Australian Executor Trustees Ltd v Casanova - [2005] SASC 93

Supreme Court of South Australia
(Testamentary Causes Jurisdiction: Civil)
AUSTRALIAN EXECUTOR TRUSTEES LTD & ORS v PETER LOUIS CASANOVA & ORS
Judgment of The Honourable Justice Duggan (ex tempore)
3 February 2005
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION
Application for rectification of a will pursuant to s 25AA of Wills Act 1936 - consideration of instructions to professional advisers - held that the will does not accurately reflect the testamentary intentions of the testator - will to be rectified so as to reflect the testamentary intentions of the testator.
Wills Act 1936 s 25AA; Inheritance (Family Provision) Act 1972 ., referred to.
Wesley v Wesley (Debelle J, 23 February 1998, unreported), applied.

AUSTRALIAN EXECUTOR TRUSTEES LTD & ORS v PETER LOUIS CASANOVA & ORS
[2005] SASC 93
Application for rectification of a will pursuant to the Wills Act 1936 s 25AA

DUGGAN J. This application has been brought by the executors of the estate of Maria Paolina Casanova. All persons with an interest in the estate have been joined as defendants.
The testator died on 3 November 2002. Her husband, Luigi Casanova, (“Luigi”) died on 2 November 1989. The testator had two sons: Aldo who died on 2 August 1993 and Antonio who died on 3 December 1996. Antonio had three children: Peter Casanova (“Peter”), Marc Casanova (“Marc”) and Dina Casanova (“Dina”) who is a plaintiff and the co-executor of the testator’s estate.
The testator also had two daughters, Rosa Pacella and Stella Blackwell.
Various members of the family including the testator, Luigi, Peter and Marc owned and farmed properties near Coonalpyn in the south-east of South Australia.
Probate of Luigi’s will dated 24 October 1983 was granted on 6 April 1990. Under Luigi’s will the trustee stood possessed of Luigi’s residuary estate during the lifetime of the testator who received a life interest in the estate. Aldo and Antonio each had a three-eighths interest in Luigi’s residuary estate and Luigi’s daughters had collectively a one-quarter interest in the residuary estate. At the date of the testator’s death Luigi’s residuary estate included farming properties at Coonalpyn.
Probate of Aldo’s will dated 28 January 1993 was granted on 24 December 1993. However the terms of Aldo’s will admitted to probate were varied pursuant to an order of this court made under the provisions of the Inheritance (Family Provision) Act 1972 on 1 May 1995.
Under Aldo’s will, as varied by the court order, the testator was to receive:
(a)two-thirds of Aldo’s share and interest in any partnership of which he was a member at the time of his death;
(b)two-thirds of Aldo’s share and interest of which he died possessed in the estate of Luigi or so much as shall not have been actually paid or transferred to Aldo during his lifetime;
and
(c)two-thirds of Aldo’s residuary estate after payment of a legacy and excepting a parcel of land given under Aldo’s will to Antonio.
The testator made a will on 21 May 1997 and probate of that will was granted to the plaintiffs, Australian Executor Trustees Limited (formerly known as Tower Trust Limited and Austrust Limited) and Dina on 9 May 2003. Under the will Peter and Marc were to receive the testator’s share of any partnership business of which she was a member at her death, her motor car, all the estate and interest of which she died possessed in any farming and grazing lands and all the household furniture and effects usually contained in or about the house at Coonalpyn.
The residue of the testator’s estate after payment of legacies was to go to Rosa Pacella, Stella Blackwell, her grand-daughter Jennifer Blackwell, Dina and the testator’s grandchildren Julie Petalik and Anthony Retalick (the children of her late daughter Clara Petalik).
