In the Estate of ROBERT PAUL ANDERSON (DECEASED)

[2009] SASC 400

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

In the Estate of ROBERT PAUL ANDERSON (DECEASED)

[2009] SASC 400

Judgment of The Honourable Justice Gray

23 December 2009

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT - SOUTH AUSTRALIA

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVIVAL AND REPUBLICATION - BY CODICIL

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - GENERAL PRINCIPLES

Application for grant of probate - testator executed will in 1989 - second will executed in 1990 - codicil executed in 2008 and expressed in terms of 1989 will - whether 1989 will revived by codicil - whether 1990 will revoked - consideration of cases of revival of wills by codicil - whether issue of rectification arises.

Held: probate granted - 1989 will revived - 1990 will revoked - referral in codicil to 1989 will a compelling factor for revival of that will - no issue of recification arises.

Wills Act 1936 (SA) s 25(1) and s 25AA; Wills Act 1837 (UK) s 22, referred to.
Marsh v Marsh (1860) 1 Sw & Tr 528; In the Goods of Steele (1868) LR 1 P & D 575; McLeod v McNab [1891] AC 471; Re Smith [1939] VLR 213; Re Dear [1975] 2 NZLR 254; In the Goods of Law (1869) 21 LT 399; In the Goods of Stedham (1881) 6 P 205; In the Goods of Dyke (1881) 6 P 207; In the Goods of Turner (1891) 64 LT 805; In the Goods of Gordon [1892] P 228; In the Goods of Chilcott [1897] P 223; In the Will of Killick [1960] VR 98; Jane v Jane (1917) 33 TLR 389; In re Marrie [1938] SASR 289; Goldie v Adam [1938] P 85; In the Estate of Mardon [1944] 1 P 109; In the Will and Codicil of Littlejohn (1952) 69 WN (NSW) 129; In the Estate of Brian [1974] 2 NSWLR 231; In the Estate of Jones (1979) 82 LSJS 139; In the Estate of Frederick Murray Hilder deceased (1998) 199 LSJS 257; In the Matter of the Estate of Denger (deceased) [2002] TASSC 70; Heys [1914] P 192; Re Fawcett [1941] P 85; In Estate of Last [1958] P 137; In the Estate of Kavanagh (1977) 16 SASR 342; In the Estate of Slavinskyj (1988) 53 SASR 221; Re Francis Lloyd Quick deceased [1996] SASC 5460; In the Estate of Hennekam (deceased) (2009) 104 SASR 289, considered.

In the Estate of ROBERT PAUL ANDERSON (DECEASED)
[2009] SASC 400

Testamentary Causes Jurisdiction

GRAY J.

1. This is an application for a grant of probate of the will of Robert Paul Anderson dated 3 September 1990 and a codicil dated 4 June 2008. 

2. The testator died on 11 June 2008, survived by his widow and two adult children.  The deceased was a practising solicitor.  The application is made by the two children of the deceased, Michael Justin Anderson and Genevieve Louise Stewart.  Frank Raymond Webster, a solicitor, is the third applicant. 

3. By a will made on 17 November 1989 the deceased left his estate to his wife provided that she survived him by one month and appointed her his executor. Another solicitor and an accountant were named as substitute executors.  The will provided that in the event that Mrs Anderson failed to survive the deceased by one month his children were to take his estate in equal shares.  The will was duly executed.

4. On 3 September 1990 the deceased executed another will.  The contents of this will are identical to the contents of the 1989 will.[1]  The formatting is slightly different.  There is no apparent explanation for the deceased making the 1990 will.  The 1990 will contained the usual clause revoking prior wills.

   [1]    save for a clear typographical error.

5. The deceased fell seriously ill during the year 2008.  In June 2008 he asked Garry George Palasis, a partner in his law firm, to prepare a codicil to his will.  He did not specify which will.  Mr Palasis located the 1989 will in the firm’s records and deed packets.  The firm had no record of the 1990 will.  Mr Palasis did not know of the existence of the 1990 will.

6. Mr Palasis drew the codicil, sought to be propounded, as a codicil to the 1989 will.  The effect of the codicil was to revoke the appointments of Mrs Anderson as executor and Messrs Kelly and Kennedy as substitute executors and to appoint in their place, as executors, the testator’s children and Mr Webster.

7. Genevieve Stewart deposed to attending on the deceased in early June 2008 while he was admitted to the Royal Adelaide Hospital, in order for the deceased to execute an enduring power of attorney.  During that meeting the deceased confirmed that he wished to amend his will by a codicil of the effect described above.

