Supreme Court New South Wales Medium Neutral Citation: Jones v Robinson & Ors [2019] NSWSC 932 Hearing dates: 15 July 2019 Decision date: 24 July 2019 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [62] - [63] Catchwords: SUCCESSION – wills, probate and administration - construction and effect of testamentary dispositions - construction of a homemade will Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Fell v Fell (1922) 31 CLR 268 Lewis v O'Loughlin (1971) 125 CLR 320 Lockrey v Ferris [2011] NSWSC 179; (2011) 8 ASTLR 529 Re Gulbenkian's Settlement Trust [1970] AC 508; [1968] 3 All ER 785 The Estate of Nicholas Paul Enright [2017] NSWSC 1646 Category: Principal judgment Parties: Lynette Jones (first plaintiff) Joy London (second plaintiff) Mervyn Robinson (first defendant) Margaret Bemrose (second defendant) Bruce Jeffery (third defendant) Margaret Vero (fourth defendant) Collen Jeffery (fifth defendant) Kathryn McKenzie (sixth defendant) Noel Jeffery (seventh defendant) Grant Martin (eighth defendant) Sonia Davis (ninth defendant) Stephen Martin (tenth defendant) Venessa Kook (eleventh defendant) Donna Pearce (twelfth defendant) Michelle Hewerdine (thirteenth defendant) Darren Robinson (fourteenth defendant) Shannon Robinson (fifteenth defendant) Terry Robinson (sixteenth defendant) Representation: Counsel: M S Willmott SC, A Hill (plaintiffs) M Condon SC, J P Nathan (7th defendant) Solicitors: Braye Cragg Solicitors (plaintiffs) Wehbe & Co (7th defendant) File Number(s): 2019/30343 Judgment Background facts 1. This matter concerns the will (the will) of the late Daisy Roach (the Deceased). By amended summons dated 6 June 2019, the plaintiffs sought a determination as to the true construction of the handwritten will of the Deceased dated 25 September 2013. 2. The Deceased died on 24 November 2017. 3. At the time of her death, the Deceased was not married and was not in a de facto relationship, nor did she have any natural or adoptive children. The Deceased's parents predeceased her, as did her two siblings. The Deceased did have multiple nieces and nephews who survived her. 4. Probate was granted to the Plaintiffs on 30 November 2018. 5. The First Plaintiff is Lynette Jones (Lynette) and the Second Plaintiff is Joy London (Joy) (referred to as Joy Ashley in the will). The Plaintiffs were both nieces of the Deceased and are both executors and beneficiaries under the will. 6. The first to sixteenth defendants are other potential beneficiaries of the Deceased's estate if the Deceased is found to have died intestate. By order of Justice Lindsay dated 3 April 2019, the Seventh Defendant, Noel Jeffery, was appointed to represent the interests of the other defendants except for the eighth, ninth and tenth Defendants. The eighth, ninth and tenth Defendants did not appear or participate in the matter. 7. The Plaintiffs as the executors estimate the gross value of the estate at $2,786,173.25 (although this appears to be an erroneous calculation), including the following property: 1. The realty at Veda Street Hamilton (the Veda Street Property), estimated value $475,000, 2. Jewellery, estimated value of $5,000, 3. Monies in the accounts of the Newcastle Permanent Building Society, total of $585,346.08, 4. Monies in the accounts of the Police Bank, total of $1,624,005.70, 5. Proceeds of an AMP life policy, value of $36,877.31, 6. BUPA health insurance refund, value of $1,458.30, 7. Shares in Boardroom Pty Ltd, value of $21,306.24, and 8. Monies in MLC capital bond account, total of $26,679.62. The Amended Summons 1. The Plaintiffs are seeking determination as to the set issues described in the amended summons: 1. A determination of the true construction of clause 5 of the will, in particular whether the will should be read as: 1. The will should be read as if the words "…if the villa has been sold…" were omitted; 2. The gifts after the words "…if it has been sold…" take effect if the villa referred to has not been sold; or 3. Such gifts after the said words, "…if it has been sold…" do not take effect and the residue passes on intestacy. 1. A determination as to whether the word 'investments' includes the following assets: 1. Newcastle Permanent Building Society accounts; 2. Police Bank accounts; 3. AMP life policy; 4. BUPA health refund; 5. Shares in Boardroom Pty Ltd; and 6. MLC Capital Bond Account. 1. A determination as to whether the word 'villa' refers to the Veda Street Property. 2. A determination as to whether the will dated 29 September 2013 wholly or partially revoked the will of the Deceased dated 9 September 2002 and if so the extent of the revocation. The Deceased's will 1. The will, dated 25 September 2013, is in the Deceased's handwriting. 2. The attesting witnesses are Mr Richard Murphy, a solicitor practicing at Newcastle, and his secretary, Ms May Warne. 