In the Estate of MICHAEL EDWARD WELSH (DECEASED) - [2014] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of MICHAEL EDWARD WELSH (DECEASED)
[2014] SASC 13
Judgment of The Honourable Justice Gray
31 January 2014
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
This is an application for the removal of words from a will and for an order for rectification. The applicants, the executors and trustees of the will of the deceased, seek the removal of words from the first codicil to the will on the basis that the words are of an offensive nature. The applicants further seek an order for rectification concerning the numbering of paragraphs in the first and second codicils to the will.
Whether the words have any dispositive effect or any other testamentary purpose. Whether the words are capable of being characterised as scandalous, offensive, defamatory or blasphemous. Whether an order for rectification concerning the paragraph numbering in the codicils should be made.
Held:
(1) While the impugned words are not directly dispositive in nature, they do serve an important testamentary purpose (at [25]-[26]).
(2) The words were not used gratuitously and they do not appear to have been put in the will for the purpose of injuring the reputation of the deceased's wife. The words do not amount to an abuse of process as they are primarily directed at providing reason for the dispositions contained in the will and do not go outside that purpose (at [32]).
(3) The jurisdiction to remove the words is not enlivened (at [33]).
(4) An order for rectification in respect of the numbering of paragraphs in the first and second codicils to the will is appropriate (at [36]-[37]).
Wills Act 1936 (SA) s 25AA; Probate Rules 2004 (SA) r 10.05, r 65 and r 66.01; Administration and Probate Act 1919 (SA) s 5; Construction of Wills in Australia, David M Haines QC (LexisNexis Butterworths, 2007); Tristam and Coote’s Probate Practice, Costa, Winegarten and Synak (LexisNexis Butterworths, 30th ed, 2006), referred to.
In the Estate of Roche (Deceased) Hamilton & Anor v Nelson & Ors [2012] SASC 219; In the Estate of Brummitt (Deceased) [2011] SASC 116; In the Estate of Enjakovic Deceased (2008) 100 SASR 486; In the Estate of Ward (2006) 244 LSJS 326; In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; Re Estate of L (deceased) (1996) 185 LSJS 406; Rasheed v Rasheed (1999) 73 SASR 346; In the Estate of Hall (dec’d) [1943] 2 All ER 159; Re Maxwell (1929) 140 LT 471; In the Will of JP, deceased (1922) 39 WN (NSW) 228; In the Will of O’Reilly [1927] VLR 533; Re Estate of L (deceased) (1996) 185 LSJS 406; Re N [1950] VLR 139; In the Goods of Bowker [1932] P 93; In the Estate of White [1914] P 153; Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987) 7, considered.

In the Estate of MICHAEL EDWARD WELSH (DECEASED)
[2014] SASC 13
Testamentary Causes Jurisdiction
GRAY J.

This is an application for the removal of words from a will and for an order for rectification.
The applicants, Justin Michael Welsh, Carla Patricia Humphrys and John Bennett, are the executors and trustees of the will of the deceased, Michael Edward Welsh. The applicants seek the removal of the following emphasised words from the first codicil to the will on the basis that the words are of an offensive nature:
I DECLARE that I have considered my testamentary duty toward my said wife CHRISTINE ELLEN WELSH and I have made no further provisions in this Will for my said wife as my marriage to her has broken down irretrievably and we have lived separate and apart for over 20 years and she is a compulsive and addicted gambler.
[Emphasis added.]
The applicants further seek an order for rectification concerning the numbering of paragraphs in the first and second codicils to the will.
Procedural History
The deceased died testate on 11 March 2013. The deceased’s will was made and duly executed on 25 June 2002. Two codicils were attached to the will, the first dated 17 October 2012 and the second 6 March 2013.
The first codicil was relevantly in the following terms:
…
1. That immediately after the paragraph Number 4 there be added four new paragraphs numbered 4A and 4B and 4C and 4D respectively as follows:-
“4A. I GIVE AND BEQUEATH to my grandson … the sum of FIVE THOUSAND DOLLARS ($5,000.00).”
“4B. I GIVE AND BEQUEATH to my son JUSTIN MICHAEL WELSH my 1961 Morris Major motor vehicle.”
“4C. I GIVE AND BEQUEATH to my daughter CARLA PATRICIA WELSH my Cavalier Campervan.”
