In the Estate of JOSEF BERNHARD NIES (DECEASED)

[2014] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

In the Estate of JOSEF BERNHARD NIES (DECEASED)

[2014] SASC 93

Judgment of The Honourable Justice Gray

15 July 2014

SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - GENERALLY

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - DESCRIPTION OF BENEFICIARIES OR PERSONS - CHILDREN; GRANDCHILDREN - CHILD, CHILDREN

Application for rectification of a will pursuant to section 25AA of the Wills Act 1936 (SA). Clause 3 of the deceased’s will bequeathed his estate to “my children”, however, he did not have any children. The deceased had two step-children who he treated as his children and who treated him as their father.

Whether on the proper construction of the will the reference to “my children” means “step-children”. Whether rectification should be ordered under section 25AA of the Wills Act 1936 (SA) to insert the word “step” before the word “children” in clause 3 of the will.

Held dismissing the application:

1.  On the true construction of the will, the reference to “my children” means the deceased’s step-children.

2.  Had it been necessary, rectification would have been ordered in the terms sought by the plaintiff to ensure that the will reflected the testamentary intentions of the deceased.

Wills Act 1936 (SA) s 20 and s 25AA; Probate Rules 2004 (SA) r 65; Wills Act 1997 (Vic) s 31; Acts Interpretation Act 1915 (SA) s 22; Administration of Justice Act 1982 (UK) s 20; Succession Act 1981 (Qld) s 33; Succession Act 2006 (NSW) s 27; Probate and Administration Act 1898 (NSW) s 29A; Administration and Probate Act 1919 (SA) s 72G, referred to.
ANZ Trustees Ltd v Hamlet [2010] VSC 207; Perrin v Morgan [1943] AC 399; Re Allsop [1968] Ch 39; King v Perpetual Trustee Co Ltd (1955) 94 CLR 70; Re Harrison (1885) 30 Ch D 390; Re Jamieson Estate (1959) 29 WWR 650; In the Estate of Jack Alexander Warren [2001] NSWSC 104; IW v City of Perth (1997) 191 CLR 1; Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; Palethorpe v Public Trustee of Queensland [2011] QSC 335; Allgood v Blake (1873) LR 8 Ex 160; Marley v Rawlings [2014] 2 WLR 213; Re Jeans; Upton v Jeans (1895) 72 LT 835; McClymont v Hooper (1972) 128 CLR 147; Re Connolly (1964) 47 DLR 2d 465; In re the will of Ahchay (1997) 6 Tas R 369; Wesley v Wesley (1998) 71 SASR 1; Police v Berzins [2011] SASCFC 146; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; Vescio v Bannister (2010) 3 ASTLR 619, considered.

In the Estate of JOSEF BERNHARD NIES (DECEASED)
[2014] SASC 93

Testamentary Causes Jurisdiction

GRAY J.

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

   Background

2. Josef Bernhard Nies died in South Australia on 11 May 2011, aged 84 years.  His last will was made on 14 March 1988. 

3. On 10 September 2012, a grant of probate of the will in common form was made to the plaintiff, Roger Kent Duance, the surviving executor named in the will.  Mr Nies’ wife, Paula Rosa Nies, predeceased him – she died on 12 September 2006.  Mr Nies was not survived by any children but was survived by two step-children.  He had three sisters, all of whom reside in Germany. 

4. Mrs Nies is survived by two children: Trudi Barnes and Sylvia Berta Margit Parsons.  Mr Duance is the ex-husband of Ms Barnes.  The affidavit evidence of Ms Barnes, Ms Parsons and Mr Duance established that Mr Nies treated Mrs Nies’ children as his own and that they in turn treated him as their father.  At the time of Mr Nies’ marriage to Mrs Nies, Ms Barnes was aged 21 years and Ms Parsons was aged 6 years.  Mr and Mrs Nies had been married for 24 years by the time they made their wills on 14 March 1998.  Both wills were made through the same solicitor and both wills used the phrase “my children”.  Ms Barnes and Ms Parsons were made Mr Nies’ legal guardians in 2007 by order of the Guardianship Board on the basis that they were his daughters. 

