that is to say, the pine log house] is located … ". Understood in this way, while the identity of the pine log house is not in question, the identity of the "1 acre of land approx 1 Block" is, and it is uncertain. In the context of the Will of the deceased, this purported devise fails for the same reason as the other similar purported alternative devises of a "block" of "1 acre approx" fail, namely, because it is impossible to know which one acre of land should accompany the portion on which stands the pine log house.
To the extent that it might be argued that the Will might be held to give the executor and trustee, or the beneficiary Kathryn, the right to select an acre adjacent to the pine log house, for the reason explained by A'Beckett J in Donaldson v Leaf (supra), this contention is not open. The selection is not able to be made between particular properties: at best it would be a selection of that one‑acre of land adjacent to the house that best suits the trustee or the donee of the gift.
Further, in the sense described in Tatham v Huxtable (supra), such a gift also fails because the provision involves an unlawful delegation of the testamentary power of the deceased to the trustee or the beneficiary.
In my view, therefore, the portion of the gift to Kathryn in cl 3.1(b)(ii) that refers to the pine log house and the one acre of land, approximately one "block", fails for want of certainty. However, to the extent that the gift in this clause comprises a bequest of the contents of the pine log house, it is plain and certain.
The second issue concerning the validity of the alternative devises in cl 3.1 in relation to portions of Lot 366 is whether by her Will the deceased could validly transmit interests in portions of Lot 366 to particular beneficiaries when none of those portions comprised a "lot" as defined in s 2 of the Town Planning and Development Act. This second issue only arises should the handwritten alterations to the Will not be considered void for uncertainty. However, as the second issue was the subject of written and oral submissions, it is appropriate to deal with it.
Immediately before the date of death of the deceased, subdivision of Lot 366 Horsley Road, Denmark, was not possible without the prior approval of the Western Australian Planning Commission pursuant to s 20(1)(a) of the Town Planning and Development Act. As of that date, s 20(1)(a) relevantly provided as follows:
"Subject to section 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street, road or way, or either lease or grant a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period, or lease and grant a licence to use or occupy land for terms in the aggregate exceeding 10 years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land, unless the land is dealt with by way of such lease, licence, sale or option of purchase as a lot or lots, or subdivide any lot or amalgamate any lot …; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective."
Further, as of that date, s 20(2) of the Town Planning and Development Act provided that:
"The Registrar of Titles shall not create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless -
(a)in the case of a plan of subdivision to which this Act applies, the diagram or plan of survey of the subdivision of that land submitted to the Commission under section 20AA; or
(b)in the case of a plan of subdivision to which this Act does not apply, the application for title concerned,
has been endorsed with the approval of the Commission."
For present purposes, s 68 of the Environmental Protection Act 1986 (WA) and s 20B of the Town Planning and Development Act are not material.
The plaintiff submits that the alternative devises and the devise concerning portions of Lot 366 offend s 20(1) of the Town Planning and Development Act and for this reason must fail. In this, the plaintiff is supported by each of the first defendant, second defendant and sixth defendant, and also by the fourth defendant except so far as the submission affects the third defendant. The third defendant contests this submission.
The third defendant contends that whether or not s 20(1) of the Town Planning and Development Act proscribes the testamentary dispositions in relation to portions of Lot 366 falls to be determined by reference to the requirement that a person shall not, without the approval of the Commission "sell land … unless the land is dealt with by way of such … sale … as a lot or lots, or subdivide any lot … ". The third defendant submits there is no definition of "subdivide" in the Town Planning and Development Act and, in effect, that the expression "subdivide" should not be construed to apply to the testamentary dispositions in question.
The third defendant draws attention to s 21(1) of the Town Planning and Development Act which relevantly provides that:
"(1)A transfer, conveyance, lease or mortgage of any land shall not be received or registered in the Department … unless -
(a)it has been first approved in writing by the Commission; or
(b)the land comprises the whole of one or more lots, or the land comprises part of a lot included in a plan of subdivision that has been approved by the Commission; or
(c)… "
The third defendant also draws attention to s 30(1) of the Trustees Act 1962 (WA) which provides that:
"(1)Every trustee, in respect of any property for the time being invested in him, may -
…
(d)where the property is land and the land may be sold … or otherwise disposed of under any power or trust vested in the trustee, subdivide the land into blocks and for such purpose … do all such other things … as he thinks necessary or as are required by, or under, any Act relating to subdivisions;"
The third defendant contends that, because the plaintiff has power to sell Lot 366 under cl 6(a) of the Will, it follows that the Trust created in respect of each devise, and at least the devise in favour of the third defendant, is not illegal, as the plaintiff could attempt to subdivide the Horsley land with the approval of the Commission and could then transfer at least to the third defendant the devise in her favour without breaching s 20(1) of the Town Planning and Development Act.
The third defendant further contends that, if subdivision cannot be effected in that way, the plaintiff should be found to hold the land upon trust as to the land devised to her, for her.
The first question is whether a combination of cl 6(a) of the Will, s 30(1) of the Trustees Act and the statutory power of the Commission to approve a subdivision of land may be relied upon by the third defendant to validate at least the purported devise of portion of Lot 366 to the third defendant.
In my view, this contention cannot be upheld. In effect, it requires the Will in this regard to be construed as a conditional devise of a part of a "lot" as defined by the Town Planning and Development Act, subject to the approval of the Commission. I do not consider that the Will can be construed in this way.