8. On 4 June 2008 Ms Stewart collected the codicil and took it to the hospital to show the deceased.  As outlined below, the codicil was referred to as the first codicil to the last will of the deceased, that will described in the codicil as bearing the date 17 November 1989.  The codicil contains a clause confirming the 1989 will.  Ms Stewart deposed that the deceased “appeared to read [the codicil] and confirm that its contents accurately reflected his intentions and instructions…”.  The codicil was duly executed on that day. 

9. The existence of the 1990 will only came to light following the death of the testator.  A copy was found amongst his papers at his home and after extensive efforts to locate the original will, it was found in a file in his office.  This file also contained other personal papers such as his daughter’s will, powers of attorney and his copy of the law firm partnership agreement.

10. The testator’s children and Mr Webster have applied by summons for the rectification of the codicil, so that it refers to the 1990 will, rather than the 1989 will.

11. The codicil as duly executed by the testator is in the following terms:

    This is the FIRST CODICIL to the last Will and Testament of me ROBERT PAUL

    ANDERSON formerly of 21 Bollingbroke Grove Toorak Gardens but now of 5a St Albyns Avenue Toorak Gardens in the State of South Australia, Solicitor which Will bears date the 17^th day of November 1989.

    1.     I REVOKE Clause 2 of my said Will and in lieu thereof I INSERT the following:-

    “2.     I APPOINT my son MICHAEL JUSTIN ANDERSON, my daughter
    GENEVIEVE LOUISE STEWART and my friend FRANK RAYMOND WEBSTER to be the executors and trustees of this my Will and trustees of my estate (hereinafter referred to as “my trustees”).”

    2.     In all other respects I confirm my said Will dated the 17^th day of November 1989.
    IN WITNESS whereof I have to this First Codicil set my hand this  4^th    day    June
    of  2008.
    The Testator being able to read but         )
    unable to write his name as a                 )
    consequence of various medical  )
    conditions which he now suffers            )  HIS
    and can only sign by a cross                  )      Testator
    and stated he knew and approved           )      Robert              X [handwritten]
    the contents of the First Codicil to the             )      Paul
    Will which Will bears the date the 17^th             )      Anderson
    day of November 1989.  Then the          )  MARK
    Testator signed the First Codicil with his    )
    mark in the presence of both of us being   )
    present at the same time who at his         )
    request and in his presence and in the             )
    presence of each other have hereunto             )
    subscribed our names as witnesses          )

    [duly witnessed and executed]

12. For reasons that shall follow, the present case may be analysed in the following manner:

    -the codicil is expressed to be a codicil to the 1989 will;

    -the draftsperson (and for these purposes the draftsperson’s mind is the testator’s[2]) did not know of the existence of the 1990 will and could not have been intending to draw a codicil to it;

    -the reference in the codicil to the 1989 will and the confirmation of it by the codicil are sufficient words to indicate an intention to revive that will. The draftsperson, and therefore it might be suggested the testator, intended that the 1989 will be confirmed;

    -the 1989 will has been revived with effect from 4 June 2008. The revocation clause in the revived will revokes the 1990 will;

    -the 1989 will should be admitted to probate with the codicil;

    -no question of rectification arises.

    [2]    In the Goods of Stedham (1881) 6 PD 205 at 206 (Sir James Hannen P); In the Estate of Mardon [1944] 1 P 109.

    Revival of the 1989 Will

13. The present application is governed by section 25(1) of the Wills Act 1936 (SA). This provision corresponds with section 22 of the Wills Act 1837 (UK).  The subsection so far as it is material provides:

    No will or codicil or any part of a will or codicil which has been in any manner revoked can be revived otherwise than by its re-execution or by a codicil executed in the manner required by this Act and showing an intention to revive the will or codicil or the part of the will or codicil.

14. Prior to the enactment of this provision it was held that if a codicil referred to a revoked will by its date, that was sufficient to effect a revival of the instrument referred to, even in cases where parol evidence, if admissible, would have established beyond all doubt that the reference in question was nothing but a blunder.[3]  Sir Creswell in Marsh v Marsh[4] when commenting on the United Kingdom legislation observed; “It appears to have been the object of the legislature to put an end equally to implied revocations and implied revivals”.

    [3]    See C Mortimer and H Coates, Mortimer on Probate Law and  Practice (2^nd ed), at 198-199) and the cases cited therein.

    [4]    Marsh v Marsh (1860) 1 Sw & Tr 528 at 533.

15. In three authorities generally referred to under the name In the Goods of Steele,[5] Sir Wilde made general observations on the effect of the provision of the Wills Act (UK):

    …I therefore infer that the legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.  In other words, I conceive that it was designed by the Statute to do away with the revival of wills by mere implication.

