In Re Donohoe: Trevor Thomas Donohoe v Tracey Jane Donohoe (No 2)

[1988] TASSC 31

[1988] TASSC 31

CITATION: In re Donohoe: Trevor Thomas Donohoe & Anor v Tracey Jane Donohoe & Ors (No 2) [1988] TASSC 31; A20/1988

PARTIES:  DONOHOE, Trevor Thomas & Anor
  v
  DONOHOE, Tracey Jane & Ors (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
FILE NO/S:  M60/1987
DELIVERED ON:  2 June 1988
JUDGMENT OF:  Underwood J

Judgment Number:  A20/1988
Number of paragraphs:  17

Serial No 20/1988
List "A"
File No M60/1987

IN RE DONOHOE: TREVOR THOMAS DONOHOE & ANOR
V TRACEY JANE DONOHOE & ORS (NO 2)

REASONS FOR JUDGMENT  UNDERWOOD J

2 June 1988

1. This is an application to amend the grant of probate of the Will of Elsie Myra Donohoe. It is brought by the executors of the estate pursuant to R 82A of the Probate Rules 1936 which provides:–

"82A – (1) – Subject to subrule (2), where a judge is satisfied upon summons supported by an affidavit that a grant should be amended or revoked, he may make an order accordingly.

(2) – Notwithstanding subrule (1), except in special circumstances at the discretion of a judge, no grant shall be amended or revoked except on the application or with the consent of the person to whom the grant was made."

1. This is the second time this grant has been the subject matter of contentious proceedings. On the 5 October 1987 the executors made application, pursuant to the same Rule, to revoke the grant upon the grounds that the testatrix did not have knowledge of nor approve the contents of her Will. That application was dismissed on the 29 October 1987. See In Re Donohoe: Trevor Thomas Donohoe & Anor v Tracey Jane Donohoe & Ors Neasey J 551987.

1. The last Will of the testatrix was dated the 9 November 1985. She was then aged 84 years and almost blind. Probate of this Will was granted to the executors in non–contentious proceedings on the 23 December 1986, the testatrix having died on the 25 April of that year. In substance, the application for revocation was based upon the proposition that, when the Will was executed, the testatrix did not read and did not know of the contents of the Will which had been prepared for her by a senior managing clerk of the legal firm of Murdoch, Clarke, Cosgrove and Drake. In support of that application affidavits were filed by one of the executors, Trevor Thomas Donohoe, Mrs. Fay Hale, a daughter of the testatrix, Dr Townshend an opthalmologist, Miss Dazeley, an attesting clerk and Mr Stephen Holt, a partner of the legal firm. These affidavits were all read in the present proceedings. Two further affidavits have now been filed, one by Mrs Hale and one by Trevor Donohoe.

1. In his reasons for judgment, Neasey J set out the facts concerning the background which lead up to the execution of the last Will and the testatrix's knowledge and approval of the contents of that document. I incorporate those facts in these reasons. He concluded that, although the testatrix did not read the document she signed, she had knowledge of and approved its contents. He accordingly dismissed the application.

1. In her last Will, the testatrix revoked all earlier Wills, appointed executors and trustees, made a specific bequest and by Clause 4 provided:

"4        I DEVISE to my said son DONALD OWEN DONOHOE my house and land situate 51 Queen Street aforesaid free of all duties both State and Commonwealth payable thereon but subject to the following conditions:–

(a)I DIRECT that my son the said DONALD OWEN DONOHOE should pay to my three grandchildren, namely TRACEY JANE DONOHOE, SCOTT ANDREW DONOHOE and LISA ANN DONOHOE one third of the value of the house and land at 51 Queen Street aforesaid absolutely on the youngest of my said grandchildren attaining the age of twenty five years.

(b)I DIRECT that the said one third value shall be arrived at by averaging the total of two valuations obtained by two independent valuers."

1. Neasey J found that, in a Will made in 1980, the testatrix bequeathed her house at Queen Street to Donald Owen Donohoe provided he paid Trevor Donohoe one third of the value of the house to be determined in the same manner as is described in clause 4(b) of the last Will. In 1985, being concerned about the effect of such a bequest upon his pension, Trevor Donohoe discussed with his brother and sister, and later, with the testatrix, the idea that his bequest should go not to him but to his three children. The testatrix agreed to do this and Trevor Donohoe asked Mr Badenach to change the will accordingly. Mr Badenach said he would prepare a codicil and apparently did so as one was located amongst the testamentary script kept at the solicitor’s office. That codicil provided:

"WHEREAS by Clause 4 of my said Will I devised to my son DONALD OWEN DONOHOE my said house and land 51 Queen Street aforesaid but directed that my said son should pay to my son TREVOR THOMAS DONOHOE an amount equal to one–third of the value of the property 51 Queen Street aforesaid WHEREAS I wish to substitute for the name of my said son TREVOR THOMAS DONOHOE the names of my three grand–children namely TRACEY JANE DONOHOE, SCOTT ANDREW DONOHOE and LISA ANN DONOHOE AND I DECLARE that the said direction shall now read as follows:–

I DIRECT that my said son DONALD OWEN DONOHOE shall pay to my three grand–children the said TRACEY JANE DONOHOE, SCOTT ANDREW DONOHOE and LISA ANN DONOHOE on their respectively attaining the age of Eighteen years one–third of the value of my said property 51 Queen Street aforesaid. In all other respects I confirm my said Will."

1. For some unknown reason, the codicil was not signed but a new Will, the one admitted to probate, was prepared by Mr Badenach. The testatrix was driven to the solicitor's office on the 9 November 1985 by Mrs Hale. Also present was Trevor Donohoe, Mr Badenach and Miss Dazeley. Neasey J found that the Will was not read over to the testatrix before it was duly executed but that Mr Badenach said to her, in substance:

"I've got some things here for you to sign. Do you know what they are all about?

You're leaving Trevor's share of the house to his children now.

Mrs Donohoe said 'Yes'".

1. In his reasons for judgment, after setting out the facts and referring to the relevant law Neasey J said:

"In the present application, it is also proper that I should consider and take into account the circumstances of the case, in order to consider the basic question, whether the testatrix knew and approved the contents of the will which she executed on 9 November 1985. I accept, of course, that the will was not read over to her before she executed it, and that she did not read it. However, the evidence which I have earlier set out shows that the will is the fourth of a series which all deal with the same subject matter, and which show a progression in her thinking as to the disposition of her main assets. The first such will was made 20 years before the last, and it is a reasonable assumption and strong probability that the testatrix had turned her mind to the subject on many occasions over the period, and was well aware throughout of what she wanted to do. The relative complexity of the provision concerning the disposition of the funds resulting from sale, calling in and conversion of the residue, a provision repeated with some variations in the last three of those wills, demonstrates clearly that the testatrix must have devoted considerable thought from time to time about those dispositions.

Furthermore, the evidence shows that Mr Badenach Senior, a very experienced managing clerk, had dealt with the testatrix in relation to her will on all four occasions over that period of 20 years. Again, it is a fair assumption that the provisions of the testatrix's will would be quite familiar to Mr Badenach when he turned his mind to them, since the occasion of the execution of the last will was only one of a series of transactions he had had with the testatrix concerning her will. Mr Trevor Donohoe's evidence shows that his mother approved the single change in the provisions of the will which he requested, and her authority to him to transmit those instructions to Mr Badenach can scarcely be doubted. The alteration which the latter caused to be made in the wording of the will was in accordance with the testatrix's wish, except that the provision about the benefit accruing when the youngest of the children attained 25 years, as distinct from the earlier provision contained in the unexecuted codicil, is not explained by the evidence. It is a reasonable assumption, however, that the change was deliberate, and authority for it had in some way been conveyed by the testatrix to Mr Badenach. There is nothing of a suspicious nature in the circumstances in which any of these wills was drawn and executed, and every reason why the presumption of regularity should apply to the one in question. In any event, if it could be shown that the provision concerning the attainment of 25 years was extraneous or mistaken or not in accordance with the testatrix's intention, the remainder of the will could be held to be valid without it – Theobald (supra) at p111; Re Morris [1970] 2 WLR 865.

Finally, that which was said between the testatrix and Mr Badenach immediately before the will was executed, according to para 12 of Mr Donohoe's affidavit, accords with the inference that the testatrix understood the alteration she was making in the will, and understood that the remainder of it would be in accordance with the previous will. Having regard to all of these circumstances, the conclusion seems to me to be inevitable that the testatrix did know and approve the contents of her will at the time she executed it, notwithstanding that it was not read over to her and she did not read it; and that a case has not been made out that the will is invalid, or that probate of it should be revoked."

1. No challenge is made to any part of his Honour's reasons for judgment but the applicants contend that I should be satisfied that the testatrix did not have knowledge of and did not approve the vesting limitation on the bequest to the children of Trevor Donohoe by the use of the words "on the youngest of my said grand–children attaining the age of 25 years".

