In the matter of the Will and Estate of Ada Margaret Dyer, deceased
[2017] VSC 341
•16 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EQUITY, TRUSTS AND PROBATE LIST
S CI 2016 05257
S PRB 2010 03476
IN THE MATTER of the Will and Estate of ADA MARGARET DYER, deceased
- and -
IN THE MATTER of an application pursuant to Section 31 of the Wills Act 1997
| COLIN PETER DYER (in his capacity as the Executor of the Will and Estate of the abovenamed deceased) | Plaintiff |
| v | |
| HOPE ELIZABETH DYER | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June 2017 |
DATE OF JUDGMENT: | 16 June 2017 |
CASE MAY BE CITED AS: | In the matter of the Will and Estate of Ada Margaret Dyer, deceased |
MEDIUM NEUTRAL CITATION: | [2017] VSC 341 |
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WILLS AND PROBATE – Application for rectification of will or revocation of probate – Wills Act 1997 (Vic), s 31 – Will of the deceased created testamentary trust – Whether evidence that the testator’s intention was not properly expressed in the will – Whether evidence goes to deliberations or conclusions about the content of the will – Applications refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Wells | McNab & Starke |
| For the Defendant | Mr R Boaden | Freeman Family Law |
HER HONOUR:
Introduction
Ada ‘Margaret’ Dyer evidently disliked her daughter-in-law, Josephine. Josephine was the wife of Margaret’s only son, Colin. Margaret wanted to ensure that Josephine would not receive any assets from her estate. A solicitor recommended to Margaret that she execute a will establishing a testamentary trust. Margaret did so in July 2001.
Josephine and Colin had a child, Hope. Hope is Margaret’s only grandchild. She was 11 years old at the time Margaret executed her will.
Margaret died about nine years after executing the will. Several years later, the marriage between Colin and Josephine broke down and there were Family Court proceedings. Josephine alleged that part of the matrimonial funds were mixed in with the assets of the estate. Hope sided with her mother in the dispute. In 2016, she instituted litigation concerning the estate, asserting that she had the status of primary beneficiary under the will.
Colin is an executor to the will. Until Hope agitated the issue in 2016, Colin had administered the estate on the basis that he was the sole trustee. He was not. The will establishes both Hope and Colin as primary beneficiaries and trustees. Some months after becoming aware of that, Colin issued these proceedings against Hope.
Colin says that Margaret’s will does not carry out her intentions because she intended that he should be the sole primary beneficiary and trustee, rather than both he and Hope. Colin says that the will should be rectified or revoked to correct this. His application is supported by Mr Ian Glenister, the solicitor who drafted Margaret’s will and who has advised Colin on the administration of her estate. Hope opposes her father’s applications.
Colin’s application is made under s 31 of the Wills Act 1997 (Vic) (‘the Act’). That section requires an application to be made within six months of the grant of probate. Colin’s application is now more than six years out of time. Hope does not oppose the Court exercising its power to extend time to allow the application to be made. Accordingly, an order will be made extending time to pursuant to s 31(3) of the Act to enable Colin’s application to be determined.
The questions for determination are as follows:
1) Does Margaret’s will fail to carry out her intentions because it does not give effect to her instructions to Mr Glenister?
2) If so, should Margaret’s will be rectified?
3) If not, should Margaret’s will be revoked on the basis that Mr Glenister did not carry out her instructions when drafting her will, nor fully explain it to her?
Before examining these questions, it is necessary to consider the relevant provisions in Margaret’s will.
Margaret’s Will
Margaret’s will is dated 13 July 2001.[1] The will appoints Colin as executor. It directs that the estate be held on a discretionary testamentary trust with Colin and Hope as the primary beneficiaries. It provides that the primary beneficiaries are also the trustees. The relevant clauses are below.
[1]Exhibit ‘CPD-1’ to the affidavit of Colin Peter Dyer affirmed 8 December 2016 (‘Colin’s first affidavit’).
