Middleton v Schofield

1. [1]

   This case concerns the proper construction of the will of the late Allan Edgar Bell (the testator), who died on 3 March 2020, leaving a last will made on 30 August 2018.

2. [2]

   The testator never married and had no children. The plaintiffs and the other personal beneficiaries are friends and acquaintances of the deceased, upon whom he decided to confer his testamentary bounty.

3. [3]

   The plaintiffs, Phillip Paul Middleton and Chloe Elizabeth Middleton, are a married couple who are the beneficiaries of a specific devise of real property under clause 4(j) of the will. Chloe Middleton is the granddaughter of Helen Frances Drayton, who was a long-time friend and sometime de facto partner of the testator. Through that connection, Chloe Middleton formed and maintained a personal relationship with the testator and his sister, Marie Ellen Stokes.

4. [4]

   Probate of the will was granted by this Court to the defendant, Julie Evelyn Schofield (the executor), on 6 May 2020. The executor was the accountant for the testator for a considerable period before his death and looked after many aspects of the testator's financial affairs.

The will

1. [5]

   After giving legacies of $50,000 each to seven named beneficiaries (or couples), the will contained the following devises of realty:

2. [6]

   The testator's residuary estate was given equally to three named charities.

3. [7]

   I should explain the significance of the asterisk in clause 4(h) of the will. The solicitor who prepared the will for the testator, Ms Emma Schlachter (the solicitor), explained that she had placed the asterisk in the draft will because the testator was not able, when the draft will was explained to him on 30 August 2018, to remember the number of acres in the Rock Flat Block.

The issues

1. [8]

   The question that now arises in the construction of the will is whether the property of the testator described in clause 4(j) of the will as "my real property known as 'Caringa', including the house block and approximately 1,288 acres” is to a single property consisting of the historical aggregation of three contiguous farming properties located in the Monaro, or whether it encompasses only one of those properties, being that one that originally bore the "Caringa" name and upon which the "Caringa" homestead is now located. The other two of the contiguous properties have separately borne the names "Smithfield" and "Berkery’s Block".

2. [9]

   The executor contends that by clause 4(j) the testator only intended to devise one of the properties that was originally called "Caringa" to the plaintiffs. The executor has already transferred that property to the plaintiffs. The plaintiffs have claimed that the testator intended by his will to devise all of the three contiguous properties to them. That is the issue for determination in these reasons.

3. [10]

   The proceedings were commenced by the summons filed by the plaintiffs on 8 December 2020, in which they claimed the following relief:

4. [11]

   The effect of prayer 1 is to claim a declaration that the gift of land in clause 4(j) of the will included "Smithfield" (the first 11 folio identifiers named) and “Berkery’s Block” (the last 2 folio identifiers named). The order sought in prayer 2 would give practical effect to the declaration in prayer 1, as it is necessary for the inventory of property attached to the grant of probate to specify all of the properties encompassed by the gift so that those properties may be transferred to the plaintiffs without attracting an obligation to pay stamp duty.

5. [12]

   In the alternative to the declaration and orders sought in prayers 1 and 2 of the summons, the plaintiffs originally sought a declaration that the will does not give effect to the testator's intentions insofar as it omitted the title references to all of the individual lots that comprised "Caringa" (as contended by the plaintiffs) and an order under s 27 of the Succession Act 2006 (NSW) that the will be rectified to correct the defect in the terminology of the will. The first 10 title references in prayer 3(a)(ii) comprise the property called "Caringa" that has already been transferred to the plaintiffs.

6. [13]

   In final submissions, the plaintiffs abandoned their claim for relief in prayer 3 of the summons and accordingly the Court has not been required to determine the rectification claim. As will be seen, however, the existence of the rectification claim during the hearing influenced the evidence that was received. There are differences in the rules of evidence that apply where the issue is one of the proper construction of a will as opposed to where it is whether the will should be rectified. In particular, subject to the application of s 32 of the Succession Act that will be considered below, evidence of the testator's actual or subjective testamentary intention, at least in the form of the instructions that the testator gave for the purpose of the preparation of the will, is admissible on a claim for rectification of the will, but not in order to influence the Court's determination of the objective intention of the testator based upon the construction of the wording contained in the will.

Principles governing the proper construction of wills

1. [14]

   There is no controversy between the parties as to the principles governing the construction of wills. Those principles have been stated consistently by a great many courts. No purpose is to be served by an exhaustive examination of the authorities. I will confine my references to authorities that are of the most use in determining the present controversy.

2. [15]

   I have stated my understanding of the principles governing the construction of wills in Carrington v Wallace [2019] NSWSC 1301 at [56]-[81]. That statement focused on the issues of particular relevance in that case, not all of which are important to the present case. I note that the principles governing the proper construction of wills have been compendiously set out by Hallen J in Warton v Yeo [2014] NSWSC 494 at [48]-[60].

3. [16]

   The paramount principle is as recently stated by White JA (with whom Gleeson JA agreed at [1]) in De Lorenzo v De Lorenzo (2020) 104 NSWLR 155 at 165; [2020] NSWCA 351 at [50] as follows:

4. [17]

   As Stanley J (with whom Kourakis CJ agreed at 504 [1]) stated in Farrelly v Phillips (2017) 128 SASR 502 at 510; [2017] SASCFC 111 at [32] (footnotes omitted, emphasis added): “[t]he search is for [the testator’s] expressed intentions, not what [the testator] meant to say, but what [the testator] actually said.”

5. [18]

   Frequent reference is made in the authorities to the compendium of propositions stated by Isaacs J in Fell v Fell (1922) 31 CLR 268 at 273-276; [1922] HCA 55 (footnotes omitted) as follows:

6. [19]

   I have omitted the final five of Isaacs J's propositions as they are not directly material to the present case. It is the first two propositions that are paramount in the present case. However, as will be seen, the strictures in propositions 4 and 5 must always be born firmly in mind. The Court is not entitled at common law to make a will for the testator where the objective intention of the testator cannot be determined from the words used in the will without the Court engaging in speculative reasoning.

