In the Estate of LEWIS BARRETT (DECEASED) - [2013] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of LEWIS BARRETT (DECEASED)
[2013] SASC 150
Judgment of The Honourable Justice Gray
4 October 2013
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
SUCCESSION - MAKING OF A WILL - REVOCATION - GENERAL PRINCIPLES
The executor of a deceased’s estate applied for the rectification of the last will of the deceased. The last will was prepared at the direction of the deceased’s solicitor after the solicitor became aware of shortcomings in provisions contained in an earlier will of the deceased relating to the creation of testamentary trusts. The deceased signed the last will at a time when he was terminally ill. The deceased was too ill to read the will, to have it read to him, or to have the intended changes fully explained to him. Following the death of the deceased, the solicitor became aware of several errors in the will, including the omission of any reference to one intended beneficiary and an error in the provision of the estate between other beneficiaries. The executor applied for the rectification of the will to address these deficiencies.
Held: Application dismissed. The deceased did not have a sufficient understanding of the last will to allow for an order for rectification. The deceased was unaware of both the deficiencies in the will and the changes to the testamentary trust provisions. The deceased therefore lacked testamentary intention in respect of the last will. Order made for the recall of the grant of probate of the last will. It would be appropriate for a grant of probate to be made in respect of the deceased’s earlier will.
Wills Act 1936 (SA) s 17 and s 25AA, referred to.
In the Estate of Dawes (2011) 112 SASR 117; Hall v Carney [2012] SASCFC 76; Nock v Austin (1918) 25 CLR 519, considered.

In the Estate of LEWIS BARRETT (DECEASED)
[2013] SASC 150
Testamentary Causes Jurisdiction
GRAY J.

This is an application for the revocation of a grant of probate and a declaration that the grant is null and void. At the same time, the applicant pursues an application for rectification of the will of Lewis Barrett, deceased, dated 12 May 2012. The applicant, Susan Meredith Hancock, is a daughter of Mr Barrett and the executor named in the will of 12 May 2012.
The application is supported by affidavits, sworn by Ms Hancock, four of the grandchildren of the deceased, namely, Christopher James Barrett, Jennifer Anne Barrett, Rory Angus Richard Hancock and Lucy Alison Hewitt, and the solicitor responsible for the preparation of the will of 12 May 2012, Joan Ellen Sedsman. In recording the facts that appear later in these reasons, I have drawn from the contents of these affidavits.
On 10 April 2000, Ms Sedsman was first instructed to prepare wills for Mr Barrett and his wife, Hazel Jean Barrett. At that time, Ms Sedsman discussed the advantages of testamentary trusts. Mr and Mrs Barrett instructed that testamentary trusts be incorporated into both wills. Ms Sedsman was further instructed that both Mr and Mrs Barrett held separate share portfolios and that they wished that those share portfolios pass to their children and their grandchildren. There were two children, Ms Hancock and Peter Jeoffrey Barrett. Ms Hancock had two children, Rory and Lucy. Peter Barrett had three children, Christopher, Jennifer and David Ian Barrett.
On 11 April 2000, Mr Barrett provided Ms Sedsman with instructions that he wished for his son and daughter to be appointed as his executors.
On or about 17 April 2000, draft wills were sent to Mr and Mrs Barrett. On 28 April 2000, Mr Barrett provided a detailed list of questions regarding the draft wills. The list of questions suggests that Mr Barrett had paid close attention to the content of the draft wills. On 9 May 2000, Mr Barrett telephoned Ms Sedsman to discuss the questions that he had raised.
On 11 May 2000, revised wills were forwarded by Ms Sedsman. On 17 May 2000, Mr Barrett again telephoned Ms Sedsman to discuss further amendments. On 18 May 2000, Mr and Mrs Barrett attended Ms Sedsman and duly executed their wills.
On 29 November 2002, Mrs Barrett died. Her estate was administered in accordance with her will of 18 May 2000. In accordance with the terms of that will, the estate was divided between the two children and the grandchildren.
On 2 May 2003, Mr Barrett instructed Ms Sedsman to prepare a new will. He wished to have his beneficiaries utilise the testamentary trust that had been established pursuant to the late Mrs Barrett’s will. A new will was prepared for Mr Barrett and was executed in the year 2003, sometime after 24 June 2003.
On 1 December 2004, Peter Barrett died. On 20 December 2004,[1] Mr Barrett attended on Ms Sedsman and gave instructions for a new will. Ms Sedsman prepared a new will in accordance with those instructions. Mr Barrett executed the new will on 24 January 2005.
[1] Ms Sedsman’s affidavit states the date to be “20 December 2005”, although the context of the affidavit makes it clear that this is incorrect and that 2004 is in fact the correct date.
On 14 August 2009, Mr Barrett instructed Ms Sedsman that he wished to amend his will of 24 January 2005 to make a specific gift of his house property at Gilberton and of a cash sum to Ms Hancock. Ms Sedsman prepared a new will, giving effect to these instructions, which was executed on the same day by Mr Barrett.
