MARTIN AS EXECUTOR FOR THE ESTATE OF KORBL -v- HURSE [2021] WASC 488 (18 May 2022)

Last Updated: 20 May 2022

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARTIN AS EXECUTOR FOR THE ESTATE OF KORBL -v- HURSE [2021] WASC 488

CORAM : MASTER SANDERSON

HEARD : ON THE PAPERS

DELIVERED : 18 MAY 2022

PUBLISHED : 18 MAY 2022

FILE NO/S : CIV 2147 of 2021

BETWEEN : ERIC OWEN MARTIN AS EXECUTOR FOR THE ESTATE OF KORBL

Applicant

AND

SIMONNE CHRISTINE LYDIA HURSE

Respondent

Probate - Proper construction of clause of home made will - Turns on own facts

Legislation:

Nil

Result:

Advice given

Category: B

Representation:

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance

Solicitors:

Applicant	:	Integra Legal
Respondent	:	Lawfield Legal Practice

Case referred to in decision:

MASTER SANDERSON:

1 If these reasons were to bear a subtitle it would read as follows:

The curse of the homemade will strikes again.

2 The question of interpretation of the will arises in this way. The applicant is the executor of the estate of Jennifer Irene Korbl who died on 5 December 2019 (deceased). She left a will dated 17 August 2017. Probate of that will was granted to the plaintiff on 31 March 2020. The respondent is the daughter of the deceased.

3 By clause 3 of the will, the deceased gifted her property in Dianella to the respondent. In accordance with the terms of the will, the property was transferred to the respondent. After obtaining the grant of probate, in or around 31 March 2020, the applicant located in a safe at the property cash and jewellery. The cash is currently held in term deposits with various banks and with interest now totals an amount of $781,215.39. The jewellery is safely held by the applicant.

4 It is the applicant's position the will does not provide explicitly for distribution of the cash or jewellery. That being so, the applicant sought directions from the court as to:

(a) whether on a proper construction, the will makes provision for the distribution of a sum of cash to the value of approximately $779,550; and
(b) whether on a proper construction, the will makes provision for the distribution of jewellery.

5 It is worth pausing at this point to note that the assets in question total more than $1 million. Yet for whatever reason the deceased did not see fit to deal explicitly in her will with these assets. Neither the plaintiff nor the defendant were aware the deceased possessed these assets. They were aware there was a safe at the Dianella premises but they did not know what that safe contained. If the deceased, rather than drawing the will herself, had gone to a solicitor, she would doubtless have been questioned as to what assets were to pass on her death. There is no reason why she should have concealed these assets from anyone. In all probability, under questioning from a solicitor, she would have mentioned the cash and jewellery and the will could have been drawn so as to distribute these assets in accordance with her wishes. It would not have been a difficult will to draw and it is hard to imagine it would have involved any great expense. Certainly the expense would have been less than the cost of taking these proceedings. Perhaps more importantly, the will would have contained a clear direction as to what was to become of the assets. Although I have concluded the operation of the will is relatively clear, there must remain a doubt as to precisely what the deceased intended. The applicant advances a more than reasonable argument. All in all this case is more evidence - if more evidence is needed - of the folly of drawing a homemade will.

6 Turning then to the will itself, cl 2 appears against a marginal note reading 'SPECIAL REQUEST CLAUSE'. The clause reads as follows:

Historical family photos and documents, my mother's diamond engagement ring, best silver given me by my father, Meissen musical monkey china figures and my mother's emerald dress ring are to remain with my daughter Simonne Christine Lydia Hurse - born 30 April 1984, unless otherwise sold by me. My childhood Bechstein piano is to receive utmost respect, having been willed to me by my father.

7 It is worth noting the reference in this clause to the emerald dress ring. It represents a specific bequest of a particular item of jewellery. The applicant says this is a clear indication that only the designated item of jewellery is given to the respondent. That in turn has consequences when the general bequest provision is considered.

8 The clause which causes the difficulty is cl 3. That reads as follows:

UPON MY DEATH and after payment of any requests or special gifts listed in clause 2 and payment of all my debts, funeral and testamentary expenses I GIVE the rest of my estate as follows:

To my daughter Simonne Christine Lydia Hurse, (nee Hurse) I give any property owned by me (in the name of Jennifer I Korbl) including all contents thereof. She is to receive half of all moneys banked in my name of Jennifer I Korbal. The other half I give to my grandchild Tilda Mae Setton, to be held in trust by my said daughter until Tilda reaches 21 years of age and is competent to handle the funds. The trust is to be divided equally with any of Simonne's future children, all receiving any money at any time deemed necessary for education, advancement and benefit to themselves.

9 It is the position of the applicant the wording of cl 3 is not sufficiently wide to cover the contents of the safe. In advancing that proposition, reference was made to cl 2 in the specific bequest of jewellery. The difficulty with that submission is that the wording of cl 3 specifically includes not only the property but 'all contents thereof'. That must mean the safe and its contents. In other words, the cash and jewellery should be distributed to the respondent.

10 As counsel for the applicant acknowledged in his written submissions, there is a presumption against a partial intestacy. The principles were considered in some detail by EM Heenan J in Helen Rowena O'Brien as Executor of the Will of Jeffrey Charles Hogan v Warburton [2012] WASC 82. His Honour noted the presumption against partial intestacy is rebuttable but concluded that in doubtful cases the court should be inclined against concluding that a testator intended a partial intestacy distribution of their assets. That is the case here. There is nothing in the evidence to suggest the deceased intended that there should be a partial intestacy. There is simply no basis upon which the presumption could be rebutted.

11 Subject to hearing from the parties, I would make the following order:

(a) On a proper construction of the will of the deceased, the cash and jewellery owned by the deceased at the date of her death and found in a safe at the premises should be distributed to the defendant in accordance with cl 3 of the will.

12 In relation to costs, it would be appropriate if the costs of both parties were paid out of the assets of the estate on a solicitor and own client basis. Any party who seeks orders differing from what I have proposed above and who wishes to make submissions on costs should file a minute of proposed orders and short submissions on the question of costs within 7 days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MM
Associate

18 MAY 2022