Estate of Aspasia Kandros

1. [1]

   HIS HONOUR: Aspasia Kandros (“the deceased”) died on 18 November 2018.

2. [2]

   The deceased left a duly executed Will made on 8 April 2008. On 17 May 2019, this Court granted Probate of the Will to the Plaintiff, Peter Kazacos, one of the three executors appointed under the Will. The second and third executors nominated in the Will, being Steven Naris and Con Passas, each renounced Probate by notice dated 5 February 2019, and 5 March 2019, respectively.

3. [3]

   The Plaintiff, although sharing the same surname of four of the Defendants, is the husband of the fifth Defendant and the son-in-law of the deceased. He is not a beneficiary named in the Will of the deceased.

4. [4]

   Each of the five named Defendants is a beneficiary named in the Will of the deceased and each is affected by the relief sought in the proceedings. The first Defendant, Evangelos Kandros, and the fifth Defendant, Vicki Kazacos, are children of the deceased. The second Defendant, Constantine Kazacos, the third Defendant, Stephanie Kazacos, and the fourth Defendant, Marie Kazacos, is each a grandchild of the deceased. All of the Defendants are sui juris.

5. [5]

   I shall refer to the parties, who are family members who share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.

6. [6]

   The proceedings with which this Court is concerned relates to the construction and, the possible rectification, of the deceased’s Will.

7. [7]

   The Plaintiff filed a Statement of Claim on 1 April 2019. Each of the Defendants has been notified of, and served with, the initiating process. Each has filed a submitting appearance. None appeared, or was represented, at the hearing, with the exception of Vicki, who, in circumstances to which I shall refer, swore an affidavit, during the course of the hearing, which was then read in the proceedings.

The deceased’s Will

1. [8]

   The deceased’s Will, omitting the underlining contained in the original document and the precise addresses referred to, relevantly, provided:

2. [9]

   The deceased’s Will gave the executors named in the Will a number of powers, expressly specified at Clauses 7 to 11 of the Will. Relevantly, the Will does not, in any way, refer to, or otherwise provide for, means by which any real property devised in the Will could, or may, be partitioned.

3. [10]

   The attestation Clause to the deceased’s Will stated:

4. [11]

   Beside the attestation clause is what appears to be the signature of the deceased and then underneath that, the signature, handwritten name, and occupation, of each attesting witness.

5. [12]

   Although the reading of the Will in the Greek language to the deceased is not referred to in the affidavit of Mr S Naris, to which reference will be made, I accept that, in accordance with the attestation clause, the Will had been translated into the Greek language and read to the deceased. I also accept that in 2008, the deceased was not able to read, or speak fluently, the English language.

6. [13]

   In the Inventory of Property attached to, and placed in, the Probate document (Ex. A), the property owned solely by the deceased at the date of her death, was the real property at 47 xx Avenue, Dolls Point (“the Dolls Point property”) ($2,100,000), several parcels of real property at Marrickville (“Nos 120 to 136 Marrickville”) ($10,000,000), real property at Unit 5 xx Road, Caringbah (“the Caringbah property”) ($899,000), real property at 122 xx Street, Monterey (“the Monterey property”) ($1,600,000), cash in an investment savings account ($358,309) and an amount in a cheque account ($92). (I have omitted the reference to cents in the amounts to which I have referred).

7. [14]

   In addition, the deceased was said to own “Vacant Lots in Greece”, the value of which was unknown “but estimated to be negligible”. The case does not concern immoveable property outside Australia.

The Issues

1. [15]

   Despite Nos 120 to 136 Marrickville, apparently, having different street addresses, the evidence reveals that the land is comprised in one Folio Identifier (Folio Identifier 1/77xx). The area of land referred to in that Folio Identifier is approximately 3,517 square metres.

2. [16]

   On part of the land comprised in Folio Identifier 1/77xx are, what was described as, factory units, which are known as Nos 126-132, and on another part of the land is, what was described as, a shop, which is known as No 136. (The shop has been described as “the double storage warehouse office” or “the brick building” by Vicki in her affidavit.)

