In the Estate of DAPHNE DAWN WIDDISON - [2015] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of DAPHNE DAWN WIDDISON
[2015] SASC 23
Judgment of The Honourable Justice Gray
24 February 2015
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - GENERALLY
Application for a grant of probate. The deceased’s will appointed her husband and the predecessor to the Australian Executor Trustees Limited to act as her executors and trustees. The appointment clause then provided “…if my said husband shall not survive me then I APPOINT my son BRENTON MAYES WIDDISON”. The deceased died a widow, her husband having predeceased her. In this circumstance, the appointment clause gave rise to an ambiguity as to whether the deceased’s son was appointed to act as executor and trustee alone, or as co-executor and co-trustee together with Australian Executor Trustees Limited. Australian Executor Trustees Limited sought a declaration clarifying the proper construction of the appointment clause or, in the alternative, rectification of the appointment clause.
Held:
1. There remains an ambiguity as to whether the deceased’s son was appointed to act as executor and trustee alone, or as co-executor and co-trustee together with Australian Executor Trustees Limited.
2. It was the deceased’s intention to appoint the deceased’s son as co-executor and co-trustee.
3. It is appropriate to direct that the will be rectified to accord with the deceased’s intentions.
Probate Rules 2004 (SA) r 65.03; Wills Act 1936 (SA) s 25AA(1), referred to.
In the Goods of Baylis (1862) 2 Sw & Tr 613; In the Goods of Blackwell (1877) 2 PD 72; In the Estate of Frame (deceased) (2007) 248 LSJS 341; In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461; In the Estate of Lesses (deceased) [2013] SASC 23; In the Estate of Nies (deceased) [2014] SASC 93; Wesley v Wesley (1998) 71 SASR 1; IW v The City of Perth (1997) 191 CLR 1; Police v Berzins (2011) 111 SASR 319, considered.

In the Estate of DAPHNE DAWN WIDDISON
[2015] SASC 23
Testamentary Causes Jurisdiction
GRAY J.

This is an application for probate.
Daphne Dawn Widdison, the deceased, died on 22 November 2013. The deceased died a widow, her husband having predeceased her on 18 June 1991. The deceased is survived by four children. The statement of assets and liabilities discloses that the deceased’s estate has a modest net value.
The deceased left a will dated 12 June 1986 prepared by the office of the Executor and Trustee and Agency Company of South Australia Limited. The will directs that the residue of the deceased’s estate be given to her husband and, if he predeceases her, to her children in equal shares. Clause two of the will makes the following appointment:
I APPOINT the EXECUTOR TRUSTEE AND AGENCY COMPANY OF SOUTH AUSTRALIA LIMITED of Number 22 Grenfell Street Adelaide in the said State and my husband EDWARD REX WIDDISON (hereinafter referred to as “my Trustees”) to be Executors and Trustees of this my Will AND if my said husband shall not survive me then I APPOINT my son BRENTON MAYES WIDDISON.
Australian Executor Trustees Limited, the applicant, is the successor in title to Executor Trustee and Agency Company of South Australia. As earlier noted, the deceased’s husband predeceased her. In this circumstance, clause two of the will gives rise to an ambiguity. It is unclear whether the clause appoints the deceased’s son, Brenton Widdison, to act alone as the executor and trustee of the deceased’s estate, or alternatively, to act as co-executor and co-trustee with Australian Executor Trustees Limited.
By summons dated 18 August 2014, the applicant seeks a declaration clarifying the proper construction of clause two. In the alternative, the applicant seeks an order that clause two of the will be rectified to add after the words “Brenton Mayes Widdison” the words “to be an Executor and Trustee of my Will with the said company”. The applicant also seeks orders admitting the will to probate.
Brenton deposed that he had discussions with the deceased during her lifetime regarding her wishes as to who should be the executors and trustees of her will. She said that, in the event that her husband predeceased her, Brenton would be appointed as a co-executor and co-trustee with Australian Executors Trustees Limited. Brenton further deposed that he had spoken to each of his siblings, who confirmed that this accorded with their understanding of the deceased’s intentions and agreed that Brenton should be appointed as co-executor and co-trustee of the deceased’s estate with Australian Executors Trustees Limited.
The applicant submitted that the courts have only found executor appointment clauses ineffective in clear cases where the identity of the intended executor or executors could not be ascertained from the plain reading of the document.
