Craker v Craker (No 2) - [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

This is an application for rectification of a will pursuant to s 25AA of the Wills Act 1936 (SA) (the Act).
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.
The plaintiff, who is the testator’s widow, commenced proceedings for rectification in 2016.
The plaintiff seeks to rectify clauses 10, 11 and 12 of the testator’s last will. I set out those clauses.
10.I GIVE such interest as I may have at my death in the Registered Lease 2829342 on the property presently registered as Certificate of Title Register Book Volume 5226 Folio 212 (‘Wombat’s Rest’) to my said wife for her own use and benefit absolutely provided she shall survive me for the space of 28 days.
11.I GIVE such interest as I may have at my death in the Registered Lease 2829341 on the property presently registered as Certificate of Title Register Book Volume 5226 Folio 212 and such interest as I may have at my death in the house located on the said property (‘Wombat’s Rest Shack’) to my Trustees upon trust for my daughter Eve Susette Craker as shall survive me and attain the age of 18 for her own use and benefit absolutely.
12.     I GIVE the proceeds of my:
i.      AMP Flexible Lifetime Super (Policy Number 920006195),
ii.     AMP Whole of Life Insurance Plan (Policy Number S0497185 V; and
iii.    AMP Whole of Life Insurance Plan (Policy Number S0401794 J);
to my children DAVID JOHN CRAKER, SARAH ROSE CRAKER-STOLLZNOW, SAMANTHA JANE CRAKER and EVE SUSETTE CRAKER as shall survive me and attain the age of 25 years in equal shares as tenants in common for their own use and benefit absolutely.
The plaintiff seeks to delete the words “Registered Lease 2829342” from clause 10 and substitute the words “Registered Lease 2829341” in their place; delete the words “Registered Lease 2829341” from clause 11 and substitute the words “Registered Lease 2829342” in their place; and insert at the commencement of clause 12 the words: “Should my said wife predecease me or not so survive me for a period of twenty-eight (28) days”.
There are two aspects to the claim for rectification. First, the plaintiff 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. Second, the plaintiff contends 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.
In order to understand the basis of the claim for rectification it is necessary to say something about the background to the claim.
The testator had three adult children from a previous marriage and one child from his marriage with the plaintiff. Eve Susette Craker, the infant defendant, is the child of the plaintiff and the testator.
The plaintiff and the testator met in 2000. The testator had recently been diagnosed with cancer for the second time. Their romantic relationship commenced in mid to late 2001. From 2000 until 2006 the testator was battling the symptoms of cancer. That required him to have lengthy periods of time away from work. However, in 2006 the testator underwent a stem cell transfer after which he went into remission for approximately four years. Eve was born on 25 June 2008.
Importantly, for the purpose of the rectification application, the testator had a proprietary interest in two properties at Wombat’s Rest being two shacks described as lease 341 and lease 342. Lease 341 is the registered lease 2829341. Lease 342 is the registered lease 2829342. Lease 341 was commonly referred to as Lot 79. Lease 342 was commonly referred to as Lot 80. The two shacks were next door to each other. Lease 342 had been registered to the testator’s parents and uncle and aunt. On 31 October 2001 the testator purchased the interest in lease 341 for $91,500. On 4 February 2002 the testator purchased the interest of his uncle in lease 342 for $11,250. From about 2001 to 2005 the testator and the plaintiff together renovated the shack on lease 341. While they were doing so they stayed at lease 342. The testator’s parents and aunt maintained their interest in lease 342.
In about mid-2011 the plaintiff and the testator decided to make new wills. They instructed Ms De Duonni of Heuzenroeders Solicitors (Heuzenroeders). They discussed the disposition of their assets. The plaintiff says that they agreed that the testator would leave his interest in lease 341 entirely to the plaintiff. It was further agreed that he would leave what he understood to be his one-quarter share of lease 342 to the plaintiff, to be held on trust for Eve until she turned 18 years old. The plaintiff says the testator gave Ms De Duonni instructions accordingly. Further, the plaintiff says that after discussion with Ms De Duonni concerning the position of the testator’s adult children, the testator gave instructions that, in the event of the plaintiff’s death, he would leave the proceeds of his superannuation and life insurance policies to his four children.
In short, the plaintiff’s claim for rectification is based on the contention that in drafting the testator’s will, Ms De Duonni confused the instructions she was given and drafted the will to effect gifts of the testator’s interest in lease 341 to the plaintiff to be held on trust for Eve until she turned 18, and the one-quarter interest in lease 342 to the plaintiff. This was the reverse of the instructions the testator gave to the solicitor. She also failed to condition the gifts of the proceeds of the superannuation and life insurance policies on the plaintiff not surviving the testator by 28 days.
It appears that the testator’s will went through a number of drafts before it was executed. The testator met with Ms De Duonni to provide instructions in relation to his will on 1 June 2011, 17 August 2011 and 8 December 2011. Ms De Duonni had a telephone attendance on the testator on 26 August 2011. He further attended upon Ms De Duonni on 22 December 2011 to execute the will. Prior to 2011, the plaintiff had not made a will. On 1 June 2011, the plaintiff and the testator each gave instructions to Ms De Duonni for the making of individual wills. The plaintiff accompanied the testator when he attended upon Ms De Duonni except on 17 August 2011.
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].
