Shaune v Bourgouin
[2012] VSC 619
•12 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2012 01655
IN THE MATTER of the Estate of MARIA JAROSZ GORKA, Deceased
and
IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the estate
BETWEEN
| DANIELLE SHAUNE (as executrix of the will and trustee of the estate of the Deceased) | Plaintiff |
| v | |
| CHRISTINE BOURGOUIN | Defendant |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2012 | |
DATE OF ORDER: | 12 December 2012 | |
DATE OF REASONS: | 14 December 2012 | |
CASE MAY BE CITED AS: | Shaune v Bourgouin | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 619 | |
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WILLS AND ESTATES – Construction of a clause of the deceased’s will – Clause contains the words ‘I give devise and bequeath [to the defendant] for her own use and benefit absolutely’ in respect of a residential property – Whether the clause gave the defendant an absolute interest in the property – Effect of superadded directions in the clause purporting to qualify the terms of the gift – Use of extrinsic evidence – Wills Act 1958, s 22A – Wills Act 1997, s 42.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Bolkas | Warwick McLachlan |
| For the Defendant | Mr A Verspaandonk | Dick & Williams |
HIS HONOUR:
Introduction and summary
This is an application by the plaintiff pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the estate of Maria Jarosz Gorka (‘Deceased’).
The Deceased made her last will on 22 June 1993 (‘Will’) and she died on 24 April 2010. The Deceased left an estate worth $163,823.77 and liabilities of $3,587.70. The estate comprised a residential property at 23A Murray Valley Highway, Bandiana (erroneously described in the Will as number 23) (‘Property’), savings of $2,823.77 and personal chattels worth $1,000 (‘Chattels’).
The only assets of the Deceased’s estate that presently remain are the Property, valued at approximately $150,000, and the Chattels, valued at approximately $500. The Deceased’s estate presently has unpaid liabilities of approximately $75,402.63. There are no funds available to the estate to pay its outstanding liabilities, except for the funds that will become available upon the sale of the Property. The Will contains no direction regarding the payment of estate debts and liabilities, except for the direction in cl 3 of the Will to the effect that the Deceased’s bank accounts are to be applied towards the payment of estate debts and liabilities.
The plaintiff and the defendant are two of the Deceased’s children. Pursuant to cl 1 of the Will, the plaintiff is the executrix of the Will and the trustee of the Deceased’s estate. Probate was granted by this Court to the plaintiff on 16 August 2010.
In addition to cl 1, the Will contains the following clauses:
2.I NOTE that I have made adequate provision for my son, RICHARD JOSEPH GORKA and for my daughter, the said DANIELLE SHAUNE and I CONFIRM that the said RICHARD JOSEPH GORKA is the sole owner of 31 Murray Valley Highway, Kallara Estate, Bandiana and that in the event that I am registered as proprietor solely or jointly of the said land at the date of my death, the said RICHARD JOSEPH GORKA is entitled to be registered as proprietor of the said land and in the event that the said RICHARD JOSEPH GORKA has predeceased me his son, JEAN-PAUL GORKA shall be entitled to be registered proprietor of the said land and my Executors shall HOLD the said land upon trust for the said JEAN-PAUL GORKA until such time as the said JEAN-PAUL GORKA attains the age of eighteen (18) years.
3.I DIRECT that any bank accounts held by me at the date of my death or in which my daughter DANIELLE SHAUNE and I have a joint interest, shall be applied in payment of my just debts funeral and testamentary expenses and duties (if any) payable in respect of my estate and the balance of such account shall be paid to or retained by my daughter DANIELLE SHAUNE for her own use and benefit absolutely.
4.I GIVE AND BEQUEATH any motor vehicle owned by me at the date of my death to my daughter CHRISTINE BOURGOUIN for her own use and benefit absolutely PROVIDED THAT should the said CHRISTINE BOURGOUIN predecease me such motor vehicle shall fall into and become part of the rest and residue of my estate.
5.I GIVE DEVISE AND BEQUEATH my house and land situate at 23 Murray Valley Highway, Kallara Estate, Bandiana together with all furniture and household effects contained therein to my Trustee UPON TRUST for my daughter CHRISTINE BOURGOUIN for her own use and benefit absolutely. Charged with the payment to my daughter HELENE GAILLARD (should the said HELENE GAILARD be then alive) of one half of the net proceeds of any sale which the said CHRISTINE BOURGOUIN may effect of the property PROVIDED FURTHER THAT my said daughter CHRISTINE BOURGOUIN shall be entitled to reside in the said house during her lifetime and should the said CHRISTINE BOURGOUIN predecease me or die without having disposed of the said house and land, such house and land shall pass to such of the children of the said CHRISTINE BOURGOUIN as shall survive her and me and then attain the age of eighteen (18) years and if more than one tenants in common in equal shares.
