In the Estate of Allen Sidney Alcock

[2025] ACTSC 351

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Allen Sidney Alcock

Citation: 

[2025] ACTSC 351

Hearing Date: 

22 July 2025 and 8 August 2025

Decision Date: 

8 August 2025

Before:

Baker J

Decision: 

See [65]

Catchwords: 

CIVIL LAW – WILLS AND ESTATES – application to rectify will – where last will drafted without legal assistance – where will made gift to an organisation no longer in existence – where will made gift to another person “to be shared” with that person’s grandchildren – where that person predeceased the deceased – whether terms of the will expressed an intention to create a trust – no such intention found – whether rectification of will ought to be made so as to give effect to testator’s probable intention – leave to apply out of time granted - will rectified

Legislation Cited: 

Administration and Probate Act 1929 (ACT), s 88

Wills Act 1968 (ACT), ss 12A, 12B

Cases Cited: 

Carrington v Wallace [2019] NSWSC 1301

Farrelly v Phillips [2017] SASCFC 111

In the Estate of Rummer [2017] ACTSC 277;12 ACTLR 258

In the Estate of Tyson [2023] ACTSC 353

IW v City of Perth [1997] HCA 30; 191 CLR 1

Kauter v Hilton [1953] HCA 95; 90 CLR 86

Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; 255 CLR 62

Middleton v Schofield [2022] NSWSC 1454

Re Estate of Molnar [2016] SASC 55

Re the Will of Logan [1990] 1 Qd R 395

Rhodes v Rhodes [2017] QCA 21

Strickland v Strickland [1907] 7 NSWSR 657

Parties: 

Public Trustee and Guardian ( Applicant)

Representation: 

Counsel

G Blank ( Applicant)

Solicitors

MV Law ( Applicant)

File Number:

PRO 558 of 2021

BAKER J:      

Overview

1․Prior to his death at age 93 in February 2021, Allen Sidney Alcock (the deceased) had made a number of wills. Regrettably, he did not use a lawyer for the drafting of his final will (the Last Will) in 2014.

2․The present application relates to two clauses of the Last Will: the first is a clause which bequeaths a gift of $500,000 to a friend, “Barrington Brown .to [sic] be shared amongst his Grand-Children”. The second is a clause which bequeaths the balance of the deceased’s estate to the “CV-6 USS Enterprise Veterans Association”. Difficulties have arisen with respect to the administration of both clauses.

3․The first difficulty is that Mr Brown predeceased the deceased. The second difficulty is that the entity referred to in the Will as the CV-6 USS Enterprise Veteran’s Association was dissolved prior to the deceased’s death.

4․The sole executor named in the Last Will renounced on 29 March 2021. On 27 July 2021, the Public Trustee and Guardian (the Public Trustee) received a grant of letters of administration under s 88 of the Administration and Probate Act 1929 (ACT).

5․By an application filed on 20 December 2024, the Public Trustee seeks orders rectifying the relevant clauses of the Last Will pursuant to 12A of the Wills Act as follows:

(i)To add the following words to Clause 5:

To pay the balance of my estate equally among the River Vale Free Public Library and the National Naval Aviation Museum.

In the alternative:

If CV-6 U.S.S ENTERPRISE VETERANS ASSOCIATION is unable to receive the gift of the balance of my estate or if the gift fails for any reason, then that gift is to be made instead to the charitable organisation that my executor considers most nearly fulfils the objects I intend to benefit.

(ii)Clause 6 of the Will be rectified so that it reads:

I GIVE $500,000.00 TO Barrington Brown on trust to be shared amongst his Grandchildren that survive me.

If Barrington Brown fails to survive me, then my Executor/ Administrator is to distribute the gift of $500,000.00 equally among those grandchildren of Barrington Brown who survive me.

6․The Public Trustee requires leave to make the application, because the present application was not filed within the time required by s 12A(3) of the Wills Act.  That leave will be granted.

7․For the reasons outlined below, I am satisfied that the rectification sought by the Public Trustee is appropriate. Orders will be made in the terms sought by the Public Trustee.

