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. The deceased married Christine Joy Kerr, who also came from a farming family. The deceased and Christine had two sons, Peter Robert Kerr, the plaintiff, and Brian William Kerr, the defendant.
Peter married Anne Louise Kerr and together they have three children. Peter has for more than 20 years been responsible for the farming of the property, at first with his father and then alone on his father’s retirement.
The property was not big enough to provide full time employment for Brian and he obtained permanent employment at Mount Gambier. Brian married Michelle Maree Kerr. They have two children. Michelle’s child by an earlier relationship, Brian’s step-child, also lived with them. Brian and Michelle are now divorced. Their property settlement finalised in early 2015.
The land comprising the farming operation consisted of a number of blocks owned by the deceased, one block owned by Peter, one block owned by Brian, one block owned by Peter and Brian, and one block owned by Christine. The land owned by the deceased formed the major part of the Allendale property.
In 2002, the deceased, Peter and Brian entered into a partnership to operate the farm. Those blocks were either adjoining or adjacent. The bulk of the plant and machinery initially owned by the partnership was contributed by the deceased. As discussed above, initially the deceased and Peter jointly conducted the farming operations. Brian undertook some farming duties on weekends and outside his normal working hours. The only wage paid by the partnership was to Peter. Subject to a few modest, intermittent cash drawings, all partnership proceeds were reinvested in the partnership.
Initially, the deceased and Christine lived on the home property in Allendale. Peter and Anne lived on a house built on the block owned by Peter. Brian lived in rented accommodation with Michelle. Christine inherited her parents’ Mount Gambier home. In about 2005, the deceased and Christine moved to live in that home. From time to time, Brian made use of the home property in Allendale, particularly during his periods of separation from Michelle.
The evidence only provides a broad picture of the respective financial positions of the family members. Evidence suggested that farming land in the Allendale area is valuable. Viable farms appear to have a value of some millions. I infer that the value of the deceased’s landholding was substantial, but I can make no precise finding as to value. The smaller blocks were also of value but, again, no finding can be made. What is clear is that the entire farming operation was sufficient to provide a living for the one family, though it should be recalled that there was significant reinvestment in the partnership operations.
Apart from his interest in the partnership property and his own land, it appears that Peter has no other substantial assets. He received a wage from the partnership of about $40,000.00 per annum. He did not receive annual leave, sick leave or superannuation. The evidence suggested that Anne came from a relatively wealthy family in the United Kingdom. The evidence did not disclose that Anne had any particular claim in that regard. Anne qualified as a legal practitioner in the United Kingdom, but did not practise. She was employed with an insurance broker in Mount Gambier.
The evidence established that Brian had an interest in the partnership, his own land and an interest in land owned with Peter. As noted above, he was in permanent employment at Mount Gambier and, at the time of trial, had earnings of approximately $80,000.00 per annum, plus the usual entitlements to annual leave and superannuation. This was substantially more than the salary paid to Peter by the partnership. It does not appear that Brian had other substantial assets. Brian and Michelle separated on a number of occasions before finally separating in December 2011. Family Court proceedings between them were not resolved until 2015.
It appears that the deceased and Christine had sufficient assets to have a comfortable, albeit modest, lifestyle in Mount Gambier. As mentioned above, they lived in a home at Mount Gambier inherited by Christine. Christine owned her own farming block and had her own livestock. Her livestock were run in conjunction with the partnership stock. The deceased had other assets, including shares and cash. Brian speculated that the amount of cash was about $100,000.00. The deceased had also inherited some blocks of land from his parents, which he had sold. There was no evidence of the other assets of the deceased or Christine. Neither was eligible for a pension.
The deceased’s will was made on 18 February 1991. The will, inter alia, appointed Christine and Peter as executors and trustees. A small pecuniary legacy was given to the Allendale Area Cricket Club. The residuary estate was left to Christine. In the event she pre-deceased, the residuary estate would pass to Peter and Brian in equal shares, or their children if neither survived the deceased. The will was in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me HENRY ROBERT KERR of Allendale East in the State of South Australia Farmer.
1.   I REVOKE all previous Wills made by me and declare this to be my last and only Will.
2.   I APPOINT my wife CHRISTINE JOY KERR and my son PETER ROBERT KERR to be the executors and trustees of this my Will.
3.   I GIVE AND BEQUEATH unto the ALLENDALE AREA CRICKET CLUB a legacy in the sum of FIVE HUNDRED DOLLARS ($500:00) for the purposes of the purchase of equipment for the playing of cricket AND I DECLARE that the receipt of the Treasurer for the time being of such club shall be a sufficient discharge to my trustees for the payment thereof and that my trustees shall not be bound to see to the application thereof.