I DIRECT that my daughter, the said CHRISTINE BOURGOUIN will allow HELEN GAILLARD and her family to spend their annual vacations at the house with Christine and her family if Helen wishes to do so.
6.I GIVE DEVISE AND BEQUEATH the total residue of my estate of whatever nature and whatever situate unto my Trustees UPON TRUST for such of my children as shall survive me and if more than one as tenants in common in equal shares.
By originating motion filed on 22 March 2012, the plaintiff sought answers to the following questions:
(a)Whether on the true construction of the will of the deceased and in the events that have happened does the disposition in clause 5 of the will of the [Property] and the household effects and furniture therein … constitute an absolute gift to [the defendant]?
(b)If the answer to question (a) is no, what is the nature and extent of the interest in the [P]roperty of [the defendant] and other persons referred to in clause 5 of the will?
(c)Is the Plaintiff as the executrix of the deceased’s will able to conduct the sale of the [P]roperty in order to apply the net proceeds of sale towards the payment of estate liabilities as identified by her?
(d)If the answer to question (c) is no, how is the Plaintiff to pay the estate liabilities and complete the administration of the estate?
(e)If the answer to question (c) is yes, is the Plaintiff entitled to possession and control of the certificate of title to the [P]roperty?
Pursuant to an order made by Habersberger J on 18 May 2012, all other beneficiaries of the Deceased’s estate that may have an interest in the construction of cl 5 of the Will were served with notice of the proceeding, however none have chosen to be added as a defendant.
The defendant conceded that the plaintiff, as executrix of the Will, is entitled to recoupment of expenses reasonably and properly incurred in the administration of the Deceased’s estate, and that she could sell the Property for that purpose. The defendant also acknowledged that the plaintiff is entitled to custody of the certificate of title to the Property.
Therefore, the only issue that remains to be determined is the construction of cl 5 of the Will, in particular, whether that clause gives the defendant an absolute interest in the Property, or a lesser interest.
At the hearing on 12 December 2012, I informed the parties that I proposed to answer the questions set out in the originating motion as follows:
(a) Yes.
(b) Not necessary answer.
(c) Yes.
(d) Not necessary answer.
(e) Yes.
I then briefly adjourned the hearing to give the parties an opportunity to discuss the defendant’s proposal that she be given time to raise funds to meet the expenses of the Deceased’s estate, so that the Property would not need to be sold for that purpose. After the adjournment, the parties submitted consent orders which I made. I indicated to the parties that I would, at a later time, deliver brief reasons for the answers set out at [10] above. These are my reasons.
Facts
The matters set out at [13] to [30] below were not in dispute.
The Deceased and her husband Aleksander Gorka (‘Aleksander’) had six children: Stanislaw Gorka (‘Stanislaw’), the defendant, Richard Joseph Gorka (‘Richard’), the plaintiff, Leszek Gorka (‘Leszek’) and Halina (also known as Helen and Helene) Gaillard (‘Halina’). Leszek died at the age of three.
The Deceased and her family, other than Stanislaw, arrived in Australia from Europe in the 1960s. Stanislaw remained in Europe and continues to live there. He is 65 years of age.
In May 1967, the Deceased and Aleksander purchased a house and five acres of land at 23 Murray Valley Highway, Bandiana. Some of this land was subdivided and in the 1970s, the Deceased and Aleksander built a new house on the Property at 23A Murray Valley Highway and they moved into that house. The defendant says that the Deceased and Aleksander told her that the Property would be hers and that she was expected to assist with the building, which she did. The plaintiff says that she also was told by the Deceased and Aleksander that the Property would be hers and that she was expected to assist with the building, which she did.
The original house at 23 Murray Valley Highway was sold to Halina and was later acquired by Richard, before reverting to Aleksander. Around this time, the defendant and her family moved away from the area in which her parents lived.
The Deceased and Aleksander also owned land at 1A Mullins Road, Killara (‘Mullins Road Property’). According to the defendant, in the early 1980s, the Deceased and Aleksander were ‘pressuring’ the defendant to construct a house on the Mullins Road Property, but she did not do so. The Deceased and Aleksander subdivided that property, with the intention that the defendant and her husband would live there, but they never did. The defendant separated from her husband and moved to Queensland.