The issue of an uncertain appointment clause was addressed in In the Goods of Baylis.[1] In that matter, the appointment clause was in the following terms:[2]
I hereby appoint Lewis Alford, Esq., merchant, of Cape Town, to whom I bequeath ten pounds, as my executor, with any two of my sons
The Court decided that there was “uncertainty about the clause which [prevented it] treating it as an appointment”.[3]
[1]    In the Goods of Baylis (1862) 2 Sw & Tr 613.
[2]    In the Goods of Baylis (1862) 2 Sw & Tr 613, 613.
[3]    In the Goods of Baylis (1862) 2 Sw & Tr 613, 614.
The subsequent decision of In the Goods of Blackwell[4] applied In the Goods of Baylis.[5] The appointment clause which was in question is emboldened in the following passage:[6]
… This is the last will and testament of me, Benjamin Blackwell, of Chertsey, in the county of Surrey, grocer and cheesemonger. I devise and bequeath all my real and personal estate, of whatsoever nature or quality, and wheresoever situate, of which I may be possessed or entitled unto at the time of my death, unto my three sisters, viz., Jane, Mary Ann, and Ann Blackwell, or to which of them as are alive at the time of my decease. And I do hereby appoint one of my sisters my sole executrix of this my last will, hereby revoking all other wills or testamentary bequests by me at any time heretofore made."
[Emphasis added.]
At the time of the testator’s death, only one of his sisters survived him. Despite that fact, the President decided that the appointment clause was void for uncertainty:[7]
The question is, which sister did the testator appoint as executrix. I cannot infer from the words of the will that the testator intended to appoint any particular sister executrix. I may conjecture that he would have given directions to appoint the surviving sister if he had foreseen the events that have happened; but he has not done so. I cannot distinguish this case from that of In the Goods of Baylis, and I reject the motion.
[Footnote omitted.]
[4]    In the Goods of Blackwell (1877) 2 PD 72.
[5]    In the Goods of Baylis (1862) 2 Sw & Tr 613.
[6]    In the Goods of Blackwell (1877) 2 PD 72, 72.
[7]    In the Goods of Blackwell (1877) 2 PD 72, 72.
In the Goods of Baylis[8] has also been cited with approval in South Australia. In In the Estate of Frame (deceased),[9] I cited it as an example of a decision in which the appointment of executors failed for uncertainty.
[8] In the Goods of Baylis (1862) 2 Sw & Tr 613.
[9] In the Estate of Frame (deceased) (2007) 248 LSJS 341.
In In the Estate of Veldhuis deceased,[10] the clause appointing the executor was in the following terms:[11]
I APPOINT my solicitor ROBERT LEMPENS of Camatta Lempens 391 Torrens Road Kilkenny solicitor or a partner of the firm with which Robert Lempens practices [sic] to be the sole Executor and Trustee of this my Will.
In respect of this clause, Debelle J relevantly observed:[12]
The uncertainty arises because the appointment of the executor is expressed in the alternative. An appointment of “A or B” as executor with no additional words indicating the circumstances in which B is to be executor is void. Similarly, the appointment of “any two of my sons”: re Baylis’ Goods (1862) 2 Sw&Tr 613, or “one of my sisters”: re Blackwell’s Goods (1877) 2 PD 72 is void for uncertainty. See generally Tristram & Coote Probate Practice (29^th ed) at 119 and re Estate of Yearwood (1982) 30 SASR 169.
[10] In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461.
[11] In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461, [17].
[12] In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461, [19].
In In the Estates of Lesses (deceased),[13] I considered the validity of an executor appointment clause in the following terms:
I appoint [e.g. NIKOLAS LESSES of … and JOHN KOSMAS LESSES] of … to be the Executor of my Will and Trustee of my estate, but if the said Nikolas Lesses and John Kosmas Lesses do not outlive me or are unwilling to act or are incapable of acting, then I appoint as the Executor the PUBLIC TRUSTEE of …
I made the following observations:[14]
In the present proceeding, the uncertainty arises as the wording of the appointment clause does not necessarily indicate that both John and Nikolas Lesses,[15] the deceased’s brothers, are to be joint executors. The singular use of “Executor” and “Trustee” suggests the opposite. However, the use of both of their names in combination with verbs using the plural form later in the appointment clause provides an indication that they are to be joint executors. The use of square parentheses and the abbreviation “e.g.” suggest that the clause in its current form was not intended to be its final form. Further, there is evidence before the Court that the deceased believed that only John was the executor of his will. This is not reflected in the terms of the will.
