In the Estate of EPHESER DECEASED

[2008] SASC 311

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of EPHESER DECEASED

[2008] SASC 311

Judgment of The Honourable Justice Gray

14 November 2008

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - UNCERTAINTY AND FAILURE TO DISPOSE - IN RESPECT OF OBJECT OF GIFT

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - GENERAL PRINCIPLES OF CONSTRUCTION - ASCERTAINMENT OF TESTATOR'S INTENTION AS EXPRESSED OR IMPLIED BY WORDS OF WILL

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - SUPPLYING WORDS

Application by executor for rectification of a will pursuant to section 25AA of the Wills Act 1936 (SA) – will formed part of a will kit and was completed without legal advice – will was incomplete on its face – will was executed and dated by deceased in presence of two witnesses, however the sections of document dealing with special gifts and residue were left blank – will sought to be rectified to nominate executor as sole beneficiary of estate – application opposed by next of kin – whether at common law executor law acquired both the legal and beneficial interest in residuary estate (“Dacre proposition”) – alternatively, whether material facts and evidence supported application for rectification – consideration of meaning and effect of will – consideration of deceased’s testamentary intentions.

Held: application allowed – Dacre proposition does not form part of common law of South Australia, or has been displaced by statute – deceased’s failure to nominate a beneficiary was the result of a misunderstanding or oversight – evidence established that deceased did not intend to die intestate – evidence established that deceased intended the executor to be the sole beneficiary of his estate – the meaning and effect of the will did not accurately reflect the deceased’s testamentary intentions – rectification is appropriate in these circumstances.

Administration and Probate Act 1919 (SA) s 46, s 47 and s 72b; The Probate Rules 2004 (SA) r 65.03; Wills Act 1936 (SA) s 8 and s 25AA; Wills Act 1997 (Vic) s 31; Wills, Probate and Administration Act 1898 (NSW) s 49, referred to.
Andrews v National Trustees Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1; Dacre v. Patrickson (1860) 1 Dr. & Sm., 182; Enohin v Wylie (1862) 10 HLC 1; Estate of Varley; Estate of Veldhuis [2007] SASC 420; Fell v Fell (1922) 31 CLR 268; In re Segelman, decd. [1996] Ch 171; Kirby-Smith v Parnell [1903] 1 Ch 483; Public Trustee of Queensland v Roberts [2004] QSC 199; Re Harrison; Turner v Hellard (1885) 30 Ch D 390; Re Hawkes [2005] VSC 93; Thomas v Strickland [2001] WASC 156; Wesley v Wesley (1998) 71 SASR 1; Wolyncevic v Cameron [2004] QSC 354, considered.

In the Estate of EPHESER DECEASED
[2008] SASC 311

Civil Trial

GRAY J.

1. This is an application for rectification of a will.

2. The deceased, Heinz Epheser, died on 1 April 2007, aged 75 years.  The deceased’s last known will was executed on 16 August 1999.  The will, from a will kit form, was prepared and executed without any legal advice.  The will, as executed, leaves those sections of the will dealing with special gifts and the disposition of the residue blank.  As a consequence, no beneficiaries are named in the will.

3. The sole executor of the estate, Karl Heinz Hackenbroich, was granted probate on 24 August 2007.  The net value of the deceased’s estate is $242,055.26.  On 9 January 2008, Mr Hackenbroich applied to rectify the will.  The terms of the rectification sought were to name Mr Hackenbroich as the sole beneficiary.  On 19 February 2008, the Registrar of Probates appointed Brian Leigh Carpenter, a solicitor, to represent the interests of the next of kin on the hearing of the application.

4. Pursuant to Rule 65.03 of the Probate Rules 2004, Mr Hackenbroich gave notice of the application for rectification to relatives of the deceased resident in Germany, as persons who might be adversely affected by the rectification. Mr Hackenbroich tendered in the proceedings evidence of the correspondence received from a number of those relatives.  Language translations were also tendered.

5. In these proceedings the Court is to inquire into the meaning of the will and the testamentary intentions of the deceased, and then determine whether the will accurately reflects those intentions and, if not, whether the will may be rectified and, if so, on what terms.[1]  As a general rule, the relevant date at which the intention of the testator is to be determined is the date when the will was executed.[2]

   [1]    In re Segelman, decd. [1996] Ch 171 at 180.

   [2]    Wesley v Wesley (1998) 71 SASR 1 at 5.

6. A court should exercise the power of rectification in respect of a will with great caution.[3]  This is so because of a strong presumption that where there is proof of due execution of a will, a testator knew and approved its contents.[4]  That presumption may be rebutted, but only on the clearest evidence.  Care must be taken to scrutinise the evidence brought in support.  The standard of proof relevant to this application is the balance of probabilities. 

