Souhel Kanafani v Martin Kanafani & Anor [2013] NSWSC 240

Supreme Court New South Wales

Medium Neutral Citation: Souhel Kanafani v Martin Kanafani & Anor [2013] NSWSC 240 Hearing dates: 07.03.13 Decision date: 27 March 2013 Before: Nicholas J Decision: Par 18 Catchwords: WILLS PROBATE AND ADMINISTRATION - construction of will - testatrix and son co-owners of house - whether sum to be paid to son from proceeds of sale of the house intended to be taken from his share or hers - no question of principle Cases Cited: Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 Category: Principal judgment Parties: Souhel Kanafani - plaintiff Martin Kanafani - first defendant NSW Trustee & Guardian - second defendant Representation: Counsel: G P McNally SC - plaintiff L Ellison SC - first defendant Submitting appearance - second defendant Solicitors: Johnsons Solicitors - plaintiff Marsdens Law Group - first defendant NSW Trustee & Guardian - second defendant File Number(s): 12/181676

Judgment 1Najla Kanafani Fahd (the testatrix) died on 28 June 2010. She made a will on 17 May 2000 (the will) which was prepared by her solicitor. Letters of administration with the will annexed were granted to the NSW Trustee & Guardian, the second defendant, on 26 July 2011. 2By his amended summons filed 7 March 2013 the plaintiff seeks a declaration as to the proper construction of the terms of the will for the distribution of the proceeds of sale of the property situated at Granville (the house). 3The testatrix had seven children, to whom I refer by their first names, namely Souhel (the plaintiff), Martin (the first defendant), Ralph (now deceased), Rafat, Gazwa, Faten, and Lamis. 4A summary of the relevant background is as follows. In 1980 the deceased and Martin became the registered proprietors of the house as tenants in common, in which the testatrix held an interest of three quarters, and Martin held an interest of one quarter. The testatrix lived in the house continuously until her death. It was regarded by her and her family as her home, and occasionally her children resided there for various periods of time. 5Souhel gave evidence that, on occasions at family gatherings before and after she made the will, the testatrix referred to the fact that Martin owned a one quarter interest in the house. She said that when she died she wanted the house to be sold, Martin to be paid out his share, and the balance of the proceeds to be divided equally between all the children. Gazwa gave evidence to the same effect. 6On 17 April 2000 the testatrix gave instructions for the preparation of her will to her solicitor, apparently Mr Allan Bolster, of the firm Bolster Wager, Parramatta. The handwritten file note of her instructions recorded her intention to leave jewellery and clothing to her three daughters, the contents of the house to Martin, and the Arabic library to be distributed among her children at the discretion of the executor. Also included was a note in these terms: "R & R of estate to seven children". 7On 17 May 2000 the will was executed. Mr Bolster was one of the witnesses. 8By her will the deceased gave to Faten, Gazwa and Lamis her jewellery and her personal clothing, the contents of the house to Martin, and the Arabic library was to be distributed among her children at the discretion of her trustees. 9Relevantly, the will included the following: "... I GIVE DEVISE AND BEQUEATH the rest and residue of my estate both real and personal ... TO my Trustees UPON TRUST to sell call in and convert into money my said real and personal estate ... and as to the monies to arise from such sale calling in and conversion PAY my funeral testamentary expenses and debts I DIRECT that my Trustees DISTRIBUTE the balance thereafter in the following manner TO my son MARTIN KANAFANI a sum being ONE QUARTER of the proceeds of the sale of the house known as 12 Hewlett Street, Granville (after payment of agents commission and legal expenses associated with the sale) and as to the balance of the estate TO my children FATEN, GAZWA, SOUHEL, RALPH, MARTIN, RAFAT and LAMIS as joint tenants ..." 10The plaintiff's claim concerns the proper construction of the following passage of the will. "...I DIRECT that my Trustees DISTRIBUTE the balance thereafter in the following manner TO my son MARTIN KANAFANI a sum being ONE QUARTER of the proceeds of the sale of the house known as ... and as to the balance of the estate TO my children ..." 11The plaintiff contended that these words should be understood to reflect the testatrix's intention that from the net proceeds of the sale of the house upon her death Martin was to be paid out his one quarter share, leaving her three quarter share for distribution equally between the seven children. It was put that such a construction would reflect the intention of the testatrix expressed on the occasions referred to in evidence, and was consistent with the instructions of 17 April 2000 that the rest and residue of her estate be left equally to the seven children. Further, it was put that it would be inconsistent with her wish that the residue of her estate to be left equally to the children would consist only of so much as remained after Martin had taken one quarter of the proceeds of the sale of her interest in the house. Thus it was put that it was intended that Martin be paid the amount attributable to his interest in the house as a co-owner, and the balance, being the whole amount attributable to her three quarter interest be distributed equally among the children. It was submitted that, according to the usual principles of construction, the meaning sought by the plaintiff was supported by the terms of the will considered as a whole and, to the extent necessary to refer to it, by the evidence of Souhel, Gazwa, and the file note. 12On behalf of the first defendant it was submitted that the language of the will was unambiguous, and resort to extrinsic evidence was unjustified. His case was that the will provided that from his mother's estate he would be given a sum equivalent to one quarter of the proceeds of sale of her interest in the house, after payment of agent's commission and associated legal expenses, as well as an equal share with his siblings in the residue of her estate. It was put that provision for the gift to Martin from the proceeds of sale evidenced a change of the testatrix's intentions since she gave instructions to her solicitor on 17 April 2000. 13The principles of construction are well known. The task is to ascertain the intention of the testatrix from the words of the will. Resort to extrinsic evidence is limited. It is open to a court to supply by implication an omission which would give effect to the testamentary intention disclosed by consideration of the will as a whole. Helpful guidance in the present case may be taken from the principles stated to be incontestable, by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, pp 273, 274 in particular, the following: "(2) 'The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it' (Lord Halsbury L.C. in Leader v. Duffey; Ward v. Brown; Buckley L.J. in Kirby-Smith v. Parnell). (3) 'If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared' (Towns v. Wentworth; Hawkins on Wills, 2nd ed., at p. 6). ... (6) If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made' (Knight Bruce L.J. in Pride v. Fooks)."