Supreme Court New South Wales Medium Neutral Citation: Salier v Watson [2014] NSWSC 237 Hearing dates: 12 March 2014 Decision date: 12 March 2014 Before: Pembroke J Decision: See paragraph [20] Catchwords: SUCCESSION - construction of a will - subjective intention of testator - recourse to extrinsic evidence SUCCESSION - difficulty in implementing intention - ancillary steps necessary to give effect to intention Legislation Cited: Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Cases Cited: Fittler v Fittler [2009] NSWSC 291 Hendry v The Perpetual Executors and Trustees Association of Australia (1961) 106 CLR 256 Towns v Wentworth [1858] 14 EK 794; (1858) 11 Moo PC 526 Category: Principal judgment Parties: Gordon Albert Salier - plaintiff Lee Stephen Watson - first defendant Raymond Winston Elyard - second defendant Rhonda Janet MacBeth - third defendant Representation: Counsel: A Hill - for the plaintiff P H Blackburn-Hart SC with F Maghami - for the first defendant M S Willmott SC with M Tibbey - for the second and third defendants Solicitors: Gordon A Salier AM - for the plaintiff Robbins Watson - for the first defendant LC Muriniti & Associates - for the second and third defendants File Number(s): 2013/269294 Judgment 1These are proceedings commenced by Gordon Albert Salier who is a solicitor appointed by order of this court on 20 March 2013 as the administrator of the estate of the late Samuel Winston Elyard. The authority given to Mr Salier is limited to the institution and maintenance of these proceedings relating to the construction of the will dated 2 August 2007 of Samuel Winston Elyard and to do such things necessary in connection therewith. 2The testator died on 23 November 2009. On 18 March 2010 probate of his last will was granted to Denise Susan Watson, his daughter. She was also appointed as the sole executor and trustee of his will. 3Denise Watson died on 4 October 2010, seven months after she was granted probate of her late father's will. At the time of her death his estate had not been fully administered. She died intestate. Pursuant to s 127 of the Succession Act 2006 (NSW) letters of administration of her estate were granted to her son, Lee Watson, on 16 April 2012. 4The will of the testator contained the following relevant provisions. It stated that it was the last will and testament of Samuel Winston Elyard and stated that his address was Unit 1, 163 Ocean Street, Narrabeen. It instructed his trustee to sell at the market price his interest in Unit 1, 163 Ocean Street, Narrabeen, or to use his or her discretion to delay the sale until the market improved. It also devised to his daughter, Denise Watson, all of his interest in property that he described as Unit 2, 163 Ocean Street, Narrabeen. The Land 5At the time of his death the testator was registered on the title of the land known as 163 Ocean Street, Narrabeen, as a tenant in common with his daughter Denise Watson. The testator owned a 99/100ths share of the land and Denise Watson owned a 1/100th share as his tenant in common. 6At that stage the land had not been the subject of strata subdivision and was known as Lot 3 of section 52 in Deposited Plan 4888. That is the issue that gives rise to the problem on which this construction suit hinges. The point is that the testator, strictly speaking, could not devise Unit 2 of the Narrabeen property to Denise Watson. Nor could he give directions with respect to the sale of Unit 1, for the simple reason that, as a matter of law, no separate titles yet exist in respect of the two units. That was the case at the time of the will and remained the case at the time of the testator's death. It remains the case today. Intention of Testator 7The intention of the testator that there would be a strata subdivision in the fullness of time is transparently obvious. On 13 April 1995 he lodged a development application with Warringah Shire Council seeking consent for a dual occupancy and a strata subdivision in respect of the whole of the property at 163 Ocean Street, Narrabeen. On 6 September 1995 council approved the development application. On 26 August 1999 council granted building approval for the construction of a dual occupancy dwelling. On 30 November 1999, the testator lodged an application to modify the consent, to which council later acceded. 8Subsequently, the testator carried out the construction work and on 6 May 2004 council issued a final compliance certificate with regard to the construction. At the date on which his will was made, the improvements on the land consisted of two separate and distinct units: A ground floor unit which was known and referred to as Unit 1 and a first floor unit which was known and referred to as Unit 2. Each was wholly self-contained. 9Lee Watson, the son of Denise Watson and the grandson of the testator, gave evidence that the testator said to him: 'There will eventually be two properties built on the land, one to be solely owned by Denise and the other to be solely owned by me'. He also said that the testator explained to him that: I do not want to have to pay two sets of council rates until we have to, when the two units are eventually subdivided. I want to minimise any liabilities associated with the property. Why would I pay more money when I don't have to? 10Lee Watson added that later, when his grandfather's health was not well, he also said to him: Your mother is on the title so that she can attend to paying outgoings on the property as a part owner of the property. She has authority to attend to those matters this way, as she is registered on the title. Duty of Court 11The duty of the Court in construing the will of a testator is to do what it can to give effect to the testator's subjective intention. There are limits, of course, and a Court will be constrained in some cases by the language actually chosen and used in the will. As long ago as 1858 the Privy Council said in Towns v Wentworth [1858] 14 EK 794; (1858) 11 Moo PC 526: When the main purpose and intention of the testator are ascertained to the satisfaction of the Court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified. 