    [5]    In the Goods of Steele (1868) LR 1 P & D 575 at 578.

16. The principles enunciated in In the Goods of Steele received the approval of the Judicial Committee of the Privy Council in McLeod v McNab.[6]  Lord Hannen observed:

    …It has been decided in many cases that the intention must be found in the instrument itself; and it may be taken that the recent decisions have established that a mere reference to the document intended to be dealt with, whether will or codicil, by its date, is not sufficient in itself.  The date is an important element in the consideration, but it is not to be taken by itself; it becomes necessary to look to the context, and to anything else in the document which may explain whether the intention of the testator was to confine the action of the testamentary disposition under consideration to the document of that date, or to extend it to something more.

    Sir Wilde had relevantly observed in Steele:[7]

    The next proposition is this: that, although evidence of the testator's intention is excluded, the Court ought always to receive such evidence of the surrounding circumstances as, by placing it in the position of the testator, will the better enable it to read the true sense of the words he has used.

    [6]    McLeod v McNab [1891] AC 471 at 474, a case on appeal from the Supreme Court of Nova Scotia, Canada.

    [7]    In the Goods of Steele (1968) LR 1 P & D 575, at 576.

17. Whether a codicil shows an intention to revive is a question of construction and the normal rules as to the admission of extrinsic evidence apply.  Direct extrinsic evidence of the testator’s intention to revive is not admissible unless there is a latent ambiguity in the instrument, but evidence of the surrounding circumstances is admissible under the “armchair” principle.[8]

    [8]    See In the Goods of Steele (1968) LR 1 P & D 575, at 577, Re Smith [1939] VLR 213 at 216-217; Re Dear [1975] 2 NZLR 254 and Theobold on Wills (16th ed) at 92.

    Latent Ambiguity

18. The Estate of White[9] is an illustration of a latent ambiguity contained in a codicil permitting the admission of evidence of intention.  A testator had executed a will in 1955.  In 1958 the testator executed a second will containing a revocation clause and varying the provisions of the 1955 will, but naming the same persons as executors.  In 1960 the testator executed a codicil described as a codicil to the 1955 will which revoked the appointment of the “executors of my will” and appointed a bank in their place.  The codicil concluded with the words “in all other respects I confirm my said will”.  The error occurred because the bank which held both wills sent the penultimate will by mistake to the testator’s solicitor.  The result was that when the codicil was drafted it was described as a codicil to the 1955 will.  When the codicil was executed neither will was before the testator.  Scarman J held that, in the circumstances of the case, the words in the codicil “I confirm my said will” contained a latent ambiguity and evidence was therefore admissible to show that the testator intended to confirm the 1958 will and not the 1955 will.

    [9]    Estate of White, reported in “The Solicitors Journal” 17 March 1961, at 259.

    Discussion of relevant case law

19. The question of revival being a matter of construction will depend upon the language of the subject document in each particular case.  Reference to previous decisions may not therefore, be necessarily applicable.  However, guidance can be found from the manner in which the question has been decided in other instances.

20. In the Goods of Steele,[10] involved a testator who had described his codicil as a codicil to his last will, and in each case had referred to the earlier will by date.  In that case it was held that the necessary intention to revive the earlier will had not been shown.  It was concluded that:[11]

    …the Court ought to be slow to conclude that a testator has manifested in this indirect way a desire to revoke his last will, and that it should scrutinise narrowly the language of a codicil which is said to shew such an intention…

    [10]   In the Goods of Steele (1868) LR 1 P & D 575.

    [11]   In the Goods of Steele (1868) LR 1 P & D 575 at 580.

21. In In the Goods of Law[12] a testator executed two wills, one in 1860 and the other in 1866.  Shortly before the testator died, he executed a codicil, which by mistake he described as a codicil to the earlier will.  During the intervening years the testator’s circumstances had changed and a son of the testator had died.  The codicil referred to this latter fact.  It was held that there were no words in the codicil to disclose an intention of revoking the later will, or to revive the previous will.  Probate of the later will and codicil were granted.

    [12]   In the Goods of Law (1869) 21 LT 399.

