Gostomski Estate: Application of Jones

[2009] NSWSC 549

CITATION:	Gostomski Estate; Application of Jones [2009] NSWSC 549
HEARING DATE(S):	15 June 2009
JUDGMENT DATE :	15 June 2009
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	15 June 2009
DECISION:	Will rectified.
CATCHWORDS:	SUCCESSION – WILLS – RECTIFICATION – Whether the evidence justified the inference that the testator intended at the time of executing his will to provide a gift over of a half share of the estate – whether intention miscarried by mistake.
LEGISLATION CITED:	Succession Act 2006 (NSW) Wills, Probate and Administration Act 1898 (NSW) – s 29A
CATEGORY:	Principal judgment
PARTIES:	Lynette Dianne Jones (Plaintiff)
FILE NUMBER(S):	SC 103740/09
COUNSEL:	M. Willmott SC (Plaintiff)
SOLICITORS:	Teece Hodgson & Ward (Plaintiff)

103740/09 Gostomski Estate: Application of Ms L.D. Jones

JUDGMENT – Ex tempore

15 June, 2009

1 This is an application under s 29A of the Wills, Probate and Administration Act 1898 (NSW), seeking rectification of a will of Robert Lloyd Gostomski, who died on 5 October 2007. Because the testator died prior to the commencement of the Succession Act 2006 (NSW) the application falls to be made under s 29A of the old Act.

2 The will of Mr Gostomski is dated 10 July 1989. It is a very simple will. It appoints the Plaintiff, Mrs Jones, as sole executrix and gives the whole of his estate to Mrs Jones and her husband, Arthur, in equal shares as tenants in common.

3 What has happened is that Mr Jones has predeceased the testator. There is no gift over in the will so that his share of the estate, according to the terms of the will, would pass on intestacy. The Plaintiff seeks an order rectifying the will by adding, after the gift to herself and her husband in equal shares as tenants in common, the words "or to such of them as survive me". The effect of the amendment is that the whole of the estate then goes to the Plaintiff.

4 I have to be satisfied that the gift in the will to Mr and Mrs Jones without the words "or to such of them as survive me" was a mistake on the part of the testator at the time that he made the will. In other words, he intended that there be a gift over to the survivor but that the will mistakenly does not contain such an express provision.

5 The facts of this case are not in dispute. The testator formed a very close relationship with Mr and Mrs Jones quite some time ago. They were his closest friends and, indeed, he had very few others. He never married, he never had children, he never had any other relationships which could give rise to any claim upon his testamentary bounty. He migrated to this country from the United States many years ago. His sister in the United States has had very little, if any, contact with him for many years. He did not wish to provide for her, as he made plain to Mr and Mrs Jones and his friends in this country, and did not wish to return to the United States. His sister has been notified of this application and she does not oppose the Plaintiff's claim.

6 Mr Jones was in severe ill health for many years prior to the testator's death. He suffered from renal failure and was on dialysis. It would have been manifestly obvious to the testator at the time that he made his will that there must be a very high likelihood, if not an absolute certainty, that Mr Jones would predecease Mrs Jones. In those circumstances, one would have expected him to provide for a gift over to Mrs Jones in the event that her husband predeceased the testator.

7 There is evidence of both Mrs Jones and a third party, another close friend of the testator, that he said on a number of occasions that he believed that there was no need to amend his will to provide for Mrs Jones to receive the whole of his estate if her husband predeceased the testator because he believed his will already made that provision.

8 I think I am justified in inferring that this mistaken understanding of the effect of the will existed at the time that the will was made. I infer this because of the state of Mr Jones’ health at that time and the obvious likelihood at that time that he would predecease the testator. It is manifestly clear from the evidence, both of Mrs Jones, which I accept, and of other friends of the testator, that he wished to take care of Mrs Jones and to provide for her after his own death and the death of her husband. I am satisfied that, had he believed at the time that his will was made that there would be an intestacy of Mr Jones’ share of the estate if he predeceased the testator, he would have made sure that the provisions of his will prevented that from occurring.

9 I infer that the testator had an actual intention at the time of making his will that Mrs Jones should receive the whole of his estate if Mr Jones predeceased the testator, but that intention miscarried by mistake and was not conveyed into the terms of the will which he signed. I am satisfied that he did not appreciate that in law the terms of his will did not effect the intention which he actually had.

10 Accordingly, I am satisfied that the will ought to be rectified pursuant to s 29A of the Act in order to reflect the intention of the testator. I make an order in terms of paragraph 1 of the Amended Summons.

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