Huszar (Re Estate of)

[1999] NSWSC 388

CITATION:	Huszar (Re Estate of) [1999] NSWSC 388
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	101961/99
HEARING DATE(S):	21/04/99
JUDGMENT DATE:	21 April 1999
PARTIES :
JUDGMENT OF:	Young J

COUNSEL :	Heard in Private Chambers on the papers
SOLICITORS:
CATCHWORDS:	Succession [164]; Wills; Rectification; Mathematical miscalculation of shares; Principles to be applied
ACTS CITED:	(NSW) Wills Probate and Administration Act 1898, s 29A (NSW) Supreme Court Rules 1970 Pt 78 r5(1)(q); Pt 78 r5(2) (UK) Administration of Justice Act 1982 s 20
DECISION:	See para 16

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG, J

Wednesday 21 April 1999

101961/99 - ESTATE OF F J HUSZAR

JUDGMENT
1 HIS HONOUR : This is an application referred to me by the Registrar for rectification of a will. The application has been referred from the Registrar because it is out of time and the plaintiff also seeks costs out of the estate.
2 The deceased, Frank Joseph Huszar, died on 20 July 1996. The plaintiff, who is a barrister but in 1988 (the date of the will in question) was a solicitor, was a family friend of the deceased. The deceased has no known next-of-kin so that any property that passes on intestacy will pass to the Crown as bona vacantia. The Crown has been cited and has indicated that it does not consent to the present application, but does not wish to be heard on it. The matter has accordingly proceeded ex parte on the documents.
3 The plaintiff says that in late 1988 the deceased asked him to draw up the will, probate of which was subsequently granted. This was done in the plaintiff’s capacity as a friend and without charge. On the first occasion when the subject was mentioned, the deceased produced a list of names of people and institutions and said, “I want to leave everything to these people, in the proportions which I will work out”. The deceased made some calculations and wrote various fractions alongside each name in the list under the heading “proportion”. The plaintiff then wrote out the will by hand. The deceased altered some of the fractions on the will and then it was executed.
4 The will of which probate was granted contains 16 names. The 16th name is written in a finer ball point pen than the principal text of the will and probably in the same pen as was used by the testator and the witnesses to sign the will. The 16th beneficiary appears as follows:
“Christian Blind Mission International - Australia, 1245 Burke Rd, Kew. VIC”
5 The “92” in the column adjacent to the above beneficiary appears unaltered. Before each of the previous 15 names is a fraction which appears originally to have had a denominator of 91 but the denominator has been changed to 92 in each case by writing over the “1”. It would appear fairly clear that when the 16th beneficiary was added for one share, the testator thought that he was decreasing the value of each share from a 91st to a 92nd of his estate.
6 Unfortunately, when one adds up the numerators of the fractions, one only gets to 83. Accordingly, if the will were to be construed one would either have the situation where the testator was intestate as to 9/92nds of his estate or else one would have to read “92” as a misnomer for “83”.
7 The plaintiff seeks rectification. Probate has been granted but Powell, J held in Re Brisbane - 19 June 1992, unreported, that this does not bar an order being made for rectification. I propose to follow that decision.
8 The first problem for the plaintiff to overcome is that this application was not made within 18 months as required by s 29A of the Wills Probate and Administration Act 1898. He thus has to demonstrate “sufficient cause” for the extension of time.
9 The application should have been made no later than 20 January 1998. In fact it was made on 15 February 1999, more than one year out of time. The excuse given is that the plaintiff considered that it was obvious that the testator on the true construction of the will intended to give the whole of his estate away and that there was a mathematical error in the calculation of the denominator of the fractions. However, the Crown is affected, it does not consent (neither it should be said does it say anything in opposition), and the executor needs the protection of either rectification or a construction suit. Although the Court must be careful to ensure that too much laxity does not prevail, a fairly benign attitude has in the past been taken to applications for extension of time, particularly in small estates where the real practical reason for the delay was the executor’s desire to save the estate costs. I believe in the circumstances of this case sufficient cause has been shown for the delay.
10 I then proceed to the merits of the application. Although the corresponding English section (s 20 of the Administration of Justice Act 1982) is in more restrictive terms than the NSW section, some of the methods of approach used in England are useful guides as to how this jurisdiction should be exercised. In Re Segelman [1996] Ch 171, 180, Chadwick J said that the legislation required the Court to examine three questions: only the first two are relevant in NSW, viz “First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions.” I consider this is the appropriate way of proceeding because the main question in these cases is: what was the testator’s intention?
11 It has been assumed in these sort of cases that one applies the same sort of test as one would apply in respect of a suit for rectification of a document in equity. This may be overstating the position because in Mortensen v State of New South Wales - 12 December 1991, unreported, Sheller JA in the Court of Appeal said that it might be productive of error in a particular case “to pay over much regard to the principles evolved by equity as part of the doctrine of rectification.” However, where the Court can see what I call “the ordinary rectification test” is satisfied it will be much more comfortable than it might otherwise be, especially in an ex parte case.
12 The facts of the case are rather like the facts in Re Brisbane (supra). In that case the testator directed his trustee to divide the balance of his estate into nine equal shares and then gave one of those shares to each of five groups of people. Powell J rectified the will by deleting the word “nine”.
13 It is of comfort that Powell J did approach a similar problem to this the way he did in Brisbane’s case, but even without that, in my view the present is a clear case. The will shows all the signs of the testator having wished to dispose of all his estate to his list of beneficiaries. When the 16th beneficiary was added, he recalculated the fractions. He had no next-of-kin whom he might want to benefit by having part of his estate on an intestacy. It would seem that the only way one can read the testator’s intention was that he wished his estate to be divided into as many shares as were the numerators of his fractions and accordingly the order should be granted that in each case “92” should be struck out and replaced with “83”.
14 As I said earlier, the matter was only referred to me because the Registrar’s powers under Part 78 r5(1)(q) of the Supreme Court Rules 1970 do not extend to extending the time for making an application or for making an order for costs. Whilst it was appropriate to refer the present case to me, I consider that these ancillary matters should ordinarily be dealt with by referring the file to the Judge in charge of the Probate List for the ancillary matters to be referred to the Registrar under Part 78 r5(2) of the Rules, or alternatively, the Registrar making a report to that Judge to the effect that the ancillary matters are in order so far as the Registrar is concerned and no-one opposes the ancillary orders being made. By “ancillary orders” I mean orders such as extending the time for making the application and orders for costs.
15 As to costs, the plaintiff only seeks that the filing fee be paid out of the estate. It may or may not be that he intends to apply for commission for the time expended in this application, that is a matter for him, but if he does then it can be taken up there. However, it is perfectly proper that the costs of the filing fees and at least the costs of preparing the affidavits are a proper charge to be borne by the estate.
16 Accordingly I will make orders 1 and 2 as asked in the summons and further order that the costs of this application assessed at $650 be paid out of the estate to the plaintiff.

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