Craker v Craker (No 2)

Case [2018] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Civil)

CRAKER v CRAKER & ORS (No 2)

[2018] SASC 174

Judgment of The Honourable Justice Stanley

23 November 2018

SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION

Application for rectification of a will pursuant to s 25AA of the Wills Act 1936 (SA) (the Act).

The plaintiff, who is the testator's widow, submits that the solicitor who took instructions from the testator for the preparation of the will confused his instructions in relation to the disposition of his proprietary interests in two properties located at “Wombat’s Rest” near Morgan on the River Murray.  The plaintiff further submits that the solicitor failed to condition the gifts of the proceeds of life insurance and superannuation policies to the testator’s children on the plaintiff not surviving him.

The solicitor was joined as an interested party to the proceedings.

Held (by Stanley J):

1.  In relation to the application for rectification of clause 12 concerning the life insurance and superannuation policies, the Court is not prepared to find that the executed will of the testator does not properly reflect his testamentary intentions.  Accordingly, the application for rectification of clause 12 is dismissed.

2.  In relation to the application for rectification of clauses 10 and 11 concerning the properties at Wombat’s Rest, the Court is satisfied that the executed will of the testator does not properly reflect his testamentary intentions.  Accordingly, the application for rectification of clauses 10 and 11 is granted.

3.  Parties to be heard as to costs.

Wills Act 1936 (SA) s 25AA; Wills Act 1997 (Vic) s 31, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336, applied.
In the Estate of Hennekam (deceased) (2009) 104 SASR 289; Sykes v Sykes [2010] SASC 356; In the Estate of Josef Bernhard Nies (deceased) [2014] SASC 93; ANZ Trustees Ltd v Hamlet [2010] VSC 207; Rawack v Spicer [2002] NSWSC 849; Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, discussed.
Craker v Craker & Ors [2018] SASC 10; Wesley v Wesley (1998) 71 SASR 1; Kerr v Kerr [2015] SASC 199; Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 55, considered.

CRAKER v CRAKER & ORS (No 2)
[2018] SASC 174

STANLEY J.

Introduction

  1. This is an application for rectification of a will pursuant to s 25AA of the Wills Act 1936 (SA) (the Act).

  2. On 22 December 2011, Michael David Craker (the testator) executed his last will.  The will was prepared by his solicitor, Ms Ada Lester (now Ms De Duonni).[1] The testator died on 6 July 2013.

    [1]    In the course of these reasons, for the sake of clarity I have referred to the solicitor as Ms De Duonni throughout. 

  3. The plaintiff, who is the testator’s widow, commenced proceedings for rectification in 2016. 

  4. The plaintiff seeks to rectify clauses 10, 11 and 12 of the testator’s last will.  I set out those…

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Craker v Craker (No 2) [2018] SASC 174
Case
[2018] SASC 174
Decision Date

CaseChat Overview and Summary

Craker v Craker (No 2) involved a dispute over the rectification of a will made by the deceased, Mr Craker, who passed away leaving behind his wife and their daughter, Eve. The dispute centred on the interpretation and potential rectification of specific clauses in Mr Craker's will, particularly those concerning the distribution of his properties and life insurance policies. The case was heard in the South Australian Supreme Court.

The legal issues that the court had to decide included whether the executed will accurately reflected Mr Craker's testamentary intentions and, if not, what those intentions were. The court had to consider the evidence provided by the plaintiff, the deceased's wife, and the solicitor who drafted the will. The primary consideration was whether the will conformed to Mr Craker's intentions at the time of its execution and whether there were any mistakes that needed rectification under section 25AA(1) of the relevant Act.

The court found that the executed will did not properly reflect Mr Craker's testamentary intentions. The plaintiff provided sufficient evidence to discharge the onus of proving that the will did not accurately reflect his intentions, particularly regarding the disposition of the properties and the life insurance policies. The court accepted that there were mistakes in the will, specifically in clauses 10 and 11, and granted the application for rectification. The court rejected the solicitor's evidence, considering it inconsistent with other evidence and the will file. As a result, the court ordered the rectification of the specified clauses to reflect Mr Craker's true intentions.