3. In a letter dated 4 June 2018, Mr Murphy stated that the Deceased had brought the document to his office in Newcastle, and had told Mr Murphy that she wished him to retain it for safe keeping. Mr Murphy noted that although the document had been signed by the Deceased, it had not been witnessed. He then proposed that the will should be witnessed and he himself wrote on the second page, "Executed as my last will and testament on 25 September 2013". The Deceased then signed in the presence of Mr Murphy and Ms Warne who thereupon signed the will as well (CB/49). 4. Generally the will appoints executors and trustees, makes arrangements for the Deceased's funeral and burial, and makes several gifts to named beneficiaries. 5. It is appropriate to set out the text of the will below: I appoint my executors and trustees hereafter called my trustees my nieces Lynette Jones and Joy Ashley Following my death I wish to be cremated following a private funeral I do not wish there to be any funeral notice in the paper until after the funeral and cremation. I wish my ashes to be placed adjacent to my late husband Charles Roach at Beresfield. I give to my friend Judith Taffe 14/81 Kalaroo Rd Red Head 2290, 50,000 fifty thousand dollars To my step son Gerald Roach on condition he survives me the sum of twenty five thousand dollars $25,000 To my step son Stephen Roach on the condition he survives me the sum of $25,000 twenty 5 thousand dollars. To my friend Ronald Collins on the condition he survives me $8,000 and on condition that such be spent on his unit to be supervised by my trustees for paint work or carpeting his unit he (cannot speak) 53 Peninsular Apartments Nobbys Rd Newcastle 2303 *Lynette Jones Wrightson Avenue Bar Beach. If the villa hasn't already been sold it goes to Lyn if it has been sold whatever money is left after the others get their share what I have in investments ¾ three quarts of money goes to Lynette Jones the rest goes to my niece Joy Ashley. My jewellery to Joy Ashley One diamond watch One blue sapphire wedding ring One blue sapphire and diamond eternity ring One sapphire and diamond ring One single diamond ring One sapphire and diamond square setting ring One diamond and cross over ring One square setting dress ring (diamond) One sapphire and diamond cluster ring One sapphire and diamond bracelet Joy Ashley 26 Smokey Ridge Drive Arrakoon NSW 2431 1. In particular, the issue in dispute concerns the disposal of a property mentioned in the penultimate clause of the will. I have marked the relevant clause with an asterisk for convenience. The clause was referred to as 'clause 5' by the parties. 2. It is uncontroversial that the 'villa' referred to in clause 5 is the Veda Street Property. 3. The Plaintiffs note the following: 1. That the Deceased acquired the Veda Street Property in or about January 2010; 2. In an advertising brochure relating to the Veda Street Property issued in October 2009, the property is described as a 'villa'; 3. In the Deceased's personal affects, there was particular mail issued to the Deceased at the address of 'Villa 3'; and 4. At the time of her death, the Deceased owned no other property. 1. According to the affidavit of Ms Jessie Preece dated 1 September 2018, she states that she was a friend of the Deceased and who visited her frequently. She states: I had discussions with Daisy about her will. I recall on one occasion when Daisy and I were having a conversation at her place, Daisy said, "I will leave money for Ronny to be spent on carpet. I will leave Joy some money and I will leave the villa to Lyn." I did not ask Daisy about this she just said that to me. This conversation took place in the last year of her life. The "Ronny" Daisy was referring to is Ronald Collins. The "Joy" Daisy was referring to is Joy London and the "Lynn" that she referred to is Lynette Jones. 1. Ms Judith Taffe in her affidavit dated 1 September 2018, stated she recalled having conversations with the Deceased about her will: On one occasion Daisy said to me, "Ronny was good to me during the earthquake I will leave him some money." The "Ronny" Daisy was referring to is Ronald Collins. Approximately 18 months to 2 years before Daisy passed away, I had a discussion with Daisy at her home at Vera Street, Hamilton. Daisy said, "I have left the unit to Lynn because Lynn has been very good to me." I said, "Yes. Lynn has been good to you I agree," The "Lynn" Daisy referred to is Lynette Jones. I have had discussions with Daisy on at least 3 occasions where she has said, "I am leaving Joy some money." The "Joy" Daisy is referring to is Joy London. 1. At the time of the Deceased's death the Veda Street Property had not been sold. Submissions Plaintiff submissions 1. The Plaintiffs make several submissions with respect to each of the questions for determination by the court. 2. The Plaintiffs submit that clause 5 should be read as if the gifts after the words '…if it has been sold…' take effect even though the villa has not been sold (per para 1(b) of the Amended summons). 3. Clause 5, as set out above, deals with two parts of the Deceased's estate, the 'villa' and 'investments' and proscribes the two Plaintiffs as beneficiaries. 