Dillon v Henderson - [2018] QSC 236

SUPREME COURT OF QUEENSLAND

CITATION:

Dillon & Anor v Henderson [2018] QSC 236

PARTIES:

JAMES JOSEPH DILLON AND MARDI RACHAEL DILLON

(applicants)

v
PAUL MURRAY HENDERSON

(respondent)

FILE NO:

BS9249 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for rectification of a will

DELIVERED ON:

12 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2018

JUDGE:

Mullins J

ORDER:

Order as per draft initialled by Mullins J and placed with the file.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the testator made a will in Malaysia to dispose of his Malaysian assets – where the testator returned to Australia for medical treatment for a terminal illness – where the testator wished to make a new will to dispose of his Australian assets – where the testator’s intention was not to revoke the Malaysian will – where general revocation clause in the Australian will revoked all previous wills – whether the will can be rectified under s 33(1) of the Succession Act 1981 (Qld) on the basis of a clerical error or that the Australian will does not give effect to the testator’s instructions to himself to make a will that disposed of his Australian assets

Succession Act 1981 (Qld), s 6, s 33

Rose v Tomkins [2017] QCA 157, considered
Singh v Singh [2008] NSWSC 715, cited
Vescio v Bannister [2010] NSWSC 1274, considered Re Williams (deceased) [1985] 1 All ER 964, considered

COUNSEL:

A L Raeburn for the applicants

No appearance for the respondent

SOLICITORS:

Mobbs & Marr Legal for the applicants

Mr Barry Ian Dillon (the deceased) died in Brisbane on 19 June 2018. The deceased who had extensive business interests in Malaysia made a detailed will in Malaysia on 27 April 2018 (Malaysian will) with the assistance of his Malaysian lawyers. The purpose of the Malaysian will is apparent from clause 1 of the will:
“This Will is made for the purposes of disposing of all my movables and immovables situated in Malaysia and I revoke all earlier testamentary dispositions made relating to all my movables and immovables in Malaysia. This Will shall not revoke or have any effect on any earlier testamentary dispositions made relating to my movables and immovables located outside Malaysia.”
The executor of the Malaysian will is the deceased’s business partner Mr Paul Henderson who is the respondent to this application.
The deceased was survived by the applicants Mr Dillon and Ms Dillon who are his son and daughter.
After making the Malaysian will the deceased returned to Australia for medical treatment for leukaemia.
Whilst in the palliative care ward of the Prince Charles Hospital, the applicant Mr Dillon purchased a will kit from the post office for the deceased. It is the will form in that will kit booklet that was completed and signed by the deceased in the presence of two witnesses that resulted in the will dated 13 June 2018 that is the subject of a grant of probate made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dillon v Henderson

Details

AGLC: Dillon v Henderson [2018] QSC 236
Case: [2018] QSC 236
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the case of Dillon v Henderson, the dispute arose from the interpretation and potential rectification of a will made by the deceased, who had assets in both Malaysia and Australia. The primary issue was whether the statutory power of rectification could be exercised under section 33(1) of the Succession Act 1981 (Qld) to correct the Australian will made by the deceased to reflect his true intentions. The deceased had executed a will in Malaysia but, upon returning to Australia for medical treatment, wished to create a new will specifically for his Australian assets. The Australian will contained a general revocation clause that inadvertently revoked the Malaysian will, contrary to the deceased's intention. The court was tasked with determining whether the Australian will could be rectified to give effect to the deceased's instructions to himself.

The legal issues before the court included whether the Australian will could be rectified to reflect the deceased's true intentions and whether the statutory provision for rectification applied in this context. The court examined the evidence of the deceased's intention, including his actions and statements indicating his desire to keep the Malaysian will intact while creating a separate will for his Australian assets. The deceased's actions in completing a will form and seeking witness attestation indicated his intention to personally handle the creation of the Australian will. The court had to consider whether the deceased's failure to modify the standard revocation clause constituted a clerical error or a deviation from his instructions to himself. The court also needed to assess if the statutory power of rectification was applicable to a will that the deceased had personally completed, despite the lack of ambiguity in the revocation clause.

The court found that the deceased's unequivocal intention to make a will disposing of his Australian assets without affecting the Malaysian will was not reflected in the Australian will. The deceased's completion of a printed will form, while not composing and writing the will from scratch, still constituted an effort to follow his instructions to himself. The general revocation clause in the Australian will did not align with the deceased's intention, leading to a misalignment between his instructions and the executed will. The court held that this misalignment qualified as a clerical error or a deviation from the deceased's instructions, justifying the exercise of the statutory power of rectification under section 33(1) of the Succession Act 1981 (Qld). Consequently, the court granted the order for rectification, ensuring that the Australian will would be amended to reflect the deceased's true intentions regarding his Australian assets.

