Re Kuzma
[2002] WASC 303
RE KUZMA; EX PARTE THE PUBLIC TRUSTEE AS EXECUTOR AND TRUSTEE OF THE ESTATE OF STANISLAV KUZMA [2002] WASC 303
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 303 | |
| Case No: | CIV:2249/2002 | 3 DECEMBER 2002 | |
| Coram: | MCKECHNIE J | 13/12/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Beneficiary takes absolute interest Misbehaviour clause void for uncertainty | ||
| A | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE AS EXECUTOR AND TRUSTEE OF THE ESTATE OF STANISLAV KUZMA |
Catchwords: | Wills and estates Construction Intention of testator Inconsistent paragraphs Reversion for misbehaviour Whether void for uncertainty |
Legislation: | Nil |
Case References: | Re Good (Deceased) [1960] VR 117 Australian Broadcasting Commission v Australasian Performing Rights Associated Ltd (1973) 129 CLR 99 Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404 Charter v Charter (1874) LR HL 364 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 Re Allsop (Deceased) [1968] 1 Ch 39 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Estate of STANISLAV KUZMA late of 4 Rason Parade, Bellevue in the State of Western Australia, Retired Person (Dec)
THE PUBLIC TRUSTEE AS EXECUTOR AND TRUSTEE OF THE ESTATE OF STANISLAV KUZMA
Applicant
Catchwords:
Wills and estates - Construction - Intention of testator - Inconsistent paragraphs - Reversion for misbehaviour - Whether void for uncertainty
Legislation:
Nil
(Page 2)
Result:
Beneficiary takes absolute interest
Misbehaviour clause void for uncertainty
Category: A
Representation:
Counsel:
Applicant : Mr M J B Bowyer
Solicitors:
Applicant : Public Trustee
Case(s) referred to in judgment(s):
Re Good (Deceased) [1960] VR 117
Case(s) also cited:
Australian Broadcasting Commission v Australasian Performing Rights Associated Ltd (1973) 129 CLR 99
Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404
Charter v Charter (1874) LR HL 364
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
Re Allsop (Deceased) [1968] 1 Ch 39
(Page 3)
1 MCKECHNIE J: Judges who construe wills to ascertain the intentions of the testator may one day in the hereafter have to answer to an angry testator whose wishes have been frustrated. I shall have to take that risk.
2 This case is an object lesson in the dangers of drafting one's own will. No doubt the testator being, as he says, of sound mind and in possession of his faculties, knew precisely what he intended. However, I am left with the words he wrote as the only echo of that intention. The echo is confusing.
3 On 25 October 2001 probate was granted to the last will and testament of Stanislav Kuzma. Issues have arisen about the construction of the will and the Public Trustee, as Executor and Trustee, has sought directions from this Court.
The Will
4 The will reads as follows:
"1. To my son PREDRAG DUJIC KUZMAN of last known address:
- Brest K broj 47
44000, SISAK, HRVATSKA (Croatia)
- I leave my interest in the property (house and all therein contained; sheds and all therein contained) known as 4 Rason Parade, Bellevue, Western Australia, 6056; made up of three (3) title allotments (1163 470; 1715 593; 1880 433) each with an approximate value of $50,000.
2. To my son PREDRAG DUJIC KUZMAN of last known address:
- Brest K broj 47
44000, SISAK, HRVATSKA (Croatia)
- I leave my shareholding interest in 5023 units held with WA Pine Unit Trust, Ref: AO895.
3. This bequest is conditional upon the property detailed in Item 1 above not being sold by my son. It is my distinct wish that the property and the bibles and such be kept in the family for the expansion and security of the children of my son. It is my wish that the 3 allotments of property be developed by way of two units and/or two houses. It
(Page 4)
- is my wish that my son seek an investment partner to share the costs of this by way of equal value for value. It is my desire that when the subdivision be done that one metre of land to the east side of the 'main' shed be left to provide an access way to it from the street. This may also be achieved by providing access from the southern part of the shed through the main block to the street.
- 4. Upon my son's death the property goes in equal shares to his children. If my son is not survived by children, then all the property and items therein contained in Item 1 of this my Last Will & Testament will be transferred to my grandson DANIEL KORENIC of last known address DRSKA 59a, 68000 NOVO MESTO, SLOVENIA
5. I allocate monies held at the Commonwealth Bank of Australia, Salisbury Branch, South Australia to be used to pay all my expenses at the time of my death, my funeral, any repairs required to the property, and travelling expenses for my son Predrag Kuzman to come to Australia. The residue of funds to be then paid to my son Predrag Kuzman.
6. As my son Predrag Kuzman has a known behavioural problem and a history of excess drinking, I make this condition that if he misbehaves irresponsibly or indulges in criminal activity that the property detailed in Item 1 of this my Last Will & Testament revert to my grandson DANIEL KORENIC of last known address DRSKA 59a, 68000 NOVO MESTO, SLOVENIA …"
The questions
5 The Public Trustee seeks the directions of this Court on the following two questions:
(1) whether the devise in par 1 of the will is of a life interest or an absolute interest, and
(2) whether the conditions in par 6 of the will are void for uncertainty.
6 The Public Trustee has made reasonable efforts to trace Daniel Korenic the grandson. It has been unable to do so, although it has made contact with Predrag Kuzman, who presently lives in Petringja, Croatia.
(Page 5)
- Predrag does not know Daniel's whereabouts. Daniel would be a proper party to the proceedings but as he cannot be found it is appropriate that the questions be answered.
Question 1
7 It is necessary to discern the intentions of the testator from the language he used. The testator intended to transfer to Predrag absolutely his interest in the house, sheds and contents at 4 Rason Parade, Bellevue. He nevertheless attempted to fetter or control the absolute gift by expressing his wishes as to the continuation of the property within the family.
8 In par 2 the words "this bequest is conditional" do not denote some form of contractual obligation which must be fulfilled before the property can be transferred. Rather, read within par 3, it is consistent with a strong desire (but no more) that the property be kept in the family. Clearly, the testator was aware of the possibility that Predrag may need to seek an investment partner and it must have been within his contemplation that the partner would then take an interest in the land in some form, because the land was to be developed by way of two units or houses with "equal value for value". This is the key to construing the testator's intentions. He allowed for the possibility that a portion of the land given to Predrag may have to be sold by him. This possibility is inconsistent with a devise of a life interest.
9 Paragraph 4 of the will expresses a strong desire which is consistent with his distinct wish that the property be kept within the family. By itself, par 4 would suggest that par 1 conferred a life interest. Construing the testator's intentions as expressed in the whole will, notwithstanding par 4, the testator's intention was for Predrag to take the estate absolutely.
10 A life interest with remainder to the children or grandson is essentially inconsistent with a corresponding desire for development of the property by bringing in a partner. Therefore I interpret the testator's intention that he wished Predrag to own the property even though he left instructions expressive of his desire about several matters.
Answer to question 1:
11 An absolute interest.
(Page 6)
Question 2
12 The expression "misbehaves" is impossibly wide and can bear no realistic meaning. It is inconsistent with par 1 (whether par 1 devises the estate absolutely or as a life interest) because there is a possibility that reversion for misbehaviour or criminal activity would occur during Predrag's life. The clause is also contrary to the first sentence of par 4. In addition to being uncertain, where there is an absolute gift of real or personal property and a condition is attached which is inconsistent with or repugnant to the gift the condition is wholly void and the donee takes the gift free of the condition: Re Good (Deceased) [1960] VR 117 at 121 per O'Bryan J.
13 Paragraph 6 is inconsistent with an absolute devise and is void for uncertainty.
Answer to question 2:
14 Yes.