5. Clause 3 of Mr Nies’ will provides:

   I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind and wheresoever situated to my wife PAULA ROSA NIES provided she survives me for a period of thirty (30) clear days but in the event of my said wife failing so to survive me then to my Trustees UPON TRUST for such of my children as shall survive me and if more than one in equal shares as tenants in common PROVIDED ALWAYS that if any of my said children shall predecease me leaving a child or children living at my death then such lastmentioned child or children shall take by substitution and if more than one in equal shares as tenants in common the share in my estate which his her or their parent would have taken had such parent survived me.

6. If clause 3 of the will was not effective to dispose of Mr Nies’ estate because there were no “children” to survive him, then he would have died intestate.  In that event, the persons entitled to his intestate estate would be his “relatives, or issue of a relative or relatives”, in this case his sisters in Germany.[1]

   [1]    Administration and Probate Act 1919 (SA) section 72G(1)(d).

   The Application

7. On 7 March 2013, Mr Duance commenced these proceedings by inter partes summons issued pursuant to rule 65 of the Probate Rules 2004 (SA). Mr Duance sought rectification of the will under section 25AA of the Wills Act 1936 (SA) to have the word “step” inserted before the word “children” where it first appears in clause 3 of the will.

8. The summons originally named the Public Trustee as the defendant to the proceedings.  The Public Trustee is the administrator of Mrs Nies’ estate, however, as Mrs Nies pre-deceased Mr Nies, her interest under his will lapsed and her estate has no interest in his estate.  The persons who were required to be named as defendants to the proceedings or at least be given notice of the application were those persons “whose interest might be adversely affected by the rectification applied for”, in this case Mr Nies’ sisters.[2]  Accordingly, on 22 July 2013, I ordered that the Public Trustee be disjoined as a defendant to the proceedings and that Judith Quick, a Partner of the law firm Carpenter & Associates, be appointed to represent the interests of Mr Nies’ sisters and be substituted as a defendant in the proceedings. 

   [2]    Probate Rules 2004 (SA) rule 65.03.

9. At the hearing, counsel for Mr Duance submitted that there was no need for the will to be rectified as on the true construction of the will the reference to “children” would be taken to mean “step-children”. 

   Construction – General Principles

10. It is necessary to determine the proper construction of the will before considering a rectification application. The reason for this was identified by Pagone J when considering the provision allowing rectification in section 31 of the Wills Act 1997 (Vic) in ANZ Trustees Ltd v Hamlet:[3]

    ... It is a condition precedent to the exercise of the power in s 31 that the Court be satisfied that the Will does not carry out the testator’s intentions and that this satisfaction be based on one of two specified reasons namely, either that a clerical error was made or that the Will does not give effect to the testator’s instructions. The existence of the second of these conditions requires the Will to be construed and to be found upon its proper construction not to give effect to the instructions of the testator.’

    [3]    ANZ Trustees Ltd v Hamlet [2010] VSC 207, [3].

11. The task of a court when construing a will is to discover the intention of the testator:[4]

    I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.

    [4]    Perrin v Morgan [1943] AC 399, 420.

12. A word or phrase in a will is generally given its usual or ordinary grammatical meaning.  However, the usual or ordinary meaning of a word may be displaced if, in the context of the will as a whole, and in the light of the surrounding circumstances, it appears that the ordinary meaning of a word or phrase does not make sense, but a secondary meaning would make sense, in which case the court will adopt the latter meaning.  The court avoids giving words a literal interpretation where that would lead to a capricious result and where it is considered that this cannot have been the intention of the testator.  In Re Allsop, Lord Denning MR observed:[5]

    …The object of the court in construing a will is to discover the intention of the testator. I do not think his intention is to be discovered by looking at the literal meaning of the words alone. That has led, times out of number, to the frustration of his intentions. You must look at the will in the light of the surrounding circumstances. Eschewing technical rules and literal interpretation, you must look to see simply what the testator intended. If you find that a literal interpretation gives rise to a capricious result which you are satisfied the testator can never have intended, then you should reject that interpretation and seek for a sensible interpretation which does accord with his intention. It is sometimes said that a testator can be capricious if he likes. Yes, if you are sure he intended to be. But you should not impute capriciousness to him merely to justify yourself in giving the words a literal interpretation. …

    [5]    Re Allsop [1968] Ch 39, 47.

