In the Estate of Karina June Tyson
[2023] ACTSC 353
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Karina June Tyson |
Citation: | [2023] ACTSC 353 |
Hearing Date: | 7 July 2023 (further evidence filed 11 August 2023, 16 August 2023 and 16 October 2023) |
Decision Date: | 28 November 2023 |
Before: | Baker J |
Decision: | (1) Pursuant to s 12A(3) of the Wills Act 1968 (ACT), the Court grants leave to the plaintiff to make an application for rectification of the will of the late Karina June Tyson dated 22 February 1999. (2) Pursuant to s 12A(2) of the Wills Act 1968 (ACT), the Will of the late Karina June Tyson dated 22 February 1999 be rectified as follows: (a) To insert a new paragraph after the words “Al the cat is to be taken care of by Alex Tyson”: (i) I leave the residue of my estate to Hayley Alexandra Tyson absolutely and I request that she distributes it as she sees fit. I would like to see both my parents and my sister and her family receive benefits. (3) The parties’ costs of the Application in Proceeding dated 20 April 2023 be paid from the Estate of the late Katrina June Tyson on an indemnity basis. (4) The Application in Proceeding dated 20 April 2023 is otherwise dismissed. |
Catchwords: | SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – RECTIFICATION – testator’s intention – principles of rectification – s 12A of the Wills Act 1968 (ACT) – whether rectification of will ought to be made so as to give effect to testator’s probable intention – additional assets accrued after execution of will – will did not include residuary clause – where all interested parties consent to rectification – application for rectification granted. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 221(b), 280(2) Wills Act 1968 (ACT), ss 12A, 12B |
Cases Cited: | In the Estate of Rummer [2017] ACTSC 277; 12 ACTLR 258 IW v City of Perth [1997] HCA 30; 191 CLR 1 |
Parties: | Hayley Alexandra Tyson ( Applicant) Gaetano Aiello as Litigation Guardian for Donald Gordon Tyson (First Defendant) Ines Charlotte Tyson (Second Defendant) |
Representation: | Counsel T Morton ( Plaintiff) L Babic ( First Defendant) P Cabban (Second Defendant) |
| Solicitors Farrar Gesini Dunn ( Plaintiff) Thomson Geer Lawyers ( First Defendant) Bradley Allen Love Lawyers (Second Defendant) | |
File Number: | PRO 961 of 2021 |
BAKER J:
Introduction
1․The plaintiff, Hayley Alexandra Tyson, seeks rectification of the will of the late Karina June Tyson (the testator) dated 22 February 1999 (the Will), pursuant to s 12A of the Wills Act 1968 (ACT).
2․The testator is the plaintiff’s sister, and the daughter of the first and second defendants, Donald and Ines Tyson.
3․In the Will, the testator left the majority of the assets she owned at the time to the plaintiff, to be distributed to their family as the plaintiff saw fit. She also made several small individual bequests. After the testator executed the Will, she accrued significant assets which were not included in the Will. As the Will did not include a residuary clause distributing any additional assets which were not specifically covered by the Will, these assets would, under general law, be inherited by the testator’s next of kin – in this case, her parents (the first and second defendants).
4․The plaintiff submits that the testator’s intention was to leave the entirety of her estate (the Estate) – including the assets accrued after execution of the Will – to the plaintiff for distribution among the testator’s family. Accordingly, by way of application in proceeding filed 20 April 2023, the plaintiff seeks orders rectifying the Will such that the residuary of the Estate will be transferred to the plaintiff for distribution amongst the testator’s family.
5․Each of the persons who have a potential interest in the testator’s estate (that is, the first and second defendants and the testator’s nieces) have been served with a copy of the present application. The orders sought by the plaintiff are consented to by the first and second defendants. In affidavits which were filed with the Court after the hearing, the testator’s nieces (the plaintiff’s daughters) also indicated their agreement with the orders sought.
6․For the reasons outlined below, I am satisfied that the Will should be rectified in the manner sought by the plaintiff.