By the relevant purported devise in favour of the third defendant, the deceased purported to create an immediate interest in respect of a particular portion of an unsubdivided lot. Nothing in the Will suggests that the devise was conditional on a subdivision of land being approved in respect of the portion in question.
I have already dealt with the question concerning the appropriate identification of the portion of Lot 366 which the deceased intended to be gifted by this means. The uncertainty of the "1 acre" that is to accompany the pine log house is demonstrated indeed by this argument. Until such time as the Commission were to approve a particular form of subdivision that included as part of the subdivision a "lot" that conformed precisely with the subject of the devise in the Will, the gift in favour of the third defendant could not be effectuated.
In my view, therefore, the first contention put by the third defendant must fail.
That, then, leaves the question whether the second contention can succeed, namely, whether the plaintiff must hold in trust the land purportedly devised to the third defendant, notwithstanding that the land the subject of the devise does not comprise a "lot" for the purposes of s 20(1) of the Town Planning and Development Act.
In this regard, the third defendant relies on Re Leaver [1997] 1 Qd R 55. In that case, the testator by a codicil to his Will devised to a beneficiary his dwelling‑house and the adjoining garage building which formed only part of a lot which could not be subdivided. On another part of the lot was another house. The Court had no difficulty in determining that, by the Will, the testator intended that the beneficiary should have a portion of the unsubdivided lot. The question was then raised whether such a testamentary disposition was valid.
Derrington J, at 58, observed:
"It being comfortably established that the gift comprised the house garage and an excised area of curtilage to be determined on a practical basis, the most difficult issue appears not because the required excision is impeded by the zoning of the land that does not permit of subdivision. It is not that, as with the Land Sales Act 1984, a disposition (in that case a sale) of part of land without approved subdivision is prohibited and made void, or as with the Local Government Act 1936‑1982, which has now been superseded, the sale and certain other dealings with subdivided land without approved subdivision is forbidden and the transaction made conditional on such approval. It is only that subdivisional approval cannot be obtained under the Local Government (Planning and Environment) Act 1990, which however does not expressly prohibit or avoid any dealings with part of land that has not been subdivided in accordance with it."
In making these observations, Derrington J appeared to accept that if the disposition of part of land without approved subdivision were prohibited and made void, then such a testamentary disposition would not be possible. In other words, the decision in Re Leaver depended very much upon the particular terms of the subdivision control legislation in question.
Derrington J, at 58 ‑ 59, noted that, under the relevant Local Government (Planning and Environment) Act 1990, the expression "subdivision" was defined as follows:
" 'subdivision' means the division of land into parts by means of -
(a)sale, transfer or partition; or
(b)any agreement, dealing or instrument inter vivos (other than a lease for any term not exceeding 5 years without the right of renewal) rendering different parts thereof immediately available for separate disposition or separate occupation; or
(c)the creation of an indefeasible title under the Land Title Act 1994 for a part of the land; or
(d)the excision of land from an allotment for dedication to the Crown."
His Honour noted that the omission from this definition of dealings that are not inter vivos, and even of inter vivos leases under five years, indicated that such dealings are not intended to be affected by the legislation. He considered that the omission could only be regarded as deliberately manifesting an intention to allow the omitted dealings to have full force without impediment by the legislation.
Derrington J concluded then that there was strong reason to conclude that a disposition by Will was not prohibited or avoided by the legislation. Accordingly, he considered an equitable interest by way of trust may arise in respect of a portion of unsubdivided land. In short, he considered that such a trust was not prohibited by the relevant law of Queensland.
In essence, the third defendant argues for the same outcome in respect of s 20(1) of the Town Planning and Development Act in this State.
If one considers the terms of s 20(1) set out above, it is plain enough that many of the transactions prohibited by the subsection without the approval of the Commission constitute inter vivos transactions; such as the prohibition on sale of portion of a lot. However, the provision that a person shall not "subdivide any lot" without the Commission's approval is, in my view, capable of applying both to an inter vivos and testamentary disposition. The question is whether the purported devise, for example, to the third defendant of a portion of Lot 366, offends the proscription that "a person shall not … subdivide any lot … ".
Section 20(1) of the Town Planning and Development Act has a long history and it has been amended over time. As at 1971, s 20(1)(a) relevantly provided that:
"Subject to section twenty B of this Act, a person shall not, without the approval of the Board, lay out, grant or convey a street, road or way, or subdivide, or either lease or grant a license to use or occupy land for any term exceeding ten years including any option to renew or renew the term or period or lease and grant a license to use or occupy land for terms in the aggregate exceeding ten years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land except as a lot or as lots; … "
In Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188, the question arose whether the appellant had contravened s 20(1)(a) when, before fully complying with all conditions imposed by the Board on an approval to subdivide in accordance with a sketch plan, it entered into a contract with the respondent to sell 20 fully developed building blocks.
Hale J, at 196, stated that he did not think it was the case that the word "subdivide" in s 20(1)(a) related to work done on the ground, that is, some sort of physical subdivision. His Honour, at 196, stated:
"The word is not defined and I doubt whether the draftsman had any clear idea what it was which he wished to prohibit, but it appears to me to be aimed at a plan of subdivision rather than at physical works on the ground … it appears to me that the references in s 20(1) to subdivision and to a plan of subdivision (are) from a practical point of view references to the same thing … the Act put an end to 'do‑it‑yourself' subdivisions."