3. [17]

   The evidence reveals that in November 1987, the title of the land on which the factory units are situated, and the title to the land on which the shop is situated, were consolidated in Folio Identifier 1/77xx. However, prior to 1987, the factory units were identified as Nos 124-126, being the whole of the land in Lot C in Deposited Plan 418xx, and the shop was identified as No 136, being the whole of the land in Certificate of Title Vol 45xx Folio xx, being Lot 1 in Deposited Plan 81xx.

4. [18]

   There are three different rate notices that issue in respect of the land comprised in Folio Identifier 1/77xx, one for No 126, one for No 136, and one for Nos 120-134.

5. [19]

   In November 1995, the deceased and her husband, George Kandros, purchased the whole of the land in Folio Identifier 1/77xx, as joint tenants. On George’s death in September 2015, the title to the land in the Folio Identifier passed, by survivorship, to the deceased. The Notice of Death was registered on the title Folio Identifier 1/77xx on 17 June 2016.

6. [20]

   Thus, the issue that arises in relation to the devise in Clause 4(b) and Clause 4(c) of the deceased’s Will is that the deceased, strictly speaking, could not devise Nos 124-126 to Evangelos, or No 136 to Constantine, Marie and Stephanie, as no separate titles exist in respect of each of the land on which the different structures are built. That was the case at the time the deceased made her Will; it remained the case at the time of her death; and it remains the case today.

7. [21]

   In addition to that issue, since the death of the deceased, it has been ascertained that the Caringbah property, although described as “No 5” in the Will, is, in fact, unit 5, which unit is situated at a different address in xx Road, Caringbah. The issue that arises in relation to the devise in Clause 5(e) of the deceased’s Will is that the parcel of land, devised to Vicki, is not, in fact, No 5, but Unit 5 at a different address.

The Evidence

1. [22]

   Many of the factual matters referred to above are taken from two affidavits, each affirmed by Dorian Kratsas, a solicitor in the employ of the firm of solicitors acting for the Plaintiff. The first was dated 26 March 2019 and the second was dated on 29 May 2019.

2. [23]

   To the second of the affidavits were plans and photographs that depict the land in Folio Identifier 1/77xx.

3. [24]

   In an affidavit sworn on 30 May 2019, Mr Naris, the solicitor who prepared the deceased’s Will, stated:

4. [25]

   Mr Naris did not give any evidence that the deceased referred to the area of land on which the factory units are situated as Nos 126-132, or that she referred to the land on which the shop is situated, as No 136. Nor could he say that these matters were pointed out to her.

5. [26]

   After counsel for the Plaintiff read the affidavits which had been filed, and had spoken to his written submissions, I raised the question of the evidence that would enable the Court to know whether the deceased had been aware of the differentiation of area comprising the factory premises and the area comprising the shop.

6. [27]

   Candidly, counsel accepted that there was no evidence of the deceased’s knowledge of the differentiation of areas. When it was pointed out that this may prevent the Court determining the deceased’s actual intention, counsel sought an adjournment to enable him to ascertain whether any party could give evidence about this aspect.

7. [28]

   Shortly before the long adjournment, the matter again proceeded and counsel for the Plaintiff sought leave to file in Court an affidavit sworn by Vicki on 5 June 2019. At the time, Vicki was in Court, although she did not participate in the proceedings. I granted leave to the Plaintiff to file in Court the affidavit referred to and the affidavit was then read.

8. [29]

   Importantly, Vicki stated in her affidavit:

The relief claimed

1. [30]

   In the Statement of Claim, the Plaintiff seeks the following relief:

Grant of Declaratory Relief

1. [31]

   Section 75 of the Supreme Court Act 1970 (NSW) provides that “[n]o proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not”.

2. [32]

   In s 3 of the Civil Procedure Act 2005 (NSW), “‘claim for relief’ includes ‘(d) a claim for a declaration of right’”.

3. [33]

   The Court has a wide discretionary power to make declarations under s 75 of the Supreme Court Act.

4. [34]

   The position was summarised by Ward CJ in Eq in Crawford v Davidson-Crawford [2019] NSWSC 728 at [32]:

5. [35]

   The Court must also be satisfied that there is a proper contradictor, being someone who has a presently existing interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437- 438; Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at 448.