13. In order to determine the context and circumstances existing at the time the will was made, the court places itself in the position of the testator.[6]  This principle, sometimes referred to as the “armchair principle”, has been expressed in the following terms:[7]

    The general rule is that, in construing a will, the court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words.

    [6]    King v Perpetual Trustee Co Ltd (1955) 94 CLR 70, 78.

    [7]    Allgood v Blake (1873) LR 8 Ex 160, 162.

14. The modern approach to interpretation has been summarised by the Supreme Court of the United Kingdom in Marley v Rawlings:[8]

    When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.  In this connection, see Prenn at 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21-30.

    When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.  As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that “[c]ourts will never construe words in a vacuum”. 

    Of course, a contract is agreed between a number of parties, whereas a will is made by a single party.  However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned.  Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts – see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H-780F.

    Another example of a unilateral document which is interpreted in the same way as a contract is a patent – see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin-Amgen at paras 27-32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.

    In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed ... above is therefore just as appropriate for wills as it is for other unilateral documents.  This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should “place [itself] in [the testator’s] arm-chair”, is consistent with the approach of interpretation by reference to the factual context.

    [8]    Marley v Rawlings [2014] 2 WLR 213, [19]-[23].

15. At the time Mr Nies made his will he had no children of his own, and would not have had any expectation that his then longstanding marriage to Paula of some 24 years would result in any children being born thereafter.  It is highly unlikely that Mr Nies used the expression “my children” in clause 3 of his will to provide for the remote possibility that he might enter into another extra-marital relationship at some future time and have children by that relationship.

16. If Mr Nies remarried after the date of his will and had children by that later marriage, then the act of remarrying would have revoked the will.[9]  The expression in the will cannot therefore reflect an intention to provide for the possibility of Mr Nies having children by a future marriage.[10]

    [9]    Wills Act 1936 (SA) section 20.

    [10]   Re Jeans; Upton v Jeans (1895) 72 LT 835, 836.

    The Presumption Against Intestacy

17. The presumption against intestacy also assists in the construction of this will and in the meaning to be given to the expression “my children” in clause 3 of the will.  Clause 3 of the will disposes of the whole of the deceased’s estate.  A gift of residue is generally indicative of an intention not to die intestate.[11]  In Re Harrison, Lord Esher MR expressed the principle in the following terms:[12]

    Where a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he had done through the form of making a will.  You ought, if possible, to read the will so as to lead to a testacy, not an intestacy.

    [11]   McClymont v Hooper (1972) 128 CLR 147, 152.

    [12]   Re Harrison (1885) 30 Ch D 390, 393.

18. If the expression “my children” does not refer to Mr Nies’ two step-children, then it follows that he died intestate.  At the time of making the will Mr Nies knew that he had no children of his own and it may be reasonably inferred that he would not have thought that he would be likely to have children in the future.  The presumption against intestacy therefore supports the construction of “my children” to mean Mr Nies’ step-children, particularly in circumstances where he treated them as his own children.

    Gifts to “Children”

19. The meaning of the word “children” has been considered in a number of cases.  In Re Jeans; Upton v Jeans,[13] North J construed the word “children” in the testator’s will as meaning the testator’s four step-children.  In that case the testator had at the date of the will been married for 13 years to a wife who had four children by her deceased former husband.  He had made a will when he was 59 and his wife 60 years of age.  The four step-children had taken the testator’s name and had always been treated by the testator as his own children.

    [13]   Re Jeans; Upton v Jeans (1895) 72 LT 835.