Background

The deceased

8․At the time of his death, the deceased was a widower. His wife, Avril Alcock predeceased him in 2020. The residue of her estate forms part of the deceased’s estate. I was informed that the deceased’s first wife, Gertrude Alcock, died many years ago. Mr Alcock was not survived by a de facto partner or any children.

9․The deceased was a retired scientist. During the Second World War, he had served in the Navy. This service included a period of time in 1942 as a pilot on the USS Enterprise, an American aircraft carrier.

The two prior wills

10․The deceased prepared two wills prior to the Last Will. The first, which was dated 20 March 2012, was prepared by a solicitor at KJB Law in Woden, and witnessed by a solicitor and a paralegal (the 2012 Will).

11․In the 2012 Will, the deceased appointed his “friend BARRINGTON BROWN” as executor and trustee, and appointed “Helen Brown” (Mr Brown’s daughter) as executor and trustee if Mr Brown refused, or was unable or willing to act as such.

12․The 2012 Will provided as follows concerning the distribution of the decease’s estate:

(a)For the right of the deceased’s wife to occupy his property;

(b)A gift of $20,000 to Mr Brown and his wife, Pamela Brown, to be shared as joint tenants; and

(c)Subject to the preceding trust and gift, to divide the whole of the estate equally among the grandchildren of Mr and Mrs Brown who survived him and who have attained or attain the age of 21 years.

13․In a Memorandum of Wishes of the same date, the deceased also made provision for the distribution of specified items of property (brass ships clock, a Westminster Chiming Clock and an 18 carat gold watch) to specified persons.

14․The deceased’s second will was dated 31 January 2014 and was also prepared by a solicitor at KJB Law Woden. That will also appointed Mr Brown as the deceased’s executor and trustee, and Helen Brown in the event that Mr Brown refused or was unable to act, or continue to act, as executor and trustee.

15․The 2014 will provided as follows concerning the distribution of the deceased’s estate:

(a)A gift of $100,000 to Mr Brown and Mrs Brown, as joint tenants, with a specification that whilst Mr Brown and Mrs Brown were to use this gift “as they see fit”, if the deceased’s wife survived him he asked “that they also use these funds to financially assist [the deceased’s wife] if needed”.

(b)A gift of a legacy of $200,000 to the deceased’s wife “for her to use to gain entry to an appropriate nursing care facility”;

(c)Gifts of the deceased’s IAG shares and his coin and note collection to the deceased’s wife;

(d)Subject to the precedent trusts and gift, the deceased gifted the residue of the deceased’s estate as follows:

(i)To the USS ENTERPRISE CV-6 ASSOCIATION to be used to help the costs of care and support for children & heirs of veterans of the USS Enterprise and otherwise for the general purposes of that association;

(ii)If the gift [above] cannot take effect, then I give the residue of my estate to the organisation or organisations which my Executors considers most nearly fulfils or fulfil the objects I intend to benefit.

16․The list of gifts of chattels was also updated so as to substitute a different beneficiary of the 18 carat gold watch, and to specify that that watch was a Rolex watch.

The Last Will

17․On 9 June 2014, the deceased made the Last Will, which was witnessed by two apparently independent witnesses. The Last Will relevantly provides as follows:

THIS IS THE LAST WILL AND TESTAMENT OF ME ALLEN SIDNEY ALCOCK OF 4/1 DREW STREET GREENWAY IN AUSTRALIAN CAPITAL TERRITORY MARRIED / SCIENTIST.

1. I REVOKE all former Testamentary ACTS.

2. PROVIDED MY Wife AVRIL INA ALCOCK SURVUVES ME I GIVE TO HER, The sum of $100,000.00 and I appoint HELEN O’LOUGHLIN 14 ROGERS ROAD MOUNT ANNAN NSW 2567 MOBILE No 0414400009 HER my Sole executor.

3. I give my Estate to my TRUSTEE & EXECUTOR UPON TRUST to sell ;call in ,collect and convert into money ,such part or parts thereof aas shall not consist of money with power in its absolute discretion to postpone such sale ,calling in collection and conversion ,after payment of my just Debts and testamentary expences to stand possessed of the residue upon Trust.

