New South Wales Supreme Court CITATION : Nabainivalu v Hopkins [2006] NSWSC 215 HEARING DATE(S) : 16/03/06 JUDGMENT DATE : 31 March 2006 JURISDICTION : Equity Division JUDGMENT OF : Young CJ in Eq DECISION : There is no gift of the stamp collection to the plaintiff. Plaintiff's claim is dismissed with no order as to costs. CATCHWORDS : SUCCESSION [166]- Wills- Construction and effect of testamentary dispositions- Direction that X may remove and dispose of any item in house- Whether gift to X of valuable stamp collection located in the deceased's home. WORDS & PHRASES- "Dispose". Charter v Charter (1874) LR 7 HL 364 Dupain v White (Cohen J, 15.9.1994, unreported) Dutton v Hockenhull (1874) 22 WR 701 Fleming v Burrows (1826) 1 Russ 276; 38 ER 107 Gerhardy v South Australian Auxiliary to The British and Foreign Bible Society Inc (1982) 30 SASR 12 Gregory v Hudson (1998) 45 NSWLR 300 CASES CITED : Jennor & Hardies case (1606) 1 Leon 283; 74 ER 258 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 Peck v Halsey (1726) 2 Pwms 387; 24 ER 780 Re Brace [1954] 1 WLR 955 Re Johnson [1928] SASR 490 Re McMahon [1913] QSR 47 Tatham v Huxtable (1950) 81 CLR 639 Wrench v Jutting (1841) 3 Beav 521; 49 ER 205 Apenisa Nabainivalu (known as Ben Nabainivalu) (P) PARTIES : Sydney Walter Hopkins (D1) John Gregory Barrett (D2) FILE NUMBER(S) : SC 2649/05 COUNSEL : R J Colquhoun (P) A Finnerty (S) (D) SOLICITORS : Walker Smith Solicitors (P) Donovan Oates Hannaford (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Friday 31 March 2006 2649/05 – NABAINIVALU v HOPKINS JUDGMENT 1 HIS HONOUR: This is a claim by the plaintiff to be entitled to retain possession of the stamp collection of the late Kenneth Albert Dick which he removed from the deceased's house (either with permission or under a claim of right) shortly after the deceased's death. The defendants are the executors of Mr Dick. 2 The deceased died on 12 July 2003 and probate of his last will was granted to the defendants on 8 October 2003. 3 The will was typed out on the deceased's personal letterhead. It is as follows: "THIS IS THE LAST WILL AND TESTAMENT OF ME KENNETH ALBERT DICK OF 38 WAUGH ST., PORT MACQUARIE, IN THE STATE OF NEW SOUTH WALES. I APPOINT:- SYDNEY HOPKINS, OF BLACKMAN'S POINT AND PORT MACQUARIE, AND THE REV DR JOHN BARRETT OF BONNY HILLS AS MY EXECUTORS AND FAILING EITHER OF THEM THE RECTOR FOR THE TIME BEING OF THE ANGLICAN PARISH OF ST. THOMAS, PORT MACQUARIE. ON MY DEATH I REQUEST THAT WALKERS – UNDERTAKERS OF KEMPSEY- BE ENTRUSTED WITH PREPARING MY BODY FOR BURIAL AT THE GENERAL CEMETERY AT PORT MACQUARIE WHERE I HAVE A PRE-PAID LOT NEXT TO MY MOTHER AND FATHER. I DIRECT THAT THE FUNERAL SERVICE BE HELD AT ST. THOMAS CHURCH. I ASK THAT MY FRIENDS STUART HANDSAKER, OF TAREE, AND BEN NABAINIVALU, OF 12 NARANI CRS, PORT MACQUARIE BE GIVEN EXCLUSIVE ACCESS TO MY HOME FOR ONE MONTH. DURING THIS TIME THEY ARE TO PREPARE THE HOUSE FOR HANDING OVER TO MY EXECUTORS, AND TO GO THROUGH MY POSSESSIONS IN PREPARATION FOR HANDING OVER ANY ITEMS (AS I HAVE DISCUSSED WITH THEM) TO THOSE I HAVE DECIDED SHOULD HAVE THEM. THEY ARE TO HAVE FREE AND PRIVATE ACCESS TO MY HOME AND MAY REMOVE AND DISPOSE OF ANY ITEM WHATSOEVER. I DIRECT THAT MY HOLDEN RODEO UTILITY BE GIVEN TO THE LIONS CLUB OF PORT MACQUARIE INC. THEY MAY KEEP IT FOR CLUB PROJECTS, OR THEY MAY SELL IT AS THE CLUB BOARD DECIDES. I FURTHER DIRECT THAT THE LOAN I GAVE TO THE CLUB FOR THE BUILDING OF THE LIONS HALL/CLUBHOUSE AT HIBBARD BE FORGIVEN IMMEDIATELY. ALL OTHER PROPERTY – BOTH REAL AND PERSONAL – I LEAVE TO THE ANGLICAN PARISH OF ST THOMAS, PORT MACQUARIE. I ASK THAT THE PAROCHIAL COUNCIL CONSIDER USING THE PROPERTY KNOWN AS 'HAYWARD HOUSE' AS THE CHURCH OFFICE. I ASK MY EXECUTORS TO PLACE A TOMBSTONE – SIMILAR TO THOSE OF MY FAMILY – ON MY GRAVE." 4 The plaintiff, who is known as Ben Nabainivalu, during the time of the exclusive access to the deceased's home, took possession of the deceased's stamp collection which was valued for probate purposes at $60,000. 5 The plaintiff says that the second defendant, one of the executors, who is also a priest at the Anglican Church at Port Macquarie, told him and Stuart Handsaker, that they had 30 days to clean the house. The plaintiff said that they were already aware of this as the deceased had told them about it. 6 The plaintiff said that the deceased had a strongroom in the house where he kept his stamp and coin collection. Stuart had a key which the deceased had given him before his death. They cleaned out the house and the Reverend Mr Barrett came round from time to time and the plaintiff and Stuart drew his attention to the stamps and coins. 