Background
7․The plaintiff is the testator’s only sibling. The plaintiff is a de facto widow and has two children, the nieces of the testator: Adele Georgina Mary Tyson (who resides in the United Kingdom) and Isobel Philippa Tyson (who resides in Australia).
8․The first defendant, Donald Gordon Tyson, is the testator’s father. He currently resides in a nursing home and has “lost capacity”. The second defendant, Ines Charlotte Tyson, is the testator’s mother. She resides in Victoria. The testator’s parents divorced some time ago.
9․The testator made the Will on 22 February 1999. The terms of the Will relevant to the application in these proceedings are as follows (emphasis added):
…
I leave any money from ANZ account number [redacted] & also the term deposits [redacted] & [redacted] to Hayley Alexandra Tyson of [redacted] to distribute as she sees fit. I would like to see both my parents, sister & her family receive benefits.
I leave all scuba diving equipment & the pearl necklace to Karen Owens c/o 40 Laffer St Barmera S.A. All veterinary textbooks can go to Kim Chaffey of Newee Creek N.S.W. the veterinary books from Clem Rundell & my large animal equipment are to go to Margaret-Mary McEwen c/o Casteldoyle Rd Armidale NSW. All books jointly owned with Stephen John Tyson of Mackay Qld, are to be left to him. The car, life insurance policy, shares & camera are to go to Alex Tyson.
…
10․After making the Will, the testator moved to Canberra. She subsequently acquired an interest in a property in Narrabundah (the Narrabundah property), and began to accrue interest in a Public Service Superannuation fund (PSS interest).
11․The testator died sometime between 13 and 15 May 2021.
12․On 1 December 2021, the plaintiff lodged an application dated 16 November 2021, which sought the grant of letters of administration of the testator’s estate with the Will dated 22 February 1999. On 3 December 2021, the plaintiff was granted letters of administration of the Estate.
13․On 20 April 2023, the plaintiff filed the present application and a supporting affidavit affirmed 20 April 2023 in this Court, seeking the following orders:
(a)the Court grant leave pursuant to s 12A(3) of the Wills Act 1968 to apply for an order of rectification of the Will of the testator up until the date of filing of the application;
(b)Pursuant to s 12A(2) of the Wills Act, the probate copy of the Will be rectified to give effect to the testator’s probable intentions; and
(c)The costs of the plaintiff’s application be paid from the Estate.
14․The application was made on the following grounds:
1. The Will in 1999 gave away all assets that she had at the time to the Plaintiff.
2. There was no residuary clause in the Will.
3. The assets were different at the date of death.
4. The intestacy rules result in an outcome not in accordance with the Deceased’s probable intentions.
5. The Will should be rectified to give effect to the probable intention that the Deceased would have wanted the whole estate to pass to the Plaintiff on the on the (sic) same terms as the Will.
15․On 23 June 2023, Curtin AJ made orders that the first and second defendants be added to the proceedings pursuant to r 221(b) of the Court Procedures Rules 2006 (ACT), and that Gaetano Aiello be appointed as the litigation guardian for the first defendant, pursuant to r 280(2) of the Court Procedures Rules. Acting Justice Curtin also directed that the plaintiff formally serve her two daughters, Adele Tyson and Isobel Tyson, with notice of the present application.
16․The plaintiff’s application came before me on 7 July 2023. The Court was advised that all parties consented to the orders sought in the application. In support of the application, the plaintiff’s counsel read two affidavits of the plaintiff dated 20 April 2023 and 29 June 2023 respectively. These affidavits are summarised below.
17․The plaintiff’s counsel also read an affidavit of Ms Win, solicitor for the plaintiff, affirmed on 28 June 2023, in which Ms Win confirmed that she had served relevant documents, including the grant of letters of administration, the present application and the plaintiff’s affidavit affirmed on 20 April 2023 on Adele Tyson and Isobel Tyson. Ms Win recorded that Adele Tyson confirmed receipt of these materials on 27 June 2023.
