Trenberth v Trenberth - [2016] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
TRENBERTH & ANOR v TRENBERTH & ANOR
[2016] SASC 150
Judgment of The Honourable Justice Bampton
23 September 2016
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WHERE UNCERTAINTY - AS TO SUBJECT MATTER
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - GENERALLY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION - TO IDENTIFY SUBJECT MATTER OF DISPOSITION
The plaintiffs and the first defendant are executors of their father’s will (the Will) – the deceased is survived by six sons – the plaintiffs sought advice pursuant to s 69 of the Administration and Probate Act 1919 (SA) and r 131 of the Supreme Court Civil Rules 2006 (SA) with respect to the construction of the words “my real property at John Street Tumby Bay” in the Will.
The plaintiffs also sought advice about the construction of the words “John Street properties” appearing in the Deed of Family Arrangement entered into by the parties following settlement of a previous dispute regarding options over certain properties of the deceased’s estate – probate was granted on 5 August 2014 – the plaintiffs and first defendant are in disagreement regarding the administration of the deceased’s estate and in particular what is meant by references in the Will to “John Street”.
The three properties the subject of the application for advice and direction are 1 John Street, Tumby Bay, 18 and 20 Pumpa Street, Tumby Bay (“the three blocks in dispute”) – 1 John Street has a frontage to John Street and shares a common boundary with 20 Pumpa Street on its northern boundary – 20 Pumpa Street shares a common boundary with 18 Pumpa Street – neither the Will nor the Deed identify the three blocks in dispute by certificate of title, street number, or in the case of 18 and 20 Pumpa Street by street name.
The plaintiffs contend that, when the Will is considered in the context of the relevant surrounding circumstances, the references to John Street are to the one block at 1 John Street – the plaintiffs say that this reading of the Will when compared with the terms of the Deed does not indicate any intention on the part of the parties to modify, clarify, or confirm the terms of the Will and, as such, the references to properties in the Deed should be read consistently with the Will as a reference to 1 John Street, Tumby Bay.
The defendants say that the parties, by way of the recitals to the Deed, have agreed on the proper construction of the Will – the terms of the Deed are the starting point for construction and that, having regard to the surrounding circumstances, a reasonable person would construe the reference to properties in paragraphs C(c) and C(f) of the recitals and paragraph 2.2(e)(2) of the Deed as referring to 1 John Street, 18 and 20 Pumpa Street, Tumby Bay.
Held:
1. The recitals to the Deed set out the meaning of the Will as agreed by the parties; proper construction therefore begins with the terms of the Deed, with the terms of the Will and surrounding circumstances being relevant considerations.
2. The references in the Deed to properties at John Street construed as referring to the three blocks in dispute: 1 John Street, 18 and 20 Pumpa Street, Tumby Bay.
3. Considering the Will alone in the absence of the Deed, the references in the Will to John Street are construed as referring to the three blocks in dispute: 1 John Street, 18 and 20 Pumpa Street, Tumby Bay.
Administration and Probate Act 1919 (SA) s 69; Supreme Court Civil Rules 2006 (SA) r 131; Wills Act 1936 (SA) s 25AA, referred to.
Prime Sight Ltd v Lavarello [2013] UKPC 22, applied.
Bethell v Bethell [2014] NZCA 442, distinguished.
Boyes v Cook (1880) 14 Ch D 53; Charter v Charter (1874) LR 7 HL 364; Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Allgood v Blake (1873) LR 8 Ex 160; Fielder v Burgess [2014] SASC 98; In the Estate of Hubbuck [1905] P 129; Marley v Rawlings [2014] 2 WLR 213; Trenberth & Anor v Trenberth [2014] SASC 50, considered.

TRENBERTH & ANOR v TRENBERTH & ANOR
[2016] SASC 150
Testamentary Causes Jurisdiction

BAMPTON J: By interlocutory application FDN 17 the plaintiffs, Anthony Kym Trenberth (“Kym”) and Christopher Mark Trenberth (“Christopher”), seek advice or direction pursuant to s 69 of the Administration and Probate Act 1919 (SA) (“the Act”) and r 131 of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) with respect to the following matter arising out of the administration of their father, Trevor Paul Trenberth’s (“Trevor”), estate:[1]
construction of the words “my real property at John Street Tumby Bay” as appears in clauses 4 and 7 of the Will and the construction, … of the words “John Street properties” in the Deed of Family Arrangement.
(Emphasis in original)
[1] On the hearing of the application, the plaintiffs abandoned the application for rectification.
Background
Kym and Christopher together with their brother, Trevor Dale Trenberth (“Dale”), are the three executors named in Trevor’s will dated 2 February 2011 (“the Will”).
Trevor died on 16 December 2011 in Tumby Bay. He was a divorced man and is survived by six sons; Kym, Christopher, Dale, Michael Charles Trenberth (“Michael”), Robin Paul Trenberth (“Robin”), and Jonathon Dene Trenberth (“Jonathon”).
Kym and Christopher commenced this action against Dale seeking a grant of probate of the Will in solemn form and rectification under s 25AA of the Wills Act 1936 (SA) (“the Wills Act”). Dale counterclaimed alleging that Trevor lacked testamentary capacity at the time of making the Will and sought a grant of probate in respect of one or the other of two earlier wills. The parties reached a settlement in agreement with the non-party beneficiaries/brothers resulting in consent orders being made and the parties entering into a Deed of Family Arrangement dated 3 April 2014 (“the Deed”). The Deed resolved the disagreement between the parties regarding options over properties of the estate (“the options dispute”).
On 10 April 2014, Nicolson J made the consent orders pronouncing the force and validity of the Will and rectifying the Will by the “interpolation immediately after clause 6 of the following words”:[2]
6A.I direct that my son CHRISTOPHER MARK TRENBERTH have first option to retain the balance of my real property at 4 Tumby Terrace Tumby Bay, South Australia to form part or all (subject to the value of the estate) of his entitlement to a one sixth share of my estate as detailed in paragraph 4 herein.
