Public Trustee v Permanent Trustee Co Ltd

[2003] NSWSC 556

CITATION:	Public Trustee v Permanent Trustee Company Limited [2003] NSWSC 556
HEARING DATE(S):	22 May 2003
JUDGMENT DATE:	27 June 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Davies AJ
DECISION:	Leave granted to amend cross-claim; Rectification of will ordered; Probate of the said will to be brought into Court for noting the said rectification upon it; Parties' costs on an indemnity basis to be paid out of the estate of the late Meh Tiap Rintoul
CATCHWORDS:	Wills - whether will contained a misdescription of property - whether rectification should be ordered - whether leave to bring claim out of time should be ordered.
LEGISLATION CITED:	Wills, Probate and Administration Act 1898, s 29A
CASES CITED:	Rawack v Spicer [2002] NSWSC 849
PARTIES :	Public Trustee (Plaintiff / Cross Defendant) Permanent Trustee Company Limited (First Defendant) Public Trustee of Queensland as Administrator of the Estate of the Late Margaret Langmaid (Second Defendant / Cross Claimant)
FILE NUMBER(S):	SC 100288/97
COUNSEL:	PH Blackburn-Hart (Cross Defendant) S Bell (Cross Claimant)
SOLICITORS:	Teece, Hodgson & Ward (Cross Defendant) Larcombe Legal (Cross Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

Davies AJ

27 JUNE 2003

100288/97 Public Trustee v Permanent Trustee Company Limited & Public Trustee of Queensland

JUDGMENT

1 HIS HONOUR: These proceedings concern a cross-claim brought with respect to the meaning and effect of the will of the late Mrs Meh Tiap Rintoul. The cross-claimant is the Public Trustee of Queensland, which is the administrator of the estate of the late Mrs Margaret Langmaid, the beneficiary in the subject clause of the will. The cross-defendant is the Public Trustee to whom probate of Mrs Rintoul’s will has been granted.

2 The cross-claim was lodged as far back as 14 August 1998, in proceedings which debated whether Mrs Rintoul’s will of 25 August 1980 or her will of 22 February 1989 should be admitted to probate in this country. The cross-claim could not be prosecuted until the principal proceedings were determined. Even then, problems arose because the residuary beneficiaries under the will were not properly described. A cy-pres scheme will be necessary to identify them. I have excused compliance with the Supreme Court Rules, insofar as notification and joinder of the residuary beneficiaries are concerned.

3 By the time of the hearing of the cross-claim, all major witnesses were deceased. Mrs Rintoul and Mrs Langmaid were deceased. A Mr PL Bringolf, who had assisted Mrs Rintoul with her affairs, was deceased. Dato Ronald Khoo Teng Swee, to whom Mrs Rintoul gave instructions for the will, was deceased. Moreover, the Malaysian solicitor who actually prepared the will on Dato Khoo’s instructions has not been identified and no file or notes relating to the matter were retained. It was the practice of the Malaysian firm, Shearn Delamore & Co, to destroy the records of completed matters after seven years.

4 Fortunately, there are affidavits or statements from the major witnesses and a number of them were cross-examined before Young J in the principal proceedings. It has been agreed that I should take into account comments made by his Honour in his Reasons for Judgment of 29 July 1999, insofar as they flesh out the affidavit evidence which is before the Court.

5 In the earlier will dated 25 August 1980, Mrs Rintoul had left to Mrs Langmaid, who was an adopted daughter, “My property known as 366 Ocean Beach Road, Umina in the State of New South Wales“. This property was Mrs Rintoul’s home and it had been the home of herself and her husband. The will of 25 August 1980 also left to Mrs Langmaid a one-half share in the residuary estate.

6 The will of 22 February 1989 gave to Mrs Langmaid no interest in the residuary estate but it contained this devise:

“I Give to my daughter Margaret Langmaid my house known as No 24 Harriet Street, West End, QLD Brisbane absolutely.”

7 The problem which has arisen is that the property at 24 Harriet Street, West End was not Mrs Rintoul’s property. It was a property which Mrs Langmaid had purchased in 1988 and it was Mrs Langmaid’s address at the time of the will.

8 Section 29A of the Wills, Probate and Administration Act 1898 provides, inter alia:-

“(1) If the Court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, it may order that the will be rectified so as to carry out the testator's intention.
(2) An application for an order under this section shall not be made after the expiration of the period of 18 months after the death of the testator, except as provided by subsection (3).
(3) The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period.”

9 The cross-claim as originally worded sought a declaration that, on the true construction of the will and in the light of its surrounding circumstances, the will devised to Mrs Langmaid, Mrs Rintoul’s home at 366 Ocean Beach Road, Umina.

10 For my own part, the ambiguity which is raised by the words of clause 3 permits the ordinary principles relating to construction to be applied in the identification of “my house”. See, e.g., Theobald on Wills, 15th ed, p 216.

