In the estate of Veronica Mildred Cornelly
[2024] ACTSC 375
•22 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the estate of Veronica Mildred Cornelly |
Citation: | [2024] ACTSC 375 |
Hearing Date: | 22 November 2024 |
Decision Date: | 22 November 2024 |
Before: | McCallum CJ |
Decision: | (1) Clause 1(a) of the Codicil dated 28 August 2020 to the last will and testament of Veronica Mildred Cornelly dated 24 September 1982 (“Codicil”) is rectified so that it reads: I delete clause 3(a) of my Will and replace it with the follow clause: 3(a) Appointment If my husband, Paul William Cornelly fails to survive me or is unable or unwilling to act as my Executor, then I appoint as my Executor Tanya Louise Herbertson of MV Law. 3(b) Payment of Professional Executors Any of my Executors who practises a profession: (a) is entitled to be paid all usual and reasonable professional fees for professional and non-professional work done by that Executor or her or his firm as executor, trustee or both, on the same basis as if he or she were not one of my Executors but employed to act on behalf of my Executors; and (b) may in addition apply to the court for commission for her or his pains and trouble. (2) The costs of and incidental to this application be paid from the estate of Veronica Mildred Cornelly. |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – RECTIFICATION – principles of rectification pursuant to s 12A(2) of the Wills Act 1968 (ACT) – whether Will ought to be rectified so as to give effect to testator’s probable intention – where Codicil otherwise at risk of being void for uncertainty |
Legislation Cited: | Wills Act 1968 (ACT) s 12A(2) |
Cases Cited: | In the Estate of Rummer [2017] ACTSC 277 |
Parties: | Tanya Louise Herbertson ( Applicant) |
Representation: | Counsel T Herbertson ( Applicant) |
| Solicitors MV Law ( Applicant) | |
File Number: | PRO 525 of 2024 |
McCALLUM CJ:
EX TEMPORE REASONS (REVISED)
1․Before the Court is an application dated 6 November 2024 seeking rectification of the Codicil to a Will. The Will is the last will and testament of Veronica Mildred Cornelly dated 24 September 1982. The Codicil to the Will is dated 28 August 2020. The application invokes the Court’s power under s 12A of the Wills Act 1968 (ACT).
2․The rectification sought is straightforward. The Codicil specified the identification of an executor in generic terms, to which I will return. The application seeks to rectify the appointment of the executor by naming a specified person. The application does not seek to affect the distribution of the deceased’s estate or to affect the beneficiaries’ entitlements under the Will.
3․The deceased, Veronica Mildred Cornelly, had five children. They are the sole beneficiaries under the Will. The application is supported by affidavit from Tanya Louise Herbertson, who seeks to be substituted as executor, and the affidavits of Sonia Veronica Cornelly and Norma Kathleen Monaghan going to the deceased’s intention.
4․Section 12A of the Wills Act confers power to rectify a will in two circumstances stated in subsections (1) and (2) as follows:
(1)If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator’s intentions.
(2)The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator’s probable intention if satisfied that—
(a)any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will):
(i) the circumstances or events were not known to, or anticipated by, the testator;
(ii) the effects of the circumstances or events were not fully appreciated by the testator;
(iii) the circumstances or events arose or happened at or after the death of the testator; and
(b)because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects.
5․Subsection (2) was the subject of careful consideration in a judgment published by McWilliam AsJ (as her Honour was then) in In the Estate of Rummer [2017] ACTSC 277. Her Honour noted at [105] that there did not appear to have been any previous judicial consideration of the section. In her customarily thorough way, her Honour set out in detail in the judgment the legislative history of the section and the way in which its introduction altered the common law. In particular, her Honour noted at [104]:
Presumably the section’s departure from the common law is what has led others to describe it as ‘revolutionary’: Queensland Law Reform Commission, Consolidated Report to the Standing Committee of Attorneys-General on the Law of Wills, Miscellaneous Paper No 29 (1997) at 59; New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills, Report No 85 (1998) at 68.
6․What is revolutionary is that the section enables the court to do something the common law had previously prohibited, namely, in effect, to fill a gap in the event that the probable intention of the testator failed. As McWilliam AsJ observed at [102], “this part of the section significantly expands the principles of rectification”.
7․For an application invoking section 12A(2), taking the terms of the section as the starting point, it is necessary, first, to be satisfied that one of the conditions specified in s 12A(2)(a) applies in relation to circumstances or events existing or happening before, at or after the execution of the Will. It is then necessary to be satisfied that, because of those circumstances or events, the application of the provisions of the Will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects.
8․In the present case, the Codicil was framed in the following terms:
If my husband, Paul William Cornelly is unable or unwilling to act as my Executor then I appoint as my Executor a Partner, or a person occupying the equivalent position of Meyer Vandenberg or its successor.
As events transpired, Paul William Cornelly was unable to act as executor because he predeceased Veronica Mildred Cornelly. Accordingly, as submitted by the applicant, the appointment of the substitute executor in the Codicil is enlivened.