7. [20]

   The reference by Isaacs J in his proposition (1) to "such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used" and by White JA to "admissible extrinsic evidence" was authoritatively explained by Griffith CJ in In the Will and Codicil of Padbury, deceased; Home of Peace for the Dying and Incurable v Solicitor-General (1908) 7 CLR 680 at 686; [1908] HCA 72, as follows:

8. [21]

   On the same subject, Barton J said at 689:

9. [22]

   Though their Honours' statements were primarily directed at the circumstance where the testator has used language to describe the object of an intended gift that does not, on its face, sufficiently identify a single object, I am of the view that these statements apply with equal force to the same circumstance with respect to the subject matter of a gift. That is an issue that has arisen in the present case.

10. [23]

    In Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65, Mahoney JA (with whom Samuels and Priestley JJA agreed at 61 and 69 respectively) explained more expansively the principle governing the admissibility at common law of extrinsic evidence to construe a will, in the following terms:

11. [24]

    It will be sufficient, finally, to set out the following statement of what is sometimes called the "armchair principle" by White J (as his Honour then was) in Parry v Haisma [2012] NSWSC 290 (emphasis in original):

12. [25]

    It is necessary to consider the effect of s 32 of the Succession Act on the application of these common law principles. As Meagher JA (with whom Leeming and Simpson JJA agreed at [77] and [78] respectively) said in James v Douglas [2016] NSWCA 178:

13. [26]

    Section 32 of the Succession Act provides:

14. [27]

    The wording of the section suggests the following conclusions as to its operation:

15. [28]

    In the recent decision of Partington v Rossiter [2022] Ch 43; [2021] EWCA Civ 1564, the Court of Appeal of England and Wales considered the application of s 21 of the Administration of Justice Act 1982 (UK), which is in substantially the same terms as s 32 of the Succession Act. Lewison LJ (with whom Green and Nugee LJJ agreed at [50] and [51] respectively) observed of the concept of surrounding circumstances other than the testator’s intention:

16. [29]

    Section 27 of the Succession Act governs the circumstances in which the Court may make an order for the rectification of the will. Relevantly, s 27(1) provides:

17. [30]

    It is now not necessary for this Court to determine the effect of s 27, as the plaintiffs have abandoned their claim for an order rectifying the testator's will. However, it is significant that s 27 does not authorise the Court to make an order rectifying a will in all cases where it can be established that the language of the will on its proper construction does not give effect to the actual subjective intention of the testator. Section 27 does not invite a comprehensive forensic examination of the actual subjective intention of the testator. Section 27(1)(b) permits an order for the rectification of the will to be made where the will does not carry out the testator's intentions, but only in the limited case that it does not give effect to the testator's instructions. The testator's instructions for the preparation of the will are matters for objective proof. The instructions may or may not coincide with the actual subjective intention of the testator. As Barrett J (as his Honour then was) stated in Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274; (2010) 3 ASTLR 619 at [15]:

18. [31]

    The circumstances where, for the purposes of s 27(1)(a), the will does not carry out the testator's intentions because a clerical error was made, are more difficult to conceptualise than the case where the will does not give effect to the testator's instructions. However, the expression "clerical error" relates to the process of the preparation of the will as a physical instrument, and so must also be confined to an error in the process of rendering the objectively expressed intentions of the testator into a written will that reflects those expressed intentions.

19. [32]

    In summary, the common law rules for the interpretation of wills gave paramountcy to the objective meaning of the words used by the testator. Within the four corners of the wording of the will, the common law entertained some flexibility because of the acceptance of the reality that the wording of wills was not always consistent, and accordingly an insistence on the application of the objective meaning of the words used might destroy the coherence of the will if the objective approach to construction was applied too rigidly. So, within the objective approach to construction, the common law permitted the Court to search for the testator's scheme where that appeared to be necessary, by reference to the wording of the will as a whole. In this way, the common law permitted the Court to give meaning to the words used in the will that was not consistent with their ordinary effect, while still proclaiming the intention to ascertain the objective intent of the testator. Additionally, the common law permitted the Court to 'sit in the testator's armchair' so that it could discern the meaning of the words used by the testator with the aid of knowledge of the testator's view of the world and the meaning that he or she attributed to words. The common law therefore permitted the objective meaning of the actual words used by the testator to be ascertained with knowledge of how the testator used those words and saw the context in which they may be applied in his or her will.

20. [33]

    At common law, this was all a completely different process to determining the true subjective intention of the testator by reference to extrinsic evidence of what the testator intended. The stricture that a will must be in writing would be undermined if the Court assigned meaning to the words used that was too greatly influenced by contestable evidence as to what the true subjective intention of the testator was. As is its want, the common law allowed limited exceptions when evidence of the subjective intention of the testator was admissible, but those exceptions are not here relevant: see Carrington v Wallace at [66].

21. [34]

    Section 27 of the Succession Act may provide some illumination on the circumstances in which s 32 of that Act should be accepted as having modified the common law principles, insofar as s 32 permits the reception of evidence of the testator's intention to assist in the interpretation of the language used in the will. Section 27 permits the Court to make an order rectifying a will that does not carry out the intentions of the testator. But that cannot be done in all cases where extrinsic evidence demonstrates that the testator's true subjective intention was not the intention that would be ascertained by application of the common law principles. Rectification is only permitted in cases where one of two specific types of mistake is shown to have occurred in the ministerial process of translating the testator's objective instructions into the written document required by s 6 of the Succession Act. The field in which rectification is available to correct a failure of the wording of the will to implement the actual subjective intention of the testator is therefore very limited.