Clause 3 of the will states:
Executor to Hold on Trust
My executor will hold the rest of my estate on trust and, subject to the powers set out in this Will, after the selling, calling in or converting into money any part of the estate and the payment of all or any debts and testamentary expenses associated with my death or the administration of my estate, will hold and dispose of the balance of my estate as provided hereafter.
Clause 4 of the will states (emphasis added):
Beneficiary Testamentary Trust for Son and Granddaughter
If my son and my granddaughter HOPE ELIZABETH DYER (‘my granddaughter’) survive me by thirty (30) days the balance of my estate will be held on trust with my son and granddaughter as the primary beneficiaries.
Clause 6 of the will states (emphasis added):
Creation of Beneficiary Testamentary Trust
Subject to the preceding clause my executor will hold on trust and dispose of my estate as follows:
6.1 My son and my granddaughter should survive me by thirty (30) days they will be the primary beneficiary of the trust;
…
Clause 8 of the will states:
Executor’s Discretion
The preceding clauses are subject to this clause. If a primary beneficiary consents to its exercise, my executor will have the discretion to distribute all or any part of the share of my estate for which the primary beneficiary would otherwise have been the primary beneficiary of a trust created by this Will to:
8.1Any other trust, the beneficiaries of which are confined to all or some of the beneficiaries that would otherwise have been the beneficiaries of the trust under this Will; or
8.2The primary beneficiary in his or her personal capacity.
Clause 12 of the will states (emphasis added):
Terms of Trust
In respect of each of the trusts established under this Will that nominate a person to be the primary beneficiary I declare that the following terms will apply:
…
Allocation of Net Income or Capital:
12.2The trustee will allocate or accumulate the net income or capital of the trust as follows:
(a)the net income and capital … of the trust may in each year be paid or allocated to or applied for the benefit of such of the beneficiaries that the trustee selects from time to time or (in the case of the net income) may be accumulated as an addition to the capital of the trust;
…
Powers to Pass to Specified Beneficiaries:
12.4Subject to this clause:
(a)on the death of the primary beneficiary, all powers in respect of the trust held by the primary beneficiary, including the power to appoint a substitute or additional trustee or the power to remove an existing trustee (‘’the power of appointment’’) will pass to the specified beneficiaries jointly; and
(b)PROVIDED THAT where a specified beneficiary has not attained the age of thirty years (30) years or is otherwise under a legal disability, my executor will exercise that specified beneficiary’s powers in the best interests of that specified beneficiary;
Exercise of Trustee’s Discretions:
12.5Where the power of appointment in respect of the trust is held by more than one person, the trustee may only exercise a discretion:
(a)with the written consent of each of those persons who are also beneficiaries; or
(b)for the benefit of each of those persons who are also beneficiaries, and as nearly as is practicable in the proportions specified in the deed or Will nominating the holders of such power, or if no such proportion is specified or if there is no such deed or Will, then equally;
Appointment and Removal of Trustee:
12.6The trustee may be appointed or removed as follows:
(a)subject to paragraph (c) of this subclause, the primary beneficiary or the specified beneficiaries, or a person nominated by the primary beneficiary or the specified beneficiaries, will be the initial trustee or trustees;
(b)the primary beneficiary or the specified beneficiaries may exercise the power of appointment to appoint such other person as he, she or they choose to be an additional or replacement trustee and may subsequently remove the person as a, or the, trustee;
(c)any trustee who:
(i)is also a primary beneficiary or specified beneficiary or a company wholly or partly owned by a primary beneficiary or a specified beneficiary; and
(ii)who by reason of disability, bankruptcy or otherwise, is unable to act or to continue to act as trustee;
will not be appointed as trustee or will be deemed to have resigned as trustee (as the case may be), and my executor will be the trustee, or one of the trustees (as the case may be), in that trustee’s place; …
Clause 13 of the will states (emphasis added):
General Powers of Executor and Trustees
My executor and the trustees of any trusts established by the terms of my Will:
13.1Will have all the powers authorities and discretions of a natural person, including but not limited to the power to invest and change investments freely as if they were beneficially entitled to them, together with the specific powers set out in the succeeding clauses; and
13.2In their exercise of their general and specific powers, will not be restricted or obligated by provisions relating to trustees contained in any legislation of the Commonwealth of Australia or any of its States or Territories;
and the specific powers set out in the succeeding clauses will be in addition to, and will not limit the generality of, the general powers set out in this clause.