   [3]    Wolyncevic v Cameron [2004] QSC 354 at [6] (Wilson J); Public Trustee of Queensland v Roberts [2004] QSC 199 at [6] (Wilson J).

   [4]    Wolyncevic v Cameron [2004] QSC 354 at [6] (Wilson J); Public Trustee of Queensland v Roberts [2004] QSC 199 at [6] (Wilson J).

7. Whether or not the next of kin who may be entitled to claim upon intestacy consent to the application for rectification is neither relevant nor determinative of the deceased’s intention for the purposes of section 25AA of the Wills Act.[5]

   [5]    Estate of Varley; Estate of Veldhuis [2007] SASC 420 at [12] and [20].

8. There is a presumption against intestacy or partial intestacy.[6]  This presumption stipulates that a court should adopt a construction of a will that does not leave a complete or partial intestacy.  A court should lean toward an interpretation which preserves rather than destroys a gift referred to in a will.[7]  The presumption is to be applied where a testator executes a will in an appropriate form, as it may be assumed that the testator did not intend to die intestate because of the fact of execution.[8]  The presumption is rebuttable because the overarching principle is always to construe a will in accordance with the wishes of the testator.[9]

   [6]    Fell v Fell (1922) 31 CLR 268, at 275-6; Kirby-Smith v Parnell [1903] 1 Ch 483, 489-490.

   [7]    Fell v Fell (1922) 31 CLR 268 at 276-277.

   [8]    Re Harrison; Turner v Hellard (1885) 30 Ch D 390 at 394 (Lord Esher MR).

   [9]    Thomas v Strickland [2001] WASC 156 at [44] (McKechnie J).

   The Will

9. As earlier observed, the will of the deceased formed part of a will kit form of a kind designed for persons to complete without the aid or advice of a solicitor.  The deceased purchased the kit at a post office in Port Lincoln and executed the will later the same day.  As might be expected in these circumstances, he did not engage the services of a solicitor in drafting or executing the will. 

10. The will was executed and dated by the deceased in the presence of two witnesses. There was compliance with the formalities required by section 8 of the Wills Act 1936 (SA).

11. The will is relevantly in the following terms:

    This is the beginning of my Will

    Last Will

    1.     This is the last Will of me, HEINZ EPHESER

    of 24 ALMOND GROVE GLANDORE

    Postcode    5037   in the State/Territory of SOUTH AUSTRALIA

    …

    By this Will, I revoke all previous Wills and testamentary acts and disposition.

    2.     Executor/Executrix

    I appoint KARL HEINZ HACKENBROICH

    of     PORT LINCOLN        16 STEPHENS ST

    Postcode    5606   in the State/Territory of SOUTH AUSTRALIA

    to be the Executor of my Will and Trustee of my estate, but if he/she does not

    outlive me or is unwilling to act or incapable of acting

    then I appoint ..............................................................................................................

    of..................................................................................................................................

    Postcode .................. in the State/Territory of ............................................................

    3.     Guardian of Minor Children

    If both I and the other natural parent of any of my minor children are deceased

    then I appoint  .............................................................................................................

    of .................................................................................................................................

    Postcode .................. in the State/Territory of ............................................................

    to be the Guardian of those minor children during their respective minorities.

    4.     Special Gifts

    I make the following special gifts (legacies, bequests and devises):

    [NOT COMPLETED]

    5.     Residuary/Residue of my Estate

    I give the residue of my estate to  [NOT COMPLETED]

    but if he/she/they predecease me then I give the residue of my estate to

    [NOT COMPLETED]

    6.     Trust for Minors

    Any beneficiary who is under the age of 18 years at the time of my death is to be

    Entitled to his/her share when he/she reaches the age of ........... years (the age of

    Inheritance).

    7.     If any of my children die either before me or after me but before reaching his or

    her age of inheritance and in either event leaving any children of their own then these children, upon reaching their age of inheritance, will take what their

    deceased parent would have taken.

    8.     Funeral Directions

    It is my wish to be buried/cremated and my remains placed at:

    ......................................................................................................................................

    ..................SCATTER TO THE SEA .........................................................................

    9.     Body Organ Donations (Leave blank or cross out at your option)

    It is my wish that my body organs be used for the medical benefit of other people as follows:

    Any / all body organs     YES / NO

    Only the body organs listed here:

    [NOT COMPLETED]

    If my Executor(s) is holding any part of my estate in trust for any beneficiary, my Executor(s) will have all the powers given to executors of trustees by the legislation in any of the Australian States or Territories (not just the State or Territory where my estate is being administered).

