Trenberth v Trenberth

Case [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…

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Trenberth v Trenberth [2016] SASC 150
Case
[2016] SASC 150
Decision Date

CaseChat Overview and Summary

In the case of Trenberth v Trenberth, the executors of the deceased's will sought clarification on the interpretation of the words "my real property at John Street Tumby Bay" within the will and the phrase "John Street properties" in a Deed of Family Arrangement. The six sons of the deceased, who are the executors and beneficiaries of the estate, were divided over the interpretation of these terms, leading to a request for advice from the court. The central properties in dispute were three blocks located at 1 John Street, and 18 and 20 Pumpa Street, Tumby Bay.

The legal issues revolved around determining the correct interpretation of the will and the Deed of Family Arrangement, specifically whether the references to "John Street" were meant to encompass all three properties or just the one at 1 John Street. The plaintiffs argued that the will, when considered with surrounding circumstances, indicated a singular property, whereas the defendants posited that the Deed of Family Arrangement, which referred to "properties," should be the primary document for interpretation. The court had to decide on the admissibility and use of extrinsic evidence to ascertain the testator's intention and whether the Deed of Family Arrangement modified the terms of the will.

The court found that the will alone was insufficient to clearly identify the specific properties intended by the deceased, and thus, the terms of the Deed of Family Arrangement should be used as the starting point for interpretation. It held that the references to "John Street properties" in the Deed should be understood to include all three properties in dispute, aligning with the recitals of the Deed which specifically mentioned all properties owned by the deceased at John Street, Tumby Bay. The court rejected the plaintiffs' argument that their father always referred to the property at 1 John Street as the "Gold Factory," noting that this evidence was not privy to the defendants and therefore inadmissible for the purpose of interpreting the Deed. The court concluded that the Deed of Family Arrangement, when read in conjunction with the will and the surrounding circumstances, clearly intended to refer to all three blocks as part of the estate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].