22. [35]

    It might therefore be thought to be strange that s 32 of the Succession Act permitted, in cases of meaninglessness and ambiguity, an unrestricted investigation of contested and contentious evidence to enable the Court to make a finding on the balance of probabilities as to what the true intention of the testator was. It may be one thing for the Court to act upon essentially persuasive evidence as to the actual intention of the testator where that evidence permits the Court to give meaning to the language used in the will, or to resolve ambiguity. Section 32 must, of course, be applied in accordance with its terms, and each case will depend upon its own facts, but consistency of operation of s 6, s 27 and s 32 of the Succession Act may require the Court to take some care to distinguish cases where the extrinsic evidence of the testator's actual intention permits meaning to be given and ambiguity to be resolved, compared to cases where, in reality, the Court is asked to give a will a meaning that depends upon a more probable than not conclusion about the contested effect of extrinsic evidence on so elusive a subject as the real subjective intention of a deceased person.

23. [36]

    Finally, in this context, as in all others, the oft-quoted observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34 call for application. His Honour said:

24. [37]

    I consider that, at the very least, the proper construction of the will of a testator is a matter of high seriousness. The Court should be astute to guard against being drawn beyond the boundary of using extrinsic evidence to assist in the interpretation of the language used in the will to a situation where, in reality, the Court is making the testator's will on the basis of contentious extrinsic evidence.

Significant aspects of the language of the will

1. [38]

   Before I consider the circumstances in which the parties introduced extrinsic evidence in this case, it will be useful to refer to the terms of the will that appear to be of particular significance to its proper construction in relation to the true objective meaning of the gift in clause 4(j).

2. [39]

   The principal description of the gift in clause 4(j) of the will is "my real property known as 'Caringa'". It may be of significance that the testator did not merely refer to the subject of the intended gift as “Caringa” by name, but he called it the property "known as…". That use of language tends to suggest that the testator intended to identify the subject of the gift in part by reputation rather than necessarily by strict title identification.

3. [40]

   Having expressed that gift, the testator then added, "including the house block and approximately 1,288 acres". The natural way to read the word "including" is that it posits a gift of "my real property…" and specifies that the gift includes that which is subsequently described. What follows may or may not be intended to state exhaustively the content of the gift, but the usual way to read the word "including" is that it does not exhaust or comprehensively determine the content of the gift, but rather is intended to reinforce that the specified property is to be one part, but not necessarily the whole of, the subject matter of the gift.

4. [41]

   Relevantly, the Macquarie Dictionary defines "include" in the following way:

5. [42]

   The determination of the intended meaning of "including" in clause 4(j) may be influenced by the use in clauses 4(h) and 4(i) of the alternative expression "consisting of". The expression "consisting of", reasonably clearly, is intended to specify completely the subject matter of the intended gift. The expression naturally conveys with some clarity the meaning that the words following the expression are intended to be exhaustive.

6. [43]

   The juxtaposition of the different expressions in the three consecutive sub- paragraphs suggests, as a matter of the natural meaning of the language, that the change in expression in clause 4(j) was not accidental or loose but was intended to have a different meaning and effect. As Emmett AJA said in The Estate of William John Gilbert [2017] NSWSC 1138 at [17] (footnote omitted): "… A testator must be taken to have meant that the words used in the will should have some effect as they stand."

7. [44]

   These considerations support the conclusion that the gift of "my real property known as 'Caringa'" was intended to extend beyond, but to include at least, "the house block and approximately 1,288 acres".

8. [45]

   It may also be significant that the testator used the word "block" in the three sub-paragraphs, although the intended meaning of the word may not appear clearly from the language in the will. Where the word "block" is used in clauses 4(h) and 4(i), it appears to be intended to refer to a whole separate farm, consisting in the first case of an unidentified number of acres and in the second case of approximately 1,088 acres. Consistency of use of language by the testator in clause 4(j) might suggest that the "house block" was intended to be a separate farming property on which the “Caringa” homestead was located.

9. [46]

   The natural meaning of the use of the word "and" between "the house block" and "approximately 1,288 acres" is that it was intended that there would be included in "my real property known as 'Caringa'" both the "house block" and, in addition, "approximately 1,288 acres".

10. [47]

    However, the expression "my real property known as 'Caringa'" does not identify the subject of the gift on the face of the will. "Caringa" is a proper noun that purports to identify a particular place without providing any exact description of its boundaries. In a sense, the term is operatively meaningless if its meaning must be derived solely from the terms of the will. The same is true of the use by the testator of the expressions "the house block" and the reference to "approximately 1,288 acres".

11. [48]

    The language of clause 4(j) of the will gives rise to an appearance that an operative meaning may be given to the expressions by the use of extrinsic evidence known to the testator capable of identifying the subject matter of the gift.

12. [49]

    Clause 4(j) of the will does not appear to be ambiguous on the face of the language used, or in the light of the surrounding circumstances. Clause 4(j), in the context of the instrument as a whole, engages s 32(1)(a) of the Succession Act because it is meaningless without extrinsic evidence which identifies the intended subject matter of the gift.

13. [50]

    The question is whether the apparent difficulty in construing the effect of clause 4(j) of the will can be resolved by the admission of legitimate extrinsic evidence, whether as permitted by the common law principles of construction and s 32 of the Succession Act, either alone or together.

Process of admitting extrinsic evidence in this case

1. [51]

   The initial position adopted by the plaintiffs was that the Court should find that the will had the effect for which they contend on its face, without it being necessary or appropriate to rely upon extrinsic evidence for the purpose of determining the proper construction of clause 4(j) of the will. Against the possibility that the Court would not be able to construe the will favourably to the plaintiffs having regard only to its terms, the plaintiffs tendered a significant amount of extrinsic evidence that they contended was relevant to the construction and the rectification issues.

2. [52]

   Ultimately, as I understand the plaintiffs' submissions, they abandoned their rectification claim, as I have noted above, and said that the Court should construe the will as they contended on the basis of its language and the application of what has been called the "armchair principle". That is, the plaintiffs submitted that it was sufficient for the Court to apply the common law principles that permit the reception of extrinsic evidence in order to identify the intended subject matter of the gift to them in the will. It was not necessary, according to the plaintiffs, for the Court to apply s 32 of the Succession Act.

3. [53]

   The executor initially submitted that the true construction of the will was clear on its face, principally by reason of the fact that the 1,288 acres referred to in clause 4(j) precisely described the area of “Caringa” in the narrow sense of its meaning, being only one of the farming blocks that constituted the three contiguous blocks owned by the testator at the time of his death.