A reason for the unusual format of the appointment clause was provided by [the deceased’s brother]. He deposed that he used the phrase “[e.g. NICHOLAS LESSES of … and JOHN KOSMAS LESSES]” in order to give the deceased the option as to who he might chose to be his executor. John did not suggest the appointment of Mrs Lesses or the deceased’s children as executor as he believed that a beneficiary could not act as an executor. John instructed the deceased to cross out one of the names if he only wanted one executor or to remove the brackets and cross out the “e.g.” if he wanted both executors. John also deposed that he said the following to the deceased: “Do you want to appoint both of us? Take the will home, read it carefully and talk to [Mrs Lesses] and the children. Then come back and tell me exactly what you want to do. I will then make the necessary corrections.” John suggested to the deceased that once the final draft of the will had been made, he then go to the Unley Civil Centre to have the will executed before a justice of the peace. It is evident from the terms of the executed will that the deceased did not follow these instructions.
In my view, the present proceeding falls into the same category of cases as those discussed above. The appointment clause was intended as a draft which was to be modified by the deceased before execution. This did not occur. This led to an uncertainty that cannot be resolved. Accordingly, I am of the opinion that the clause appointing the executor fails for uncertainty.
In these circumstances, it was appropriate for Mrs Lesses to bring an application seeking a grant of letters of administration with the will annexed.
[Footnote omitted.]
[13] In the Estate of Lesses (deceased) [2013] SASC 23.
[14] In the Estate of Lesses (deceased) [2013] SASC 23, [13]-[16].
[15] This name is spelt in two ways on the court file. Except where the name forms part of a quote, I have used the spelling “Nikolas Lesses” throughout these reasons.
The applicant in the present proceeding sought to distinguish In the Estate of Lesses (deceased)[16] on the basis that, in that decision, there was uncertainty as to whether the testator intended to appoint joint executors because the relevant appointment clause was intended only as a draft and was to be modified by the deceased before execution. The applicant also submitted that the use of the plural “Trustees” throughout the deceased’s will provided evidence that it was the deceased’s intention that, if her husband predeceased her, Brenton would be appointed as co-executor and co-trustee with Australian Executor Trustees Limited.
[16] In the Estate of Lesses (deceased) [2013] SASC 23.
In my view, notwithstanding the submissions of the applicant, there remains an ambiguity in the appointment clause of the deceased’s will. On its face, it is unclear whether clause two appoints Brenton to act as executor and trustee alone, or together with Australian Executor Trustees Limited. Accordingly, it is necessary to consider the question of rectification.
Rule 65.03 of the Probate Rules 2004 relates to applications for rectification and provides:
Unless otherwise directed notice of the application must be given to every person whose interest might be adversely affected by the rectification applied for and any consents of such persons to the application must be exhibited to the affidavit in support of the application.
As earlier noted, the deceased’s children are the only persons provided for in her will and Brenton deposed that they had each agreed that Brenton should be appointed as co-executor and co-trustee of the deceased’s estate. In this circumstance, I am satisfied that it is appropriate to dispense with the requirement that Brenton’s siblings be formally served with notice of the application to rectify the deceased’s will.
The power of the Court to rectify a will is to be found in section 25AA(1) of the Wills Act 1936 (SA). That section provides:
If the Court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the will be rectified so as to give proper expression to those intentions.
I recently considered the general principles concerning rectification of a will in In the Estate of Nies (deceased).[17]Section 25AA of the Wills Act is a beneficial or remedial statutory provision. It replaced the common law previously applying in South Australia which permitted a court in some circumstances to omit words from a will included by mistake but did not enable wills to be rectified for mistake generally.[18] The section should be given a wider rather than narrower construction, to the extent that it is supported in the text of the legislation.[19]
[17] In the Estate of Nies (deceased) [2014] SASC 93, [26]-[40].
[18] Wesley v Wesley (1998) 71 SASR 1, 4.
[19] IW v The City of Perth (1997) 191 CLR 1, 12; see also, Police v Berzins (2011) 111 SASR 319, [12]-[17].
Having regard to the affidavit evidence of Brenton’s discussions with the deceased, as earlier summarised, I am satisfied that it was the deceased’s intention to appoint Brenton to act as co-executor and co-trustee together with Australian Executor Trustees Limited. Accordingly, it is appropriate to direct that the will be rectified to accord with the deceased’s intentions.
For the above reasons, I order that clause two of the deceased’s will of 12 June 1986 be rectified to add after the words “Brenton Mayes Widdison” the words “to be an Executor and Trustee of my Will with the said company”. I further order that the will, as amended, be admitted to probate.