4. A Certificate of RIGHT OF BURIAL CATHOLIC CEMETERY, ROOKWOOD NSW AT LAWN GRAVES St FRANCIS 283 ,this paid Document is Attached to this Will AND AN AVO BE ATTAINED AGAINST FIONA BROTHERTON.

5. To Pay to CV-6 U.S.S ENTERPRISE VETERANS ASSOCIATION THE BALANCE OF MY ESTATE KJB SOLICITORS HAVE THE DEEDS TO THE ALCOCK GRAVE SITE .

6. I GIVE $500,000.00 TO Barrington Brown .to be shared amongst his Grand-Children.

7. [a] my Brass Ships Clock to the COMBINED SERVICES RSL OF 5-7 Barrack Street SYDNEY ,provided this Organisation still exists at the Date of my Death

8. [b] My Westminster Chiming Clock to my Wife AVRIL INA ALCOCK ,provided she survives me ,THEN to HELEN O’LOUGHLIN.

9. [c] My 18 ct gold watch to my friend DAVID PAYSON [WHO is currently the Treasurer of the CV-41 MIDWAY VETERANS ASSOCIATION OF SAN DIEGO USA OF 410 COTTINGWOOD DRIVE, RICHLAND in the State of Washington 99352 in the UNITED STATES OF AMERICA . provided he survives me THEN TO GRACE EDITOR OF THE CV-6 ENTERPRISE VETERANS ASSOCATION

10. [e]IT is my wish to be buried at St Francis 283 Lawn Catholic Lawn Cemetery as I have stated above in this my Will

IN WITNESS WHEREOF ,I have hereunto set my Hand to this my will this 9th DAY OF JUNE Two thousand and Fourteen

SIGNED BY THE TESTATE as and for my Last Will and Testament in the presents of ALLEN SIDNEY ALCOCK WHO AT MY REQUEST AND in my Sight and the presence of each other have subscribed our NAMES AS WITNESSES.

18․It is apparent from the above that the Last Will was not prepared with legal assistance.

Mr Barrington Brown and his grandchildren

19․Mr Barrington Brown died on 22 October 2017. His estate has not yet been the subject of a grant of probate.

20․Mr Barrington Brown is survived by eight grandchildren, all but two of whom have reached 18 years of age.

The USS Enterprise

21․The Public Trustee and Guardian has identified the entity that was referred to as the CV-6 U.S.S ENTERPRISE VETERANS ASSOCIATION in the Last Will.

22․The Public Trustee and Guardian has not located an association by this name. However, the Trustee has located an association named the USS Enterprise CV-6 Association (the Association). This Association had been referred to in an earlier version of the deceased’s will.

23․The Association’s National Secretary (Ms Grace Neie) provided the Public Trustee and Guardian with various bulletins published by the Association. One of these bulletins contained a story written about the deceased. Ms Neie advised the Trustee that the Association was “born” in 1954.

24․Another bulletin dated 27 March 2015 addressed the “dissolving [of] our not for profit organization” and the distribution of proceeds to other organisations. It recorded that the dissolution was to take place by way of not renewing the association’s charter that was due for renewal in September 2016.

25․Ms Neie was asked to provide all relevant information concerning the Association. She forwarded what she could locate and did not expect to locate more. She said that she could not find the original Charter. Ms Neie also located pages 1 and 12 of the Association’s By-Laws, which state that the purposes of the Association included to:

(i)To establish and maintain the memory of the U.S.S. Enterprise (CV-6) by creating and maintaining museums and exhibits to honor the memory of all United States Navy personnel who served aboard her during the ship’s illustrious service in peace and war and do all things necessary and incidental thereto;

(ii)To encourage and inspire the spirit of fellowship among he veterans of the U.S.S Enterprise (CV-6) and their families by the holding of periodic meetings and reunions;

(iii)To inform and educate the youth of America of the high tradition to  the United States Naval Service; and

(iv)The corporation also has such powers granted as are now or may hereafter be granted by the General Not For Profit Corporation Act of Illinois.

26․Article XVI states that upon dissolution, the funds and resources of the Association will be donated to the USS CV-6 Museums.

