In the Estate of STEPHEN MARK DAWES (DECEASED) - [2011] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of STEPHEN MARK DAWES (DECEASED)
[2011] SASC 236
Judgment of The Honourable Justice Gray
22 December 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
Application for rectification of the last will of the deceased - on 1 March 2010, the deceased had a terminal illness - the deceased executed a will - on 2 March 2010, the deceased married - on 3 March 2010, the deceased died - the will was not expressed to be made in contemplation of marriage and, if it was not rectified, it would have been revoked by the marriage - whether the will could be rectified pursuant to section 25AA of the Wills Act 1936 (SA) to insert the phrase "That this my Will is made in contemplation of my intended marriage to Nicola Prew".
Held: Application granted - the will did not accurately express the testamentary intentions of the deceased at the time of the making of the will - the deceased intended that the will that he executed was made in contemplation of marriage - order made rectifying the will as sought.
Wills Act 1936 (SA) s 8, s 20 and s 25AA; Acts Interpretation Act 1915 (SA) s 22; Administration of Justice Act 1982 (UK) s 20; Succession Act 1981 (Qld) s 33; Succession Act 2006 (NSW) s 27; Probate & Administration Act 1898 (NSW) s 29A, referred to.
Re Estate of Miller deceased (2002) 223 LSJS 133; Wesley v Wesley (1998) 71 SASR 1; I W v City of Perth & Ors (1997) 191 CLR 1; Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; Marley v Rawlings [2011] 2 All ER 103; Palethorpe v Public Trustee of Queensland [2011] QSC 335; Vescio v Bannister [2010] NSWSC 1274; Australian Executor Trustees Ltd v Casanova [2005] SASC 93; In the Estate of Varley deceased (2007) 251 LSJS 461; Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329; Sykes v Sykes [2010] SASC 356; Police v Berzins [2011] SASCFC 146, considered.

In the Estate of STEPHEN MARK DAWES (DECEASED)
[2011] SASC 236
Testamentary Causes Jurisdiction
GRAY J:

This is an application for rectification of the last Will of the deceased, Stephen Mark Dawes, made on 1 March 2010.
Introduction
The application was made initially to the Registrar of Probates by summons pursuant to the Probate Rules 2004 (SA). Rule 65.01 provides:
An application under section 25AA of the Wills Act, 1936 for an order for rectification of a will or other testamentary document prior to the issue of the grant must be made by summons to the Registrar in the Form No. 33 unless a probate action has been commenced.
The rule contemplates that an application for rectification may be made before the issue of a grant of probate. The Registrar has referred the application for hearing by a Justice of the Supreme Court.
The application, by the named executor and the brother of the deceased, David Brian Dawes, is made pursuant to 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.
The deceased married Nicola Dawes on 2 March 2010. He died on 3 March 2010 at the Flinders Medical Centre. The deceased is survived by his wife, two adult children – Jason Mark Dawes and Danielle Renee Dawes – and an infant, Macey Helen Dawes.
Notice of the application has been given to the persons whose interests may be adversely affected by the application – the deceased’s wife, Nicola, and his three children. They are the persons who would take an interest in the estate of the deceased if he died intestate.
Nicola and the two adult children have consented to the application. An order has been made appointing a guardian ad litem to act on behalf of the third child, an infant.
The applicant is the sole executor named in the last Will of the deceased made on 1 March 2010. The Will is a “Will kit” style of Will and was made without legal assistance. The Will is in the following terms:
This is the last Will and Testament
of me STEPHEN MARK DAWES
of … HACKHAM
in the State of SOUTH AUSTRALIA 5163
I revoke all former wills and codicils made by me.
I appoint
DAVID BRIAN DAWES
… MOUNT BARKER SA
Executor/s of this my will and direct that my Funeral and Testamentary Expenses and all my debts shall be paid as soon as conveniently may be after my decease.
I GIVE UNTO
NICOLA PREW all my wordly possessions which includes my motor car (Mitsubishi Magna), my house ( … Hackham 5163), superannuation (MTAA), monies held in bank accounts, block of land at Willunga (jointly owned with Nicola Prew).
IN WITNESS whereof I have hereunto set my hand this 1^st day of March 2010. [signature]
SIGNED by the abovenamed Testator as and for h [the] last Will in the presence of us, both being present at the same time, who at h [his] request in h [his] presence and in the presence of each other, have hereunto subscribed our names as Witnesses.