12More recently the Chief Judge of this division reiterated the paramount importance of giving effect to the intention of the testator in Fittler v Fittler [2009] NSWSC 291 at [31]. She said after expressing her conclusions on the issue of construction that the parties: know what their mother intended and it seems to me that every possible step should be taken by the executors to put in place their mother's desire. In other words, to do their duty to uphold the will made by their mother. 13I should add one further authority in support of the approach which I think is necessary on the facts of this case. In the judgment of Menzies and Taylor JJ in Hendry v The Perpetual Executors and Trustees Association of Australia (1961) 106 CLR 256 at 266 it was said, in connection with a similar conundrum: This question is not to be answered by any strict legal analysis of the rights of the testator as a partner during his life, and certainly not by considering the rights of his personal representative after his death. What has to be done is to determine what the testator meant by his words in the will and when the will is looked at in the light of the circumstances as they existed immediately before his death. Resolution 14I do not think that this dispute gives rise to a problem which is too difficult to resolve. It is true that the intended plan of strata subdivision had not come into existence and it is true that the testator was the registered proprietor of only 99/100ths of the land known as 163 Ocean Street, Narrabeen. But the evidence which I have recounted makes clear beyond any reasonable doubt that he intended that his daughter should receive the whole of what was commonly referred to as 'Unit 2, 163 Ocean Street'. Other than for the concerns of lawyers, I doubt whether a lay person would have paused to question the intention of the testator or the power to give effect to that intention. I do not think that I should allow any concerns of the type articulated by senior counsel for the second and third defendants to prevent me from giving effect to the clear intention of the testator. 15The summons seeks relief which is in two parts. The first question is really whether the gift of Unit 2, 163 Ocean Street to the late Denise Watson is a valid gift and, if so, whether her estate is entitled to performance of that gift. The second question is whether, in the events which have happened, the administrator of the estate of the testator, who will succeed Mr Salier, is entitled to expend moneys on seeking and obtaining a strata subdivision of the property in order to give effect to the gift. He or she will need to do so, not just for the purpose of giving effect to the gift of Unit 2 to the estate of Denise Watson, but also for the purpose of giving effect to the instruction in the will to sell at the market price the testator's interest in Unit 1 at 163 Ocean Street, Narrabeen. 16The evidence from several gentlemen who are expert in the area of town planning was that the steps remaining to obtain registration of a plan of strata subdivision, as a condition precedent to the sale of Unit 1 and the bequest of Unit 2, are 'reasonably straightforward' and 'very easy to obtain'. 17The fact that the estate of Denise Watson is a tenant in common of the whole of the land at 163 Ocean Street, Narrabeen, to the extent of a 1/100th share, does not present a practical obstacle. The administrator of Denise Watson's estate is her son, Lee Watson. He gave evidence that he will consent and cooperate with the process of obtaining a plan of strata subdivision. There was no suggestion and no cross-examination and no evidence from anyone that there would be any difficulty arising from the fact that ownership is split in the way that it is. 18It seems to me that, while I do not criticise the second and third defendants for raising the concerns which they have, the issues which they have raised do not represent sound legal or practical reasons for not giving effect to the intention of the testator - which is so clearly revealed in the will and in the admissible extrinsic evidence. 19For those reasons the plaintiff is entitled to the relief which it seeks in the summons. I should add that if it were ever necessary on the facts of this case, it would be appropriate for the administrator to obtain an order pursuant to s 81 of the Trustee Act 1925 (NSW). I only mention it for more abundant caution. It does not seem to me to be necessary, having regard to my view as to the proper scope and effect of the testator's will. Orders 20I therefore make the following orders and declarations: (1)I declare that the gift of the property described in the will as 'Unit 2/163 Ocean Street, Narrabeen' to Denise Susan Watson is valid and effectual; (2) I declare that in the events that have happened, the administrator of the estate of the testator is entitled to take all such reasonable steps and to expend all necessary moneys on seeking and obtaining the registration of a plan of strata subdivision of the property known as 163 Ocean Street, Narrabeen in order to give effect to his will, including in particular the gift of the property known as Unit 2. (3)I order that the plaintiff have his costs out of the estate on the indemnity basis and the defendants have their costs out of the estate on the ordinary basis. 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. Decision last updated: 14 March 2014