7 Ben and Stuart gave cameras and valuable photographic equipment to the daughter of Mr and Mrs Clarke and gave an antique rocking horse and other items to the local Historical Society and various items to the Lions Club. Stuart took a painting and the coins and Ben took the stamps. The Reverend Mr Barrett knew of this. He also asked that the furniture be left in the house, and this occurred. 8 The plaintiff says that on the true construction of the deceased's will he was entitled to retain the stamp collection. The evidence is that the collection consisted of thousands of stamps assembled on black stock-sheets in ring binders stored in approximately 19 cardboard storage boxes. The Reverend Mr Barrett said he was concerned about leaving the stamps and coins in the house and Stuart Handsaker had said that he would pack it up and Mr Barrett thought that it would be stored for safe-keeping in the solicitor's office. However, when he went to the house on 7 August 2003 the stamp collection had gone. 9 At the commencement of the proceedings I asked whether Mr Colquhoun who appeared for the plaintiff was relying on any donatio mortis causa or secret trust and he replied in the negative. He also did not rely on any extension of the doctrine that there can be documents incorporated into the will as, despite what the will says, there does not appear to be any document recording what the deceased had told his friends as to the fate of items in his house. Accordingly, the dispute came down to the proper construction of the will. 10 Mr Colquhoun relied in part on a previous will of October 1997 where Stuart Handsaker and Stuart's wife Judith were given authority to enter the home for 30 days "to take, keep to himself, destroy or otherwise deal with any item or thing therein" and then pass the property to the executors for the Church at Port Macquarie. 11 Mr Colquhoun said that when there is an ambiguity in the will as to the description, one can look at the surrounding circumstances and the situation in which the testator made the will and prior wills. He cited Charter v Charter (1874) LR 7 HL 364 at 377, Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65 and 69 and Dupain v White (Cohen J, 15 September 1994, unreported). 12 I have no doubt about the principle, but I do not see, with respect, how it assists in the present case. Indeed, if one looks at the earlier will, there is an express right to the people who were to clean out the house to take what they want which right has been omitted from the will that went to probate. 13 Mr Colquhoun says that he has not been able to find any case in the reports comparable to the present. However, he submits that the scheme is that the house cleaners are enabled to keep, throw out or give away any item in the house, the car is then to go to the Lions Club and all other property to the Church. He says that as the Church would not be thought to be interested in the testator's personal chattels but only in the substantial capital assets (and the evidence is that these were over $10 million), that this reinforces the construction that the right to remove and dispose of any item includes a right to dispose of items to the house cleaners themselves. 14 Whilst it is true that, so far as counsel's researches and my own are concerned, no case directly on point has been found, there are some indications in the authorities as to how one goes about construing a will such as the present. In Gerhardy v South Australian Auxiliary to The British and Foreign Bible Society Inc (1982) 30 SASR 12, Legoe J held that a gift "to any other Christian organisation which may need assistance" was simply void for uncertainty. In Re McMahon [1913] QSR 47, a gift by a testator of his goods and money to "be equally divided to whatever children of mine then living may want it most, but nothing of mine at the time to be put to sale only divided equally" was held not to be a valid bequest as it was impossible to ascertain the objects of the gift. Again, in Re Johnson [1928] SASR 490, a gift to hand over the income to any approved object or person in Adelaide failed for uncertainty. There are other examples. 15 A gift of "some of my best linen" to a grandchild is void for uncertainty, though a bequest of the best linen as a legatee should choose is good: Peck v Halsey (1726) 2 Pwms 387; 24 ER 780. 16 There are also cases limiting general words. Thus, in Wrench v Jutting (1841) 3 Beav 521; 49 ER 205, a gift to A of household furniture and other like things "and all other goods of whatever kind" did not pass all goods to A. Likewise, in Dutton v Hockenhull (1874) 22 WR 701, a gift to the testator's wife of his writing desk "all the small coins, curiosities, and other articles" therein contained did not include a sum of gold, several bank notes and silver and copper amounting to £321.0.0. in that desk. Again, in Canada in Smith v Knight (1871) 18 Grant Ch 492, a gift of "carpet, blankets and whatever else I may have" at his house did not pass mortgages and a bank deposit book which were in the house. 