20. North J found that, while the term “children” in a will prima facie means legitimate children, it had been recognised in the cases that the term could extend to illegitimate children in certain circumstances, and that the court may consider the extrinsic circumstances for the purpose of “ascertaining who the testator meant by the words he used”.[14]  North J, by parity of reasoning, found that the term could extend to step-children when used by the testator in this will:[15]

    He gives his property to his children.  This is not a question of illegitimate children.  The instructions for his will were given upon the footing that the stepchildren were his children, that being the position they had occupied.  Who did he mean by his children?  Not children by a future marriage, because the will would be revoked by his marrying again.  It could not have been future children by his wife to whom he had been married for thirteen years, and who was sixty years of age, and had had no child by him, especially as in his will he contemplated the possibility of children dying in his lifetime and leaving issue.

    [14]   Re Jeans; Upton v Jeans (1895) 72 LT 835, 836.

    [15]   Re Jeans; Upton v Jeans (1895) 72 LT 835, 836.

21. The decision of Re Jeans[16] has been applied in Canada in similar circumstances.  In Re Connolly,[17] a testator had made a bequest, after a life interest to his wife, “to my children” where the testator had none of his own and his wife had two children by a former husband.  Coffin J of the Nova Scotia Supreme Court held that the term “children” was used by the testator as meaning his two step-children:[18]

    Whom could he possibly have had in mind under all these circumstances other than the two stepchildren who had lived with him and his wife after their marriage.  He had never had any other children.  There was no probability that he would have children by his wife who is the life beneficiary in his will.

    [16]   Re Jeans; Upton v Jeans (1895) 72 LT 835.

    [17]   Re Connolly (1964) 47 DLR 2d 465.

    [18]   Re Connolly (1964) 47 DLR 2d 465, 472.

22. In another Canadian decision, Re Jamieson Estate,[19] a gift made by a testator to “my four children” was construed as applying to a step daughter.

    [19]   Re Jamieson Estate (1959) 29 WWR 650.

23. In In re the will of Ahchay,[20] the testator had no natural or adopted children.  However, he had married a woman who had seven children of her own, of whom three were raised by the deceased with his wife as if they were his own.  The will left the testator’s estate to his wife absolutely but if she should not survive him by a period of one calendar month “then to such of my children as shall be living at my death as tenants in common in equal shares”.  Slicer J of the Tasmanian Supreme Court held that there was no doubt the testator intended by his use of the term “children” to identify those children of his wife who had comprised the family unit following the marriage.

    [20]   In re the will of Ahchay (1997) 6 Tas R 369.

1. In In the Estate of Jack Alexander Warren, Davies AJ in the New South Wales Supreme Court reasoned:[21]

   [21]   In the Estate of Jack Alexander Warren [2001] NSWSC 104, [5]-[7].

   However, it is to be kept in mind that the denotation of the word “children” has altered somewhat over the last century as familial relationships and social attitudes have altered.  In Harris v Ashdown (1985) 3 NSWLR 193 at 199-200, Kirby P referred to some of the changes which have occurred both in community attitudes and in legislation. At p 200, his Honour said:-

   “in my view it is no longer safe to approach the construction of words such as ‘child’ and ‘children’ from the starting point of Lord Cairns' dictum.  Nowadays, it would be much safer to include in the expression ‘child’, as used in a will, legitimate and ex-nuptial, adopted and step-children, unless, from the language of the will itself, or from admissible surrounding circumstances, it is shown that a narrower meaning was intended by the testator.  Such an approach acknowledges at once the changing nature of personal obligations in today's society and the demise of earlier prejudices against illegitimacy which help to explain the starting point taken by Lord Cairns and, consequently, those who have since followed his dictum.  That starting point may well have been appropriate in the social circumstances in which wills were written in 1873.  It is scarcely appropriate in modern Australia.”