18․Counsel for the plaintiff indicated that he also wished to rely on two further affidavits, from Adele Tyson and Isobel Tyson. However, counsel informed the Court that the Isobel Tyson had affirmed her affidavit the day prior, on 6 July 2023, in Melbourne, and that the original affidavit was being posted from Melbourne that day. I granted leave for a copy of that affidavit of Isobel Tyson be filed in Court, upon the plaintiff undertaking to provide the original to the Court by close of business on Monday 10 July 2023. The original affidavit of 6 July 2023 was not filed by 10 July 2023. Instead, a further affidavit of Isobel Tyson affirmed on 8 August 2023 was filed with the Court on 11 August 2023. This affidavit is in the same terms as the affidavit affirmed 6 July 2023. The content of that affidavit is summarised at [41] – [42] below.
19․The plaintiff’s counsel also indicated that the plaintiff relied on an affidavit of Adele Tyson affirmed on 6 July 2023. However, each page of that affidavit had not been signed by Ms Tyson. Given this deficiency, I did not grant leave for this affidavit to be filed in Court. The plaintiff’s counsel indicated that a corrected original affidavit would be filed with the Court within about two weeks.
20․On 16 August 2023, the plaintiff filed an additional affidavit of Ms Win affirmed on 15 August 2023. This affidavit annexed correspondence between Adele Tyson and the plaintiff’s solicitor relating to the execution of Ms Adele Tyson’s affidavit.
21․On 30 October 2023, the plaintiff filed an affidavit of Adele Tyson, affirmed on 27 October 2023. The content of this affidavit is summarised at [43] – [44] below.
Legislation
22․Section 12A of the Wills Act provides as follows concerning the rectification of a will:
12A Rectification
(1)If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator’s intentions.
(2)The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator’s probable intention if satisfied that—
(a)any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will):
(i) the circumstances or events were not known to, or anticipated by, the testator;
(ii) the effects of the circumstances or events were not fully appreciated by the testator;
(iii) the circumstances or events arose or happened at or after the death of the testator; and
(b)because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects.
(3)Except with the leave of the Supreme Court, an application to the court for an order for rectification shall not be made after the expiration of the period of 6 months commencing—
(a)…
(b)…
(c)in any other case—on the day of the grant of probate of the will or letters of administration of the relevant estate with will annexed.
23․Section 12B of the Wills Act provides as follows concerning the evidence that may be admitted to assist in the construction of a will:
12BExtrinsic evidence
In proceedings to construe a will, evidence, including evidence of the testator’s dispositive intention, is admissible to the extent that the language used in the will renders the will, or any part of the will—
(a)meaningless; or
(b)ambiguous or uncertain on the face of the will; or
(c)ambiguous or uncertain in the light of the surrounding circumstances;
but evidence of a testator’s dispositive intention is not admissible to establish any of the circumstances referred to in paragraph (c).
Rectification principles
Introduction
24․Section 12A of the Wills Act provides for two separate powers of rectification:
(i)Section 12A(1), which permits rectification of a will where the Supreme Court is satisfied that the probate copy of the will is so expressed that it fails to carry out the actual intention of the testator when making the will; and
(ii)Section 12A(2), which permits rectification of a will to give effect to the “probable intention” of the testator to address circumstances or events that were not known, anticipated, or fully appreciated by the testator, or which occurred at or after the death of the testator.
25․The power under s 12A(2) is considerably broader than the power under s 12A(1). As McWilliam AsJ (as her Honour was then) observed in observed In the Estate of Rummer [2017] ACTSC 277;12 ACTLR 258 at [103]:
[Section 12A(2)] is somewhat radical in that it expressly allows the Court to fill the gap and do what the common law precludes […], namely to determine the testator’s probable intention if (relevantly) he had fully appreciated circumstances that were not known by him, or their legal effect, and even including circumstances which occurred after the testator’s death, and then to supply words to meet those circumstances.
