Kerr v Kerr - [2015] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
KERR v KERR
[2015] SASC 199
Judgment of The Honourable Justice Gray
18 December 2015
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
Application for rectification of a codicil. The deceased farmed lands in Allendale in partnership with his two sons. The effect of the deceased’s will and first codicil was to leave his interest in his farming land and the farming partnership to his two sons in equal shares. The rest and residue of his estate was left to his wife. The deceased’s son, Brian, was in an unstable marriage with Michelle. The deceased’s other son, Peter, was in a happy and stable marriage. The deceased had for a number of years been concerned to protect the family farm against a possible claim from Michelle in the event she were to separate from Brian. The deceased and Brian had sought legal advice about establishing a trust structure to protect the farm, but it was deemed prohibitively expensive. The deceased became gravely ill and, while in hospital, became aware of an express threat by Michelle to make a claim against Brian’s interest in the deceased’s estate. Upon being discharged from hospital, the deceased instructed his solicitor to prepare a second codicil to remove the son who was in the process of separating from his wife and replace him with the deceased’s wife so as to protect the estate. This was intended to be an interim measure. A mistake was made in the preparation of the second codicil: Peter’s name was removed instead of Brian’s. The codicil was executed and the mistake was not discovered until after the death of the deceased. Brian and the deceased’s wife made serious allegations of misconduct against Peter and claimed that the second codicil, as executed, accurately reflected the deceased’s intentions.
Held (granting the application):
1.       The deceased instructed his solicitor to prepare the second codicil to protect the family farm from a potential claim by Michelle upon her separation from Brian.
2.       The deceased intended to remove Brian’s name from the will and replace it with Christine’s name. This was intended to be an interim measure until Brian and Michelle reached a property settlement.
3.       The allegations of misconduct against Peter are unsubstantiated. The deceased did not intend to remove Peter’s name from the will, or to in any way disinherit him.
Wills Act 1936 (SA) 25AA, referred to.
Wesley v Wesley (1998) 71 SASR 1; In the Estate of Josef Bernhard Nies (deceased) [2014] SASC 93; Sykes v Sykes [2010] SASC 356; In the Estate of Dawes deceased (2011) 112 SASR 117, considered.

KERR v KERR
[2015] SASC 199
Testamentary Causes Jurisdiction
GRAY J.

This is an application for rectification of a codicil.
Overview
The Kerr family have farmed land at Allendale East for several generations. The deceased, Henry Robert Kerr, spent his entire life farming the Allendale property, which had also been farmed by his father.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kerr v Kerr

Details

AGLC: Kerr v Kerr [2015] SASC 199
Case: [2015] SASC 199
Decision Date: 18 December 2015

CaseChat Overview and Summary

Kerr v Kerr involved a dispute concerning the validity of a second codicil to a will. The case was heard in the Supreme Court of South Australia. The deceased had intended to replace his son Brian as a beneficiary with his daughter Christine. The primary issue was whether the second codicil accurately reflected the deceased's testamentary intentions. The court considered the deceased's approach to his testamentary intentions, the evidence of the parties, and the circumstances surrounding the making of the second codicil.

The court found that the deceased treated matters concerning his estate and testamentary intentions as matters for his private consideration. The evidence showed that Christine was not consulted about the deceased's testamentary plans and had little understanding of the role of a codicil or the terms of the will. Peter and Brian were also unaware of the terms of the will or the first codicil until the deceased showed them to Peter in late 2011. The court concluded that the second codicil did not accurately reflect the deceased's testamentary intentions and should be rectified.

The court granted the application for rectification and rectified the second codicil by removing the name Brian and inserting in its place the name Christine. The court found that the evidence supported the deceased's intention to remove Brian as a beneficiary and replace him with Christine. The court also found that the deceased's approach to his testamentary intentions was consistent with his private consideration of such matters. The court considered the evidence of the parties and the circumstances surrounding the making of the second codicil in reaching its decision.