    …

12. It can be seen that the will appears on its face to be incomplete.  In particular, the sections of the documents dealing with special gifts and the residue have been left blank.

    The Application for Rectification

13. The application for rectification seeks to invoke the jurisdiction of the Court pursuant to section 25AA of the Wills Act 1936 (SA). This section relevantly provides:

    (1)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.

    (2)An application for an order under this section must not, except with the consent of the Court, be made more than six months after the grant of probate or letters of administration.

    Mr Hackenbroich sought the following orders on the application:

    -That the said will be rectified by inserting the following words in clause 5 immediately following the words “I give the residue of my estate to”:

    “Karl Heinz Hackenbroich.”.

    -That probate of the said will granted on 24 August 2007 be revoked and declared null and void but all acts lawfully done by the executor pursuant to this grant of probate remain valid notwithstanding this order of revocation.

    -That the executor does forthwith deliver up to the Probate Registry of this court the probate parchment for cancellation. 

    -That probate of the will as rectified by this order do thereafter issue to the executor.

    Findings of Fact

14. On the hearing of the application, extensive affidavit evidence was tendered and admitted without objection.[10]  Mr Hackenbroich provided supplementary oral evidence.  There was no challenge to the primary evidence.  The dispute between the parties relates to the inferences to be drawn from the evidence and whether the Court can be satisfied of circumstances sufficient to justify an order for rectification.  In the paragraphs that follow, I set out my findings of fact established by the affidavit and oral evidence.

    [10]   Affidavit of Brian Leigh Carpenter sworn 7 July 2008; Six Affidavits of Thomas Kruckemeyer affirmed 31 July 2008 verifying translations of correspondence from German to English; Affidavit of Karl Heinz Hackenbroich sworn 15 August 2008; Affidavit of Winfried Wolfgang Gleichmar sworn 15 August 2008; Affidavit of Beverley Ruth Gleichmar sworn 15 August 2008; Affidavit of Andrew Caiger sworn 19 August 2008; and Affidavit of Thomas Kruckemeyer affirmed 4 September 2008 verifying translation of Affidavit of Sylvia Nickel sworn 2 September 2008.

15. Mr Hackenbroich and the deceased met in Germany when aged about 18 years and 33 years respectively.  They became close friends during the time when they served in the German Navy.

16. Mr Hackenbroich migrated to Australia in the late 1960s and thereafter Mr Hackenbroich regularly communicated with the deceased by correspondence.  The deceased migrated to Australia in the mid 1970s.  They shared a flat for a period of about three years.  Mr Hackenbroich was then working at Moomba and the deceased at Adelaide.  They socialised at the German Club and shared outings.

17. Mr Hackenbroich moved to Port Lincoln in the late 1970s.  The deceased visited him in Port Lincoln on numerous occasions.  Mr Hackenbroich visited the deceased regularly in Adelaide.

18. In 1979, the deceased purchased a home unit at Glandore.  He gave keys to Mr Hackenbroich saying “my home is also your home.”  From 1984 until 2006, Mr Hackenbroich stayed with the deceased when visiting Adelaide.

19. Mr and Mrs Gleichmar met the deceased, through Mr Hackenbroich, during one of the deceased’s visits to Port Lincoln in the early 1980s.  They became friends.

20. In 1981, the deceased, through his employment, joined a superannuation fund.  In 1988 he joined a supplementary scheme and nominated a niece as a beneficiary.  In 1995 the deceased nominated Mr Hackenbroich as his primary superannuation beneficiary.

21. In 1996 the deceased retired from his employment and at that time he received his superannuation payments.

22. During August 1999, the deceased travelled to Port Lincoln to participate in a joint birthday celebration for Mr Hackenbroich and Mr Gleichmar.  He stayed with Mr Hackenbroich.

23. While in Port Lincoln on the morning of 16 August 1999, the deceased expressed a desire to make a will to Mr Hackenbroich.  The two men subsequently went to the Post Office, and the deceased purchased a will kit.

24. Later in the day on 16 August 1999, Mr Hackenbroich, Mr Hackenbroich’s wife Aida and the deceased went to the home of Mr and Mrs Gleichmar for lunch.

25. Before going to Mr and Mrs Gleichmar’s home, the deceased completed his personal details and his appointment of Mr Hackenbroich as his executor and trustee on the will kit form in the presence of Mr Hackenbroich.  The deceased left blank the section of the document dealing with special gifts and the gift of residue.  He then completed directions in respect of his funeral and the donation of organs.  The deceased then commented that he needed witnesses to attest to his signing of the will.  Mr Hackenbroich suggested that Mr and Mrs Gleichmar act as witnesses.