Does the Will fail to carry out Margaret’s intentions?
Colin deposes that Margaret intensely disliked Josephine and was determined that the estate would not end up in Josephine’s hands. That much is not in contention. Hope says that is all that the evidence establishes about Margaret’s intentions. On the other hand, Colin says that Margaret had decided that he would ultimately make any decision in relation to Hope’s access to her estate and the will does not reflect that intention.
The evidence must be considered in light of s 31(1)(b) of the Act:
31 Can a will be rectified?
(1)The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator's intentions because—
…
(b) the will does not give effect to the testator's instructions.
Counsel for the parties were agreed that the relevant principles were stated by Whelan J in Re Estate of Prevost:[2]
[2][2004] VSC 537, [17] (emphasis added); applied in Re Schoenmakers [2013] VSC 556, [37].
1.Before the power of rectification can be exercised the Court must be satisfied that the will was so expressed that it failed to carry out the testatrix’s intentions, and also what it was that the testatrix did intend concerning the part of the will which is to be rectified.[3]
2.What must be shown is what the testatrix’s actual intention was, not what her intention probably would have been had she thought about the matter.[4]
3.Although the standard of proof is on the balance of probabilities, clear and convincing proof is required.[5]
4.It is not sufficient for rectification to establish that the testatrix would not have wished for an intestacy, or would not have wanted her property to go in a way that, in the events which have happened a particular clause results in the property going.[6]
5.If there is no evidence to show what the testatrix’s intention was in the event of certain things happening, the Court cannot rectify the will.[7]
[3]Rawack v Spicer [2002] NSWSC 849 at [26]; Re Estate of Dippert [2001] NSWSC 167 at [18]; Trimmer v Lax, unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997 at p 6.
[4]Trimmer v Lax, unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997 at p 6.
[5]Ibid.
[6]Rawack v Spicer [2002] NSWSC 849 at [26]; Trimmer v Lax, unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997 at p 6.
[7]Re Estate of Dippert [2001] NSWSC 167 at [18].
It was also common ground between the parties that a testatrix’s intention must be considered at the time she made her will.
Turning now to the evidence given by Colin in his affidavits, including the documents exhibited to his first affidavit. Colin exhibits documents that he found in a filing cabinet used by his mother. He says that when Margaret was preparing her will in 2001 she involved him in the process, showing him working documents and notes and discussing what she wanted done with her estate.[8] The filing cabinet had a folder marked ‘Will’ which contained a number of documents and another marked ‘Ian Glenister’ which contained some further documents.
[8]Colin’s first affidavit; affidavit of Colin Peter Dyer affirmed 26 May 2017 (‘Colin’s second affidavit’).
Turning now to this documentary evidence from Margaret’s filing cabinet and taking it, as much as possible, in chronological order.
A letter dated 15 June 2001 indicates that Margaret had begun receiving advice about her will by that time.[9] The letter is from Mr Glenister to Margaret and refers to an email of that date. The email is not in evidence. It appears to respond to a query about reserved beneficiaries of an estate. It concludes with Mr Glenister’s statement that he will await further instructions from Margaret, subsequent to which he will provide her with a draft will.
[9]Exhibit ‘CPD-3’ to the first Dyer affidavit.