27․Once the Association had been dissolved, three quarters of its net assets were distributed to the Naval Air Museum in Florida and the remaining quarter to The Friends of the River Vale Free Public Library in New Jersey. The River Vale Library maintains a collection of artefacts from the USS Enterprise.

28․In an email to the Public Trustee dated 6 February 2024, Ms Neie stated that:

If there is any ‘gift’ that the USS Enterprise CV-6 Association may have qualified for from the balance of Mr Alcock’s estate, I would respectfully ask that your form consider the estate’s donation “to the USS ENTERPRISE CV6 MUSEUMS” exhibits, as was directed in Article XVI of our By-Laws. This was the course followed by the USS Enterprise CV6 Association’s Board of Directors in disbursal of our remaining treasury – the sums which you will see noted in my final letter to Treasurer Pauline Klopfenstein.

There are several outstanding museums with amazing exhibits of USS Enterprise CV-6’s significance and her history as the ‘most decorated US ship of World War II’. I will gladly supply their contact information to you and I urge support of these exhibits to memorialize this great ship’s legacy.

(emphasis in original)

29․In a subsequent email date 17 February 2024, Ms Neie provided the name and contact details for the National Naval Aviation Museum in Florida and the River Vale Free Public Library in New Jersey, and confirmed that these were the same museums “to which the USS ENTERPRISE CV6 Association donated our remaining treasury at the time of dissolution in 2017”.

Service on interested parties

30․The Public Trustee and Guardian has served the application upon each of the potentially interested parties, namely the River Vale Public Library, the National Naval Aviation Museum, Ronald Hunter, John Somerville Alcock, the estate of Maurice Alcock, the estate of Christine Anne Alcock, Nancy-Jean Crawford, Vincent Crawford and each of Mr Brown’s grandchildren, or their guardians (in the case of the two grandchildren who are still minors).

Rectification: Relevant principles

31․Section 12A of the Wills Act provides as follows:

(1)If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator’s intentions.

(2)The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator’s probable intention if satisfied that—

(a)any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will):

(i)   the circumstances or events were not known to, or anticipated by, the testator;

(ii)     the effects of the circumstances or events were not fully appreciated by the testator;

(iii)    the circumstances or events arose or happened at or after the death of the testator; and

(b)because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects.

(3)Except with the leave of the Supreme Court, an application to the court for an order for rectification shall not be made after the expiration of the period of 6 months commencing—

(a)if the public trustee and guardian is administering the estate of the testator under the Administration and Probate Act 1929, section 87B or 87C—on the day when notice was given under that Act, section 87B (4) or 87C (5); or

(b)if an order has been granted under that Act, section 88 (1) or (3) in respect of the estate of the testator—on the day when the order was granted; or

(c)in any other case—on the day of the grant of probate of the will or letters of administration of the relevant estate with will annexed.

(4)A personal representative of a deceased person may, within the period of 4 months commencing on the day referred to in subsection (3) (a), (b) or (c) (whichever is applicable), by public notice of his or her intention to distribute all or part of the estate of the deceased person after the expiration of the period of 1 month commencing on the day when the advertisement was so published and requiring any person wishing to make an application for an order for rectification to do so within that period of 1 month.

Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1).

(5)A personal representative of a deceased person is not liable for having distributed any part of the estate of the deceased person otherwise than in accordance with the provisions of the will of that deceased person as altered by an order for rectification if the distribution was made prior to the making of that order in accordance with the provisions of the will before it was so altered and, at the time of the distribution—

(a)a period of 1 month had elapsed since an advertisement was published in accordance with subsection (4) and the personal representative had not received notice that an application had been made to the Supreme Court for an order for rectification; or

(b)the period of 6 months commencing on the day referred to in subsection (3) (a), (b) or (c) (whichever is applicable) had expired and—

(i)   (i) the personal representative had not received notice that an application had been made to the court for an order for rectification, that the court had granted leave to apply for such an order or that an application had been made to the court for leave to apply for such an order; or

(ii)     (ii) the court had granted leave to apply for an order for rectification but a period of 7 days had elapsed since the day when that leave was granted without any application for such an order having been made.

