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

1. 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.

2. 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.  

3. 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.

4. The applicant instituted proceedings for rectification pursuant to s 25AA of the Wills Act. The principal relief sought was that the will be rectified by the deletion of Carol Lee, Barbara Ellis, Geoffrey Keys, Glenda Kleeman and Judith Sutcliffe from the relevant clause of the will. The effect of the order sought would be that the applicant and her brother would take the whole of the residuary estate.

5. The application was supported by an affidavit of the applicant who deposed to a conversation between her mother and the deceased in which the deceased informed the applicant’s mother that she and her husband would leave “everything to each other and then to my brother Stephen and me”.  The applicant said that in reliance upon this she resigned from the Australian Public Service, moved to Sydney, completed a law degree and was admitted to the Bar.  The applicant said that she was very distressed that the other named beneficiaries had taken advantage of the deceased and her husband in circumstances where they were extremely vulnerable for a long period of time.

6. Evidence was adduced by the respondent from its legal counsel of previous wills made by the deceased.  At the hearing before the Registrar the applicant propounded the application on the basis that at the time the will was made the deceased lacked the capacity to do so.  She asserted that suspicious circumstances existed. 

7. The Registrar dismissed the claim for rectification on the basis that such a claim could not be maintained on the basis of suspicious circumstances as to the capacity of the deceased.  He considered there was no evidential foundation for the facts upon which any arguable proposition of law in support of the action could be advanced.  He said:[1]

   The “suspicious circumstances” argument goes only to the validity of the will.  That is not an issue in this action…

   [1]    In the Estate of Yvonne Joan Keys (deceased) (unreported, Supreme Court of South Australia, Registrar of Probates, 12 September 2016) at [52].

8. On appeal a Judge of this Court dismissed the appeal holding that there was no basis for the application for rectification and that the Registrar correctly dismissed the action.  The Judge said:[2]

   The doctrine of suspicious circumstances has developed and extended to all circumstances which excite suspicion or give any well-grounded suspicion that the document did not express the mind of the testator.  Relevantly, the doctrine of suspicious circumstances relates to the validity of a will, not to the issue of rectification.

   [footnotes omitted]

   [2]    In the Estate of Keys (Deceased) [2017] SASC 28 at [28].

9. 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.  That error was the finding that “suspicious circumstances” goes only to the validity of the will and this was not an issue in the action. 

10. The applicant submits that the “suspicious circumstances” argument does not only go to the validity of the will.  She submits that the “suspicious circumstances” argument extends to the issue of capacity of the testatrix, relying on a passage from the reasons of Gray J in Hall v Carney.[3]

    [3] [2012] SASCFC 76 at [31]-[32].

11. She also contends that issues concerning testamentary capacity can properly be ventilated on an application pursuant to s 25AA relying on a passage from the judgment of Gray J in In the Estate of Lewis Barrett (Deceased).[4]

    [4] [2013] SASC 150 at [25].

12. In our view, permission to appeal should not be granted. The issue of construction concerning the operation of s 25AA is without merit. Section 25AA requires the Court to be able to identify the testamentary intentions of the deceased before any order for rectification can be made. Accordingly, the applicant’s argument based on the existence of “suspicious circumstances” is misconceived. As was the case in In the Estate of Barrett,[5] if the testatrix lacked capacity at the time the will was made there is no question of rectification arising.  The will would be invalid.  The respondent would be placed in the position of having to propound an earlier will for admission to probate, all of which are in substantively the same terms as the will which has been admitted to probate.  If the earlier wills are invalid for lack of capacity the deceased’s estate will be administered on the basis of an intestacy.  We do not consider it is arguable that the Judge or the Registrar erred.

    [5] [2013] SASC 150.