The nature and scope of the rectification power was considered in detail in In the Estate of Nies (deceased).[9]Gray J held that rectification would be ordered where it is necessary to ensure that the will reflects the testamentary intentions of the deceased.[10] His Honour remarked that the rectification power is a beneficial or remedial statutory provision designed to expand the previously circumscribed power of the court to correct errors in wills.[11] Accordingly, his Honour considered that a wider, rather than narrower construction of the s 25AA(1) would promote its purpose and, therefore, ought to be preferred.[12] Gray J said:[13]
It is a rule of construction that beneficial or remedial legislation is to be given “a fair, large and liberal interpretation” rather than one which is “literal or technical”, although a construction should not be given that is “unreasonable or unnatural”.
[Citations omitted].
[9] [2014] SASC 93.
[10] [2014] SASC 93 at [38].
[11] [2014] SASC 93 at [28] and [29].
[12] [2014] SASC 93 at [31].
[13] [2014] SASC 93 at [32].
Further, Gray J observed that s 25AA(1) contains no implication that the type of testamentary intentions capable of being the subject of an application for rectification ought to be limited.[14] Gray J said:[15]
The term “testamentary intentions” can be read in both broader and narrower senses. On the one hand, it is correct to say that a person’s testamentary intentions encompass the particular provisions that the person wishes to include in his or her will, for example, particular legacies or gifts that the person wishes to make, powers that the person wishes to confer, discretions given to trustees and the like. That is to say, the term “testamentary intentions” clearly encompasses matters of detail and the particular provisions by which a desired end is to be achieved or regulated. However, the expression should not be regarded as being so confined.
The term “testamentary intentions”, in my view, also properly refers to the broader ends or purposes or outcomes that the testator wishes to achieve by his or her will when described in a more general way, even if the testator has not turned his or her mind to the particular means by which that end, purpose or outcome is to be achieved or where the testator would need to rely on a skilled drafter to supply the words for the will necessary to achieve that end, purpose or outcome.
[14] [2014] SASC 93 at [35].
[15] [2014] SASC 93 at [36] - [37].
I adopt the broad, liberal construction given by Gray J to s 25AA(1).
A condition precedent to the exercise of the rectification power in s 25AA is the construction of the will the subject of the application. The reason for this is explained in ANZ Trustees Ltd v Hamlet[16] by Pagone J in considering the equivalent provision[17] in the Wills Act 1997 (Vic):[18]
… [I]t is a condition precedent to the exercise of the power in s 31 that the Court be satisfied that the Will does not carry out the testator’s intentions and that this satisfaction be based on one of two specified reasons namely, either that a clerical error was made or that the Will does not give effect to the testator’s instructions. The existence of the second of these conditions requires the Will to be construed and to be found upon its proper construction not to give effect to the instructions of the testator.
[16] [2010] VSC 207.
[17] Section 31 of the Wills Act 1997 (Vic).
[18] [2010] VSC 207 at [3].
In relation to the standard of proof in rectification applications, Debelle J remarked in Wesley v Wesley[19] that the principles enunciated by Dixon J, as he then was, in Briginshaw v Briginshaw[20] are applicable. In Rawack v Spicer,[21] which considered the rectification power in the analogous New South Wales legislation, Campbell J explained the rationale for the standard of proof in the following terms:[22]
The nature of the cause of action or defence, namely a claim to rectify the will of the deceased person, involves a situation closely analogous to that involving a claim against a deceased estate. Hence the factors which will lead a Court to take great care in evaluating the evidence concerning a claim against a deceased estate ... likewise apply to a claim for rectification. That granting rectification involves the Court in altering a document which will irrevocably change the destination of a deceased person's property after death, when the deceased has gone to the trouble of executing in a particularly formal fashion an instrument, often after receiving legal advice that the testator has paid for, is a serious subject matter. To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter - not as far advanced, in the spectrum of gravity of allegations, as an allegation of fraud, but still fairly grave. These considerations underlie some of the judicial statements about the standard of proof required before rectification of a will is granted.
[Citations omitted].
[19] [1998] SASC 7054, (1998) 71 SASR 1 at 5.
[20] [1938] HCA 34, (1938) 60 CLR 336 at 360-363.
[21] [2002] NSWSC 849.
[22] [2002] NSWSC 849 at [31].
Rawack v Spicer stands for the proposition that what is required to justify an order rectifying a will is “clear and convincing proof”[23] of the testator’s actual intention but that does not mean that the standard of proof is other than the balance of probabilities.
[23] [2002] NSWSC 849 at [31].
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.
The plaintiff recalls attending with the testator upon Ms De Duonni. She does not remember all that was said at the first meeting. She remembers Ms De Duonni was given instructions that the Lot 79 shack wholly owned by the testator was to go to her and the quarter interest in the Lot 80 shack was to be left to Eve on trust. The plaintiff recalls Ms De Duonni raising the subject of the testator’s adult children. She says that the testator said something to the effect that he was not going to add them as they had already been provided for and were grown. He said something to the effect that they had plenty in their lifetime including numerous holidays. The plaintiff says that she was concerned that some provision had to be made for the children in order to avoid a contested will and asked Ms De Duonni how much would a judge would give them. The plaintiff said Ms De Duonni then said something like $50-$100,000. She says the testator mentioned his endowment policies in favour of the adult children and then decided that, in the event of the plaintiff’s death, he would leave the superannuation and insurance policies to his four children. The testator and the plaintiff also decided to leave provision for the life and superannuation policies to make allowance for circumstances where both died at the same time.