(6)Nothing in this section shall be taken to affect the right of a person, arising by reason of the making of an order for rectification, to recover any part of the estate of a deceased person that had been distributed before that order was made.

(7)In this section:

order for rectification means an order inserting material in, or omitting material from, the probate copy of a will.

personal representative, in relation to a deceased person, means the executor of the will of the deceased person or the administrator of the estate of the deceased person (including the public trustee and guardian when administering the estate of the deceased person under the Administration and Probate Act 1929, section 87B, 87C or 88).

probate copy, in relation to a will of a deceased person, includes the copy of the will—

(a)annexed to letters of administration of the estate of the deceased person; or

(b)used in administering the estate of the deceased person under the Administration and Probate Act 1929, section 87B; or

(c)annexed to an election to administer the estate of the deceased person under that Act, section 87C; or

(d)annexed to an order granted to collect and administer the estate of the deceased person under that Act, section 88.

32․As I observed in In the Estate of Tyson [2023] ACTSC 353 at [24], s 12A of the Wills Act provides for two separate powers of rectification:

(i) Section 12A(1), which permits rectification of a will where the Supreme Court is satisfied that the probate copy of the will is so expressed that it fails to carry out the actual intention of the testator when making the will; and

(ii) Section 12A(2), which permits rectification of a will to give effect to the “probable intention” of the testator to address circumstances or events that were not known, anticipated, or fully appreciated by the testator, or which occurred at or after the death of the testator.

33․Section 12A permits rectification in much broader circumstances than is permitted in other jurisdictions. As McWilliam AsJ (as her Honour was then) observed in In the Estate of Rummer [2017] ACTSC 277;12 ACTLR 258 at [103], the “somewhat radical” power of rectification conferred by s 12A(2) expressly allows what the Court to “fill the gap and do what the common law precludes”. Specifically, the provision permits the Court:

… to determine the testator’s probable intention if (relevantly) he had fully appreciated circumstances that were not known by him, or their legal effect, and even including circumstances which occurred after the testator’s death, and then to supply words to meet those circumstances.

34․Because s 12A(1) is concerned with the rectification of a will to reflect the actual intention of the testator at the time of making the will, and s 12A(2) is concerned with the testator’s probable intention if he had been aware of circumstances or events that were not known, anticipated or appreciated, the matters to be considered by the Court under each subsection differ.

35․When considering an application to rectify under s 12A(1), the Court must consider:

(a)The meaning of the will;

(b)The testamentary intention of the testator;

(c)Whether the will accurately reflects that intention; and if not

(d)Whether the will can be rectified, and if so, in what terms.

See In the Estate of Rummer at [32].

36․The Court must be satisfied of the testamentary intentions of the deceased as at the date the will was made: In the Estate of Rummer at [34]. Whilst the standard of proof applied in determining the testator’s intentions is the balance of probabilities, because the will has been signed by the testator and is the expression of the intention of a person who is not available to give evidence, the Court is required to examine the relevant evidence carefully: In the Estate of Rummer at [37].

37․Extrinsic evidence may be admitted to assist in the interpretation of the will where the language used in the will is meaningless, ambiguous or uncertain on its face or in light of the surrounding circumstances: s 12B of the Wills Act. However, the extrinsic evidence cannot be used to give rise to the ambiguity or uncertainty.

38․Rectification may be ordered under s 12A(2) where the Court is satisfied that:

(a)there were circumstances or events (or effects of circumstances or events) which were not known to, anticipated by, or fully appreciated by, the testator, or which arose at or after the testator’s death; and

(b)because of these circumstances or events, the testator’s will would fail to give effect to the testator’s probable intention if the testator had known of, anticipated, or fully appreciated their effects.

39․The assessment which is performed under s 12A(2) is premised “entirely on the hypothetical case”: In the Estate of Rummer at [102]. As the Public Trustee and Guardian submitted, the Court is to determine what the testator’s probable intention would have been if the testator had known, anticipated or fully appreciated the effects of events or circumstances which were unknown or not fully appreciated by the testator at the time of making the will.