“4D. I GIVE AND BEQUEATH the sum of TEN THOUSAND DOLLARS ($10,000) unto my Trustees UPON TRUST to be held by my Trustees to pay the funeral expenses of the said CHRISTINE ELLEN WESLH [sic] upon her death. After the payment hereby authorised the remainder shall fall into and form part of my residuary estate.”
2. That immediately after the paragraph Number 12.3 there be an added paragraph numbered 13 as follows:
“13 I DECLARE that I have considered my testamentary duty toward my said wife CHRISTINE ELLEN WELSH and I have made no further provisions in this Will for my said wife as my marriage to her has broken down irretrievably and we have lived separate and apart for over 20 years and she is a compulsive and addicted gambler.”
…
In all other respects I Confirm my said Will.
The second codicil was relevantly in the following terms:
…
1.    That I have provided in my First Codicil dated 17^th day of October 2012 in paragraph 4(B) that “I GIVE AND BEQUEATH to my son JUSTIN Michael WELSH my 1961 Morris Major motor vehicle.” AND I NOW wish to amend my said Will and my said Will is hereby amended by deleting the whole of the content of that paragraph 4(B) in its entirety and replacing that content with the following:-
“ I GIVE AND BEQUEATH to my son JUSTIN MICHAEL WELSH my 1961 Morris Major Motor Vehicle and my 2002 Holden Rodeo Registered Number S249-AAT.”
2.    That I have provided in my said Codicil in paragraph 4(D) that “I GIVE AND BEQUEATH the sum of TEN THOUSAND DOLLARS ($10,000) unto my Trustees UPON TRUST to be held by my Trustees to pay the funeral expenses of the said CHRISTINE ELLEN WELSH upon her death. After the payment hereby authorised the remainder shall fall into and form part of my residuary estate.” AND I NOW further amend my said Will by deleting the said paragraph number 4D of my said Will entirely.
3.    In all other respects I Confirm my said Will.
…
An affidavit of John Bennett, the solicitor who drew the will, sworn 2 October 2013 was filed in support of the application. Mr Bennett deposed that he received instructions on approximately 6 March 2013 to vary the first codicil. Those amendments appear in the second codicil. It was said that the reference to paragraphs 4(B) and 4(D) that appear in paragraphs 1 and 2 of the second codicil are drafting errors and that those paragraphs should have been designated as 4B and 4D. It was also said that the paragraph “In all other respects I Confirm my said Will.” in the first codicil should be numbered paragraph 3, rather than left unnumbered. It was said that the last paragraph on the first codicil remaining unnumbered was a drafting error of a minor nature made in the preparation of the first codicil.
Written consents of Justin Michael Welsh and Carla Patricia Humphrys, as well as the widow Christine Ellen Welsh, to remove the words “and she is a compulsive and addicted gambler” from the copy of the will to be admitted to proof were filed with the Court.
Mr Bennett deposed that he was given instructions to prepare the first codicil by the deceased and that prior to the deceased’s signing of the first codicil, Mr Bennett provided advice that the addition of the words “and she is a compulsive and addicted gambler” are offensive and may be objected to. Notwithstanding this advice, the deceased insisted that the first codicil be executed in the form set out above.
Mr Bennett met with Christine Ellen Welsh on 1 October 2013 and she instructed him that the impugned words are offensive to her and should be removed from the first codicil.
The summons was issued by the applicants pursuant to section 25AA of the Wills Act 1936 (SA) which concerns the Court’s power of rectification and rule 65 of the Probate Rules 2004 (SA) which concerns an application for rectification of a will. The Registrar of Probates referred the matter to me for directions, indicating that the part of the application seeking removal of the impugned words should instead be based on rule 10.05 of the Probate Rules. Rule 10.05 provides:
Where an application is made for proof of a will which, in the Registrar’s opinion, contains words of an offensive or libellous nature, the Registrar shall not allow the grant to issue until an application has been made under Rule 66 to have such words excluded from the grant copy of the will.
Removal of the Words
General Principles
I have previously considered the Court’s power to remove scandalous or offensive words from a will in a number of decisions.[1] In In the Estate of Brummitt (Deceased),[2] I discussed the relevant principles in relation to the Court’s removal of scandalous or offensive words. I incorporate in these reasons that discussion by way of reference.[3] A summary of the main principles follows.