Wickham J, at 198, while not attempting to provide a definition of "subdivide", stated that, in his opinion, the word:
"[I]ncludes a physical idea, although used in a town planning context so as not necessarily to include the mere physical creation of divisions for the other purposes such as the making of farm paddocks and the like."
By 1982, s 20(1) had been amended so that it then appeared substantially in the form that it now appears in the Act for the purposes of this matter, so that the passage "or subdivide" as it appeared in the earlier provision set out above was deleted and at the end of the paragraph the following words were added: "or subdivide any lot, or amalgamate any lot with any other lot … ".

In Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41, land which had been a single lot was subdivided into two portions with approval under the Act. The proprietor of one of the new lots leased it to the defendant for 50 years. The plaintiff, a sub‑tenant, contended that the land was not a "lot" within the meaning of the Town Planning and Development Act and that the lease, having been executed without the prior approval of the Town Planning Board, was illegal and void. The plaintiff further contended that, whether or not the land was a lot, the lease had a term in excess of 10 years and was prohibited by s 20(1)(a) of the Act.
Smith J, at 44, noted that it was accepted by counsel for all parties that the policy of the Act was to control individual activity in the subdivision of land and that the Act:
" 'indicates that policy of supervision of individual activity by providing for control in the creation of what might be called an important unit of subdivisional planning and development: the "lot" (per D'Arcy J in Glass v Ralph [1966] WAR 91)'."
His Honour then observed, at 44:
"Prior to the 1928 Act an effective subdivision ready for sale in lots could have been effected pursuant to ss 166 and 167 of the Transfer of Land Act 1893 by the deposit at the Office of Titles of a plan of subdivision verified by a licensed surveyor. As Hale J said in Lombardo v Development Underwriting (WA) Pty Ltd … , 'The Act put an end to "do‑it‑yourself" subdivisions'. To this end s 20 of the Act prohibits the subdivision of land and certain dealings in land which, in practical terms, might have the same effect as a subdivision of land without the approval of the Board having been first obtained thereto."
In Palamore Pty Ltd v Clode, unreported; SCt of WA; Library No 980599; 16 October 1998, the parties held a piece of land near Broome as tenants in common. A deed entered into at the time of purchase gave the plaintiff exclusive use, occupation and control of a portion of the land and the defendant exclusive use, occupation and control of the remainder. The plaintiff contended that the deed contravened s 20(1)(a) of the Act and that the clause relating to exclusive use, etcetera, was void.
Murray J held that the word "subdivide" is an ordinary English word which in s 20(1)(a) bears its ordinary meaning. Therefore, for the purposes of that section:
"… a lot is subdivided when a practical effect of what is done is to create out of the existing lot two or more smaller defined portions of land."
His Honour stated that, in his opinion, it was not necessary that there be an act of transfer of any such smaller portion into separate ownership, but what is necessary is that, apart from the effect on the transaction of the contravention of s 20(1), there be some legally effective or binding transaction or process which divides an existing lot into smaller units of land.
In the result, Murray J concluded that the deed in question proceeded on the basis that the parties would endeavour to achieve a subdivision of the lot, but in the meantime sought to regulate their respective use and occupation of the land. Accordingly, he did not consider that either the deed or any provision of it contravened s 20(1)(a).
In Cobanov v Cobanov [2002] WASC 257, Mr Cobanov and his son owned a piece of land as tenants in common. A clause in the contract between them provided that each was to have the exclusive use and operation of separate parts of the property. No steps had been taken to have the land subdivided. Mr Cobanov contended that the clause was invalid insofar as it purported to effect a de facto subdivision of the land.
Scott J, at [24], found he was unable to see how the granting of exclusive occupation in the circumstances could properly amount to a de facto subdivision of the land. His Honour accepted Murray J's analysis in Palamore (supra) and concluded, at [33], that in the case before him the parties had agreed to own land as tenants in common, as reflected in the title. They had also agreed that each was to have the exclusive occupation of, and right to farm a designated portion of the land. In his Honour's opinion:
"There is nothing in such an arrangement which can be said to contravene s 20(1)(a) of the Town Planning Act … there is no de facto subdivision, nor any intention to subdivide. The agreement does no more than grant a right to each of the parties to occupation of a portion of the land to the exclusion of the other. In the meantime, and unless and until a subdivision is effected, the parties are, and remain, tenants in common of the land in their respective shares."
There is, in my view, a certain consistency in these judicial pronouncements as to what the expression "subdivide" means where it appears in s 20(1). While it might be argued that the expression "subdivide any lot", where it appears in s 20(1)(a), is a reference to the formal act of subdivision ultimately effected under s 21(1) by a transfer or conveyance of a portion of land that is not presently a lot, and that this view is buttressed by the proscription in s 21(2) that the Registrar of Titles shall not receive any application from the registered proprietor of any land to create and register in the name of such registered proprietor a certificate of title for a portion of land not being the whole of one or more lots unless such application has been approved by the Commission, it seems to me that s 20(1)(a) is intended to have a broader application than that. It seems to me reasonable to accept, as Murray J did in Palamore (supra), that the expression "subdivide any lot" is intended to prevent any physical or other act which has or is intended to have the practical effect of creating out of an existing lot two or more smaller defined portions of land.