Rectification under s 12A(1)
26․When considering an application to rectify a will under s 12A(1) of the Wills Act, the Court will need to determine:
(a)the meaning of the will;
(b)the testamentary intention of the testator;
(c)whether the will accurately reflects that intention; and, if not,
(d)whether the will can be rectified and, if so, in what terms.
See In the Estate of Rummer at [32].
27․Extrinsic evidence may be admitted to assist in the interpretation of the will where the language used in the will is meaningless, ambiguous or uncertain on its face or in light of the surrounding circumstances: s 12B of the Wills Act. Such extrinsic evidence may include evidence of a testator’s dispositive intention where the language used in the will is meaningless, ambiguous or uncertain on its face, but evidence of the testator’s dispositive intention is not admissible to establish that the will is ambiguous or uncertain in light of the surrounding circumstances: s 12B of the WillsAct.
28․The Court must be satisfied of the testamentary intentions of the testator as at date that the will was made: In the Estate of Rummer at [34]. When discerning the testator’s intentions, the Court is to:
…start with the words of the Will and if their usual meaning in the context of the Will is clear, then that meaning is given. If not, then resort can be had to such extrinsic evidence as traditionally applied by the courts in construing a will, together with the aids of construction.
See In the Estate of Rummer at [44].
29․The standard of proof applied in determining the testator’s intentions is the balance of probabilities. However, because the will has been signed by the testator and is the expression of the intention of a person who is not available to give evidence, the Court is required to carefully examine the relevant evidence: In the Estate of Rummer at [37].
Rectification under s 12A(2)
30․Rectification may be ordered under s 12A(2) of the Wills Act where the Court is satisfied that:
(a)there were circumstances or events (or effects of circumstances or events) which were not known to, anticipated by, or fully appreciated by, the testator, or which arose at or after the testator’s death; and
(b)because of these circumstances or events, the testator’s will would fail to give effect to the testator’s probable intention if the testator had known of, anticipated, or fully appreciated their effects.
31․The exercise that is performed under s 12A(2) is “premised entirely on a hypothetical case”: In the Estate of Rummer at [102]. The Court is to determine what the testator’s probable intention would have been if the testator had known, anticipated or fully appreciated the effects of events or circumstances which were unknown or not fully appreciated by the testator at the time of making the Will.
32․The Court retains a broad judicial discretion under s 12A(2) to determine what is in the interests of justice, having regard to the circumstances of the case before it: In the Estate of Rummer at [111].
33․Bearing in mind that s 12A(2) is beneficial or remedial legislation, the provision should be interpreted in a way that is “fair, large and liberal”, rather than “literal or technical”: In the Estate of Rummer at [112], citing IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12.
Evidence
Affidavit of the plaintiff, affirmed on 20 April 2023
34․In her affidavit affirmed on 20 April 2023, the plaintiff described the testator’s surviving family members, her relationship with the testator and the reasons for the delay in commencing the proceedings.
35․The affidavit also annexed a further affidavit of the plaintiff affirmed on 31 January 2022, which in turn annexed an updated Inventory of Assets in relation to the Estate. The updated Inventory of Assets includes the PSS Fund and the Narrabundah property and records that the net value of property owned solely by the testator in the ACT amounts to $1,214,232.16.
Affidavit of the plaintiff, affirmed on 29 June 2023
36․In a further affidavit, affirmed on 29 June 2023, the plaintiff provided additional information concerning her relationship with the testator and detailed conversations which the plaintiff had with the testator in December 2020 (that is, about six months before the testator’s death).
37․The plaintiff stated that the testator told the plaintiff that she had a will, and that the plaintiff was the executor of that will. The testator told the plaintiff that the plaintiff would be responsible of the distribution of all her assets, and that it was the testator’s wish that the assets be distributed amongst the plaintiff, their parents, and the plaintiff’s daughters. The plaintiff explained that the testator “did not make any specific reference to what any of our relatives would or should receive or whether they would receive equal or unequal shares”. The plaintiff confirmed that it remained her intention to share the assets with their parents and her children. She believes that the testator would “approve of [her] decision in this regard”.