[2] Trenberth v Trenberth [2014] SASC 50 at [39].
The John Street disagreement
Trevor’s estate includes properties at:
·1 John Street described in CT 5482/650 as Section 388 hundred of Hutchinson in the area named Tumby Bay;
·18 Pumpa Street described in CT 5482/657 as Section 377 hundred of Hutchinson in the area named Tumby Bay; and
·20 Pumpa Street described in CT 5482/638 as Section 378 hundred of Hutchinson in the area named Tumby Bay.
1 John Street is located on the corner of John and Borthwick Streets. It fronts John Street and shares a common boundary with 20 Pumpa Street on its northern boundary. 20 Pumpa Street shares a common boundary on its western boundary with 18 Pumpa Street (“the three blocks in dispute”).
Since the grant of probate on 5 August 2014, Kym, Christopher, and Dale have been in disagreement regarding the administration of Trevor’s estate and in particular what is meant by the references in the Will to “my real property at John Street”.
At the hearing of FDN 17, on Dale’s oral application, I made an order joining Michael as a defendant to the proceedings.
The plaintiffs submit that the references relate only to the property at 1 John Street with a frontage to John Street. Dale and Michael (“the defendants”) submit that the references include all three blocks of land, namely; 1 John Street, 18 Pumpa Street, and 20 Pumpa Street.
If the defendants’ construction is the correct construction then they will receive a 50 per cent interest in all three blocks of land. If Kym and Christopher are correct, Dale and Michael will receive a 50 per cent interest in the land at 1 John Street and the land at 18 and 20 Pumpa Street will be divided equally amongst the six brothers.
The construction also influences whether Dale and Michael have an option to acquire the remaining 50 per cent interest in 1 John Street only or whether they also have an option on the land at 18 and 20 Pumpa Street.
Other than referring to “John Street” neither the Will nor the Deed identify the three blocks in dispute by reference to their certificates of title, by street number, or in the case of the Pumpa Street blocks by street name.
Robin and Jonathon
Following the hearing of FDN 17, affidavits of Robin and Jonathon were filed. Robin and Jonathon’s financial interests are, in fact, aligned with those of the plaintiffs as they would receive a greater share in 18 and 20 Pumpa Street if the plaintiffs’ construction is declared correct. Robin and Jonathon depose in their respective affidavits that they support “the position taken by my brother Dale in these proceedings” and that they “understand that this may affect my interest in the estate of my late father”.
The references in the Will and the Deed to John Street
The references in the Will and the Deed to John Street are as follows.
The Will
Clause 4 of the Will states that:
My executors hold my estate on trust to give as follows:
a)One half (50%) of my real property at 4 Tumby Terrace, Tumby Bay, South Australia to my son, CHRISTOPHER MARK TRENBERTH in recognition of his financial and non financial contributions to that property;
b)One half (50%) of my real property at John Street, Tumby Bay, South Australia to my sons, TREVOR DALE TRENBERTH AND MICHAEL CHARLES TRENBERTH as tenants in common in recognition of their financial and non financial contributions to that property;
c)The balance of my estate, after payment of my liabilities in my name, funeral and testamentary expenses to my six sons ANTHONY KYM TRENBERTH, CHRISTOPHER MARK TRENBERTH, TREVOR DALE TRENBERTH, ROBIN PAUL TRENBERTH, JONATHON DENE TRENBERTH AND MICHAEL CHARLES TRENBERTH equally as tenants in common.
(Emphasis added)
Further, clause 7 states that:
I direct that my sons TREVOR DALE TRENBERTH AND MICHAEL CHARLES TRENBERTH have first option to retain the balance my real property at John Street, Tumby Bay South Australia as tenants in common to form part or all (subject to the value of the estate) of their entitlement to a one sixth share of my estate as detailed in paragraph 4 herein.
(Emphasis added)
The Deed
Paragraph C of the Recitals to the Deed provides that:
After revoking all prior wills and other testamentary acts, the last will:
a.Appointed the executors (Kym, Christopher and Dale) as executors and trustees;
b.Gave one half of the deceased’s property at 4 Tumby Terrace Tumby Bay in the State of South Australia to Chris;
c.Gave one half of all of the properties owned by the deceased at John Street Tumby Bay in the State of South Australia to Dale and Michael as tenants in common;
d.Gave the residue of the deceased’s estate to all six of the deceased’s children equally as tenants in common;
e.Gave an option to Kym to purchase the deceased’s property at 3 Tumby Terrace Tumby Bay in the State of South Australia;
f.Gave an option to Dale and Michael to purchase the other half of all of the deceased’s properties at John Street Tumby Bay aforesaid not already given.
(Emphasis added)
Further, paragraph 2.2(e) states that:
Once the valuations have been obtained the executors will:
[...]
2.ask Dale and Michael by letter if they wish to exercise the option to acquire the half of the estate and interest in the John Street properties not already given at the value determined by the independent valuer, and provide them with 28 days to provide a response.
Duncan Fowler
Pursuant to clause 2.2(a) of the Deed, Kym, Christopher, and Dale, as the executors, agreed to and instructed the solicitor Duncan Fowler (Mr Fowler) to represent the estate.
The evidence
The plaintiffs rely on Christopher’s affidavits sworn on 13 November 2015 (“Christopher’s November affidavit”)[3] and 1 March 2016 (“Christopher’s March Affidavit”).[4]
[3] FDN 18.
[4] FDN 24
The defendants rely on an affidavit of Dale affirmed on 7 December 2015 (“Dale’s affidavit”)[5] and an affidavit of Catherine Jayne Leis, the solicitor who drafted the Will, sworn on 2 April 2014.[6]
[5] FDN 19.
[6] FDN 12.