Orders

Orders of the court

Order as per draft initialled by Mullins J and placed with the file.

Background

Background to the litigation

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Evidence

Evidence Before The Court

This provision was introduced into the Act as one of many amendments that came into effect on 1 April 2006, as a result of the implementation of recommendations of the National Committee For Uniform Succession Laws (Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills, QLRC Miscellaneous Paper No 29, 1997).See the discussion of the law on the rectification of wills under s 33 of the Act set out in the judgment of Philippides JA (with whom the other members of the court agreed) in Rose v Tomkins [2017] QCA 157 at [31]-[38]. Evidence of the deceased’s intention When the deceased returned to Australia on the day after he made his Malaysian will, he gave a copy of his Malaysian will to his daughter and told her to keep it safe. When the deceased was being admitted to the palliative care ward on 7 June 2008, he asked his daughter to purchase a will kit for him for his Australian assets. The deceased’s son purchased the will kit, before the deceased’s daughter had done so. Ms Dillon was present on 13 June 2018 when the deceased told her he had completed his will and asked her to ring the Justice of the Peace to witness him sign the will. When the Justice of the Peace arrived, the deceased asked her if he had worded the will correctly and she told him that she thought it would be fine. The Justice of the Peace and an employee of the deceased from Malaysia then witnessed the deceased sign the will. When Ms Dillon left the hospital, she took the original will dated 13 June 2018 home with her for safe keeping.Can the Australian will be rectified? The revocation clause in the Australian will is unambiguous. Although Mr Raeburn drew my attention to Singh v Singh [2008] NSWSC 715, rather than deal with the issue of whether the evidence that is relied on for the purpose of rectification would be admissible on the question of the construction of the Australian will (because of the lack of ambiguity), I will deal with the rectification application. Most authorities on rectification of wills arise in circumstances where the lawyer who takes the instructions does not prepare a will that reflects those instructions. Section 33 of the Act, however, can apply to a homemade will, at least in the case of clerical error: cf Re Williams (deceased) [1985] 1 All ER 964, 969. In disposing of a case where instructions had been given by the testator to her lawyer, Barratt J in Vescio v Bannister [2010] NSWSC 1274 at [12] stated to the effect that the reference to “instructions” in the equivalent NSW provision to s 33 of the Act must be a reference to instructions communicated by one person to another and that it seemed to follow that the provision “cannot apply to a will composed and written by the testator personally”. In this matter the actual unequivocal intention of the deceased to make a will disposing of his Australian assets is not reflected in the will prepared by him by amending and completing a will form. It could be argued that he made a clerical error by not modifying the standard revocation clause. It is not a proper characterisation of the task undertaken by the deceased to describe his completion of a printed will form as composing and writing his will. He was misguided in considering the Justice of the Peace who was the witness would be able to confirm that he had worded the will correctly, when that was not within her qualifications to advise him on. In the circumstances of this case, where the deceased intended to make his own will for the purpose of disposing of his Australian assets without in any way affecting the operation of the Malaysian will, he has failed to carry out the instructions he gave himself when he completed the will form. This gives the court jurisdiction under s 33(1) of the Act. This is an appropriate case to make the order for rectification that is sought by the applicants.Orders

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Dillon & Anor v Henderson [2018] QSC 236
PARTIES:	JAMES JOSEPH DILLON AND MARDI RACHAEL DILLON (applicants) v PAUL MURRAY HENDERSON (respondent)
FILE NO:	BS9249 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application for rectification of a will
DELIVERED ON:	12 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2018
JUDGE:	Mullins J
ORDER:	Order as per draft initialled by Mullins J and placed with the file.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the testator made a will in Malaysia to dispose of his Malaysian assets – where the testator returned to Australia for medical treatment for a terminal illness – where the testator wished to make a new will to dispose of his Australian assets – where the testator’s intention was not to revoke the Malaysian will – where general revocation clause in the Australian will revoked all previous wills – whether the will can be rectified under s 33(1) of the Succession Act 1981 (Qld) on the basis of a clerical error or that the Australian will does not give effect to the testator’s instructions to himself to make a will that disposed of his Australian assets Succession Act 1981 (Qld), s 6, s 33 Rose v Tomkins [2017] QCA 157, considered Singh v Singh [2008] NSWSC 715, cited Vescio v Bannister [2010] NSWSC 1274, considered Re Williams (deceased) [1985] 1 All ER 964, considered
COUNSEL:	A L Raeburn for the applicants No appearance for the respondent
SOLICITORS:	Mobbs & Marr Legal for the applicants