In this case, at least, the deceased by her Will has purported to devise the legal and beneficial interest in portions of Lot 366 to named beneficiaries. The purported testamentary dispositions in question, in my view, cannot be equated with the licences considered in Palamore and Cobanov which were found not to offend s 20(1)(a). In those other cases, the transactions plainly proceeded on the basis that the lot in question could not be subdivided except with the approval of the Commission. In the present case, however, the plain intention of the Will is that each relevant beneficiary should have the bundle of rights that comes with legal and equitable ownership of land in the respective portions devised to them, to the exclusion of any other person. In my view, such a disposition, even by way of a testamentary disposition, purports to "subdivide" Lot 366.
In those circumstances, in my view, the purported testamentary disposition of portions of Lot 366 to the third defendant and also to the other relevant beneficiaries falls foul of the statutory proscription in s 20(1)(a) of the Town Planning and Development Act. It is accepted that a disposition that does not conform with s 20(1)(a) is illegal and void: Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33. It follows that there is no question of a trust arising in respect of portions of Lot 366 under the Will in favour of the relevant beneficiaries, including the third defendant.

The question of the trustee's obligation to subdivide Lot 366 Horsley Road, Denmark

As noted, by cl 6(a) of the Will, the trustee may sell the land.
By s 30(1) of the Trustees Act, the trustee may, where there is a power of sale, subdivide the land into blocks, but subject to any Act relating to subdivisions, which plainly includes the Town Planning and Development Act.
A question arises whether the plaintiff as executor and trustee of the Will of the deceased should seek to develop the land through subdivision before finally administering the estate.
By s 92(1) of the Trustees Act, any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
This provision enables the Court to provide advice to an executor or trustee, including in respect of the subdivision and sale of land: Nevin v The Beneficiaries of the Bremer Bay Estate Trust [2002] WASC 24.
It is generally accepted that if advice is given by a Court under s 92, it should be "conservative advice": Re J S Mitchell (1913) 30 WN (NSW) 137; Nevin v The Beneficiaries of the Bremer Bay Estate Trust (supra) at [4].
There plainly is some evidence that Lot 366 may potentially be more valuable in the event that it is subdivided. That is clear enough from the opinion of Mr Snowball, the licensed valuer referred to above.
The plaintiff, however, considers that, while subdivision may be viable, it may also be unacceptably risky from its position as executor. With the plaintiff's submission each of the first defendant, second defendant, fourth defendant, and sixth defendant agree. The third defendant appears to disagree, but only so far as the pine log house subdivision is concerned.
All defendants, apart from the third defendant, agree that, on the available evidence, the costs and time necessarily expended in subdivision would not warrant the risk to the assets of the estate.
A valuation of Lot 366 provided by Mr Snowball shows that the land was valued by him as of August 2001 in the order of $425,000. It follows that if subdivision of the land is to be pursued, the total value of all the lots once sold would need to realise a substantially higher sum than its presently unimproved value, albeit a value with subdivision potentiality.
For a subdivision of the land to be approved, the planning policies applying to "Planning Unit A", as described in the settlement strategy of the Shire, would need to be met. In other words, the owners of adjoining lots within that Planning Unit A would need to act jointly to achieve an optimal form of subdivision. It would appear that the planning policies likely to be applied by the Western Australian Planning Commission, as advised by the Shire, would be likely to prevent the subdivision of Lot 366 alone.
I also note that, through Masterplan Consultants WA Pty Ltd, town planning consultants who appear to act for one of the other landowners within Planning Unit A, the solicitors for the plaintiff were advised in February 2002 that the pursuit of a structure plan to permit the subdivision of all lots within that area had become an issue with the council. The Shire of Denmark had apparently required that landowner to construct a road inside its property. The landowner expressed the view that: "Until this matter is resolved in my favour I have no intention of proceeding with gaining structure plan approval. The other owners have been advised of this situation." At that time, the other landowner was not prepared to make any estimations of particular approvals to facilitate subdivision being forthcoming.
The plaintiff submits, and I accept on the evidence before me, that the costs, delays and uncertainties of proceeding with subdivision of Lot 366 are significant. In addition, the subdivision application, approval if given and then sale of the lots would involve the outlay of substantial sums of money, which the estate does not have available to it, and impede the due administration of the estate.
In circumstances where the net proceeds of the sale of Lot 366, after payment of just debts and administration costs of the estate, is the only asset of the estate available to meet the payment of the pecuniary legacies made by the deceased in her Will, it seems to me appropriate to provide the conservative advice and direction to the plaintiff that it need not proceed to seek the subdivision of Lot 366 before selling the land and administering the estate.

Loan to the second defendant

During the lifetime of the deceased and until 9 December 1994, the plaintiff was engaged by the deceased to provide her with investment services. At the time that the plaintiff acted for the deceased, the deceased advised the plaintiff that the second defendant was indebted to her in the sum of $50,000.
In making inquiries to ascertain if the debt was an asset of the estate of the deceased, the plaintiff was provided with a statement by the second defendant dated 20 December 2001.