A series of Google Earth photographs were tendered as Exhibit D2. The photographs indicate there are no visible boundaries between 1 John Street, 18 and 20 Pumpa Street.
Christopher’s evidence
In essence, it is Christopher’s evidence that amendments were made to a fifth and final version of the Deed changing the reference from John Street “property” to “properties” without his or Kym’s instruction or knowledge.
In Christopher’s November affidavit, he describes the John Street disagreement as follows:
22. My belief and understanding, and the position adopted by me and Kym, is that the property referred to in clause 4(b) of the Will, and in the Deed of Family Arrangement, a 50% interest in which is left to Dale and Michael with an option to acquire the balance, is a single parcel of land (CT5482/650) situated at 1 John Street Tumby Bay.
23. It is my intention to explain the reasons for this belief in detail in a separate affidavit, but one reason is that our father always referred to this particular property, the one only on John St, as the “Gold Factory”. It was also referred to in the draft versions of the Deed of Family Arrangement as the “John Street property”, the references only becoming to the “John Street properties” in the final version of the Deed.
24.Dale’s position, which I believe is also the position adopted by Michael, is that the reference in the Will to “my real property at John Street” and to “the John Street properties” in the Deed of Family Arrangement means three adjoining parcels of land; the one on John Street referred to above and two parcels behind it (CT 5482/638 and CT 5482/657) at 18 and 20 Pumpa St Tumby Bay. At no time prior to asserting this claim in about April 2015, were the three parcels of land listed, talked about, joined or mentioned as being a single parcel of land. As stated above, it is my intention to explain these matters in detail a separate affidavit.
In Christopher’s March affidavit, he deposes that:
·The John Street Property is the land located at 1 John Street and situated on that land is a galvanised iron clad building known as the “Gold Factory” where the defendants operate a gold jewellery workshop and shop;
·Trevor in discussion with him referred to:
- 1 John Street as “the John Street” block, “the Gold Factory premises” or “the Gold Factory”; and
- the land at 18 and 20 Pumpa Street as the “Pumpa Street blocks”;
·In Trevor’s writings, Trevor referred to 1 John Street as “the Gold Factory”;
·The defendants had not used, occupied, or, to his knowledge, made any contribution to 18 or 20 Pumpa Street; and
·Trevor frequently commented during discussion with him that he would recognise the contributions and improvements made by his sons to any property in his will.
The reference to property and properties in the draft versions of the Deed
Christopher’s March affidavit also details his evidence regarding the “History of change from “property” to “properties” in Deed of Family Arrangement”.
Christopher deposes that prior to the entering into of the Deed, Mr Fowler had represented him and Kym including for the purposes of negotiating the terms of the Deed.[7] He says that between 11 March 2014 and 28 March 2014, various communications and draft versions of the Deed “were exchanged between me and Kym and Duncan Fowler, Kym and my former solicitors, and between Duncan Fowler and Mark Howard, the solicitor for the Defendant…”.[8]
[7] FDN 24 at [17]-[19].
[8] FDN 24 at [17].
Christopher deposes to, and exhibits, correspondence from Mr Fowler to Mark Howard (Mr Howard) dated 11 March 2014 proposing a resolution to the options dispute by entry into a deed of family arrangement.[9] The letter proposed at paragraph 7 that the deed include the following term:[10]
Once the valuations have been obtained my clients will:
…
(b)formally ask Trevor Dale Trenberth and Michael Charles Trenberth if they wish to exercise the option to acquire “the other half” of the John Street property at the value determined by the independent valuer, and provide them with 28 days to provide a response.
Christopher also exhibits a letter dated 19 March 2014 from Mr Howard to Mr Fowler confirming that the proposed term in paragraph 7 of Mr Fowler’s letter is agreed.[11]
[9] FDN 24, Exhibit CMT13.
[10] FDN 24, Exhibit CMT13 at [7].
[11] FDN 24, Exhibit CMT15.
Christopher deposes that:
·the first draft of the Deed emailed to him by Mr Fowler on 20 March 2014,[12] includes references to the “deceased’s property at John Street” in Recitals C.c and C.f and sub-clause 2.2(e)2;[13]
·the wording in Recitals C.c and C.f and sub-clause 2.2(e)2 did not change in the second, third or fourth drafts of the Deed exchanged between Mr Fowler and Mr Howard;
·an email was sent to Mr Fowler on 3 April 2014 by Mr Howard attaching a letter dated 3 April 2014 which:
-       opened with a reference to previous discussions;
-       confirmed that Mr Howard’s clients did not oppose the application for rectification of the Will; and
-       sought an executable copy of the deed including:
oamendments to clause 2.1(d); and
o“amendments relating to all the John Street property in recitals C.c, C.f and clause 2.2(e)(2), as previously discussed”.
[12] FDN 24, Exhibit CMT16.
[13] Emphasis added.
Christopher says he has no recollection of, nor had he seen, the letter dated 3 April 2014. He also says that his current solicitors, Travancore Legal and Advisory, have not located an email or other record in the files provided by Mr Fowler forwarding a copy of this letter to him or Kym. Further, he says the first occasion on which he received or read this letter was following its provision to him by his solicitor during the course of preparing his affidavit sworn 1 March 2013.
Christopher further deposes that he has been advised that no telephone attendance note or other record prepared by Mr Fowler of his conversation with Mr Howard as referred to in Mr Howard’s letter has been located. Exhibit CMT37 to Christopher’s March affidavit is a copy of an email dated 25 January 2016 from Mr Fowler to Christopher’s current solicitors wherein Mr Fowler states that he has no recollection of the telephone conversations that took place in the days leading up to the execution of the Deed.[14]
[14] FDN 24, Exhibit CMT37.