22. In the Goods of Stedham[13] concerned a testator who made two wills, one in 1877 and the other in 1878; both were kept by his solicitor.  In 1880 the solicitor was instructed by the testator to prepare a codicil to his will, and by mistake, he prepared a codicil expressed to be a codicil to the will of 1877, in which the terms and language of the 1877 will were employed and its provisions referred to.  In holding that the codicil revived the will of 1877, Sir Hannen P said that he could not treat the reference in the codicil to the earlier will as a mere mistake because:[14]

    …the mind of the solicitor, which must be treated as that of the testator, was actually applied to the provisions of the will of 1877, and he employed the terms and language of that will of 1877 so as to mould it into an expression of what the testator's intention and wishes were at the time of the making of the codicil, and if I were to allow probate of the codicil together with the will of 1878, it would be introducing nonsense into the two instruments, for it would make the codicil refer to provisions in a will, which, when the will is looked at, would not be found in it.

    Sir Hannen P admitted all three documents to probate, the later will because it contained provisions not revoked by the other instruments, and left the effect to be determined by a court of construction.

    [13]   In the Goods of Stedham (1881) 6 P 205.

    [14]   In the Goods of Stedham (1881) 6 P 205 at 206.

23. In In the Goods of Dyke[15] the testator’s later will revoked an earlier will.  Subsequent to the later will he made a codicil which professed in its terms to be a codicil to his earlier will.  The codicil revoked a legacy contained in the earlier will and the appointment of an executor by the earlier will and appointed another executor.  No mention was made by the testator of the second will before or after the execution of the codicil.  It was held that the first will had been revived by the codicil, but it was not able to be determined whether the second will had been revoked by implication.  Accordingly, probate was granted of the three instruments leaving their interpretation to a court of construction: [16] 

    Where a simple mistake has been made as to the date of an instrument, the mistake can be set right: but in a case like this where the mind of the draftsman, whether the testator himself, or some one employed by him, has been really applied to the words of a particular instrument, it is impossible for me to say that it was by mistake that that instrument was referred to instead of another.

    [15]   In the Goods of Dyke (1881) 6 P 207.

    [16]   In the Goods of Dyke (1881) 6 P 207 at 208.

24. In In the Goods of Turner[17] the testator executed a will and codicil in 1881.  In 1885 she executed a second will and codicil.  In 1889 she executed a “second codicil” to the 1881 will and codicil which she thereby purported to “ratify and confirm”.  The solicitors who drew the first will and codicil and the last codicil were unaware of the second will and codicil.  There were no words in the codicil showing an intention to revoke the second will or revive the earlier will.  It was held that the first will and codicil were not revived by the 1889 codicil.  Probate was granted of the second will and codicil and the “second codicil” of 1889.  The earlier cases of In the Goods of Steele, Stedham and Dyke were referred to.

    [17]   In the Goods of Turner (1891) 64 LT 805.

25. In the Goods of Gordon[18] involved a testator who executed a will in 1887, and a subsequent will in 1889 by which she revoked all previous wills.  The 1889 will was in substantially the same terms as the 1887 will, except that it made further provision for a particular beneficiary.  In 1891 she executed a codicil which by a mistake made in a solicitor’s office was described as a codicil to the will of 1887.  It was held that the will of 1887 had been revoked and that the codicil did not show any evidence of intention to revive it.  Probate was granted of the 1889 will and the codicil, omitting the words referring to the date of the revoked 1887 will.  It appears that the nature of the mistake made at the solicitor’s office in this case could be characterised as a mere error as contemplated by Sir Hannen P in In the Goods of Stedham.

    [18]   In the Goods of Gordon [1892] P 228.

26. In In the Goods of Chilcott,[19] the testator executed her first will in 1889.  She later asked her solicitor to prepare a codicil to this will, which he did.  She took it away with her but never executed it.  In 1892 she went to another solicitor who prepared a fresh will which she executed containing the usual revocation clause.  In 1893 she instructed the solicitor who had prepared her first will to prepare a codicil.  He did this in ignorance of the execution of the second will and in the belief that she had executed the codicil which he had prepared for her.  The 1893 codicil, referred to the earlier codicil as a codicil to the 1889 will, and was described as “a second codicil” to the 1889 will.  It was held that the 1889 will had been revived by the 1893 codicil.  Probate was granted of the 1889 and 1892 wills and the 1893 codicil. [20]

    [19]   In the Goods of Chilcott [1897] P 223.

    [20]   Chilcott has been the subject of judicial comment in later cases. See eg In the Will of Killick [1960] VR 98 at 101-102 (Dean J); Re Dear (deceased) [1975] 2 NZLR 254 at 262 (Richmond J).

1. Chilcott has been the subject of judicial comment in later cases.[21]  The decision appears to be based on the belief of the solicitor rather than on the construction of the codicil itself.  Later comment suggests that a better ground for finding that the 1989 will had been revived would have been the construction of the codicil itself having regard to the reference to the date of the first will and also the description of the codicil as a “second codicil”.  As a consequence, it would have been impossible to say that it was by mistake that that instrument had been referred to.