[Witness signature] [Witness signature]
Section 20 of the Wills Act provides:
(1)Subject to subsection (2), every will made by a man or woman is revoked by his or her marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir executor or administrator, or the person entitled as his or her next of kin under the Statute of Distributions).
(2)A will made after the commencement of the Wills Act Amendment Act 1969 which is expressed to be made in contemplation of marriage, is not revoked by the solemnisation of the marriage contemplated.
The consequence of this provision is that the Will made by the deceased on 1 March 2010 will have been revoked by his marriage on 2 March 2010, unless the Will “is expressed to be made in contemplation of marriage” and the solemnisation of the marriage contemplated has taken place. The Will of the deceased does not state that it is made in contemplation of the deceased’s marriage. Unless the Will is rectified, the position will be that the deceased died intestate.
The Will made on 1 March 2010 complies with the requirements for writing and execution of a Will prescribed by section 8 of the Wills Act. The deceased did not make a further Will between his marriage on 2 March 2010 and his death on 3 March 2010.
The form of rectification sought by the application is the addition of the emboldened words so that the introductory words of the Will would then read:
This is the last Will and Testament
of me STEPHEN MARK DAWES
of … HACKHAM 5163
in the State of South Australia.
That this Will is made in contemplation of my intended marriage to Nicola Prew.
[Emphasis added.]
Rectification in this manner will have the consequence that the Will will not be taken to have been revoked by the deceased’s subsequent marriage to Nicola and, in that event, the deceased would not have died intestate.
It is the submission of the applicant that rectification of the Will in such manner would give proper expression to the testamentary intentions that the deceased had at the time of the making of the Will. It is the further submission of the applicant that the evidence before the Court establishes a sound basis for the Court to exercise its powers under section 25AA and rectify the Will.
Section 25AA
Approach to Construction
Section 25AA of the Wills Act is a beneficial or remedial statutory provision. It replaced the common law position 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.[1]
[1] See Wesley v Wesley (1998) 71 SASR 1, 4.
It is clear from the second reading speech on the enactment of the section in 1994 that the section was designed to expand the hitherto circumscribed power of the Court to correct errors in Wills and to remedy any resulting injustices.[2] The power intended to be conferred on the Court was described in the second reading speech in wide terms:[3]
… This Bill therefore provides that rectification of a will is available wherever a court is satisfied that the will is so expressed that it fails to carry out the testator’s intentions.
The explanation of the clause of the Bill which inserted section 25AA into the Wills Act states:[4]
The new section gives the Supreme Court power to rectify a will that the Court is satisfied does not accurately reflect the testator’s intentions.
[2]    South Australia, Parliamentary Debates, Legislative Council, 9 March 1994, 191-192 (The Hon. K T Griffin); see also, In the Estate of Hennekam deceased (2009) 104 SASR 289, 299-300.
[3]    South Australia, Parliamentary Debates, Legislative Council, 9 March 1994, 192 (The Hon. K T Griffin).
[4]    South Australia, Parliamentary Debates, Legislative Council, 9 March 1994, 192 (The Hon. K T Griffin).
A wider, rather than narrower, construction of section 25AA would promote the purpose or object of the section, as revealed by the second reading speech, and therefore should be preferred to a construction which would not promote that purpose or object.[5]
[5] See section 22 of the Acts Interpretation Act 1915 (SA) which is in the following terms:
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
It is a rule of construction that beneficial or remedial legislation is to be given “a fair, large and liberal interpretation” rather than one which is “literal or technical”, although a construction should not be given that is “unreasonable or unnatural”.[6]
[6] I W v City of Perth & Ors (1997) 191 CLR 1, 12; see further, Police v Berzins [2011] SASCFC 146, [12]-[17].
The preconditions for the exercise of power under section 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”.[7] A provision conferring powers on a court “should be read giving the words of the provision full amplitude”.[8]
[7] Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
[8] Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472, [47].
It follows that the phrase “a will does not accurately reflect the testamentary intentions of a deceased person” should be given a wide meaning and the circumstances by which this situation may arise should be regarded as being at large.