The plaintiff said that Ms De Duonni suggested that the testator should make a statutory declaration explaining the treatment of his children.
The plaintiff cannot remember what happened at subsequent meetings with Ms De Duonni. She remembers there were a few drafts done of the testator’s will but the plaintiff did not read any of those drafts. However, she recalls the testator complaining that the drafts continued to exclude Eve as one of the beneficiaries. The plaintiff says that her will also had to be amended once because of the failure to include Eve as a beneficiary.
The plaintiff recalls attending on Ms De Duonni on 22 December 2011 to execute the wills. She says that on this occasion the wills were only discussed in general terms by Ms De Duonni. She says that Ms De Duonni told them that the wills were the same drafting as previously except that Eve had now been added as a beneficiary for the AMP superannuation policies at clause 12. Her evidence is that Ms De Duonni did not read the entire will to the testator and that the testator did not read the will before executing it.
The plaintiff gave evidence that she received a copy of the will about a week or two after the testator’s death. It was then that she discovered that there had been mistakes made in its drafting. She contacted solicitors as a result. Those solicitors corresponded with Heuzenroeders by letter of 2 August 2013.
In December 2013 the plaintiff’s solicitors wrote to Ms De Duonni, who by this time was at another firm, enclosing various documents from Heuzenroeders will file and asking various questions in relation to the matter.
On 19 December 2013 Ms De Duonni responded advising that having perused the documents she did not have any recollection of the particulars of the matter beyond the information contained in those documents and advising as to her general practice.
Ms De Duonni gave evidence that the plaintiff and the testator attended upon her on 1 June 2011. She took instructions on this occasion and recorded notes of those instructions on a will instruction sheet. She says that she had in her possession at this time the testator’s previous will of 8 June 2005. Ms De Duonni says that the testator instructed her that there were three properties to be dealt with in his will. One was the house at Kokoda Road which he and the plaintiff owned as joint tenants. He wished the plaintiff to inherit this property.
The other properties were at Wombat’s Rest. Ms De Duonni says there was some uncertainty as to how the testator’s interests in these properties were held. In relation to one of the properties he thought he held an interest with others by way of joint tenancy. The testator referred to the other property at Wombat’s Rest but the note made by Ms De Duonni on this occasion is ambiguous as to whether this property was wholly owned by the testator or whether he held a one-quarter share in it. Ms De Duonni said that the principal concern of both the testator and the plaintiff on this occasion was to make adequate provision for their daughter, Eve. She recalls the testator saying he had adequately provided for his other children from his first marriage during his lifetime. She recalls the plaintiff being concerned about the children of the testator’s first marriage making a claim against the estate.
The note made by Ms De Duonni on this occasion records:
House
1.19 Kokoda Road, Nuriootpa.
2.Wombat’s Rest Morgan SA ® joint tenants – Mike to check.
3.1/4 share in shack @ Wombat’s Rest (only owned by Mike).
Mike to provide details.
approx 100k.
® leave to Eve.
House: leave to each other ... (if both pass, leave to Eve).
2. leave to each other (if both pass, leave to Eve).
The plaintiff submits that the inference that arises from the contents of the will file is that on 1 June 2011 the testator gave instructions that the Kokoda Road property was to be given to each of the testator and the plaintiff if one predeceased the other or to Eve in the event of their mutual deaths; the Lot 79 property was possibly owned by the testator and the plaintiff as joint tenants, but in any event was to be given to each other if one predeceased the other, or to Eve in the event of their mutual deaths; and the Lot 80 property was to be given to Eve.
On 1 June 2011 Ms De Duonni made a note in relation to the topic of specific gifts that “the proceeds from Mike’s super to go to ® see notes”, with a note there is a gift to David, Samantha, and Sarah”, Mike’s first three children”, then a note that jewellery and wedding dress are to be gifted to Eve.
The plaintiff submits that the inference arising from this entry as a whole is that an instruction was given that, in the event of the deaths of the testator and the plaintiff, the proceeds from Mike’s super, the jewellery, and wedding dress were to go to the named beneficiaries.
Ms De Duonni says that following this conference she commenced the preparation of the will. To that end, she wrote to the testator and the plaintiff on 5 July 2011 seeking further instructions in relation to a number of matters including details of the basis upon which Lot 80 was held.
On 17 August 2011 the testator attended on Ms De Duonni without the plaintiff. On this occasion Ms De Duonni produced a draft will for consideration by the testator. There is a copy of that draft together with handwritten notes on it made by Ms De Duonni on the will file. Clause 10 of the draft purports to leave the Kokoda Road property and property at Wombat’s Rest to the plaintiff on the condition that she survives the testator. Clause 11 of the draft leaves the Wombat’s Rest Shack upon trust for Eve. Ms De Duonni recalls that on this occasion she was able to identify the registered leasehold interests at Wombat’s Rest utilising the Property Assist database. In a note Ms De Duonni made of that attendance she records that the testator confirmed that Lot 79 was solely owned by him and he held a one-quarter share in Lot 80. She recalls that during this discussion the testator referred to Lot 80 as “Wombat’s Rest”, Lot 79 as “the shack” and Kokoda Road as “home”. She recalls the testator giving instructions on this occasion that he wanted to leave the quarter share in Lot 80 to the plaintiff and bequeath Lot 79 on trust to Eve. There are markings made on the draft will in relation to the clauses which dispose of the testator’s interests in the property at Wombat’s Rest. Those markings are a circle around the words “Lot 79”, which is then overwritten with the numeral “80” next to the clause leaving the property described as “Wombat’s Rest” to the plaintiff; the words “1/4 share – Lot 80” in the same clause; the land title numbers for the gift of the testator’s interest in the property described as “Wombat’s Rest Shack” to Eve in the clause that effects that gift; the words “1/4 interest = lot 79 → CT (lease)” at the bottom of the page, with a further arrow to the clause which gifts the testator’s interest in the property described as “Wombat’s Rest Shack” to Eve. The reference to “1/4 interest” has been struck out. The words “Lot 79” have been handwritten next to that same clause under some words in a circle which are illegible.