4. [54]

   The executor objected to the admission of virtually all of the plaintiffs' evidence in aid of the construction of the will, although, against the possibility that the plaintiffs' extrinsic evidence was admitted, the executor served evidence to answer and elaborate upon the plaintiffs' evidence. Ultimately, because the Court admitted much of the parties' extrinsic evidence, the primary submission made by the executor was that certain evidence of instructions given by the testator to the solicitor concerning the preparation of the will, and at least one statement of his subjective testamentary intention to a witness, were decisive in proving the real intent of the testator in clause 4(j) of his will.

5. [55]

   It is appropriate that something be said about the basis of the Court's rejection during the hearing of the executor's submission that nearly all of the plaintiffs' evidence of extrinsic circumstances should be rejected. The executor relied primarily on my judgment in Carrington v Wallace, particularly at [79]-[81] where I said:

6. [56]

   The terms of the will the subject of Carrington v Wallace raised different issues than does the will in this case. All of the words were ordinary English words with clear individual meanings. The problem was that the structure of the sentences and the relationship between the significant paragraphs had the effect that arguments could reasonably be propounded that the will was intended to have one or the other of two different meanings. The defendants in that case sought to resolve the dispute by leading evidence of what the testator in that case said to them about what they claimed was the specific testamentary disposition that he intended to achieve.

7. [57]

   As I explained at [85]-[102], I felt comfortably able, at the time I was asked to deal with the objection to the reception of the evidence going to the testator's testamentary intention, to determine that intention objectively by analysing the words used in the will to determine its proper construction. For that reason, it would have been wrong to treat a lack of clarity of expression as an ambiguity and to proceed directly to the receipt of extrinsic evidence of the testator's actual intention from parties interested in the outcome of the dispute. Moreover, in that case it was not necessary for the Court to sit in the testator's armchair before it could understand the meaning of any expressions used by the testator in his will.

8. [58]

   The exercise of properly construing the testator's will in this case is different in a number of ways. First, “Caringa” is a proper noun with an apparent meaning that could not be derived solely from the face of the will. Extrinsic evidence is necessary to prove the subject matter of the gift. That is also true to some extent for the reference to "the house block" and to the apparently additional 1,288 acres.

9. [59]

   Secondly, the "armchair principle" always applies and extrinsic evidence that falls within that principle is admissible, at least where it is needed to remove an uncertainty in the identification of the subject matter.

10. [60]

    Thirdly, the reception of evidence concerning the testator's historical use of the word “Caringa” disclosed that he appeared to have used the word in two senses, or at least that there was sufficient uncertainty as to the testator's intended meaning to draw the Court into a consideration of all of the extrinsic evidence material to a correct determination of the meaning intended by the testator.

11. [61]

    This is a different exercise than investigating the actual subjective intention of the testator. It is the determination of the meaning ascribed by the testator to a word included in his will as an aid to construing the will objectively on the basis of the words used.

12. [62]

    This unfolding evidentiary issue drew the Court into a consideration of the possible application of s 32 of the Succession Act. The relationship between the common law principles governing the construction of wills and the application of s 32 has been considered in some measure above. As a practical matter, the reception of extrinsic evidence permitted by the common law principles to identify the intended subject matter of the gift might have the collateral effect of exposing a possible ambiguity of meaning in the language used. That appeared to have happened in the present case.

13. [63]

    I remain of the view that the Court should reject evidence that is inadmissible on the issue of the proper construction of a will at the time of tender where it is practically feasible to do so. The Court should be as strict as possible and resist submissions that treat a mere lack of clarity as equivalent to a lack of meaning or ambiguity on the basis that the reception of presumptively inadmissible evidence will determine the question of whether it should have been admitted in the first place. Where it is possible for the Court to decide with sufficient confidence that, in the course of preparing a reserved judgment, it will be possible to resolve uncertainties in the intended meaning of the will by the conventional course of determining the objective meaning of the language used, the Court should not receive evidence that is inadmissible in the absence of genuine meaninglessness or ambiguity.

14. [64]

    Unfortunately, the process of presiding over a hearing that raises genuine issues of the proper construction of the will does not always permit perfection in the timing of correct evidentiary rulings. In cases like the present, where extrinsic evidence is admissible on the "armchair principle" and possibly also because of the existence of the rectification claim, it may not be feasible to distinguish with precision which extrinsic evidence is admissible, and which is not, at the time that objection is made to the admission of the evidence. The Court must balance the competing risks of error flowing from incorrect admission and incorrect exclusion of extrinsic evidence. Often the latter creates the greater risk of a miscarriage, as it is usually possible to reconsider the issue of construction by notionally excluding wrongly admitted evidence. That is likely to be less feasible where evidence has been wrongly excluded.

15. [65]

    In summary, there are a number of reasons why the course of the hearing has confused the ability of the Court to deal properly with the extrinsic evidence for the purpose of construing the testator's will. In part, extrinsic evidence was admitted before the plaintiffs withdrew their claim for rectification of the will. Although to some extent all parties claimed that the will should be construed in their favour on its face, the plaintiffs tendered a considerable amount of extrinsic evidence and the executor followed suit. The executor strenuously resisted the admission of most of the extrinsic evidence, but ultimately relied heavily on certain evidence that may be capable of showing that it was the subjective intention of the testator only to give the plaintiffs one of the three contiguous blocks. As “Caringa” is a proper noun and the documentary evidence showed that “Caringa” may have been a word customarily used by the testator to refer at the one time to all three contiguous blocks, but one of those blocks had historically been called “Caringa", it seemed that some extrinsic evidence was properly admissible on the 'armchair principle', and when that was done, the gateway was open to admitting evidence of the testator's intention under s 32(1)(c) of the Succession Act because the armchair principle revealed an ambiguity in the light of the surrounding circumstances.

Extrinsic evidence

1. [66]

   The farming property that the plaintiffs claim was the testator's real property known as “Caringa” is made up of three contiguous blocks, which are themselves comprised of different numbers of lots in a number of deposited plans.

