IN the ESTATE of FREDERICK MURRAY HILDER DECEASED No. SCPRB-97-188 Judgment No. S6895
[1998] SASC 6895
•1 October 1998
IN THE ESTATE OF FREDERICK MURRAY HILDER DECEASED
[1998] SASC 6895
Testamentary Causes Jurisdiction
Debelle J
By motion, Craig Anthony Martin and Robert Critchley Porter apply for a grant of probate of the will of Frederick Murray Hilder deceased (“the testator”) dated 10 August 1982. The applicants say that they are the executors of the will. Yesterday, I granted the application for reasons to be published. These are the reasons.
The difficulties with this will stem from two codicils made in 1996 and 1997 which are expressed to be codicils to a will made by the testator in 1976. One question is whether the 1976 will has been revived by the codicils. Before dealing with the questions of law, it is desirable to set out the family circumstances of the testator as well as the events which led to the making of these two codicils.
The Testator’s Family
The testator died on 25 August 1997 aged 75 years. He died a widower without children. His deceased wife was Veronica Sheila Hilder. She had died on 12 April 1997. The testator had one sibling, a sister, Hazel Jean Taylor, who pre-deceased him. She had died on 6 September 1981. Mrs Taylor had three children, all of whom survived the testator. They are Peter John Taylor, Kathryn Jane Taylor and Debra Anne Taylor. The testator’s nieces have both married. They are now called Kathryn Jane Mitchell and Debra Anne Poulton. I will refer to them by their married names. The testator’s nephew and nieces are all over the age of 18 years. They are the only persons who would be entitled to share in the testator’s estate in the event that he died intestate.
Mr R C Porter has acted as the solicitor for the testator and his wife for more than 20 years. Mr Porter drafted all of the wills and codicils the subject of these proceedings.
The 1976 Will
On 30 July 1976 the testator executed a will (“the 1976 will”). I summarise the clauses in the will.
By clause 2 the testator appointed his wife to be the sole executor and trustee of the will and, if she did not survive him by one month, the testator appointed Mr E R Emery the sole executor and trustee. Mr Emery was the testator’s accountant.
By clause 3 the testator gave his wife all his debentures, deposit stock, bank accounts and any other assets jointly held by himself and his wife.
By clause 4 the testator gave his wife all his interest in his house property situated at 10 Avalon Road, Marion.
By clause 5 the testator gave his sister his house property at Quorn.
By clause 6 the testator gave his Jaguar motor car to his wife and, if she did not survive him by one month, the Jaguar motor car was to pass to his nephew Peter Taylor.
By clause 7 the testator bequeathed his “A” Model Ford to his nephew Peter Taylor.
By clause 8 the testator gave a legacy of $20,000 to his wife.
By clause 9 the testator bequeathed his residuary estate to his trustee to pay all debts and thereafter to divide the residue into five equal parts to be held on trust to pay -
(i) two-fifths to Peter Taylor upon his attaining the age of 25 years;
(ii) one-fifth to his sister Hazel Taylor for her sole use; and
(iii) one-fifth each to the two nieces upon their attaining the age of
25 years.
The will provided that, if any of those shares in the residuary estate should fail, the failed share should be added proportionately to the other shares. On 1 February 1978 the testator executed a codicil to the 1976 will. The codicil revoked clause 5 of the will and substituted in its place a new clause 5 by which he bequeathed to his sister any moneys which she might owe him at his death. By the codicil, the testator confirmed the 1976 will in all other respects.
The 1982 Will
On 10 August 1982 the testator executed a new will. This will was drawn some 10 months after his sister Hazel had died and it is reasonable to infer that her death was one of the testator’s reasons for making a new will. It will be noticed that the 1982 will deleted any bequest to her.
By the 1982 will the deceased revoked all former wills and testamentary dispositions made by him. The 1976 will and the codicil thereto were, therefore, revoked. I summarise the provisions in the 1982 will.
The will contained the same provision concerning executors as the 1976 will. The testator appointed his wife as his sole executor and, if she failed to survive him by one month, he appointed Mr Emery as sole executor.