   Notwithstanding his Honour's words, which were not adopted by his colleagues, Priestley JA who dissented on this point and McHugh JA, I consider that, in a will, the word “children” should ordinarily be read as referring to natural children for that is its primary meaning, but that other persons should be included within the term when legislation so requires or when the terms of the will or evidence show that there is reason for doing so.  Thus, in Jarman On Wills, Eighth Edition, at p 1659, it is said:-

   "But a gift to ‘children’ may take effect in favour of step-children, if circumstances show that that was the testator's intention.  Thus in Re Jeans 72 LT 835, a testator had been married for thirteen years and had no children of his own; he and his wife were each about sixty years old when he made a will in favour of his ‘children’: it was held that his step-children, whom he had treated as his own children, were entitled under the gift.”

   It is, therefore, necessary to look both at the will itself and at the circumstances to the date of the testator's death which were known to the testator in order to ascertain whom the description was intended to benefit.

2. The evidence demonstrates overwhelmingly that Mr Nies considered his step-children to be his children.  There is no evidence to support a conclusion that Mr Nies was contemplating having any children of his own.  Having regard to the general principles of construction and the authorities considering the meaning of the word “children” extracted above, I am satisfied that the proper construction of clause 3 of the will is that “my children” is a reference to Mr Nies’ step-children.

   Rectification

3. Having regard to the above conclusion, it is strictly unnecessary to consider the application for rectification.  However, I consider it appropriate in the circumstances to record that had it been necessary to do so, I would have ordered rectification.  My brief reasons follow.

4. Section 25AA of the Wills Act 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.

5. Section 25AA of the Wills Act is a beneficial or remedial statutory provision.  It replaced the common law position previously applying in South Australia which permitted a court in some circumstances to omit words from a will included by mistake but did not enable wills to be rectified for mistake generally.[22]

   [22]   Wesley v Wesley (1998) 71 SASR 1, 4.

6. It is clear from the second reading speech on the enactment of the section in 1994 that the section was designed to expand the hitherto circumscribed power of the court to correct errors in wills and to remedy any resulting injustices.[23]  The power intended to be conferred on the court was described in wide terms:[24]

   … This Bill therefore provides that rectification of a will is available wherever a court is satisfied that the will is so expressed that it fails to carry out the testator's intentions.

   [23]   South Australia, Parliamentary Debates, Legislative Council, 9 March 1994, 191-2 (Hon KT Griffin, Attorney General); see also, Re Hennekam (deceased) (2009) 104 SASR 289, 299-300.

   [24]   South Australia, Parliamentary Debates, Legislative Council, 9 March 1994, 192 (Hon KT Griffin, Attorney General).

7. The explanation of the clause of the Bill which inserted section 25AA into the Wills Act states:[25]

   The new section gives the Supreme Court power to rectify a will that the Court is satisfied does not accurately reflect the testator's intentions.

   [25]   South Australia, Parliamentary Debates, Legislative Council, 9 March 1994, 192 (Hon KT Griffin, Attorney General).

8. A wider, rather than narrower, construction of section 25AA of the Wills Act would promote the purpose or object of the section, as revealed by the second reading speech, and therefore should be preferred to a construction which would not promote that purpose or object.[26]

   [26]   Acts Interpretation Act 1915 (SA) section 22.

9. It is a rule of construction that beneficial or remedial legislation is to be given “a fair, large and liberal interpretation” rather than one which is “literal or technical”, although a construction should not be given that is “unreasonable or unnatural”.[27]

   [27]   IW v City of Perth (1997) 191 CLR 1, 12; see also, Police v Berzins [2011] SASCFC 146, [12]-[17].

10. The preconditions for the exercise of power under section 25AA of the Wills Act are expressed in very broad and general terms.  Likewise, the power which the section invests in the court when the preconditions are satisfied — the court may order that the will be rectified so as to give proper expression to those intentions — is expressed in broad terms.  “It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.[28]  A provision conferring powers on a court “should be read giving the words of the provision full amplitude”.[29]  

    [28]   Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421.

    [29]   Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472, [47].

11. It follows that the phrase “a will does not accurately reflect the testamentary intentions of a deceased person” in section 25AA of the Wills Act should be given a wide meaning and the circumstances by which this situation may arise should be regarded as being at large.