[1]    See for example In the Estate of Roche (Deceased);Hamilton & Anor v Nelson & Ors [2012] SASC 219; In the Estate of Brummitt (Deceased) [2011] SASC 116; In the Estate of Enjakovic Deceased (2008) 100 SASR 486; In the Estate of Ward (2006) 244 LSJS 326.
[2]    In the Estate of Brummitt (Deceased) [2011] SASC 116.
[3]    In the Estate of Brummitt (Deceased) [2011] SASC 116, [14]-[32].
The inherent power of this Court, expressly provided for in section 5 of the Administration and Probate Act 1919 (SA), together with previous decisions of this Court,[4] provides authority in support of a power in the Court to exclude words from documents being admitted to probate.[5]   The jurisdiction to omit words is part of the inherent jurisdiction to protect the Court’s processes from abuse.[6] This inherent jurisdiction extends to the granting of probate.[7]
[4]    See for example In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Estate of Enjakovic Deceased (2008) 100 SASR 486.
[5]    See discussion on these principles in In the Estate of Enjakovic Deceased (2008) 100 SASR 486, [8] drawing on the observations in In the Estate of Ward (2006) 244 LSJS 326, [12].
[6]    In the Estate of Enjakovic Deceased (2008) 100 SASR 486, [9] citing D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [201] (McHugh J).
[7]    See for example Rasheed v Rasheed (1999) 73 SASR 346.
A will ought to be admitted to probate in the words of the will itself.[8] The Court has a power, however, to omit words from the probate copy and subsequent copies of the will[9] that are scandalous, offensive, blasphemous or defamatory in character.[10] It is to be borne in mind that the power to omit words is to be exercised with great care.[11]
[8] In the Estate of Hall (dec’d) [1943] 2 All ER 159, 160.
[9] That is, the words cannot be expunged from the will itself: Re Maxwell (1929) 140 LT 471.
[10] See further In the Estate of Ward (2006) 244 LSJS 326.
[11] In the Estate of Hall (dec’d) [1943] 2 All ER 159; In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229; In the Will of O’Reilly [1927] VLR 533, 535.
Two criteria, at least conventionally,[12] must be met in order to enliven the jurisdiction to omit a word or words from a will. First, the word or words must not have any dispositive effect or any other testamentary purpose. Second, the word or words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous. I emphasise that if the two criteria are met it does not follow that the word or words will be omitted – the jurisdiction is merely enlivened and is to be exercised judicially on a case-by-case basis.[13]
[12] See Re Estate of L (deceased) (1996) 185 LSJS 406, 408; In the Estate of Hawke (1973) 6 SASR 278, 279; Re N [1950] VLR 139, 145-146; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533, 535; In the Estate of White [1914] P 153, 154.
[13] See In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 493.
In In the Estate of Ward,[14] the applicant sought an order that the words “He has refused to accept the gifts of a house and $50,000 from his brother Rick” be omitted from his late father’s will on the basis that he did not wish to be blamed for something he allegedly did not do. In that case I found that a reasonable person would not be offended, nor would a reasonable person find scandalous, the words sought to be omitted. The words were an explanation for the deceased’s decision not to make any further dispositions to the applicant. There was no evidence before the Court to suggest an untruth.
[14] In the Estate of Ward (2006) 244 LSJS 326.
In In the Estate of Enjakovic Deceased,[15] an application was made for certain words to be omitted from the copy of a will sought to be admitted to probate. In that decision, a clause in the deceased’s will directed that her son was not to benefit from her will and, in providing a reason for that direction, implied inappropriate and possibly dishonest conduct on the part of the son. The relevant clause provided:
I DIRECT that my son MILAN ENJAKOVIC is not to benefit from this my Will. For many years he has borrowed money from me and from my late husband MILOS ENJAKOVIC which he has never repaid. My said son owes me over FIVE THOUSAND DOLLARS ($5,000.00). In December, 1993, I was in hospital. While I was in hospital he used my personal identification number to withdraw money from the National Bank at Enfield. I have photocopies of these transactions. I telephoned him and he did not deny that he had taken the money. When I asked: “Why did you take it”? he said he would ring me back but he has not done so.
[Emphasis added. The emboldened words were the subject of the application.]
[15] In the Estate of Enjakovic Deceased (2008) 100 SASR 486.
In the event, having accepted that the words had no dispositive effect, I concluded that they provided an explanation for the deceased’s dispositions. I considered that the impugned words did infer inappropriate and possibly dishonest behaviour and were, prima facie, defamatory – the allegation of theft in fact importing a notion of criminality. However, I further considered that the impugned words stopped short of directly asserting that the son had engaged in dishonesty. Finally, I concluded that although the words could be viewed as being “hurtful”, “painful” or “unkind”, a reasonable person would not be so offended by the words as to require their omission.[16]
[16] In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 495.
In In the Estate of Brummitt (Deceased),[17] in his will, the deceased provided the following explanation for excluding his former wife from taking any benefit from his estate:
I declare that I have not provided for [D] as I believe upon the basis that my former wife [DB] had extra marital affairs that the child [D] is not my child. Both the child [D] and my former wife [DB] refused to co-operate with a DNA test in respect of paternity of [D].
In that case, no application was made under rule 66.01 of the Probate Rules. Upon receiving an application by the executor of the estate for a grant of probate, the Registrar of Probates instead referred the matter to a judge of the Court to determine whether the above words should be struck out as scandalous and offensive.
[17] In the Estate of Brummitt (Deceased) [2011] SASC 116.
In that case, I concluded that the impugned words did not have dispositive effect but that the words did provide an explanation for why the deceased did not provide for the child. I decided that it was not appropriate to omit the words from the will on the basis that the words were not used gratuitously, they did not appear to have been put in the will for the purposes of injuring the reputation of the deceased’s former wife or child, they explained why the deceased failed to provide for the child in his will and they did not amount to an abuse of process as they were primarily directed at providing a reason for the dispositions contained in the will and did not go outside that purpose. I found that while the words may have been of an offensive character, it was not an appropriate case in which to exercise the jurisdiction of the Court to strike those words out of the will.
I most recently considered an application for the removal of offensive or libellous words from a will in In the Estate of Roche (Deceased); Hamilton & Anor v Nelson & Ors.[18] In that matter, an order was sought by the plaintiffs to the effect that the following words be omitted from clause 3 of the will:
…upon the condition that they do first read all my personal diaries for the period commencing the 1st day of January 1974 to the date of this Will and can satisfy my Trustee herein named that they have read all the said diaries by answering correctly any questions concerning the said diaries asked by my Trustee as proof that they have read the same provided however that if any of my daughters shall not satisfy my Trustee that she has read the said diaries then that daughter’s share of the said jewellery shall pass to the Knights of the Southern Cross Pty. Limited for their sole use and benefit absolutely.
…30 pieces of silver of the lowest denomination of currency being the blood money due to Judas to each of my husband JOHN JUSTIN ROCHE for my mother’s life and to each of my aforesaid daughters for my life.
[18] In the Estate of Roche (Deceased);Hamilton & Anor v Nelson & Ors [2012] SASC 219.
The plaintiffs contended that the reference to “30 pieces of silver of the lowest denomination of currency being the blood money due to Judas”, was scandalous, offensive and blasphemous. It was submitted that the words were, for material purposes, non-dispositive. It was further submitted that when viewed in conjunction with the requirement for the deceased’s daughters to read the deceased’s diaries, which were said to be themselves full of scandalous and offensive words, the test for the omission of the words from the copy of the will annexed to the grant was satisfied.
I ultimately held that the requirement that the plaintiffs read the diaries of the deceased before they are eligible to receive their share of the jewellery of the estate was dispositive in nature. It was a condition precedent on the receipt of the jewellery. While the diaries themselves might have contained material that is offensive or scandalous, this was not a matter apparent from the terms of the will. I did not consider that a reasonable person would find the words to be scandalous, offensive, defamatory or blasphemous.
In the case of the words “30 pieces of silver of the lowest denomination of currency being the blood money due to Judas”, they were technically dispositive in nature – albeit of an insignificant amount. The words provided an explanation of the deceased’s bequests to the plaintiffs. While there was an implication that the daughters of the deceased had acted in a reprehensible manner, the words stopped short of any specific allegation. However, I accepted that the words may be described as gratuitous and insulting. The removal of the words would have had no relevant impact to the agreed division of the estate. However, I found that in all the circumstances, it was not appropriate to exercise my discretion to exclude the impugned words from the deceased’s will.
