Kay v Miller

Case [2021] QSC 185

SUPREME COURT OF QUEENSLAND

CITATION:

Kay v Miller [2021] QSC 185

PARTIES:

ANDREA JANE KAY as executor of the estate of the late GREGORY JAMES MILLER, deceased

(applicant)

V

ROBERT MILLER

(respondent)

FILE NO/S:

BS 4596 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

5 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1.   The orders contained in paragraphs 1 – 3 of the order made by this Court on 18 June 2021 are vacated.

2. Pursuant to s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and s 27(3) of the Succession Act 2006 (NSW) this application be heard and determined notwithstanding that it was not commenced within 12 months after the date of death of the testator.

3. Pursuant to s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and s 27(1) of the Succession Act 2006 (NSW), the will of the deceased dated 23 February 2010 be rectified in clause 4 in one place in the clause as follows:

a)   in line 3 of the clause the words “Clause 2” be deleted and in lieu thereof the words “Clauses 2 and 3” be inserted.

4. Pursuant to ss 6 and 33(4) of the Succession Act 1981, a certified copy of this order be attached to the Grant of Probate copy of the said will on court file number BS 672/20.

5.   The Applicant’s costs of the application be paid out of the estate on an indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – STATUORY POWER OF RECTIFICATION

Where the executor of a will made an application for rectification – whether the proper law to be applied for the application for rectification is the law of New South Wales or Queensland – whether the will carries out the testators intentions – where an extension of time was required for the making of the application

Conveyancing Act 1919 (NSW) s 35

Jurisdiction of Courts (Cross-vesting) Act 1987 s 11

Probate and Administration Act 1898 (NSW) s 107

Succession Act 1981 (Qld) ss 6, 33

Succession Act2006 (NSW) s 27

Estate of Wright [2016] NSWSC 1779, cited

Palethorpe v The Public Trustee of Queensland & Ors (2011) 5 ASTLR 280; [2011] QSC 335, considered

Public Trustee of Queensland v Smith [2009] 1 Qd R 26, considered

Re Blyth [1997] 2 Qd R 567, considered

Re Estate of Maree Kaye McLennan [2011] QSC 331, cited

Re Finch (deceased) [2018] 3 Qd R 370, considered

Terence John McCorley and David John Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Norman Pakleppa & Ors [2005] QSC 83, cited

The Estate of Terence Byrne; Osborne v Stewart [2020] NSWSC 507, considered

COUNSEL:

R Cumming for the applicant

SOLICITORS:

McCullough Robertson Lawyers for the applicant

  1. Andrea Kay, as executor of the will of Gregory James Miller (her son), makes an…

Continue reading Kay v Miller

Sign in free to access the full text

Details
AGLC
Kay v Miller [2021] QSC 185
Case
[2021] QSC 185
Decision Date

CaseChat Overview and Summary

In the matter of Kay v Miller, the case involved the application for rectification of a will by the executor, and the central issue was determining the proper law to apply for the rectification request and whether the will accurately reflected the testator's intentions. The application was also accompanied by a request for an extension of time for making the application. The Supreme Court of New South Wales was the forum for this legal dispute.

The primary legal issues addressed by the court were whether the law of New South Wales or Queensland should be applied to the application for rectification of the will and whether the will accurately reflected the testator's intentions. The court also considered whether an extension of time should be granted for making the application. The court had to determine whether the will, as executed, carried out the testator's instructions and intentions, and if not, whether it should be rectified to better align with the testator's wishes.

The court's reasoning was grounded in the statutory provisions of the Succession Act 2006 (NSW) and the Succession Act 1981 (Qld), particularly sections 27 and 33. The court considered the identical terms of the provisions in both jurisdictions and the need for the will, as properly construed, to carry out the testator's intentions. The court also noted that any rectifying order must reflect the testator's intentions as they existed at the time the will was made. The court found that clause 4 of the will did not provide for the provisions that followed to be in lieu of clause 3, leading to an arguably operative clause 3 despite its apparent redundancy. The court also found that the evidence of the testator's intentions at the time of making the will supported the rectification of the will to reflect the testator's actual intentions.