Section 25AA contains no implication that the type of “testamentary intentions” of a deceased person, the subject of an application under the section, should be regarded as limited to certain categories of intentions. It appears that the jurisdiction to rectify given by the section is intended to apply to the case of an inaccurate reflection of a testamentary intention in a Will regardless of the source or type of inaccuracy or reason for the inaccuracy.
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 section 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 section 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.
Section 25AA is recognised as being in wider terms than rectification provisions found in Wills legislation in the United Kingdom and in other Australian States.[9] In New South Wales the current “uniform” legislation is recognised as being narrower than the previous statutory power to rectify Wills.[10] Caution should be exercised in applying judicial decisions from other jurisdictions when considering the scope and reach of section 25AA.
[9] See for example, Marley v Rawlings [2011] 2 All ER 103, [17], [28]; Palethorpe v Public Trustee of Queensland [2011] QSC 335, [12], [48]. Examples of legislation in other jurisdictions include section 20 of the Administration of Justice Act 1982 (UK) and section 33 of the Succession Act 1981 (Qld).
[10] See section 27 of the Succession Act 2006 (NSW) which replaced section 29A of the Probate & Administration Act 1898 (NSW); see also, Vescio v Bannister [2010] NSWSC 1274.
Judicial Authority
In his referral, the Registrar has drawn attention to a possible conflict in two earlier decisions of Judges of this Court. The Registrar suggested that it may be appropriate for the application to be referred to a Full Court. Counsel for the applicant has submitted that, properly understood, there is no conflict. For the reasons that follow, I do not consider there to be any relevant conflict.
In Re Estate of Miller[11] a testator had intended to transfer his interest in certain rural properties inter vivos to a particular company rather than dispose of them by his Will. The testator intended to devise by his Will only his interest in certain commercial properties. Unknown to the testator the transfer of the rural properties had not occurred by the time the testator made his Will, and did not occur thereafter. In consequence at the death of the testator the clause of the Will referring to all real estate of the testator operated to pass the rural properties in a manner not intended by the testator. The decision in Miller turned on identifying precisely the scope of the testamentary intentions of the testator.
[11] In the Estate of Miller deceased (2002) 223 LSJS 133.
Mullighan J held that the Will could not be rectified, in the manner sought by the plaintiff,[12] to provide for the rural properties to be transferred to the particular company under the Will because the testator “did not have any testamentary intention regarding his interest in the rural properties”.[13] The testator had of course intended to deal with those properties inter vivos. The Court instead ordered that clause 6 of the Will be rectified so that it refer only to the specific commercial properties which the testator had intended to dispose of to the beneficiaries.[14]
[12] In the Estate of Miller deceased (2002) 223 LSJS 133.
[13] In the Estate of Miller deceased (2002) 223 LSJS 133, [23].
[14] In the Estate of Miller deceased (2002) 223 LSJS 133, [25].
The Will considered in Miller contained a clause dealing with the residue of the testator’s estate. The rural properties consequently passed under that clause. It appears that the plaintiff executor did not ask the Court to rectify this clause 8 of the Will so that it applied to all of the residue of the testator’s estate except for the rural properties. Arguably it could have been contended that as well as rectifying clause 6 in the manner that was done, the Court could have rectified clause 8 so that it did not deal with the rural properties. That would, however, have resulted in the rural properties passing on a partial intestacy, and therefore rectification in that form would not have achieved the end desired by the plaintiff executor. Arguably that would have given “proper expression” to the testamentary intentions of the testator that his Will should deal with all his estate except his rural properties. However, the Court was not asked to rectify the Will in such a manner and so the issue did not arise.
In Australian Executor Trustees Ltd v Casanova[15] a testator wanted to dispose of her estate, and the interests she had received through other deceased estates, to benefit certain beneficiaries so as to achieve particular outcomes. She was however mistaken in her understanding as to the way in which she held interests through other deceased estates. She wrongly believed at the time of making her Will she had already received an interest from her deceased son’s estate, when in fact she had not. The trustee company officer who prepared the testator’s Will did not check whether the testator’s instructions as to the manner in which the assets of her estate were held by her were accurate and as a result the provisions included in the testator’s Will did not achieve the result which the testator intended because those provisions were not sufficient to pass the interests which the testator intended to pass by her Will. Duggan J ordered that the Will be rectified so as to conform with the testator’s intention.
[15] Australian Executor Trustees Ltd v Casanova [2005] SASC 93.