In the mid-1980s, while the defendant was living in Queensland, the Deceased and Aleksander gave to the plaintiff the Mullins Road Property on the basis that the plaintiff would pay the cost of subdivision. The plaintiff did so and she and her husband built a house on the subdivided block, in which they commenced living in 1988. The Deceased told the defendant that she had done this because the defendant was living in Queensland. Soon afterwards, the defendant moved to South Australia in an attempt to reconcile with her husband.
In 1988, the Deceased and Aleksander divorced and divided their property. The Deceased retained the Property and Aleksander retained the house at 23 Murray Valley Highway.
The defendant says that in or about 1991, the Deceased again promised her the Property and told the defendant that she would have to help maintain it. The Deceased told the defendant, ‘this house was built for you’.
The Deceased made her Will on 22 June 1993. The defendant says that, at that time, the Deceased promised the defendant the Property in front of the plaintiff and Aleksander. The plaintiff says that she has no recollection of any such promise and no recollection of being present when the Will was made.
Halina died on 4 March 1994
The defendant says that in 1996, the Deceased told her where the Will and the title to the Property were stored and explained where the plaintiff’s water pipes and electricity crossed the Property. The plaintiff says that the Deceased did not tell her that this had occurred.
According to the defendant, on one occasion, Aleksander told her that the Property was hers; and that the Deceased told her that, as the defendant had never asked for anything, the Deceased was leaving the Property to her, which was why the defendant had to clean it up and look after it. The defendant says that Aleksander and his second wife, Elizabeth Steglinkski (‘Elizabeth’), were present when this conversation occurred. Elizabeth says that she has no recollection of this conversation.
In 2007, the defendant began caring for the Deceased.
The defendant says that the Deceased told her repeatedly that the Property was hers and that the Deceased did not want the defendant to sell it. The Deceased also said to the defendant, ‘I will not change what I say, the house belongs to you but I do not want you to sell it because it means a lot to me after all my hard work’.
The conversations relied upon by the defendant occurred in Polish.
The Deceased also made comments at an unknown time to Elizabeth that she wanted the Property to be used as a ‘family house’ for the family and the grandchildren ‘to meet each other and have a good time’. The Deceased said that she wanted the defendant ‘to have a roof over her head and stay in the house’, but she did not want the defendant to be able to sell the Property, because it would cease to be a family home.
The plaintiff says that the Deceased wanted the family to be able to use the Property, and she wanted Halina and the children to be able to visit when they wished. The Deceased spoke of the defendant not having a house and said that the defendant had told the Deceased that she would come to live in Wodonga if she had a house there. The plaintiff says that the Deceased said words to the effect that the defendant could live in the Property as long as she wanted to and that Halina could visit the Property, particularly mentioning holidays. The plaintiff says that the Deceased said that she did not want the defendant to have the Property absolutely, because if the defendant or Halina had the Property, they would sell it. The Deceased mentioned a desire to benefit the children of Halina and the defendant.
At the time of the Deceased’s death on 24 April 2010, she was survived by the plaintiff, the defendant, Stanislaw and Richard.
Relevant legal principles
The parties were in agreement about the principles to be applied in the construction of cl 5 of the Will.
The starting point is s 42 of the Wills Act 1997,[1] which provides:
[1]Section 42 of the Wills Act 1997, by virtue of s 52(4) of that Act, applies to wills executed prior to the commencement of s 42 where the testator dies on or after that commencement.
42What is the effect of a disposition of real property without words of limitation?
(1)A disposition of real property to a person without words of limitation is to be construed as passing the whole estate or interest of the testator in that property to that person.
(2)Subsection (1) does not apply if a contrary intention appears (whether in the will or elsewhere).
The approach to be adopted by this Court in ascertaining the meaning of cl 5 was stated by Fullagar J in ANZ Executors & Trustee Co Ltd v McNab[2] as follows:
The search for testamentary intention must be a search for intention disclosed by the words used, and in this search words must prima facie be given their ordinary meanings and, if the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must prima facie be given. Nevertheless, the intention is to be gathered from a study of the will as a whole, and in the light of any relevant and admissible evidence of surrounding circumstances.[3]
[2][1999] 3 VR 666 (‘McNab’).
[3]McNab [1999] 3 VR 666, 667 [5].
In Perrin v Morgan,[4] Viscount Simon LC described the court’s role in the interpretation of a provision of a will as follows:
[t]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the ‘expressed intentions’ of the testator.[5]
[4][1943] AC 399 (‘Perrin’).
