Re Estate of Huso Sahinovic

[2009] WASC 167

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE Estate of HUSO SAHINOVIC; EX PARTE OMER SAHINOVIC [2009] WASC 167

CORAM:   REGISTRAR C BOYLE

HEARD:   ON THE PAPERS

DELIVERED          :   29 JUNE 2005

PUBLISHED           :  12 JUNE 2009

FILE NO/S:   P 1380 of 2005

MATTER                :In the Estate of HUSO SAHINOVIC

EX PARTE

OMER SAHINOVIC
Applicant

Catchwords:

Probate - Appointment of Executor - Void for uncertainty - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 104
Non-Contentious Probate Rules (WA), r 4

Result:

Motion refused

Category:    B

Representation:

Counsel:

Applicant:     Mr A C Pillay

Solicitors:

Applicant:     AC Pillay

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

Cooper [1899] P 193

De Rosaz (1877) 2 PD 66

Hubbuck [1905] P 129

In re Hawksley's Settlement; Black v Tidy [1934] Ch 384

In the Estate of Fawcett [1941] P 85

In the Estate of Last, deceased [1958] P 137

The Estate of Kavanagh (deceased) (1977) 16 SASR 342

1. REGISTRAR C BOYLE:  The deceased died on an unknown date.  The death certificate says that he was 'found on 20 December 2004'.  However, a letter from the Coroner's Court to the applicant's solicitors that is annexure 'B' to the applicant's affidavit of 16 May says that 'the deceased was last seen alive on approximately 18 December 2004 before being found deceased on 28 December 2004'.

2. The confusion and uncertainty in this matter are not limited to the question of the date of death of the deceased.  The present application is for probate of a will of the deceased dated 7 April 2000, and it is necessary to set out the history of the will before dealing with the application.

The will

1. The practitioner who prepared the will has sworn two affidavits detailing the circumstances.  The first is that sworn 22 April 2005.  The practitioner deposes:

   2.In April 2000 I was approached by one Mr Huso Sahinovic, an old client of mine, to prepare for him a will.  Mr Sahinovic attended at my offices and gave me some instructions.  He also indicated to me that he wished to leave his property to his family in Bosnia and wished to appoint a member of his family as Executor of his Will.

   3.Mr Sahinovic did not have details regarding his family and indicated that he would drop the details off to my office at some later time.

   4.Some days later Mr Sahinovic attended at my offices and left a note with my then secretary.  Exhibited hereto and marked with the letter 'A' is the note in question.

   5.Mr Sahinovic failed to explain that Omer and Ahmet were two different people.  From the note I assumed that Omer Ahmet Sahinovic was one person.

   6.On the 7th of April 2000 Mr Sahinovic attended at my offices and executed his Will after having read the same which was witnessed by my then secretary and me this deponent.  Mr Sahinovic made no comment regarding the name 'OMER AHMET SAHINOVIC'.

2. Annexure 'A' is a page torn from a small spiral-bound notebook.  A copy is annexed to these reasons.  It does not appear to be the work of a person fluent in written English.

3. The practitioner prepared a will that, apart from revoking previous wills, has one operative clause, which provides:

   I GIVE DEVISE AND BEQUEATH all my property of whatsoever nature and wheresoever situate and whether real or personal unto my brother OMER AHMET SAHINOVIC of Posta 56 Buzim Bos.Krupa I Hecegovina absolutely AND I APPOINT the said OMER AHMET SAHINOVIC to be the Executor and Trustee of this my Will.

4. The evidence of the practitioner is thus that the deceased made an appointment to see him to give instructions to make a will but, somewhat oddly it may be thought, had not turned his mind to who should be executor or beneficiary.  One wonders what 'instructions' the practitioner did take.  The deceased later dropped off at the practitioner's office the note referred to above and the practitioner, without applying any analysis, simply incorporated the name he was given in a will for execution.  The practitioner assumed that (a) the note left for him identified one person, and (b) the testator wished that person to be both executor and universal beneficiary.  

5. The practitioner goes on to depose in his supplementary affidavit of 17 May that:

   6.On the 7th of April 2000 the date that the Will was executed the deceased read the Will and signed it in my presence and in the presence of my then secretary Cheryl Ann Dickinson. 

   7.As I normally do I asked the deceased if he had read the Will, to which he answered 'Yes'.  As is my normal practice I then asked the deceased if he understood the terms of the Will, to which he answered 'Yes'.  As is my normal practice I then asked if there were any changes that he wished to make to the Will, to which he answered 'No'. 