By clause 3 the testator made three gifts to his wife, namely,
(1) all his estate and interest in any debentures, deposit stock, bank
accounts or any other assets held jointly by himself and his wife
(2) all his estate and interest in the house property situated at 10 Avalon
Road, Marion
(3) a legacy of $20,000.
These were the same gifts as had been made by clauses 3, 4 and 8 of the 1976 will.
By clause 4 the testator gave his “A” Model Ford to his nephew Peter Taylor. This was the same gift as had been made in clause 7 of the 1976 will.
By clause 5 the testator gave his wife all his motor cars other than the “A” Model Ford for life and, upon her death, the motor cars were to be divided equally between the testator’s nieces.
By clause 6 the testator gave his residuary estate to his trustee to pay his debts and thereafter divide the residue into four equal parts and to hold the same upon trust
(i) to pay one-quarter to his nephew Peter if he survived the testator and
attained the age of 40 years;
(ii) to pay one-quarter to his nephew Peter if he survived the testator and
attained the age of 30 years;
(iii) to pay one-quarter to his niece Kathryn Mitchell if she survived the
testator and attained the age of 35 years; and
(iv) to pay one-quarter to his niece Debra Poulton if she survived the
testator and attained the age of 35 years.
As in the case of the 1976 will, there is a proviso that, in the lapse of any of the above shares, the failed share is to be added proportionately to the other shares.
The 1982 will differed from the 1976 will in the following respects:
1...... The testator’s sister Hazel Jean Taylor having died, the testator has not made any gift or bequest to her.
The gift of the Jaguar to Peter Taylor on the death of the testator’s wife was deleted. Instead, the testator gave his wife all his motor cars save for his 1928 “A” Model Ford and, on her death, the motor cars were to be divided equally between his two nieces, Kathryn Mitchell and Debra Poulton.
The residue of the estate was divided in different shares. Although Peter Taylor continued to receive a substantial portion of the residue, the testator’s nieces were each to receive a slightly larger share, that is to say, a one-quarter share each instead of a one-fifth share each as provided in the 1976 will.
In all other respects the 1982 will was the same as the 1976 will. Given that all of the motor cars other than the 1928 “A” Model Ford were to pass to the nieces on the death of the testator’s wife and did not fall into residue as they did under the 1976 will, the 1982 will made a more equitable distribution among the testator’s nephew and nieces.
Unfortunately, the 1976 will and its codicil were not destroyed upon the 1982 will being made. The 1976 will and its codicil were held by R J C Evans & Co Pty Ltd, the accountants for the testator. The 1982 will was held by Mr Porter.
The 1996 Codicil
The testator did not execute any further testamentary instruments until some 14 years later in 1996. On 23 August 1996 the testator and his wife met Mr Porter at the office of R J C Evans & Co. Also present were Mr Martin, an employee of R J C Evans & Co, Peter Taylor and Kathryn Mitchell. The purpose of the meeting was to discuss whether the testator and his wife should execute an enduring power of attorney. Before the meeting, there had been no hint or suggestion that the testator wished to change his will. At the meeting it was decided that Mr Porter and Mr Martin should be appointed attorneys for the testator and his wife. The discussion then turned as to who should be appointed as executor of the testator’s will. Mr Martin produced the 1976 will and its codicil from its deed packet held by R J C Evans & Co. Mr Porter examined the will and codicil and informed the testator that he had appointed his wife to be the sole executrix and trustee with a proviso that, if she did not survive him for one month, Mr E R Emery was to be appointed in her stead. The testator said that he wanted the same persons as executors of his will as were to be appointed attorneys under the enduring power of attorney. It was decided to give effect to the testator’s wishes. At this meeting no reference was made to the other terms of the will. Mr Porter did not tell the deceased that he was reading from the will which he had made in 1976 and no reference was made to its date. The testator did not read either the 1976 will or its codicil when he gave the instructions to change the executors.