During 2012, events occurred which led to the present application. While Ms Sedsman was preparing a will for one of Mr Barrett’s granddaughters, it came to her attention that the testamentary trust established for the granddaughter in the late Mrs Barrett’s will lacked an appointor and also lacked a power in the trustees to vary terms of the trust. Ms Sedsman recalled that the testamentary trusts contained in Mr Barrett’s will of 14 August 2009 suffered from similar deficiencies. At this time, Ms Sedsman was aware through her friendship with Ms Hancock that Mr Barrett was terminally ill.
Ms Sedsman has deposed that on her own volition and without any instruction, she decided to prepare a new will for Mr Barrett encompassing the provisions of the will of 14 August 2009, but updating the testamentary trust provisions to address the perceived deficiencies in that will. An updated will was prepared by a member of Ms Sedman’s staff. Additions were made in the draft to incorporate the role of an appointor and to broaden the powers of the trustee to allow the terms of the trust to be varied. Certain provisions had been excluded including those giving the option to Ms Hancock and her children Rory and Lucy to transfer any inheritance from the deceased to the existing testamentary trusts established under the late Mrs Barrett’s will. It is to be recalled that Mrs Barrett’s last will, being her will of 18 May 2000, contained the earlier referred to perceived deficiencies in the terms of the testamentary trusts. Ms Sedsman instructed her staff to prepare a new will for Mr Barrett to sign. The draft new will was inaccurate in a number of material respects that will be discussed later in these reasons.
In May 2012, Ms Sedsman informed Ms Hancock that she had noticed the perceived deficiency in the testamentary trusts incorporated into the will of the late Mrs Barrett of 18 May 2000 and that, as a consequence, Ms Sedsman had prepared a new will. Ms Sedsman inquired whether Mr Barrett was well enough to sign the new will and Ms Hancock responded that Mr Barrett would be well enough and that the new will should be signed very soon as his health was deteriorating quite quickly.
On 12 May 2012, Ms Sedsman attended with Ms Hancock at the home of Mr Barrett. Ms Hancock let them in. Mr Barrett was sitting in a chair in his living room. Some pleasantries were exchanged. Ms Sedsman has deposed that she had not seen Mr Barrett for some time and was shocked by his appearance. He appeared gaunt and ill, but mentally alert. It was obvious to Ms Sedsman that Mr Barrett was seriously ill.
Ms Sedsman informed Mr Barrett that she had prepared a new will for him that was in all respects the same as his previous will, except that some of the provisions relating to the testamentary trusts had been altered to incorporate an appointor and to widen the powers of the trustee. The new will was not read to Mr Barrett and he did not read it. Ms Sedsman formed the opinion that to do either would tire him because of his illness. Mr Barrett indicated that he understood the nature of the changes and when asked whether he wished to sign the new will, he replied that he did. According to Ms Sedsman, with her assurance, Mr Barrett signed the final page of the document in the presence of Ms Sedsman and Ms Hancock. Then followed a further exchange of pleasantries and Ms Sedsman and Ms Hancock left. Ms Hancock has confirmed the substance of the matters deposed to by Ms Sedsman.
Ms Sedsman has deposed that on all prior occasions, before executing a will, it was Mr Barrett’s practice to carefully scrutinise each draft. Ms Sedsman had not sent a draft for Mr Barrett to check before signing as she considered that this would cause an unnecessary delay, having regard to his failing health. Ms Sedsman deposed:
… Previously, the deceased had always been meticulous in checking his will and making sure that it properly reflected his instructions. He did not read through the draft on this occasion. The deceased had been a client of mine for many years and he signed the will based solely on my verbal assurances as to the contents of his will.
Ms Sedsman did not realise until after the grant of probate that the will executed on 12 May 2012 omitted any reference to one of the deceased’s grandsons, David. At this time, Ms Sedsman also noted that the provision of the estate between Ms Hancock and her children was incorrect.
A marked up copy of the 12 May 2012 will showing the extent of rectification sought has been annexed to Ms Sedsman’s affidavit. The proposed rectification is extensive. It makes a removal and an addition to the substitute executors and trustees. It makes changes to the gifts to Ms Hancock and her children. It makes changes to the gifts to the children of Peter. Those changes include the addition of David as a beneficiary. The terms of the testamentary trust are substantially altered.
As earlier noted, affidavits from four of the grandchildren have been filed. Christopher, Jennifer, Rory and Lucy have all deposed that they understand that their interests are adversely affected by the proposed rectification, that they have been advised to seek independent legal advice, and that they consent to the application.
The power of the Court to rectify a will is to be found in section 25AA of the Wills Act 1936 (SA). That section 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.
In In the Estate of Dawes, I considered the meaning and reach of section 25AA and observed:[2]
The preconditions for the exercise of power under s 25AA 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".[3] A provision conferring powers on a court "should be read giving the words of the provision full amplitude".[4]
...
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.
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 or 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 or purpose or outcome.