The next document is a letter from Margaret to Ian (presumably being Mr Glenister), referring and replying to a letter from him dated 14 June. That letter is not in evidence. The letter from Margaret refers to and attaches a questionnaire, which is in evidence.[10] The penultimate paragraph is relied upon by Colin. It states:
I know your Questionnaire covers what would happen if Colin and Hope predeceased me, but I’m not sure of what happens when Colin and Hope do not predecease me and the order is from me to Colin and then to Hope when she is no longer a minor. Does the Trust end there, or are there further steps? [emphasis added]
[10]Exhibits ‘CPD-5’ and ‘CPD-6’ to the first Dyer affidavit.
Colin says that the words ‘Colin and then to Hope’ infer that Colin will be the trustee and primary beneficiary until he is deceased. It is conceded that another potential reading is that Colin is the trustee and primary beneficiary until Hope is no longer a minor. I think that both interpretations are open on the evidence.
The questionnaire attached to the letter is a precedent used by Mr Glenister’s firm in the preparation of wills. Question 12 seeks the following information: ‘Please set out below the persons whom you want to receive your estate and the share you want each of them to receive.’ It then provides: ‘First Option’. Under that, Margaret has written ‘both Colin and Hope’. She has then crossed out Hope’s name. Colin’s share of the estate is said to be 100 per cent. Under ‘Second Option [if the beneficiaries in your first option do not survive you]’, Margaret has written ‘Hope’ and for her share of the estate to be 100 per cent. Under question 13, concerning specific bequests to any beneficiary, Margaret has written a bequest of jewellery to Hope.
Colin says that the crossing out of Hope’s name is significant. It shows that he is to be the primary beneficiary. I do not agree. I think the answers and crossing out demonstrate some confusion about how the questions should be answered.
The next document in the chronology is an email from Mr Glenister to Margaret, sent on 19 June 2001.[11] The email refers to a ‘note of yesterday’. That note is not in evidence. Margaret appears to be responding to questions in that note. The email states:
In the event of both Colin and Hope surviving you can if you so desire establish a Testamentary Trust with both Colin and Hope as the primary beneficiaries at the time of your death with a condition that Hope cannot obtain the benefit of the capital from the Trust until she attains say the age of 25 or some other age. [Emphasis in original]
[11]Exhibit ‘CPD-7’ to the first Dyer affidavit.
Margaret has struck a line through ‘25’ and written ‘30’. Colin has also made a handwritten notation, adding the words ‘and if Colin is dead’ after the crossed-out age of 25.
The next paragraph of the email reads as follows:
Colin would be the executor of your estate and then the Trustee of the Testamentary Trust. As Trustee it would be at his discretion as to whether Hope would receive any distribution of income from the Trust in any one year. At his discretion he could withdraw capital, from the Trust, for Hope’s benefit prior to her turning 25. It would only be when Hope turned 25 she could request a capital entitlement.
There are lines drawn around the phrase ‘at his discretion he could withdraw capital, from the Trust’. Above the word ‘capital’ is a handwritten line, next to which Margaret has written the word, ‘No’. Further, the last sentence in the paragraph has been underlined by Margaret. Next to it, she has written ‘No. 30.’
The following paragraph of the email reads:
You may wish Hope to not be able to access the capital at all. This is a matter to be decided by you.
Margaret has underlined these two sentences. At the conclusion of the second sentence she has handwritten ‘yes’. Colin has drawn an arrow to the start of those two sentences and written ‘Only on Colin’s death and then only 10% [it appears that Colin had originally written 15% and then changed to 10%] per five years.’
The conclusion of the email is as follows:
A major benefit of Hope being a beneficiary of the Testamentary Trust is that even if she is a Minor at the time of your death she will be taxed as an adult. Accordingly she would be able to receive the current Tax free threshold amount of approx. $6,400 annually without paying tax. Colin of course would have any income that comes from the trust added to his normal income and be taxed accordingly.
The major benefit of the Testamentary Trust is, of course that the assets in the trust are not individually ‘owned’ by either Colin or Hope and are therefore asset protected from spouses, creditors or Bankruptcy Trustees.
I hope this has qualified your question. If not give me a call.