2. [67]

   Those three properties came into the testator's ownership at different times and by different means. There was no dispute that the original names of the properties were “Caringa”, “Smithfield” and “Berkery’s Block”. It was also an agreed fact that the areas of those individual properties were respectively (in acres, roods and perches) 1287a 1r 38p, 1173a 1r 25p, and 216a 2r 33p.

3. [68]

   “Berkery’s Block” is adjacent to “Smithfield” but not strictly adjacent to “Caringa”. Tom Groggin Road, which is a council-maintained road, runs through the three blocks. The evidence was to the effect that there were cattle grids on the road where it passed between the different blocks. There was also evidence that the gates in the fences between the different blocks were not always kept closed. As each of the three blocks had its own access to the road, none of the blocks would be stranded if owned separately from the other blocks. There has for a considerable time only been one house on the three blocks. I understand that the homestead is separately called “Caringa”, and it is located on lot 97 of DP 750555 which is part of the original “Caringa”. At some time in the past, the homestead had been moved from “Smithfield” to “Caringa”. I also understand the evidence to be that the only shearing shed and other substantial farm buildings are also located on “Caringa”.

The plaintiffs’ extrinsic evidence

1. [69]

   The primary objective of the extrinsic evidence given by the plaintiffs' witnesses was to prove that the testator customarily used the word “Caringa” to describe all three blocks as a single farm, even though he knew that each block historically had a separate name.

2. [70]

   Chloe Middleton's evidence was that, as of 25 March 2021, she was aged 33 years and that she had known the testator from her early childhood until his death on 3 March 2020. Her evidence was that on numerous occasions over the years she visited the testator (and his sister) and that the testator always referred to every contiguous part of the property as either “Caringa” or "the farm". The testator only used other expressions to describe his farming properties, such as "Cottage Block", "Rock Flat" or "Clarks Block", to describe entirely distinct properties that were located a considerable distance from “Caringa”. The testator used to refer to “Smithfield” as the "old Smithfield paddock".

3. [71]

   Ms Drayton, Chloe Middleton's grandmother, gave evidence that she met the testator in about 1983 and that from that year she and her late husband rented a cottage from the testator on his property known as 'Cottage Block'. Ms Drayton's husband worked for the testator from 1984 until his death in 1987. Ms Drayton said that when her husband started working for the testator, the testator drove her and her husband around the boundaries of his property and said in respect of the whole of the three contiguous properties: "This property is 'Caringa'". Ms Drayton said that, in all of the time that she knew the testator, he always referred to the whole of the three blocks as either “Caringa” or "the farm". Ms Drayton continued to work for the testator as a farm hand following her husband's death. Ms Drayton conducted a de facto relationship with the testator between about 1989 and 1992. Ms Drayton moved to Victoria shortly after the de facto relationship ended, but she remained friends with the testator and continued to see him about three times a year on average. Ms Drayton moved to Nimmitabel in March 2015, and, after that, the testator used to come to visit her on average every second weekend.

4. [72]

   Ms Drayton gave the following evidence in her 23 March 2021 affidavit:

5. [73]

   The plaintiffs called evidence from Mr William Graeme Boller, who had been acquainted with the testator since 1973. From about 1992, Mr Boller has worked on his own account as a licensed stock and station agent and real estate agent. Without interruption during this period, the testator remained a client of Mr Boller. Mr Boller met with the testator once or twice each year at the shearing shed at “Caringa” in connection with the sale or purchase of livestock. In addition, the testator used to see Mr Boller in Mr Boller's office from time to time to discuss the sale of livestock.

6. [74]

   Mr Boller said that he regularly drove along the Tom Groggin Road in the course of his business, and, on those occasions, he observed that the gates between the paddocks on what he understood was “Caringa” were usually open. Mr Boller said in par 10 of his 30 March 2021 affidavit: "Allan never referred to Caringa as anything other than "Caringa"", in circumstances where Mr Boller explained that, from the context, he understood that the testator was referring to the three blocks by that one name.

7. [75]

   Mr Boller gave the following additional oral evidence-in-chief [T 49.47-50.5; 50.40-50.48]:

8. [76]

   The property referred to as "the whole of the property that’s yellow or green" was explained to Mr Boller by reference to a map that identified that property as the whole of the three contiguous blocks.

9. [77]

   Mr Boller's evidence was that when stock was sold from any part of “Caringa” in the sense in which Mr Boller understood that term, it was always put down as "Caringa Partnership" stock. Whenever the testator sold stock off any of his other blocks, he stipulated that it should be recorded as being sold by "A. B. Bell."

10. [78]

    It is significant that, in par 15 of her 27 April 2021 affidavit, the executor gave evidence that she asked Mr Boller to provide her with details of the testator's land and an appraisal of its value. She said that she did not provide Mr Boller with any details of the land to be appraised, as she was relying upon him to provide her with those details. The significance of this evidence was that Mr Boller provided the executor with a letter dated 14 April 2020, in which he gave a value for “Caringa” that he described as being of 1,325 acres, and which was limited to the single block historically known as “Caringa”. The apparent purpose of this evidence was to support a submission that, in reality, Mr Boller understood that the name “Caringa” only applied to one of the three contiguous blocks.

11. [79]

    Mr Boller responded to this evidence in his 28 May 2021 affidavit by explaining that, in fact, he received instructions from the executor on about 23 March 2020 to provide an appraisal of land marked on an A3 map provided to him by the executor. The map only identified the single historical block called “Caringa” as the subject matter of the appraisal. Mr Boller said that, at the time, he thought to himself that the coloured area on the map did not appear to him to include the whole of “Caringa”. Nonetheless, he followed his instructions and only gave an appraisal for that area of land.

12. [80]

    Significantly, Mr Boller wrote on the plan given to him by the executor "A. Bell’s?" on the other lots depicted on the plan which Mr Boller understood were also part of “Caringa”.