Application

In the within proceeding, the applicants seek the removal of the words “and she is a compulsive and addicted gambler” from the copy of the will to be admitted to probate. The application arose out of a concern raised by the Registrar to the executors regarding these words. It was submitted that the words have no dispositive effect. The applicants accepted that the words do, however, provide an explanation as to why the deceased made no provision for his wife in his will. It was contended that the breakdown of the marriage would be a sufficient explanation for the deceased’s decision not to make provision for his wife in the will. It was said that the additional words “and she is a compulsive and addicted gambler” are gratuitous and unnecessary.
To my mind, while the impugned words are not directly dispositive in nature, they do serve an important testamentary purpose. They provide a further explanation as to why the deceased chose not to make a disposition to his wife.
In the event that I were to find that the words do not serve any testamentary purpose, it must be established that the words are capable of being characterised as scandalous, offensive, defamatory or blasphemous. Before turning to consider whether this criterion is met in the present proceeding, it is appropriate first to say a little about the meaning of the words scandalous, offensive and defamatory. It should be noted that variations of these adjectives, mostly synonyms of one another, are used in this context. It is sufficient and appropriate for me to briefly address the meaning of the three words scandalous, offensive and defamatory.[19] Before addressing these words in turn, it is convenient to set out a passage from the text Tristram and Coote’s Probate Practice:[20]
Words of an offensive, libellous or blasphemous nature
A testator has the right to explain why he has disposed of his property in a certain way, but he is not entitled to use his will as a vehicle for slander. The court will upon application exclude from probate words of an atrocious, offensive or libellous character.
The court will also exclude words of a blasphemous nature; and the district judge or registrar may refuse to grant probate until the necessary application has been made. The court, however, will not lightly interfere in a man’s testamentary affairs, and will not exclude words on these grounds unless they come fully within these categories; nor, it seems, if the words are in any sense dispositive.
For words to be atrocious or offensive they need not necessarily allude to any individual. In Re Bowker’s Goods the court ordered exclusion of words relating solely to the funeral and disposal of the testator’s remains on the ground that such words, which were liable to be published in the press, were ‘offensive and objectionable and repugnant to the members of the deceased’s family’.
[Footnotes omitted.]
[19] The need to address the meaning of blasphemous does not arise in the present proceeding.
[20] Costa, Winegarten and Synak, Tristam and Coote’s Probate Practice (LexisNexis Butterworths, 30^th ed, 2006) [3.272]-[3.274].
There does not appear to be much debate about the meaning of “scandalous”, as stated by Fullagar J in Re Clarkson:[21]
There can be little doubt of what is meant by "scandalous", but I should perhaps say that two of the meanings of "scandal" are, on the one hand, a general feeling of there being an outrage upon propriety and, on the other, a malicious gossip. Assistance towards the meaning of "scandalous" is provided by the following expressions: outrageous, deserving of opprobrium, deserving of the label of shameful or disgraceful, causing scandal, of the nature of malicious gossip. …
[21] Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987) 7.
The same might be said about the terms “offensive” and “defamatory”, which I addressed in In the Estate of Enjakovic (dec’d) in the following way:[22]
[22] In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, [19]-[21].
The meaning of the word "offensive" has most commonly been considered in the context of offences of "offensive behaviour". In this context, in Densley v Mertin, Napier CJ observed that the term had the following meaning:
... "giving, or of a nature to give offence; displeasing; annoying; insulting," and it seems to me that the word is used objectively, ie it includes any conduct which is calculated to annoy or give offence to other people, even if that result is not actually intended.
In Worcester v Smith, O'Bryan J observed:
Behaviour, to be "offensive" ... must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person."
The Macquarie Dictionary meaning of "offensive" is "causing offence or displeasure; irritating; highly annoying ... repugnant to moral sense ... pertaining to offence or attack". In my view the above definitions would apply equally to an understanding of the meaning of "offensive" in the context of the within proceedings.