4. The Plaintiffs submit that had the 'villa' been sold prior to the Deceased's death, the combined value of her liquid assets (assuming the proceeds of the sale of the 'villa' were included under the word 'investments') would have been divided between Lynette and Joy in proportions 75%:25% after payment of the other proscribed legacies and funeral and testamentary expenses (Plf subs [15]). 5. However, the villa had not been sold prior to the Deceased's death. Therefore, the first alternative, on its face makes no provision for the distribution of the 'investments' after payment of the legacies (Plf subs [15]). 6. The Plaintiffs note that under para 1(a) of the Amended Summons, if the phrase 'if it has been sold' is omitted, would seem to remove the alternatives and arguably defeats the Deceased's intentions (Plf subs [16]). 7. The Plaintiffs further note that if the Deceased's intention can be construed such that her nieces were to receive her assets at about a proportion of 75%:25%, the Court could add after the words 'goes to Lyn', the words 'and whatever is left after the others get their share'. Therefore the gifts after the words '…if it has been sold…' take effect regardless of whether the villa has been sold (Plf subs [18]). 8. If these words cannot be imputed and the gifts after the words '…if it has been sold' are void for uncertainty (as per para 1(c) of the Amended summons), there will be an intestacy. This is clearly against the Deceased's intentions as she intended the will to have effect and dispose of all her assets (Plf subs [19]). 9. The Plaintiff submits, therefore, that the villa should go to Lynette, the jewellery should go to Joy, the legacies and expenses are paid from the remaining 'monies' and whatever is left should be split; 75% to Lynette and 25% to Joy. In the alternative, the Plaintiff submits that the villa be included as part of the monies, so that the jewellery goes to Joy, the rest of the estate including the villa is liquidated, the legacies and expenses paid and whatever is left be split; 75% to Lynette and 25% to Joy (T10/37-11/3). 10. The Plaintiffs submit that the 'villa' in the will refers to the Veda Street Property (Plf subs [23]). 11. The Plaintiffs further submit that 'investments', as used by the Deceased should be wide enough to include monies in the Building Society and Police Bank accounts, the AMP life policy, the BUPA refund, the shares in Boardroom Pty Ltd. and the MLC Account (Plf subs [26]). 12. Lastly the Plaintiff's submit the 2013 will should revoke the 2002 will. Although the later will contains no express revocation clause, it is clear the Deceased intended the later will to revoke the earlier will. This is apparent from the words 'executed as my last will testament' on the document as well as the fact the later will purports to make complete disposition of the testator's assets. Defendant submissions 1. The Defendant submits the following: 1. With regards to the true construction of clause 5; 1. There has been no gift of the residue, 2. Alternatively there has been no gift of monies standing to the credit of the Deceased in her bank accounts, and 3. Alternatively, there has been no gift of monies standing to the credit of the Deceased in bank accounts which did not exist at the time she made the last will. 1. The word 'investments' means only the shares in Boardroom Pty Limited; 2. The Defendant's concede that the word 'villa' refers to the Veda Street Property; and 3. The last will revoked entirely the will dated 9 September 2002. 1. With regards to the true construction of clause 5, the Defendants make several submissions. 2. They submit that the Deceased did not adequately turn her mind to critical aspects of the will, particularly residue. They note she did not provide for what should happen if the proposed beneficiaries predeceased her, particularly in regards to the individual items of jewellery (Def subs [19]). Further, clause 5 makes a specific bequest of the villa. This is not a logical place to deal (concurrently) with residue. They note that the conventional course is to make specific bequests and then deal with what is left (Def subs [21]). 3. They note that there is no evidence that the Deceased intended to gift the whole of the residue to the Plaintiffs (Def subs [36]). In particular, the residue clause present in the 2002 will is absent from the later will. The witnesses called by the Plaintiffs do not recall any conversation by which the Deceased stated that she intended the Plaintiffs would receive the residue (Def subs [36]). 