In his statement, the second defendant indicated that the deceased made an unsecured loan of $50,000 to him personally in September 1989. This was, in part, evidenced by a letter from Guardian Accounting and Taxation Services. The purpose of the loan was for the acquisition of a commercial diving business. The term was for three years at an interest rate of 15 per cent, which was considered a reasonable market rate at that time, payable quarterly in arrears.
The second defendant says he made the required interest payments and often remitted them with a covering letter. At the end of the three‑year period, he wrote a letter to the deceased care of Perpetual Trustees WA Ltd on 6 November 1992 and asked to roll the loan over at a more reasonable interest rate.
He says he received no response to that letter and his recollection is that he made telephone inquiries about the time the next interest payment fell due for payment and was advised that the deceased had not responded to his request. The second defendant says that the plaintiff suffered from a bipolar mental disorder and this was not particularly unusual and she was "probably being in one of her 'non‑cooperative' phases".
On that basis, the second defendant withheld payment of interest on the practical commercial basis that, sooner or later, he expected to receive a demand or to be approached to negotiate a new interest rate. He says that, as it happened, nothing further occurred regarding the loan and no demand for interest or principal was ever made.
The second defendant says that, by the time of the formation of the Trust almost two years later in 1994, the whole issue was in the past and his understanding was that the deceased had forgiven the loan. However, he says he cannot recall a particular date or conversation, but does recall raising the matter with the deceased at some point in the intervening period.
He further says that, as it happened, he was involved with a boat‑building project in Geraldton from mid‑1994 to June 1995 and made regular trips to Western Australia over that period, during which time the idea of the deceased forming a discretionary trust came to fruition.
The second defendant says he recalls a meeting in late 1994 concerning the establishment of the Trust during which the status of various moneys advanced by the deceased to all her children was confirmed as being in the past, as having been gifted and not to be accounted for with opening entries on beneficiary loan accounts in the proposed Trust.
He says that the loan certainly was not brought to account when the Trust was formed and he firmly states that, were it still then current, he would have insisted on it being put against his loan account in the Trust.
The second defendant says the question of the loan was then raised in the context of some disputation between him and his brother Peter Maurice Seward, the fifth defendant.
Angela Margaret Seward, the fourth defendant, in her affidavit sworn 13 February 2003, also makes reference to the loan of $50,000 made to her brother Michael, the second defendant. She recalls that shortly after the death of the deceased at a meeting at the offices of the plaintiff, the loan of $50,000 was referred to and that the second defendant said words to the following effect:
"That was years ago. Perpetual did the paperwork on the loan which was for a term of 3 years. After 3 years it was agreed that the loan would be paid back or rolled over after the interest rate had been renegotiated. Interest rates were very high at the time.
After 3 years I contacted Ian Doig at Perpetual and Mum and told them I wanted to roll the loan over but I wanted to negotiate lower interest rates. She did not respond. She never responded. Some time later she indicated to me that she did not want me to pay back the loan."
Ms Seward further says that at the meeting, her brother Peter, the fourth defendant, continued to insist that their mother had made the loan to Michael and that Michael should pay it back to the estate. Ms Seward said she said words to Peter to the following effect:
"You should put this in writing to the Executor and obtain legal advice."
She says as far as she knows, Peter has not provided Perpetual with any evidence of the loan or the fact that it had not been forgiven by her mother. Certainly none has been put in evidence by the plaintiff.
There is little other evidence to bear on the question of the loan and the deceased having forgiven it. Each of the first defendant, second defendant, fourth defendant and the sixth defendant agree that, unless there is cogent evidence to the contrary, the statement made by the second defendant that the loan was forgiven ought to be accepted. The plaintiff and the third defendant expressed no view.
The sixth defendant also suggests that, even if it were not the case, recovery of the loan would be statute‑barred given, on the statement of the second defendant, that the loan was capable of being recovered by the deceased in September 1992 and no action has been taken on it since then.
Without ruling on the expiration of the statutory limitation period under the Limitation Act 1935 (WA), I am satisfied in all the circumstances of the case that it is appropriate to advise and direct that the plaintiff should administer the estate on the basis that the deceased did forgive the loan of $50,000 during her lifetime and that it was not due and owing to her immediately before her death.

Clause 3.1(j)(i) of the Will

Clause 3.1(j)(i) of the Will of the deceased makes the following gift to Josefin Gigi Ann Limberg (Seward):
"(i)the house and land situated at 24 Rockford Road, Denmark being Lot 55 on Diagram 20364 and being the whole of the land contained in Certificate of Title Volume 1817 folio 311 if I own it at the date of my death and its contents, plus one (1) piano (Schwechten), washing machine, clothes drier, refrigerator, beds, two (2) couches and one (1) chair, big desk and little desk (that go together)."
The plaintiff says the terms of this provision do not provide how the plaintiff is to determine what "beds", "two (2) couches and one (1) chair" are the subject of the bequest. The plaintiff says the question is whether the provision is incapable of definition by reference to the terms of the Will and the surrounding circumstances and whether it must fail for uncertainty: Perpetual Trustee Co Ltd v Gilmore [1979] 2 NSWLR 716 at 719.
In the affidavit of Spencer Charles Percival, sworn 17 September 2002 in support of the plaintiff's application, the issue is put in a slightly different form. He says the plaintiff seeks a direction as to whether the terms of the bequest following the gift of the house and land is effectively to be construed as a gift of the contents of the property at 24 Rockford Road, Denmark, together with the piano which was situate in the deceased's property at 30 Walter Road, Claremont at the date of death of the deceased, or otherwise.