If you are happy with the information supplied let me know and I’ll draft your Will and get it off to you.
I await your instructions.
Colin says that the email evidences Margaret’s intention that he would be the only trustee and primary beneficiary of the trust. I do not agree. The only annotation which supports that view is that made by Colin himself – the words ‘and if Colin is dead’.
The other annotations do not support Colin’s contentions. One of Margaret’s annotations appears to reflect her wish that Hope be able to access capital only when she turned 30 years old, not 25. The other handwritten ‘no’ concerns the discretionary withdrawal of capital. The preceding paragraph says Hope will be ‘one of the primary beneficiaries of the Trust’. There is no annotation in respect of this statement which supports Colin’s submissions.
I note also that it is clear that the will has not even been drafted at this point. It cannot be said to be evidence of Margaret’s actual intention at the time the will was drafted.
The next two documents relied upon by Colin are undated file notes found in Margaret’s filing cabinet[12]. It is said that an inference should be drawn that the first, a typed eight-point file note, is a communication to Mr Glenister. Mr Glenister does not recall seeing the document. It does, however, refer to an email of 19 June 2001. The substance of the note appears to be responsive to that email.
[12]Exhibit ‘CPD- 8’ and Exhibit ‘CPD-9’ to the first Dyer affidavit.
The note states that ‘Colin has stated a preference for 30 years, not 25 years as you suggest’. It also states:
Noted that he could withdraw capital from the trust for Hope’s benefit prior to her turning 30 years – he would prefer her not to get anything until 30 and then a limited amount of say 10 per cent.
After that paragraph, Margaret has written, ‘Could Hope withdraw all the capital in trust?’.
The note then goes on to state:
4.Second paragraph – this would be okay except that Colin would prefer 30 years.
5.Third paragraph – this would be okay.
6.Fourth paragraph – I would prefer Hope be not able to access the capital at all until Colin’s death.
7.Fifth paragraph – would Colin control the amount of income paid to Hope from the trust for tax purposes and the amount paid to himself.
8.This is OK.
It is submitted by Colin that an inference should be drawn that the document was created by Margaret. The handwritten note indicates that Margaret saw the note, at the very least. She may have been the author given that the evidence is that it was her habit, as a former secretary, to type notes.[13]
[13]Colin’s first affidavit at [28].
Colin relies on this note to suggest that he should be the executor to the estate and trustee of the testamentary trust.
I agree this note appears to support Colin being the executor and trustee. However, it is not known at what point it was written, save that it was some time after 19 June. Further, the will remained a work in progress at this time. Clearly, nothing had been settled at that point because there is no reference at all to a draft will. The 19 June 2001 email, to which the note responds, states that Mr Glenister ‘[will] draft your will and get it off to you’.
The next document relied upon is undated and is said to be a note by Margaret.[14] It adds to the mystery. It states:
1.All assets to stay in the Trust. Would like some flexibility to change assets inside the Trust.
2.Would he receive the income from the Trust during his lifetime?
3.No capital distribution to Hope until after his death. Hope not to receive the benefit of the capital from that Trust until she attains the age of 30 if he dies before then. Then, if possible only a limited amount at one time, say 10%.
4.Flexibility for him to allocate income for tax purposes while at University.
[14]Exhibit ‘CPD-9’ to the first Dyer affidavit.
The note then concludes with the handwritten point 5:
Trust finishes when Hope inherits it.
There is no evidence that Mr Glenister ever received this note. There is no evidence as to its date. It appears, if anything, to be a note that Margaret has made in the course of ascertaining Colin’s views. It does not evidence her intentions at the time of the making of the will.
The next document is an email from Mr Glenister to Margaret, sent on 29 June 2001 at 2.15pm, which states:
Afternoon Margaret,
I have your note from this morning.
I have been trying to ring you for over an hour and a half but the line is continuously engaged.
I can’t really comprehend your question as per today’s note.
Give me a call after two on Monday so we can get things straightened out once and for all.