6. [36]

   However, it has been pointed out that there is a difference between having an interest to oppose the granting of declaratory relief and, having that interest, and choosing whether or not to oppose the granting of that relief: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56, at [14]; Hill v Dunn [2019] NSWSC 419, per Henry J, at [44]. Indeed, there is no requirement that all defendants, in an action claiming a declaration, must oppose the relief claimed by the plaintiff: Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60, per Dawson J, at [14].

7. [37]

   French J (as his Honour then was) in IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator Appointed) (2004) 211 ALR 231, wrote, at [47]:

8. [38]

   In Zetting v Müller [2017] NSWSC 659, Parker J pointed out that there was “room for debate about whether … the requirement for a proper contradictor] is an essential requirement before a declaration can be made, or is merely a matter of discretion: Meagher, Gummow and Lehane’s Equity Doctrines and Remedies at [19-115] to [19-125]”.

9. [39]

   In the present case, as it was in Zetting v Müller, it is unnecessary to enter the debate, as the five beneficiaries are the named Defendants in the proceedings. As stated earlier, each of the five Defendants has filed a submitting appearance. None, other than Vicki, attended the hearing. Each has an interest to oppose the declaratory relief sought by the Plaintiff, but has filed a submitting appearance. Notwithstanding his, and her, lack of active opposition, this is sufficient to make them proper contradictors.

10. [40]

    Zetting v Müller was referred to by Bell P, with approval, in Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 at [16].

11. [41]

    In all the circumstances, even though each of the Defendants does not wish to resist the Plaintiff’s claims, I am satisfied that this does not deprive the Court of jurisdiction to make a declaration if the circumstances are otherwise appropriate.

12. [42]

    I am also satisfied of the other matters that would enable the Court to make a declaration. First, there is a controversy, namely the construction of the deceased’s Will. The Court is not being asked to provide an advisory opinion or to answer a question which is purely hypothetical. To the contrary, the resolution of the proceedings, followed by partition, will determine how part of the estate of the deceased is distributed in a manner that accords with the deceased’s intentions. Second, the proceedings concern the “interest” of the parties who need to know how part of the estate of the deceased should be distributed in accordance with her intentions. Third, there can be no dispute that the proceedings concern the administration of the deceased’s estate and the Plaintiff is the executor to whom Probate has been granted. Fourth, this Court has jurisdiction to construe the deceased’s Will, and, if necessary, to rectify it. Fifth, I am satisfied that the Defendants have an interest in opposing the claim but have chosen not to do so by filing the submitting appearance. Sixth, I accept that the making of declarations, if appropriate, will enable partition to be arranged by the parties.

The Law – Construction of the deceased’s Will

1. [43]

   In Towns v Wentworth [1858] 14 EK 794; (1858) 11 Moo PC 526, the Privy Council wrote:

2. [44]

   More recently, in Fulton v Fulton [2014] NSWSC 619, I wrote, at [201]-[206]:

3. [45]

   In Muir v Winn [2009] NSWSC 857, Bryson AJ wrote, at [24]:

4. [46]

   In ANZ Executors & Trustee Co Ltd v McNab and Another [1999] 3 VR 666, Fullager J wrote, at [5]:

5. [47]

   Yet, as was written in The Public Trustee of Queensland v Smith [2009] 1 Qd R 26, per Atkinson J, at [26]:

6. [48]

   The Court, many times, has had to deal with drafting, or transcription, errors in wills. One way of dealing with such drafting, or transcription, errors is to utilise the principle falsa demonstratio non nocet cum de corpore constat, which translated means (a false description does not vitiate when the thing is described with certainty). The maxim is commonly expressed in the words falsa demonstratio non nocet.