[5]Perrin [1943] AC 399, 406.
The following observation by Isaacs J in Fell v Fell[6] is also relevant to the construction of cl 5 of the Will:
The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.[7]
[6](1922) 31 CLR 268 (‘Fell’).
[7]Fell (1922) 31 CLR 268, 273-4 (citations omitted; emphasis original).
Where a testator has made an absolute gift of property followed by words which are consistent with a lesser interest having been given in the property, unless it is intended that the subsequent or superadded words are to cut down the absolute interest given, then the superadded words will be treated as uncertain or repugnant and will not be enforced.[8]
[8]In Re Ferguson [1957] VR 635, 636, 639-40 (‘Ferguson’); Ritchie v Magree (1964) 114 CLR 173, 176, 182-3 (‘Ritchie’); Re Goode [1960] VR 117, 121.
Whether or not the disposition in cl 5 contains words of limitation, and whether a contrary intention appears in the Will or elsewhere, are matters of construction. Section 22A of the Wills Act 1958[9] permits extrinsic evidence to be adduced where a will is uncertain or ambiguous. That section relevantly provided:
[9]Section 22A was inserted into the Wills Act 1958 by s 3(b) of the Wills Act 1981 and it came into operation on 19 May 1981. Although the Wills Act 1958 has been repealed by the Wills Act 1997, s 36 of the latter Act only applies to wills that were made on or after 20 July 1998 (the commencement date of s 36). By virtue of s 52(1) and (2) of the Wills Act 1997, s 22A of the Wills Act 1958 continues to apply to the construction of wills made before the commencement of s 36 of the Wills Act 1997, provided that the testator died after 19 May 1981. As the Deceased made her Will on 22 June 1993 and died on 24 April 2010, s 22A of the Wills Act 1958 applies in this case.
22A Provisions as to the construction of wills
(1)In the construction of a will acts, facts and circumstances touching intention of the testator shall be considered and evidence of such acts, facts and circumstances shall be admitted accordingly but evidence of a statement by the testator declaring the intention to be effected or which had been effected by the will or any part thereof shall not be received in proof of the intention declared unless the statement would apart from this section be received in proof of the intention declared.
In Morgan v Moore,[10] Warren J (as her Honour then was) discussed the effect of s 22A of the Wills Act 1958 as follows:
… the effect of s 22A is that in all cases with one exception the court may receive evidence of the circumstances of a testator to assist in the interpretation of the will. As a result of s 22A the examination of the circumstances of the testator may disclose an ambiguity that is not otherwise apparent on the face of the will. Under s 22A it is then open to the court to attempt to resolve such ambiguity by reference to extrinsic evidence. The only exception is that direct evidence of the testator's dispositive intention remains inadmissible except insofar as it is presently admissible under the common law.[11]
[10][2000] VSC 94 (23 March 2000) (‘Morgan’).
[11]Morgan [2000] VSC 94 (23 March 2000) [32].
Parties’ submissions
The defendant contended that, upon a proper construction of cl 5, she is entitled to an absolute interest in fee simple in the Property. She relied on the decision of this Court in In Re Goode[12] for the proposition that the formulation ‘for her own use and benefit absolutely’ in cl 5 is commonly and plainly understood as conferring a fee simple interest. The defendant also noted that precisely the same words are used by the Deceased to confer absolute gifts in cll 3 and 4 of the Will.
[12][1960] VR 117, 121.
According to the defendant, the Deceased clearly contemplated that the defendant ‘may’ sell the Property, as evinced by the charge that she imposed in the event that any such sale occurred. This unfettered right of sale, so it was submitted, is a clear indicator of the conferral of a fee simple interest, notwithstanding that a restriction was placed upon the disposal of the proceeds of any such sale.
Furthermore, the defendant contended that the words ‘any sale which the said CHRISTINE BOURGOIN may effect of the property’ in cl 5 demonstrates that the sale was expressly contemplated to be conducted by the defendant, and thus indicates that the Property was expected to have been absolutely alienated in the defendant’s favour at the time of any such sale. Given the strength and clarity of the first sentence of cl 5, so it was said, there would have to be clear, compelling and unambiguous language in the remainder of the clause to reinterpret the first sentence as conferring merely a limited interest in the Property to the defendant. The defendant contended that none of the subsequent sentences in cl 5 were capable of effecting any derogation from the plain meaning of the first sentence.