   8.To the best of my recollection the deceased did not question the name 'Omer Ahmet Sahinovic' or at any stage indicate that a typographical error had been made or that Omer Sahinovic and Ahmet Sahinovic were two different people. 

6. As it now appears, there is no such person as Omer Ahmet Sahinovic.  The deceased had a brother named Ahmet Sahinovic, and a nephew named Omer Sahinovic.  Neither has a middle name.  The will thus contains a latent ambiguity.

The law as to construction

1. Once there is shown to be a latent ambiguity in the identification of the executor, extrinsic evidence is admissible to show who the testator intended to appoint: see, as examples of a rule long established, De Rosaz (1877) 2 PD 66; Hubbuck [1905] P 129; and Cooper [1899] P 193.

2. In this case, the will identifies both the executor (or executors) and the global beneficiary (or beneficiaries) as 'Omer Ahmet Sahinovic'.  It might therefore be thought that, in determining who is entitled to a grant, the present proceedings will be determinative of who is to take under the will, given that the names are identical.  That is not correct. 

3. This application is made to the Court as a court of probate, not a court of construction. It is the functions of the court of probate that are delegated to the Registrar by r 4 of the Non-Contentious Probate Rules 1967 (WA).

4. In The Estate of Kavanagh (deceased) (1977) 16 SASR 342, 345 ‑ 346, Jacobs J observed:

   Notwithstanding what is said in some of the older cases, the modern view is that the court exercising probate jurisdiction ought not to act as a court of construction:  see In the Estate of Last, deceased, per Karminski J and In the Estate of Fawcett, per Layton J, in both of which cases reference is made to In the Estate of Heys where Sir Samuel Evans P said:

   'No doubt, theoretically, this Court, as a Court of one of the divisions of the High Court of Justice, under the Judicature Act can and ought to - but only where it can conveniently and properly do so - decide all matters in controversy in any action between the parties to the action.  But this Court is in practice a Court of Probate and not of construction.  It should, generally speaking, only construe testamentary documents in so far as it is necessary to decide what testamentary documents should be admitted to probate.'

   With great respect I would venture to add to that statement - 'and to whom probate should go'.  (footnotes omitted)

5. In the Estate of Last, deceased [1958] P 137, where Karminski J noted at 140 that 'the modern view as to the function of the Probate Court is that the court should interfere in questions of construction as little as possible'. In In the Estate of Fawcett [1941] P 85, Layton J thought it his duty, not merely his right, to determine a question of construction that, like the present one, linked entitlement to apply and to take, but that was in the particular circumstances of a small estate.

6. A court of probate must determine the construction of a document for the purpose of determining whether it is to be admitted to probate, and to whom any grant should be made. 

7. Any determination a court of probate may make for its purposes is not binding on a court of construction:  In re Hawksley's Settlement; Black v Tidy [1934] Ch 384.

8. The matter has been presented to the court as one in which there is ambiguity as to which of two persons is appointed as executor.  That would put it in the category last mentioned by Jacobs J in Kavanagh.  If, however, the proper conclusion is that there is no valid appointment of an executor, nobody is entitled to probate and this application must be refused.  Any subsequent application would have to be for letters of administration with the will (assuming its validity) annexed.

The application

1. The motion as originally lodged sought that probate of the will be granted to 'Omer Sahinovic of Posta 56 Buzim Bos.Krupa Bosna I Hecegovina'.  That is, it sought a grant to Omer the nephew of the deceased, not to Ahmet the brother.  As expressed, the motion does not seek a grant for the use and benefit of any other person.

2. The applicant's affidavit in support draws attention to the fact that there is no person with the name Omer Ahmet Sahinovic and explains that the applicant is Omer the nephew and Ahmet is the uncle of the applicant and brother of the deceased.

3. The affidavit goes on to annex a power of attorney granted by Ahmet to Omer. For reasons that are not clear, this has been prepared in the form of an enduring power under s 104 of the Guardianship and Administration Act 1990 (WA), but that is a minor curiosity. The more significant point is that the reason for the power, and its relationship to the application, are not explicitly addressed.

4. Paragraph 1 of the affidavit opens:

   I am seeking to obtain probate of the will of HUSO SAHINOVIC, deceased …

   On the whole the motion and affidavit in support rather suggest that Omer Sahinovic asserts that he is the person named as executor and seeks in his own right a grant of probate.

5. This and other uncertainties in the documents prompted the issue of a number of requisitions that sought clarification of what was contended as to who was the executor.