In Casanova the actual testamentary intentions of the testator were clear and could be determined from the evidence. The words used in the Will did not give effect to those intentions. Duggan J held that another form of words, if inserted into the Will, would give “proper expression to those intentions”.[16] Duggan J therefore ordered that the Will be rectified to add additional words.
[16] Australian Executor Trustees Ltd v Casanova [2005] SASC 93, [29].
Casanova was a case where the testator did intend to deal with the entirety of her estate through her Will – contrary to the position in Miller – but the words used in the Will were insufficient to achieve the testator’s testamentary intentions. In my view, Miller and Casanova are not in conflict.

Debelle J commented on the two cases briefly in In the Estate of Varley deceased.[17] While describing Casanova as being a case “which might represent a liberal application of s 25AA”, it appears that he regarded Casanova as a case where there was clear evidence of the actual intention of a testator, and Miller as a case where there was no evidence of a testator’s testamentary intentions because the testator had failed to address a particular contingency.[18]
[17] In the Estate of Varley deceased (2007) 251 LSJS 461, [6].
[18] In the Estate of Varley deceased (2007) 251 LSJS 461, [6] where Debelle J made the following remarks: “In Estate of Miller (2002) 223 LSJS 133, the testator owned a number of rural and commercial properties. At the time of making his will, he mistakenly believed that he had transferred all his interests in his rural properties to Rgana Pty Ltd, the trustee of one of his family trusts. He instructed his solicitor to alter his will so that his interests in his commercial properties would be bequeathed to two of his children. The effect of the will as altered was to devise all his interests in real estate, including his rural property, to those two children. The question to be determined was whether the will could be rectified to include a devise of the rural property to Rgana. Mullighan J refused to rectify the will in that way, holding that there was no evidence of what the intention of the testator would have been had he been aware that the rural property had not been transferred to Rgana Pty Ltd”.
Rectification Generally
Counsel for the applicant submitted that the approach that had been outlined in regard to the interpretation of section 25AA accorded with the general approach taken in equity to rectification. Attention was drawn to a number of decisions including the New South Wales decision of Commissioner of Stamp Duties (NSW) v Carlanka Pty Ltd where Sheller JA with whom Mahoney A-P and McLelland A-JA agreed, observed:[19]
… The plaintiff must prove that there was disconformity between the intention and the written instrument and that the intention continued to the time of execution of the instrument. The plaintiff must displace the hypothesis, arising from the execution of the written instrument, that it expressed the true intention. Proof sufficient to displace this hypothesis may be easy or difficult or impossible. Such proof may be more difficult, in some circumstances impossible, if the words of the instrument are purposely used or indicate that the parties or party no longer intended to give effect to the whole of the antecedent intention. Careless copying is one thing. Omission of some words of limitation necessary to achieve the intention another. Mistake as to the legal effect of the words used another. The proved intention of the parties or party may be equivocal or too general or not sufficiently exact or precise to found relief. But if the claimant convinces the Court that the instrument does not conform with the intention of the parties or of the party which made it and the intention is clear and precise and can be achieved by the language of an order for rectification, relief should be available
[19] Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, 340.
A review of other authorities establishes that relevant matters to be inquired into by a court concerned with rectification generally include that intention may be a matter of inference, the subjective nature of intention, the relevance of the identification of a predominant intention and mistakes as to the legal effect or meaning of a document. I accept counsel’s submission that these are relevant considerations under section 25AA.
The Testamentary Intentions of the Deceased
When the Court gives consideration to exercising its powers under section 25AA, it is necessary to determine the testamentary intentions of the deceased. It is that person’s actual intentions which are relevant.[20] In the present proceeding, the relevant date for the assessment of the testamentary intentions is the time of the making of the Will. As Debelle J observed in Wesley v Wesley:[21]
Generally speaking, the relevant date at which the court must determine the testator's intention will be the date when the will was made, for it is then that the testator has executed a will pursuant to his instructions. Alternatively, it is the day when the testator has executed a will dictated to an emanuensis. In The Estate of Spinks (unreported), Needham J at first instance held that the relevant date was the date when the will was made. On appeal, the Court of Appeal in New South Wales noted the view of Needham J and did not question it: Estate of Spinks (unreported, 12 December 1991 No 40544/90). The decision is noted in Butterworths Unreported Judgments Mortensen and Eassie v State of New South Wales (1997) BC 9101347.
