Davies re Estate of Rose

[1999] NSWSC 365

CITATION:	Davies re Estate of Rose [1999] NSWSC 365 revised - 31/08/99
CURRENT JURISDICTION:	Probate
FILE NUMBER(S):	110405 of 1998
HEARING DATE(S):	12 April 1999
JUDGMENT DATE:	12 April 1999
PARTIES :	Elizabeth Mary Davies (First Applicant) John Gilchrist Campbell (Second Applicant) Estate of Philip Graeme Rose deceased
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr. P. Hallen SC (Applicants)
SOLICITORS:	Harris Wheeler (Applicants)
CATCHWORDS:	WILLS - Rectification - Wills Probate and Administration Act S29A
DECISION:	Rectification ordered

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THE SUPREME COURT
OF NEW SOUTH WALES
PROBATE DIVISION

WINDEYER J

MONDAY 12 APRIL 1999

110405/98 ELIZABETH MARY DAVIES & ANOR - THE ESTATE OF PHILIP GRAEME ROSE

JUDGMENT

1 HIS HONOUR: The plaintiffs, who are the executors of the will of Philip Graeme Rose, deceased, who died on 22 February 1998 seek an order for rectification of the will of the deceased which is dated 17 August 1994.
2 Under that will, Mr Rose appointed Mrs Davis and Mr Campbell executors and then provided for the whole estate to go to them:

"UPON TRUST for the following purposes:

(a) I DIRECT that my right title and interest in my property at 115 Hopetoun Avenue Vaucluse be sold and the proceeds thereof together with any other moneys of which I am possessed at my decease be divided equally between ELIZABETH MARY DAVIES and JOHN GILCHRIST CAMPBELL provided they survive me but in the event of either of them pre-deceasing me I DIRECT that the children of the deceased parent shall be entitled to the share of the deceased parent such children to share and share alike as tenants in common".
3 The deceased at his death held a one sixth interest in the property 115 Hopetoun Avenue, Vaucluse. He owned another property 7/85 Bronco Road Broadmeadow and he had monies in bank accounts of about $33,000 and debentures to the value of about $335,000. It is thus clear that on the will as it presently reads the Broadmeadow property and the debentures are assets which have not been disposed of by will and would therefore fall to be distributed on intestacy.
4 The evidence shows that there are no next of kin entitled on intestacy and, therefore, the whole of the undisclosed assets would go to the State as bona vacantia.
5 The deceased had been friendly with Mr and Mrs Campbell and Mrs Davies for many years. After his wife died he had spoken to them about his intentions so far as his will is concerned. He had said to Mr Campbell words to the effect:
"I have come to the conclusion to leave the estate to Betty and yourself, Maurice and your family. The reason is that Betty has been a friend and companion for 15 years. Maurice and yourself have been my family."

6 Shortly after that, namely, 21 August 1994 Mr Campbell said that in a telephone conversation which took place as it always did on a Sunday evening the deceased said to him:
I have made my will. It is as we discussed. I have made you and Betty the executors of the will.
Mrs Campbell said that she spoke to the deceased on the same day and he said to her:
I have been to see a solicitor. I have made a will leaving half to Betty and her family and half to you John and your family. It's a very simple will.

And that he had also said:
If you don't need to use it you can give it to the children. It goes to them on your death.

7. Mrs Davies said that she was having dinner with the deceased at her home one day, which she said was probably 17 August 1994, when he said:
I have changed my will today. I have left everything to you and John in equal shares. If you die before me your share goes to your children and the same for John. How does that sound?

8. Mr Ruggero said that on 17 August the deceased, whom he had known for 40 years, came to his office and asked that a will be made for him straightaway. He said he wanted to make a will over the Sydney property. The significant part of his evidence appears in the second paragraph numbered 1 which should really be 2 as follows:

I said to Phil, "What is your full name." He said "Philip Graeme Rose" and I said, "What is your address?" He said "Flat 2, 71 Tooke Street, Cooks Hill". I then commenced the will as shown in the copy annexed until I came down to the name of his executors. I said, "Who are to be your executors?" He replied "Elizabeth Mary Davies and John Gilchrist Campbell".

I then continued with the will. I said to the testator, "What is the address of the Sydney property?" He said "115 Hopetoun Avenue Vaucluse". I said, "What do you want to do with it?" He said to me,"I want it to be sold and the proceeds thereof together with any other moneys of which I am possessed at my decease (sic) to be divided equally between Elizabeth Mary Davies and John Gilchrist Campbell provided they survive me but in the event of either of them pre-deceasing me I direct that the children of the deceased parent shall be entitled to the share of the deceased parent such children to share and share alike as tenants in common".

There was then some further conversation during which Mr Ruggero asked the deceased whether he wanted anything else included to which the deceased said "no". The will was then typed. Mr Ruggero read it and I understand by that to mean that he read it to himself and he then handed it to the testator and said:
I want you to read this will and tell me if it is what you want. If it is what you want I will have it signed"

He said that the deceased read it and said, "It is just what I want". There were no file notes made as to these instructions.
9 The first submission of Counsel for the executors is that the words which appear before the words "UPON TRUST for the following purposes" gives the whole estate to the executors in any event. On any basis that could not be so, but it is perfectly clear it is not so having regard to the evidence of Mr Ruggero as to the time when he asked who the executors were to be.
10 The next question is whether a case has been made out for rectification under section 29 A of the Wills Probate and Administration Act 1898.
11 The rectification sought is, of course, the insertion of words in one way or another which would encompass the whole estate within the provisions which have been made as to part of it. That can be done if the Court is satisfied that the will as expressed fails to carry out the testator's intentions. I have come to the conclusion that a case for rectification has been made out. It is perfectly clear that the deceased would have intended to dispose of the whole of his estate and not intend any part of it to go on intestacy, particularly as he had no relatives who would take any property which was not disposed of by will.
12 Thus, I think it is proper to reach the conclusion that when the deceased spoke of his interest in the Vaucluse property and any other moneys of which he was possessed, he intended that latter description to include whatever other property he had.
13 In ordinary circumstances had it not been for the real estate in my view there would have been little difficulty about this but even with the ownership of the real estate of the Broadmeadow property at the date of death I am of the view that the evidence of the executors and the evidence of Mr Ruggero is sufficient to show that the will does not embody the intentions of the deceased.
14 I should say it is unfortunate this should be so and without making too strong a point, if solicitors do not address the question of the assets which the deceased holds prior to dictating a will, then what has happened here is a result which can easily happen and ought not to happen.
15 I make the orders as sought in paragraphs 1 and 2 of the Summons.
16 I order that the will of Philip Graeme Rose, deceased, be rectified by inserting after the words, "115 Hopetoun Avenue Vaucluse be sold and the proceeds thereof together with any other" the words "property and".
17 I make the orders as sought in paragraphs 4 and 6.

Last Modified: 06/30/2000