Christopher says that the time entries in an invoice raised to his father’s estate by Mr Fowler dated 1 April 2014 recorded a telephone attendance between Mr Fowler and Mr Howard on 31 March 2014. He says he has been advised that his current solicitors have been unable to locate a telephone attendance note or other record in the files provided by Mr Fowler of that telephone attendance. Further, he says the time entries in an invoice raised to his father’s estate by Mr Fowler dated 3 May 2014 record a telephone conversation between Mr Fowler and him on 3 April 2014. He deposes that the narration contains no record of what was discussed or the duration of the call. Christopher says that he has been informed that his current solicitors have been unable to locate a telephone attendance note or other record in the files provided by Mr Fowler of that telephone attendance.

Christopher states that Mr Fowler did not raise with him the amendment from “property” to “properties” at any time before he signed the Deed, or at all. He also deposes that Kym has informed him that the matter was not raised with him.
Christopher refers to an email sent to Mr Howard on 3 April 2014 from Mr Fowler attaching a PDF version of the Deed, “incorporating the changes requested by [Mr Howard]”. Christopher refers to this as the fifth and final draft deed which at Recitals C.c, C.f and clause 2.2(e)2 refers to “John Street properties”.
Christopher says he received the fifth and final deed by email from Mr Fowler on 3 April 2014. The email made no reference to the amendments made changing “property” to “properties”. He says he has no recollection of Mr Fowler raising these amendments nor seeking his consent to make those amendments. Christopher deposes that had Mr Fowler raised it with him he would have categorically opposed any such change as being inconsistent with his father’s will and his wishes as expressed to him.
The valuation of the three blocks of land as one
Christopher says that at no stage did he give instructions to Mr Fowler to instruct the valuer, Andrew Dickie of Eyre Peninsula Property Valuations, to prepare a valuation report on “18 Pumpa Street Tumby Bay and being the whole of the land comprised in Certificates of Title Register Book Volume 5482 Folio 638, 650 and 657” as specified in Mr Fowler’s letter of instruction to Mr Dickie.[15]
[15] FDN 24, Exhibit CMT9.
Christopher maintains that the first occasion on which he noted 1 John Street property being described as the John Street “properties” was when he received an email from Mr Fowler on 22 December 2014 confirming that he had received the grant of probate and mentioning the options to purchase real estate in accordance with clause 2.2(e)2 of the Deed. Mr Fowler wrote:[16]
[16] FDN 24, Exhibit CMT30.
There is a formal requirement to send a letter to each party asking if they wish to exercise the options, but we may be able to short circuit this if everybody agrees that they will be purchasing the properties for the prices in the valuations. That is to say:
Kym will purchase 3 Tumby Terrace for $210,000
Chris will purchase the remaining one half share of 4 Tumby Terrace for $137,500
Dale and Michael will purchase the remaining half of the John Street properties for $185,000
Robin, Dale, Jonathon and Michael will purchase the farm for $615,000 (subject to the prior claim by the Kevin Phillis)
Robin, Dale, Jonathon and Michael will purchase the Elfrieda Drive property for $390,000
(Emphasis added)
Christopher says he queried this by return email on 22 December 2014, saying:[17]
John street property is 1 john street. (gold factory) Valued $160k dale and michael cost to buy $80k, pumpa street 377, 378 are 110 and 100 (total $290,000 if they want all 3.) to be clear and not 1 block.
[17] FDN 24, Exhibit CMT31.
Christopher deposes that Mr Fowler responded by email on 22 December 2014 saying:[18]
… Since receiving your email I’ve had a look back through Catherine Leis’s notes to try to ascertain what your dad’s intention was.
Although she refers to the “John Street” property in the will and in a later handwritten note, her first handwritten note is as below:
…
As you can see, the reference there is to “3 x blocks” at John Street.
If there is any dispute about what constituted the “real property at John Street”, this original note would be a fairly good indication that any subsequent reference to the John Street property meant the 3 adjoining allotments.
Christopher responded on 23 December 2014 saying:[19]
It was dad’s clear intention to leave dale and michaels gold factory on john street premises 25% share to each of them. the pumpa street blocks are separate (not on john street). To try to include them would be incorrect and we have dad’s letters to and lyn’s testimony if necessary to illustrate this.
[18] FDN 24, Exhibit CMT32.
[19] FDN 24, Exhibit CMT33.
In his responding email, Mr Fowler appears to alter his opinion saying that the Will only provided for the gift of a half share and the right to purchase the remaining half share of the John Street property and not the Pumpa Street allotments.
Cross-examination of Christopher
Christopher was cross-examined on the matters deposed to in his affidavits. He was asked whether he read the fifth and final draft of the Deed before he signed it. He said he had read each of the previous four drafts and he read the final draft before he signed it. He said he read it carefully and that he and his brother, Kym, read it together to themselves at the same time. Christopher said that they had discussed and looked at previous drafts of the document, and that as “we had already read the document, jointly signed it and returned it to Duncan Fowler which was done in my office”.[20]
[20] T7/33-37.
Christopher said that the first time he raised with Mr Fowler, the question of whether the gift in the Will related to one block of land or three was when he had an inkling that Dale intended to claim the three blocks. He said he went back and double-checked the Deed and noted a word had been changed in the final draft from “property” to “properties” on John Street. He said that at that point he emailed Mr Fowler pointing out that the final draft was different to the draft he had received at the end of March and asking who changed the word from “property” to “properties”.
Christopher said it was Mr Fowler’s usual practice to send draft letters for his approval and he agreed that it was very likely, but he could not be sure, that he saw the draft of Mr Fowler’s letter dated 19 May 2014 instructing the valuer Andrew Dickie to update previous valuations in respect of Tumby Terrace and Pumpa Street.[21] Mr Ower, counsel for the defendants, asked Christopher about item number 3 in the letter which described “18 Pumpa Street Tumby Bay and being the whole of the land comprised in Certificates of Title Register Book Volume 5482 Folio 638, 650 and 657”. Christopher said he could not be sure that he did not raise with Mr Fowler the description of 18 Pumpa Street at the time he saw the draft. He said he was unaware the request was to value the three blocks as one and he assumed they would be valued separately. He said certainly did raise the issue with Mr Fowler at some point and Mr Fowler “corrected it”. The valuation dated 20 October 2014 provides a valuation for each of the three blocks. Christopher agreed that the three blocks are valued by the Valuer‑General as one parcel.