4. The Defendants submit that the word 'investments' refers only to the Boardroom shares. They note according to the ordinary and usual grammatical meaning of 'investments', it does not include money in bank accounts (Def subs [27]). Further, it cannot be said with confidence that the Deceased did not own investments in the traditional sense at the time she made the last will. The Deceased herself appears to have accepted that there was a difference between 'money' and 'investments', as the two terms are used differently in clause 5 (Def subs [30]). Legal principles 1. It is well accepted that the principles as set out by Justice Isaacs in Fell v Fell (1922) 31 CLR 268, are still regarded as instructive as to the various factors to take into account when construing a will. At 276, His Honour laid out, what he described as 'incontestable' principles in the construction of a will: (1) "Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used" (Lord Cranworth in Abbott v Middleton [3]; Lord Wensleydale in the same case [4]) (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 [1]; Ward v Brown [2]; Buckley L.J. in Kirby-Smith v Parnell [3]) (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 [4]; Hawkins on Wills, 2nd ed., at p. 6) (4) An inference cannot be made "that did not necessarily result from all the will taken together" (Sir R. P. Arden M.R. in Upton v Ferrers [5]). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James L.J. in Crook v Hill [6]). (5) "We cannot give effect to any intention which is not expressed or plainly implied in the language of" the "will" (Lord Watson in Scalé v Rawlins [7]). "You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication" (Lord Brougham L.C. in Langston v Langston [8]). (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 [9]). (7) "When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy" (Page Wood V.C. in Hope v Potter [1]). (8) "There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense …), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention" (Lord Brougham L.C. in Langston v Langston [2]). (9) If on reading the will you can see some mistake must have happened, "that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself" (Langston v Langston [3]). (10) "The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills" (Lord Shaw in Lightfoot v Maybery [1]). "In ascertaining the intention, I ought to a certain extent—we all know what the expression means—to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary" (Buckley L.J. in Kirby-Smith v Parnell [2]). 1. His Honour later noted (at 276): With these principles in mind, I examine the will itself, remembering, as chief Justice Wilmot quaintly said in Dodson v Grew, "Words are only pictures of ideas upon paper." So long as we find the ideas delineated on the paper, it matters nothing how crude the craftsmanship may be. 1. Justice Higgins in the same case, embraced the following principles (at 283-284): Jarman puts it (6th ed., p. 2205): "The intention of testators, when ascertained, is implicitly obeyed, however informal the language in which it may have been conveyed; yet the courts, in construing that language, resort to certain established rules by which particular words and expressions, standing unexplained, have obtained a definite meaning." Further, the Courts elicit "from the contents of the instrument the intention of the author, the faintest traces of which will be sought from every part of the will." "A Court never construes a devise void, unless it is so absolutely dark, that they cannot find out the testator's meaning" (Minshull v Minshull (6)). As Jessel MR said in In re Roberts; Repington v Roberts-Gawen (7): - "When we talk of the intention of a testator…what we really mean is the fair interpretation to be given to the words used…The modern doctrine is not to hold a will void for uncertainty unless it is utterly impossible to put a meaning upon it. The duty of the court is to put a fair meaning on the terms used, and not, as was said in one case, to repose on the easy pillow of saying that the whole is void for uncertainty." The absence of an appropriate noun or verb is not fatal to a gift; and there is no doubt that, in modern times, a document duly executed and attested as a will, containing nothing but "all for my mother" – without any verb- would carry the whole of the testator's estate, real and personal. Lord Esher MR said (in In re Harrison; Turner v Hellard (1)): - "There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you assume that he did not intend to make it a solemn farce, - that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy." 1. Issacs J in Fell v Fell has been applied more recently, by Hallen AsJ (as His Honour then was) in Lockrey v Ferris [2011] NSWSC 179; (2011) 8 ASTLR 529 (at [43]) and by Rein J in The Estate of Nicholas Paul Enright [2017] NSWSC 1646 (at [22]-[23]). 2. In addition, s 32 of the Succession Act 2006 (NSW), permits the Court to have regard to extrinsic material in construing a will; (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will: (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances. (2) Despite subsection (1), evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will. 1. Additional factors will apply when the will was prepared by the Deceased himself or herself and is so to speak 'homemade'. 