13. [81]

    I am satisfied that this is objective evidence that supports Mr Boller's version of the terms of the instructions that he was given by the executor. The executor in fact instructed Mr Boller only to provide an appraisal for the single block, and this perplexed Mr Boller, who in fact understood that “Caringa” also encompassed the other lots depicted on the plan that comprised part of 'Smithfield' or 'Berkery’s Block'.

14. [82]

    The final witness called by the plaintiffs was Mr Daniel Thomas Drayton, who worked for the testator from the mid-1980s, when he was around 15 years old, until 2014. Mr Drayton initially worked for the testator in his shearing shed as a roustabout but, after he ceased shearing in about 2005, for approximately 10 years he did weed spraying for the testator on a regular basis.

15. [83]

    Mr Drayton's evidence in par 25 of his 8 August 2021 affidavit was that "I was never in any doubt that when Allan asked me to do work on “Caringa” he was referring to any part of the lots highlighted on the plan. In other words, I always understood “Caringa” to refer to the whole of the adjoining highlighted lots on the plan." This was a reference to the whole of the three contiguous blocks. Mr Drayton also gave evidence that the deceased used the name “Berkery’s Block” as being a nickname of a paddock that formed part of “Caringa”, and that another area of “Caringa”, where the old house used to be located, was called “Smithfield”.

16. [84]

    The plaintiffs also tendered into evidence as Exhibit P4 a framed photograph of the homestead on “Caringa” taken from the air, showing the homestead in the foreground and parts of the three individual properties extending into the distance. Phillip Middleton prepared a drawing on a plan of the three contiguous blocks that related the land depicted in the photo to the boundaries of the three blocks. The frame of the photo bears the prominent name “Caringa”. The evidence was that the framed photo was found in the testator's residence in Cooma hanging on a wall after his death.

17. [85]

    The framed photo of “Caringa” was admitted into evidence over the objection of the executor. The plaintiffs relied upon the photo to support their claim that the testator regarded the three contiguous blocks as being part of “Caringa”, as the land in the background to the homestead included parts of all three blocks. I consider this evidence to be of little value, as it is equivocal as to whether the name “Caringa” was intended to refer only to the homestead, which is by far the most obvious feature in the photo, or whether it was also intended to refer to the surrounding land that was depicted in the photo. I tend to prefer the former conclusion.

18. [86]

    I accept the evidence given by the plaintiffs’ witnesses and consider that it establishes that the testator’s usual practice was to refer to the three contiguous blocks using the single name “Caringa”, as the testator treated the three blocks as a single farm, and also that the testator considered that the names of the other two blocks were references to separate paddocks.

Executor's extrinsic evidence

1. [87]

   The executor relied upon evidence that showed that the three individual contiguous blocks that are claimed to have constituted the larger “Caringa” were acquired by the testator at separate times.

2. [88]

   The block known as “Caringa” was previously owned by the testator's father, Charles Bell, who gifted it to Allan Stokes (the testator's brother-in-law) and the testator as executors to hold it on trust for the testator's mother, Ethel Bell, during her lifetime and upon her death to the testator and his sister, Marie, as tenants in common in equal shares. Probate of Charles Bell's will was granted on 28 August 1974. On 25 August 1987, the property was transferred to the testator and Marie as tenants in common in equal shares. Marie left her interest in the property to the testator in her will and, on 1 March 2018, the testator became entitled to Marie's interest upon her death. The executor (who was also the executor of Marie's estate) did not transfer this interest until 26 June 2020.

3. [89]

   The block known as "Smithfield" was historically owned by Hugh Bell, the testator's uncle. Hugh's will gave this land (as residue) to the testator. Probate of Hugh's will was granted on 20 July 1981. The title to "Smithfield" was transmitted into the testator's sole name on 25 February 1982.

4. [90]

   Historically, the land known as "Berkery’s Block" was owned by the testator's mother, Ethel Bell. The testator and Marie acquired this land upon the death of their mother. On 25 August 1987, following the death of Marie, the testator became solely entitled to this land under Marie's will, dated 23 August 2017. The executor, as executor of Marie's estate, did not transfer Marie's interest to the testator until 26 June 2020.

5. [91]

   The executor gave evidence that she produced income tax returns and assessments separately for the "Caringa Partnership" and the testator for the period 2010 to 2018. The executor said that as a matter of accounting practice, financial statements could only be prepared for a partnership in respect of the use of particular land if all of the partners had an interest in the title to the land. The tax returns and assessments were not tendered into evidence, so it is difficult to attribute any significance to this evidence given by the executor.

6. [92]

   As I have noted above, Mr Boller gave evidence to the effect that he was always instructed to account for all stock sold from the property called “Caringa”, as he understood it as being the property of the "Caringa Partnership". That was so even though “Smithfield” was in the sole name of the testator, and the other two properties were owned by the testator and Marie as tenants in common.

7. [93]

   There was also evidence given on behalf of the executor by Mr William Geoffrey Hampson, who owned a property in the neighbourhood of “Caringa”, in his 25 April 2021 affidavit. The testator was the sole owner of a property called the ‘Cottage Block’ from 25 February 1982. This property was the subject of a gift to Mr Hampson and his wife in clause 4(i) of the will. Mr Hampson gave evidence in par 7 of his affidavit that the testator and Marie kept the partnership’s sheep on “Caringa”, “Smithfield” and “Berkery’s Block” and that the testator put his other sheep on the “Cottage Block” and elsewhere. He added that the testator was not too particular about keeping the stock separate and he would see sheep with the partnership's brand down at the “Cottage Block”.

8. [94]

   This evidence supports the conclusion that the testator and Marie operated their partnership business from all three blocks that are said to constitute ‘Caringa’.

9. [95]

   The executor also annexed to her 20 August 2021 affidavit a series of NSW Local Land Services annual returns of land and stock signed by the testator for the financial years 2015 to 2017. There were separate annual returns addressed to A B Bell and M Stokes in respect of a property named “Caringa” and to A B Bell for a property named “Smithfield”.