According to the defendant, the gift to the defendant’s children in cl 5 is in the nature of a ‘default clause’, at least in relation to the defendant predeceasing the Deceased and the defendant dying ‘without having disposed of’ the Property. The defendant submitted that such wording is an attempt at an extra disposition, rather than a limitation upon what has previously been given to the defendant.
The defendant contended that, when cl 5 is read as a whole and in the light of the repeated use of the words ‘own use and benefit absolutely’ throughout the Will, the most obvious explanation for the purported gift to the defendant’s children, if the defendant had not sold the Property at her death, and the direction of the Deceased to permit Halina and her family to use the Property for holidays, is that these are superadded gifts. Therefore, so it was said, they could not cut down the fee simple interest conferred upon the defendant in the first sentence of cl 5 and reinforced by the defendant’s power to sell the Property in which she was otherwise expected to reside.
The defendant sought to draw an analogy between the present case and the factual scenario in Ritchie v Magree.[13] In that case, the relevant gift in the will read as follows:
The remainder of my real and personal possessions is to become the property of my wife …I also direct that my wife … is at liberty to dispose of any portion of my estate if she thinks it advisable with the exception of course [a property which had previously been devised to the wife for life]. I also direct that upon the death of my wife … all of that portion of my possessions remaining is to become the property of my daughter …
[13](1964) 114 CLR 173.
A majority of the High Court (Dixon CJ and Kitto J, McTiernan J dissenting) decided that the above clause conferred an absolute gift in fee simple upon the testator’s wife. Dixon CJ held that the case fell to be decided upon the ‘venerable but simple rule that “where a legacy is given absolutely, and a gift over is superadded in the event of the legatee dying without having disposed of his legacy, the gift over is void, and the legacy is absolute”’.[14]
[14]Ritchie (1964) 114 CLR 173, 176.
Kitto J concluded that:
… this is a case of the kind not infrequently found in which a testator exhibits concurrently the intention of giving property to a person to deal with as his own and an intention of governing nonetheless the ultimate destination of so much of that property as the donee retains at his death … The only question for the Court to consider is whether in truth the intention which prima facie appears from the initial words of the gift is the intention of the will as a whole, notwithstanding what is added later. If the answer is Yes, the Court must give effect to the legal rule which is attracted by what the testator has in fact done.[15]
[15]Ritchie (1964) 114 CLR 173, 182-3.
The plaintiff neither supported nor opposed the defendant’s construction of cl 5 of the Will. The plaintiff submitted, relying on In Re Ferguson,[16] that, in construing the Will, the Court is required initially to do so without reference to decided cases with similar facts.
[16][1957] VR 635, 636.
The plaintiff contended that the direction in cl 5 of the Will purporting to confer half of the net proceeds of sale of the Property to Halina and the direction that the defendant allow Halina and her family to spend their holidays with the defendant at the Property if Halina wishes to, have no application in the light of the fact that Halina did not survive the Deceased.
According to the plaintiff, the fact that cl 5 gives the Property to the defendant absolutely and contemplates the right of the defendant to sell the Property suggests that the Deceased intended an absolute gift to the defendant. However, so it was said, the proviso that the defendant shall be entitled to reside in the Property during her lifetime, and the further proviso that, if the Property remains unsold it passes to the defendant’s children, suggest an intention to confer on the defendant a right of residence with a gift over to her children on the defendant’s death.
Construction of cl 5 of the Will
Although the Will was drafted by a solicitor, it is poorly worded, incomplete and confusing. Clause 5, in particular, is ambiguous, thus enabling extrinsic evidence to be admitted to assist in its interpretation. The ambiguity in cl 5 has necessitated this proceeding.
The starting point for interpreting cl 5 is the clause itself. The phrase ‘for her own use and benefit absolutely’ in the first sentence is a well-known formulation for a disposition of an estate in fee simple. The first sentence of cl 5 does not contain any words of limitation. In the absence of the subsequent sentences in cl 5, there would be no doubt that the clause constitutes a devise to the defendant of the fee simple in the Property. Support for the proposition that the phrase ‘for her own use and benefit absolutely’ was used deliberately for this purpose can be found in the use of the same phrase in cll 3 and 4 of the Will. Support can also be found in the words ‘any sale which the said CHRISTINE BOURGOUIN may effect of the property’ in the second sentence of cl 5, which clearly contemplate that the defendant would have the power to sell the Property in her own right as owner.
However, as cl 5 comprises three sentences, I need to determine the meaning and effect of the clause as a whole.
