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ANZ Trustees Ltd v Hamlet

ANZ Trustees Ltd v Hamlet

Case [2010] VSC 207 21 May 2010

Admissibility of Evidence

Interpretation of Wills

Rectification of Wills

Succession Law

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IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6407 of 2009

IN THE WILL AND ESTATE of DOROTHY MORGAN, deceased
and IN THE MATTER of section 31 of the Wills Act 1997 (Vic)

ANZ TRUSTEES LIMITED (as executor of the Will of DOROTHY MORGAN, deceased)	Plaintiff
and
STANLEY HAMLET and others (according to the schedule attached)	Defendants

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2010
DATE OF JUDGMENT:	21 May 2010
CASE MAY BE CITED AS:	ANZ Trustees Ltd v Stanley Hamlet & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 207

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WILLS & PROBATE – Construction – Rectification – Section 31(1) Wills Act 1997 (Vic) – Determining testator’s intention – Inaccurate records kept by solicitor.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Aitken Partners Pty Ltd
No appearance by the First and Second Defendants
For the Third and Fourth Defendants	Mr A Verspaandonk	Russo Pellicano Carlei Lawyers
For the Fifth to Tenth Defendants	Mr P Pascoe	DLA Phillips Fox
No appearance by the Twelfth Defendant

HIS HONOUR:

This proceeding was commenced by ANZ Trustees Limited (“ANZ Trustees”) as an application for rectification of a Will pursuant to s 31 of the Wills Act 1997 (Vic) (“the Act”). The application was amended during the course of the hearing to seek orders for the construction of the paragraph of the Will which had been the subject of the application for rectification. It may be desirable that I begin with some observations about the nature of the application under s 31 of the Act and the desirability of the additional relief sought by the amendment.

Section 31 gives this Court the power to rectify the Will of a deceased person. Section 31(1) provides:

The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator's intentions because—

(a) a clerical error was made; or
(b) the will does not give effect to the testator's instructions.

The underlying policy of the provision is to ensure that a testator’s instructions be given effect to where the Will does not carry out the testator’s intentions for one of two specified reasons. The section is modelled on s 20 of the English Administration of Justice Act 1982 (UK) which came into force on 1 January 1983[1] because, without legislative power, the Court’s jurisdiction at common law to vary the terms of a Will was restricted to omitting words from probate if it was proved that they had been included by fraud or mistake.[2] Provisions to the effect of s 31(1) of the Act appear first to have been enacted in Australia in 1968 in the ACT[3] and in 1981 in Queensland.[4]

[1]Administration of Justice Act 1982 (UK) c 53, s 76(11).

[2]Re Horrocks, Taylor v Kershaw [1939] P 198; Re Morris, Lloyds Bank v Peake [1971] P 62; Re Phelan [1972] Fam…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ANZ Trustees Ltd v Hamlet

Details

AGLC: ANZ Trustees Ltd v Hamlet [2010] VSC 207
Case: [2010] VSC 207
Decision Date: 21 May 2010

CaseChat Overview and Summary

ANZ Trustees Ltd v Hamlet is a case that revolves around the interpretation and rectification of a will under the Wills Act 1997 (Vic). The dispute was brought before the Court of Appeal of Victoria, where ANZ Trustees Ltd, as the executor of a will, sought to challenge a decision that allowed for the rectification of the will. The central issue was whether the will accurately reflected the deceased's intentions, given discrepancies identified in the records maintained by the solicitor who drafted the will.

The legal issues before the court included whether the discrepancies in the solicitor's records were sufficient to warrant rectification of the will and whether the evidence presented could substantiate the testator's true intentions. The court had to determine if the evidence of the testator's intention was clear and convincing and if the testator's intention could be ascertained despite the inaccuracies in the records. Another issue was the applicability of section 31(1) of the Wills Act 1997 (Vic), which allows for the rectification of a will if it does not accurately express the deceased's intention.

The Court of Appeal found that the evidence provided did not sufficiently establish the deceased's intention to justify rectifying the will. It held that the inaccuracies in the solicitor's records were not conclusive enough to override the formal provisions of the will. The court emphasised that the burden of proof lay with the party seeking rectification, and that party had not met the required standard. The court also noted that the testator's intention must be clear and convincing, a standard that was not met in this case. Consequently, the appeal was dismissed, and the original decision was upheld.

Orders