10. [96]

    A comparison of the title details in the annual returns for “Caringa” and the evidence of the titles of the various properties in which the testator had an interest shows that the annual returns for “Caringa” were in respect of the separate blocks called “Caringa” and “Berkery’s Block”.

11. [97]

    The annual returns for the property called “Smithfield” covered the block known as “Smithfield”, as well as the “Cottage Block” and the “Rock Flat Block” (the latter being the property the subject of the gift in clause 4(h) of the will). The annual returns for “Smithfield” also covered some titles to unidentified land. There was evidence that the testator sold some of his land to enable him to buy a residence in Cooma, and Mr Hampson said that the testator sold a 160-acre part of the “Cottage Block” to Mr Hampson's son.

12. [98]

    There was no explanation in the evidence as to why the annual returns to Local Land Services were prepared in this way. It appears that the returns for “Caringa” were for land owned as tenants in common by the testator and Marie, and the returns for “Smithfield” were for all other land in the sole name of the testator.

13. [99]

    The executor also put into evidence Snowy Monaro Regional Council rate notices issued on 25 January 2021 that separately related to the lots that constituted “Caringa”, “Smithfield” and “Berkery’s Block”. The notices for “Caringa” and “Berkery’s Block” are addressed to the executor, and the notice concerning “Smithfield” is addressed to the testator. That suggests that the Council issued rate notices to the registered proprietor of properties, which I infer would be based upon information obtained from NSW Land Registry Services.

14. [100]

    I have already mentioned the evidence given by Mr Hampson. Mr Hampson said that he knew the testator for about 46 years and said that when he spoke to the testator about the testator's property, the testator mostly referred to the separate blocks by the names “Caringa”, “Smithfield” and “Berkery’s Block”.

15. [101]

    The evidence concerning how the three contiguous blocks were dealt with for administrative and accounting purposes does not, as it were, speak with one voice. There appear to have been historical reasons why the different blocks were treated separately or aggregated for different purposes. Sometimes the underlying reason may have been the separate sources of title, sometimes whether the block was owned by the testator alone or with his sister, and sometimes the separate registered ownership. There was some evidence that the testator was not good with paperwork and relied upon the executor as his accountant. There is no clear evidence that the testator placed any importance on how the three blocks were dealt with for administrative or accounting purposes, or that he even adverted to the differences. I do not consider this evidence to be of significant weight in determining what the testator generally meant when he used the word “Caringa”.

16. [102]

    The executor called evidence from Jan Elaine Hassell by her affidavit made on 28 April 2021. Ms Hassell said she was a first cousin, once removed, of the testator. Ms Hassell gave the following evidence:

17. [103]

    Interestingly, in pars 3, 4 and 6 of her affidavit Ms Hassell referred to "Caringa" or "the Homestead at Caringa" in terms that suggest that “Caringa” was a single, separate property comprised of the three contiguous lots.

18. [104]

    The solicitor gave evidence about the manner in which she prepared the testator's will, and also an earlier informal will made by the testator. In respect of any question as to whether evidence of the drafting process should be admitted to assist in the construction of the language in a will, it is to be noted that Chloe Middleton also put into evidence the informal will and the one draft of the final will that is extant.

19. [105]

    On 22 March 2018, when the testator attended on the solicitor to discuss a contract for the purchase of a residence in Cooma, the solicitor asked the testator whether he had a will and was told that he did not. The solicitor advised the testator that he should make a will immediately, because she did not think that he appeared to be in good health, and his circumstances were likely to make an intestacy very complicated.

20. [106]

    The solicitor's evidence was that the testator told her who he wanted to leave his assets to by initiating the terms of each bequest by identifying an item of his estate and telling her who was to receive it. She said that his wishes were clear to her and were sufficient to enable her to draft a will. The solicitor made hand-written notes of the instructions she received, which she dated 22 March 2018 and which the testator immediately signed, as stated in the solicitor's handwriting: "I would like this to be my interim will until I can execute a formal will."

21. [107]

    I do not mean unnecessary offence to the solicitor, but it should be noted that the notes of the instructions taken by the solicitor for the testator’s interim will have the appearance of being scribbled. They do not take the form of a handwritten draft will. Although it may be accepted that the solicitor at least summarised the instructions given to her by the testator, it appears to follow from the solicitor's evidence that the testator was not given time to consider his testamentary wishes, and that he responded with some immediacy to the solicitor's advice that he should make an interim will.

22. [108]

    Relevantly to the gift to the plaintiffs, the solicitor wrote:

23. [109]

    The solicitor said the following in her 27 April 2021 affidavit about the instruction given by the testator in respect of this aspect of his interim will:

24. [110]

    The solicitor did not prepare her first draft of the testator's will for several days after 22 March 2018. Between 22 and 27 March 2018, the solicitor had a further conversation with the testator about his will. That led to the solicitor preparing a further draft of the testator's will that the solicitor prepared on 27 March 2018.

25. [111]

    Clause 4(h) of this draft will provided:

26. [112]

    The solicitor conceded in her affidavit that she made an error in preparing this draft in leaving out the 'Rock Flat Block' and the 'Cottage Block' that were ultimately the subject of clause 4(h) and (i) of the final will.

27. [113]

    The solicitor said that, on 28 March 2018, she signed the letter to the testator enclosing a copy of the draft will that she had drafted the day before. The solicitor said that she had discussions with the testator over the next five months regarding the details of the administration of Marie's estate and his house purchase, and that on several occasions she reminded the testator that he needed to come back to the office to sign his will.

28. [114]

    The testator attended the solicitor's office on 30 August 2018 to discuss the draft will that the solicitor had prepared on 27 March 2018. During the conference, the testator advised the solicitor that she had omitted from the draft will the gifts of the “Rock Flat Block” and the “Cottage Block”. The solicitor then amended the draft will by adding the gifts in clause 4(h) and (i).

29. [115]

    The solicitor gave the following evidence:

30. [116]

    The solicitor said that she left the asterisk in the place for stating the area of the “Rock Flat Block” in clause 4(h) of the will because the testator confirmed to her that he did not know the number of acres in that property.