The view of each of the first defendant, second defendant, fourth defendant and sixth defendant is that, on the proper construction of the Will, the beneficiary Josefin is entitled to the house and land at 24 Rockford Road and its contents and the specific items to which reference is made in the bequest. The third defendant expresses no view about this and the plaintiff disagrees with that view.
In my view, it is appropriate to declare that on its proper construction, cl 3.1(j)(i) of the Will gifts to the beneficiary Josefin the house and land at 24 Rockford Street, Denmark, the contents of the house, as well as the specific items to which reference is made in the balance of the bequest. If the estate of the deceased actually comprises more than one bed, more than two couches and more than one chair, then the beneficiary Josefin is entitled to the beds and is entitled to select which two couches and which chair she wishes to receive, should she wish to exercise the power of selection. If she communicates to the plaintiff that she does not wish to exercise the power of selection, then those bequests would fail and those items would fall into the residuary estate.

Strata Lots 3 and 4, 10 Stanford Way, Malaga

At the date of her death, the deceased was the registered proprietor of two strata lots in Stanford Drive, Malaga, a suburb of Perth, Western Australia, being:
(1)Lot 3 on strata plan 16927, together with a share in any common property as set on the strata plan, being the whole of the land comprised in certificate of title vol 1825 folio 490;
(2)Lot 4 on strata plan 16927, together with a share in any common property as set out on the strata plan, being the whole of the land comprised in certificate of title vol 1825 folio 491.
A question arises whether strata lots 3 and 4 comprise an asset of the estate of the deceased or were held by her as trustee of the Trust.
The Trust was established by deed of trust dated 7 November 1994. The trustees are specified by the deed to include the deceased, Michael Giles Seward (second defendant) and Peter Maurice Seward (fifth defendant). Each of them signed the deed. Angela Margaret Seward (fourth defendant) was proposed to be a trustee, but she declined to execute the deed.
By a deed of appointment of a new trustee dated 30 May 1995, Riverwest Pty Ltd (first defendant) was appointed the new trustee of the Trust and the three natural persons retired as trustees.
The two strata lots were purchased by contract for sale of land by offer and acceptance signed by the deceased on or about 19 October 1994. She signed "as nominee for the E A Seward Family Trust".
The offers were subject to approval of finance by Citibank. Citibank approved finance by letter to the deceased dated 1 November 1994.
The contract provided that the settlement date for the sale and purchase should be 18 November 1994. No evidence suggests settlement occurred any earlier then 18 November 1994, and I infer that it in fact occurred on or about that date.
Thus, by the date of settlement, the Trust had come into existence.
From that point on, all relevant documents point to the strata units being treated by the deceased and the first defendant as property of the Trust. These include:
(1)a document which is said to be a printout of the annual general ledger of the Trust for the period 7 November 1994 to 30 June 1995;
(2)a letter from the first defendant to the plaintiff dated 18 September 2001;
(3)a letter from the Trust accountants dated 4 March 2002, together with financial reports of the Trust referred to in the letter.
Having regard to the date of creation of the Trust in early November 1994, the terms of the earlier agreement to purchase the two strata units and the later accounting treatment of the two strata units as property of the Trust, the documentary evidence raises the inference that the two units were, indeed, at all material times the property of the Trust.
Some of the relevant parties have also given evidence by affidavit in support of that inference being the fact. Angela Margaret Seward (fourth defendant), by affidavit sworn 13 February 2002, explains that, by reason of the family relations that then subsisted between her and her brothers, Peter and Michael, she was unwilling to accept appointment as a trustee of the Trust. However, she is clear that the two units are assets of the Trust. In par 19 of her affidavit, Ms Seward states:
"Units 3 & 4 Stanford Drive Malaga were regarded by my mother (and Peter, Michael and the EASFT accountant, Mr Rob Sampson) as assets of the EASFT."
No party to these proceedings contends other than that the Malaga strata units comprise property of the Trust.
The plaintiff accepts that the deposit, stamp duty and fees for the purchase of the two units were paid by the Trust from funds gifts to the Trust by the deceased, as well as a loan from Citibank.
The plaintiff raises the question whether the contract to purchase the strata units was by the deceased as trustee and, if so, the nature of the Trust upon which she held the land.
Section 34(1)(b) of the Property Law Act 1969 (WA) provides that:
" … a declaration of a trust respecting any land … shall be manifested and proved by writing signed by a person who is able to declare the trust … "
Section 34(2) of the Property Law Act provides that:
"This section does not affect the creation or operation of resulting, implied or constructive trusts."
I am satisfied that when the contract for the purchase of strata units 3 and 4, which was signed by the deceased "as nominee for the E A Seward Family Trust" on 19 October 1994, before the Trust, is read with the deed of trust dated 7 November 1994 and the financial statements of the Trust, the requirements of s 34(1) of the Property Law Act are satisfied.
If the contract does not represent such a declaration of trust in writing, then the issue is whether the Court can be satisfied that a resulting trust in favour of the first defendant arose in the following circumstances:
(a)the purchase price of the Malaga units was paid by the first defendant as purchaser and not otherwise;
(b)that notwithstanding that the beneficial ownership was to vest in the first defendant, the first defendant directed the vendor to register the Malaga properties in the name of the deceased;
(c)the deceased gave no consideration to the transfer.