The testator had made a will on 13 September 1993 following the death of Aldo. Clause 3 of that will provided as follows:
“I GIVE the whole of my estate to my Trustees UPON TRUST AS to all my share and interest in the capital stock-in-trade assets and profits of any partnership business of which I shall be a member at my decease (including any amounts standing to my credit in any Current or Loan Account in the books of any such partnership) all the share and interest of which I shall die possessed in the estate of my late son Aldo Luigi Casanova or so much thereof as shall not have been actually paid or transferred to me during my lifetime all the estate and interest of which I shall die possessed in any farming and grazing lands and all the household furniture and effects usually contained in or about the dwelling house situate at Coonalpyn in the said State for my son the said ANTONIO BRUNO CASANOVA absolutely provided he shall survive me and in the event that my said son shall fail to survive me THEN for such son or sons of my said son as shall survive me and if more than one in equal shares absolutely BUT CHARGED (to the exoneration of all other my estate) with the obligation to take over and indemnify my estate and my Trustees from my proportion of all liabilities of such partnership existing at my decease.”
The provision relating to Aldo’s estate which was included in clause 3 of the 1993 will was not included in the 1997 will. Clause 3 of the 1997 will provided, inter alia, for a gift of
“all the estate and interest of which I shall die possessed in any farming and grazing lands and all the household furniture and effects usually contained in or about the dwelling house situate at Coonalpyn in the said State for such of them my grandsons PETER CASANOVA and MARK (sic) CASANOVA as shall survive me and if more than one in equal shares absolutely.”
The important distinction between the two clauses for present purposes is that the 1997 will did not include in the gift to Peter and Marc any interest which had not been paid or transferred to the testator during her lifetime. Aldo’s three-eighths interest in Luigi’s estate which included land previously owned by Luigi had not been transferred to the testator in her lifetime; it was subject to her life interest in Luigi’s estate. The gift in remainder did not vest until the testator’s death. Under the 1997 will this asset did not pass to Peter and Marc, but became part of the residuary estate.
The principal order sought by the plaintiffs is that the 1997 will be rectified by the insertion in clause 3 thereof after the words “motor car” the following:
“all the share and interest of which I shall die possessed in the estate of my late son Aldo Luigi Casanova or so much thereof as shall not have been actually paid or transferred to me during my lifetime”.
Section 25AA provides as follows:
“(1)If the Court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the will be rectified so as to give proper expression to those intentions.
(2)An application for an order under this section must not, except with the consent of the Court, be made more than six months after the grant of probate or letters of administration.
(3)Nothing in this section affects the operation of section 29 of the Trustee Act 1936.”
The making of an order for rectification by way of the addition to clause 3 which is sought in the statement of claim is not opposed by the defendants. Nevertheless it remains a requirement for the exercise of the discretion pursuant to the section that the court be satisfied that the will does not accurately reflect the testamentary intentions of the testator.
Section 25AA requires a determination of the testamentary intentions of the testator. It is then necessary to consider the meaning and effect of the will and to determine whether it accurately reflects the intentions of the testator and, if it does not, whether it is appropriate to exercise the discretion so as to make an order for rectification.
The application of the section was discussed by Debelle J in Wesley v Wesley (23 February 1998, unreported). As he pointed out, it may be relevant in a particular case to admit evidence of the testator’s instructions to a professional adviser and it may also be relevant to have regard to statements made by the testator to family members or acquaintances. In the latter case care must be taken in assessing the reliability of such evidence.
The following affidavits were admitted into evidence by consent:
affidavit of Robert William Kupke sworn 23 September 2003
affidavit of Lester John Jarmyn sworn 23 September 2003
affidavit of Dina Jane Casanova sworn 29 September 2003
affidavit of Cesare Silvestri sworn 23 September 2003.
Messrs Kupke, Jarmyn and Silvestri were employees of Australian Executor Trustees Limited at all relevant times. Mr Kupke took instructions from the testator for the preparation of her 1993 will. He said she wished to execute a new will following Aldo’s death. The testator said she wanted her interest in Aldo’s estate and her other assets in Coonalpyn to pass to Antonio and, if Antonio predeceased her, then to Peter and Marc in equal shares. In accordance with the testator’s specific instructions clause 8 of this will stated as follows:
“I EXPRESS THE WISH (but without creating or imposing any trust in that regard) that the farming and grazing lands be retained by my son the said Antonio Bruno Casanova and be passed from generation to generation in his family.”