The testator also gave instructions to purchase CT searches for three properties. This was subsequently done on 25 August 2011.
In the will file there is a subsequent hand-written note. It states inter alia:
Not included: property owned as joint tenants [with] joanne.
On 2 September 2011, Ms De Duonni made amendments to the draft will. She also made a note to “double check property assist name search”. It is apparent at this stage that Ms De Duonni was confused as to whether the testator had two or three properties. This is reflected in her file note of the message she left for him asking him to confirm whether he owned two or three properties, and whether he had sold one.
There is no record of any response from the testator.
On 8 September 2011, a copy of the transfer instrument by which the testator purchased his quarter interest in the Lot 80 property was obtained by Heuzenroeders. It appears further searches were then done.
On 9 September 2011, Ms De Duonni wrote to the testator enclosing a further draft will for his consideration and confirming the results of the property searches in relation to the three properties.
The letter confirms, inter alia, that the testator and the plaintiff held the Kokoda Road house as joint tenants and that as a result, upon his death, should the plaintiff survive him, she would automatically become the sole proprietor pursuant to the right of survivorship. Importantly, the terms of the letter expressly indicate that the testator was the sole lessee of Lot 79 and held a quarter share interest in the lease at Lot 80. Significantly, the letter does not refer to any instructions given by the testator as to who he wished was to inherit each of the Wombat’s Rest properties.
The testator’s draft will enclosed under cover of the letter of 9 September 2011 gifted the property registered lease 2829342 (“Wombat’s Rest”) to the plaintiff and such interest as he may have at his death in the house located on the property registered lease 2829341 (“Wombat’s Rest Shack”) upon trust to Eve.
On the same day Ms De Duonni sent the plaintiff a draft of her will.
On 8 December 2011 the plaintiff and the testator attended on Ms De Duonni for the purpose of reviewing their draft will.
Prior to that attendance the testator’s draft included the following:
10.I GIVE such interest as I may have at my death in the registered lease 2829342 on the property presently registered as Certificate of Title Register Book Volume 5226 Folio 212 (‘Wombat’s Rest’) to my said wife for her own use and benefit absolutely provided she shall survive me for the space of 28 days.
11.I GIVE such interest as I may have at my death in the registered lease 2829341 on the property present registered as Certificate of Title Register Book Volume 5226 Folio 212 and such interest as I may have at my death in the house located on the said property (‘Wombat’s Rest Shack’) to my trustees upon trust for my daughter EVE SUSETTE CRAKER as shall survive me and attain the age of 18 for her own use and benefit absolutely.
12.I GIVE the rest, residue and remainder of my estate to my said wife for her own use and benefit absolutely provided my said wife shall survive me for the space of 28 days.
13.Should my said wife predecease me or not so survive me as aforesaid then I GIVE:
a.     the proceeds of my:
i.AMP Flexible Life Lifetime Super (Policy Number 920006195),
ii.AMP Whole of Life Insurance Plan (Policy Number S0497185V); and
iii.AMP Whole of Life Insurance Plan (Policy Number S0401794J);
to my children DAVID JOHN CRAKER, SARAH ROSE CRAKER-STOLLZNOW and SAMANTHA JANE CRAKER as shall survive me and attain the age of 25 years in equal shares as tenants in common for their own use and benefit absolutely.
b.     The proceeds of my AMP Children’s Empowerment Insurance Plan (Policy Number S0449776N) in the name of my son DAVID JOHN CRAKER, to my said son for his own use and benefit absolutely provided he shall attain the age of 25 years;
c.     The proceeds of my AMP Children’s Empowerment Insurance Plan (Policy Number S0498541U) in the name of my daughter SAMANTHA JANE CRAKER, to my sain [sic] daughter for his [sic] own use and benefit absolutely provided he shall attain the age of 25 years;
d.     All of my said wife’s jewellery to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
e.     My said wife’s wedding dress to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
14.I DIRECT that the rest, residue and remainder of my estate is sold by my trustees and I GIVE the net proceeds from such sale from my trustees UPON TRUST for my daughter EVE SUSETTE CRAKER as shall survive me and I DIRECT that my trustees distribute such proceeds as follows:
…
Ms De Duonni gave evidence that on this occasion she took the testator through the provisions of the draft explaining their purpose. She has no recollection of the testator or the plaintiff challenging or expressing any qualifications or doubt as to the effect of clauses 10 and 11. The only changes sought by the testator to the draft will were to clause 13. The testator gave instructions that the plaintiff was not to inherit the proceeds of the superannuation and life insurance policies, which were to be bequeathed directly to the testator’s children, on the proviso that that included Eve. Ms De Duonni recalls that the plaintiff agreed to this course so long as Eve was included as a beneficiary of those policies and plans. Ms De Duonni gave evidence that she noted this change of instructions by drawing an arrow from clause 13 to clause 12 and handwriting Eve’s name into the draft clause 13(a) after the reference to Samantha Jane Craker.