Have a nice weekend.[15]
[15]Exhibit ‘CPD-10’ to the first Dyer affidavit.
Colin submits that it may be inferred that the note to which reference is made is one of the two exhibited file notes discussed above. That inference simply cannot be drawn. Neither of those notes contains an incomprehensible question. The email does however evidence that, as at 29 June 2001, Margaret’s will certainly had not been settled at all and there were still issues which Margaret was raising in relation to its drafting.
The final undated note is one which Colin recalls his mother typing.[16] It appears to be a note to Colin rather than to Mr Glenister, perhaps continuing the communications that Colin had with Margaret concerning the will. The note states:
[16]Exhibit ‘CPD-11’ to the first Dyer affidavit.
1.Colin will be the Trustee of the Testamentary Trust and can take out Capital and Income if he wishes, but this would end the Trust.
2.Hope will receive income from the Testamentary Trust at Colin’s discretion, i.e. if the testamentary trust makes $40,000 p.a. Colin can determine if he feels fit to distribute $30,000 to himself and $10,000 to Hope.
3.When Hope gets to the stage where she goes to University, say, Monash, and she needs a car, Colin can at his discretion go into the testamentary trust and draw out $20,000 of capital to buy one. Hope cannot go into the Capital until age 30, and by then Colin will be 65. At Colin’s death, the Trust will go to Hope.
4.Colin could set up another trust for Hope.
It seems to be [crossed out and marked ‘me’] you can control the Trust until your death and if you do not wish Hope to have the opportunity to withdraw all or a large part of it, you could withdraw as much capital as you wish and leave her only the residue for her to access. By then your own affairs should be stable enough to cope.
Ian Glenister said you should prepare Hope to be able to manage money and have a respect for it. I assured him that you have already had this set up.
This is undated and is not an instruction to Mr Glenister. Again, it appears to be Margaret getting her thoughts in order and sharing them with Colin.
Counsel for Hope submitted that this document contradicts paragraph 13 of Mr Glenister’s affidavit, which states that ‘it was the deceased’s instruction that the benefit of the assets of her estate should pass to Hope only after Colin Dyer’s death and Hope attaining the age of 30 years’. Counsel says that this is inconsistent with the file note, which envisages Hope being able to receive income from the trust (at Colin’s discretion) before that time.[17]
[17]T:45.
I agree that it is difficult to reconcile the file note and Mr Glenister’s evidence as to Margaret’s intentions. In any event, I find that these documents do not demonstrate Margaret’s actual intentions. They indicate a course of careful deliberation over the matter of her will. The evidence from Mr Glenister and Colin is that she wished to avoid Josephine receiving her assets. This appears to be what motivated her to see Mr Glenister and why she set up the testamentary trust. However, beyond that there is no clear and convincing proof that the will did not express her actual intentions at the time she made it. There is no draft will. The last dated document preceding the will is dated 29 June 2001 and the will was not signed until 13 July 2001. It is unknown what further communications transpired between Margaret and Mr Glenister. This is discussed further below.
Colin also relies on an affidavit sworn by Mr Glenister.[18]
[18]Affidavit of Ian Wray Glenister sworn 24 January 2017.
Mr Glenister deposes that he has a ‘vivid recollection of the events regarding the making of the will’.[19] His recollection is that Margaret was ‘greatly concerned’ about the possibility of Josephine being able to access any of the deceased’s estate after Margaret’s death. He deposes that he advised Margaret that this concern ‘could be addressed by establishing a testamentary trust that would receive the assets of her estate as this would avoid Colin Dyer receiving these assets personally which would then limit the access to those assets by Josephine.’[20]
[19]Glenister affidavit at [4].
[20]Glenister affidavit at [10].
Mr Glenister deposes that he used a precedent to draft the will, providing for a testamentary trust with a prime beneficiary and a class of other beneficiaries. He concludes that:
In view of the structure of the precedent, it is clear that the will as drawn did not carry out in full the instructions of the deceased. The rectification sought by the originating motion in this proceeding does carry out the full instructions and testamentary intentions of the deceased.[21]
[21]Glenister affidavit at [17].