The final orders of the court included vacating previous orders, granting an extension of time for the application, rectifying clause 4 of the will to include clauses 2 and 3, attaching a certified copy of the order to the Grant of Probate, and awarding the applicant's costs on an indemnity basis. This decision ensured that the will accurately reflected the deceased's intentions and was consistent with the statutory provisions governing wills and their rectification.

Orders

Orders of the court

The order of the Court is that:

1. The orders contained in paragraphs 1 – 3 of the order made by this Court on 18 June 2021 are vacated.

2. Pursuant to s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and s 27(3) of the Succession Act 2006 (NSW) this application be heard and determined notwithstanding that it was not commenced within 12 months after the date of death of the testator.

3. Pursuant to s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and s 27(1) of the Succession Act 2006 (NSW), the will of the deceased dated 23 February 2010 be rectified in clause 4 in one place in the clause as follows:

a) in line 3 of the clause the words “Clause 2” be deleted and in lieu thereof the words “Clauses 2 and 3” be inserted.

4. Pursuant to ss 6 and 33(4) of the Succession Act 1981, a certified copy of this order be attached to the Grant of Probate copy of the said will on court file number BS 672/20.

5. The Applicant’s costs of the application be paid out of the estate on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Palethorpe v The Public Trustee of Queensland & Ors,[10] Philippides J discussed the genesis of s 33 of the Succession Act1981 (Qld), which had been the subject of legislative reforms recommended by the National Committee for Uniform Succession Laws, and the fact that s 27 of the Succession Act 2006 (NSW) was in identical terms to the Queensland provision. At [18] her Honour stated that:“In Vescio v Bannister[2010] NSWSC 1274, Barrett J explained at [12]–[15] the need, in context of the identical New South Wales provision, for the court to be satisfied that the will, as properly construed, does not carry out the testator’s intentions:Implicit in [the section] is an assumption that the testator gave “instructions” as to the content of the will. “Instructions” are, of their nature, communicated by one person to another with a view to compliance or obedience by that person …Having ascertained “the testator’s instructions”, the court must construe the will as executed and compare its effect, according to its proper construction, with those instructions … Only if some discrepancy appears can an order be made under [the section]; and the only permissible order is one that causes the will to be in a form that carries out the testator’s “intentions”.It follows that the court must also make findings about the “intentions” of the testator — necessarily, of course, the “intentions” existing when the will was made. It is those “intentions” that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the ‘intentions’ of the testator correspond, as to content, with the “testator’s instructions”. I say this because, in the ordinary course, a testator’s intention is that his will should implement the instructions he gives for its preparation. It is with that intention that [the section] is concerned. This seems to have been assumed in … Lawlor v Herd[2010] QSC 281. (emphasis added)”[10](2011) 5 ASTLR 280; [2011] QSC 335.Evidence of the Testator’s intention The due execution of a will raises a presumption that the testator knew and approved its contents. The onus is on those who seek to rectify the will to establish, on the balance of probabilities, that the will does not carry out the testator’s intentions for one of the reasons set out in s 27 of the Succession Act 2006 (NSW). On its plain construction, clause 4 of the Will only provides for the provisions which follow, which on the proper construction of the Will, must refer to clauses 5 and 6 “in lieu of clause 2”. Clause 4 does not provide for the provisions that follow to be in lieu of clause 3. Clause 3 therefore arguably remains operative, notwithstanding it purports to also provide for the distribution of the estate. Evidence as to the intentions of Gregory Miller at the time of making the Will is derived from the instructions Mr Miller gave his solicitor who drafted the Will. Gregory Miller’s instructions are addressed in the affidavit of Mr Elias. According to Mr Elias, he could recall meeting with Gregory and Jocelyn for the purpose of obtaining instructions from each of them for the preparation of their wills, which was confirmed by his diary which showed an entry for the meeting on 19 February 2010.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.