7. [49]

   Lord Selborne LC in Hardwick v Hardwick (1873) 16 LR Eq 168, at 175, wrote that:

8. [50]

   In In re Gifford; Gifford v Seaman (1944) 1 Ch 186, Simons J wrote:

9. [51]

   In Woodgate v Tanks [2014] 1 Qd R 481; [2013] QSC 204, Margaret Wilson J wrote, at [37]:

10. [52]

    In Nofz as executor of the estate of Henry Matthew Fitzgerald (deceased) v Kane & Ors [2015] QSC 372, the application of the principle was explained:

The Law – Rectification of the deceased’s Will

1. [53]

   Although there is distinction between a suit for construction, and a suit for rectification, of a will, and even though there have been cases in which it is suggested that the different type of suits should be dealt with separately (see, for example, Re Estate of Max Frederick Dippert [2001] NSWSC 167, at [20]-[21]), I am of the view that, since the Civil Procedure Act applies, both matters may be decided in the one proceedings.

2. [54]

   One commentator has described the legislative power that enables the court to rectify a will as “obviating the need for an interpretation or construction of the document” (David M Haines QC, Construction of Wills in Australia (2007, LexisNexis Australia), at [1.6]).

3. [55]

   In this case, there was no submission that the two issues should be dealt with in separate hearings. The only discussion related to which should be dealt with first, the claim for rectification or the claim for construction. Nor was there evidence able to be read on one suit that could not be read on the other.

4. [56]

   Section 27 of the Succession Act 2006 (NSW) provides:

5. [57]

   The proceedings to rectify have been brought within 12 months of the deceased’s death. It is clear that final distribution of the estate has not been made.

6. [58]

   As it has in this case, the application for rectification may be brought after probate has been granted: The Estate of Cecil Douglas Brisbane (NSWSC, Powell J, 19 June 1992, unreported); Huszar (Re Estate of) [1999] NSWSC 388; Rawack v Spicer [2002] NSWSC 849, at [24].

7. [59]

   Importantly, s 27 provides that “[t]he Court may”. "May" is permissive; it is not directory, or mandatory. There is nothing in the circumstances contemplated by the section that leads to the conclusion that the Court must rectify the Will.

8. [60]

   It is a condition precedent to the exercise of the power in s 27 that the Court be satisfied that the Will does not carry out the will-maker’s intentions and that this satisfaction be based on one of two specified reasons, namely, either that a clerical error was made, or that the Will does not give effect to the will-maker’s instructions.

9. [61]

   It is clear, then, that the Court must make findings about the “intentions” of the testator because, until it does, it cannot be satisfied that the Will does not carry out those intentions. Thus, what it was that the will-maker intended concerning the part of the will that is to be rectified must be established. What must be shown is the actual intention, not what the intention probably would have been had the will-maker thought about the matter: Trimmer v Lax; Estate M A Fresen (unrep, NSWSC, Hodgson J, 9 May 1997).

10. [62]

    The intention must be examined as at the date of the Will, not the date of death: Re Estate of Spinks; Application of Mortensen and Eassie (NSWSC, Needham J, 22 August 1990, unreported); in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales (NSWCA, 12 December 1991, unreported), at 5; Rawack v Spicer, at [27]-[28]; and Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274, at [14-15].

11. [63]

    Rawack v Spicer was cited, with approval, by Barrett J in Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002. His Honour then went on to say, at [9]:

12. [64]

    Although the standard of proof on the issue is on the balance of probabilities, clear and convincing proof is required: Re Estate of Max Frederick Dippert, at [34]; Rawack v Spicer, at [30]-[31], quoting Hodgson J in Trimmer v Lax at 12-13).

13. [65]

    The meaning of “testator’s intentions” was considered (albeit in relation to the former section) in Re Swain (Dawn) [2008] NSWSC 1343, at [25]-[27]:

14. [66]

    Thus, the three questions posed by s 27 are, first, what were the will-maker’s actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the will-maker gave instructions in connection with the will, to comply with those instructions?

Determination

1. [67]

   Until the affidavit of Vicki was read, there was really no evidence to enable the Court to glean the deceased’s intentions in relation to Nos 120 to 136. As stated in her Will, the deceased did not speak, or read, English. This means that even if she had received the rate notices (which it seems she did not as they were sent to her care of a third party), without someone translating these documents to her, she would not have understood their meaning.

2. [68]

   Furthermore, as Mr Naris stated, he did not take instructions for her Will from the deceased. Rather, it was her husband, George, who provided those instructions to Mr Naris.

