IN THE ESTATE OF JOHN WENTWORTH VARLEY DECEASED; IN THE ESTATE OF JACQUES JOHAN VELDHUIS - [2007] SASC 420

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
IN THE ESTATE OF JOHN WENTWORTH VARLEY DECEASED; IN THE ESTATE OF JACQUES JOHAN VELDHUIS
[2007] SASC 420
Judgment of The Honourable Justice Debelle
22 November 2007
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS
Rectification of wills – testator died leaving two wills – one will related to property in England and other will intended to relate only to property in Australia – Australian will not expressed in terms independent of English will – testator intended that Australian will to relate only to property in Australia – will as drawn does not accord with testator’s intention – Australian will rectified so that it related only to property in Australia.
Rectification of wills – appointment of executor expressed in alternative – application for grant of probate rejected on grounds of uncertainty – testator intended solicitor to act as executor or, if solicitor unable to act, one of his partners should act – will rectified to remove uncertainty.
Wills Act 1936 s 8, s 25AA, s 25B, s 25C(b); Wills Act 1837 (UK) s 9, referred to.
Wesley v Wesley (1998) 71 SASR 1, applied.
Australian Executor Trustees Ltd v Casanova [2005] SASC 93; Australian Mutual Provident Society v Gregory (1908) 5 CLR 615; Estate of Miller (2002) 223 LSJS 133; Freke v Carbery (1873) LR 16 Eq 461; Haque v Haque (No 2) (1965) 114 CLR 98; Mortensen v State of New South Wales (unreported, NSW Court of Appeal, 12 December 1991); re Astor’s Goods (1876) 1 PD 150; re Baylis’ Goods (1862) 2 Sw&Tr 613; re Blackwell’s Goods (1862) 2 PD 72; re Callaway’s Goods (1890) 15 PD 147; re Coode (1867) LR 1 P&D 449; re Estate of Rose [1999] NSWSC 365; re Estate of Yearwood (1982) 30 SASR 169; re de la Rue’s Goods (1890) 15 PD 185; Trimmer v Lax (unreported, Supreme Court of NSW, 9 May 1997), considered.

IN THE ESTATE OF JOHN WENTWORTH VARLEY DECEASED; IN THE ESTATE OF JACQUES JOHAN VELDHUIS
[2007] SASC 420
Testamentary Causes Jurisdiction

DEBELLE J. On 7 August 2007 I heard two applications pursuant to s 25AA of the Wills Act 1936 to rectify two separate wills. I made orders rectifying each will, stating that I would later publish reasons. These are the reasons for the orders. The facts leading to each application provide a cautionary tale for solicitors as to pitfalls to avoid when preparing wills.
Before dealing with each application, it is convenient to rehearse the principles relevant to both applications. Some of those principles have been noted in Wesley v Wesley (1998) 71 SASR 1.
1.Section 25AA authorises the court to rectify a will which does not accurately reflect the testamentary intentions of a deceased person. Section 25AA 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.
(3) Nothing in this section affects the operation of section 29 of the Trustee Act 1936.
This statutory power substantially extends the power of the Court of Probate to rectify a will.
2.On an application to rectify a will, it will be necessary for the court to determine the meaning of the will, determine the testamentary intention of the deceased, determine whether the will accurately reflects that intention and, if not, determine whether the will can be rectified and in what terms: Wesley v Wesley at 4.
3.Generally speaking, the relevant date at which the court must determine the intention of the testator will be the date when the will was made, for it is then that the testator has executed the will which purports to have been made pursuant to his instructions: Wesley v Wesley at 5.
4.The terms of s 25AA plainly countenance evidence as to the testamentary intentions of the deceased. Where the will has been prepared by a solicitor, one means of ascertaining the intention the deceased is to admit evidence of the deceased’s instructions to his solicitor: Wesley v Wesley at 5. In each of these two cases the instructions of the testator to his solicitor were proved. As to evidence from others, I repeat what I said in Wesley v Wesley at 5.
Evidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.
5.The standard of proof will be proof on a balance of probabilities. In this respect, I repeat what I said in Wesley v Wesley at 5:
In its report which led to the enactment of s 20 of the Administration of Justice Act 1982 (UK), the Law Reform Committee in England concluded that, although the standard of proof should be high, there should be no rigid restrictions on the nature of the evidence to be admitted or its weight: see the Law Reform Committee, 19^th Report on the Interpretation of Wills, 1973, Cmnd 5301 cited in Williams at p 58. The standard of proof will, of course, be proof on the balance of probabilities. The court will carefully examine the evidence because the will has been signed by the testator and it is to be presumed that he read the will before signing it and approved its terms. In addition, the will is the expression of the intention of a deceased person who is not available to give evidence. In applications of this kind, the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363, particularly at 361, will be a helpful, if not salutary, reminder of the required standard of proof.
6.While the court can rectify a will so that it accords with the expressed testamentary intentions of a deceased person, the court cannot supply any gap in the expression of that intention or assume what that intention would have been in the case of a failure of a gift. In Mortensen v State of New South Wales (unreported, NSW Court of Appeal, 12 December 1991), the Court of Appeal in New South Wales upheld the decision of Needham J who refused to rectify a gift in a will to three children of whom the testatrix was particularly fond when one of those children had predeceased the testatrix. The testatrix had not provided for any gift over should any of those children predecease her. Needham J refused an application to rectify the will by adding “or to the survivor of them” after the name of the last of the three children. That decision should be compared with Trimmer v Lax (unreported, Supreme Court of NSW, 9 May 1997) and re Estate of Rose [1999] NSWSC 365. In Estate of Miller (2002) 223 LSJS 133, the testator owned a number of rural and commercial properties. At the time of making his will, he mistakenly believed that he had transferred all his interests in his rural properties to Rgana Pty Ltd, the trustee of one of his family trusts. He instructed his solicitor to alter his will so that his interests in his commercial properties would be bequeathed to two of his children. The effect of the will as altered was to devise all his interests in real estate, including his rural property, to those two children. The question to be determined was whether the will could be rectified to include a devise of the rural property to Rgana. Mullighan J refused to rectify the will in that way, holding that there was no evidence of what the intention of the testator would have been had he been aware that the rural property had not been transferred to Rgana Pty Ltd. That decision should be compared with Australian Executor Trustees Ltd v Casanova [2005] SASC 93, which might represent a liberal application of s 25AA. In short, the court may rectify where there is clear evidence of the actual intention of a testator. It cannot guess at the probable intention where the testator has failed to address a particular contingency.
In both of the applications heard on 7 August 2007 the applicant was the solicitor who had drawn the will. Both had direct knowledge of the intention of the testator. Section 25AA does not prescribe the persons who are entitled to make an application to rectify a will. Generally speaking, it is likely that the application will be made by the intended executor or by one or more of the intended beneficiaries. In each of the applications heard on 7 August 2007, the solicitor was also the intended executor or one of the intended executors. It was appropriate, therefore, that the solicitor made the application.
Re Estate of Varley deceased
The testator died in England on 1 August 2005. He died possessed of assets in both the United Kingdom and in South Australia. For present purposes it is sufficient to note that the only asset of the testator in South Australia was his interest as the holder of a Crown Lease in respect of land near Hynam in the south-east of South Australia.
The testator was survived by his wife and three of his four adult children. The habitual residence of the testator was in Lincolnshire in England.
The testator died leaving two wills. The first was executed on 15 April 2004 and relates only to his property in England (“the English will”). Probate of the English will was granted on 7 October 2005.
The second will was executed on 10 November 2004 and was intended to relate to the property of the testator in Australia (“the Australian will”). A testator may lawfully make a will relating to property in one country and another relating to property in another country: re Coode (1867) LR 1 P&D 449; re Astor’s Goods (1876) 1 PD 150; re Callaway’s Goods (1890) 15 PD 147; re de la Rue’s Goods (1890) 15 PD 185. The Australian will was drawn in Australia but executed in England. On 14 October 2004 the testator gave his solicitor in Naracoorte, Mr Westley, instructions in respect of the will. He instructed Mr Westley that the will was to deal only with that part of his assets situated in Australia and, in particular, with the property in South Australia held on Crown Lease. He instructed Mr Westley that the will was not to deal with his assets in the United Kingdom. Mr Westley dictated the will in the presence of the testator. The will was typed and handed to the testator before he left Mr Westley’s office. The testator informed Mr Westley that he intended to execute the will in the United Kingdom.
The Australian will was executed on 10 November 2004 at the office of Messrs Grange Wintringham, solicitors of Market Rasen in Lincolnshire. The testator signed his name at the foot of the will and at the foot of each page of the will. The Australian will was executed in the presence of two witnesses who also subscribed the will at its foot and at the bottom of each page. The will was duly executed in accordance with the requirements of s 9 of the Wills Act 1837 (UK) and s 8 of the Wills Act 1936 of this State. For the reasons which follow the execution of the Australian will in England is valid for the purposes of a grant of probate in South Australia.
Section 25B of the Wills Act provides:
25BNotwithstanding any other provision of this Act, a will is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator’s death, he or she was domiciled or had his or her habitual residence, or in a country of which, at either of those times, he or she was a national.
As already mentioned, the only asset in South Australia was the interest of the testator in the Crown Lease. The leasehold property is immovable property for the purposes of the conflict of laws: Freke v Carbery (1873) LR 16 Eq 461; Haque v Haque (No 2) (1965) 114 CLR 98 at 107. The law of the country where the property is situate (the lex situs) determines whether property is moveable or immovable: Haque v Haque (No 2) at 142 and is not necessarily determined by what it is classified as realty and personalty: Freke v Carbery; re Hoyles [1911] 1 Ch 179 at 187; Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 624; Haque v Haque (No 2) at 142 per Windeyer J.
Section 25C(b) of the Wills Act extends the operation of s 25B. It provides:
25CWithout limiting the generality of section 25B, the following wills are to be treated as properly executed for the purposes of being admitted in the State to probate: …
(b) a will in so far as it disposes of immovable property if its execution conformed to the internal law in force in the country or place where the property was situated.
Section 9 of the Wills Act 1837 (UK) is in very like terms to s 8 of the Wills Act of this State. The Australian will is, therefore, to be treated as properly executed for all purposes and, subject to the question of rectification, is capable of being admitted to probate.
The fact which gives rise to the application for rectification is that the will is not expressed in terms which are independent of the English will. The only clause in the will which might suggest that the will is limited to the assets of the testator in Australia is the first clause of the will which reads:
I revoke all wills heretofore made by me in Australia.
On 13 December 2005 Mr Westley lodged an application for grant of probate of the Australian will. On 13 April 2006 the Registrar of Probates sent the following requisition to Mr Westley:
The application for probate of the Australian will has been presented on the footing that it is independent of the English will. If wills are independent, one dealing exclusively with property within the jurisdiction and the other with property outside it then there is no obligation on a party propounding the first to obtain probate of the second. The question is whether the wills are independent or interdependent.
In my opinion the Australian will is not independent of the English will. It does not state that it is a will relating to the testator’s property other than his property in England and Wales. You will note that in clause 3 of the Australian will the testator has disposed of the residue of his estate without any limitation. For this reason both wills need to be read together.
The revocation clause is novel in that it purports to revoke all wills made by the testator in Australia. Was this intended to mean wills relating to the testator’s estate in Australia or any will that he made while physically in Australia?
Suppose the testator had previously made a will relating to his property in England while in Australia – would such a will not be revoked?
That requisition caused Mr Westley to lodge the application for rectification of the will so as to add words to the opening words of the will so that it reads:
THIS IS THE LAST WILL AND TESTAMENT of me JOHN WENTWORTH VARLEY OF Kybybolite via Naracoorte in the State of South Australia Farmer AND I DECLARE that this will relates only to my property and assets in Australia and does not affect any will relating to my other assets or property in England and Wales which are the subject of a separate will or wills made in accordance with the law of those countries.
The application seeks to add the italicised words.
The preamble to the English will clearly states that the will is intended only to deal with the assets and property of the testator in England and Wales. It is in these terms:
I, JOHN WENTWORTH VARLEY of Girsby Lodge Brugh-on-Bain Market Rasen Lincolnshire HEREBY REVOKE ALL FORMER Wills and Codicils made by me and declare this to be my last Will and I DECLARE that this Will relates only to my property and assets in England and Wales and does not affect any Will relating to my other assets or property in Australia which are the subject of a separate Will or Wills made in accordance with the law of that country
In this respect the contrast between the English will and the Australian will as drawn could not be more striking.
Notice of the application to rectify the will was given to the widow of the testator and each of his children. The three children living at his death consent to the application. The children of the child of the testator who predeceased the testator also consent to the application. Thus, all of those entitled to share in the estate of the testator consent to the application. That is not necessarily a reason for making an order for rectification but it does signify the absence of any opposition to the application.
The intention of the testator that the will executed on 10 November 2004 should deal only with the estate in Australia is clearly established by the evidence of Mr Westley. I am satisfied that Mr Westley believed that he had drawn the will in such a way that it dealt only with the testator’s estate in Australia. The testator had as recently as 15 April 2004 made a will dealing with only with his estate in England and Wales and it was necessary that he have a will which disposed only of his estate in Australia. The will as drawn does not accord with the testator’s intention. It is appropriate, therefore, to make an order to rectify the will in the terms proposed and the order was made.
For these reasons I made an order that the will of the testator be rectified by inserting after the words “South Australia farmer” in the opening words of his will the following words:
AND I DECLARE that this will relates only to my property and assets in Australia and does not affect any will or wills relating to my other assets or property in England and Wales which are the subject of separate wills made in accordance with the law of those countries
Mr Westley indicated that he would pay the costs of the application. There was no order as to costs.
Re Estate of Veldhuis deceased
The testator executed his last will on 15 October 1998. He died on 6 December 2006. The testator had made an earlier will in 1986. The testator’s wife had died on 12 July 1998. In consequence of her death, the executor of the testator’s will became the testator’s son Geoffrey.
On 8 October 1998, the testator instructed Mr Robert Lempens, a partner in the firm Camatta Lempens solicitors, to prepare a new will. Mr Lempens recorded the instructions on a document titled “Draft Testament of J.J. Veldhuis”. The testator instructed Mr Lempens that he did not want his son Geoffrey to be the executor of his estate as his son was living overseas. Instead, he gave instructions that he wished to appoint his solicitors, and in particular Mr Lempens, as executor. Camatta Lempens had been acting as the testator’s solicitors since 1986. A partner in that firm had drafted the testator’s 1986 will. Mr Lempens believes that no other firm has acted as solicitors for the testator since 1986.

The testator’s instructions as to who should be appointed executor are not recorded on the document entitled “Draft Testament of J.J. Veldhuis” but, instead, on a short note made by Mr Lempens after his meeting with the testator on 8 October 1998 when the instructions for the will were given. The note sets out other instructions in relation to the testator’s will. The relevant part of the note reads:
I no longer need my son to no longer be the executor as he is no longer in Australia.
I want my solicitors to be the executors.
Mr Lempens prepared a draft will and sent it to the testator. Clause 2 of the will deals with the appointment of an executor. It is in these terms:
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.
On 15 October 1998 the testator came to the office of Camatta Lempens and executed the will.
The testator died on 6 December 2006. On 10 January 2007 Mr Lempens applied for a grant of probate, asserting that he was the sole executor. On 29 January 2007 the Registrar of Probates rejected the application on the ground that the appointment of the executor was void for uncertainty.
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.
On being informed that he could not apply for a grant of probate, Mr Lempens applied for an order that the will be rectified by deleting the words in clause 2 and substituting therefor the following clause:
I appoint Robert Lempens in the firm Camatta Lempens Pty Limited of First Floor, 345 King William Street, Adelaide in the State of South Australia 5000 to be the executor and trustee of this my will.
Each of the beneficiaries, including the testator’s son Geoffrey, consents to the application. That is not necessarily a reason for making an order for rectification but it does signify the absence of any opposition to the application.
It is clear that the testator intended that Mr Lempens should act as executor or, if he was unable to act, that one of his partners should act as executor. The amended form of clause 2 would have been better drafted if it had had the following words added at the end:
… or if Robert Lempens is unable to act as executor (a named partner) of Camatta Lempens be executor and trustee of this my will.
However, as Mr Lempens is willing and able to act as executor and as Mr Lempens is named in the will as an intended executor, it is appropriate to make the order which gives effect to the expressed intention of the testator. For these reasons I made an order rectifying the will in terms of the application. There was no order as to costs.