The meaning of "defamatory" has been the subject of extensive judicial discussion and is well-settled. An example comes from the decision of the Federal Court in John Fairfax & Sons Ltd v Hook, where Gallop and Morling JJ observed:
A matter is defamatory if it tends "to lower the plaintiff in the estimation of right-thinking members of society generally" (Gatley, op cit, para 41) or "if it is likely to cause ordinary decent folk of the community, taken in general, to think less of him" (per Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172) ... The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man.
It should be noted here that publication by the executor (absent malice) is privileged, being an accurate republication of a register kept pursuant to statute. Further, a will published with a grant of probate would be a "public document" for the purposes of the statutory defence in s 26 of the Defamation Act 2005 (SA). Nevertheless, the court will not allow its processes to be abused as a vehicle of defamation.
[Footnotes omitted.]
The applicants submitted that the impugned words likely fall within each definition of “scandalous”, “offensive”, “defamatory”, in particular, “offensive” and “defamatory”. It was said that the suggestion that Christine Ellen Welsh is a compulsive and addicted gambler is one that reflects poorly on her character and is likely to make ordinary persons think less of her.
The applicants highlighted that the executors and Christine Ellen Welsh all consent to the impugned words being omitted. It was submitted that the words go too far in providing reasons for the deceased making dispositions in his will that excluded his wife as a valid reason had already given in the explanation “my marriage to her has broken down irretrievably and we have lived separate and apart for over 20 years”. The applicants further submitted that the words are gratuitous, calculated to cause offence and are an abuse of the kind that the Court ought to prevent.
The impugned words are possibly offensive in character. They insinuate a gambling addiction on the part of Christine Ellen Welsh, which might in others’ eyes, lower her in their esteem. In my view, however, the words were not used gratuitously and they do not appear to have been put in the will for the purpose of injuring the reputation of Christine Ellen Welsh. The words provide further explanation for why the deceased failed to provide for his wife in his will. It is apparent that it was a concern of the deceased that the inheritance could be lost to gambling. The words do not amount to an abuse of process as they are primarily directed at providing a reason for the dispositions contained in the will and do not go outside that purpose.
I do not find the jurisdiction to remove the words enlivened. Even if I were to find the jurisdiction enlivened, I do not consider this an appropriate case in which to exercise the jurisdiction of the Court to strike the words out of the will. The words are not to be removed from the copy of the deceased’s will to be admitted to probate.
Rectification
The issues raised concerning the first and second codicils are relatively minor, involving only paragraph numbering.
Section 25AA of the Wills Act empowers the Court to rectify a will. Section 25AA relevantly 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.
…
In the text Construction of Wills in Australia, the learned author observed:[23]
Where a will does not accurately reflect a testator’s intentions, the court has power to rectify it so as to give proper expression to those intentions. This procedure is appropriate where a clerical mistake by omission or otherwise has interfered with those intentions. Evidence of matters which give rise to the mistake is admissible including instructions given by the testator to the person who prepared the will. …
[Footnote omitted.]
[23] David M Haines QC, Construction of Wills in Australia (LexisNexis Butterworths, 2007) 1.6.
The first codicil, in paragraph 1, inserts four paragraphs into the will, paragraphs 4A, 4B, 4C and 4D, with no brackets either side of the letters following the numeral 4. The second codicil cross-references the first codicil with references that sometimes refer to 4(B) and 4(D), with brackets. I am satisfied on Mr Bennett’s evidence that it is clear that the drafter and the deceased intended the reference to be to 4B and 4D rather than 4(B) and 4(D) and that an order for rectification in this respect is appropriate.
The first codicil also did not include a paragraph number next to the paragraph reading “In all other respects I Confirm my said Will.”, whereas the second codicil did include a paragraph number where the same paragraph appears. Again, the plain intention of the deceased and the drafter of the deceased’s will is clear and I am satisfied that the error was a drafting slip. Rectification in this respect is appropriate.
Conclusion
The application for removal of the words “and she is a compulsive and addicted gambler” from the first codicil is refused. The application for rectification in allocating the number 3 to the unnumbered paragraph at the bottom of the first page of the first codicil reading “In all other respects I Confirm my said Will.” is allowed. The application for rectification by deleting the brackets that appear in each of the references to paragraphs 4(B) and 4(D) that appear in paragraphs 1 and 2 of the second codicil is allowed.
I will hear the applicants as to the final terms of the minutes.