Affidavit evidence before the Court allows the following findings to be made.
[20] Sykes v Sykes [2010] SASC 356, [13] citing Wesley v Wesley (1998) 71 SASR 1; Re Estate of Epheser [2008] SASC 311.
[21] Wesley v Wesley (2008) 71 SASR 1, 5-6.
The deceased was diagnosed with advanced lung cancer in October 2009. An oncologist had certified on 30 December 2009 that the deceased’s life expectancy was in the range of “many weeks to a few months”. On 1 March 2010 his treating specialist spoke to him indicating that the prognosis was poor. In response the deceased said that he wanted to make a Will.
The deceased was placed on a respirator on 1 March 2010 and the advice given by the specialist was that the deceased “may not last the night”. The hospital nursing notes for the evening of 1 March 2010 record that the deceased was “alert and oriented”. Also on 1 March 2010, the deceased again expressed a wish to make a Will. He sought assistance from a social worker at the hospital. A form of Will from a Will kit was made available to the deceased. The deceased made his Will in circumstances of haste and without the benefit of legal advice.
The hospital notes made by a social worker provide evidence that the applicant on 1 March 2010 contemplated arranging for a solicitor to attend the deceased at the hospital “to draft a more detailed will”. However, because of the rapid decline of the health of the deceased, this did not occur.
It is apparent that the deceased was acutely aware of his failing health and was concerned to make a Will that would take effect on his impending death. He wished to document his testamentary intentions. He did not intend to die intestate.
Having regard to the foregoing, I find that the deceased’s testamentary intentions were that he did not wish to die intestate, and wished to make a Will that would have continuing effect until the time of his death.
Three items of evidence allow the further conclusion to be drawn that the deceased made his Will in contemplation of marriage and that he had that intention at the time he made his Will. On 5 January 2010, the deceased signed a document giving notice of his intention to marry Nicola. On 1 March 2010, a social worker note records that the deceased and Nicola “discussed their wish to have a marriage ceremony”. This record was made at the same time as a note recording the need to organise the Will of the deceased. Finally, Nicola deposed that the deceased, at the time the Will was executed, made her promise that they would still marry.
A further relevant consideration is the conduct of the deceased following the making of his Will. In that regard, I refer to the evidence establishing the close proximity between the time at which the Will was made and the marriage and also to the disclosure of the contents of the Will by the deceased to his adult children soon after the wedding ceremony.
The evidence before the Court establishes that the deceased was unaware of the legal effect of marriage upon an earlier made Will. As mentioned above, there was insufficient time before the death of the deceased to arrange for legal advice to be given. It is to be acknowledged that words printed on the reverse side of the Will kit made reference to the usual effect of a subsequent marriage on a Will. However, there is no evidence of this note being brought to the deceased’s attention. I am satisfied that the deceased was unaware of the usual effect of a subsequent marriage. In that regard, I refer in particular to the immediacy of his marriage and to his discussion with his adult children about the terms of the Will. There can be no doubt that the deceased was of the state of mind that the Will was valid notwithstanding the subsequent marriage. I am satisfied and find that the Will does not accurately express the testamentary intentions of the deceased at the time of the making of the Will.
Counsel appearing for the infant child accepted that the facts giving rise to the application for rectification enlivened the Court’s powers to order rectification under section 25AA. Counsel was unable to point to any conduct on the part of the deceased or any other circumstance that would justify the Court refusing to rectify the Will. Counsel acknowledged that the infant child would benefit on an intestacy, but pointed out that that benefit would be modest and would, in all probability, require the sale of the home property in which the widow and the infant child continue to reside. As a consequence, counsel did not oppose the application for rectification.
Having regard to this evidence, I find that the deceased intended that the Will that he executed was made in contemplation of marriage and that he intended and understood that the marriage would take place as soon as the arrangements could be made.
Conclusion
I order that the Will of the deceased made on 1 March 2010 be rectified as emboldened:
This is the last Will and Testament
of me STEPHEN MARK DAWES
of … HACKHAM 5163
in the State of South Australia.
That this Will is made in contemplation of my intended marriage to Nicola Prew.
[Emphasis added.]
The Registrar of Probates can now consider the issue of a common form grant of probate of the Will as rectified.