17 As a general rule, a testator cannot delegate his will-making power. He cannot make a will, for instance, authorising the executor to distribute monies to persons who have rendered appropriate service to the testator: Tatham v Huxtable (1950) 81 CLR 639 and see Gregory v Hudson (1998) 45 NSWLR 300. Without going into all the technical difficulties that that rule presents, I should say that the only real exception is where there is a general power of appointment. 18 There are some old cases to the effect that a devise to A to dispose of at pleasure passes the fee simple: Jennor & Hardies case (1606) 1 Leon 283; 74 ER 258. Ordinarily a power to dispose of property includes a power to dispose of the property to oneself. 19 With these thoughts in mind I look again at the vital paragraph of the will, that is, that Stuart and Ben are to go through the "testator's possessions in preparation for handing over any items … to those I have decided should have them … and may remove and dispose of any item whatsoever". "Item" obviously refers to possessions. The word "possessions" is used without any word being employed which might limit the word "possessions" to possessions of a certain type. 20 "Possessions" is a very wide word. In Re Brace [1954] 1 WLR 955, the testator gave his daughter Irene his house "together with the contents of same and any possessions I may have". The testator had a house, furniture and effects, cash at bank, proceeds of an insurance policy and arrears of a pension. Vaisey J held that Irene took all of the testator's estate. He followed the decision of Gifford MR in Fleming v Burrows (1826) 1 Russ 276; 38 ER 107. 21 Ms Finnerty for the estate says that what the will meant was that the plaintiff was to dispose of items that the two principal beneficiaries would not want or need, such as bed linen, personal correspondence, old accounting records and other mess cleaned or miscellaneous items of little value that may need disposing prior to the house being handed over to the Church. It did not include items of value and so that if there, for instance, was a diamond ring or something of that nature, one would not have expected that the plaintiff would be entitled to keep it. Likewise, a bulky and valuable stamp collection found in the strongroom worth about $60,000. She puts that the word "dispose" is not used in the sense of transfer property, but rather throw away and is used in conjunction with the word "remove" so that one needs to read as a composite verb "remove and dispose". It is to be noted that when the testator spoke of a person obtaining an item he used the words "handing over" an item, whereas at the end of the relevant paragraph he uses the words "remove and dispose". 22 Mr Colquhoun also relied on a statement made by the deceased to the plaintiff that he was to "take what you want", but one must look at what the will says, not what was said during the testator's life unless there was some donatio or what the testator said can be legitimately used to put the Court in the testator's armchair. Likewise the earlier will, if it has any relevance, tells against the present construction, because there the testator actually used the words take, keep for himself, destroy or otherwise deal with property in the house. We have here a poorly drawn layman's will. The meaning is not clear. However, I am of the view that the words "remove and dispose" have to be read as one and they refer to throwing property out, rather than a gift of the property to Ben or Stuart, as the case may be. On this construction, there is no gift of the stamp collection to the plaintiff. 23 Construing the words "remove and dispose" in this way also means that there is no question of there being any general power of appointment. 24 The plaintiff's claim should be dismissed. 25 As to costs, these were not argued before me. It seems to me that the testator has caused some of the problems by the way in which the will was drafted. The executors were not represented by counsel. The action is an adversary action against an estate so there is no reason why the costs should come out of the estate. In my view the proper order is that each party should pay his or their own costs. 26 Accordingly, the order of the Court is that the proceedings are dismissed with no order as to costs. *********************** 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.