9․The affidavit evidence in support of the application makes plain that it was undoubtedly the intention of the deceased to appoint a specified person as substitute executor. The affidavit of Sonia Cornelly states that she was present in the room when the deceased placed her signature on the Codicil. At that time the deceased was living at an RSL life care facility in the Territory. Ms Sonia Cornelly states:
I recall that she was sitting in her room with the Codicil on a table in front of her. I recall that I explained the Codicil to her, saying, “This codicil just changes your executors from John and Paul to a partner of Meyer Vandenberg as you and dad discussed.” I watched her put on her glasses and read the codicil and I recall her saying quite emphatically, “I am not changing my Will, I’m only changing the executor”.
Ms Sonia Cornelly then saw the deceased put her signature to the Codicil.
10․The affidavit evidence explains, both in the affidavit of Sonia Cornelly and in the separate affidavit of Norma Monaghan, the de facto mother-in-law of Sonia Cornelly, that it was the deceased’s desire to appoint a legally qualified person to be the executor for two principal reasons; first, to obviate the risk of any conflict in the administration of the estate in circumstances where it appears two of the five children have had a falling out, or at least would not get along well enough to administer the estate cooperatively; and, secondly, because since the original will was made, the estate has become larger and more complex.
11․I am satisfied that the deceased intended to have a single person appointed as the executor, being a person legally qualified from the firm Meyer Vandenberg or its successors. The difficulty is that the wording of the Codicil, at least as it was interpreted by the Registrar considering the present probate application, is at risk of being void for uncertainty. That is because it does not nominate a single person as the executor but in effect, to borrow from the language of a different field of jurisprudence, specifies a floating charge over the partnership of the firm which would crystallise only upon the death of the deceased and the making of an application for probate. The Registrar in raised a requisition to that effect.
12․In all the circumstances, I am satisfied that the power to rectify the Will is enlivened for the following reasons.
13․First, the power to rectify a will is enlivened under section 12A(2)(a) if, among other things:
(ii) the effects of the circumstances or events were not fully appreciated by the testator.
I am satisfied from the evidence I have summarised that the deceased intended to make a valid appointment of a single legally qualified person as her executor. A drafting device was adopted to describe the position in terms that would, in a practical way, accommodate the changes that might occur between the time of the signing of the Codicil and the death of the deceased. However, that device, which I was informed by the applicant is one commonly used not only by her firm but by many law firms in the Territory, is at risk of being void for uncertainty.
14․I make plain that I am not making any determination as to whether the Codicil is in fact void for uncertainty. It is enough that the requisition has been raised and that the risk is a real one. In the circumstances, the terms of s 12A(2)(a)(iii) are also satisfied, namely, that events arising after the death of the testator contribute to the result that has occurred. That is because the Registrar has raised the requisition, leaving the law firm with a choice of either seeking a ruling as to the proper construction of the Will or, more cheaply and efficiently, seeking its rectification.
15․In those circumstances, I am also satisfied that s 12A(2)(b) is satisfied, namely, because of the circumstances I have identified, “the application of the provisions of the Will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects”. That is because I have no doubt the deceased did not intend that there should be any uncertainty or dispute about the appointment of a partner of Meyer Vandenberg, indeed, in all probability, the applicant, Ms Herbertson, had it been explained to her that there was any uncertainty about the clause adopted by the firm for that purpose.
16․Had any such risk been explained, I am satisfied that the deceased, then testator, would have said, “Well, just put your name in, Tanya.” It follows that the Court can and, in my view, should, rectify the Will to give effect to the probable intention of the testator, namely, her intention to appoint a single legally qualified person as her executor. The obvious person in the circumstances today, and indeed at the time the Codicil was signed, is the applicant, Tanya Louise Herbertson.
17․I note for completeness that the applicant is a partner of MV Law and so meets the generic description in the Codicil. She is the person who leads the firm’s wills and estates team and the person with the proper standing within MV Law to be appointed as executor of the deceased’s estate. The evidence establishes that the applicant has acted previously as executor of numerous deceased estates and has experience in administering large and complex estates. I have indicated, I am further satisfied that the deceased would have specifically named the applicant in her Codicil had she been informed of any risk that the appointment might otherwise be held to be void for uncertainty. That is because, as contended in the submissions, the applicant was the relevant partner who headed up the wills and estates team at the time the Codicil was made, as well as at the time of this application.
Orders
18․For those reasons, I make the following orders:
(1)Clause 1(a) of the Codicil dated 28 August 2020 to the last will and testament of Veronica Mildred Cornelly dated 24 September 1982 (“Codicil”) be rectified so that it reads:
1(a) I delete clause 3(a) of my Will and replace it with the follow clause:
3(a) Appointment
If my husband, Paul William Cornelly fails to survive me or is unable or unwilling to act as my Executor, then I appoint as my Executor Tanya Louise Herbertson of MV Law.
3(b) Payment of Professional Executors
Any of my Executors who practises a profession:
a) is entitled to be paid all usual and reasonable professional fees for professional and non-professional work done by that Executor or her or his firm as executor, trustee or both, on the same basis as if he or she were not one of my Executors but employed to act on behalf of my Executors; and
b) may in addition apply to the court for commission for her or his pains and trouble.
(2)The costs of and incidental to this application be paid from the estate of Veronica Mildred Cornelly.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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