2. In Lewis v O'Loughlin (1971) 125 CLR 320, Barwick CJ considered the construction of a 'homemade' will (at 326-327): The problem in the appeal is to determine on a fair construction what the testatrix meant by her relevant expression in the will. Such a question is unlikely to be resolved by resort to authority, however much attention should be paid to the opinions expressed by distinguished judges when constructing other wills. The language used in this will is that of the testatrix herself: it is not the language of a person trained in the law. It is language used with at least a layman's understanding of the situation in which the testatrix then stood. …. It is not remarkable that she did not realize that if she died whilst in employment there would be money due to her for undrawn leave of various kinds and for prepaid tax. For these items quite clearly she made no provision in her will. It is evidence, I think, that reading the will as an entirety against the background of her then known circumstances, the testatrix intended by the expressions used in her will to dispose of all that she then possessed. It is clear enough that she did not cover by her dispositions all the eventualities which might occur…However the question is not whether she provided for all contingencies but whether she made some provision for all the property to which she was then entitled. 1. Menzies J in the same case similarly considered the differences between the construction of a will drawn by the deceased themselves, over that of a lawyer. His Honour noted (at 330): Discrepancies of this sort have less significance in a home-made will than one drawn by a lawyer. 1. It is therefore tolerably clear that the misuse of language should not too readily defeat the deceased's otherwise clear intentions. 2. In addition as Lord Upjohn remarked in Re Gulbenkian's Settlement Trust [1970] AC 508; [1968] 3 All ER 785, it is the duty of the court when construing instruments generally including a will, a will to ascertain the testator's intentions behind the will (at 522): There is no doubt that the first task is to try to ascertain the settlor's intention, so to speak, without regard to the consequences, and then, having construed the document, apply the test. The court, whose task it is to discover that intention, starts by applying the usual canons of construction; words must be given their usual meaning, the clause should be read literally and in accordance with the ordinary rules of grammar. But very frequently, whether it be in wills, settlements or commercial agreements, the application of such fundamental cannons leads nowhere the draftsman has used words wrongly, his sentences border on the illiterate and his grammar may be appalling. It is then the duty of the court by the exercise of its judicial knowledge and experience in the relevant matter, innate common sense and desire to make sense of the settlor's or parties' expressed intentions, however obscure and ambiguous the language that may have been used, to give a reasonable meaning to that language if it can do so without doing complete violence to it. Consideration 1. With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator's intention and that approach should be a predominant consideration in the construction of the instrument. 2. Before coming to the particular words which have been the central focus of the litigation, it is important to make some general comments about the will as a whole and particularly about some aspects of the Deceased's intentions which I consider to be uncontroversial and/or of significance. 3. First it is apparent in my view, both from their appointment as executors and other matters to which I shall return in due course, that the Deceased favoured her two nieces Lynette and Joy and wished them to be the principal beneficiaries under her will. 4. Secondly there is no suggestion here that the Deceased lacked testamentary capacity. It is clear that she would have understood that she had a substantial estate, the great bulk of which was held in cash. Indeed at the date of probate the amount of cash in various accounts at the Newcastle Permanent Building Society and the Police Bank totalled some $2, 209,351.78 out of a total estate of $2,786,173.25, (approximately 80% of her estate). The next substantial asset was the Veda Street Property. It was estimated to be worth $475,000 at the date of probate. There is no evidence that the Deceased lacked awareness of what assets otherwise comprised her estate. 5. The Deceased was quite clear in her mind about the persons to whom she wished to leave legacies, which totalled only $108,000. That is the first matter after her directions in relation to her funeral that the Deceased chose to deal with. 6. Next, in what has been described by the parties as 'clause 5', the Deceased purportedly disposes of the 'villa' so called as well as her 'investments'. It is this particular clause that drew the focus of the litigation. 