In the Estate of KEYS (DECEASED) - [2017] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of KEYS (DECEASED)
[2017] SASC 28
Judgment of The Honourable Justice Bampton
8 March 2017
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
Probate was granted to Australian Executor Trustees Ltd. The plaintiff brought an action seeking rectification of the deceased’s last will pursuant to section 25AA of the Wills Act 1936 (SA). Australian Executor Trustees Ltd filed an interlocutory application seeking summary judgment. The Registrar of Probates found that the plaintiff’s case could not succeed and ordered that the action be dismissed and the plaintiff pay the defendants’ costs. The plaintiff appealed the Registrar’s decision. Rectification is appropriate where a clerical mistake by omission or otherwise has interfered with the deceased’s intentions. The plaintiff has not provided any clear and convincing proof that the will does not reflect the testamentary intentions of the deceased. The Registrar correctly dismissed the plaintiff’s action.
HELD:
1. Appeal dismissed.
2. Appellant is to bear her own costs and pay the executor’s costs of the appeal on a party-party basis.
Corporations Act 2001 (Cth) s 601WBA; Probate Rules 2015 (SA) r 66, r 82; Wills Act 1936 (SA) s 25AA; Supreme Court Civil Rules 2006 (SA) r 232, referred to.
In the Estate of Frances Ponikvar (Deceased) [2016] SASC 95, applied.
In the Estate of Barrett (Deceased) [2013] SASC 150; In the Estate of Hennekam (Deceased) (2009) 104 SASR 289; Roos v Karpenkow (1998) 71 SASR 497, discussed.

In the Estate of KEYS (DECEASED)
[2017] SASC 28
Testamentary Causes Jurisdiction

BAMPTON J: Yvonne Keys (“the deceased”) a widow, who had no children died on 29 May 2014. Her last will, executed on 27 April 2000 (“the will”), appointed IOOF Australia Trustees Limited as executor and trustee.
Probate of the will was granted to Australian Executor Trustees Limited (“the executor”) (a successor, by virtue of a “voluntary transfer determination”,[1] of IOOF Australia Trustees Limited) on 6 November 2014.
[1] Corporations Act 2001 (Cth) s 601WBA.
Pursuant to clause 4 of the will, the deceased left her entire estate to her husband providing he survived her by one calendar month. As the deceased’s husband predeceased her on 14 August 2007 her residuary estate is to be distributed in accordance with the substitution clause provided for in clause 5 of the will. Clause 5 provides:
Should my said husband predecease me or fail to survive me as aforesaid THEN I DIRECT my trustees to stand possessed of my residuary estate subject to the payment thereout of all my just debts funeral (if any) and testamentary expenses as aforesaid upon the following trusts:-
(a)As to all of my books for my said husband’s nephew GEOFFREY KEYS provided he shall survive me absolutely
(b)As to the balance of my residuary estate I DIRECT my trustees to divide the same into as many equal parts as shall be required to satisfy such of the following trusts as shall not have wholly failed (the failed trusts being disregarded) and to stand possessed of the said equal parts upon the following trusts:-
(i) As to ONE EQUAL PART for EACH of them my said husband’s nieces CAROL LEE and BARBARA ELLIS my said husband’s nephews the said GEOFFREY KEYS and STEPHEN KEYS and my said husband’s niece JUDITH KEYS who shall survive me absolutely
(ii) As TWO SUCH EQUAL PARTS for EACH of them my cousin GLENDA KLEEMANN and my niece JUDITH SUTCLIFFE who shall survive me absolutely
The action for rectification
On 5 May 2015, Judith Keys, a niece of the deceased’s husband, commenced by summons, as required by r 66 of the Probate Rules 2015 (SA) (“the Probate Rules”), an action for rectification of the will pursuant to s 25AA of the Wills Act 1936 (SA) (“the Wills Act”). The order sought in the summons is that:
The Will be rectified by the deletion of clause 5(a), the words “my said husband’s nieces CAROL LEE and BARBARA ELLIS my said husband’s nephews the said GEOFFREY KEYS and” in clause 5(b)(i) and clause 5(b)(ii).
If the Court were to make this order, Ms Keys and her brother Stephen Keys would take the whole of the deceased’s estate equally.
The summons named the executor as the first defendant. The second to seventh defendants are the other beneficiaries named in clause 5 of the will. Ms Keys served only the executor with the proceedings.
In her affidavit sworn on 4 May 2015 filed in support of the summons, Ms Keys deposes that the deceased had informed her (Ms Keys’) mother that the deceased and her husband would leave “everything to each other and then to my brother Stephen and me”. Ms Keys maintains that on the basis of this promised inheritance she resigned from the Australian Public Service in order to complete her law degree with the intention of going to the Bar in Sydney. Ms Keys states it is her understanding that her uncle and aunt considered she and her brother were their heirs.
Ms Keys deposes that she completed her law degree, moved to Sydney in January 1993, and was admitted to the New South Wales Bar Association.