6. The applicant swore a further affidavit on 16 May.  This includes the following:

   9.The deceased had the following siblings:

   Hasan Sahinovic (brother)         Aged 67
   Seida Mujagic (sister)              Aged 64 (approximately)
   Ahmet Sahinovic (brother)        Aged 56

   Senija Hadzick (sister)             Aged 53 (approximately)

   10.Both Seida and Senija are married and it is the convention in Bosnia that upon marriage a dowry is paid and they are no longer considered in property settlements.  Hasan, my father, was older than the deceased and during telephone conversations the deceased informed me that as his brother Hasan Sahinovic might predecease him he would be leaving his (Hasan's) share to me his nephew. 

   The applicant seems to be asserting that it was he, and not his uncle Ahmet, who was the deceased's intended executor and sole beneficiary. 

7. That is not, however, the way the matter is now put before the Court.  The practitioner has filed both a further supplementary affidavit of the applicant and an amended motion.  The applicant now seeks a grant to Omer for the use and benefit of Ahmet Sahinovic as the executor appointed under the will.

8. The last sentence of par 10 of the applicant's second affidavit, quoted above, would be inadmissible as evidence to aid in construction of the will to determine who the testator intended to benefit.  However, it seems to me to be admissible before a court of probate in so far as it sheds light on who the testator intended to appoint as his executor.  What it suggests is that the deceased may have intended that his beneficiaries be Ahmet his brother and Omer his nephew.  If executorship were to coincide with benefit, that would suggest that the deceased may have intended to appoint both Omer and Ahmet as executors.  That is a possibility that the applicant does not seem to have considered, but it is consistent with the note the deceased left with the practitioner. 

9. The evidence supports another conclusion besides the two the applicant has successively (and inconsistently) put, and the third that I have just suggested.

Conclusions

1. The will identifies the executor by a name that does not unambiguously match any one person the evidence shows as someone the deceased was likely to appoint.  The possibilities would seem to be these:

   1.The deceased intended to appoint Omer.  That is what the application as first lodged seemed to contend.

   2.The deceased intended to appoint Ahmet.  That is the position the applicant now takes. 

   3.The deceased intended to appoint Omer and Ahmet jointly.  That is a possibility that is not canvassed by the applicant, but seems to be consistent with the note.  It is also consistent with the applicant's evidence of the telephone conversation with the deceased.

   4.The deceased had never turned his mind to the question of who was to be executor.

   There is in my view no basis on which the court can be reasonably satisfied which of these is correct.  The choice of any one is textual and contextual guesswork. 

2. The only textual aid to construction is that the deceased refers to 'my brother Omer Ahmet Sahinovic' and the appointment of executor is of 'the said Omer Ahmet Sahinovic'.  That, however, is countered by the contextual difficulty that there is no such person, nor even did the deceased have brothers respectively named Omer and Ahmet.  Both of the first two possibilities seem to be confounded by these problems.  Neither conclusion is one a court could reach with reasonable satisfaction.

3. The third possibility is just consistent with the language used, although the evidence of deceased's wishes as to who should benefit (which, I repeat, would be inadmissible on construction of the will for that point) bears little if at all on the appointment of an executor.  It may be that when the deceased dropped off the note at the practitioner's office he was trying to convey instructions that he wished to benefit both his brother and his nephew: that would actually be consistent with what the applicant says at par 10 of his supplementary affidavit of 16 May, as quoted above.  But that, too, would be guesswork. 

4. This conclusion is not one the applicant urges and it is also one that could not be reached with reasonable satisfaction.

5. That leaves the fourth explanation. 

6. The practitioner's first affidavit deposes that the deceased instructed him that he 'wished to appoint a member of his family as Executor of his Will'.  With great reluctance, I believe that I am compelled to observe that the subsequent history of the matter leaves me unpersuaded that the deceased understood the necessity of appointing an executor.  Certainly, the steps the practitioner took on the occasion of the execution of the will to satisfy himself that the deceased understood and approved of its contents were inadequate. 

7. Where the deceased had supplied critical information by a note dropped off at the practitioner's office, the practitioner should have satisfied himself that he had correctly understood and implemented the deceased's intentions.  The practitioner guessed that Omer Ahmet Sahinovic was one person, whom the deceased intended to be both universal beneficiary and executor.  There are obvious and simple questions any competent probate practitioner would have asked in such circumstances and that this practitioner failed to ask.  However, I do not need to make any positive finding that the fourth possibility is correct:  I need only say that the evidence that points in this direction confirms the fate of the application.

8. The text is ambiguous.  The extrinsic evidence does not resolve that ambiguity.  I cannot be satisfied that the will makes any appointment of an executor, and certainly not that urged by the applicant.  The application is refused.