In summary, the South Australian Supreme Court granted the application for the rectification of clauses 10 and 11 of Mr Craker's will. The court found that the plaintiff had successfully demonstrated that the executed will did not accurately reflect the testator's intentions and ordered the necessary changes to the will to better align with those intentions. The final orders included the rectification of the specified clauses in the will.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Prior to the hearing of the application for rectification, the parties reached a settlement. That settlement did not include the solicitors, who were joined to the proceedings as an interested party. That resulted in an unsuccessful application for the dismissal of the action by the solicitors.[2] As a result, at the trial of the rectification application the only contradictor was the testator’s former solicitors.[2] [2018] SASC 10.Factual background The testator married the plaintiff on 25 March 2003. At that time, the testator had a proprietary interest in the two properties located at Wombat’s Rest on the River Murray. The testator also had two life insurance policies, described as the V and J Life Insurance policies, as well as three child endowment policies in favour of his adult children, David John Craker, Sarah Rose Craker-Stollznow and Samantha Jane Craker. The testator also held superannuation with AMP. On 8 June 2005, the testator made a will with Heuzenroeders (the 2005 will). That will gave each of the child endowment life insurance policies to the child named in that policy; the Lot 80 property to David, Samantha and Sarah; the V Insurance Policy, J Insurance Policy, NAB Superannuation Death Benefit and the AMP Superannuation benefit to David, Samantha and Sarah; and the residue of the estate, which must have included the Lot 79 property, to the plaintiff. In 2006, the plaintiff and the testator purchased a residential property at Kokoda Road, Nuriootpa. The property was mortgaged in favour of the NAB. In 2007, just before the plaintiff became pregnant with Eve, the testator paid Sarah the child endowment policy in her name. It appears that some time prior to the meeting with Ms De Duonni, in June 2011 the child endowment policy in Samantha’s name was paid to her. Principles relevant to an application for rectification Section 25AA(1) of the Act provides:(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. In In the Estate of Hennekam (deceased),[3] Gray J described the rectification power as a device to enable the court to correct a document which does not accurately reflect the testator’s intentions. It is generally concerned with rectifying mistakes as to the meaning or the contents of a will.[4] Gray J also considered the rectification power in the matter of Sykes v Sykes,[5] where his Honour observed that “... [t]he testator’s actual intentions are essential to found an order for rectification”.[6] The time for ascertaining the testator’s testamentary intentions is the time of making the will.[7] The testator’s testamentary intentions are to be determined from a consideration of all the circumstances surrounding the making of the will.[8][3] [2009] SASC 188, (2009) 104 SASR 289.[4] [2009] SASC 188 at [36], (2009) 104 SASR 289 at 300.[5] [2010] SASC 356.[6] [2010] SASC 356 at [13].[7] Wesley v Wesley [1998] SASC 7054; (1998) 71 SASR 1 at 5-6; Kerr v Kerr [2015] SASC 199 at [28].[8] Kerr v Kerr [2015] SASC 199 at [32].

Evidence

Evidence Before The Court

In other words, before the power of rectification can be exercised, the Court must be satisfied on the balance of probabilities both that the terms of the will fail to carry out the testator’s intentions, and what it was the testator intended concerning the part of the will which is to be rectified.[24] This is explained by the New South Wales Court of Appeal in Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd[25] where Sheller JA, with whom Mahoney A-P and McLelland A-JA agreed, said:[26]... The plaintiff must prove that there was disconformity between the intention and the written instrument and that the intention continued to the time of execution of the instrument. The plaintiff must displace the hypothesis, arising from the execution of the written instrument, that it expressed the true intention. Proof sufficient to displace this hypothesis may be easy or difficult or impossible. Such proof may be more difficult, in some circumstances impossible, if the words of the instrument are purposely used or indicate that the parties or party no longer intended to give effect to the whole of the antecedent intention. Careless copying is one thing. Omission of some words of limitation necessary to achieve the intention another. Mistake as to the legal effect of the words used another. The proved intention of the parties or party may be equivocal or too general or not sufficiently exact or precise to found relief. But if the claimant convinces the Court that the instrument does not conform with the intention of the parties or of the party which made it and the intention is clear and precise and can be achieved by the language of an order for rectification, relief should be available.[24] Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556.[25] (1995) 41 NSWLR 329.[26] (1995) 41 NSWLR 329 at 340.The evidence The Court received affidavit evidence from the plaintiff and Ms De Duonni. Both of them were cross-examined on their affidavits. An affidavit of Graham John Rogers was admitted in evidence without the need for him to be called. The plaintiff gave evidence of the testator’s testamentary intentions and the instructions he gave Ms De Duonni. Mr Rogers gave evidence of statements made by the testator that he intended to ensure that the plaintiff and Eve were taken care of financially and that the testator regarded the Lot 79 property at Wombat’s Rest as being jointly owned with the plaintiff. Ms De Duonni gave evidence of the testator’s attendances upon her and the instructions he gave. Her evidence was that the terms of the executed will accurately reflect those instructions. The plaintiff gave evidence that in about mid-2011 the testator was in remission but he and the plaintiff were worried about the prospect of the testator dying without adequate provision being made for the plaintiff and their daughter Eve, who was only three years of age. There was also a concern about what would happen if both died simultaneously such as in a motor vehicle accident. They decided to have wills made. The plaintiff said the testator assured her before the wills were made that if he died she would not be left in debt because the “life and super will pay everything off”. The testator further told the plaintiff that the superannuation and life insurance policies were going to be left to her so that she and Eve would be able to afford to live in their home at Kokoda Road. In the event that something happened to the testator these policies would enable the plaintiff to discharge the mortgage over the property. He assured her that everything would be okay. The plaintiff gave evidence that before consulting Ms De Duonni she and the testator discussed the shack which is Lot 79 and it was agreed the testator would leave this to the plaintiff. She gave evidence that the testator said the shack could be a backup if she needed money as she could sell it. Further, the testator told her he wanted his quarter share of the other shack, Lot 80, to be put in trust for Eve until she turned 18 years old. The testator wanted this so that Eve would have a place to go on the river even if it was necessary to sell Lot 79.