Mr Jarmyn took instructions for the preparation of the 1997 will. He met the testator on 2 May 1997. She was then 92 years of age. She gave Mr Jarmyn a statement provided by her medical practitioner on the previous day. The statement referred to the testator as being in a “clear state of mind” and that she was able to “state what she wishes with her estate”. Mr Jarmyn’s assessment of the testator’s intellectual capacity coincided with the views expressed by the medical practitioner.
Mr Jarmyn was aware of the contents of the 1993 will. The testator expressed the wish that everything that was to go to Antonio in the 1993 will was now to go to his sons, Peter and Marc. Mr Jarmyn discussed with the testator clause 3 of the 1993 will. The testator intimated to him that Aldo’s estate had been finalised. Mr Jarmyn stated that at the time of his interview with the testator he did not have any knowledge of the state of administration of Aldo’s estate or of the precise assets comprising the estate. He was unaware that Aldo had a life interest in Luigi’s estate and that the administration of Luigi’s estate would not be finalised until after her death. He was unaware that the assets of Luigi’s estate included parcels of farming land at Coonalpyn. He was also unaware that the affairs of Luigi’s estate were then administered by I.O.O.F. Australia Trustees Limited.
Mr Jarmyn did not examine the files kept by his company in relation to the estate. He was not aware of the terms of Aldo’s last will. He was unaware of the order made by this court under the Inheritance (Family Provision) Act. He was unaware that the effect of that order was that administration of Aldo’s estate would not be completed until after the testator’s death.
The testator told Mr Jarmyn that the administration of Aldo’s estate had been finalised. She said that the farming land which was part of the assets of his estate had been transferred to her since she made the 1993 will. Her understanding was that she was free to do with it as she wished under her will. She stated that she wanted all her farming land to go to Peter and Marc and this included the farming land which had come to her through Aldo’s estate.
Mr Jarmyn concluded that it was unnecessary to retain the provision in clause 3 of the 1993 will relating to Aldo’s estate because the testator had told him that all her interest in that estate had been transferred to her. It was his understanding that the remainder of the existing words in clause 3 would operate to convey to Peter and Marc the farming lands which had formed part of Aldo’s estate in accordance with the wishes expressed by the testator.
Mr Silvestri has examined the files kept by Australian Executor Trustees Limited in relation to the estate of the testator and her son Aldo. He stated in his affidavit that her interest in Aldo’s estate which had not been transferred to her in her lifetime comprises the value of the remaining asset of Aldo’s estate consisting of Aldo’s three-eighths interest in Luigi’s residuary estate less an amount to be paid from Aldo’s estate to another beneficiary in accordance with the court order to which reference has been made.
Dina’s affidavit refers to the history of the family’s farming activity in the Coonalpyn area. She appears to have been close to the testator (her grandmother) who at all times following Luigi’s death expressed the intention to have her interest in the Coonalpyn farming land passed on to Peter and Marc.
In her affidavit Dina said that she spoke to the testator on an occasion in about July 1997. The testator spoke about changing her will. She said “What I give you(r) Daddy I give to Peter and Marc”. She told Dina that her share (as residuary beneficiary) was to remain the same.
I have no doubt that at the time of the making of the 1997 will the testator wrongly believed that all of her interest in Aldo’s estate had been transferred to her. Mr Jarmyn acted on the testator’s instruction to this effect when advising that the provision in clause 3 of the 1993 will concerning Aldo’s estate was no longer necessary. It was his understanding that the effect of the 1997 will which he drafted would operate to convey to Peter and Marc the farming lands which had previously formed part of Aldo’s estate. The testator’s statements to the trust officers and Dina reflect her intention that all of her interest in Aldo’s estate should pass to Peter and Marc.
The 1997 will does not accurately reflect the intentions of the testator at the time of the making of the will. The rectification sought in the statement of claim by way of an amendment to clause 3 of the 1997 will would give proper expression to those intentions.
There will be an order that the testator’s last will dated 21 May 1997 be rectified by inserting in clause 3 thereof after the words “motor car” the following:
“all the share and interest of which I shall die possessed in the estate of my late son ALDO LUIGI CASANOVA or so much thereof as shall not have been actually paid or transferred to me during my lifetime”.