The second sentence of cl 5 comprises three parts. The first part purports to charge the Property with a payment to Halina of one half of the net proceeds of any sale of the Property which the defendant may effect, provided that Halina is alive at the time of sale. The second part purports to impose a proviso that the defendant is entitled to reside at the Property during her lifetime. The third part purports to impose a proviso that, if the defendant predeceases the Deceased or dies without having disposed of the Property, the Property passes to such of the defendant’s children as survive her and the Deceased and attain the age of 18 years.
The first part of the second sentence of cl 5, if it had taken effect, would not have conferred a direct proprietary interest in the Property to Halina. At most, it would have imposed a charge enforceable by judicial process in relation to the proceeds of any sale effected by the defendant. It does not evince a ‘contrary intention’ for the purposes of s 42 of the Wills Act 1997, which is set out at [32] above. In any event, as Halina died on 4 March 1994, I need not consider the meaning and effect of the first part of the second sentence of cl 5, because it never became operative.
The second part of the second sentence of cl 5 purports to confer on the defendant a mere life interest in the Property. If effect is given to such an interest, it would negate the absolute gift conferred by the first sentence of cl 5. The key question is whether the Will evinces an intention that the absolute gift be cut down and replaced by a limited gift. No such intention can be discerned from cl 5 or from the Will as a whole. Accordingly, by virtue of s 42 of the Wills Act 1997, the absolute gift must take effect and the limited gift must be treated as ineffectual.
The third part of the second sentence of cl 5 purports to direct what is to happen to the Property in the event that the defendant predeceases the Deceased or dies without having disposed of the Property. As the defendant did not predecease the Deceased, the only question is whether effect can be given to the direction that, if the defendant dies without having disposed of the Property, the Property is to pass to her surviving children by virtue of the Will, rather than forming part of the defendant’s estate. The first sentence of cl 5 evinces a clear intention to dispose of the fee simple in the Property to the defendant. The Deceased’s direction as to what is to become of the Property upon the defendant’s death does not cut down that absolute gift but purports to constitute a superadded gift. Effect cannot be given to the superadded gift because this would negate the absolute gift in circumstances where the Will as a whole provides no support for such a result. Accordingly, the purported gift over to the defendant’s children is void.
The reasoning at [56] above is consistent with the approach of the majority of the High Court in Ritchie, which is discussed at [44] to [46] above.
The third sentence of cl 5 purports to direct the defendant to allow Halina and her family to stay at the Property during annual holidays if Halina ‘wishes to do so’. The purported direction seeks to derogate from the absolute gift of the Property to the defendant in a manner that is repugnant to that gift. The purported direction does not evince a ‘contrary intention’ for the purposes of s 42 of the Wills Act 1997. In any event, as Halina predeceased the Deceased and is incapable of expressing any wishes, the direction never became operative.
The construction of cl 5 that I have adopted is supported by the context in which that clause appears in the Will.
Clause 2 of the Will states that the Deceased made adequate provision for two of her four Australian-based children[17] that were alive at the time that she made the Will, namely, the plaintiff and Richard. Clause 5 seeks to make provision for the remaining two Australian-based children, namely, the defendant and Halina. It does so by devising the Property to the defendant absolutely and by then giving directions as to the limited circumstances in which Halina would benefit in respect of the Property, namely, by sharing the proceeds of any sale of the Property and being able to stay there during the holidays. For the reasons that I have already discussed, such directions derogate from the absolute gift of the Property to the defendant and are ineffectual.
[17]As stated at [14] above, Stanislaw has never lived in Australia.
The construction of cl 5 that I have adopted is also supported by the extrinsic evidence.
The Will and the surrounding circumstances are consistent with the defendant’s contention that cl 5 evinces an intention to give her a fee simple interest in the Property. Clause 2 of the Will, which is discussed at [60] above, is inconsistent with an intention by the Deceased to leave the Property to the plaintiff. At the time that the Deceased made the Will, the plaintiff had her own home at the Mullins Road Property, whereas the defendant did not then, or at any previous time, have her own home. Viewed as a whole, the extrinsic evidence indicates that the Deceased was keen to ensure that the defendant was provided with a home of her own and that she intended to leave the Property to the defendant absolutely, subject to the purported directions in cl 5 which I have found to be ineffectual.
Accordingly, insofar as the extrinsic evidence is relevant and admissible, it confirms the correctness of the construction of cl 5 of the Will that I arrived at based on the wording of the Will.
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