The final orders of the court included granting the application for rectification and rectifying the second codicil by removing the name Brian and inserting in its place the name Christine. The court also found that the allegations of misconduct against Peter were without substance and that Anne's draft letter was a genuine entreaty to clear her husband's name and effect a reconciliation. The court considered the evidence of the parties and the circumstances surrounding the making of the second codicil in reaching its decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The deceased’s testamentary intentions are to be determined from a consideration of all the circumstances surrounding the making of the second codicil.Evidence in the TrialIntroduction Peter’s case was supported by oral evidence from himself, Anne, Mr Downs and Ms Stafford. An affidavit of Michelle was tendered, along with affidavits from each of the witnesses. Brian’s case was supported by oral evidence from himself, Christine and Julie Prowse, the deceased’s niece. Affidavits from each of these witnesses were also tendered. The parties prepared a book of documents, which included the Downs Lawyers file. Other documents were tendered in the course of the trial. Objections were taken from time to time as to the admissibility of evidence. Ultimately, it was agreed that, insofar as material was properly objected to, it would remain as part of the record but be given no weight. One example related to comments in a document about a solicitor’s impressions concerning the attitudes of Christine and Brian toward the suggested error in the second codicil. These comments form part of the document but no basis was laid for the statements and I have given them no weight. The evidence of Peter, Brian and Christine on some topics was entirely consistent. However, on other topics the evidence was in sharp conflict. One topic on which all appeared to agree concerned the deceased’s approach to his testamentary intentions. The evidence established that Christine was not consulted by the deceased about his testamentary plans. She did not appear to have any understanding of the role of a codicil and appeared to be unaware of the terms of the will, and in particular that she was to inherit the residue of the deceased’s estate. She appears to have had either no knowledge or understanding of the terms of the first codicil. Her only knowledge of the second codicil related to her evidence concerning discussions that she claimed to have overheard in the car. Peter understood that he would always inherit one half of his father’s land but otherwise was unaware of the terms of the will or the first codicil until his father showed them to him when in hospital in Adelaide in late 2011. Peter was wholly unaware that the second codicil had been executed until after the deceased’s death. Brian’s state of awareness was similar to Peter’s. This evidence has allowed me to conclude that the deceased treated matters concerning his estate and testamentary intentions as being very much matters for his private consideration. Peter and Anne Kerr I was impressed with the evidence of Peter. He gave evidence in a straightforward manner, answered questions directly and did not seek to avoid or evade any issue in cross-examination. Although of secondary importance, his demeanour was excellent. I am prepared to accept and act on his evidence. On the topic of Peter’s alleged misconduct, I find on the evidence that the allegations are without substance. I was impressed with the evidence of Anne. She gave evidence in a straightforward manner, answered questions directly and did not seek to avoid or evade any issue in cross-examination. I have no concern with her demeanour. Anne was closely tested about a letter that she claimed to have drafted but not delivered to the deceased and Christine prior to the death of the deceased. The letter concerned two matters. The first was her defence of Peter, concerning the serious allegations being made against him. The second related to her concern about the loss of contact between the deceased and Christine and her children after the deceased became ill. The letter appears to have been drafted at a time when she had mixed emotions. She was angry about allegations that she considered to be utterly false concerning her husband. She was distressed about the loss of contact between grandparents and grandchildren. It is apparent that Anne felt that false allegations had undermined happy family relations. I treat her letter as a genuine entreaty to clear her husband’s name and to effect a reconciliation. The circumstances explain some of the language in the draft letter, which might otherwise be considered confrontational or inflammatory. I accept Anne’s evidence that the letter was not delivered until after the death of the deceased. It is plainly a draft letter, handwritten and with crossings out and corrections. I consider it unlikely that she would send a letter in that state. It is more likely that, consistent with her evidence, she gave the draft to Christine, or arranged for it to be delivered to Christine, after the death of the deceased to indicate her state of mind at the time that it was drafted.

Decision

Reasons for decision

GRAY J

The above are my essential findings. Elsewhere in these reasons, I have indicated on a number of peripheral issues findings that I have made and inferences that I am prepared to draw. Conclusion Having regard to the foregoing, I am satisfied that the second codicil does not accurately reflect the testamentary intentions of the deceased. I am satisfied that it was the deceased’s intention to remove Brian as a beneficiary and replace him with Christine. I am satisfied that the second codicil should be rectified so as to give proper expression to the deceased’s intention. I grant the application for rectification and rectify the second codicil by removing the name Brian and inserting in its place the name Peter.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.