If the court is satisfied of actual testamentary intentions of a testator and it is possible to give "proper expression" to those testamentary intentions by supplying or omitting words in the will so that the will then conforms to the testamentary intentions, an order for rectification can be made under s 25AA.
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 s 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.
[2]    In the Estate of Dawes (2011) 112 SASR 117, [16]-[22]
[3]    Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
[4]    Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472, [47].
I have reached the conclusion that the will of 12 May 2012 should not be the subject of an order for rectification. That will does not record the testamentary intentions of the deceased. The evidence established that on previous occasions, the deceased had been meticulous in carefully reading through a draft of a will before approving the document for execution. It is plain that it was not the practice of the deceased to accept assurances as to content. Ms Sedsman had been the deceased’s solicitor for many years and her affidavit demonstrates his preparedness to initiate amendment. At the time of the execution of the will of 12 May 2012, the deceased was not fit enough to read the draft or to have it read to him. He apparently was not fit enough to have even the proposed changes read and fully explained to him. It is apparent that Ms Sedsman had not read the proposed will. I am not prepared to find that the deceased had a sufficient understanding of the document to allow for an order for rectification.
Another way of expressing my findings is to pose the question, “did the deceased know and approve of the contents of the will of 12 May 2012?” Before a will can be admitted to probate, it is necessary to establish that the deceased had testamentary capacity.
In Hall v Carney,[5] the Full Court discussed issues of acknowledgment and approval. I observed, with the concurrence of Vanstone and Stanley JJ:[6]
A party propounding a will has to satisfy the court that the testator knew and approved the contents of the will. If an issue as to capacity arises, it is for the propounder to satisfy the court that at relevant times the testator had testamentary capacity. Over time, the courts accepted that once it was established that a testator had read over the will and was aware of and approved its contents, an evidentiary presumption arose that the testator knew of and assented to the contents of the will. This has become an accepted evidentiary presumption. It was also accepted that if circumstances of suspicion existed, the presumption would not arise and the court will be left to engage in the normal fact finding process
[5] Hall v Carney [2012] SASCFC 76.
[6] Hall v Carney [2012] SASCFC 76, [31]-[32]
The relevant principles were addressed by the High Court in Nock v Austin.[7] I propose to extract the following statement of principles from the reasons of Isaacs J:[8]
(1)In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2)Where any suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4)The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will.
(5)But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6)Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7)The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it.
[7] Nock v Austin (1918) 25 CLR 519.
[8] Nock v Austin (1918) 25 CLR 519, 528.
Due execution gives rise to a presumption of testamentary capacity. It is to be recalled that Ms Hancock, a beneficiary under the will, was also a witness to its execution. Section 17 of the Wills Act ameliorated the common law rule that a witness beneficiary could not take under the will. That section provides:
No will or testamentary provision in a will is void by reason only of the fact that the execution of the will is attested by a person, or the spouse or domestic partner of a person, who has or may acquire, in terms of the will or provision, any interest in property subject to the will or provision.
The only evidence of testamentary capacity comes from Ms Sedsman who has described Mr Barrett as having been mentally alert.
Once testamentary capacity is established, the question arises whether Mr Barrett knew and approved of the contents of the will. Plainly, he did not. He was unaware that his grandson David was excluded from any benefit. He was unaware of the change in the terms of the gift to Ms Hancock and her children. He was unaware of any of the detailed changes to the testamentary trusts. He did not approve the terms of the will. The simple assurance of Ms Sedsman that the only changes were to the testamentary trusts by the incorporation of an appointor and the widening of the powers of the trustee were not, to my mind, sufficient to establish that he was aware of and approved of the contents of the will.

The Court has no medical evidence concerning Mr Barrett’s physical and mental state on 12 May 2012. He was terminally ill and died several months later on 18 August 2012. He was not well enough to read the document or to have it read to him. Apparently he was not well enough to even have the proposed changes read or fully explained to him. He was only able to sign the last page.
I have reached the conclusion that the deceased lacked testamentary intention in respect of the document of 12 May 2012. He did not know or approve of the contents of that document. I have some doubt as to whether he had the necessary testamentary capacity, although I express no concluded view on that topic. Accordingly, an order should be made for the recall of the grant of probate made on 14 December 2012.
It would appear that the last will of the deceased is that of 14 August 2009. That document is duly executed and it would appear to be appropriate that a grant of probate be made in respect of that document. An application for a grant should be made to the Registrar of Probates according to the usual procedures.
The remaining consideration relates to steps already taken by Ms Hancock as executor pursuant to the grant made on 12 December 2012. It is unclear on the evidence presently before the Court, what steps, if any, were taken by Ms Hancock. An order has been sought that all acts lawfully undertaken by Ms Hancock pursuant to that grant remain valid, notwithstanding the revocation of the grant. Evidence should be placed before the Court setting out what acts have been undertaken by Ms Hancock so that the terms of an appropriate order may be considered.
Conclusion
The grant of probate of 12 December 2012 is recalled. Further consideration of the validity of acts taken pursuant to that grant is adjourned.