7. Lastly she left the entirety of her jewellery to her niece Joy. 8. It is accepted by Counsel on both sides that there are clear grammatical and other problems with the clause the principal focus of the litigation. It purports to deal with alternatives but by no means clearly, and there are difficulties in its construction. There are a number of intriguing aspects of the particular clause. The reference to the villa, it is accepted as uncontroversial, is a reference to the Veda Street Property. 9. Some time was spent considering the use of the full stops in the will. I am of the view that this emphasis is not particularly helpful. There is no evidence of any other of the Deceased's writing, nor any indication that the slightly unusual positioning was anything more than a stylistic preference. The full stops disclose no discernible pattern and I found them of little aid in construing the document. I should also say I do not find the evidence of Ms Preece or Ms Taffe especially instructive. They are mere snapshots of what were likely parts of more general conversations; the actual language by the Deceased in her own handwriting is what is fundamental in determining her intentions. 10. It is clear that if the villa had been sold then "whatever money is left after the others get their share"… the "money" at least was to be divided 75:25 between her nieces. I consider the Deceased also had in mind treating the "investments" as part of the estate which she thought would be made liquid to facilitate distribution. In other words she intended the word "investments" to be regarded as liquid assets or money for the purposes of division. That word in my view, viewing the will as a whole is certainly wide enough to include the monies on deposit, shares and her other assets with AMP, BUPA and MLC. 11. Although there is no suggestion that she did any or any precise calculations if one takes the estate as valued for probate purposes at $2,786,173.25 and deducts the $108,000 for the legacies and the $5,000 for the jewellery that derives a total of $2,673,173.62. If that sum is divided 75:25 Lynette would get $2,004,880.22 and Joy would get $668,293.31 together with all the jewellery. On the other hand if the value of the villa, jewellery and legacies are taken out, the balance is approximately $2,198,173 which would provide Lynette with approximately $2,123,629 (including the additional value of the villa) and Joy with $549,543. The difference is real but there is nonetheless some symmetry about it in very approximate terms. 12. Leaving aside the various deficiencies which clearly arise in terms of the construction of this central clause it is plain in my view that apart from the payment of the legacies she wanted her two nieces to be the principal beneficiaries. In particular she wanted her "money" divided three quarters and one quarter after the payment of legacies, and she wanted all of her jewellery to go to her niece Joy. I think that clearly means that, as has happened if the villa was not sold the Deceased intended nonetheless its value would be taken into account whether it be an existing piece of real estate or its cash equivalent. In other words if her entire estate comprised money, then after the payment of the legacies, her jewellery would go to Joy and the balance of the money otherwise would be divided 75:25 between Lynette and Joy. As is the case here, the villa has not been sold, but its value should nonetheless be taken into account in calculating the 75:25 split. 13. As I have already said, I am of the view, that when the Deceased used the word 'investments' she was intending to refer to all of her 'money'. It is also clear that the Deceased did not have in mind (apart from the legacies) giving particular amounts to her favoured beneficiaries, or drawing a distinction between money and investments. I think she regarded her entire estate as cash or cash equivalent and for good reason, her assets were mainly in cash. 14. It has been said that the Deceased did not consider adequately or at all the residue of her estate. I do not regard that as fatal nor leading to an intestacy. The mere fact that the creator of a homemade will did not contemplate every legal contingency or the potential of residue does no more than highlight that the maker is not a lawyer. 15. Finally, in my view, the 2013 will revokes in full the 2002 will. The words 'executed as my last will and testament' printed on the document leave no doubt that the Deceased intended the later will to be given force. Further, it is clear to me, that the later will was intended to dispose of the Deceased's entire estate. Conclusion 1. I find in favour of the Plaintiff's construction of the will. In particular I am of the view that she had an intention that her assets after payment of legacies, funeral expenses and jewellery would be split 75:25 between her nieces Lynette and Joy as discussed above. 2. I note that costs were a matter of agreement between the parties. I would invite the parties to prepare short minutes to reflect my reasons. ********** 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: 24 July 2019