I consider these facts are made out on the evidence and so it follows that there is an unrebutted presumption in any event that the deceased held the two strata units on a resulting trust for the first defendant: Napier v Public Trustee (WA) (1980) 32 ALR 153 at 158.
I note in passing that each of the first defendant, second defendant, fourth defendant and sixth defendant agree that the deceased held the beneficial interest in the two strata units for the Trust. The third defendant and the plaintiff express no view. No party disagrees with the proposition. A declaration to that effect should now be made.

The Coca Cola Amatil shares

The first defendant as trustee of the Trust, seeks a declaration and orders in respect of 4556 Coca Cola Amatil shares that are currently registered in the name of the deceased.
The material information relating to these shares shows that the holder is presently shown on all relevant records as "Mrs Eleanor Anne Seward" and the account designation is "E A & P M & M G Seward A/C".
The history relating to these shares is deposed to by Angela Margaret Seward, the fourth defendant, who is a director and secretary of the first defendant, in her affidavit sworn 26 August 2003.
Ms Seward says that, as noted above, the original co‑trustees of the Trust appointed under the November 1994 deed setting it up, were the deceased, the second defendant and the fifth defendant. She, at that time, was not prepared to act as a trustee.
Ms Seward further says that, on or about 26 January 1995, parcels of shares were gifted by the deceased to the Trust. Those parcels had previously been administered by the plaintiff on behalf of the deceased. A list of the gifted shares, a share holding record sheet and the annual trial balance and annual general ledger of the Trust from 7 November 1994 to 30 June 1995, being accounting records kept by Mr Sampson, the deceased's accountant, in relation to these shares and the Trust, have been produced in evidence. Mr Sampson is now deceased.
All of the parcels of shares set out in the list, with the exception of the Coca Cola Amatil shares, were transferred into the names of the three co‑trustees and dividend payments were made into the Trust bank account or by cheque made out to the co‑trustees.
On or about 20 May 1995, the first defendant was appointed trustee of the Trust pursuant to a deed of appointment of new trustee.
Ms Seward says the fifth defendant, Peter Maurice Seward, was the co‑trustee of the Trust when the shares were gifted and the director and secretary of the first defendant, which was responsible for the administration of the Trust share portfolio.
Ms Seward says she does not know why the Coca Cola Amatil shares were not registered in the names of the co‑trustees at the same time as the other shares were so registered. For example, a number of dividend statements and issuer holder statements show that shares in Amcor, BHP, Commonwealth Bank, North Ltd and Santos show registration in the names of the co‑trustees. Ms Seward is unable to provide any explanation why there are notations on these dividend statements appearing as follows:
"Eleanor Anne Seward A/C (Commonwealth Bank, North Ltd and Santos) and Riverwest P/L A/C (Amcor)."
The original share scrip for any of the parcels of shares and copies of transfer forms in respect of the transfer of those shares from the deceased to the Trust have not been found. It appears that on or about 3 May 1996, the fifth defendant removed books and records of the Trust from the offices of Mr Sampson. The first defendant brought legal proceedings against the fifth defendant in Western Australia and a warrant was issued to the fifth defendant requiring the return, amongst other things, of the Trust's books and records. This warrant has not been complied with.
The fifth defendant now resides in New York, USA, and despite further requests since 1996 by the first defendant to him for the return of all documents as required by the Court order, not all such documents have been produced, only a file in relation to the Malaga property, as referred to above.
Ms Seward says that, at all material times, dividends from the Coca Cola Amatil shares have been paid into the bank account of the Trust which is presently an account at the Commonwealth Bank in Claremont Western Australia. She also says that, since the filing of the Trust tax return for the financial year 1994‑1995, the Coca Cola Amatil shares have been treated as assets of the Trust and the income from the shares has been declared as income of the Trust.
Ms Seward says that, on 30 October 2001, she attended a meeting along with the second defendant and Mr Percival of the plaintiff at the offices of the plaintiff in Perth. She gave to Mr Percival documents relating to the shares and told him the first defendant was concerned the shares would be regarded by Coca Cola Amatil as belonging to the deceased.
By letter dated 9 November 2001, the first defendant wrote to the share registry of Coca Cola Amatil explaining its position and requesting the registered address be changed to the registered office of the first defendant.
In or about November 2001, Mr Percival indicated that the plaintiff had come to the view that the shares were owned as joint tenants by Michael and Peter Seward.
In August 2003, Mr Percival further indicated to Ms Seward that the plaintiff's view was that the registration of the shares indicated that the shares were held by the deceased on trust for herself, Peter Maurice Seward and Michael Giles Seward and could not be treated as part of the estate.
Ms Seward's position in response to the plaintiff's stated position was that the first defendant says the plaintiff cannot rely on the registration details because there is other evidence to show that the shares were beneficially owned by the Trust.
In support of its application, the first defendant also refers to the affidavit of Michael Giles Seward, sworn 15 September 2003. In that affidavit, the second defendant effectively confirms the substance of Ms Seward's affidavit. In particular, he says that, to the best of his knowledge, since January 1995 all Trust records and correspondence, including all those prepared and kept by Mr Sampson, as well as working portfolio spreadsheets prepared by the fifth defendant, reflected that a parcel of 4556 Coca Cola Amatil shares were beneficially owned by the Trust and the income therefrom treated as ordinary Trust income.