40․The broad judicial discretion conferred by s 12A(2) requires the Court to determine what is in the interests of justice, having regard to all of the circumstances: In the Estate of Rummer at [111]. As beneficial legislation, the power conferred by s 12A(2) should be interpreted in a way that is “fair, large and liberal”, rather than “literal or technical”: In the Estate of Rummer at [112], citing IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12.

Leave

41․As can be seen from the extract at [30] above, s 12A(3) of the Wills Act relevantly provides that the Supreme Court grants an order under s 88(1) or (3) of the Administration and Probate Act 1929 (ACT) to collect and administer an estate, an application to the Court for an order for rectification shall not, without leave of the court, be made after the expiration of the period of 6 months commencing on the day when the order was made.

42․In the present case, the Public Trustee received a grant of letters of administration under s 88 on 27 July 2021. Accordingly, the application for rectification should have been filed by 26 January 2022. As the present application was filed on 20 December 2024, the time limit imposed by s 12A(3) has lapsed and the Public Trustee requires leave for the application to be made.

43․Counsel for the Public Trustee provided helpful written and oral submissions to the Court addressing the circumstances in which leave under s 12A(3) should be given.

44․In those submissions, counsel noted that, in relation to similar legislation in South Australia, it has been held that the discretion conferred to extend time is “unfettered, to be exercised judicially and in accordance with what is just and proper”: Re Estate of Molnar [2016] SASC 55 at [12], citing Chittock v Stevens [2000] WTLR 643 at 649 – 650.

45․An affidavit provided by the Public Trustee’s solicitor explained that there were “several factors” which contributed to the delay in bringing the application. These included the complexity of the Last Will; the time required to brief and seek advice from counsel (initially as to whether an application for judicial advice should be made); delays with inquiries made into the deceased’s next of kin and extended family (to identify potential beneficiaries on intestacy); the time required to obtain the will-drafters notes from the firm which prepared a previous will; the time required to prepare the evidence for the application to be filed; delays associated with the Covid-19 pandemic and stay-at-home orders in 2021; difficulties in obtaining information from and in relation to the United States entities referred to in the Last Will; and delays caused by internal restructures and resourcing issues at the Public Trustee. I was also informed that an additional source of delay was the need for the Public Trustee to administer the estate of the deceased’s wife. As counsel for the Public Trustee frankly acknowledged, the explanation for the lengthy delay in the present application was not the strongest aspect of the application for leave.

46․Weighing in favour of a grant of leave are the following matters:

(i)apart from the distribution of some specific gifts (the Brass Ships Clock, the Westminster Chiming Clock and the 18ct Gold Watch), there has been no distribution of the Estate;

(ii)each of the potential beneficiaries is on notice of the application and each has indicated that they do not wish to be heard;

(iii)if leave were not granted, the Estate would be required to seek judicial advice as to the proper construction of the Last Will concerning the gift to the grandchildren of Mr Brown. Complex questions would also arise in relation to the residual gift, such as whether the gift was made for charitable purposes, and whether it would be possible for the Court to settle a cy près scheme with respect to that gift.  Such a course would cause further delay to the finalisation of the Estate, and would require the incurring of further cost, which would reduce the value of the Estate.

47․These matters are significant. Accordingly, despite the somewhat unsatisfactory explanation for the delay, I am satisfied that it is just and proper for leave to be granted nunc pro tunc to the Public Trustee to proceed with the application.

Determination

Clause 5: The USS Enterprise

48․Clause 5 of the Last Will provides as follows:

To Pay to CV-6 U.S.S ENTERPRISE VETERANS ASSOCIATION THE BALANCE OF MY ESTATE KJB SOLICITORS HAVE THE DEEDS TO THE ALCOCK GRAVE SITE.

49․There is a clear typographical error, in that the words following “KJB SOLICITORS HAVE THE DEEDS TO THE ALCOCK GRAVE SITE” appear to relate to cl 4, and should not have been included in cl 5. Further, the reference to the CV-6 U.S.S Enterprise Veterans Association is an error. As outlined above, it is clear that the entity that was intended is in fact the USS Enterprise CV-6 Association. Those errors could have been rectified under s 12A(1) of the Wills Act.