26. The deceased, Mr Hackenbroich and Mr Hackenbroich’s wife, arrived at the home of Mr and Mrs Gleichmar at about midday on 16 August 1999.  At some time during lunch, the deceased produced the will kit.  The deceased then requested Mr and Mrs Gleichmar to witness the execution of his will.  They agreed.  The deceased and Mr and Mrs Gleichmar then went into the house, leaving Mr and Mrs Hackenbroich outside.  The deceased signed and dated the will and Mr and Mrs Gleichmar witnessed it.  They returned to Mr and Mrs Hackenbroich outside shortly afterwards and one of them said words to the effect of: “well, that’s that done.”

27. During the year 2000, Mr Hackenbroich visited the deceased, found him to be ill and took him to hospital.  On this occasion the deceased said to Mr Hackenbroich words to the effect of: “Look, if I don’t come out of here you know where my will is, it’s all there for you.  …  We have talked about these things before and you know everything that is in there, whatever is there is yours.”

28. During the period from this time until his death, the deceased and Mr Hackenbroich continued personal visits and telephone contact.

29. On 23 July 2006, Mr Hackenbroich and Mr Gleichmar visited the deceased at his home for the deceased’s 75th birthday.  During a discussion in the evening, the topic of wills was addressed.  The deceased said to Mr Hackenbroich words to the effect of: “you bought the will with me, you know you are the one in there.  I don’t have any children.  It is relatively simple.  You are the one who is in my will.  …  I’ve got this will in my bedroom.”  The deceased also said to Mr Gleichmar words to the effect of: “because I have no relatives or none that I have anything to do with then everything will be for Karl [Hackenbroich] because he looks after me.  …  I have put all this in my will some time ago when you and Bev [Gleichmar] became signatories.”  On a few other occasions the deceased mentioned to Mr Gleichmar that if there was anything left after he died, he would leave it to Mr Hackenbroich.

30. During December 2006, the deceased told Mr Hackenbroich that he had problems with his health.  During a telephone conversation with Mr Hackenbroich on 25 December 2006, the deceased said words to the effect of: “Look, I don’t know whether I have much longer but I just want you to know that what I said on my birthday is still the case.”  During this conversation the deceased also spoke of his wish to be cremated and for his ashes to be scattered at sea.

31. The deceased died on 1 April 2007 while at his home in Glandore.  Mr Hackenbroich subsequently travelled from Port Lincoln to Adelaide to make arrangements for the funeral and to finalise the deceased’s affairs. While sorting through the deceased’s papers, Mr Hackenbroich located the will together with the Certificate of Title for the Glandore unit and a bank account passbook.

32. On 19 April 2007, Mr Hackenbroich and Mr Gleichmar scattered the ashes of the deceased at sea at Boston Bay near Port Lincoln, in accordance with the deceased’s wishes.

    The Parties Submissions

    The Primary Submission

33. The primary submission of Mr Hackenbroich was that at common law as executor he acquired both the legal and beneficial interest in the residuary estate.  Reliance was placed on the judgment of Isaacs J in Fell,[11] and in particular to the following observations:

    The instrument begins with the usual formula “This is the last will and testament” and ends with the words “and hereby appoint David Fell ... Donald Smith ... executors of this my will.”  It is trite law that “the bare nomination of an executor, without giving any legacy, or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved” (see In the Goods of Jordan [(1868) L.R. 1 P. & M., 555, at p.556]. That is so because the executor is the representative of the testator.  The nomination of an executor is at common law a request by the testator to represent him for certain purposes, including the payment of debts, and to do in relation to all his personal property what he can no longer do for himself. Wentworth on the Office of Executors, 14th ed., p. 10, says of the office of executor: - “So as the naming of A and B executors, is by implication a gift or donation unto them of all the goods and chattels, credits and personal estate of the testator, and the laying upon them an obligation to pay all his debts, and making them subject to every man's action for the same.” The jurisdiction of the Ecclesiastical Court to grant probate of a testamentary paper was founded on the fact that it affected personal property (In the Goods of Morton [(1864) 33 L.J. P., 87]. The rule irrespective of statute was clear, “The appointment of executors,” says Kindersley V.C. in Dacre v. Patrickson [(1860) 1 Dr. & Sm., 182, at pp. 184-185], “is a gift to them of the personal estate; and a Court of equity will not deprive them of the beneficial interest, unless it sees that a strong and violent presumption arises from the will, that the intention of the testator was that the executors should not virtute officii take the personalty; and if there is that violent presumption, then a Court of equity holds the executors trustees for the next-of-kin.”