The second defendant says it was only in 2001 that he became aware that the shares were registered in the deceased's name and not in the name of the first defendant. He says he has no idea how this happened, but, having reviewed the registration details of other parcels of shares such as those referred to by Ms Seward in her affidavit, he believes it must have been due to the way the "off market transfer forms were filled out as there is some inconsistency in other registrations all of which are similarly beneficially owned by [the Trust]".
The second defendant says that he does not and never has believed that the Coca Cola Amatil shares were gifted to him and the fifth defendant as joint tenants or held on trust for him by the deceased. He says he never discussed any such arrangement with the deceased or anyone else and does not claim an entitlement to the shares in his own right.
I am satisfied on the balance of probabilities, on the basis of the evidence given by Ms Seward, the fourth defendant, and Mr Michael Seward, the second defendant that the 4556 Coca Cola Amatil shares registered in the name of the deceased were, at all material times, held by her immediately before the date of her death for the Trust and the Trust was at all material times the beneficial owner of the shares. A declaration to that effect should now be made.

Conclusion and orders

For the reasons set out above, I consider declarations, orders, advice or directions to the following effect should now made:
1.A declaration that the following clauses or parts of clauses of the Will of the deceased fail for want of certainty:
(a)cl 3.1(a)(i) to the extent that it provides "or 1‑1 acre (approx) block on Lot 366 Horsley Road DENMARK";
(b)cl 3.1(b)(ii) to the extent that it purports to devise "pine log house and also 1 acre of land approx 1 Block upon which it is located on the 17 acres of land at Lot 366 Horsley Road DENMARK";
(c)cl 3.1(c)(iii) to the extent that it purports to devise in the alternative "or 2 Blocks - 1 acre each on Lot 366 Horsley Road DENMARK 6333";
(d)cl 3.1(d)(i) to the extent that it purports to devise "or 1 Block - 1 acre (approx) on Lot 366 Horsley Road DENMARK 6333";
(e)cl 3.1(e)(i) to the extent that it purports to devise "or 1 Block - 1 acre (approx) on Lot 366 Horsley Road DENMARK";
(f)cl 3.1(f)(ii) to the extent that it purports to devise "or 1 Block - 1 acre (approx) on Lot 366 Horsley Road DENMARK 6333";
(g)cl 3.1(g)(i) to the extent that it purports to devise "or 1 Block - 1 acre (approx) on Lot 366 Horsley Road DENMARK 6333";
(h)cl 3.1(h)(i) to the extent that it purports to devise "or 1 Block - 1 acre (approx) on Lot 366 Horsley Road [Denmark] 6333";
(i)cl 3.1(i)(i) to the extent that it purports to devise "or 1 Block - 1 acre (approx) on Lot 366 Horsley Road [Denmark] 6333";
(j)cl 3.1(k)(i) to the extent that it purports to devise "or 2 Block - 1 acre each (approx) on Lot 366 Horsley Road DENMARK";
(k)cl 3.1(l)(i) to the extent that it purports to devise "1/2 share in 1 Block 1 acre (approx) on Lot 366 Horsley Road DENMARK 6333";
(l)cl 3.1(m)(i) to the extent that it purports to devise "1/2 share in 1 Block - 1 acre (approx) on Lot 366 Horsley Road DENMARK 6333".
2.A declaration that the plaintiff as executor and trustee of the Will of the deceased may proceed to administer the estate of the deceased by selling Lot 366 Horsley Road without first subdividing it.
3.A declaration that the plaintiff should administer the estate of the deceased on the basis that any indebtedness the second defendant may have had to the deceased in respect of a loan of $50,000 and interest was forgiven by her in her lifetime and there is no need for it to commence proceedings for recovery of the loan and any interest thereon from the second defendant.
4.A declaration that immediately before the date of death of the deceased strata Lots 3 and 4, 10 Stanford Way, Malaga, were held by the deceased in trust for The Eleanor Anne Seward Trust and there should now be an order requiring the transfer of those two strata lots by the plaintiff as executor and trustee of the estate of the deceased to that Trust.
5.A declaration that, on its proper construction, cl 3.1(j)(i) of the Will gifts to Josefin Gigi Ann Limburg (Seward) the house and land at 24 Rockford Road, Denmark, Western Australia, the contents of the house at 24 Rockford Road, Denmark as well as the specific items of property referred to in that clause. If the estate of the deceased actually comprises more than one bed, more than two couches and more than one chair, then the beneficiary Josefin is entitled to the beds and is entitled to select which two couches and which chair she wishes to receive, should she wish to exercise such a power of selection. If the beneficiary communicates to the plaintiff that she does not wish to exercise the power of selection, then such items of property will fall into the residuary estate.
6.A declaration that immediately before the date of death of the deceased 4556 Coca Cola Amatil shares registered in the name of the deceased were held by her in trust for the Eleanor Anne Seward Trust. There should be an order requiring the transfer of such shares by the plaintiff as executor and trustee of the estate of the deceased to that Trust.
I will hear from counsel for the parties as to the precise terms in which such declarations, orders, advice and directions and any consequential orders concerning sale or costs should now be made.