Mr Porter retained both the 1976 will and its codicil. He prepared a second codicil to the will. It was expressed in these terms:
“1. I DIRECT that Clause 2 of my said Will be wholly deleted and
that the following Clause 2 be inserted in its place:-
“2. I APPOINT my wife VERONICA SHEILA HILDER and
......... CRAIG ANTHONY MARTIN of 116 Greenhill Road,
Unley in the said State, Chartered Accountant to be the executors and trustees of this my Will PROVIDED THAT if either my wife VERONICA SHEILA HILDER or the said CRAIG ANTHONY MARTIN shall predecease me or shall be unwilling or unable to so act or shall die prior to the finalisation of my estate then and in any such event I APPOINT ROBERT CRITCHLEY PORTER of 185 Victoria Square, Adelaide in the said State Solicitor to be one of the executors and trustees of this my Will in her or his place.
2. In all other respects I confirm my Will dated the 30th day of
July 1976 and the First Codicil to it dated the 1st day of
February 1978.”
The attestation clause also states that the codicil was the second codicil to the will dated 30 July 1996 and the first codicil dated 1 February 1978. The wrong date for the year is obviously a typographical slip and should be ignored. At a subsequent meeting at the office of R J C Evans & Co on 3 September 1996, the testator executed the codicil, which I shall call “the 1996 codicil”. Upon execution of the codicil, Mr Porter gave the 1976 will, the first codicil and the 1996 codicil to R J C Evans & Co to place the documents into the deed packet held by R J C Evans & Co.
The 1997 Codicil
After his wife had died on 12 April 1997, the testator arranged for a meeting to be held on 30 May 1997 at the offices of R J C Evans & Co to discuss the administration of her estate. The testator also wished to give instructions in relation to an enduring power of guardianship and a new enduring power of attorney. The testator had been ill for a number of years and in the previous 12 months had been admitted to hospital on a number of occasions for attention in relation to a heart condition. No doubt that is why he wished to provide for the proper administration of his affairs. Also present at this meeting were the testator’s nephew and niece, Peter Taylor and Kathryn Mitchell, Mr Martin and Mr Porter.
In the course of the meeting on 30 May 1997, the testator asked to whom he had left his “A” Model Ford. Mr Martin obtained the testator’s deed packet and handed to Mr Porter the 1976 will and the two codicils to it. Mr Porter read the documents and informed the testator that he had left his “A” Model Ford to his nephew, Peter Taylor. The testator then said that he owned three “A” Model Fords and that the will should be clarified to refer to his 1928 Phaeton Model “A” Ford. Mr Porter did not tell the testator that he was reading from a will dated 1976 or that he had referred to the two codicils. He did not state that he was reading from clause 7 of the 1976 will. The testator instructed Mr Porter to prepare a further codicil to state that Peter Taylor was to receive the “Phaeton”.
At this meeting the testator also asked who was to receive his home upon his death. Mr Porter informed him that the house was to pass into the residue of the estate, so that his nephew Peter Taylor would receive two undivided fourth parts and his two nieces would each receive one undivided fourth part. The testator did not ask any further questions. He did not read either the 1976 will or the two codicils.
Mr Porter retained the 1976 will and the two codicils. He returned to his office and prepared the third codicil. It was expressed in these terms:
“1..... I DIRECT that Clause 7 of my Will dated the 30th day of July 1976 be deleted and that the following Clause 7 be inserted in its place:-
“7..... I GIVE MY 1928 Pheaton Model A Ford to my said nephew PETER JOHN TAYLOR for his sole use and benefit absolutely.”
2.IN all other respects I CONFIRM my Will dated the 30th day of July 1976 and the First Codicil dated the 1st day of February 1978 to my said Will and the Second Codicil dated the 3rd day of September 1996 to my said Will.”
As with the second codicil, the attestation clause referred to the 1976 will and the first and second codicils, in each case naming the date of each instrument. However, a typographical error dates the will as 30 July 1996. The error should be ignored. It is plainly a slip. This third codicil was executed by the testator on 3 June 1997. I will hereafter refer to it as “the 1997 codicil”. It was placed in the same deed packet as the 1976 will, the first codicil and the 1996 codicil. The testator did not read any of those three documents before he executed the codicil dated 2nd June. At the same time he executed the revocation of the enduring power of attorney dated 3 September 1996, two copies of a new power of attorney appointing Peter Taylor and Kathryn Martin his attorneys and two copies of an enduring power of guardianship appointing Peter Taylor and Kathryn Mitchell as his guardians.
After the testator died on 25 August 1997, the 1982 will was located in a deed packet at the firm of Andersons solicitors, where Mr Porter is now a partner. The 1976 will and the three codicils were produced from the offices of R J C Evans & Co.
It is apparent from the facts which have been proved that Mr Porter was mistaken in believing that the 1976 will and the first codicil were the last testamentary instruments made by the testator. After a lapse of some 14 years, he had overlooked the 1982 will. It is relevant to note also that neither the 1996 nor the 1997 codicil in any respect alters the bequests made in the 1982 will.
The 1982 Will Was Not Revoked
Neither the 1996 nor the 1997 codicil revoked the 1982 will. The circumstances in which a will may be revoked are provided in ss21 and 22 of the Wills Act 1936. They provide:
“21. No will is revoked by any presumption of an intention on the ground of an alteration in circumstances.
22. No will or codicil or any part of a will or codicil is revoked otherwise than -
(a).... by marriage or termination of marriage as provided by this Act; or
(b).... by another will or codicil executed in the manner required by this Act; or
(c).... by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
(d).... by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator’s presence and by the testator’s direction with the intention of revoking it.”
There is no writing of any kind declaring an intention to revoke the 1982 will and in no other respect is there any ground on which it can be said that the 1982 will is revoked.
Is the 1976 Will Revived?
The question whether a will which has been revoked can be revived is provided for in s25 of the Wills Act 1936. It is based on s22 of the Wills Act 1837 (UK). The relevant provision is s25(1) which provides:
“No will or codicil or any part of a will or codicil which has been in any manner revoked can be revived otherwise than by its re-execution or by a codicil executed in the manner required by this Act and showing an intention to revive the will or codicil or the part of the will or codicil.”
It is well established that the intention to revive the will must appear on the face of the codicil, either by express words referring to the revoked will and importing an intention to revive it or by necessary intendment to the same effect: Marsh v Marsh (1860) 1 Sw&Tr 528 at 533; Re the Goods of Steele (1868) LR 1 P&D 575 at 578. In this case neither the 1996 nor the 1997 codicil discloses an express intention to revive the 1976 will.
Where the testator has failed to use words disclosing an express intention to revive the earlier will, the task of showing an implied intention is difficult. It must be shown that the disposition in the codicil is inconsistent with any intention other than to revive the will. In Marsh v Marsh (supra) at 533 Sir Creswell Creswell commented on the equivalent provision to s25(1) in the Wills Act 1837. He said:
“The codicil, therefore, must shew the intention to revive. It may be assumed that a codicil to a will shews an intention that some wills should be operative, and, prima facie, the last existing will, especially if that revoked all others, it must be taken to be the will intended.”
The same principle was expressed in these terms in Re The Goods of Steele (supra) at 572-578, where, having referred to those observations in Marsh v Marsh, Sir J P Wilde said:
“The words of the section (4) are as follows:- “No will which shall be in any manner revoked shall be revived” by a codicil, unless it be a codicil duly executed, and “shewing an intention to revive the same.” What is the meaning of these last words? To appreciate them, it is necessary to bear in mind the law as it stood when they were enacted. The theory of the law is, and always was, that a codicil forms part of a will, and consequently that to make a codicil to your will is first to affirm the existence of that will; and, secondly, to re-publish it or re-affirm its validity. It was, therefore, before the act, an inference which the law drew from the making of a codicil, that the testator intended to re-affirm his will, and, if the will had been revoked, by re-affirming it to revive it. In brief, it would not be wrong to say that all codicils to wills were held before the act passed to revive the wills to which they were respectively codicils, if such wills had been previously revoked. As soon, therefore, as it could be ascertained that the codicil in question was a codicil to a particular revoked will, that will was revived. The difficulty with which the courts in the contested cases had to grapple, was to ascertain to which or what will the disputed paper was intended as a codicil.
Such being the state of the law before the act, I hesitate to accept the conclusion, that the express words of the section meant to leave the matter in the same state in which it would have stood if they had never been introduced. If the merely declaring that a particular paper was to be taken as a codicil to a particular will was all that the legislature required, when it enacted that the codicil should “shew an intention to revive” a revoked will, the words “shewing an intention to revive the same” were quite needless, for every codicil to a revoked will, by force of being a codicil to such will, so shewed it. I therefore infer that the legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question. In other words, I conceive that it was designed by the statute to do away with the revival of wills by mere implication.”
That passage was approved by the Privy Council in McLeod v McNab [1891] AC 471 at 474. It has been consistently followed and applied since. Some Australian decisions include In the Will of Killick [1960] VR 98; Re Estate of Brian deceased [1974] 2 NSWLR 231; Re Dear [1975] 2 NZLR 254; Re Jones (1979) 21 SASR 40; McCosker v Farmer (No2) (unreported, SC (NSW) 14 May 1993 Powell J). A helpful review of the authorities is to be found in both In the Will of Killick and Re Dear. Consistently with this principle, a reference in a codicil to the earlier will by its date has been held to be insufficient to revive the earlier will: see, for example, Re Goods of Steele; Re Estate of Brian; Re Dear. So a provision such as that contained in paragraph 2 of each the 1996 and 1997 codicils does not necessarily revive the earlier will: Re Goods of Steele, Re Dear. The question is, what did the testator intend?
As already mentioned, both the 1996 and 1997 codicils were inadvertently drawn as codicils to the 1976 will believing that to be the last will of the testator. Evidence of the circumstances of the mistake is admissible as these additional observations of Sir J P Wilde in Re Goods of Steele (supra) at 579-580 show:
“The due result of the documents in each case, and of such external facts as may be admitted in evidence, must of course be gathered from the language of the documents themselves read in the light of such facts. Some general views however present themselves - some general probabilities of intention attend all such cases as those now under judgment. It may in the outset, I think, be doubted whether any testator who bore in mind that he had revoked his will, and substituted another for it, ever really sat down with the purpose of revoking his last will and reviving the former one, and set about the execution of that purpose by simply making a codicil referring by date to his first will without more. Would any lawyer advise such a course, or would any unskilled testator imagine he could achieve the end by such a method? The leading idea of revoking the one and reviving the other in its place would surely find expression by some form of words in a paper designed mainly for that object. On the other hand, I conceive that, in the vast majority of cases, when a man declares his intention that a particular paper, varying his previous dispositions, shall be taken as a codicil to “his last will and testament”, he means that which really is his last will and testament, his then existing will, and the dispositions of his property then in force. In like manner, when he goes on to declare, in the common language of codicils, that “in all other respects he ratifies and confirms his last will and testament,” he really means to confirm that which exists, and not to bring to life a paper which has ceased to be testamentary or revive dispositions which have no existence, and are therefore not, properly speaking, capable of being ratified.
That these conclusions are just in the main is amply proved by the fact that, whenever full light has been cast on the testator’s real purpose by means of parole evidence, the reference to the earlier will has in most cases turned out to be nothing but a blunder. If experience had not shewn the fact, it would be almost incredible that mistakes should occur so constantly as they do in so simple a matter as reciting the true date of a will. And yet in many cases errors of this kind, if allowed to be proved, can not only be proved, but proved to demonstration. The excluded evidence in the celebrated case of Walpole v Cholmondeley 7 T.R. 138 proved the error that had been committed and the cause of it, on testimony so clear and so free from suspicion as to remove the last trace of reasonable doubt. Sometimes the error arises from the attorney or a clerk who has laid his hand on the wrong paper; sometimes from the testator who has kept his first will in his own possession and forgotten his second, which he has left in the hand of his attorney; oftentimes from the employment of an attorney to draw the codicil, who has made an earlier will, and has been in ignorance that an intermediate will has been made. I am, therefore, of opinion that the Court ought to be slow to conclude that a testator has manifested in this indirect way a desire to revoke his last will, and that it should scrutinize narrowly the language of a codicil which is said to shew such an intention, lest in the desire to follow the testator’s wishes too blindly it should set them at nought altogether.”
See also Re Estate of Brian (supra) at 233. It is apparent from the evidence led in this case that the testator did not believe that he was amending anything other than his last will. He was not informed of the date of the 1976 will when he gave his instructions for either the 1996 or 1997 codicil. He was not shown the will. Had that been done and had he been reminded of its terms, he would, in all likelihood, have recalled that he had made a later will deleting any bequest to his late sister. The proposition that the codicils revive the 1976 will requires the conclusion that, having altered his will in 1982 to delete a bequest to his sister in the knowledge that she had died, the testator by these codicils has wished to reinstate the gifts to his sister. Plainly he did not intend to do so.
That conclusion is reinforced by the fact that, at the meeting on 30 May 1997, the testator asked who was to receive his house when he died. On being told that it would fall into residue and be divided so that his nephew would receive, in effect, one half of the proceeds and his two nieces would receive one quarter share each, the testator made no demur. Here again, the proposition that the codicils revive the 1976 will requires the conclusion that, having altered his will in 1982 to delete all gifts or bequests to his sister including a bequest of his residuary estate in the knowledge that she had died, the testator, by these codicils, wished to reinstate his sister as a person who would share in the residuary estate. To reach that conclusion would be wholly inconsistent with his clearly expressed intentions in 1982.
In addition, an examination of the nature of the alterations made by the codicils shows that the testator did not address the question of the date of the will but simply believed that he was altering his last will. Though each codicil deals with an important matter, neither alters in any respect the structure or nature of the bequests in the 1982 will. The 1996 codicil did no more than change the executor in a manner consistent with an enduring power of attorney executed the same day. It is relevant to note that both the 1976 will and the 1982 will contained the same provisions as to the appointment of executor. There was, therefore, nothing to alert the testator to the fact that he was amending anything other than his last will. Furthermore, as the purpose of the amendment to the will extended no further than to effect the result that the same persons would be both executors and attorney, it cannot be inferred that the testator intended to revive the 1976 will.
Similarly, in both the 1976 will and in the 1982 will, the testator had made an absolute gift of his “A” Model Ford to his nephew Peter John Taylor. The first paragraph of the 1997 codicil does no more than clarify the gift by defining it as the testator’s “1928 Pheaton Model A Ford”. The testator had three 1928 Model “A” Ford motor cars. The codicil is clearing up a potential ambiguity. Even here, error has crept in. The name of the car was “Phaeton”, not “Pheaton”, an allusion to the phaeton carriage named after the son of Helios who vainly attempted to drive the sun chariot across the heavens.
It would be a strange result if the effect of these two codicils, which do not affect the bequests made by the testator in the 1982 will, were to alter the effect of that will and revive the 1976 will. Although the codicils were expressed to be codicils to the 1976 will and confirmed the 1976 will, the testator was not aware that this was not his last will. The evidence shows that in 1996 the testator was preoccupied with the question of the executors of the will. Similarly, in 1997 the attention of the testator was focussed on the one issue, namely, a better description of the Model “A” Ford he was giving to his nephew. He did not in any other respect direct his attention to the bequests he had made and did not intend to alter them.
There is such a difference between the two wills that it cannot be inferred that the testator intended to alter the bequests made in his will in 1982. In other words, given that the 1996 codicil deals only with the appointment of executors, and the 1997 codicil could apply equally to each will, and given that neither codicil discloses an intention to deal with his estate in a manner which was intended to revoke the bequests made in the 1982 will, I conclude that the execution of the 1996 and 1997 codicils did not revive the 1976 will. To adopt the words of Sir J P Wilde, any other conclusion would set the testator’s intention at nought altogether.
The fact that each of the codicils on more than one occasion clearly identifies the first will by date is a compelling factor pointing to the intention to revive the 1976 will. But the force of that fact is more than outweighed by the other matters to which I have referred. In other words, the explicit reference to the 1976 will in each codicil is not, in all the circumstances, sufficient to revive that will.
In reaching this conclusion I do not overlook the reasoning of Dean J in In the Will of Killick (supra) and in the cases referred to in that decision. But it must be remembered that the court must seek to ascertain the intention of the testator and an intention to revive an earlier will which has been revoked must be clearly shown. There are important differences between the facts of this case and those in Re Killick which require a different conclusion. In other words, the principles to be applied are the same. The facts in each case lead to a different result.
For these reasons, I will, in a moment, order that the 1982 will be admitted to probate.
The Effect of the Codicils
What then should be done with the 1996 and 1997 codicils, which are expressed to be codicils to the 1976 will? Where a codicil refers by date to an earlier will, it may, according to circumstances, be admitted to probate under another will: Re Goods of Steele (supra) at 577; Re Taylor; Goldie v Adam [1938] P. 85 and Re Marrie [1938] SASR 289. For the reasons I have expressed, it is appropriate to admit the 1996 and 1997 codicils to probate with the 1982 will, omitting from the codicils all references to the 1976 will whenever they appear.
The same conclusion might be reached by admitting to probate the 1982 will and the two codicils leaving the meaning and effect of the codicils to be determined on a construction summons: cf Re the Goods of Stedham (1881) 6 P 205.
The reference in the 1997 codicil to clause 7 of the will gives rise to a question of construction of the 1982 will, since the gift of the Model “A” Ford to Peter Taylor is made by clause 4 in that will. In order to avoid this estate incurring any further cost, I invited Mr Palasis, who appeared for the applicants, to make an oral application for construction of the codicil. He did so. For the above reasons, I find that the testator intended to make it clear which of the several Model “A” Fords he owned he wished to give to Peter Taylor. He had failed to identify the correct clause in his 1982 will. I declare that clause 7 of the codicil is intended to operate in respect of the gift made in clause 4 of the 1982 will.
Although it has not affected my reasoning, it is relevant to note that all parties consent to the orders I propose to make. The only beneficiaries, Peter Taylor, Kathryn Mitchell and Debra Poulton, all consent to the order. Mr E R Emery, who had been appointed executor if Mrs Hilder should predecease the testator, consents to the order. Mr Martin and Mr Porter are willing to act as executors. Thus, no party was adversely affected and it was sufficient to hear only the applicants.
Conclusion
For all of these reasons, I make an order granting probate of the will dated 10th August 1982; the codicil dated 3rd September 1996 omitting from the codicil the words “second” and the words “dated the 30th day of July 1976 and the first codicil to it dated the 1st day of February 1978” wherever appearing; and the codicil dated 2nd June 1997 omitting from the said codicil the word “third” and the words “dated the 30th day of July 1976” wherever appearing and the words “and the first codicil dated the 1st day of February 1978 to my said will and the second” wherever appearing.
The testator’s wife having predeceased him, the effect of the 1996 codicil is that Mr Martin and Mr Porter have been appointed executors. The order will, therefore, state that probate shall be granted to them.
I further declare that clause 7 of the 1997 codicil is intended to operate in respect of clause 4 of the 1982 will.
As to the question of costs, I suggested to the applicants that, as the application was necessitated by oversight on their part, it would not be appropriate that their costs should now be paid on a solicitor and client basis. They agreed. The costs of the application will, therefore, be taxed on a party and party basis and paid out of the residuary estate.
It is fair to add that this is a cautionary tale for solicitors. It shows the desirability of
(1)... questioning the testator closely to ensure that there are no prior wills;
destroying an earlier will and codicils thereto upon the new will being made;
trying to ensure that wills are kept in one place; and
keeping a register of wills made by the solicitor.
2