38․The plaintiff also provided further information concerning the Will. She stated that the assets owned by the testator at the time of making the Will (that is, in February 1999) were limited to those assets which are listed in the Will, namely, the ANZ Bank accounts, a motor vehicle, a handful of shares, a life insurance policy and personal effects (including a car, camera, scuba diving equipment, veterinary textbooks, other books and a pearl necklace).
39․The plaintiff explained that after the Will was made, the testator relocated to Canberra to work in the Australian Public Service and began accruing her “PSS interest”. In November 2007, the testator acquired the Narrabundah Property (as evidenced by a transfer document annexed to this affidavit). Neither of these significant assets were included in the Will.
40․The plaintiff affirmed that it is her belief that the testator intended “to give her whole estate to me [that is, all of her assets, including the PSS interest and Narrabundah Property, but excluding specific gifts mentioned in the Will] on the basis that I would share the estate our family”. The plaintiff formed this view on the basis that the assets gifted to her in the Will “represented all of [the testator’s] assets at the time other than the specific gifts of personal effects made to her friends.”
Affidavit of Isobel Philippa Tyson, affirmed on 11 August 2023
41․In this affidavit, Ms Isobel Tyson stated that she consented to the rectification to the Will as sought in the present application. Isobel Tyson also gave evidence of the following:
(a)There had been several instances where she or her sister (Adele Tyson) expressed admiration of a piece of art or furniture in the testator’s house and the testator responded “that we could choose to inherit it from her estate after her death.”
(b)Her “impression from [the testator’s] words was that she wanted us to request to receive assets from [the testator’s] estate after she died, rather than us being immediately entitled to receive anything”; and
(c)That the testator had indicated to her on “more than one occasion” that the plaintiff “would be in charge of her affairs after she died”.
42․Isobel Tyson also confirmed that she had received a copy of the 20 April 2023 application in proceeding and a copy of the plaintiff’s supporting affidavit affirmed on 20 April 2023. Isobel Tyson stated that the rectification of the testator’s will is “consistent with what I understand were [the testator’s] intention during her lifetime”, specifically, that the testator “wanted to give everything to [the plaintiff], and trusted her to distribute the assets among [the testator’s] remaining relatives, namely, myself, Adele, and my grandparents at Mum’s discretion”. She concluded by formally consenting to the rectification of the Will as sought in the present application.
Affidavit of Adele Tyson, affirmed on 27 October 2023
43․In her affidavit affirmed on 27 October 2023, Ms Adele Tyson also recalled instances where she or her sister Isobel expressed admiration of the testator’s belongings, and the testator responded “that we could choose to inherit it from her estate after her death”. Like Adele Tyson, Isobel Tyson said that her impression was that the testator “wanted us to request to receive assets from [her] estate after she died, rather than us being immediately entitled to receive anything”. Adele Tyson also stated that the testator had indicated on “more than one occasion” that the plaintiff “would be in charge of her affairs after she died”.
44․In this affidavit, Adele Tyson also confirmed her receipt of a copy of the 20 April 2023 application in proceeding and a copy of the plaintiff’s supporting affidavit affirmed 20 April 2023. She stated that she believed that the rectification of the testator’s will as sought in the application is “consistent with what I understand were [the testator’s] intention during her lifetime”, noting that to her knowledge, the testator “wanted to give everything to [the plaintiff], and trusted her to distribute the assets among [the testator’s] remaining relatives…” She concluded by formally consenting to the rectification of the Will as sought in the present application.
Determination
Delay
45․Section 12A(3)(c) of the Wills Act provides that an application for rectification shall not be made more than six months after the day of the grant of probate of the will or letters of administration of the relevant estate, without the leave of the Court.