50․However, there is a further, more important difficulty. As outlined above, the Association ceased to exist in about September 2016. Regrettably, the Last Will contains no directions as to what should occur in the event that that organisation ceases to exist.

51․As the Public Trustee submitted, when construing the Last Will, the Court must not search for what the deceased subjectively intended, or meant to say, when making the will: Middleton v Schofield [2022] NSWSC 1454 at [17], citing Farrelly v Phillips [2017] SASCFC 111 at [32]; Carrington v Wallace [2019] NSWSC 1301 at [57]. Properly construed, the Last Will cannot be read as conferring a discretion upon the executor of the Estate to substitute any successors of, or similar entities to, the Association in the event that that entity ceased to exist prior to the deceased’s death.

52․As outlined above, in the ACT, the Wills Act provides the Court with broad rectification powers where a circumstance or event takes place that was not known or anticipated by the testator at the time of making the Last Will. Specifically, s 12A(2) of the Wills Act confers power upon the Court to rectify a will to give effect to what the Court determines the testator’s “probable intention” would have been if the circumstance or event had been known or anticipated.

53․I am satisfied that at the time of making the Last Will, the deceased was not aware, and did not anticipate, that the USS Enterprise CV-6 Association would cease to exist prior to his death. Accordingly, the s 12A(2)(a) requirement is established.

54․It remains necessary to determine the deceased’s probable intention if he had known or anticipated that the USS Enterprise CV-6 Association would cease to exist prior to his death. The Public Trustee suggested two alternatives: first, that the Court could infer that the deceased would have intended that the gift be made to the two organisations recommended by the former secretary of the USS Enterprise CV-6 Association; or second, that the Court could infer that the deceased would have intended that his executor have discretion to distribute the gift to the organisation or organisations which his executor considered most closely fulfil the objects he intended to benefit. It may be that little turns on the distinction between the two proposals, as I understand that it is likely that, if the Last Will is rectified in accordance with the second proposal, the Public Trustee would, in the exercise of the discretion conferred, distribute the residue of the Estate equally amongst the two organisations recommended by the former secretary of the USS Enterprise CV-6 Association.

55․The Public Trustee acknowledged that there is no evidence supporting the first proposed inference. However, I am satisfied that the second proposed inference may be drawn. When the deceased had the benefit of legal assistance in the making of the 2014 Willl, he included a clause which provided his executor with discretion to give the residue of his estate to “the organisation or organisations which my Executors considers most nearly fulfils or fulfil the objects I intend to benefit”. This will that was signed only months before the Last Will. As stated above, given its form, an inference may readily be drawn that the deceased did not have the benefit of legal assistance when preparing his last Will. I am satisfied that the deceased did not appreciate the legal significance of failing to include a like clause in his Last Will.

56․In these circumstances, I am satisfied that if the deceased had known, or anticipated that the USS Enterprise CV-6 Association would cease to exist prior to his death, he would have intended that his executor have discretion to distribute the gift to the organisation or organisations which his executor considered most closely fulfil the objects he intended to benefit. Accordingly, I will make orders rectifying cl 5 of the Last Will to add the words:

If CV-6 U.S.S ENTERPRISE VETERANS ASSOCIATION is unable to receive the gift of the balance of my estate or if the gift fails for any reason, then that gift is to be made instead to the charitable organisation(s) that my executor considers most nearly fulfils the objects I intend to benefit.

Clause 6: The grandchildren of Mr Barrington Brown

57․Clause 6 of the Last Will provides as follows:

GIVE $500,000.00 TO Barrington Brown .to be shared amongst his Grand-Children.

58․I am satisfied that the deceased intended that Barrington Brown should distribute the gift of $500,000 in equal shares to his grandchildren. My reasons for so concluding are as follows:

(i)The clause does not contain any language of ‘wish’ or condition. The language of the will contains an imperative direction (the gift is “to be shared”):

(ii)The gift is not to a parent or guardian of the deceased’s own children. It does not direct that the funds be used for the maintenance or benefit of those children. However, the fact that it is given to grandchildren (all of whom were under the age of 18 years at the time suggests that it was intended that a trustee type role was envisaged); and

(iii)Mr Barrington Brown is not named as a recipient of the gift (the language of the will is not “amongst him and his grandchildren”).