3. [69]

   Nor, until the affidavit of Vicki was read, was there any other evidence that the deceased referred to Nos 124-126 as “the factories”, or to No 136 as “the brick building” or the shop. It seems more likely than not, on the available evidence, that she did not appreciate the difference between the street addresses to which she referred in the Will.

4. [70]

   However, one cannot but come to the conclusion that the deceased intended to pass something by each of the different clauses of her Will, to the named beneficiaries, who are different, and what that something is, can be determined.

5. [71]

   The fact that the wrong description was given in the Will does not prevent the clauses in the Will taking effect in regard to that which is wrongly described.

6. [72]

   By making two separate devises, one of Nos 124-126 and the other of No 136, it is clear that the deceased intended there to be a difference in what her son, Evangelos, was to receive, and what her three grandchildren, Constantine, Marie and Stephanie, were to receive. There are apparent physical features of the whole of the property that suggest an obvious method of differentiation.

7. [73]

   Vicki’s evidence enables the deceased’s intentions in each of the Clauses to be clarified. There is no reason to not give her evidence weight.

8. [74]

   It seems to me to be perfectly consistent with common sense, and with reason, that the entirety of the land that was given to different beneficiaries should not be prejudiced by an imperfect, and inaccurate, description of the subject of each devise to those beneficiaries since the deceased’s intention, in relation to each devise, can be determined.

9. [75]

   In relation to the devise of No 5 xx Road, Caringbah, I am satisfied that the deceased’s Will does not carry out her intentions because at no time did the deceased own No 5 xx Road, Caringbah.

10. [76]

    In my view, the deceased signed her Will without appreciating that there was a misdescription of the property that she wished to devise to Vicki. The Court should be reluctant to allow the misdescription to vitiate the devise.

11. [77]

    Accordingly, I consider that the proper construction of the deceased’s Will calls for the application of the principle of construction that the deceased’s true intention should be identified, and that it is that unit 5 was incorrectly described as “my property known as 5 [xx] Road, Caringbah”.

12. [78]

    I am satisfied that the deceased intended the property at Caringbah, which she, in fact, owned, to be the property that she wished to devise to Vicki in Clause 4(e) of her Will.

13. [79]

    It follows, having considered the language of the deceased’s Will, with the aid of admissible extrinsic evidence, the Will should be construed to give effect to the intentions of the deceased in respect of both Clause 4 and Clause 5.

14. [80]

    For completeness, I should say that I would not be satisfied that rectification of the deceased’s Will could occur on the evidence. Importantly, whilst I am satisfied that the deceased’s Will does not carry out the deceased’s intentions, I am neither satisfied that this occurred because a clerical error had been made in its drafting, or because the Will did not give effect to the deceased’s instructions.

Partition

1. [81]

   Section 57 of the Probate and Administration Act 1898 (NSW), relevantly, provides:

2. [82]

   Other than stating that the section applies, and informing the Court that investigations had been carried out, which investigations suggested that effecting a partition of Nos 124-126 and No 136 could be achieved, counsel for the Plaintiff made no oral submissions about this aspect. His written submissions, however, included the following:

3. [83]

   There was no evidence about the precise manner in which Nos 124-126 and No 136 would be partitioned, although what is intended is that the partition would be in a manner that gives effect to the declarations regarding the devise of the factory premises to Evangelos and the shop to Constantine, Marie and Stephanie.

4. [84]

   Bearing in mind the history of the two different parcels of land, it should be possible to effect partition as this appears to be the only way that the deceased’s intentions in relation to Clause 4(b) and Clause 4(c) can be achieved.

5. [85]

   In the circumstances, agreement should now be able to be reached, by the parties, as to the precise form of orders. I shall allow them 21 days to agree upon a form of declarations and orders, including an order relating to the manner in which the partition is to be effected.

6. [86]

   It is appropriate that the Plaintiff’s costs of the application, calculated on the indemnity basis, should be paid out of the estate of the deceased.

7. [87]

   The proceedings are to be adjourned to a date to be fixed before me for the making of declarations and orders. In the event that my Associate receives a form of declarations and orders which accord with these reasons, I shall consider them and, if appropriate, deal with them in Chambers.