   [21]   In the Will of Killick [1960] VR 98 at 101-102 (Dean J); Re Dear (deceased) [1975] 2 NZLR 254 at 262 (Richmond J).

2. Jane v Jane[22] concerned a testator who made a will in 1909 which he left in the custody of his solicitor.  He made another will in 1912 which he retained in his own custody.  In 1916 he instructed his solicitor to prepare a codicil.  The solicitor having found the will of 1909 and, supposing it to be the last will, prepared a codicil which contained the words “This is a codicil to my last will dated December 18, 1909,” and which revoked the appointment of the executors named in the will of 1909.  It was held that there was nothing to show an intention on the part of the testator to revive by the codicil the will of 1909.  The codicil was intended to be a codicil to the will of 1912 and the Court pronounced for the 1912 will, together with the codicil, omitting from the latter the words relating to the will of 1909 and the executors appointed under that will. 

   [22]   Jane v Jane (1917) 33 TLR 389.

3. In Goldie v Adam[23] the testator made a will in 1929.  Three codicils to the 1929 will were executed.  In 1932 he made a fresh will revoking the earlier wills and codicils.  In 1933 he executed a document expressed to be a fourth codicil to the will of 1929, and ending with the words “In all other respects I confirm my said will”.  It was held that there was no evidence to revive the first will.  The Court pronounced for the will of 1932 and the codicil of 1933 omitting from the codicil the reference to the 1929 will.  Bucknill J considered that there was a latent ambiguity in the words of the 1933 codicil and that extrinsic evidence of the intention of the testator in making the codicil was admissible.  Having regard to the extrinsic evidence Bucknill J considered that the reference in the 1933 codicil to the 1929 will by date and to the three codicils was placed there by mistake, and that the testator had never intended to revive either the 1929 will or the first three codicils.  Bucknill J considered that there was no evidence that the draftsman had applied his mind to the provisions of the 1929 will or to the three codicils and doubted whether the words in the codicil were ever really brought to the notice of the testator.

   [23]   Goldie v Adam [1938] P 85.

4. In re Marrie[24] concerned a testator who executed a will dated 15 May 1936 which was prepared and held by a trustee company.  On 27 August of the same year she made a further will revoking all previous wills.  The August will was prepared by a companion to the testator, and retained by her at the home of the testator.  On the instructions of the testator a codicil expressed to be a codicil to the May will was prepared by an officer of a trustee company, taken to the home of the testator and executed on 11 June 1937.  The codicil gave certain legacies and concluded with the usual confirmatory clause, but did not refer to any of the provisions of the May will.  The officer preparing the codicil was ignorant of the August will and turned up the will dated 15 May 1936 held by the Trustee before drafting the codicil.  It was held that the first will had not been revived as no such intention was shown.  The Court pronounced in favour of the August will and the 1937 codicil omitting from the codicil the words relating to the May will. 

   [24]   In re Marrie [1938] SASR 289.

5. In re Marrie was the subject of judicial comment in In the Will of Killick[25] where Dean J referred to the case as:

   …in accordance with the authorities, for a mere reference to an earlier will by date has always been said to be insufficient to revive such will, as it is explicable as an error.

   [25]   In the Will of Killick deceased [1960] VR 98 at 102.

6. In In the Estate of Mardon[26] the testator executed three wills, the first in 1934, the second in 1935 and the third in 1939, all of which contained a revocation clause and were retained in the custody of the solicitor of the testator.  A relative of the testator acting on her express instructions, drafted a codicil to the 1934 will which altered the main portions of that will without, however, confirming it in all other respects and without cancelling its revocation clause, the testator having apparently forgotten the existence of the later wills.  The Court held that the words in the codicil showed an intention to revive the 1934 will with the exception of two clauses and that the 1934 will, with the exception of those two clauses ought to be admitted to probate together with the codicil and the 1939 will.  It should be noted that Barnard J in this case appears also to have considered that the comments of Sir Hannen P in In the Goods of Dyke[27] were authority for the proposition that if the draftsman applied his mind to the provisions of an earlier will then this was the equivalent of the testator having done so.  He distinguished Goldie v Adam[28] on the basis that there was no evidence that the draftsman applied his mind to the provisions of the will to which the codicil purported to relate.  His Honour considered that:[29]

   The mind of the draftsman must be treated as the mind of the testator. The evidence in the present case, which is clear and undisputed, is that the draftsman applied his mind to certain provisions of the first will, and therefore, at any rate in part, revived that will.

   [26]   In the Estate of Mardon [1944] 1 P 109.