In addition, Ms De Duonni said that she was instructed to prepare a statutory declaration by the testator explaining why he had decided to make a will in terms which made greater provision for the plaintiff and Eve compared with his other children. Ms De Duonni said he gave those instructions on her advice given the concerns of the testator and in particular the plaintiff about the possibility of further claims being made on the testator’s estate by the children from his first marriage.
Ms De Duonni gave evidence that the testator and the plaintiff attended upon her on 22 December 2011 and executed their wills after she had read the testator’s will to him and explained the terms of the plaintiff’s will to her. She said they took copies of the executed wills with them when they left her office. There is an entry on the firm’s matter transaction report for that date of “settle final will and draft stat dec”. There is then an entry recording an interview with the testator and the plaintiff which states:
Interview
with Joanne and Mike Craker re wills.
read through – happy with final version
Mike confirmed stat dec n accordance with his wishes
signed and witnessed
cert copies to be sent with invoice
The will file includes a draft of the plaintiff’s will sent to her under cover of a separate letter dated 9 September 2011. The will executed by the plaintiff on 22 December 2011 is in the same terms as the draft except that Eve has been added to the gift in clause 7a which provides:
Should my said husband predecease me or not so survive me as aforesaid then I GIVE:
a.     the proceeds of my said husbands [sic]:
i.       AMP Flexible Lifetime Super (Policy Number 920006195);
ii.       AMP Whole of Life Insurance Plan (Policy Number S0497185V); and
iii.      AMP Whole of Life Insurance Plan (Policy Number S0401794J);
to my said husband’s children, DAVID JOHN CRAKER, SARAH ROSE CRAKER-STOLLZNOW, SAMANTHA JANE CRAKER and my daughter EVE SUSETTE CRAKER as shall survive me and attain the age of 25 years in equal shares as tenants in common for their own use and benefit absolutely;
b.   All of my jewellery to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
c.   My wedding dress to my daughter Eve SUSETTE CRAKER for her own use and benefit absolutely.
The executed will made by the testator included clauses 10 and 11 in the same terms as the draft considered on 8 December 2011. Clauses 12, 13, 14, 15 and 16 provide:
12.     I GIVE the proceeds of my:
i.      AMP Flexible Lifetime Super (Policy Number 920006195),
ii.     AMP While of Life Insurance Plan (Policy Number S04497185V; and
iii.    AMP Whole of Life Insurance Plan (Policy Number S0401794J);
to my children DAVID JOHN CRAKER, SARAH ROSE CRAKER-STOLLZNOW, SAMANTHA JANE CRAKER and EVE SUSETTE CRAKER as shall survive me and attain the age of 25 years in equal shares as tenants in common for their own use and benefit absolutely.
13.I GIVE the proceeds of my AMP Children’s Endowment Insurance Plan (Policy Number S0449776N) in the name of my son DAVID JOHN CRAKER to my said son for his own use and benefit absolutely provided he shall attain the age of 25 years.
14.I GIVE the proceeds of my AMP Children’s Endowment Insurance Plan (Policy Number S0498541U) in the name of my daughter SAMANTHA JANE CRAKER to my said daughter for her own use and benefit absolutely provided she shall attain the age of 25 years.
15.I GIVE the rest residue and remainder of my estate to my said wife for her own use and benefit absolutely provided my said wife shall survive me for the space of twenty eight (28) days.
16.SHOULD my said wife predecease me or not so survive me as aforesaid then I GIVE:
a.     All of my said wife’s jewellery to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
b.     My said wife’s wedding dress to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
c.     Any powers of appointment I may have under the Bright View Family Trust (ABN. 35 966 795 228) to my Trustees absolutely.
Submissions of the parties

The plaintiff submits that the inference arising from the will file as a whole is that the testator’s intentions, as expressed in the instructions given on 1 June 2011, were to give the Lot 79 property to the plaintiff and the Lot 80 property to Eve on trust. The inference is that either Ms De Duonni misunderstood the instructions given to her by the testator on 17 August 2011, or subsequently erred in respect of the lease numbers and transposed them so as to reverse the testator’s intention with respect to who was to be the beneficiary of the respective properties at Wombat’s Rest. The plaintiff submits there is nothing on the file to support such a drastic change being made on 17 August 2011 and never being referred to or explained in writing again.
Similarly, the plaintiff submits that the inference arising from the file itself is that the testator’s intentions were that all of the policies (the superannuation death benefit, the V and J life insurance policies, and the child endowment policies) were to go to the plaintiff, and were only to go to the deceased’s three adult children in the event of simultaneous death. The plaintiff accepts, however, that the inference from the file in respect of the child endowment policies is erroneous, and that, as Ms De Duonni acknowledged, she always understood that her instructions were that the child endowment policies were to go to each of the named children in respect of whom the policy had been taken out.