12. Section 25AA of the Wills Act contains no implication that the type of “testamentary intentions” of a deceased person, the subject of an application under the section, should be regarded as limited to certain categories of intentions.  It appears that the jurisdiction to rectify given by the section is intended to apply to the case of an inaccurate reflection of a testamentary intention in a will regardless of the source or type of inaccuracy or reason for the inaccuracy.

13. The term “testamentary intentions” can be read in both broader and narrower senses.  On the one hand, it is correct to say that a person’s testamentary intentions encompass the particular provisions that the person wishes to include in his or her will, for example, particular legacies or gifts that the person wishes to make, powers that the person wishes to confer, discretions given to trustees and the like.  That is to say, the term “testamentary intentions” clearly encompasses matters of detail and the particular provisions by which a desired end is to be achieved or regulated.  However, the expression should not be regarded as being so confined.

14. The term “testamentary intentions”, in my view, also properly refers to the broader ends or purposes or outcomes that the testator wishes to achieve by his or her will when described in a more general way, even if the testator has not turned his or her mind to the particular means by which that end, purpose or outcome is to be achieved or where the testator would need to rely on a skilled drafter to supply the words for the will necessary to achieve that end, purpose or outcome.

15. If the court is satisfied of the actual testamentary intentions of a testator and it is possible to give “proper expression” to those intentions by supplying or omitting words in the will, an order for rectification can be made under section 25AA of the Wills Act.

16. Provided that it is possible by order made by the court to give “proper expression” to those testamentary intentions, the court is empowered to rectify the will under section 25AA despite the testator’s testamentary intentions not necessarily descending to the detail of how the testamentary outcome intended by the testator is to be achieved.

17. Section 25AA is recognised as being in wider terms than rectification provisions found in wills legislation in the United Kingdom and in other Australian States.[30]  In New South Wales the current “uniform” legislation is recognised as being narrower than the previous statutory power to rectify wills.[31] Caution should be exercised in applying judicial decisions from other jurisdictions when considering the scope and reach of section 25AA.

    [30]   See, for example, Marley v Rawlings [2011] 1 FLR 2052, [17], [28]; Palethorpe v Public Trustee of Queensland [2011] QSC 335, [12], [48]. Examples of legislation in other jurisdictions include section 20 of the Administration of Justice Act 1982 (UK) and section 33 of the Succession Act 1981 (Qld).

    [31] See section 27 of the Succession Act 2006 (NSW), which replaced section 29A of the Probate and Administration Act 1898 (NSW); see also, Vescio v Bannister (2010) 3 ASTLR 619.

18. I refer again to the evidence concerning the relationship between the deceased and his step-children.  It is plain to my mind that he treated his step-children as his children.  In reaching this conclusion, I have had regard to the fact that he had no natural children and was unlikely to do so.

    Conclusion

19. For the reasons discussed above, I am satisfied that the proper construction of clause 3 of the will of the deceased is that the words “my children” are a reference to the deceased’s step-children.  It is appropriate that I make the following orders and declarations:

    -Upon the true construction of the will of Josef Bernhard Nies late of 14 Frew Street Fullarton in South Australia deceased made on the 14th day of March 1988, by clause 3 of which will the deceased gave devised and bequeathed the whole of his estate to his wife Paula Rosa Nies provided she survived the deceased for a period of thirty clear days but in the event of the said wife failing so to survive the deceased to the trustees appointed by the will upon trust for such of the children of the deceased as shall survive the deceased and if more than one in equal shares as tenants in common, and in the events which have occurred, the plaintiff holds upon trust the whole of the estate of the deceased for Sylvia Berta Margit Parsons of 33 Aver Avenue, Daw Park, in South Australia and Trudi Barnes of Lot 3 Aldgate Valley Road Mylor in South Australia in equal shares as tenants in common, the step-children of the deceased.

    -The costs of and incidental to these proceedings of the plaintiff and the defendant be paid out of the estate of the deceased upon the footing of an indemnity.

    -The summons otherwise be dismissed.