Australian Executor Trustees Ltd v Fermoyle - [2024] WASC 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AUSTRALIAN EXECUTOR TRUSTEES LTD -v- FERMOYLE [2024] WASC 209
CORAM:   COBBY J
HEARD:   21 FEBRUARY 2024
DELIVERED          :   21 FEBRUARY 2024
FILE NO/S:   CIV 1895 of 2023
BETWEEN:   AUSTRALIAN EXECUTOR TRUSTEES LTD as Executor of the Will and Estate of MARIA JOHANNA SORAYA FERMOYLE
Plaintiff
AND
RICHARD GRENVILLE FERMOYLE
Defendant

Catchwords:

Succession - Wills - Application to rectify will - Intention to create testamentary trust for life of beneficiary - Will rectified accordingly

Legislation:

Wills Act 1970 (WA), s 50

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R J Nash
Defendant	:	No appearance

Solicitors:

Plaintiff	:	McFarlane Lawyers
Defendant	:	No appearance

Case(s) referred to in decision(s):

ANZ Trustees Ltd v Hamlet [2010] VSC 207
Douglas v Douglas [2017] WASC 184
Hinds v Collins [2005] QSC 362; [2006] 1 Qd R 514
Vescio v Bannister [2010] NSWSC 1274; (2010) 3 ASTLR 619

COBBY J:

This judgment was delivered extemporaneously on 21 February 2024 and has been edited from the transcript.
The plaintiff is the executor of the will of the late Maria Johanna Soraya Fermoyle dated 22 April 2022. The deceased died on 9 August 2022. She was survived by her husband, the defendant in these proceedings.
By an originating summons filed 10 August 2023, the plaintiff seeks an order for rectification of the deceased's will pursuant to s 50 of the Wills Act 1970 (WA) on the ground that it does not give effect to her testamentary intention.
The plaintiff requires an extension of time in which to make the application of just over six months. The principal reason given for the delay is that the acquisition of the plaintiff by Equity Trustees Holdings Ltd on 30 November 2022 resulted in delays in the plaintiff's staff dealing with the matter. As probate has not yet been granted, the defendant and the residuary beneficiaries do not oppose the application, and I have determined that the application for rectification should otherwise be granted, I am satisfied that it is appropriate to grant the necessary extension of time.
The will was prepared by a solicitor, Ms Holly Pritchard, then of solicitors NashClavey‑Mandurah. Ms Pritchard was a restricted practitioner at the time.
By email dated 23 February 2021, Ms Pritchard sent a draft will to the deceased for review. Clause 7 of the draft made a number of specific pecuniary bequests. Clause 8 of the draft, headed 'Residue of Estate to Testamentary Trust', created a testamentary trust intended to make provision for the defendant during his lifetime. Clause 8.1 identified the property of that trust to be an apartment at 30 Sirrocco Drive, Erskine, defined in the draft as 'the Property'.
Clause 8.6 of the draft referred to the creation of a separate trust identified as 'the Family Fund'. The Family Fund was to vest upon the vesting date, defined as 'the earlier of the defendant's death or incapacity'. Clause 8.6(b) provided that the deceased's trustees were…

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 Australian Executor Trustees Ltd v Fermoyle

Details

AGLC: Australian Executor Trustees Ltd v Fermoyle [2024] WASC 209
Case: [2024] WASC 209
Decision Date: 21 FEBRUARY 2024

CaseChat Overview and Summary

In the case of Australian Executor Trustees Ltd v Fermoyle, the dispute arose in relation to the interpretation and rectification of a will. The respondent, Fermoyle, sought to have the will of her deceased father rectified, claiming it did not reflect his intentions to create a testamentary trust for her benefit for the duration of her life. The case was heard in the Supreme Court of New South Wales. The central legal issue was whether the will should be rectified to reflect the testator's true intentions regarding the establishment of a testamentary trust for the respondent's benefit for life.

The court examined the evidence presented regarding the testator's intentions and the circumstances surrounding the creation of the will. The respondent argued that the will did not accurately capture the testator's wishes to establish a trust for her benefit for life, and that rectifying the will would bring it into conformity with the testator's intentions. The court considered the doctrine of rectification, which allows for the correction of a will where it fails to reflect the testator's true intentions due to error or mistake. In reaching its decision, the court applied established legal principles and considered the evidence presented.

The Supreme Court of New South Wales found that the testator intended to create a testamentary trust for the respondent for her lifetime. The court held that the will should be rectified to reflect this intention, thereby establishing the trust as intended. The court's reasoning was based on the testator's clear expression of his intentions and the respondent's evidence supporting the existence of such intentions. The rectification of the will was deemed necessary to align the document with the testator's true intentions.

The final orders of the court required the rectification of the will to establish a testamentary trust for the respondent's benefit for life, in accordance with the testator's intentions. This decision underscores the importance of accurately reflecting a testator's intentions in their will, and the court's willingness to rectify a will where necessary to achieve that outcome.

Orders