Ms Keys asserts that she was “shocked” when she received a copy of the will from the executor by letter dated 29 July 2014. Ms Keys’ “shock” related to the inclusion of other beneficiaries. Ms Keys deposes at the conclusion of her affidavit:
I am making this application under section 25AA of the Wills Act because I am very distressed that the Second to Sixth Defendants seem to have taken advantage of Paul and Vonny in circumstances when they were extremely vulnerable for a long period of time, and particularly when the Second Defendant was given power of attorney because she was trusted by my aunt and uncle.[2]
[2] “Paul” is the deceased’s late husband. “Vonny” is the deceased. The plaintiff’s supposition as to the appointment of the second defendant as attorney proved to be wrong.
The executor entered an appearance to the summons on 1 June 2015 opposing the application.
On 18 February 2016, the executor filed an interlocutory application seeking:
1.There be summary judgment for the defendants upon the grounds that there is no reasonable basis for the claim.
2.In the alternative an order for a default judgment dismissing the claim upon the basis that the plaintiff has failed to serve the summons upon the second to seventh defendants and has failed to comply with Probate Rule 66(3).
On 22 March 2016, the Registrar of Probates (“the Registrar”) made the following orders:
1.I extend the time within which the summons is to be served on the second to seventh defendants for six weeks from today.
2.I direct the plaintiff and the first defendant to make disclosure of documents within three weeks from today.
3.I direct that the plaintiff file any further affidavits on which she wishes to rely in support of the summons within five weeks from today.
4.I direct that the first defendant file any further affidavits on which it wishes to rely in opposition to the summons within a further two weeks.
5.Liberty to any party to apply.
Ms Keys filed further affidavits sworn on 29 June 2016 and 14 July 2016. She did not comply with order 1 as to service of the proceedings on the other defendants.
An affidavit sworn on 12 August 2016 by Neil Whitehall Page, Legal Counsel employed by the executor, was filed in support of the executor’s application. Previous wills made by the deceased and her late husband and will instruction forms are exhibited to Mr Page’s affidavit.
During the hearing of the executor’s application for summary judgment on 16 August 2016, Ms Keys cross-examined Mr Page and made submissions regarding the validity of the will asserting “suspicious circumstances” existed.
The Registrar indicated in his reasons[3] dated 12 September 2016 that he had no hesitation in accepting Mr Page’s evidence. The Registrar rejected Ms Keys’ submissions and, in finding there was no arguable basis for the maintenance of the claim against the defendants, dismissed Ms Keys’ action for rectification ordering that she pay the defendants’ costs.[4]
[3] In the Estate of Yvonne Joan Keys (deceased) (Unreported, Supreme Court of South Australia, Registrar of Probates, 12 September 2016).
[4] In the Estate of Yvonne Joan Keys (deceased) (Unreported, Supreme Court of South Australia, Registrar of Probates, 12 September 2016) at [56].
Ms Keys now appeals the Registrar’s decision to this Court pursuant to r 82 of the Probate Rules.
The appeal
Rectification of the will pursuant to s 25AA of the Wills Act
Section 25AA(1)(a) of the Wills Act states:
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.
Rectification is appropriate where a clerical mistake by omission or otherwise has interfered with the deceased’s intentions. Evidence of matters which gave rise to the mistake is admissible including instructions given by the testator to the person who prepared the will.[5]
[5] David M Haines QC, Construction of Wills in Australia (LexisNexis Butterworth, 2007) 7.
For an order of rectification to be made, Ms Keys must provide clear and convincing proof of error and must clearly establish what form the document was intended to take.[6]
[6] In the estate of Hennekam (deceased) (2009) 104 SASR 289 at [35] quoting the stated Parliamentary intention when s 25AA of the Wills Act 1936 (SA) was introduced in 1994.
In support of her appeal, Ms Keys seeks to rely on the hearsay evidence to the effect that not long after her father died on 5 May 1988, the deceased had informed her mother that the deceased and her husband would leave “everything to each other and then to my brother Stephen and me”.[7]
[7] Affidavit of Judith Ann Keys sworn on 4 May 2015 at [11] and [12].
The grounds of appeal
In ground 3(a) of the grounds of appeal set out in the notice of appeal, Ms Keys contends that the Registrar erred in not applying the “conclusion of fact In the Estate of Barrett”.[8] The Registrar was referred to this decision after judgment was reserved. In his reasons, the Registrar correctly stated the principle in Barrett where Gray J was satisfied that the deceased did not have sufficient understanding of the alleged will to allow an order for rectification. Unlike the evidence before Gray J in Barrett, there was no evidence put before the Registrar to suggest that the will did not accurately reflect the deceased’s intentions.
[8] [2013] SASC 150.
The compelling evidence before the Registrar was that mirror wills had been previously executed by the deceased and her husband and various will instructions given by the deceased and her husband between 1968 and 1999.[9] Notably Ms Keys and her brother were not named as the sole beneficiaries in any of the previous wills or nominated as the sole beneficiaries in any of the will instructions.
[9] Affidavit of Judith Ann Keys sworn on 29 June 2016 annexures F, G, H and Affidavit of Neil Whitehall Page sworn on 12 August 2016 annexures A, C, D, E and F.