   [27]   In the Goods of Dyke (1881) 6 P 207 at 208.

   [28]   Goldie v Adam [1938] P 85.

   [29]   In the Estate of Mardon [1944] 1 P 109 at 111.

7. In In the Will and Codicil of Littlejohn[30] the testator executed a will on 13 March 1945 revoking all prior wills and disposing of the whole of her estate.  In 1947 she executed a further will which revoked all prior wills made by her and disposed of part of her property in a manner different from that of the earlier will.  In 1948 she executed a codicil which purported to be a codicil to her last will and testament “which will bears date thirteenth day of March 1945”.  Extrinsic evidence disclosed that the reference in the codicil to the 1945 will was a mistake, the wrong will being given by the office of a Trustee Company to the draftsman.  It was held by Roper J that there was a latent ambiguity.  The fact that the codicil was referred to as a codicil to the last will and testament of the testator and having regard to the fact that the 1945 will was not the last will, extrinsic evidence was admissible to explain that ambiguity.  Roper J concluded on the evidence that the codicil did not revive the 1945 will.

   [30]   In the Will and Codicil of Littlejohn (1952) 69 WN (NSW) 129.

8. In the Will of Killick[31] concerned a testator who executed a will in 1947 appointing a person as his executor and trustee.  In 1948 he executed a further will revoking all former wills and appointing a company as his executor and trustee.  In 1949 he executed a codicil in the following terms:  

   This is a codicil to the last will and testament of me…In the event of my executor Charles Patrick Whealon predeceasing me…I appoint the Trustees Executors and Agency Company Limited … executor and trustee in his stead…In all other respects I confirm my said will.

   The codicil did not refer to the date of “the last will” to which it purported to be a codicil.  Dean J held that the codicil revived the 1947 will.  In his view the reference to Mr Whealon could only refer to the first will and “would be nonsense applied to the second… [b]y whatever mistake or oversight this was done does not matter, for it is the intention disclosed by the codicil which alone matters.”  In his Honour’s opinion there was no latent ambiguity or equivocation and parol evidence was therefore inadmissible to produce a different result by contradicting the meaning given to the codicil.

   [31]   In the Will of Killick deceased [1960] VR 98.

9. In In the Estate of Brian[32] a testator executed a will appointing her son executor and leaving property to relatives.  She later made another will appointing her grandson executor leaving property to relatives, though not exactly to the same persons or in the same proportions.  She later endorsed a codicil to the first will “I…revoke all wills made out by me as from this day 25.6.70, the codicil to this will is to take the executor and trusteeship from my grandson…and give it to my son”.  It was held by Hutley JA that the son’s evidence was admissible in resolving the ambiguity as to which will the endorsement related, and to show what the attendant circumstances were when the codicil was executed; that the proper construction of the codicil was that it applied to the first will; that the Court was not entitled to refer to extrinsic evidence as to the declarations of the testator to determine an intention to revive the first will, but the fact that the codicil was endorsed on the first will showed some intention to revive that will, and therefore an inference of such intention should be made.

   [32]   In the Estate of Brian [1974] 2 NSWLR 231.

10. Where an earlier will has been revived by a codicil a question sometimes arises as to whether the intermediate will should be admitted to probate.  Admission of the intermediate will to probate is necessarily dependant on the whether the revived will has revoked the intermediate will.

11. In re Dear[33] some reservation was expressed as to the circumstances in which the republication of a will revived by a codicil can bring the operation of a revocation clause contained in that will up to the codicil, and thus cause the revocation clause contained in the revived will to revoke an intermediate will executed after the date of the revived will.  Richmond J observed:[34]

    The only cases to which we were referred in which republication was held to have that effect (as opposed to bringing about a revocation of an intermediate will by necessary implication) were In the Will of Killick [1960] VR 98, 105, and Re Pearson [1963] 1 WLR 1358, 1361; [1963] 3 All ER 763, 765. There may be difficulties in construing a revocation clause in a republished will as referring to a will made subsequently for as is pointed out in 39 Halsbury’s Laws of England (3^rd ed) 907;

    The date of original execution of the will remains as a factor for determining the construction of it; for example, when it is necessary to determine the date to which expressions of time occurring in the will are referable.

    [33]   Re Dear (deceased) [1975] 2 NZLR 254.

    [34]   Re Dear (deceased) [1975] 2 NZLR 254 at 264.

12. The position is stated in Williams on Wills[35] as follows:

    Where an earlier will which has been revoked by a later will is revived by a codicil, the question arises whether the second will is revoked.  It may be expressly revoked by the codicil, or it may be impliedly in the codicil; but otherwise it stands and all three documents will be admitted to probate, their effect being left for a court of construction to determine.  The mere fact that a codicil is described as a codicil to an earlier will does not impliedly revoke a later one, though it may have this effect.