[21] FDN 24, Exhibit CMT9 at p 15.
Christopher said he did not read the final draft of the Deed well enough, that he missed the reference to “properties” and had he realised the word had been included in the final he would not have signed it. He also said that he only realised there were three references to “properties” in the Deed whilst being cross‑examined.
Christopher denied that he knew when he signed the Deed that the reference to “properties” was a reference to all three blocks. He denied that he signed the Deed understanding that Dale and Michael would receive half of the three properties and have an option to purchase the other half. It was put to him that he did not raise any complaint about it until such time as Mr Fowler began to implement the Deed in December 2014 and it was because he did not like the way it was being implemented in that Dale and Michael stood to get “a better end of the deal”. It was his evidence that his father very clearly said that Dale and Michael were to get one half of the Gold Factory workshop and he “meant quite clearly 1 John Street. I’ve got no doubts at all”.[22]
[22] T17/25-26.
Christopher was asked why he had not referred to this conversation previously if it was what his father had told him that he wanted in his will. Christopher said he did not include it in his affidavit because it did not appear relevant, “or wasn’t necessary to put in or I’m not sure”.[23] He denied making it up, saying that his father spoke to him on more than one occasion before or during the time that he formulated the Will and said that he had left Dale and Michael half the Gold Factory shed which was on John Street. He said that the conversations took place was between 24 January and 1 February 2012. He also said that his father was with him virtually daily and other discussions took place throughout the year, “In regards to he’d done some succession planning stuff and he’d done some tax planning stuff but many conversations with us”.[24]
[23] T18/20-21.
[24] T22/18-20.
Christopher was cross-examined about his reliance on his father’s writings exhibited to his March affidavit.[25] Exhibit CMT11 is a copy two pages of a five page letter dated 21 September 2011 apparently written by Trevor to the defendants. The five page letter was tendered into evidence as Exhibit D1. Christopher said that the letter was disclosed to him by Dale in the earlier dispute wherein Dale alleged that Trevor did not have testamentary capacity.
[25] FDN 24, Exhibit CMT11.
Christopher was asked why he did not exhibit the complete five page letter. His response was that he exhibited the parts that refer to “dad letting Dale and Michael know on 21 September 2011, after they’d shifted out of the Gold Factory and handed it back to him effectively, that he had actually left the Gold Factory premises to them in his will and they are parts out of that letter which are relevant”.[26]
[26] T21/2-17.
In addition to referring to the Gold Factory, the letter makes reference to the human race’s evolution, dreamtime, quantum mind, chaotic nodes, universal teachings, dynamic balance, and, at page five, “In time we will learn from our own experiences. True learning. Let me know on the offer of the gold factory. It is not the crux of it all”.
It was put to Christopher that he did not exhibit the entirety of the letter because he did not want the Court to see his father possessed some unorthodox beliefs. Christopher’s response was that it was just not relevant.
Dale’s evidence
Dale deposes that the Deed was deliberately worded as referring to multiple properties at John Street in order to indicate that the reference extended to include the adjacent properties on Pumpa Street.
Catherine Leis’ evidence
The solicitor Catherine Leis deposes in her affidavit,[27] prepared for the rectification application, to the instructions she received from Trevor with respect to the distribution of his properties amongst his sons.
[27] FDN 12.
She refers to two meetings with Trevor. At the first meeting on 19 January 2011, Trevor instructed her to draft his will making a particular gift to Christopher with respect to 4 Tumby Terrace. Trevor explained that he wanted his will to recognise the contributions made by Christopher to that property.
At a subsequent meeting on 24 January 2011, Trevor made further allowance for Michael and Dale with respect to “Johns Street”. Ms Leis’ notes indicate that this reflects their financial contributions.[28] Further notes include a reference to “3 x blocks John Street, TB – Goldfactory”.[29]
[28] FDN 12, Exhibit CJL2 at p 10.
[29] FDN 12, Exhibit CJL2 at p 21.
As submitted by the plaintiffs, on an application for construction of a will, it is usual for submissions to be made on behalf of the personal representatives and they would be, insofar as it is possible, impartial. However, in this matter there is no party who can make impartial submissions on the application because:
1Each of the executors, in their capacity as beneficiaries, stands to have their interest in the estate impacted upon by the outcome;
2Mr Fowler has an interest in the outcome owing to the plaintiffs’ allegation that the amendment of the word “property” to “properties” in the final version of the draft Deed exchanged with Dale’s solicitor was made without Christopher and Kym’s instructions and was not brought to their attention.[30]
[30] FDN 24 at [18].
The plaintiffs’ submissions
The plaintiffs pointed out that on reading the Will as a whole, it is not possible to say with certainty what land is being referred to by the words “my real property at John Street”. It was contended that the phrase is open to at least three meanings:
·The land comprised in CT5482/650, that is, 1 John Street only;
·The land located at 1 John Street, 18 Pumpa Street, and 20 Pumpa Street; or
·The land located at 1 John Street and 20 Pumpa Street (which is directly behind 1 John Street and shares a boundary with it).
It was submitted that it is necessary to have regard to both the Will and the Deed to resolve this ambiguity and the Deed cannot be fairly and accurately construed in isolation. The plaintiffs contended that, given the ambiguity, certain extrinsic evidence is admissible of the surrounding circumstances so that the Court can ascertain the property Trevor intended to refer to.[31] Further, they submitted that the so-called Boyes v Cook[32] “armchair rule” will apply. Unlike the Will, where the subjective intentions of the testator are relevant to the task of construction, the plaintiffs say the subjective intentions of the parties to the Deed are not.