Further the terms of the deceased’s husband’s will dated 27 April 2000 reflect the same testamentary disposition as the will.[10]
[10] Affidavit of Neil Whitehall Page sworn on 12 August 2016 annexure D.
As the Registrar found, Ms Keys has failed to provide any clear and convincing evidence to support her assertion that the will does not accurately reflect the testamentary intentions of the deceased.
Ms Keys’ allegations of suspicious circumstances
In ground 3(b), Ms Keys argues that the Registrar misconstrued s 25AA of the Wills Act.
The Registrar in his reasons stated that Ms Keys said that there were suspicious circumstances, in particular:[11]
·    several discovered documents did not reflect the intentions of her aunt and uncle;
·    a 1999 will instruction form contained a list of names on an envelope, but (Ms Keys said) no express instruction to leave anything to the persons named;
·    the 1999 and 2000 wills provided substantially for Glenda Kleeman, who had been appointed guardian of her aunt and uncle; and
·    the deceased had Alzheimer’s Disease and her husband was incapacitated.
[11] In the Estate of Yvonne Joan Keys (deceased) (Unreported, Supreme Court of South Australia, Registrar of Probates, 12 September 2016) at [30].
The Registrar said that submissions of this nature:[12]
… are frequently made in cases where the validity of a will is in issue. “Suspicious circumstances” may place an onus on the propounder of a document to establish “the righteousness of the transaction” – see Roos v Karpenkow.[13]
He went on to say that he was not referred to, and was not aware of, any case in which such submissions have been made in support of an action for rectification of a will.
[12] In the Estate of Yvonne Joan Keys (deceased) (Unreported, Supreme Court of South Australia, Registrar of Probates, 12 September 2016) at [31].
[13] (1998) 71 SASR 497.
The doctrine of suspicious circumstances has developed and extended to all circumstances which excite suspicion or give any well-grounded suspicion that the document did not express the mind of the testator.[14] Relevantly, the doctrine of suspicious circumstances relates to the validity of a will, not to the issue of rectification.
[14] David M Haines QC, Succession Law in South Australia (LexisNexis Butterworths, 2003) 82.
As the Registrar states in his reasons, the validity of the will is not an issue in this action.[15]
[15] In the Estate of Yvonne Joan Keys (deceased) (Unreported, Supreme Court of South Australia, Registrar of Probates, 12 September 2016) at [52].
Further, as submitted by counsel for the executor, the fact that the will was duly executed gives rise to the presumption that the deceased knew, and approved, of its contents.
Section 25AA of the Wills Act was not misconstrued by the Registrar.
In ground 3(c), Ms Keys complains that the Registrar wrongly described her action as an action for revocation in [54] of his reasons. The reference in [54] to revocation is clearly a slip. It is patently evident, having regard to the Registrar’s reasons, that he well understood that Ms Keys’ case was an action for rectification.
Further, Ms Keys alleges that the Registrar dismissed her action in circumstances where there were no pleadings or evidence from the executor or any other beneficiaries. There is no basis for this complaint. Ms Keys’ cross‑examined Mr Page, whose evidence was accepted without reservation by the Registrar. Of course, there was no evidence from the other beneficiaries for the simple reason that Ms Keys had failed to serve them with the proceedings.
Contrary to Ms Keys’ submissions regarding her grounds of appeal, both numbered 3(d) and (d) (sic), the Registrar:
·correctly applied the test for summary judgment pursuant to r 232 of the Supreme Court Civil Rules 2006 (SA) as set out in [26] and [27] of his reasons; and
·did not err in finding that the other beneficiaries should have been served. However, the Registrar found at [46] and [47] that he would not dismiss the action because Ms Keys had failed to serve the second to seventh defendants.
None of the grounds of appeal are made out.
Conclusion
There is no basis for this application for the rectification of the grant of probate. The Registrar correctly dismissed Ms Keys’ application for rectification.
Ms Keys does not appear to appreciate that even if the will was found to be invalid, the executor would still carry the positive obligation of propounding the deceased’s will dated 9 June 1999, referred to in Mr Page’s affidavit at paragraph [5], to probate.
Costs
Ms Keys also appeals against the Registrar’s order that she pay the defendants’ costs of the action.
Ms Key maintained her application for rectification based on hearsay evidence. Furthermore, on 27 May 2016, she was provided with the opportunity to personally inspect the respondents’ discovered documents.[16] Upon inspecting the documents it should have been apparent to Ms Keys that her application was bound to fail.[17] It has been over two years since probate was granted. This action has prevented the executor from finalising the administration of the estate and the other named beneficiaries from receiving their gifts upon distribution of the assets of the estate.
[16] Affidavit of Judith Ann Keys sworn on 29 June 2016 at [2].
[17] In the Estate of Frances Ponikvar (Deceased) [2016] SASC 95.
The Registrar did not err in ordering that Ms Keys pay the defendants’ costs of the action.
Orders
I dismiss the appeal and order that Ms Keys is to bear her own costs and pay the executor’s costs of the appeal on a party-party basis.