The plaintiff submits that there is nothing on the file except the ambiguous arrow on the third draft of the testator’s will to explain any change in respect of the beneficiaries of the superannuation and life policies. The inferences are supported by the statutory declaration. The plaintiff submits that the language of the declaration is consistent with the testator’s intention that the superannuation and life policies were only to go to the adult children in the event of the plaintiff not surviving him. It was intended that the adult children were only to receive the child endowment policies. The plaintiff and Eve were intended to receive the rest of the estate and on that basis they have been benefited to a greater extent. On the other hand, the plaintiff submits it is difficult to construe the statutory declaration as consistent with the executed will. The terms of the executed will result in the plaintiff and Eve receiving only marginally more than the testator’s adult children.
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.
Ms De Duonni gave evidence that on 8 December 2011 the testator instructed her that the proceeds of the superannuation and life policies were to be bequeathed to all of his children. I accept her evidence that she recalled him giving these instructions when she considered the draft will and noticed the arrow drawn from clause 13 to clause 12. This prompted her memory of the instructions given on 8 December 2011.
Legitimate criticism can be directed at Ms De Duonni’s failure to make a more extensive note of the instructions she said she was given. However, I am prepared to accept that a busy solicitor who was given instructions to amend a document could have made a note on the document which, while inadequate to evidence to others the instructions she received, was sufficient to remind her of the amendment to the draft document required to implement those instructions.
I am not prepared to accept the plaintiff’s submission that Ms De Duonni’s evidence in this regard is a reconstruction. Ms De Duonni was subjected to a protracted and vigorous cross-examination. No doubt that made her feel defensive. After all, her professional competence was in issue. However, there is no issue that she has made the mark on the draft at clause 13. There is no challenge to her evidence that she made the mark during the course of the attendance by the testator and the plaintiff on her on 8 December 2011. I am satisfied that the mark was made for a purpose and to indicate an amendment that was to be made to the draft. I infer that the amendment was required because the testator gave instructions accordingly.
There is nothing implausible or improbable about the amendment. There is no issue that there had been discussion about the risk of the testator’s adult children challenging the will. Additional provision in their favour would go some way to alleviating that risk. The terms of the will as executed reflect the provision that the testator had made in respect of his superannuation and life policies in his 2005 will. That will was made at a time when the testator had married the plaintiff albeit before Eve’s birth. The fact of Eve’s birth, which prompted the making of a new will, was reflected, in part, in the provision made for her to share in the bequest of the proceeds of the superannuation and life policies.
It is unfortunate that Ms De Duonni wrote the letter of 19 December 2013 in the terms in which she did. However, I do not consider that the terms of that letter mean that I cannot accept her evidence that she subsequently recalled instructions when she considered the file in its context and with clearer copies of the documents contained in the file.
The plaintiff submits that the terms of clause 12 of the testator’s executed will are inconsistent with the terms of clause 7 of the plaintiff’s executed will which provides:
7.SHOULD my said husband predecease me or not so survive me as aforesaid then I GIVE:
a.     the proceeds of my said husbands:
i.AMP Flexible Lifetime Super (Policy Number 920006195),
ii.AMP Whole of Life Insurance Plan (Policy Number S0497185V; and
iii.AMP Whole of Life Insurance Plan (Policy Number S0401794J);
to my said husband’s children DAVID JOHN CRAKER, SARAH ROSE CRAKER-STOLLZNOW, SAMANTHA JANE CRAKER and my daughter EVE SUSETTE CRAKER as shall survive me and attain the age of 25 years in equal shares as tenants in common for their own use and benefit absolutely.
b.     All my jewellery to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
c.     My wedding dress to my daughter EVE SUSETTE CRAKER for her own use and benefit absolutely.
The plaintiff’s submission is that clause 7a in the plaintiff’s will is only necessary if the testator has gifted the proceeds of his superannuation and life policies in his will to the plaintiff. However, that is not the only possible explanation for the existence of clause 7a in the plaintiff’s will. The first is that proffered by Ms De Duonni in her evidence, namely, that the terms of clause 7a in the plaintiff’s will are effective in circumstances where the superannuation funds form part of her estate because of a binding nomination made in her favour or a decision by the trustee of the fund to pay the proceeds to her.
A second explanation is that when on 8 December 2011 the testator gave instructions to amend the draft will to gift the proceeds of the superannuation and life policies to his children the consequential need to amend clause 7a of the plaintiff’s will was overlooked. It is to be remembered that the terms of clause 7a of the plaintiff’s will did not change after 9 September 2011 except to include reference to Eve. I infer that amendment was noted by Ms De Duonni at the attendance on 8 December 2011. It is open to infer that Ms De Duonni recognised the need to add Eve’s name to clause 7a as she was making the same amendment to the testator’s will without her considering whether clause 7a retained any testamentary efficacy in light of the instructions to amend the testator’s will. The latter explanation might be considered more plausible given that clause 7a appears in the draft will of the plaintiff on 9 September 2011. At that time clause 13 of the draft will of the testator gifted the proceeds of the superannuation and life policies to the testator’s adult children only on condition that the plaintiff did not survive him.
I accept that the subsequent amendment made to the testator’s will to effect a gift of the proceeds of those policies to all his children would still leave the work to be performed by clause 7a of the plaintiff’s will identified by Ms De Duonni. I am conscious that it was not suggested to Ms De Duonni that she overlooked the need to delete clause 7a once she had been instructed by the testator to amend the draft will to gift the proceeds of the policies to all his children on the basis that it was no longer needed. I infer that had it been put to her, she would have rejected the proposition for the very reasons she gave in her evidence, namely, that even in circumstances where the proceeds of the policies were no longer being gifted to the plaintiff, clause 7a had real work to perform.