4.   I GIVE DEVISE AND BEQUEATH unto my trustees the whole of my estate both real and personal of whatsoever nature and wheresoever situate not otherwise disposed of UPON TRUST to sell call in and convert into money the same and to stand possessed of the proceeds of such sale calling in and conversion and all other moneys arising from or forming part of my estate and such parts of my estate which shall for the time being remain unconverted UPON TRUST in the first place to pay my debts funeral and testamentary expenses and subject thereto to hold the same UPON TRUST for the said CHRISTINE JOY KERR for her sole use and benefit absolutely PROVIDED ALWAYS that should the said CHRISTINE JOY KERR die in my lifetime then in such event I DIRECT my trustees to hold the same UPON TRUST for such of them my sons PETER ROBERT KERR and BRIAN WILLIAM KERR who survive me and if more than one in equal shares absolutely PROVIDED ALWAYS that should none of them the said CHRISTINE JOY KERR, PETER ROBERT KERR and BRIAN WILLIAM KERR survive me then in such case I DIRECT my trustees to hold the same UPON TRUST for such of the children of the said PETER ROBERT KERR and BRIAN WILLIAM KERR who survive me and if more than one in equal shares absolutely.
5.   I EMPOWER my trustees:-
(a)to postpone the sale calling in and conversion of any part or parts of my real and personal estate for such period as my trustees deem fit notwithstanding that it may be of a wasting speculative or reversionary nature.
(b)to invest such of the proceeds of conversion and my ready moneys as may from time to time be available for investment in any of the modes of investment for the time being authorised by the law of the Commonwealth or any State of Australia for the investment of trust funds and in debentures or debenture stock preference or ordinary or deferred shares or preference or ordinary or deferred stock for the time being listed upon the Stock Exchange of Adelaide and whether bearing any liability for uncalled capital or not and to vary or transpose such investments into or for others of any nature hereby authorised;
(c)to apply the whole or any part of the capital as well the income of the share of any infant child taking under the trusts of this my Will in or towards the maintenance education advancement or otherwise for the benefit in life of such child without being bound to see to the application thereof;
(d)either alone or jointly with any other person persons or body corporate to carry on any business in which I may either alone or jointly with any person persons or body corporate be interested engaged or concerned at my death (notwithstanding that one or more of my trustees may be in partnership with me at my death) for such period or periods and upon such terms and conditions as my trustees shall think fit with liberty for my trustees to manage and conduct or join in managing and conducting or appoint managers and servants for the conduct and management of all the affairs of any such business in all respects as if my trustees were the absolute owners thereof or of an interest therein and with liberty for my trustees to employ in any such business the real and personal property usually employed therein or any part or parts thereof and such further part or parts of my estate as they shall from time to time think fit AND I FURTHER DIRECT that on any farming or grazing land for the time being forming portion of my estate my trustees may carry on the business of farming or grazing the same on the business of farming or grazing the same in accordance with the provisions of this clause and with the powers herein contained in all respects as if I were engaged in the business of so doing at the time of my death (with liberty for my trustees to farm or graze any such land on shares on such terms as my trustees shall think fit) AND I FURTHER DIRECT that my trustees shall have full power from time to time to determine whether moneys in their hands are capital or income and that such determination shall be absolutely final and binding on all parties; and
(e)to let or lease my real estate and sub-let and sub-lease my leasehold land or any part or parts thereof at such rent and for such term (not exceeding five years) and upon such conditions (other than for renewal) as my trustees in their discretion think fit.
6.   I DECLARE that the expression “my trustees” in this my Will and in any and every Codicil hereto shall mean and include the trustee or trustees for the time being hereof whether original additional or substituted save where such interpretation is precluded by the context.
The deceased executed his first codicil on 6 June 2008. The codicil increased the legacy to the cricket club and provided for a pecuniary legacy to each of the deceased’s grandchildren. Clause 3 of the codicil added the following clause to the will:
I ADD after paragraph 3A [inserted by clause 2 of the codicil] the following new paragraph 3B:
“3B. I GIVE to such of them my sons PETER ROBERT KERR and BRIAN WILLIAM KERR who survive me and if more than one in equal shares for their own use and benefit absolutely –
3B.1 all of my interest in the farming partnership carried on by me with my said sons as the business H.R., P.R. & B.W. Kerr; and
3B.2 all of my remaining interest in the land contained in Certificate of Title Register Book Volume 3480 Folio 120, Land Grant Register Book Volume 1900 Folio 145 and Certificate of Title Register Book Volume 5729 Folio 802.”
In all other respects the will was confirmed.
The deceased made a further codicil on 27 January 2012. The codicil revoked clause 3B of the will as added by clause 3 of the 2008 codicil. Clause 2 of the 2012 codicil provided:
I ADD after paragraph 3A the following new paragraph 3B:
“3B. I GIVE to such of them my wife CHRISTINE JOY KERR and my son BRIAN WILLIAM KERR who survive me and if more than one in equal shares for their own use and benefit absolutely –
3B.1 all of my interest in the farming partnership carried on by me with my said sons as the business H.R., P.R. & B.W. Kerr; and
3B.2 all of my remaining interest in the land contained in Certificate of Title Register Book Volume 3480 Folio 120, Land Grant Register Book Volume 1900 Folio 145 and Certificate of Title Register Book Volume 5729 Folio 802.”
In all other respects the will was confirmed.
It was Peter’s expectation that, on the death of the deceased, he would inherit one half of the deceased’s farming lands. It was his expectation that Brian would inherit the remaining half. This was the testamentary intention of the deceased when he executed the first codicil to his will in 2008. On the plaintiff’s case, this had been his intention from some time earlier. It was in 2002 that the deceased entered into the partnership with Peter and Brian for the conducting of the farming operations.
As at 2008, the effect of the deceased’s will and first codicil can be broadly stated as follows. His executors and trustees were to be Christine and Peter. Apart from a modest bequest, his farming land and interest in the partnership was to be divided between his sons. Christine had the rest and residue of his estate. By 2008, Christine was the owner of the home property in Mount Gambier and held title to her farming land and livestock at Allendale. It may be inferred that he had other assets, but the evidence does not allow any further finding. One can understand how, in the above circumstances, the deceased would have been satisfied with the division of his estate and the financial provision for his family.
Unfortunately, there was a storm cloud on the horizon. As Christine explained in her evidence, the generation to which she and the deceased belonged had a fear of the breaking up of farming properties as a consequence of Family Court property settlements following the breakdown of the marriage of a son. Daughters-in-law could pursue a property settlement that would, in part, involve a claim against the farm. This is the very storm cloud that confronted the Kerr family. Brian and Michelle were having matrimonial difficulties by the mid-2000s. There were several temporary separations before the final separation in December 2011. These circumstances caused the deceased and Brian to seek legal advice in the mid-2000s as to what could be done to protect the farming property from family law claims by Michelle. There was concern both as to the land in the name of the deceased and the land held by Brian. Together, they sought legal advice from Warwick Edward Downs, a Mount Gambier solicitor, and one of his associates. Advice was given about the possibility of utilising trusts to protect the farming land from family law claims. Mr Downs referred the deceased and Brian to solicitors in Adelaide for more expert legal advice. Ultimately, it appears that the costs associated with the setting up of trusts were too great and no further steps were taken.
When giving evidence in chief, Brian gave evidence that, in 2011, at about the time of the final separation, Michelle informed Brian that she wanted half of Brian’s entitlement under the deceased’s will, namely his half share of the deceased’s farming lands and interest in the partnership. Brian reported this conversation to the deceased, who was in hospital in Adelaide at the time. Unsurprisingly, the deceased was very upset. The following day, in cross-examination, Brian sought to water-down the effect of this evidence by suggesting he could no longer recall the detail of Michelle’s claim and that the deceased was only concerned that Michelle had learned about the contents of his will, and not that she had indicated she would claim against the farm. I will return to this topic later, but I make it clear that I am not prepared to act on the evidence given by Brian in cross-examination on this topic. I am satisfied that, in late 2011 while in hospital, the deceased became aware that Michelle wanted to claim half of Brian’s entitlement under the deceased’s will. There is no doubt that the deceased would, in any event, have been troubled by a possible claim by Michelle that would have the effect of destroying the family farm.
These circumstances explain why the deceased would be concerned to take advice about a variation to his will. The evidence established that the deceased had his will and first codicil brought to him while in hospital in Adelaide and that he reviewed the documents and had them read out to him. The evidence suggests that the deceased was a conservative, prudent and careful man. Reviewing his will and first codicil would have refreshed his memory that Christine and Peter were his executors and trustees, that they were authorised to continue the farming operations after his death, that his farming land and interest in the partnership would be shared between Peter and Brian and, subject to a small legacy, Christine would receive the rest and residue of his estate. He was aware that Christine owned the property at Mount Gambier and held her own farming property and live stock at Allendale. He was also aware of the other assets held by himself and Christine, from which they had drawn their comfortable, albeit modest, living for more than a decade without recourse to partnership funds.

The deceased was unexpectedly released from hospital before Christmas in December 2011. He had known he was very ill. Further surgery was contemplated. Heart surgery had been delayed because of lung complications. The evidence did not disclose the details of the deceased’s illnesses, but they were plainly grave and he probably knew that he was at risk of dying. Within a few weeks of returning home, he made an appointment to see Mr Downs for the purpose of varying his will on 27 January 2012. The deceased was unable through illness to get out of the car to attend in Mr Downs’ office. Mr Downs discussed the issues and took his instructions while the deceased was in the passenger seat of his motor vehicle, speaking to Mr Downs through the open window.
Mr Downs had time to prepare himself for the consultation. He had reviewed the will that had been drawn by another solicitor. He had reviewed the first codicil, in respect of which he had been instructed in 2008. Mr Downs had given advice to the deceased and Brian about the possibility of creating trusts to avoid the risk of a claim by Michelle against the family farm. According to Mr Downs, he discussed varying the will and gave advice that a second codicil should be prepared and executed. The deceased was concerned to have the second codicil executed immediately and that it would operate “for the time being”. His concern was to protect the family farm from a claim by Michelle in Family Court proceedings following the separation taking place between her and Brian. According to Mr Downs, there was no instruction or mention of a need to vary the will to make provision for Christine. The object was to remove the son who was in the process of separating from his wife from the will and to give that son’s half interest to Christine as an interim measure, probably on the understanding that she would convey or leave that interest to that son in the event that the deceased died before the property settlement was finalised. Mr Downs’ memorandum, dictated within minutes of the execution of the second codicil, confirmed the purpose and intent of the deceased. As the effect of the second codicil was to remove the separating son entirely as a beneficiary, one can readily understand that a prudent solicitor would record the reason for that variation in a contemporaneous memorandum.
Mr Downs’ evidence, if accepted, established that a mistake was made in the name of the son removed from the second codicil. Peter’s name was removed, but he was not the son who was separating. There was no threat of any Family Court proceedings or claim against the farm by Anne. Peter and Anne were in a stable and happy marriage. Brian’s name should have been removed. He was the son who was in the process of separating. There was a specific threat of Michelle making a claim against Brian’s interest in the deceased’s farming land. It is against this background that the claim for rectification is made.
I have reached the conclusion that rectification should be ordered. I am satisfied that a mistake was made in the preparation and execution of the second codicil. It was the deceased’s intention to protect Brian’s interest in his estate from the claim that Michelle had threatened to make. This was the same concern that the deceased and Brian had attempted to address earlier when considering the creation of trusts to hold the farming lands. I accept the evidence of Mr Downs as to the instructions he was given as to the reason for making the second codicil. I accept his evidence that there was no instruction and nothing was said about wishing to make further provision for Christine. I accept Peter and Anne’s evidence that their marriage was stable and happy and that there was no threat or thought of separation. I accept Anne’s evidence that she was not contemplating making any claim against Peter’s interest in the deceased’s estate. I reject the evidence of Christine as to her claim that she overheard the instructions given by the deceased to Mr Downs through the passenger-side window of the vehicle. I consider it inherently unlikely, given the circumstances of the consultation and Christine’s advanced deafness, that she heard more than snippets of the conversation. I reject the evidence of Christine and Brian that the deceased was so enraged by the suggested misconduct of Peter that he intended to disinherit Peter entirely and permanently. I consider this highly improbable and their evidence in that regard was without substance and opportunistic. It may be accepted that there were serious, but misconceived, grievances on the part of Brian toward Peter. Scurrilous allegations were made about Peter having an affair with Michelle and dishonestly dealing with partnership assets. On the evidence, there was simply no substance to such allegations. It is clear that Christine and Brian harbour ill will toward Peter and Anne. It is not possible to make any finding as to the extent to which the deceased may have been aware of this ill will or to have given it any credence. Whatever may have been his state of mind, it is apparent that the deceased’s testamentary intention was as conveyed to Mr Downs. The deceased executed the second codicil and removed one son as a beneficiary as an interim measure because of Michelle’s threat to seek half of Brian’s interest in the deceased’s estate. The deceased intended to remove Brian’s name, not Peter’s.
It will be necessary to deal with the allegations made and evidence given by Christine and Brian in more detail later in these reasons. I make it plain at the outset that I do not consider that, whatever perceived problems there may have been with Peter, they impacted on the deceased’s intention with respect to the second codicil.
Rectification – General Principles
The Court has power to order rectification of a will or codicil pursuant to section 25AA of the Wills Act 1936 (SA), which provides as follows:
Power of rectification
(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.
Section 25AA 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. In Wesley v Wesley, Debelle J observed:[1]
This statutory power alters the common law. Prior to the enactment of s 25AA, although it was possible to omit words from a will in certain circumstances, the general doctrine of rectification in equity was not available. Words could be struck out but no words could be inserted: Re Hemburrow [1969] VR 764; Re Reynett-James [1975] 3 All ER 1037, and mere severance would be refused where it would alter the sense of the remaining words: Re Horrocks [1939] P 198; Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346, 351. If the court is to be able to exercise the power, it must be satisfied as to the testamentary intentions of the testator. ...
[1] Wesley v Wesley (1998) 71 SASR 1, 4.
I considered section 25AA in detail in In the Estate of Josef Bernhard Nies (deceased) and said:[2]
[2]    In the Estate of Josef Bernhard Nies (deceased) [2014] SASC 93, [31]-[39].
A wider, rather than narrower, construction of section 25AA of the Wills Act 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.[3]
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”.[4]
The preconditions for the exercise of power under section 25AA of the Wills Act 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”.[5] A provision conferring powers on a court “should be read giving the words of the provision full amplitude”.[6]
It follows that the phrase “a will does not accurately reflect the testamentary intentions of a deceased person” in section 25AA of the Wills Act should be given a wide meaning and the circumstances by which this situation may arise should be regarded as being at large.
Section 25AA of the Wills Act 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, 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, purpose or outcome.
If the court is satisfied of the actual testamentary intentions of a testator and it is possible to give “proper expression” to those intentions by supplying or omitting words in the will, an order for rectification can be made under section 25AA of the Wills Act.
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.
[3]    Acts Interpretation Act 1915 (SA) section 22.
[4]     IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12; see also, Police v Berzins [2011] SASCFC 146, [12]-[17].
[5]     Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
[6]     Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472, [47].
The enquiry is first one of fact, namely to identify the testamentary intentions which the deceased had at the time of the making of the second codicil. It is the testator’s actual intentions which are relevant and essential to found an order for rectification.[7] The relevant date for assessment of the testamentary intentions is the time of the making of the will or codicil.[8]
[7] Sykes v Sykes [2010] SASC 356, [13].
[8] Wesley v Wesley (1998) 71 SASR 1, 5-6.
The phrase appearing in section 25AA that “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”.[9]
[9] In the Estate of Dawes deceased (2011) 112 SASR 117, 121.
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”.[10]
[10] In the Estate of Dawes deceased (2011) 112 SASR 117, 121.
Further the term “testamentary intentions”:[11]
‘…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.’
[11] In the Estate of Dawes deceased (2011) 112 SASR 117, 121.
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 Trial
Introduction
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.
I accept the evidence of Peter and Anne that their marriage was happy and stable and that there were no plans, at any time, to separate. Both were challenged with the suggestion that Anne had put pressure on the deceased to make better provision for Peter in respect to his work for the partnership, in particular his salary and superannuation, by threatening to take her children back to England. I accept their evidence that this was not so. Peter had sought better remuneration, but there was no pressure through any threat concerning the children. Taking the children back to England and leaving Peter in Australia is entirely inconsistent with the state of Peter and Anne’s marriage at the time, and their desire for the children to enjoy a close relationship with their grandparents.
Warwick Downs
I accept the evidence of Mr Downs. In particular, I accept his evidence as to the instructions he was given for the second codicil, namely that the deceased wished to remove his son who was in the process of separating from his wife as a beneficiary and to replace him with Christine. I further accept Mr Downs’ evidence that this was intended as an interim measure. I accept his evidence that he was not instructed that the deceased wished to make provision for Christine as he was concerned that she had not been adequately provided for. It is to be recalled that the deceased and Christine were living comfortably in a home owned by Christine. They did so without the assistance of drawings from the partnership and Christine was to inherit the residue of the deceased’s estate, being assets which had been used to support them during his lifetime.
I accept Mr Downs’ evidence as to the creation of his memorandum of instructions. One can readily understand why a prudent solicitor would wish to prepare a memorandum of instructions in the circumstance of a son being removed as a beneficiary of his father’s will. The second codicil had that effect. A prudent solicitor would wish to record the true reason for that change. Mr Downs’ memorandum does record an entirely plausible reason for the creation of the second codicil. One that was consistent with the deceased’s wish to avoid Michelle making a claim against Brian’s share of his estate. This was an intention that the deceased had had for some years when he and Brian had explored the possibility of a trust with Mr Downs. The deceased’s learning of Michelle’s advice to Brian that she would be making a claim to half of his share of his estate, at a time when he was seriously ill, led him to instruct Mr Downs that he wished to vary his will, to prepare the second codicil and then to arrange for its execution.

I accept Mr Downs’ evidence as to his discovering an error in his written memorandum. I accept his evidence that he went about correcting the memorandum by removing what, to his mind, was a name drafted in error and replacing it with the name that he considered should have appeared in his memorandum when it was initially prepared. I accept his evidence that the whole purpose of the second codicil was to protect the deceased’s estate from a claim by Michelle, who was in the process of separating from his son. This is consistent with the deceased’s previous attempts to protect the farming lands through the use of trusts. This is also consistent with Christine’s evidence about the general anxiety that prevailed within farming families concerning Family Court orders impacting on the viability of family farms. Brian’s evidence established that Michelle knew of his entitlement under the deceased’s will and first codicil and was seeking to assert a claim to one half of that entitlement. Brian, as noted above, made the deceased aware of this claim while the deceased was in hospital.
Counsel for Brian and Christine were highly critical of Mr Downs over his failure to disclose that he had amended his memorandum of instructions until the eve of trial and, further, that he had destroyed the two copies of that memorandum that had existed in its initial form. Counsel for Brian was also critical of Mr Downs for not having notified his professional indemnity insurers until the time of trial. It was argued that Mr Downs’ evidence was in conflict with Christine’s and that, in the circumstances, the Court could have little confidence in his evidence as to his instructions.
It is to be observed that Mr Downs was a long-serving country practitioner of more than 40 years’ experience. He had no interest in the estate or any of the participants. His concern related to the instructions he received from his client, the deceased. He frankly acknowledged to Brian and Christine that an error had been made in the drafting of the second codicil. He made an effort to encourage the family to resolve their differences. There is no suggestion that he had any reason to favour one side of the family against the other. I do not consider that the criticisms advanced by counsel should lead me to reject Mr Downs’ evidence.
I was impressed by Mr Downs as a witness. He faced up to the fact that there had been a mistake in the drafting of the second codicil. He did not seek in any way to evade or avoid cross-examination. When pressed during addresses, counsel for Brian and Christine specifically disavowed any suggestion that Mr Downs had given deliberately false evidence. The suggestion was advanced that he was confused as to his instructions at the time and had made mistakes about those instructions in the preparation of his memorandum and, as a consequence, I could not have confidence in the accuracy of the memorandum. I reject these submissions. I am prepared to accept and act on the evidence of Mr Downs.
Maryanne Stafford
I accept the evidence of Ms Stafford as to the circumstances in which the second codicil was prepared and executed and, in particular, as to her typing of the memorandum of instructions dictated by Mr Downs. Ms Stafford confirmed that the memorandum was prepared all but contemporaneously with the events.
Brian Kerr
I was unimpressed with much of Brian’s evidence. The accusations concerning Peter’s alleged dishonesty on partnership matters lacked any support. It may be that Brian had developed grievances and prejudices toward Peter without any foundation. I suspect that this occurred. I am unable, however, to make any findings about why it occurred. It is possible to speculate, though that is not an appropriate path to pursue.
Aspects of Brian’s evidence were wholly unsatisfactory. Initially, for example, Brian was clear and forthright in his evidence that Michelle, having learnt of the deceased’s will and first codicil, informed him that she would be claiming half of his interest in the deceased’s estate. He was clear and forthright in his evidence that he informed the deceased of this fact, and that his father was greatly concerned by it. Having had the chance to reflect on his evidence overnight, his evidence on this important topic dramatically changed. He claimed that he could not recall what Michelle had wanted, only that she wanted “something”. He asserted that his father’s only concern was that the terms of his testamentary dispositions were apparently known to his daughters-in-law, particularly Michelle, and not that Michelle had expressed an intention to claim half of Brian’s interest under his will. I am not prepared to act on Brian’s later evidence on this topic. I am not prepared to act on his evidence generally unless confirmed or corroborated by other reliable material.
Brian claimed to have discussed with the deceased the draft letter said to be received from Anne. I am not prepared to accept his evidence on this topic. It is plain that, at some point, Brian, Christine and Ms Prowse have discussed that topic. It may well be that innocent reconstruction has occurred. More importantly, I do not consider the contents of the draft letter to be persuasive in regard to any issue in the case. There is nothing in the draft letter about Anne separating from Peter. The entreaties in the draft letter are two-fold. The first is that the allegations about her husband are scurrilous and without foundation. The second is that Anne wanted to have a good relationship with the deceased and Christine, in particular for the sake of her children. There is nothing in the letter about a marriage breakdown. The tenor is of a wife supporting her husband and wanting good family relations. Once it is accepted that the real motivation for the second codicil was to protect the deceased’s estate from a claim by Michelle, it can be seen that Anne’s draft letter is of little significance in any event.
I accept that Brian had a good relationship with the deceased. I accept that Brian provided considerable assistance to the deceased and Christine after the deceased became ill. It is entirely unsurprising, in that circumstance, that Brian was appointed the deceased’s attorney – he was the son whose work and family commitments allowed him to provide the most care and attention to the deceased. It was suggested that Peter was not appointed the deceased’s attorney due to a lack of trust between Peter and the deceased. I do not accept this evidence. It is wholly inconsistent with the deceased retaining Peter as an executor in his will. If the deceased had lost confidence in Peter’s judgment or no longer trusted him, it is inconceivable that he would allow him to remain an executor and trustee of his will, with the power to run the farm, particularly in circumstances where Brian was not an executor – removing Peter as an executor would be more consistent with that state of affairs than simply disinheriting him. It is to be recalled that the deceased did not make Brian an executor and trustee of his will when making his second codicil, notwithstanding that he had clearly turned his mind to testamentary matters and power of attorney. Plainly, the deceased was not concerned about Peter’s position as an executor, he trusted both of his sons and was content to give them important, albeit slightly different, responsibilities.
I add that I was not impressed by Brian’s demeanour as a witness. He was argumentative and evasive in cross-examination.
Christine Kerr
I was unimpressed with Christine as a witness. I consider Christine’s evidence about overhearing the conversation between Mr Downs and the deceased at the time of giving instructions for the preparation of the second codicil as opportunistic. Initially, her evidence was that she had no interest in what Mr Downs was discussing with the deceased – it was not a matter of concern to her. Christine repeated this evidence on several occasions. Elsewhere in her evidence, she claimed that she overheard the deceased give specific instructions to Mr Downs that the reason for the second codicil was to make adequate provision for her. It is difficult to conceive that, if this instruction had been given by the deceased, it would not have been recorded in Mr Downs’ memorandum of instructions. On Christine’s case, Mr Downs not only failed to record the instructions he was given as to the reason for the second codicil, but that he recorded an entirely false reason for the instructions he was given. If I was to accept Christine’s evidence, it follows, in my view, that I would need to reject Mr Downs’ evidence. This is not a matter where there could have been confusion. The reason for the second codicil suggested by Christine and Mr Downs are fundamentally different. Further, Mr Downs has noted that the second codicil was an interim measure only – “for the time being”. This is at odds with the reason for the codicil being to provide for Christine. I was left with serious concerns as to the honesty of Christine’s evidence on this topic. I reject her testimony and accept that of Mr Downs, as confirmed by his near-contemporaneous memorandum.
I consider it relevant that no foundation was laid for the suggestion that further provision was needed to protect Christine’s financial position. As discussed earlier, she and the deceased had lived for many years from savings with little or no recourse to any partnership drawings. Christine had inherited the Mount Gambier home from her parents. The Court was informed that Christine had her farming block and livestock, but no information was provided as to the income produced from those assets. Further, there was no disclosure of the other assets held by the deceased and Christine, and in particular the value of the assets that would come to Christine through the rest and residue of the deceased’s estate. The Court was told nothing of any other assets that Christine may have had in her own name or through her parents’ estate. There was no foundation laid to support Christine’s suggestion that the deceased went to make the second codicil with a view to protecting her interests.
Christine’s deafness and lack of memory were matters of concern – she was particularly slow to answer questions and appeared to have real difficulty giving evidence and understanding the questions put to her. I am not prepared to act on Christine’s evidence unless confirmed or corroborated by other material.
Julie Prowse
Ms Prowse gave evidence of the deceased discussing with her his testamentary intentions. This, on the evidence, would have been wholly out of character. I consider it highly improbable that the deceased, who would not discuss his testamentary intentions with his wife or either of his sons, would be prepared to discuss those matters with his niece, particularly when he was apparently concerned that the details of his testamentary writings had become known among the wider family. Another matter of concern is that, according to Ms Prowse, the deceased informed her that he was intending to take Peter out of the will and put Brian in. The only aspect of the will or either codicil to which this statement could apply is the provision in the will appointing Peter and Christine as co-trustees and executors. This suggested change was never effected. The change that was intended was to remove the son who was in the process of separating out of the first codicil and to replace that son with Christine. If the position was that Peter was to be disinherited for any reason, it was not a question of taking Peter out and putting Brian in.
The other aspect of Ms Prowse’s evidence was that, contrary to Anne’s evidence, she was not given the draft letter from Anne after the deceased’s death, or at any time. The relevant events occurred some years earlier and it may be that memories in regard to that topic have faded over time.
In the circumstances, I am not prepared to give weight to Ms Prowse’s evidence. If the deceased spoke to her about his testamentary intentions, her recollection is wholly at odds with subsequent events.
Findings
Having regard to the foregoing, I make the following findings.
-The deceased had for many years the intention of leaving his farming lands and farming partnership interest equally between his two sons. Both Peter and Brian had this understanding. I am prepared to infer that Christine also had this understanding.
-For some years prior to his death, the deceased been aware that the marriage of Brian and Michelle was an unstable marriage. He was aware that there had been several separations. He was aware of the risk that, if the marriage dissolved, Michelle might make a claim against Brian for a property settlement, including his interest in the deceased’s estate.
-This risk led the deceased to seek legal advice from Mr Downs as to whether his estate could be protected against such a claim, in particular through the use of a trust structure. It was determined that the creation of a trust structure would be prohibitively expensive. However, the deceased remained concerned to protect his estate.
-The deceased and Christine had discussed from time to time the risk that a family farm was exposed to becoming part of a property settlement when there was a marriage breakdown followed by a claim by a wife against the farming property.
-The farming property at Allendale had been farmed by the Kerr family for some generations. The deceased farmed the property for many years. Peter then joined the deceased in farming the property and, upon the deceased’s retirement from farming the property, took over principal responsibility for farming the farm. Brian had permanent employment in Mount Gambier and worked on the farm when time permitted.
-The deceased’s will appointed Peter and Christine as executors and trustees. The will granted power to his trustees to hold the farming property in trust and to farm it as trustees in their discretion.
-Given Peter’s involvement in the farming of the land, it was entirely understandable that he would remain as one of the executors and trustees of the deceased’s estate. Peter being retained as an executor is entirely inconsistent with Brian and Christine’s case that the deceased had lost confidence in Peter and that Peter had been misappropriating partnership funds.
-In 2008, the deceased gave instructions to Mr Downs in regard to the preparation of the first codicil. The first codicil had the effect of dividing the deceased’s farming lands and partnership interest equally between his sons but continued to leave the rest and residue of the estate to Christine.
-By this time, the deceased and Christine had moved to Mount Gambier and were living in a property that Christine owned, having inherited it from her parents. Christine had other assets, including a block of farming land at Allendale and livestock. I am prepared to infer that she had other unspecified assets.
-The evidence established that, from the time the deceased and Christine left the farming property and moved to Mount Gambier, they lived comfortably, albeit modestly, without the need to receive any drawings from the partnership. The evidence established that there were only one or two very minor drawings. The evidence established that the deceased had other assets, including shares and cash, but there was no disclosure of the worth of these assets or in whose name they were held. Insofar as they were in the deceased’s name, they would be passed to Christine as part of the rest and residue of his estate. I am prepared to infer that these assets would have been sufficient for Christine to maintain the standard of living that she and the deceased enjoyed in Mount Gambier.
-In the latter part of 2011, the deceased became quite ill and spent some time in hospital in Adelaide. The evidence did not disclose the precise nature of his illness, though it is apparent that he had heart problems. Operative treatment was necessary but had been deferred because of a lung condition suffered by the deceased. At or about this time, the deceased, while in hospital in Adelaide, wanted to review his testamentary documents and arranged for Peter to bring them to him. Peter did so, and read the will and first codicil to the deceased. The evidence established that the deceased was a careful man with regard to his affairs. He was concerned to make proper arrangements for his family.
-Michelle at this time informed Brian that she intended to make a claim against Brian’s interest in the deceased’s farming assets. Apparently, she had been given some information about the deceased’s will and understood that Brian was entitled to a share of the deceased’s farming lands and partnership interest. Brian informed the deceased of what Michelle told him while the deceased was in hospital.
-Soon thereafter, and before Christmas, the deceased was released from hospital and allowed to return to Mount Gambier. Further treatment in Adelaide was going to be necessary in the ensuing months. It is apparent that the deceased was quite unwell.
-Soon after his return to Mount Gambier, the deceased arranged an appointment to see Mr Downs for the purpose of discussing a further variation to his will. The appointment was made for 27 January 2012. The deceased was driven to Mr Downs’ office by Christine. He was in the front passenger seat of the vehicle. He was not able to walk from the car to Mr Downs’ office. As a consequence, Mr Downs came out to the vehicle, stood on the footpath and took the deceased’s instructions through the open passenger window.
-Mr Downs had prepared himself for the meeting by reviewing the deceased’s will and first codicil. He had previously given the deceased advice in regard to the possible preparation of trusts to protect his estate, as discussed above.
-Mr Downs discussed the question of a variation to the will with the deceased and took instructions to prepare a second codicil. He then went back to his office, prepared the second codicil and returned to the car with Ms Stafford and read the second codicil to the deceased. The deceased then executed the second codicil, which was witnessed by Mr Downs and Ms Stafford.
-Christine was, at this time, in the driver’s seat of the motor vehicle. The air conditioner was running. She suffers from severe deafness. I accept Christine’s evidence in chief that she did not have any regard to what Mr Downs was saying to the deceased as that was not a matter of concern to her. I reject her later evidence that the deceased instructed Mr Downs that he wished to vary his will and first codicil to make provision for her and to do so by deleting Peter and replacing him with her.
-I accept Mr Downs’ evidence as to the effect of his discussions with the deceased and with the instructions he was given. Mr Downs recalled the substance of those discussions. Within minutes of the execution of the second codicil, Mr Downs returned to his office and dictated a memorandum of the reasons for the creation of the second codicil. As the effect of the codicil was to remove one of the sons as a beneficiary of the deceased’s estate, it is readily understandable that a prudent solicitor would record the reasons for such an important variation.
-Mr Downs’ recollection was that he was instructed that a son was in the process of separating from his wife and that son was to be removed as a beneficiary to protect the deceased’s estate from a property settlement. Mr Downs also recalled that this was to be an interim measure. Christine was to replace that son as a beneficiary.
-Mr Downs’ written memorandum expressly confirmed these instructions as to the reason for the creation of the second codicil. There is nothing in Mr Downs’ written memorandum to in any way suggest that the reason for the second codicil was to provide protection for Christine or as a consequence of a falling out with Peter or Anne. Mr Downs denied at trial that any such instruction had been given. As indicated earlier, I accept Mr Downs’ evidence.
-The son who was in the process of separating from his wife was Brian. Michelle was the daughter-in-law who had indicated an intention to claim against her husband’s interest in the deceased’s estate.
-Peter and Anne enjoyed a stable and happy marriage. There was no suggestion of any risk of separation.
-Peter and the deceased may have disagreed from time to time about farming practices, but there was nothing unusual about their relationship in this respect. The deceased had not lost confidence in Peter or ceased to trust him. The deceased had no reason to disinherit Peter.
-I am satisfied that the deletion of the name Peter on two occasions in the second codicil was an error. I am satisfied that the deceased intended to remove Brian’s name and to replace it with Christine’s name. The purpose of removing Brian as a beneficiary was to take steps to protect the deceased’s estate from a claim by Michelle.
-Earlier in these reasons, when discussing in detail the evidence of the witnesses called in the trial, I have made it plain that I accept the evidence of Mr Downs, Peter and Anne. I view much of the evidence of Brian and Christine as being false. I reject Christine’s evidence of overhearing the deceased instruct Mr Downs that he wished to vary his will to provide for her. I reject Brian’s evidence that Peter had engaged in any misconduct. I reject the evidence of Christine and Brian that Anne had provided her draft handwritten letter to the deceased in January. I accept Anne’s evidence that the draft letter was provided to Christine after the deceased’s death. I do not accept Ms Prowse’s evidence that she had any conversation with the deceased about his testamentary intentions proximate to the making of the second codicil. I am unable to resolve the difference between Anne and Ms Prowse as to whether Anne handed the draft letter to Ms Prowse. As this was suggested to have taken place, it may be that one or other’s memory on that topic was deficient. I reject Brian’s evidence that the deceased showed him a copy of Anne’s letter.

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.