    [Emphasis added]

    It would appear that Isaacs J has accepted that the principle emphasised above – the Dacre[12] proposition – formed part of the common law, with operation in Australia.

    [11]   Fell v Fell (1922) 31 CLR 268 at 276-277.

    [12]   Dacre v. Patrickson (1860) 1 Dr. & Sm., 182.

1. The next of kin submitted that the comments of Isaacs J were no more than obiter dicta, and in any event the position at common law as articulated had been displaced unequivocally by statute.  I will return to this submission shortly.  It was pointed out that Knox CJ positively rejected Isaacs J’s view of the common law.  Knox CJ considered that the following observations of Lord Cranworth in Enohin v Wylie,[13] were a correct statement of the common law:[14]

   In [Enohin v Wylie] Lord Cranworth says: “Executors take the property put under their control merely for the purpose of executing the testator’s directions concerning it, and so that, if there are no such directions, it must be distributed as an intestacy.”  Possibly these words were not used with regard to the position of an executor under English law, but they aptly describe that position.  I do not think the mere appointment of executors of itself warrants any implication as to intended dispositions of beneficial interests in the estate.  At most it shows that the testator intended that the persons named as executors should dispose of his real and personal estate in due course in the manner prescribed by the Wills Probate and Administration Act 1898.

   Higgins J, the third member of the Court, did not address this issue. 

   [13]   Enohin v Wylie (1862) 10 HLC 1 at 22.

   [14]   Fell v Fell (1922) 31 CLR 268 at 272.

2. The next of kin pointed out that Fell is generally cited as authority for the proposition that in construing a will over which there is doubt, the Court will lean against intestacy.[15]  When the Australian Courts have been faced with a failure by a testator to specify the object of a gift, the question appears to have been approached as one of rectification.  The next of kin submitted that Fell is not good authority for the Dacre proposition forming part of the Australian common law.

   [15]   See, e.g., Atherton, RF and Vines, P, Australian Succession Law Commentary and Materials, Butterworths 1996, p516 [12.7.2].

3. Mr Hackenbroich referred to the case of Andrews v National Trustees Executors and Agency Co of Australasia Ltd,[16] in which the High Court was concerned with the construction of a will where an executor was appointed but no beneficiaries were named.  Mr Hackenbroich drew attention to the following observation of Latham CJ:[17]

   The first question which arises upon this appeal is whether upon the proper construction of the will of the testator there is a gift of his real and personal estate to Ormond Andrews. It is contended that in the first place it is plain that the testator intended to dispose of all his real and personal estate. It is added that, as the only person mentioned in the will is the executor, a fair reading of the will leads to the conclusion that the executor is to be the person in whose favour the gift is to operate. It is easy to believe that it was the testator's intention to benefit Ormond Andrews, but the question is whether the words of the will carry out that intention.

   …

   It is obviously true that there is a distinction between the executor taking by reason of a direct gift, and an executor taking, not by any words of gift, but by reason of the fact that he has been appointed executor. But it cannot be said that the executor takes personalty by operation of law in the same manner as an heir at law took real estate by operation of law. The nomination of an executor in a will actually vested the personal estate in him – he thereby obtained the whole legal interest. The question whether he obtained the beneficial interest depended upon other considerations, though the presumption was “that the executors are intended to take the residue beneficially” (See authorities cited by Isaacs J. in Fell v. Fell). It is, however, the will which (where these principles of law apply) disposes of the personal property and effectively disposes of it so as to vest it in the executor, certainly so far as the legal interest is concerned, and, subject to the dispositions of the will, presumably also so far as the beneficial interest is concerned, and, subject to the dispositions of the will, presumably also so far as the beneficial interest is concerned.

   If a person dies leaving a will not disposing of the beneficial interest, in some part of his estate, and not appointing an executor, sec. 47 of the Administration and Probate Act deals with the case, because the testator has died intestate in respect of his “residuary estate”.

   [16]   Andrews v National Trustees Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1.

   [17]   Andrews v National Trustees Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1 at 6, 8-9 (footnotes omitted),

4. The other members of the Court did not refer to the observations of Isaacs J.  Dixon J addressed the issue in the following terms:[18]

   The question is whether the testamentary paper contains sufficient to show with reasonable certainty that the testator intended the appellant to take his real and personal property as devisee and legatee.