46․The present application was filed more than 12 months after 3 December 2021, the day on which the letters of administration of the estate of the testator were granted to the plaintiff.
47․The plaintiff has explained the reasons for her delay in commencing the application in her affidavit of 20 April 2023, which included the need for her parent’s capacity to be assessed before any decisions could be made about the distribution of the Estate. I am satisfied that it is appropriate to grant the plaintiff leave under s 12A(3) of the Wills Act to make this application for rectification.
The application for rectification
48․As outlined at [24] above, s 12A of the Wills Act confers two separate sources of power to rectify a will. The first (s 12A(1)) is a power to rectify a will where the will fails to carry out the testator’s actual intention when making the will. The second (s 12A(2)) is a power to rectify a will to give effect to the “probable intention” of the testator, so as to address circumstances or events that were not known, anticipated, or fully appreciated by the testator, or which occurred at or after the death of the testator.
49․The proposed consent orders sought that the Will be rectified under s 12A(1) of the Wills Act. I do not consider it appropriate to exercise power to rectify under this provision. I do not consider that the Will failed to give effect to the testator’s actual intention at the time of making the Will. The testator’s intention at the time of making the Will was to distribute the assets which she then possessed in the manner provided for by the Will.
50․However, for the following reasons, I am satisfied that it is it is appropriate to rectify the Will under s 12A(2) of the Wills Act.
51․It is apparent that, at the time that the testator made the Will in 1999, she did not anticipate that she would later accrue further assets of substantial value. Accordingly, I am satisfied that the acquisition of the Narrabundah property and the PSS fund are properly characterised as “circumstances or events [which] were not known to, or anticipated by, the testator” at the time of making the Will: s 12A(2)(a)(i) of the Wills Act.
52․I am also satisfied that the application of the provisions of the Will according to their tenor would fail to give effect to the testator’s probable intention if she had known or anticipated that she would subsequently accrue these assets. Specifically:
(i)In my view, the testator’s probable intention can be discerned from the face of the Will. The Will provides that the primary financial component of the testator’s Estate – namely, the contents of the ANZ bank account and the term deposits – were to be left to the plaintiff to distribute to their broader family. I am satisfied that this demonstrates that the plaintiff’s probable intention was that any assets acquired by her in the future should be dealt with in the same manner. This probable intention is also confirmed by the evidence in the affidavit evidence of the testator’s family members.
(ii)This probable intention does not accord with the provisions of the Will. As the Will did not include a residuary clause, the further assets acquired by the testator after making the Will would, under general laws of intestacy, be inherited solely by the first and second defendants, who are the testator’s next of kin.
53․The proposed rectification would give effect to the testator’s probable intention, by stating that the residue of the Estate is to be left to the plaintiff to be distributed as she sees fit.
54․I note that each of the persons with a potential interest in the Will consent to the plaintiff’s application for rectification. In these circumstances, I am satisfied that it is appropriate to rectify the Will in the manner sought by the plaintiff in the present application.
Orders
55․For the reasons outlined above, I make the following orders:
(1)Pursuant to s 12A(3) of the Wills Act 1968 (ACT), the Court grants leave to the plaintiff to make an application for rectification of the will of the late Karina June Tyson dated 22 February 1999.
(2)Pursuant to s 12A(2) of the Wills Act 1968 (ACT), the Will of the late Karina June Tyson dated 22 February 1999 be rectified as follows:
(b)To insert a new paragraph after the words “Al the cat is to be taken care of by Alex Ty son”:
(ii) I leave the residue of my estate to Hayley Alexandra Tyson absolutely and I request that she distributes it as she sees fit. I would like to see both my parents and my sister and her family receive benefits.
(3)The parties’ costs of the Application in Proceeding dated 20 April 2023 be paid from the Estate of the late Katrina June Tyson on an indemnity basis.
(4)The Application in Proceeding dated 20 April 2023 is otherwise dismissed.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date: 28 November 2023 |
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