31. [117]

    The solicitor gave the following evidence:

32. [118]

    The solicitor said that she was conscious of the fact that the will would have been more precise if she could have confirmed the approximate area of the “Rock Flat Block” and if she could have confirmed the lot and DP numbers for all of the properties that the testator had described. However, given the difficulties she had experienced in getting the testator to come to her office to sign his will, she considered it was better to ensure that the testator then executed the will as drafted, than to have further delayed the execution of the will by attempting to define the gifts of land with more precision.

33. [119]

    The solicitor also dealt with the circumstances in which it was found necessary to prepare an Amended Inventory of Property. On 21 August 2020, she was informed by a survey consultant that additional land owned by the testator had been discovered as a result of a search that inadvertently typed his name wrongly as "Allen Edgar Bell". The original Inventory of Property only included the individual block called “Caringa”. A further search conducted by the solicitor disclosed that the testator also owned the land called “Smithfield” and “Berkery’s Block”.

34. [120]

    It is of interest that, in the Amended Inventory of Property, the lot and deposited plan numbers that comprise “Smithfield” and “Berkery’s Block” have been set out under the heading:

35. [121]

    In cross-examination, the solicitor said that she read out the interim will to the testator before he signed it, rather than that he read the document himself. The solicitor said that she could not say for sure whether or not she would have read out the area sizes in the interim will. She said that it was likely that she would have because she did not have any description for the land other than its size and its name.

36. [122]

    The solicitor was not entirely sure whether her consultation with the testator in the days after 22 March 2018 happened in person, in her office, or on the telephone.

37. [123]

    The solicitor was cross-examined at some length about the process by which she prepared the interim and final wills of the testator and took his instructions: see [T 80.39-86.24]. The following conclusions are justified based upon the solicitor's evidence and her cross-examination:

38. [124]

    I am satisfied that the solicitor gave her evidence conscientiously and to the best of her recollection, but I have some doubt about the reliability of her evidence because the solicitor did not keep detailed file notes of her conversations with the testator and, as I have noted, her affidavit was apparently prepared some three years after the relevant events. Although I am satisfied that the solicitor would have treated taking instructions from the testator for his will as an important matter, the exercise was in reality but part of the solicitor’s day by day practice. Furthermore, the solicitor had not visited “Caringa” and had no personal knowledge of the nature of that landholding. Consequently, the solicitor was dependent in her conversations with the testator upon the testator speaking with precision about his instructions. The circumstances disclosed by the evidence do not give me confidence that the solicitor’s recollection of events, even where recorded in some cases in the various iterations of the testator’s will accurately record the real testamentary intentions of the testator.

Consideration

1. [125]

   I am satisfied that the evidence clearly established that the testator was in the habit of referring to the three contiguous blocks that comprised the one farming operation upon which the "Caringa Homestead" was situated as "Caringa". To the extent that the deceased used the expression in his will "my real property known as 'Caringa'", the most probable meaning intended by the testator was the "Caringa" property as it consisted of the three contiguous blocks, because I am satisfied that that is how the testator understood the property would generally be known.

2. [126]

   As a matter of the ordinary meaning of the words used by the testator in clause 4(j) of his will, the use of the word "including" should be understood as meaning that "Caringa" included but was not limited to the house block and approximately 1,288 acres. That reasoning is reinforced by the use of the expression "consisting of" in both clause 4(h) and clause 4(i).

3. [127]

   I am not satisfied that the other extrinsic evidence either of the circumstances known to the testator or the process whereby the testator gave instructions for the preparation of his interim and final wills is sufficiently reliable as to justify me in construing clause 4(j) in a way that would give "Caringa" a different meaning than the one generally meant by the testator or giving the word "including" a narrower meaning than the one that it commonly bears.

4. [128]

   Although it will rarely be the case that the reasoning in one judgment at first instance as to the proper construction of the wording in a will will be of use in the determination of another case, I note that in Jukka Pekka Kemi v Peter Hedley Wood [2013] NSWSC 180, Sackar J was prepared to act upon the evidence of the terms of the relevant testator's earlier wills and the solicitor's formal file notes to resolve a question arising under s 32 of the Succession Act as to whether words used by the testator in her final will were intended to refer to a loan or a gift. Similarly, in Hibbitt v Ziade [2022] NSWSC 904, Parker J was prepared, at [48] and [54], to rely upon formal file notes prepared by the solicitor who prepared the relevant testator's will. The file notes specifically dealt with the meaning of the term of the will that had given rise to ambiguity. His Honour, at [55]-[56], gave "limited weight" to the evidence of a witness of conversations with the testator where the evidence was given more than two years after the event, which his Honour considered to be "more than usually fallible". In making this observation, Parker J cited the well-known judgment of McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 as to the fallibility of evidence of conversations given years after the event where the meaning of the conversations is subject to nuance.

5. [129]

   In the present case, although I acknowledge the existence of evidence that tends to support a finding that the deceased distinguished between the three contiguous blocks and only intended to leave to the plaintiffs one of those blocks with an area of 1,288 acres, I am not satisfied that that evidence is sufficiently persuasive to govern the proper construction of clause 4(j) of the will.

Orders

1. [130]

   The plaintiffs are entitled to a declaration and an order in the terms of prayers 1 and 2 of their summons.

2. [131]

   It will be necessary for the parties to consider the order for costs that should follow. I have not formed a view as to the costs order that is appropriate. I should observe that I am satisfied that the question of construction raised by these proceedings was sufficiently uncertain that the executor was clearly entitled in the performance of her duties to resist the application made by the plaintiffs and to have the issue resolved by the Court. Given that the uncertainty in the proper construction of the testator's will arose only in connection with clause 4(j), it would be a matter of some concern if beneficiaries under the will, who gained no interest in "Caringa", were required to bear the costs of these proceedings.

3. [132]

   The parties should consider the issue of costs and, if they can, submit agreed short minutes of order to my Associate to give effect to these reasons for judgment. If argument becomes necessary, the parties should arrange with my Associate for a hearing date.