New South Wales Supreme Court CITATION : Rennes & Anor v Death & Ors [2003] NSWSC 708 revised - 12/08/2003 HEARING DATE(S) : 28/07/03 JUDGMENT DATE : 4 August 2003 JUDGMENT OF : Gzell J DECISION : Gifts of paddocks valid. Order for excision of proviso. Costs to be borne by devisees. CATCHWORDS : SUCCESSION - Wills, Probate and Administration - Construction and effect of testamentary dispositions - Devises of paddocks within a lot in a deposited plan - Whether void for uncertainty - Proviso that devisee remain the registered proprietor of other land - Gift of that land to the testatrix who gifted it back by her will - Whether proviso should be excised - Whether rectification available at common law or limited to the Wills, Probate and Administration Act 1898, s 29A(1) - Whether the costs of subdivision and transfer of the paddocks should be borne by the devisees LEGISLATION CITED : Wills, Probate and Administration Act 1898 Family Provision Act 1982 Mason v Robinson (1825) 2 Sim & St 295 (57 ER 359) Adams v Jones (1852) 9 Hare 485 (68 ER 602) Re Roberts; Repington v Roberts-Gawen (1881) 19 Ch D 520 Smidmore v Smidmore (1905) 3 CLR 344 CASES CITED : Re Doland's Will Trusts [1970] 1 Ch 267 Rhodes v Rhodes (1882) 7 App Cas 192 Osborne v Smith (1960) 105 CLR 153 Lloyd v Frape (1922) 23 SR(NSW) 11 Re Grosvenor [1916] 2 Ch 375 Re Hewett [1920] 90 LJ Ch 126 Sharon Carol Rennes and Nikki Elizabeth Smith - Plaintiffs PARTIES : Thomas James Death - 1st Defendant Russell William Death - 2nd Defendant FILE NUMBER(S) : SC 3776/02 COUNSEL : B K Ralston - Plaintiffs C M Simpson - 1st Defendant SOLICITORS : Garvins Solicitors Golsby Whiteley Solicitors IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J MONDAY 4 AUGUST 2003 3776/02 SHARON CAROL RENNES & ANOR v THOMAS JAMES DEATH & 2 ORS JUDGMENT 1 The plaintiffs are the executrices and trustees of the estate of Wilma Florence Death, deceased. Probate of her will was granted to them in February 2001. The Deceased died in May 2000. She made her will in December 1997. The plaintiffs seek answers to a number of questions of construction of the will. 2 The Deceased devised her interest in a property, "Castlefields", to the plaintiffs upon trust as to lot 3 in deposited plan 865709 for her son Thomas James Death, the first defendant. As to lot 2 in the deposited plan, she devised to the plaintiffs upon trust, the "flat paddock" for her son Russell William Death, the second defendant, the "double dam paddock" for her son William Duane Nicholas Death, the third defendant, the "9 acre paddock" and the "west of airstrip paddock" for the first defendant, and the remainder for the plaintiffs and the first defendant as tenants in common in equal shares. 3 With respect to each of the devises of the paddocks, there was a proviso in the following terms: "PROVIDED THAT he survives me and at the time of my death remains the registered proprietor of those parts of the original property "Castlefields" bequeathed to him by my late husband William Thomas Death." 4 Prior to his death, the plaintiffs' father was the registered proprietor of "Castlefields". Pursuant to his will, the property was subdivided into four lots in deposited plan 865709. Lot 1 was transferred to the second defendant, lot 2 was transferred to the Deceased, lot 3 was transferred to first defendant and lot 4 was transferred to the third defendant. 5 In October 1997, following the break up of his marriage, the first defendant made a gift of lot 3 to the Deceased. The property was transferred for $1. The Deceased remained its registered proprietor. 6 The first question that arises is whether the devises of the identified paddocks constitute valid gifts. 7 There is no uncertainty between the parties as to the identity of the specified paddocks within lot 2. If a subdivision of lot 2 were to be made to achieve the transfers of the paddocks, the boundaries of the subdivision are not in dispute. Each of the paddocks the subject of the devises is contiguous with the lot transferred to the devisee pursuant to his late father's will. 8 It has been said that it is not enough to avoid a will for uncertainty that the dispositions are so absurd and irrational that it is difficult to believe they should have been the real intention of the testator. In order to avoid a will it must be incapable of any clear meaning (Mason v Robinson (1825) 2 Sim & St 295 at 298 (57 ER 359 at 360)). A disposition will not be avoided for uncertainty if the Court can arrive at a reasonable degree of certainty (Adams v Jones (1852) 9 Hare 485 at 486 (68 ER 602)). The modern doctrine it not to hold a will void for uncertainty unless it is utterly impossible to put a meaning upon it (Re Roberts; Repington v Roberts-Gawen (1881) 19 Ch D 520 at 529). 9 In light of the common understanding as to the boundaries of the paddocks described in the will of the Deceased, I do not regard the devises as being void for uncertainty. 