Mr Glenister’s conclusion is troubling in light of his evidence. He deposes that he no longer has the file concerning the making of the will. (Given the lapse of time this is unsurprising.) The consequence of this is that he relies upon his memory of events more than 16 years ago and notes provided to him by Colin. He says that the notes accurately reflect the dispositive scheme of Margaret’s instructions. He does not appear to have specific recollection of the notes. For instance, he deposes that a standard questionnaire seeking instructions for the drafting of a will, and completed by Margaret ‘would have been’ on his file.
The issues concerning the notes are further discussed below. They are piecemeal, reflect a deliberative process over a period of approximately one month concerning the drafting of the will and testamentary trust, and then there is a gap, until the executed will appears a number of weeks later.
Mr Glenister’s evidence does not meet this gap in the time line. Nor, understandably, does he seek to explain the questions and issues raised in the various notes. Mr Glenister does not depose as to particular conversations or communications from Margaret, save where they relate to the notes provided to him. These notes may or may not have coloured his memory. He was not cross-examined and so no finding is made in respect of that. Nor is any criticism made here of Mr Glenister. He has been asked to recollect events that happened more than 16 years ago. Indeed, his evidence has a ring of truth about it. For instance, he states that he cannot recall seeing a particular email with handwritten endorsements in the documents provided by Colin. He says it ‘would have been’ part of his file. Further, Mr Glenister advised Colin about the administration of the estate and Colin acted on the basis that he was the sole trustee. It may be inferred that he did so on the basis of Mr Glenister’s advice.
Mr Glenister says that it was Margaret’s:[22]
intention and instruction that Colin Dyer was to obtain the benefit of the assets of her estate during his lifetime. He was to have absolute control of the trust and absolute ability to make distributions of income and capital to himself during his lifetime.
[22]Glenister affidavit at [11].
Mr Glenister does not depose that this statement is based on his recollection. He does not depose as to how Margaret communicated such an intention to him.
On the other hand, Mr Glenister does state that he recalls Margaret’s instruction that the benefit of her estate should only pass to Hope after Colin’s death and after she has obtained the age of 30 years old.
Hope says that, in fact, the will is consistent with the instruction that Colin was to obtain the benefit of the assets of the estate during his lifetime. She says it is also consistent with the matters deposed to by Mr Glenister: namely, Colin having complete and unfettered discretion to provide that benefit to Hope if he wished to do so, and any remaining funds in the trust after Colin’s death then being available as both income and capital for Hope.[23] Further, the will is consistent with Mr Glenister’s specific recollection that it was Margaret’s instruction that the benefit of the estate’s assets should pass to Hope only after Colin’s death and after she attain 30 years of age. As Mr Glenister deposes, this is reflected in clause 12.4(b) of the will.
[23]Glenister affidavit at [12].
I do not accept Mr Glenister’s conclusion that the will does not give effect to the intentions of Margaret. Firstly, it does give effect to her intention to avoid Josephine receiving the assets of her estate. It does so by the establishment of the testamentary trust. Second, it gives Colin unfettered discretion to provide benefits to Hope during his lifetime, and then for the estate to go to her after she has obtained 30 years of age and after Colin’s death. Thirdly, Mr Glenister relies upon notes that are piecemeal and he does not explain what instructions he received from Margaret in the three weeks preceding her execution of the will. There is, for instance, no recollection of sending a draft will to Margaret, nor of Margaret reviewing a draft will prior to finalisation. The notes, emails and correspondence in evidence demonstrate a deliberative process not yet concluded. It is simply implausible that the next step after that would be that Margaret execute a will that had simply been paraphrased to her. Evidence is missing. The end result is that, save for Margaret’s intentions expressed in the will, and the specific recollections of Mr Glenister concerning her instructions, her actual intentions are lost to time.