   The testator has not said in terms to whom he gives devises and bequeaths his real and personal property. His failure to do so may arise from no omission to inscribe on the paper words which he meant to write down. It may be due to his belief that what he wrote there sufficiently stated his intention. But that he failed to express his intention in actual words is none the less clear. If nevertheless what the instrument does contain implies that the appellant is the object of his disposition, the gift will be effectual. But the implication must be certain. There must be more than a probable inference as to the desires of the man. His meaning must be communicated by what is expressed in the document. The will must contain what Lord Eldon described as “an implication so probable, that the mind could not resist it” (Wykham v. Wykham at p. 376). There is, of course, a strong presumption against intestacy which will strengthen such indications of intention as may exist. But in such a case as the present, the presumption against intestacy gives little help in excluding the possibility that the testator accidentally omitted to write a name where he intended to do it, an hypothesis which would prove fatal to the implication. Indeed it has been said that the presumption may be used as suggesting an omission, an omission which may be supplied from positive indications discoverable within the will (see, per Cussen J., In the Will of Barnett; Bradbury v. Barnett, at p. 40).

   [18]   Andrews v National Trustees Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1 at 13-14 (footnotes omitted).

5. It is relevant to note that in Fell, the Dacre proposition had, in any event, been displaced by the provisions of section 49 of the Wills, Probate and Administration Act 1898 (NSW), which then provided:

   (1)Subject as aforesaid and subject to the provisions of the next four succeeding sections, the administrator on intestacy, or in case of partial intestacy the executor or administrator with the will annexed, as the case may be, shall hold the real and personal estate, vesting as aforesaid, as to which any person dies intestate, in trust as to the personal estate for the persons who would be entitled thereto under the Statute of Distributions, and as to the real estate in trust for and as if the same had been devised to such persons as tenants in common.

   (2)No executor as such shall be entitled to take beneficially any residue not expressly disposed of by the will of the testator, unless it appear by such will that he is intended so to take.

   (3)Nothing herein contained shall affect or prejudice any right to which any executor, if this Act had not been passed, would have been entitled in cases where there is not any person who would be entitled to the testator’s estate in respect of any residue not expressly disposed of.

6. The next of kin submitted that although differently worded, section 46 of the Administration and Probate Act, had the same effect as section 49(1) of the New South Wales legislation. Pursuant to section 46, after the death of the owner, land becomes vested in the executor as if it were a chattel real:

   (1)Land will, after the death of the owner, and subject to any mortgage, trust or equity affecting it—

   (a)     if there is only one executor or administrator, pass to the executor or administrator and become vested in the executor or administrator as if it were a chattel real; or

   (b)     if there is more than one executor or administrator, pass to the executors or administrators and become vested jointly in the executors or administrators as if it were a chattel real.

   (2)Such executor or administrator shall hold and deal with such land, and the same and the proceeds thereof, if sold, shall for all purposes be assets in his hands, and disposable and distributable for the payment of the debts and liabilities of the owner and under his will or intestacy as if such land had been a chattel real.

   (3)No widow shall be entitled to her dower, nor husband to his curtesy, out of any lands passing under the provisions of this section.

   (4)This section shall not affect the order in which, as between persons claiming under the owner, the assets of his estate are liable for the payment of debts or legacies, nor shall this section be deemed to impose any charge on land for the payment of legacies.

   Attention was then drawn to section 47 of the Administration and Probate Act, which relevantly provides:

   The Court may from time to time, on the application of the executor or administrator, or any person beneficially interested, and after such previous notice as is prescribed by the rules and upon such inquiry as it thinks fit, direct the course of proceedings which shall be taken in regard to—

   (a)the time and mode of sale of any lands passing under section 46 and devolving under an intestacy:

   (b)     the letting and management thereof until sale:

   (c)the application for maintenance or advancement or otherwise of shares or interests of infants:

   (d)the expediency and mode of effecting a partition if applied for; and generally in regard to the administration of the property for the greatest advantage of all persons interested.

   It was submitted that when read together, sections 46 and 47 expressly contemplated the appointment of an executor and the coexistent devolution of land under an intestacy.

7. The next of kin further submitted that section 72B of the Administration and Probate Act contributed to the conclusion that even if the Dacre proposition formed part of the common law of Australia, it had been displaced by statute. Section 72B defines “intestate” as follows:

   “intestate” means a person who –

   (a)     does not leave a will; or

   (b)leaves a will but does not dispose effectively by the will of the whole or part of his estate.

   This section contemplates the existence of an intestate estate where an intestate leaves a will being “that part of his estate that is not effectively disposed of by the will” and provides for a distribution on intestacy.  The section contemplates a whole or partial intestacy in circumstances where the executor has, or at least may have, been appointed.

8. In my view, the Dacre proposition does not form and has not formed part of the common law of South Australia.  If this conclusion is incorrect or open to doubt, I consider that the Dacre proposition has been displaced by statute.  I accept the submissions advanced in this respect by the next of kin.