I do not accept the plaintiff’s submission that the likely explanation for the marking on the draft will made by Ms De Duonni on 8 December 2011 was that the testator gave instructions to correct the gift of the child endowment policies and not all of the gifts. That submission amounts to no more than speculation. There is no evidence to support this supposition. It is contradicted by Ms De Duonni’s evidence. For the reasons I have already given I do not consider that it explains why clause 7a of the plaintiff’s will was not changed.
I accept that Ms De Duonni’s evidence of the instructions given by the testator on 8 December 2011 concerning the disposition of the proceeds of the superannuation and life insurance policies is contrary to the plaintiff’s belief. However, the plaintiff has no recollection of that attendance and is not in a position to contradict directly Ms De Duonni’s evidence. Further, the plaintiff gave evidence that on 22 December 2011 Ms De Duonni told the testator and the plaintiff that the wills were the same drafting as previously except that Eve had now been added as a beneficiary for the AMP superannuation policies at clause 12 of the testator’s will. In addition the plaintiff denies that on this occasion Ms De Duonni read the entire will to the testator. I am not prepared to rely upon the plaintiff’s recollection of the attendance on 22 December 2011. Her evidence that Ms De Duonni said that the wills were the same drafting as previously except that Eve had now been added as a beneficiary for the AMP superannuation policies at clause 12 is plainly wrong in fact. Further, her evidence that Ms De Duonni did not read through the testator’s will is contrary to the contemporaneous note Ms De Duonni made. I also note that the plaintiff conceded in cross-examination that on 22 December 2011 Ms De Duonni read out some of the clauses of the testator’s will. I prefer the evidence of Ms De Duonni in relation to the attendances of 8 December 2011 and 22 December 2011.
Finally, it must be borne in mind that the basis of the plaintiff’s claim for rectification of clause 12 is that between 8 December 2011 and 22 December 2011 Ms De Duonni accidentally deleted the words in clause 13 “Should my said wife predecease me or not so survive me as aforesaid then...”. Such a mistake seems improbable when there is an alternative explanation, namely, that she redrafted the clause in accordance with instructions that find some corroboration in the mark made by her on the draft will at the conference on 8 December 2011.
I reject the submission that the instructions given by the testator on 8 December 2011 to gift the proceeds of the policies directly to his children makes the statutory declaration otiose. It is not apparent that the inclusion of clause 12 in the testator’s executed will has the consequence that the plaintiff and Eve are not benefitting from the testator’s estate to a greater extent than his other children. The evidence as to the value of the testator’s estate is so vague that no firm conclusion in this regard can be reached. Certainly I am not in a position to conclude that the effect of the testator’s executed will was that the plaintiff and Eve would not benefit to a greater extent from his estate than the children of his first marriage. In contrast to the 2005 will, the adult children were no longer to be gifted the testator’s interest in Lot 80. That was left to the plaintiff. Further, Sarah had already received the proceeds of the AMP Children’s Whole of Life Plan which no longer formed part of the estate. Each of the adult children would share equally in the proceeds of the superannuation and life policies. That would give each of them around $170,000. This was a reduction from the effect of the 2005 will which would have given each of them around $225,000. The plaintiff was left the house at Kokoda Road[27] and all the testator’s businesses as well as his interest in Lot 80, which she valued at $50,000. Eve was left with her $170,000 share of the proceeds of the superannuation and life polices, as well as Lot 79, which was valued in 2007 / 2008 in the sum of $330,000.
[27] The house at Kokoda Road did not form part of the estate but I am satisfied the plaintiff’s entitlement to it pursuant to the right of survivorship informed the contents of the statutory declaration. The house was purchased in 2006 for $550,000. Apparently it was subject to a mortgage of $300,000.
For these reasons I am not prepared to find that the executed will of the testator does not properly reflect his testamentary intentions. The plaintiff has not discharged the evidentiary onus she carries in accordance with the Briginshaw principle. In these circumstances I dismiss the application for rectification of clause 12.
Rectification of clauses 10 and 11
I turn to consider the application for rectification of clauses 10 and 11. In my view this stands in a different position.
I am satisfied that the testator’s will does not reflect his testamentary intentions in respect of the properties at Wombat’s Rest at the time of execution. I am satisfied that there was some genuine confusion on the part of the testator and Ms De Duonni when the testator gave his initial instructions to her on 1 June 2011. The testator was confused, not as to his testamentary intention, but as to the identity of his property interests at Wombat’s Rest. Ms De Duonni was similarly confused. That is understandable. I consider Ms De Duonni remains confused by those instructions. I am satisfied the terms of clauses 10 and 11 reflect a transposition error. I am satisfied the testator always intended to leave Lot 79 to the plaintiff. That was the effect of his 2005 will. I am further satisfied that he intended to leave his share in Lot 80 to Eve. By his final will he intended that Eve rather than his other children should be the sole beneficiary of his interest in Lot 80. That this was intended is reflected in the terms of clause 11 of the will with words “and such interest as I may have at my death in the house located on the said property (Wombat’s Rest Shack)”. That language was not replicated in clause 10 which creates the gift of the testator’s interest in Lot 80. Yet the language is redolent of the nature of the interest held by the testator in Lot 80 rather than Lot 79. In my view this reflects the transposition error that was made.