[31] Charter v Charter (1874) LR 7 HL 364; see generally David M Haines QC, Construction of Wills in Australia (LexisNexis Butterworths, 2007) at Ch 5.
[32] (1880) 14 Ch D 53 at 56.
The plaintiffs submitted that the Court must determine Trevor’s testamentary intention regarding the John Street property or properties with reference to the surrounding circumstances of the Will, and then ascertain whether the Deed purported to modify the Will.
As there is no Australian authority to support this submission, the plaintiffs referred to the decision of the New Zealand Court of Appeal in Bethell v Bethell where the Court said:[33]
We agree with the Judge that both the Will and the Deed must be read together. That follows inevitably because the whole purpose of the Deed was to modify, clarify or confirm the terms of the Will. Some provisions of the Will remain (particularly those in clauses 3, 4 and 5) while others were said to be amended or clarified by the Deed. Notably, clause 6 fell into this last category although the extent to which clause 6 amended, clarified or replaced provisions of the Will was a matter of debate before us.
Justice Randerson, of the New Zealand Court of Appeal, added that the correct approach, where ambiguity exists, is to give weight to the testator’s original intention, subject to any contrary intention evident from the terms of the Deed.[34]
[33] [2014] NZCA 442 at [34].
[34] Bethell v Bethell [2014] NZCA 442 at [37].
The plaintiffs submitted that the purpose of the Deed is to modify, clarify, or confirm the terms of the Will and the Court needs to look first at what is meant by the disputed terms of the Will and secondly to whether the disputed terms in the Deed are a modification, clarification, or confirmation of that meaning. The plaintiffs argue that whilst it is possible that in modifying the operation of the Will different property could be transferred to Dale and Michael than the property left to them in the Will, the only way to determine whether this is the case is by looking at both the Will and the Deed together.
The plaintiffs rely on the following surrounding circumstances to support their submission that Trevor’s intention was to include only 1 John Street:
·The fact that certain sons made contributions to certain properties owned by Trevor, Trevor’s instructions to Ms Leis,[35] Trevor’s personal writings,[36] and the terms of the Will suggest that Trevor intended to recognise these contributions by leaving a portion of the relevant land to those sons and giving them options to acquire the balance. Such an intention was recognised by Nicholson J in rectifying the Will to grant an option to Christopher.
·One of the contributions was by Christopher to the property known as 4 Tumby Terrace. The other contributions were made by Dale and Michael to the property in dispute. By reference to the fact that Dale and Michael contributed to 1 John Street but not to 18 and 20 Pumpa Street,[37] the Court can infer that Trevor’s intention was to leave them 50 per cent of 1 John Street only.
·Dale and Michael use and occupy the land and buildings at 1 John Street and did so at the time of the execution of the Will for their gold jewellery workshop and shop.[38] They do not use 18 and 20 Pumpa Street which are vacant.
·Trevor referred to the land at 1 John Street as the “Gold Factory” and to the land at 18 and 20 Pumpa Street as the “Pumpa Street blocks”.[39]
·The notes taken by the solicitor Catherine Leis referring to “Johns Street”.
[35] FDN 12, Exhibit CJL2 at p 10, 23.
[36] FDN 24 at [15]; Exhibit CMT12.
[37] FDN 24 at [14].
[38] FDN 19 at [19].
[39] FDN 24 at [11].
The plaintiffs referred to the defendants’ reliance on Ms Leis’ notes as referred to in Dale’s affidavit[40] and, whilst accepting that the evidence of instructions given to a solicitor are admissible, they disputed the weight that should be given to them in circumstances where:
·The handwritten note of Ms Leis made on 24 January 2011:[41]
We amended his will to reflect that Chris have a 50% share of Tumby Terrace & Mike & Dale 25% each of Johns Street.
is (with the exception of mistakenly adding an “s” to John) entirely consistent with the plaintiffs’ position.
·Ms Leis admitted difficulty in understanding the notes given to her by Trevor[42] and admitted to overlooking his instructions regarding the option to be granted to Christopher, casting doubt over her reliability in accurately recording Trevor’s intentions.
[40] FDN 19 at [32].
[41] FDN 12 at [17]; Exhibit CJL2.
[42] FDN 12 at [24].
The plaintiffs submitted that the exhibit TDT2 to Dale’s affidavit, the Valuation Record prepared for probate purposes that provides a single valuation for all three titles to all three properties together, is not relevant to the question of Trevor’s testamentary intention. They argued that, whilst this may have informed matters such as council rates and the statement of assets and liabilities filed for probate purposes, it does not inform the Court at all about Trevor’s intentions. If anything, they said, it confuses matters further because the three blocks of land are described as being located at 18 Pumpa Street rather than at John Street.
The plaintiffs submitted that when the Will is considered in the context of the relevant surrounding circumstances, the references to John Street are to the one block at 1 John Street.
The next step, the plaintiffs contended, is to compare this reading of the Will to the terms of the Deed to determine if the parties intended to modify, clarify, or confirm the terms of the Will regarding the property or properties at John Street. The plaintiffs said that the ambiguous references to John Street in the Deed are not capable of indicating any such intention. Accordingly, the plaintiffs contended the reference to properties in the Deed should therefore be read consistently with the Will as a specific reference to all real property (the land and improvements) at 1 John Street, Tumby Bay.
The defendants’ submissions
The defendants submitted that the execution of the Deed reduces the significance of the Will in the determination of the meaning of the ambiguous clauses. It was pointed out that ordinarily the operative obligation on the executors in relation to the three blocks of land would arise in the Will. Accordingly, the issue for the Court would be the proper construction of the Will. However, in this matter the parties have executed the Deed, a contract which contains recitals of fact and operative provisions.