10 Because of the limited size of the paddocks, the approval of the local authority will be required with respect to any subdivision to give effect to the devises. A surveying engineering, town planning and environmental consulting firm has been retained and it has communicated with Blayney Shire Council. The Council has approved a development application to adjust the boundaries of lots 1, 2 and 4 to give effect to the devises in favour of the second and third defendants. There is reason to believe that the Council would approve a further adjustment of the boundaries of lot 2 with respect to the "9 acre paddock" and the "west of airstrip paddock" if they can be consolidated with an existing lot. 11 In my view, the devises of the paddocks to the plaintiffs on trust for the sons of the Deceased are not void for uncertainty and constitute valid gifts. 12 The proviso to the devises of the paddocks was satisfied with respect to the second and third defendants. They remained the registered proprietors of lots 1 and 4 respectively. The proviso was not satisfied with respect to the first defendant. He transferred lot 3 to the Deceased and she remained the registered proprietor of it at the time of her death. By her will she made a gift of it to the plaintiffs on trust for the first defendant. 13 It was submitted on behalf of the plaintiffs that there was no inconsistency in the will. Pursuant to the Wills, Probate and Administration Act 1898, s 21, the will spoke and took effect as if it had been made immediately before the death of the Deceased. If lot 3 had been transferred back to the first defendant prior to the death of the Deceased, it was submitted that the proviso would have been satisfied. 14 I reject that submission. The word "remains" signifies a continuation of a state of affairs, in this case, the continuation of the holding of land as a registered proprietor. In my view, the provisos required the continuous holding of the subject lots from their initial creation until the death of the Deceased. 15 I am of the opinion that there is an inconsistency in the will between the devise of lot 3 in favour of the first defendant and the proviso to the devise of the "9 acre paddock" and the "west of airstrip paddock". 16 In those circumstances, the primary intention of the Deceased is to be ascertained and the irreconcilable provision is to be rejected (Smidmore v Smidmore (1905) 3 CLR 344 at 354). 17 In Re Doland's Will Trusts [1970] 1 Ch 267, a testator disposed of his residuary estate in shares to a number of named persons with the proviso that if any of the trusts of any of the shares should fail, his trustees should stand possessed of the residuary estate for two named persons absolutely. Since the wife of one of the first named persons witnessed the will, the bequest to him failed. The court was asked to determine whether the trusts of all the shares had failed within the meaning of the proviso, or whether the null and void share was held for the two named persons, or for those entitled on intestacy. 18 Buckley J held that it was first necessary to construe the clause as a whole without regard to the events that had actually occurred and then to decide whether the avoidance of one of the gifts had caused the trusts of all the shares to fall within the meaning of the proviso. At 272, Buckley J pointed out that if it was manifest that there was a mistake in the true expression of the testator's intention and the Court was clear about that true intention it would give effect to it and for that purpose would remould the testator's language. At 274, he said: "If one finds a corrupt passage in a will where it is clear that something has gone wrong with the language, the court is entitled to remould the language or to read in additional words if, but only if, the true intention of the testator is clear." 19 Buckley J concluded that the true intention of the testator was to benefit a large number of persons with which the proviso, read literally, would conflict and the language of the proviso should be remoulded to give effect to the testator's intention that only a share of the residuary estate that failed should go to the two named persons. 20 In this case, the clear intention of the Deceased was that the first defendant should benefit. He was to benefit from the transfer in his favour of lot 3. He, like his brothers, was to benefit from the addition of contiguous portions of lot 2 to the lots acquired under his late father's will. Since the Deceased was the registered proprietor of lot 3, the first defendant could not comply with the proviso to the devise of the "9 acre paddock" and the "west of airstrip paddock" in his favour. There was no point to this devise in his favour if it were the intention of the Deceased that the proviso should take effect. 