In the Estate of David Liu Koon Wong; In the Estate of Lana Mew Tham

[2024] ACTSC 332

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of David Liu Koon Wong; In the Estate of Lana Mew Tham

Citation: 

[2024] ACTSC 332

Hearing Date: 

18 October 2024

Decision Date: 

25 October 2024

Before:

Baker J

Decision: 

See [21]

Catchwords: 

WILLS, PROBATE & ADMINISRATION – Rectification – testator’s intention – s 12A(2) of the Wills Act 1968 (ACT) – Whether rectification of wills ought to be made so as to give effect to the testator’s probable intention – gifts provided for in the Estate added up to 104% - clear arithmetical error – Application for rectification granted.

Legislation Cited: 

Wills Act 1968 (ACT), s 12A(2)

Cases Cited: 

In the Estate of Karina June Tyson [2023] ACTSC 353

In the Estate of Rummer [2017] ACTSC 277

Parties: 

Stephen Wong ( Applicant)

Representation: 

Counsel

S Leslie ( Applicant)

Solicitors

Baker Deane & Nutt Lawyers ( Applicant)

File Number:

PRO 739 of 2023;

PRO 740 of 2023

BAKER J:      

EDITED EX TEMPORE JUDGMENT

Outline

1․The applicant, Mr Stephen Wong, seeks rectification of the will of the late David Liu Koon Wong and the will of the late Lana Mew Tham (the Wills), pursuant to s 12A(2)(a)(ii) of the Wills Act 1968 (ACT).

2․Mr David Wong and Mrs Lana Mew Tham were spouses. The applicant (a nephew of the testators) is the administrator of the estates of each of the testators. The Wills of the spouses largely mirror each other.

3․Rectification is sought on the basis that the percentages of the Estates to be provided to each beneficiary under each of the Wills totals 104%.

4․It is reasonably clear that the arithmetical error arose from the clause relating to the particular distribution to the Amitabha Buddhist Association of Queensland (the Association). The introduction of that clause gives gifts 26% of the estate to the Association. Another part of that clause gifts 22% of the estate to the Association. If the part of the clause which gifts 22% of the estate is preferred, the other gifts provided for in the Will would then add up to a total of 100% of the estate.

5․The effect of the rectification sought is to reduce the distribution to the Association to 22% of the estate. The Association was the proper contradictor. It has consented to the reduced distribution.

6․For the reasons outlined below, I am satisfied that it is appropriate to make the rectification sought in each will.

Background

7․Mr David Wong and Mrs Tham each died between 22 September 2021 and 30 November 2021. The exact date of their deaths was unable to be ascertained.

8․Mr Wong’s Will provided that, were his wife not to survive him for a period of 30 days, his estate would be gifted to the executor on trust to be divided according to the terms of the will. Mr Kai Yau Lee was appointed executor and trustee under the will. Mrs Tham’s Will provided that, were her husband not to survive her for a period of 30 days, the estate also would be appointed to Mr Lee as her executor and trustee.

9․On 1 March 2024, Mossop J heard an application from Mr Stephen Wong, a nephew of the testators, seeking to be granted letters of administration with respect to the will of Mr Wong and the will of Mrs Tham. Evidence was placed before Mossop J that indicated that Mr Lee, the named executor and trustee under both wills, was “unwilling to have any role in relation to the will”. In these circumstances, Mossop J ordered that Mr Stephen Wong be granted letters of administration of the estate of each of the testators.

10․The estimated gross value of the estate of Mr David Wong in the Australian Capital Territory is $630,050.21. The estimated gross value of the estate of Ms Lana Mew Tham in the Australian Capital Territory is $1,731,098.19.

11․The clauses of the Wills relevant to the applications in these proceedings are as follows:

THE residue of my estate is to be divided as follows:

…

(iii) Twenty Six percent (26%) to the Amithaba Buddhist Association of Queensland, 11 Toona Place, Calamvale Qld 4116 for the following specific purposes:

·     Twelve percent (12%) to assist monks and nuns in training at the Association monastery in Toowomba, Qld.