Decision

Reasons for decision

STANLEY J
I find that the executed will of the testator does not properly reflect his testamentary intentions. The plaintiff has discharged the evidentiary onus she carries in accordance with the Briginshaw principle. In these circumstances, I grant the application for rectification of clauses 10 and 11. Conclusion For these reasons I would grant the application for rectification to the extent of deleting the words “Registered Lease 2829342” from clause 10 of the will and substituting the words “Registered Lease 2829341 (Lot 79)” in their place, and deleting the words “Registered Lease 2829341” from clause 11 and substituting the words “Registered Lease 2829342 (Lot 80)” in their place. I would hear the parties as to costs

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

The plaintiff submits that her evidence and the evidence of Mr Rogers supports the inferences arising from the will file in favour of the claim for rectification. All of this evidence makes it more probable than not that there was a mistake in the executed wills. The competing inferences are that contrary to what the testator told the plaintiff, in August 2011 he changed his mind about which of the Wombat’s Rest properties would go to the plaintiff and Eve, and subsequently failed to disclose this to her; and that on 8 December 2011 the testator changed his instructions in relation to the beneficiary of the superannuation and life policies, depriving the plaintiff of these policies in favour of all of the testator’s children, including Eve, without objection by the plaintiff, which she cannot now recall. The plaintiff submits that this is improbable.Consideration In considering whether the plaintiff has discharged the onus of proving that the terms of the testator’s executed will do not reflect his true testamentary intentions at the time of execution on 22 December 2011, I consider that each of the purported mistakes should be considered discretely. For the application for rectification to succeed, the evidence of Ms De Duonni must be rejected. The plaintiff submits that Ms De Duonni’s evidence should be rejected as a reconstruction. The plaintiff submits that Ms De Duonni’s evidence is inconsistent with her evidence, and contrary to inferences that arise from the objective evidence of the Heuzenroeders will file. In making findings of fact I bear in mind that a legal practitioner and an officer of the Court has given sworn evidence that the terms of the executed wills reflect the instructions she was given by the testator. That evidence is also to be considered in the light of the testator having executed the will in circumstances where the solicitor made a note at the time that the testator had read through the will and was happy with the final version. The plaintiff is highly critical of the evidence of Ms De Duonni. I understood the plaintiff to submit that Ms De Duonni was tailoring her evidence to reconcile the contents of the will file with the terms of the executed will of the testator. In the circumstances, it is understandable that some of Ms De Duonni’s evidence assumed a defensive flavour. It is no small matter to reject the sworn evidence of a legal practitioner who is an officer of the Court and owes the Court a duty of candour. Rectification of clause 12 It is convenient first to address the claim for rectification of clause 12. In my view the plaintiff has not discharged the onus of proving that the terms of clause 12 do not accurately reflect the testamentary intentions of the testator. I do not accept that the evidence of Ms De Duonni is a conscious reconstruction. I accept her evidence that on 8 December 2011 the testator gave her instructions to amend the existing draft of clause 13 to delete the condition that the specific bequests were conditioned upon the plaintiff predeceasing or not surviving the testator.