21 In my opinion, the clear intention of the Deceased was to benefit the first defendant along with his brothers. Indeed, the intention to benefit him was even clearer. Not only was he to recover lot 3, but he was to share with his sisters in the remainder of lot 2 in addition to the devise of the "9 acre paddock" and the "west of airstrip paddock." The proviso to the devise in favour of the first defendant is inconsistent with that intention. 22 A Court cannot delete words from a will if to do so would alter the meaning or effect of what remains (Rhodes v Rhodes (1882) 7 App Cas 192 at 198). In Osborne v Smith (1960) 105 CLR 153 an application for letters of administration with the will annexed was rejected. In that case, legacies to a hospital were impugned on the basis that the testatrix did not know and approve of the legacies. But the legacies were not struck out and the remainder of the will admitted for to do so would give the residuary legatee more than she was intended to receive. 23 That is not the case in the instant circumstances. The deletion of the proviso will not alter the meaning of what remains. The residuary gifts will be unaffected. It was never the intention of the Deceased that the "9 acre paddock" and the "west of airstrip paddock" should remain part of lot 2 or fall into residue. 24 In my opinion, the proviso to the devise of the "9 acre paddock" and the "west of airstrip paddock" should be excised from the will. 25 The Wills, Probate and Administration Act 1898, s 29A(1) enables the Court, if satisfied that a will is so expressed that it fails to carry out the testator's intention, to order that the will be rectified. The summons before me did not seek an order under that provision. The plaintiffs' case was that no rectification was required. The first defendant did not make a cross application for rectification. If he had, it would have been outside the 18 month period from the death of the Deceased within which such an application is required to be brought by s 29A(2). If there is an explanation for delay, however, leave to bring an application out of time may be granted under s 29A(3). 26 Without deciding whether the Wills, Probate and Administration Act 1898, s 29A(1) ousts the Court's jurisdiction to grant rectification of a will at common law, I will grant the first defendant leave to bring an application out of time under s 29A(3) on the basis that it is a response to the construction summons and it was filed more than 18 months after the death of the Deceased. If that application is brought, I will order rectification of the will of the Deceased under s 29A(1). 27 It is unnecessary for me to answer the question whether, in the event that any of the gifts in favour of the defendants failed, what consequence flowed from that failure. 28 The Deceased did not provide by her will for any fund to bear the cost of the subdivision of lot 2 and the amalgamation of portions thereof in lots 1, 3 and 4. I am asked who should bear those costs. 29 In Lloyd v Frape (1922) 23 SR (NSW) 11, a testator divided certain land by making a number of specific devises of parcels of it among various members of his family. Having analysed the authorities, Street CJ in Eq concluded at 19 that Re Grosvenor [1916] 2 Ch 375 was more in accordance with the trend of modern authority than Re Hewett [1920] 90 LJ Ch 126 and he followed it. In that case, Astbury J held that, as the costs of transfer and of stamps were not costs incurred in getting in the estate for distribution, but were incurred after the specific legacies had been assented to, the specific legatees were liable for the whole costs, including those of the executors. 30 In Lloyd, Street CJ in Eq concluded that the costs of transferring the lands specifically devised were not testamentary expenses and were to be paid by the specific devisees. I adopt the same approach. In my view the costs of implementing the devises should be borne by the specific devisees. 31 The construction summons asked which assets of the estate should bear the burden of the legacies provided in the will, the costs of implementing specific bequests, the costs of defending proceedings under the Family Provision Act 1982 and the costs of the administration of the estate. The further question was raised, whether the first defendant should pay rental to the estate in respect of his occupation and use of property comprised in the estate. 32 As some of the legatees were not represented, I raised with counsel the desirability of my deciding the principal issues and standing over the balance of the summons to allow the parties to consider their position. Counsel for both sides agreed in this course. 33 I direct the parties to bring in short minutes of orders reflecting my reasons. I will hear the parties on costs. ********** Last Modified: 08/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.