·     Ten percent (10%) to assist in the production and dissemination of cd’s, videos and audio tapes associated with the teachings of the Buddha i.e. the Dharma. (emphasis added)

12․There was no extrinsic evidence before the Court revealing the intention of the testators at the time of making the wills. I was informed that enquiries have been made with the firm that has taken over the wills practice from the drafter of the wills who is no longer in practice. The firm has confirmed that they do not hold any relevant documents for either Estate.

Legislation and Principles

13․Section 12A(2) of the Wills Act 1968 (ACT) provides:

12ARectification

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

…

14․The relevant principles relating to rectification under s 12A(2) of the Wills Act are summarised in my decision in In the Estate of Karina June Tyson [2023] ACTSC 353 at [30] - [33], as follows:

Rectification may be ordered under s 12A(2) of the Wills Act 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.

The exercise that is performed under s 12A(2) is “premised entirely on a hypothetical case”: In the Estate of Rummer at [102]. 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.

The Court retains a broad judicial discretion under s 12A(2) to determine what is in the interests of justice, having regard to the circumstances of the case before it: In the Estate of Rummer at [111].

Bearing in mind that s 12A(2) is beneficial or remedial legislation, the provision 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.

Determination

15․As outlined above, there is a clear arithmetic error in each of the Wills. Unless those errors are corrected, the Wills will fail. In these circumstances, it is clear that, if the situation of the mathematical error was known to the testators at the time of making the wills, and the testators fully appreciated the circumstances then they would have provided instructions to correct those errors.

16․Although there is no extrinsic evidence concerning the testators’ intentions, the Wills contain additional, specific conditions, concerning how the bequest to the Association was to be used. Specifically, the Wills provide that:

(a)12% of the residue of each estate is to be allocated to assist monks and nuns in training at the Association monastery; and

(b)10% is to be allocated to assist in the production and dissemination of CD’s videos and audio tapes associated with the teachings of the Buddha. 

17․These clauses are a strong indicator that the testators each intended to provide the Association with 22 per cent of their Estates and not 26 per cent, as stated at the commencement of the clause. Rectification of the Wills in the terms proposed by the applicant will resolve the arithmetic error, as the combined total of the gifts will then amount to 100% of each estate.

18․It may also be observed that the other bequests are in small amounts (some as low as 1%). An adjustment of any of these smaller gifts would not be capable of resolving the arithmetic error.

19․As has been already noted, the Association consents to the reduced distribution of 22% proposed by the applicant.

20․In these circumstances, I am satisfied that it is appropriate to make the rectifications sought by the applicant with respect to each will. These orders could arguably have been made under s 12A(1) of the Wills Act, on the basis that an inference as to the testators’ actual intentions could be inferred from the terms of the Wills. However, in circumstances where there was no direct evidence concerning the testators’ actual intentions, for more abundant caution, the order will be made under s 12A(2)(a)(ii) of the Wills Act, as sought by the applicants.

Orders

21․For those reasons the following orders are made:

(1)That the Will of the Late David Liu Koon Wong also known as David Wong be rectified to the effect that 22% of the Deceased’s Estate be distributed to the Amitabha Buddhist Association of Queensland, based on the breakdown contained within the Will, as follows:

(a)Twelve percent (12%) to assist monks and nuns in training at the Association monastery in Toowoomba, QLD; and

(b)Ten percent (10%) to assist in the production and dissemination of CD’s, videos and audio tapes associated with the teachings of the Buddha i.e. the Dharma.

(2)That the Will of the Late Lana Mew Tham be rectified to the effect that 22% of the Deceased’s Estate be distributed to the Amitabha Buddhist Association of Queensland, based on the breakdown contained within the Will, as follows:

(c)Twelve percent (12%) to assist monks and nuns in training at the Association monastery in Toowoomba, QLD; and

(d)Ten percent (10%) to assist in the production and dissemination of CD’s, videos and audio tapes associated with the teachings of the Buddha i.e. the Dharma.

I certify that the preceding twenty one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 14 November 2024