The defendants contended the recitals of the Deed set out the agreed meaning of the Will with respect to the disposal of the estate. For example:
1Recital C(c) of the Deed provides, “All of the properties owned by the deceased at John Street, Tumby Bay in the State of South Australia”; and
2Recital C(f) of the Deed provides “The other half of all of the deceased’s properties at John Street, Tumby Bay”.

The defendants submitted that the operative provisions of the Deed operate on those recitals and relevantly clause 2.2(e)(2) of the Deed provides, “the estate and interest in the John Street properties”. The parties have, they submitted, by way of the recitals to the Deed, agreed on the proper construction of the Will and are therefore estopped from denying the recitals to the Deed and that the proper construction of the Will is in accordance with the terms of the Deed.[43] In support of this submission, the defendants cited the English decision of Prime Sight Ltd v Lavarello where the Privy Council said:[44]
Once upon a time it was the law that mere recitals in a Deed could not found an estoppel, but the law has long since changed. In Carpenter v Buller (1841) 8 M & W 209, 212-213, Parke B said:
“If a distinct statement of a particular fact is made in the recital of a bond, or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352; and a recital in instruments not under seal may be such as to be conclusive to the same extent … By his contract in the instrument itself, a party is assuredly bound, and must fulfil it. But there is no authority to show that a party to the instrument would be estopped, in an action by the other party, not founded on the Deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence.”
[...]
However, if as a matter of construction the recital amounts to a mutual agreement to treat it as true, and if there are no vitiating factors such as illegality or misrepresentation, the fact that the parties have willingly so bound themselves is itself sufficient reason for the contract to be enforced.
[43] Prime Sight Ltd v Lavarello [2013] UKPC 22 at [40]-[44]; Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 675-676.
[44] [2013] UKPC 22 at [31], [41].
The defendants submitted that the unique circumstances of this particular case are such that the issue for the Court is the proper construction of the words of the Deed and not the Will.
The defendants contended that, in determining the objective meaning of the words used, evidence of the surrounding circumstances and background facts is admissible to assist in the interpretation of the contract if the language of it is ambiguous or susceptible of more than one meaning, but it is not admissible to contradict the language of the contract when it has a plain meaning.[45]
[45] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352.
Accordingly, the defendants submitted that, as the phrases in the Deed are ambiguous, evidence of background circumstances to it is admissible.
The objective background evidence relied on by the defendants is:
1The state and nature of the three properties.
2The treatment of the three properties as one property by the Valuer‑General evidenced by the Valuation Record prepared for probate purposes that provides a single valuation for all three titles.[46]
3The Statement of Assets and Liabilities, which refers to all three properties as “18 Pumpa Street Tumby Bay”.[47]
4The instructions to Catherine Leis who drafted the Will.
5The Will.
6The dispute concerning the Will’s validity and the determination of that dispute by the entering of consent orders by Nicholson J.
[46] Exhibit TDT2.
[47] Exhibit D3.
Accordingly, the defendants submitted that on the proper construction a reasonable person with knowledge of the objective background evidence would construe the references to John Street as including all three blocks (1 John Street, 18 and 20 Pumpa Street).
Consideration
This action arose due to a dispute between the executors as to the status and meaning of the Will. The executors and beneficiaries of the Will, the six Trenberth brothers, executed the Deed on 3 April 2015 in order to resolve this dispute by agreeing to the intended meaning of the Will. Notably, at the time the Deed was entered into, the plaintiffs and Dale each had the benefit of legal assistance.
I accept that Christopher was trying to give an honest account of his understanding of conversations with his father, his father’s intentions and negotiations leading up to the execution of the Deed. However, his evidence with respect to the change from “property” to “properties” is a matter, on my assessment of the evidence, the defendants were not privy to and it is a matter between the plaintiffs and Mr Fowler. The fact that he did not exhibit the entirety of the letter, Exhibit D1, and did not depose in his affidavit to the conversations he gave oral evidence of having had with his father in 2011 gives me cause to question the reliability of his evidence. Further, Exhibit D1 is dated some months after the execution of the Will and does not have any relevance to the Deed or Will.
For the reasons I set out below, Christopher’s evidence regarding his subjective understanding and his intentions are not admissible in determining the proper construction of the Deed and for that matter the Will.
Recital C to the Deed set out the agreed meaning of the Will with respect to the disposal of the estate. Recital C(c) provides, “All of the properties owned by the deceased at John Street, Tumby Bay in the State of South Australia”; and Recital C(f) of the Deed provides “The other half of all of the deceased’s properties at John Street, Tumby Bay”. The operative provisions of the Deed operate on those recitals and, relevantly, clause 2.2(e)(2) of the Deed provides, “the estate and interest in the John Street properties”.
The plaintiffs allege the references to “properties” were included in the Deed without their agreement. Mr Howard by email dated 3 April 2014 to the plaintiffs’ solicitors requested an executable copy of the Deed including “…the amendments relating to “all the John Street property” in Recitals C.c, C.f, and clause 2.2(e) 2 as previously discussed”. It appears the three changes incorporating reference to “properties” were made by Mr Fowler and forwarded to the plaintiffs.
I am satisfied that there is no evidence of fraud or any other vitiating factors to suggest that the Deed does not validly record the intentions of the parties.
I agree with the defendants’ submission that the decision in Bethell v Bethell[48] is not applicable to this matter. Bethell concerned an appeal involving disputed claims to 10 acres of land. The recitals to the deed considered by the New Zealand Court of Appeal recorded that doubts had arisen as to the construction of the will under consideration, that it was the wish of the beneficiaries that the testators wishes be altered in place of the provisions in the will and that the will be amended/clarified as set out in the deed. The recitals did not make reference to the 10 acres of land. The Court determined that the explanation to the reference to 10 acres in the deed was to be drawn from the terms of the will. The Court held that the deed and the will must be read together because the purpose of the deed was to modify, clarify or confirm the terms of the will.[49]
[48] [2014] NZCA 442.
[49] [2014] NZCA 442 at [34].