Given that there is no clear and convincing proof of Margaret’s actual intentions at the time of her will being executed, it cannot be said that Mr Glenister failed to properly give effect to her instructions at the time of the will being drafted.
This then leads to the question of revocation.
Should the will be revoked on the basis that Mr Glenister did not carry out Margaret’s instructions when drafting her will, nor fully explain it to her?
Mr Glenister deposes that:
At the time that the Will was signed by the deceased, I paraphrased to the deceased the effect of the Will and part of that paraphrasing was that the Will put in place the deceased’s intentions that I have deposed to in the preceding paragraphs.[24]
[24]Glenister affidavit at [15].
Colin says that because the will did not carry out the full instructions of Margaret and it was not read over in full to her but paraphrased by Mr Glenister, the situation is akin to that where words have mistakenly been introduced into a will without the knowledge and approval of a testator. In that case, the Court must revoke the grant of probate.
On the other hand, Hope submits that the application for revocation is misconceived. The fact that Margaret instructed Mr Glenister to prepare a will containing a testamentary trust is sufficient knowledge and approval of the contents of the will.
Both parties refer to the principles outlined by Latey J in Re Morris (deceased):[25]
The fundamental principle is that an intending testator cannot delegate to another the task of deciding how his property shall be willed. He cannot hand over the making of his will to another…. But although he cannot hand over the making of a will, he can entrust someone else with the task of drafting a will which he (the intending testator) wants to make. The scope of the draftsman’s authority is to carry into effect the testator’s intentions. In some cases (where, for example, an expert in law is needed to provide the appropriate wording to give effect in law to the testator’s intentions) the testator has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning, and in such a case he adopts it and knowledge and approval is imputed to him. If the draftsman in the use of the selected phraseology, which he, knowing the testator’s intentions, has deliberately and not per incuriam chosen, and thus himself known and approved, has made a mistake as to the effect of that phraseology, the testator, having adopted it, is bound by the mistake. So far, I think, the law is plain.
I was much attracted by counsel for the plaintiff bank’s argument that that is where the line should be drawn. He argued that, save in that limited class of case, the testator is bound only by what the draftsman writes on his instructions. If he puts in something which is contrary to the testator’s instructions, he is acting outside the scope of his authority, and the testator is not bound unless, of course, the discrepancy is brought to his understanding and he adopts it. To enlarge the category of cases in which, although unaware of the draftsman’s mistake, knowledge and approval is imputed to the testator and he is bound by it, would be to subtract unnecessarily and wrongly from the fundamental principle that it is for the testator and no‑one else to make the will. But whether the line can be drawn there so that it follows that in all other cases there is not knowledge and approval, and the Court thus has the power to intervene, is far from plain. There are decisions and dicta either way.
[25][1970] 1 All ER 1057, 1066 (citations omitted; italicised emphasis in original, underlined emphasis added).
Colin relies on the following passage from an English textbook,[26] quoted by Latey J:[27]
Where the mind of the draftsman has never really been applied to the words of the particular clause, and the words were introduced into the Will per incuriam, without advertence to their significance and effect, by a mere clerical error on the part of the draftsman or engrosser, the testator is not bound by the mistake unless the introduction of such words was directly brought to his notice.
[26]Clifford Mortimer and Hamish Coates, Mortimer on Probate Law and Practice (Sweet & Maxwell, 2nd ed, 1927), 91.
[27][1970] 1 All ER 1057, 1066.
Margaret instructed Mr Glenister to draft a will containing a testamentary trust and that is what he did. Margaret approved the will by executing it. I refer to the analysis of evidence above. The evidence does not establish that there is a clerical error in the will. Nor does it establish that Mr Glenister mistook Margaret’s instruction when drafting the will. Given that, the application for revocation will also be dismissed.
Conclusion
Colin’s applications will be dismissed, save that an order will be made for extension of time. The Court will hear the parties on the appropriate form of order and costs.
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