Clarke Re the Estate of Timar

[2005] NSWSC 1364

CITATION:	Clarke Re the Estate of Timar [2005] NSWSC 1364
HEARING DATE(S):	7 March 2005
JUDGMENT DATE :	7 March 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Order of senior deputy registrar set asdie - rectification of will granted

CATCHWORDS:	WILL PROBATE AND ADMINISTRATION - rectification of will - effect of presumed intention to avoid intestacy on claim for rectification - whether additional evidence adduced sufficient to require rectification
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s29A
PARTIES:	Vera Clarke (Plaintiff)
FILE NUMBER(S):	SC 113345/04
COUNSEL:	Mr Graham Segal (Plaintiff)
SOLICITORS:	Lang Gellert & Noonan (Plaintiff)

LOWER COURT JURISDICTION:

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

MONDAY 7 MARCH 2005

113345/04 VERA CLARKE v THE ESTATE OF LESLIE TIMAR

PROBATE LIST

JUDGMENT

1 HIS HONOUR: By notice of motion filed on 1 February 2005 the plaintiff seeks a review of the decision of the Senior Deputy Registrar made on 14 December 2004 refusing to make an order for the rectification of the will of Leslie Timar deceased.

2 Under that will the deceased gave "The residue of my estate to Mrs Vera Clarke and Mr George Clarke." Vera Clarke was the step-daughter of the deceased and George Clarke was her husband. George Clarke died before the death of the testator, who died on 6 November 2003.

3 The application for revocation was made under s29A of the Wills Probate and Administration Act 1898. Rectification sought was to add, after the words which I set out, the words "or the survivor of them." If the will is not rectified, then while the summons seeks an order as to interpretation not properly brought in the probate list, it seems to me to be clear that there would be a partial intestacy, as the gift to Mr and Mrs Clarke was a gift to them as tenants in common and not as joint tenants. While that might be a matter to argue in some other proceedings, it is only the claim for rectification which was the concern of the Deputy Registrar and of this review.

4 On a partial intestacy, that part of the estate of Mr George Clarke which goes on intestacy would go to the Crown, there being no next of kin, unless an order for rectification were made. A citation was served on the Attorney General and a letter from the Crown Solicitor's Office was received stating that the Attorney General did not propose to appear.

5 While there was a body of evidence dealt with by the Deputy Registrar, and which is now before me, relating to the friendship between the deceased and the residuary beneficiaries, and to some extent his reliance on them for assistance, in my view that would not be sufficient to enable the court to determine that the will as expressed did not express the true intentions of the deceased. In stating that, I accept that in ordinary circumstances a person who makes a will does not intend that there should be an intestacy or partial intestacy on his death. But that does not necessarily enable the court to determine that the will should be rectified in a particular way. The court requires cogent evidence to be satisfied as to the beneficiary intended to take to prevent that partial intestacy arising.

6 I am not satisfied that the decision of the Registrar on the material before him was incorrect. That, however, is not an end to the matter because there has since been filed an affidavit sworn 3 March 2005 of Mrs Eva Lang, one of the attesting witnesses to the will. In that affidavit she deposes to a conversation with the deceased shortly before the will was made in which he said:

I want to make a Will and leave my house and most of my money to my daughter Vera (meaning Vera Clarke, his step-daughter) who is dear to me and as you know who looks after me all the time. I will also include George (meaning George Clarke) so that he will not be offended as they are a very close couple, or if one of them is not here then the other can have my assets when I die. Do you think this is a fair arrangement in my Will?

7 Mrs Lang said that she witnessed the will and thereafter on several occasions the deceased said to her, "I want to make sure that Vera and George will both benefit from my estate. They are very good to me and deserve to get my house and investments."

8 While on one view those two passages may appear to be contradictory, on consideration I do not think they are, and they tend towards a finding that the intention of the deceased was to dispose of his residuary estate to those two persons, if they survive and if not to the survivor.

9 It is difficult in these matters to make a proper decision where there is no contradictor. That is not to say that the evidence of Mrs Lang is not correct or true. But there is no doubt that it would have more force if it were subject to cross-examination and not varied. Nevertheless, the only person who has any interest in this matter other than Mrs Clarke is the Attorney General. This evidence is stronger than the evidence which he had before him when he made his decision not to appear, and in those circumstances I do not think that it is necessary for him to be served with this affidavit and to have a further opportunity of coming before the court to oppose the application made.

10 I consider that the evidence of Mrs Lang establishes the case for rectification put forward. I stated during the hearing that it is unsatisfactory for the complete evidence not to be put before the court at the one time, particularly evidence such as that which has now carried the day and which if available ought obviously to have been brought to the court on the application before the Deputy Registrar. I state that because the lack of that evidence was one of the matters referred to in his decision. Nevertheless, in my view, that is not a matter sufficient to bring the court to a decision that rectification ought not to be allowed and I propose to make the order sought in paragraph 2 of the notice of motion. As this motion has been brought out of time, it is necessary for the court to grant leave to bring it out of time and I propose to make that order. I will grant that leave.

11 I give leave to bring the notice of motion out of time. I set aside the order of the Senior Deputy Registrar of 14 December 2004. In lieu thereof I make the order sought in paragraph 2 of the summons filed on 13 August 2004. Order the claim in paragraph 1 of the summons be dismissed.

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