    [35]   Williams on Wills  (1974) 4th ed at 135.

13. In the Will of Killick[36] Dean J observed:

    But if the will of 21 October 1947 be revived, as it contains a revocation clause it would revoke the will of 27 January 1948, for the revival extends to the whole of the provisions of the first will including the revocation clause.  In any event, the two wills make an exhaustive distribution of the whole of the testator’s estate and if the earlier will be revived there is an implied revocation of the later will: see Jarman on Wills, 8^th ed., at pp 205-6.  I think, probate should be sought of the will of 21 October 1947 and of the codicil.

    [36]   In the Will of Killick (deceased) [1960] VR 98 at 105.

14. In the Estate of Jones[37] concerned a testator who executed a will in 1970.  His solicitor kept the original and gave him an unexecuted carbon copy.  In April 1972 he executed the carbon copy and in July 1972 he executed a new will.  In February 1977 he executed a codicil expressed to be a codicil to the April 1972 will in which clauses 6 and 7 of that will were revoked and alternative dispositions were substituted in lieu of the dispositions contained in those clauses.  The solicitor who took the instructions to prepare the codicil was given the April 1972 will by the testator and took that document to be a carbon copy of the latest will. 

    [37]   In the estate of Jones (1979) 82 LSJS 139.

15. Wells J held that the codicil revived the April 1972 will:

    …it clearly appears from the text of the codicil that the dispositions made by it were intended to take the place of those made in a will whose dispositions were effected by clauses 6 and 7. 

    With respect to the question as to whether the intermediate testamentary document should be admitted to probate as well, Wells J considered that the facts did not warrant such an order for:

    …Where there is a proven intention to revive an earlier document then it and the reviving document speak as one as from the date of revival. The later will has, as I have held, been revived by the codicil, and there is no authority for the proposition that the revocation clause in the later will would not be revived with the rest of it.

16. In Hilder,[38] a testator had executed two wills, one in 1976 and another in 1982.  There were also two codicils made, in 1996 and 1997.  Both codicils were expressed to be codicils to the 1976 will.  The question for determination in that case was whether the 1976 will had been revived by the codicils.  Debelle J reasoned: [39]

    There is such a difference between the two wills that it cannot be inferred that the testator intended to alter the bequests made in his will in 1982.  In other words, given that the 1996 codicil deals only with the appointment of executors, and the 1997 codicil could apply equally to each will, and given that neither codicil discloses an intention to deal with his estate in a manner which was intended to revoke the bequests made in the 1982 will, I conclude that the execution of the 1996 and 1997 codicils did not revive the 1976 will.  To adopt the words of Sir J P Wilde, any other conclusion would set the testator’s intention at nought altogether.

    The fact that each of the codicils on more than one occasion clearly identifies the first will by date  is a compelling factor pointing to the intention to revive the 1976 will.  But the force of that fact is more than outweighed by the other matters to which I have referred.  In other words, the explicit reference to the 1976 will in each codicil is not, in all the circumstances, sufficient to revive that will. 

    In reaching this conclusion I do not overlook the reasoning of Dean J in In the Will of Killick (supra) and in the cases referred to in that decision.  But it must be remembered that the court must seek to ascertain the intention of the testator and an intention to revive an earlier will which has been revoked must be clearly shown.  There are important differences between the facts of this case and those in Re Killick which require a different conclusion.  In other words, the principles to be applied are the same.  The facts in each case lead to a different result.

    [38]   In the Estate of Frederick Murray Hilder deceased (1998) 199 LSJS 257; [1998] SASC 6895; In the Matter of the Estate of Denger (deceased) [2002] TASSC 70 at [8], Slicer J cited Hilder as authority for the proposition that in cases such as the one within, the codicil itself must evidence an intention to revive the term of the original will. 

    [39]   In the Estate of Frederick Murray Hilder deceased (1998) 199 LSJS 257 at [26]-[28].

