In the Estate of REA COSTELLO (DECEASED) - [2014] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of REA COSTELLO (DECEASED)
[2014] SASC 134
Reasons for Decision of The Honourable Justice Gray
16 September 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WHERE UNCERTAINTY - AS TO PERSON OR OBJECT
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
Application for rectification of a will. Applicant was testator’s solicitor. Clause 2 of the will sought to appoint “my solicitor JO-ANNE NOREEN MILEN of 37b Beach Road, Christies Beach in the State of South Australia or any solicitor in her employ to act as my executor and trustee...” An application for a grant of probate by Ms Milen was refused by the Registrar on the basis that clause 2 of the will was void for uncertainty.
Whether clause 2 of the will is void for uncertainty. Whether testator’s intention was to appoint Jo-Anne Noreen Milen as her executor. Whether to rectify will to provide for the appointment of Jo-Anne Noreen Milen as executor. Whether to issue grant of probate to Jo-Anne Noreen Milen.
Held per Gray J (granting the application):
1. Clause 2 of the will is void for uncertainty as it does not indicate an order of preference or hierarchy between Jo-Anne Noreen Milen and the solicitor in her employ.
2. The testator’s intention was to appoint Jo-Anne Noreen Milen as her executor.
3. It is appropriate to rectify the will to provide for the appointment of Jo-Anne Noreen Milen as executor.
4. Grant of probate issued to Jo-Anne Noreen Milen.
Administration and Probate Act 1919 (SA) s 8; Wills Act 1936 (SA) s 25AA, referred to.
In the Estate of Peter Francis Brown (deceased) [2013] SASC 62; Re Baylis’s Goods (1862) 2 Sw & Tr 613; Re Blackwell’s Goods (1877) 2 PD 72; In the Estate of Yearwood (1982) 30 SASR 169; Police v Berzins [2011] SASCFC 146; In the Estate of John Wentworth Varley deceased; In the Estate of Jacques Johan Veldhuis [2007] SASC 420; In the Estate of Joseph Bernhard Nies (deceased) [2014] SASC 93; Wesley v Wesley (1998) 71 SASR 1; IW v City of Perth (1997) 191 CLR 1, considered.

In the Estate of REA COSTELLO (DECEASED)
[2014] SASC 134
Testamentary Causes Jurisdiction
GRAY J.

This is an application for rectification of a will. On 2 September 2014, I made an order granting the application. These are my reasons for making that order.
Background
Mary McCartney Martin Costello, known as Rea Costello, died on 25 February 2013, aged 69 years.
Ms Costello’s last will was made on 24 October 2012. Clause 2 of the will provides that:
I APPOINT my solicitor JO-ANNE NOREEN MILEN of 37b Beach Road, Christies Beach in the State of South Australia or any solicitor in her employ to act as my executor and trustee (“my executors”, which includes my personal representatives and trustees for the time being).
The will provides for modest gifts to a number of Ms Costello’s relatives and one of her friends. Ms Costello’s estate is valued at approximately $155,000.00. The residuary estate, which may be over $100,000.00, is bequeathed to the Carmelite Monastery at Kew in the State of Victoria.
Following Ms Costello’s death, Ms Milen applied for a grant of probate. The matter was referred to me for directions under section 8 of the Administration and Probate Act 1919 (SA) due to doubts over whether the appointment of Ms Milen as executor was void for uncertainty.
On 23 June 2014, Ms Milen swore an affidavit stating, inter alia, that Ms Costello intended Ms Milen to be her executor and did not want anyone else, especially her sisters, to act as executor. In the course of drafting the will, Ms Milen advised Ms Costello to name an alternate executor to address the possibility that Ms Milen may be unable to accept the appointment. Ms Milen suggested that Ms Costello appoint another solicitor employed at her firm as the alternate appointment. Ms Costello was amenable to this suggestion. Ms Milen was a sole practitioner at the time of drafting Ms Costello’s will.
At the hearing, Ms Milen explained that she was contemplating employing a solicitor at the time of drafting the will and has since done so. Ms Milen further explained that she had acted for Ms Costello for some time and prepared both of her wills. Ms Costello’s relatives are apparently not on good terms. Ms Costello wanted to ensure that they would not be responsible for the administration of her estate. Ms Milen suggested an alternative appointee as she did not consider it “safe” practice to only name one executor. Insofar that clause 2 of the will was void for uncertainty, Ms Milen explained that this was essentially a drafting error – Ms Costello’s intention was that Ms Milen would be her executor and it was intended that the alternate appointee would only take on the role if Ms Milen could not.
Uncertainty
A clause in a will appointing executors in the alternative without additional words indicating the circumstances in which they are to be appointed is void for uncertainty. Such clauses have been considered on multiple occasions.[1] In Re Baylis’s Goods,[2] the clause appointing “any two of my sons” was void for uncertainty. Similarly, in Re Blackwell’s Goods,[3] the clause appointing “one of my sisters” was void for uncertainty. In In the Estate of Yearwood,[4] a clause appointing the partners of a law firm as executors “or the firm which [at the date of the testator’s death] has succeeded to and carried on its practice” was void for uncertainty. A clause in a will in almost identical terms to Ms Costello’s was considered by Debelle J in In the Estate of Jacques Johan Veldhuis.[5] That clause sought to appoint a partner of a law firm “or a partner of the firm with which [that partner] practices [sic]” as executor. Debelle J found the clause void for uncertainty.
[1]    See, e.g., In the Estate of Peter Francis Brown (deceased) [2013] SASC 62.
[2]    Re Baylis’s Goods (1862) 2 Sw & Tr 613.
[3]    Re Blackwell’s Goods (1877) 2 PD 72.
[4]    In the Estate of Yearwood (1982) 30 SASR 169.
[5]    In the Estate of John Wentworth Varley deceased; In the Estate of Jacques Johan Veldhuis [2007] SASC 420.
Clause 2 of Ms Costello’s will is void for uncertainty. The clause does not indicate an order of preference or hierarchy between Ms Milen or the “solicitor in her employ”. The clause does not enable the Registrar, or the court, to determine to whom probate should be granted.
Rectification
Section 25AA of the Wills Act 1936 (SA) provides:
Power of rectification
(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.
I recently considered the general principles concerning rectification of a will in In the Estate of Joseph Bernhard Nies (deceased).[6]Section 25AA of the Wills Act is a beneficial or remedial statutory provision. It replaced the common law previously applying in South Australia which permitted a court in some circumstances to omit words from a will included by mistake but did not enable wills to be rectified for mistake generally.[7] The section should be given a wider rather than narrower construction, to the extent that it is supported in the text of the legislation.[8]
[6]    In the Estate of Joseph Bernhard Nies (deceased) [2014] SASC 93, [26]-[40].
[7]    Wesley v Wesley (1998) 71 SASR 1, 4.
[8]    IW v City of Perth (1997) 191 CLR 1, 12; see also, Police v Berzins [2011] SASCFC 146, [12]-[17].
The evidence establishes a clear intention on the part of Ms Costello to appoint Ms Milen as her sole executor. Ms Costello intended that the provision for the appointment of an alternate executor would only be enlivened if Ms Milen was unable to act as executor. It is appropriate to make an order for rectification.
In In the Estate of Jacques Johan Veldhuis,[9] as in the present case, the solicitor originally named in the will was willing and able to act as executor. It was therefore unnecessary to consider an alternate appointment and the proposed orders only sought the appointment of the solicitor originally named in the will. Debelle J made an order for rectification to amend the clause to provide only for the appointment of the solicitor originally named in the will as executor and remove any mention of an alternate appointment. I took the same approach in the present case. However, I agree with Debelle J that it would have been preferable for the clause to have been rectified to provide for a valid alternate appointment.
[9] In the Estate of John Wentworth Varley deceased; In the Estate of Jacques Johan Veldhuis [2007] SASC 420.
Conclusion
I allowed the application for rectification. I ordered that clause 2 of Ms Costello’s will be rectified in the following terms:[10]
[10] It is to be understood that “my executors” refers only to Jo-Anne Noreen Milen. The plural has been retained, despite being grammatically incorrect, to avoid the need to make further changes throughout the will.
I APPOINT my solicitor JO-ANNE NOREEN MILEN of 37b Beach Road, Christies Beach in the State of South Australia to act as my executor and trustee (“my executors”, which includes my personal representatives and trustees for the time being).
I also ordered that probate be granted to Jo-Anne Noreen Milen and that the costs of and incidental to the application be paid by Jo-Anne N Milen & Associates, Ms Milen’s firm.