   The Secondary Submission

9. It was the further submission of Mr Hackenbroich that if the primary submission was rejected, the evidence before the Court in any event made out a case for rectification.  It was said that the Court should determine that the will failed to accurately reflect the intention of the deceased, and that in the circumstances it should be rectified in the earlier referred to terms sought by Mr Hackenbroich.

10. Mr Hackenbroich drew attention to the decision of Habersberger J in Re Hawkes.[19]  It was submitted that the circumstances surrounding the instant case bore material similarity with that decision.  In Re Hawkes, Habersberger J granted an application for rectification of a will which failed to nominate any beneficiary. The application was made under section 31(1) of the Wills Act 1997 (Vic), which provides:

    The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator’s intentions because-

    (a)     a clerical error was made; or

    (b)     the will does not give effect to the testator’s instructions.

    ….

    It is to be noted that the terms of this provision is not as wide as section 25AA of the South Australian Wills Act.

    [19]   Re Hawkes [2005] VSC 93.

11. The will, prepared by an elderly lay friend of the deceased, appointed the applicant, Mrs Liddell as executor and trustee of the will.  It did not go on to make any disposition of the deceased’s estate, as no beneficiary of the estate was named in the will.  The evidence of the applicant as to the intention of the deceased was limited to one conversation in which he expressed the intention that she should have his home after he died.  That conversation was unrelated to the occasion upon which the will in issue was executed. 

12. A cousin and close friend of the deceased had volunteered to prepare the will for him.  The other facts relevant to the execution of the will and the deceased’s intentions were regarded by Habersberger J as follows:[20]

    An affidavit was sworn by Dorothy May Kuhn, a cousin and close friend of Mr Hawkes.  She said that she was a frequent visitor to the house. She was always driven there by her niece, Anne Lydia Flynn. As a result of discussions between the deceased and Mrs Kuhn in late March or early April 1998, she volunteered to prepare a will for Mr Hawkes to sign because he did not want to spend any money on a solicitor. Mrs Kuhn deposed that in these discussions the deceased told her he wanted his sister, Mrs Liddell, “to get everything”.

    On the day in question Mrs Kuhn hand wrote out a will, apparently copying from her own will, leaving spaces for Mr Hawkes to fill in his own name and address. Mrs Kuhn deposed that prior to starting to draw up the Will she asked Mr Hawkes to whom he wanted to leave his money and he nominated the plaintiff. Despite this, she left a blank space in paragraph 2 for the insertion of a name. After the Will was drawn up she again asked him “who he wanted to get his property” and he again nominated the plaintiff. Mrs Kuhn then filled in Mrs Liddell’s name in the space she had left in paragraph 2 of the Will. Mrs Kuhn swore that there was no intention to insert any words after the words “subject to such payments” in paragraph 3. She thought that what she had written would be enough once the name was inserted in paragraph 2.

    Having been told by Mrs Kuhn that the will she had written left everything to Mrs Liddell, the deceased read it, wrote his own name and address in it and signed it. Mrs Kuhn and Ms Flynn witnessed the Will. Mrs Kuhn said that Mrs Liddell was in and out of the room while this was occurring.

    In her affidavit, Ms Flynn stated that she heard the deceased say that he wanted to leave everything to Mrs Liddell, once before the Will was signed and again on the day when the Will was signed.

    [20]   Re Hawkes [2005] VSC 93 at [6]-[9].

13. Habersberger J held that the material before the Court established that the testator’s intention was not given effect to, as no gift of the residue of the estate was made.  It was, however, his clear intention at the time he made his will to leave his estate to the applicant, and through error, it was thought that it was sufficient to name the applicant only as executor and trustee.  It was considered an appropriate case to grant the application for rectification.

14. Mr Hackenbroich submitted that a relevant consideration in the present proceeding was that none of the relatives of the deceased suggested that the deceased intended to benefit them under his will.  As a consequence, there is no evidence of any contrary intention on behalf of the deceased.

15. The next of kin submitted that the relevant date for determining the deceased’s intention was the date of the execution of the will.  It was accepted that evidence could be led from persons to whom the testator had spoken either before or after the execution of the will about his testamentary intention.  However, it was emphasised that particular care should be taken when assessing that evidence in circumstances where the evidence may be tainted by self-interest.  It was further contended that generally speaking, in the absence of evidence as to the terms and instructions of the drafting of the will, it is not possible to determine testamentary intention.

16. The next of kin submitted that although the standard of proof is on the balance of probabilities, a Court must feel an actual persuasion of the inferences to be drawn.  It was contended that the affidavit of Mrs Gleichmar was not probative on the question of the deceased’s intentions.  It was said that the affidavit of Mr Gleichmar was unhelpful as it did not provide evidence of the intention of the deceased at the date of the making of the will.  Further, it was argued that as the affidavit was in the form of direct speech it lacked weight.  The effect of the submissions were that the evidence before the Court did not provide a sufficient foundation to provide an actual persuasion of the intention of the deceased.