1. In her further affidavit Mrs Hale deposes that she did not instruct Mr Badenach to use those words, the testatrix did not instruct her with respect to any age limitation and that an age limitation was not mentioned by anybody at the time the Will was signed. By his further affidavit Trevor Donohoe says that he did not give instructions to Mr Badenach with respect to any age limitation, that his mother issued no such instruction to him, that he did not mention an age stipulation to anybody and it was not mentioned at the time the Will was signed.

1. The principles applied by Neasey J when he considered the application to revoke the whole grant are equally applicable to an application to amend the grant by omitting therefrom some portion of the Will. See Guardhouse v Blackburn (1865) LR 1 P & D 109 at p116. There are early examples of probate being granted with the omission of words or clauses from the Will. See In the Goods of Duane (1862) 2 Sw & Tr 590, 164 E.R. 1127; In the Goods of Oswald (1874) LR 3 P & D 162; In the Goods of Sir J E Boehm [1891] LR P& D 247; Morrell & Ors v Morrell & Ors (1882) 7 P & D 68. In all these cases there was clear evidence that the clause or words in issue were inserted into the testamentary instrument contrary to the expressed wishes of the testator, mostly by mistake. In all these cases the testators did not read the Will and thus it was established that they did not know of nor approve the use of the clause or words in question.

1. In Rhodes v Rhodes & Ors (1882) 7 App Cas 192 the Privy Council referred to In the Goods of Duane (supra) as illustrative of those cases and said at p 198:

"And it has been held that when it is sufficiently proved that the instrument comprised his Will, but that from fraud or perhaps inadvertence, the instrument which he actually executed contained also something which was not his Will, this latter part is to be rejected."

1. Their Lordships went on to consider the position if the omission of the relevant words had the effect of altering the sense of those remaining. In that case the solicitor chose the words because he thought them appropriate but they were read over to the testator as part of the whole document before it was executed. The application to grant probate with the omission of some words was refused.

1. In re Horrocks, Taylor v Kershaw [1939] P 198 was another case concerning the choice of words by a solicitor to whom the task of drafting the will had been entrusted. Although it was claimed that the testatrix (described in the judgment as "an elderly lady, delicate in health, but of pronounced opinions, particularly with regard to ritualistic practices in the Church of England of which she strongly disapproved") did not read her will, that claim was not accepted. The Court of Appeal referred to Rhodes v Rhodes (supra) with approval and held that where a testator approves the words used (even if they do not accurately reflect his intentions) he is bound by them and the court has no jurisdiction to alter the Will. This case is discussed in In re Morris Deceased [1971] P 62 at p.80. This was another case where the testatrix did not read the Will which contained a mistake made by her solicitor. At p 81 Latey J said:

"The introduction of the words 'clause 7' instead of 'clause 7(iv)' was per incuriam. The solicitor's mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix's instructions and intentions were, and what he did was outside the scope of his authority. And he did it, of course, without knowing and approving what he himself was doing. How can one impute to the principal the agent's knowledge and approval which the agent himself has not got?

Accordingly, I hold that the testatrix was not bound by this mistake of the draftsman which was never brought to her notice. The discrepancy between her instructions and what was in the codicil was to all intents and purposes total and was never within her cognizance."

1. Although that case concerned an accidental drafting error, the existence of which was unknown to both the draftsman and the testatrix, the principle upon which the passage cited above is based is that a testator cannot delegate to another the making of his will. See Hastilow v Stobie (1865) LR 1 P & D 64. He can entrust the drafting to another and if the draftsman makes an error which does not reflect the instructions then the testator is not bound by that error unless he knew of it. As to the extent of such knowledge see In re Morris (supra) at p 870 et.seq. 

1. In the present application, the first question is whether the applicants have discharged the onus of establishing that the testatrix did not instruct Mr Badenach to insert the limitation on the vesting by the use of the words "on the youngest of my said grandchildren attaining the age of 25 years." Having regard to the further affidavits filed by Mrs Hale and Trevor Donohoe, the disability of the testator and the words of the codicil prepared after instructions had been given to Mr Badenach for the alteration of the Will, the inference is inescapable that the postponement of vesting until the youngest child reached the age of 25 years was inserted into the Will by Mr Badenach on his own volition and without instructions from the testatrix or any member of her family then acting as her agent. As the Will was not read to her nor was she otherwise informed of the existence of those words it cannot be said that she knew of or approved of them.

1. Accordingly, I order that the grant of probate be amended by the omission of the words "on the youngest of my said grandchildren attaining the age of 25 years" from clause 4(a) of the Will.