The purpose of the Deed in this matter was to agree the meaning of the Will, rather than to alter, modify or confirm its terms.
I find that the proper construction therefore begins with the terms of the Deed. Applying the principle established by the Privy Council in Prime Sight Ltd v Lavarello,[50] the plaintiffs are estopped from denying the recitals to the Deed and that proper construction of the Will is in accordance with the terms of the Deed. The statement in the recitals regarding the terms of the Will is a statement which all parties to the Deed have mutually agreed.
[50] [2013] UKPC 22.
The references to John Street in the Deed are capable of having two meanings. Firstly, that the reference to John Street indicates that only the property facing John Street is relevant. Secondly the use of the word “properties” indicates that all three blocks are relevant.
As submitted by the defendants, the meaning of the references may be construed in the context of the surrounding circumstances and background facts.
As stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales, extrinsic evidence is admissible to assist in the interpretation of the Deed:[51]
The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.
In relation to evidence of prior negotiations, his Honour stated that:[52]
Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable.
[51] (1982) 149 CLR 337 at 352.
[52] (1982) 149 CLR 337 at 352.
It follows, therefore, that the evidence deposed to by the solicitor Catherine Leis, Exhibit D1, and Christopher’s evidence regarding both his father’s manner of referring to the properties in dispute and conversations with his father are inadmissible for the purpose of establishing the testamentary intention of Trevor in drafting the Will.
The other evidence tendered in this matter, regarding the state and nature of the properties and their use and the contributions made to them, the Will, and the dispute concerning the Will’s validity, are admissible as surrounding circumstances of the execution of the Deed.
I find that the three blocks are readily perceived as one parcel of land. The properties are adjacent and there are no visible boundaries between them. The Deed and the Will make no other reference to 18 and 20 Pumpa Street. The three blocks were valued as one parcel by the Valuer-General.
I find that the defendants’ use of the land has been confined to the block facing John Street. The business premises, the Gold Factory, occupies this block. Financial and non-financial contributions have only been made to this block. The blocks facing Pumpa Street were vacant and have not been improved by the defendants or anyone else.
I accept these matters as being in the minds of the parties at the time of recording the recitals to the Deed. The parties agreed on the references to properties at John Street with knowledge of the fact that a parcel of land comprising three blocks, all equally accessible from John Street, was a part of Trevor’s estate. It is also significant that the changes from “deceased’s property” to the plural “deceased’s properties” occurred in two subparagraphs of Recital C and each is preceded by the phrase “all of the”.
I consider that a reasonable person reading the Deed having regard to the surrounding circumstances would construe the reference to “properties” in paragraphs C(c) and C(f) of the Recitals and paragraph 2.2(e)(2) of the Deed as referring to all three blocks; 1 John Street, 18 and 20 Pumpa Street.
Construction of the will
Finally, having found that the Deed sets out the agreed meaning of the Will, at the request of the parties, I turn to consider the construction of the Will in the absence of the Deed and, in particular, the proper construction of the phrase “my real property at John Street, Tumby Bay, South Australia” in clauses 4(b) and 7.
As submitted by both parties, evidence surrounding the writing of the Will is admissible to give meaning to terms of the Will according to “the armchair principle”. The Court is entitled to put itself in the position of a testator in construing a will:[53]
[T]he court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words.
[53] Allgood v Blake (1873) LR 8 Ex 160 at 162.
Further, evidence regarding the subjective intention of the testator may be admissible to resolve an equivocation. This arises where a term of a will contains a description that is of sufficient certainty to describe two possible subjects.[54]
[54] In the Estate of Hubbuck [1905] P 129.
There is no equivocation in the terms of the Will. Evidence of surrounding circumstances will therefore be relevant for resolving the ambiguity under “the armchair principle”, but evidence of testamentary intention is not admissible.
In Fielder v Burgess,[55] Kourakis CJ referred to the decision of the United Kingdom Supreme Court on the interpretation of wills:[56]
When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in the documentary, factual and commercial context.
[55] [2014] SASC 98 at [42].
[56] Marley v Rawlings [2014] 2 WLR 213 at [20].
Therefore, I find the state and nature of the three blocks, their use and the contributions made to them and their treatments as one property by the Valuer‑General are admissible as material facts and circumstances known to the testator.
Other than referring to “my real property at John Street”, the Will does not identify the three blocks in dispute by street number, certificate of title, or in the case of 18 and 20 Pumpa Street by street name. Therefore, considering the terms of the Will in the context of the relevant evidence, the Will is construed as intending to refer to all three blocks in the area of John Street. Trevor signed the Will with knowledge of the fact that a parcel of land comprising three blocks, all equally accessible from John Street, was a part of his estate. Clauses 4(b) and 7 of the Will properly construed apply to all three blocks.
Conclusion
In summary, my findings are:
·The terms of the Deed are the starting point for construction.
·The terms of the Will are relevant to the construction, along with other surrounding circumstances.
·The references in the Deed to properties at John Street are references to all three blocks in dispute:
-       1 John Street described in CT 5482/650 as Section 388 hundred of Hutchinson in the area named Tumby Bay; and
-       18 Pumpa Street described in CT 5482/638 as Section 378 hundred of Hutchinson in the area named Tumby Bay; and
-       20 Pumpa Street described in CT 5482/657 as Section 377 hundred of Hutchinson in the area named Tumby Bay;
·Considering the Will alone in the absence of the Deed, the references to “my real property at John Street” in clauses 4(b) and 7 are references to all three blocks in dispute:
-       1 John Street described in CT 5482/650 as Section 388 hundred of Hutchinson in the area named Tumby Bay;
-       18 Pumpa Street described in CT 5482/657 as Section 377 hundred of Hutchinson in the area named Tumby Bay; and
-       20 Pumpa Street described in CT 5482/638 as Section 378 hundred of Hutchinson in the area named Tumby Bay.
I will hear the parties as to consequential orders.