    Propositions to be drawn from the case law

17. A thorough review of the authorities in this area of the law reveals that each case turned on its own facts.  However, the earlier analysis of these authorities allows the following propositions to be stated:

    -the Court of Probate is not a Court of construction.  It should, generally speaking, only construe testamentary documents insofar as it is necessary to decide what testamentary document should be admitted to probate and who is entitled to administer the estate.[40]  In determining what documents are entitled to proof the Court of Probate must ascertain the real intention of the testator in order to give effect to it.  Hence, evidence which may be excluded by the Court of construction may be admissible in a Court of Probate.[41]

    -declarations of the testator’s intention are ordinarily excluded from consideration but may be received to assist in interpreting a latent ambiguity. The reasons for this exception would seem to be that while it is forbidden to allow extrinsic evidence of intention to come into competition with the form of a document on the same subject and possibly prevail against the document, in the case of a latent ambiguity no such result follows from resort to extrinsic evidence of intention.[42]

    -where an earlier will has been revived by a codicil a question may arise as to whether the intermediate will should be admitted to probate. 

    [40]   See Heys [1914] P 192 at 200, Re Fawcett [ 1941] P 85, In Estate of Last [1958] P 137, In the Estate of Kavanagh (1977) 16 SASR 342 at 346, In the Estate of Slavinskyj (1988) 53 SASR 221 at 229 and in Re Francis Lloyd Quickdeceased [1996] SASC 5460 (Judgment of Williams J).

    [41]   See O’Bryan AJ in Re Smith [1939] VLR 213 at 223 and RS Geddes and CJ Rowland, ‘Revocation by Later Will: Relevance and Proof of Intention’ (1984) Australian Law Journal 186 (where the authors contend that Courts of Probate may admit parol evidence to show the intention of the testator in every case in which revocation by a later will is in issue).

    [42]   See O’Bryan AJ in Re Smith [1939] VLR 213 at 218.

    Application of the law to the facts of this case

18. The face of the codicil expressly refers to the 1989 will.  No reference is made to the 1990 will on the face of the codicil.  Mr Palasis drew the codicil, believing it was a codicil to the 1989 will.  The deceased read the codicil before signing it, and confirmed that it accorded with his instructions.  Save for the fact that there was in existence the 1990 will in the same terms, there is no reason to believe that the deceased was intending to draw and sign a codicil to anything other than the 1989 will. 

19. Hilder is distinguishable.  The present proceeding involves no “such difference” between the two wills as in Hilder.  From the observations above, it is clear that this was a critical factor in the decision of Debelle J.  The fact that a codicil refers to the first will is a compelling factor pointing to the intention to revive the earlier will.  In the circumstances of Hilder, however, Debelle J felt that this consideration was outweighed by others, considerations that are not present in the within proceedings. 

20. As earlier observed, the codicil makes no reference to the 1990 will.  The codicil not only refers to the 1989 will, but confirms its terms.  No latent ambiguity arises in these circumstances.  As such, extrinsic evidence as to the testator’s intentions is not admissible.  It is to be noted that in determining which document is to be admitted to Probate, this Court may consider evidence of surrounding circumstances that may otherwise be inadmissible in a case of construction. 

21. For the reasons given, in the circumstances of this case, the explicit reference to the 1989 will in the codicil is sufficient to revive that will. 

1. It is necessary to consider whether the revival of the 1989 will has revoked the 1990 will.  For the reasons already given, the intention to revive the 1989 will is clear.  That revival extends to the revocation clause contained in the 1989 will.[43]  In any event, both wills are in the same terms and make an exhaustive distribution of the whole of the deceased’s estate.  In these circumstances, there is an implied revocation of the later will.  There is no point in admitting two wills of identical terms and effect to probate.  In my view, the 1990 will has been revoked.

   [43]   In the Will of Killick deceased [1960] VR 98; In the estate of Jones (1979) 82 LSJS 139.

   Rectification

2. Section 25AA(1) of the Wills Act (SA) provides:

   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.

3. The rectification power allows the Court to correct a will where it is satisfied that that will does not accurately reflect the testator’s intentions.[44]  It is directed at mistakes in expressing the testator’s intentions, and is generally concerned with rectifying mistakes as to the meaning or the contents of the will.[45] 

   [44]   In the Estate of Hennekam (deceased) (2009) 104 SASR 289 at 300.

   [45]   In the Estate of Hennekam (deceased) (2009) 104 SASR 289 at 300.

4. It cannot be said that the codicil and 1989 will do not accurately reflect the testator’s intentions. I have come to the view that there has been no mistake identified in this application that properly can be rectified through the use of section 25AA. For the reasons given, this is not an appropriate case for the use of the rectification power.

   Conclusion and Orders

5. The 1989 will has been revived.  The 1990 will has been revoked.  I order:

   -that probate of the will dated 17 November 1989 and the codicil thereto dated 4 June 2008 of Robert Paul Anderson deceased, be granted to Michael Justin Anderson, Genevieve Louise Stewart and Frank Raymond Webster.

   -that the costs of the application are to be taxed as between solicitor and client and are to be paid out of the estate of the deceased.