    The Deceased’s Intentions

17. The efforts made by the deceased in drafting and executing a will with the necessary formality establishes that the deceased did not intend that his estate would be distributed under an intestacy.  The evidence establishes that the deceased recalled that ceremony more than seven years later.  The deceased realised the importance of the document that he was signing as following attestation he retained the will with his most important papers – the certificate of title of his residence and his bank passbook.

18. Notwithstanding the above matters, on its face, the meaning and effect of the will as to the distribution of the estate is simply that the applicant is appointed executor of the deceased’s estate.  In my view, the meaning and effect of the will does not accurately reflect the intentions of the deceased.  In drafting his will the deceased apparently intended to benefit someone.  As no beneficiary was nominated, it is necessary and appropriate to have regard to evidence of the deceased’s intention as to his intended beneficiary or beneficiaries at the time the will was executed.[21]

    [21]   Wesley v Wesley (1998) 71 SASR 1 at 5 and 7-8.

19. The evidence of Mr Hackenbroich and Mr and Mrs Gleichmar concerning the execution of the will is relevant and supports Mr Hackenbroich’s case that the deceased advised him that he wished and intended that Mr Hackenbroich, alone, should benefit from his estate. 

20. The nature of the relationship between Mr Hackenbroich and the deceased does not, itself, provide evidence of the requisite testamentary intention.  It does, however, provide the context in which one might reasonably expect the deceased to possess a desire to provide some financial benefit to Mr Hackenbroich.

21. Mr Hackenbroich deposed to the fact of his personal relationship with the deceased which began in Germany, when they were aged 18 and 33 years respectively, and continued until the moment of the deceased’s death on 1 April 2007.

22. The evidence of Mr Hackenbroich and Mr and Mrs Gleichmar suggests that the nature of the relationship between Mr Hackenbroich and the deceased was very close and, ostensibly, familial.  Mr Hackenbroich was treated with great affection by the deceased, as if Mr Hackenbroich was his son.  Mr Hackenbroich provided a substantial care and support for the deceased as he grew older.  The deceased did not marry and had no children.  Mr Hackenbroich fulfilled the role that an aging person’s child might.  The nature of the relationship is also evidenced by the fact that Mr Hackenbroich was given directions about the burial of the deceased and that he was nominated by the deceased as his sole executor.  It is in this context that the evidence of the deceased’s intention should be weighed.

1. The deceased’s desire to provide financial benefit to Mr Hackenbroich is evidenced in the deceased’s decision in 1995 to nominate him as the beneficiary of his superannuation policy.  The financial significance of that decision permits a strong inference to be drawn that the deceased intended to benefit the applicant more generally, and, specifically, as the beneficiary under the deceased’s will.

2. Further, prior to the execution of the will, the deceased said that his “home was also [Mr Hackenbroich’s] home”.  The deceased had nominated Mr Hackenbroich as the beneficiary of a more valuable interest in his primary superannuation policy.

3. The same desire to benefit is seen in the intention expressed by the deceased to Mr Hackenbroich to leave his unit and savings to Mr Hackenbroich in the event that he did not survive the cancer with which he was diagnosed in 2006.   The deceased spoke about leaving his property to Mr Hackenbroich on several occasions.  One of those occasions occurred on 23 July 2006, when the deceased, on his 75th birthday, spoke about leaving everything to Mr Hackenbroich and said that this was what he had put in his will. 

4. The deceased’s repeated expressions of his intention that Mr Hackenbroich was to be the sole beneficiary of his estate, subsequent to the execution of the will is relevant, probative and admissible.   The evidence that the deceased intended to leave his entire estate to the applicant is to be viewed in the totality of the circumstances, which includes the deceased’s stated belief to Mr Gleichmar that the will was to have precisely that effect.

   Is Rectification Appropriate?

5. The circumstances surrounding the execution of the will in the present case show that the failure to nominate a beneficiary was the result of a misunderstanding, simple oversight or error on the part of the deceased.  The failure may have arisen from the deceased’s limited understanding of the English language.

6. The evidence before the Court establishes that the deceased did not intend his estate to result in an intestacy.  The will does not accurately reflect the testamentary intentions of the deceased.  The evidence establishes that, at the time the will was executed, the deceased intended Mr Hackenbroich to be the sole beneficiary of his estate.

   Conclusion

7. I allow the application for rectification and make orders as sought.