(iv)Although the term “shared” provides a potential discretion as to the proportions in which the gift was to be shared, the absence of any language conferring a discretion indicates that it was intended that the gift should be shared equally amongst the grandchildren.

59․It is arguable that the terms of the will that was made by the deceased are sufficient to create a trust in favour of Mr Brown’s grandchildren, such that in the event of Mr Brown’s death, the bequests would then be conferred upon Mr Brown’s estate to then be distributed. In particular, it is arguable that the three requirements for a trust, namely certainty of intention, certainty of subject matter and certainty of objects are each satisfied: see Kauter v Hilton [1953] HCA 95; 90 CLR 86; Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; 255 CLR 62. In this respect, I note that in Rhodes v Rhodes [2017] QCA 21, it was held that a clause which bequeathed “all my worldly goods to my ex wife who will distribute it to my children as she sees fit” conferred a mandatory obligation to distribute the deceased’s assets to his children.

60․However, against this construction is the uncertainty in the language used; the lack of any statement in the will as to what should occur in the event of Mr Barrington’s death; the lack of any extrinsic material as to the deceased’s intention as to what should occur in the event of Mr Brown’s death; and the general reluctance of courts to impute a trust in the absence of a clear intention: Strickland v Strickland [1907] 7 NSWSR 657 at 659 – 660; Re the Will of Logan [1990] 1 Qd R 395 at 398 – 399.

61․It is unnecessary to reach a concluded view on this question. In view of the real uncertainty that attends this clause, I am satisfied that it is appropriate to rectify the Last Will under s 12A(2) of the Wills Act.

62․At the time of making the will, Mr Brown was 75 years of age and the deceased was 87 years of age. I am satisfied that the deceased did not anticipate that Mr Brown would predecease him. The deceased did not have the benefit of legal advice in preparing the Last Will. In these circumstances, the deceased would not have appreciated the legal effect of failing to include the words “in trust”, or similar. As such, the deceased would not have appreciated that his gift to Mr Brown’s grandchildren would fail entirely if Mr Brown died before him.

63․In short, I am satisfied that the event of Mr Brown’s death was not anticipated by the deceased at the time of making the Last Will. I am further satisfied that if the deceased had anticipated that Mr Brown would predecease him, it is probable that he would have intended that the gift be distributed by his executor directly to each of Mr Brown’s grandchildren, in equal shares.

64․Accordingly, I will order that cl 6 of the Last Will be rectified so as to read:

I give $500,000.00 to Barrington Brown on trust to be shared amongst his Grandchildren that survive me.

If Barrington Brown fails to survive me, then my Executor/ Administrator is to distribute the gift of $500,000.00 equally among those grandchildren of Barrington Brown who survive me.

Orders

65․For the above reasons, the following orders are made:

(1)  The Public Trustee and Guardian is granted leave nunc pro tunc under s 12A(3) of the Wills Act 1968 (ACT) to make an application for rectification of the Will of the late Allen Sidney Alcock (also known as Alan Sidney Alcock) dated 9 June 2014;

(2) The Will of the late Allen Sidney Alcock (also known as Alan Sidney Alcock) dated 9 June 2014 is rectified pursuant to s 12A(2) of the Wills Act 1968 (ACT) as follows:

(a)To add the following words to Clause 5:

If CV-6 U.S.S ENTERPRISE VETERANS ASSOCIATION is unable to receive the gift of the balance of my estate or if the gift fails for any reason, then that gift is to be made instead to the charitable organisation(s) that my executor considers most nearly fulfils the objects I intend to benefit.

(b)Clause 6 is to be amended so that it reads:

I give $500,000.00 to Barrington Brown on trust to be shared amongst his Grandchildren that survive me.

If Barrington Brown fails to survive me, then my Executor/ Administrator is to distribute the gift of $500,000.00 equally among those grandchildren of Barrington Brown who survive me.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker.

Associate:

Date: