Keys v Australian Executor Trustees Ltd - [2017] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
KEYS v AUSTRALIAN EXECUTOR TRUSTEES LTD
[2017] SASCFC 63
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
31 May 2017
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
Pursuant to 6SCR 288(1)(a)(iii) the applicant applies for permission to appeal to the Full Court from a judgment of a Judge of this Court, dismissing an appeal from the Registrar of Probates. The Registrar had summarily dismissed her application pursuant to s 25AA of the Wills Act 1936 (SA) for rectification of the will of the deceased, Yvonne Joan Keys.
The last will was made on 27 April 2000. The deceased died on 29 May 2014. Probate of that will was granted to the defendant on 6 November 2014. There are 7 residuary beneficiaries named in the will. The applicant contends that she and her brother were intended to be the sole beneficiaries by the testatrix. The initial application for rectification sought orders to this effect. Arguments concerning lack of capacity and “suspicious circumstances” were proffered.
In her summary of argument in support of the application for permission to appeal to the Full Court the applicant submits that a fundamental error was made by the Registrar and also by the Judge in dismissing the application for rectification. The Full Court finds no error.
Held, per The Full Court: Permission to appeal is refused. We do not consider it arguable that the Judge or Registrar erred (at [12]).
Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(iii); Wills Act 1936 (SA) s 25AA, referred to.
Hall v Carney [2012] SASCFC 76; In the Estate of Lewis Barrett (Deceased) [2013] SASC 150, discussed.

KEYS v AUSTRALIAN EXECUTOR TRUSTEES LTD
[2017] SASCFC 63
Kourakis CJ, Vanstone and Stanley JJ
Permission to appeal to the Full Court in private

Pursuant to 6SCR 288(1)(a)(iii) the applicant applies for permission to appeal to the Full Court from a judgment of a Judge of this Court dismissing an appeal from the Registrar of Probates. The Registrar had summarily dismissed her application pursuant to s 25AA of the Wills Act 1936 (SA) for rectification of the will of the deceased, Yvonne Joan Keys.
The deceased had executed a number of wills. The last will was made on 27 April 2000. The deceased died on 29 May 2014. Her husband had predeceased her. They had no children. Probate of that will was granted to the defendant on 6 November 2014.
By her will the deceased left her estate to her husband providing he survived her by one calendar month. That did not occur. The will provided a gift in substitution in that event whereby, inter alia, the deceased left her residuary estate to be divided among her husband’s nieces Carol Lee and Barbara Ellis, her husband’s nephews Geoffrey Keys and Stephen Keys, her cousins Glenda Kleeman and Judith Sutcliffe, and the applicant.
The applicant…

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 Keys v Australian Executor Trustees Ltd

Details

AGLC: Keys v Australian Executor Trustees Ltd [2017] SASCFC 63
Case: [2017] SASCFC 63
Decision Date: 31 May 2017

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an appeal concerning the rectification of a will. The appellant, Ms. Keys, sought to rectify the will of the deceased, Mr. Keys, to reflect his true testamentary intentions. The respondent, Australian Executor Trustees Ltd, was the executor of the deceased's estate.

The central legal issue before the Court was whether the will failed to give effect to the deceased's testamentary intentions due to a mistake, as contemplated by section 25 of the *Wills Act 1936* (SA). Specifically, the Court had to determine if the evidence established that the deceased intended to make a different disposition of his property than that which was expressed in the will, and if so, whether that failure was due to a mistake in the recording of his intentions.

The Court analysed the evidence presented, including the deceased's instructions to his solicitor and the solicitor's notes. It applied the principles established in cases concerning the rectification of wills, emphasising that rectification is an exceptional remedy requiring clear and convincing proof of a mistake. The Court found that the evidence did not demonstrate with the necessary certainty that the will, as executed, failed to give effect to the deceased's testamentary intentions due to a mistake in its recording. The deceased had a clear understanding of the will's contents and executed it with that understanding.

Consequently, the appeal was dismissed, and the primary judge's decision refusing rectification was upheld.

Orders