Further, it is more likely that the testator intended the plaintiff to have his interest in Lot 79. He regarded the plaintiff and himself, as he told Mr Rogers, as joint owners of Lot 79. They had renovated it together. Given that the underlying purpose for the testator making a new will was to protect the plaintiff and Eve in the event of his untimely death, it makes sense that he would choose to leave to the plaintiff an asset solely owned by him which she could liquidate in the event that she needed further funds to maintain the family home. I reject the submission of the interested party that the testator intentionally gifted Lot 79 to Eve because it was the only way he could be certain that she would have a place on the river in the future. The premise of that submission is that the testator understood that there was some uncertainty as to the basis of his interest in Lot 80, i.e. whether he held his quarter share as a tenant in common or whether his interest was as a joint tenant and, if the latter, whether he understood that any gift of his interest in that property by his will would fail.
I accept that, on the evidence, there is some conflict as to the basis of the testator’s holding in Lot 80. However, what matters is what the testator believed at the time he gave instructions in relation to the will and at the time he executed his will. The evidence is that he believed he held a quarter share in Lot 80 as a tenant in common. There is no evidence that he understood that he held his interest in Lot 80 as a joint tenant or that he was advised that there was a risk that any gift of his interest in that property by his will would fail. This conclusion is consistent with his previous testamentary intention reflected in the terms of the 2005 will that gifted his interest in the leasehold of Lot 80 to his other children. Further, I consider it improbable that the testator would have left Lot 79 to Eve when it was encumbered by a mortgage in favour of the ANZ Bank. Obviously she had no capacity to service the mortgage.

I am conscious that this conclusion is contrary to the evidence of Ms De Duonni that, on 17 August 2011, the testator gave her instructions to leave his interest in Lot 79 to Eve and his interest in the quarter share in Lot 80 to the plaintiff, and that these instructions are reflected in the notes she made on the draft will. However, I am satisfied that the inference to be drawn from all the surrounding circumstances is that she either misunderstood the instructions given on that date, or subsequently erred in respect of the allocation of the lease numbers. There is nothing on the will file to support such a drastic change in instructions being made on 17 August 2011 without either a note being made by Ms De Duonni to reflect a change in instructions, any reference by Ms De Duonni to that change in instructions in her letter to the testator of 9 September 2011, or the testator ever discussing this with the plaintiff.
The evidence on the will file establishes that the testator gave instructions to Ms De Duonni on 17 August 2011 that he was the sole leaseholder of Lot 79 and owned a quarter share of Lot 80. So much is apparent from the file note made by Ms De Duonni on that date. Nonetheless, he gave instructions for the purchase of Certificates of Title for the Wombat’s Rest properties. I find there was still some confusion at this time. What is conspicuously absent from the file note is any indication that the testator was altering the instructions he had given on 1 June 2011 that he wished to gift Lot 79 to the plaintiff, and the quarter share in Lot 80 to Eve. The markings made on the draft will are ambiguous.
On 1 June 2011, the testator gave instructions to Ms De Duonni in relation to his property interests at Wombat’s Rest, Morgan. He distinguished between those interests by referring to the properties as Wombat’s Rest and the shack at Wombat’s Rest. The property he identified as Wombat’s Rest is Lot 79. The property he identified as the shack at Wombat’s Rest is Lot 80. Every draft of the will produced by Ms De Duonni after 17 August 2011 identified Lot 79 as “Wombat’s Rest Shack” and Lot 80 as “Wombat’s Rest”. This was the principal source of the confusion.
I find that it was the testator’s intention as at 1 June 2011 that his wife should inherit his sole interest in Lot 79 and Eve should inherit his one-quarter interest in Lot 80. I find that this did not change by 17 August 2011, or by the time of the execution of his will on 22 December 2011.
Ms De Duonni was either confused by the instructions she received or there was a transposition error made. In any event, the lease numbers were transposed.
I find that, notwithstanding the will being read to the testator on 22 December 2011, he did not detect the transposition error as he was not familiar with the identification of the properties by Certificate of Title lease numbers, but rather by reference to the lot numbers. I infer that this was the case, notwithstanding that he had been provided with copies of the property searches. I find he failed to recognise the error because the leasehold numbers did not indicate to him which property was which.
I find that the testator gave Ms De Duonni instructions on 1 June 2011 that the Wombat’s Rest Morgan SA property was to be left to the plaintiff. This is a reference to the Lot 79 property. I further find that, on that date, he gave instructions to Ms De Duonni that the quarter share in the shack at Wombat’s Rest, which is the Lot 80 property, was to be left to Eve on trust. I find that this testamentary intention did not change between that date and the execution of his will on 22 December 2011. It follows that the testator did not give instructions to Ms De Duonni on 17 August 2011 to reverse the disposition of his property interests at Wombat’s Rest so as to effect a gift of Lot 79 to Eve and a gift of his quarter share interest in Lot 80 to the plaintiff.
At all times, the terms of the draft wills failed to identify the Wombat’s Rest properties by anything other than their registered lease numbers. The drafts did not identify the properties by reference to Lot 79 or Lot 80. Neither does the executed will. I find that Ms De Duonni did not have access to the relevant lease numbers before 25 August 2011. Accordingly, she did not know the lease numbers on 17 August 2011 when she conferred with the testator. This contributed to the confusion.
In the circumstances, the testator executed his will on the assumption he was leaving Lot 79 to the plaintiff and Lot 80 to Eve on trust.
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