11 However, for reasons which I do not fully understand, counsel for the cross-claimant sought leave to amend the cross-claim so as to delete the claim for a declaration to the true construction of the will and to substitute therefore a claim for rectification so as to substitute, for the address “24 Harriet Street, West End”, the address “366 Ocean Beach Road, Umina”.

12 It has been submitted by counsel for the cross-defendant that the ambit of s 29A is limited to those circumstances where a mistake in a will cannot be corrected under ordinary principles. In my view, s 29A is not so limited. I prefer the view which Campbell J expressed in Rawack v Spicer [2002] NSWSC 849, where his Honour said at para 25:

“It is possible for rectification of an unclear clause in a will to be granted ex abundanti cautela , where rectification makes clear the testator's intention, even if the clause which the testator actually executed, on its proper construction, means the same as the clause as rectified: Application of Spooner: Estate JJ Davis (Hodgson J, 28 July 1995, unreported); Estate of Cross (McLelland CJ in Eq, 9 May 1996, unreported).”

13 Relevant principles for the application of s 29A were enunciated by Campbell J in Rawack v Spicer, as follows:

“[26] Before the power of rectification can be exercised, the court must be satisfied both that the will was so expressed that it fails to carry out the testator’s intentions, and also what it was that the testator intended concerning the part of the will which is to be rectified. Even if the court is satisfied that a testator would not have wanted his property to go in the way that, in the events which have happened, a particular clause results in the property going, the court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event: Brian William Mortensen v State of New South Wales (New South Wales Court of Appeal, 12 December 1991, unreported); Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported). "It is not enough for the Court to have the opinion that, if the deceased had considered the possibility, she probably would have provided in favour of [a named beneficiary]. What is required is an actual intention, which has miscarried " : Trimmer v Lax (Hodgson J, 9 May 1997, unreported at 12). "... What one must look for is an error which has occurred in the transcription of the will or where one can see what the intention of the testator was but the words used have not fulfilled the intention. What one cannot do is to look at unforeseen circumstances and speculate what the testator might have done in those circumstances and then supply words to meet those circumstances." Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported at [17]).

…

[31] Each of the items listed in section 140(2) is relevant to a claim for rectification of a will. The nature of the cause of action or defence, namely a claim to rectify the will of the deceased person, involves a situation closely analogous to that involving a claim against a deceased estate. Hence the factors which will lead a Court to take great care in evaluating the evidence concerning a claim against a deceased estate (referred to in Nagle v Lavender [2002] NSWSC 611 at [25] -[27]) likewise apply to a claim for rectification. That granting rectification involves the Court in altering a document which will irrevocably change the destination of a deceased person's property after death, when the deceased has gone to the trouble of executing in a particularly formal fashion an instrument, often after receiving legal advice that the testator has paid for, is a serious subject matter. To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter - not as far advanced, in the spectrum of gravity of allegations, as an allegation of fraud, but still fairly grave. These considerations underlie some of the judicial statements about the standard of proof required before rectification of a will is granted. For example:
"None of these cases give any support to the proposition that one can rectify a will other than in cases where there is clear proof of the testator’s actual intention..." ( Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J 20 March 2001 unreported at [34]).
There is a "... need for clear and convincing proof in cases of rectification. As I understand that requirement, it means that the Court should not act unless it is satisfied that the party seeking rectification has used reasonable diligence in presenting to the Court all evidence going to the question of intention, and that the Court must take into account that what is sought is to alter a document which the deceased has taken the trouble to write out and sign and have witnessed. It is also necessary to show an actual intention, not merely what the deceased would have intended had she thought about the matter. But, as I understand it, the requirement for clear and convincing proof does not mean that the standard of proof is other than the balance of probabilities, having regard to the considerations I have mentioned.”: per Hodgson J., Trimmer v Lax (9 May 1997 unreported at 12 - 13).”

14 It is not seriously in dispute that the will contained a mistake. Mrs Rintoul had no connection with the house at 24 Harriet Street, West End which was owned by Mrs Langmaid. It would have been a cruel joke on the part of Mrs Rintoul intentionally to leave to her adopted daughter a property that was hers. No witness has suggested that the relationship between Mrs Rintoul and Mrs Langmaid was such or that Mrs Rintoul had a personality that was such as to render an action of that type at all likely.

15 It is much more likely that a mistake was made, that Mrs Rintoul intended to leave her home to Mrs Langmaid, which she described as “my house”, and that the solicitor who drew up the will understood that the address of the house was 24 Harriet Street, West End, whereas it was the address of the beneficiary.

16 There was ample opportunity for a mistake to occur. Mrs Rintoul, who was 79 years of age and who relied upon Mr Bringolf to assist her with her affairs, although he was even older, chose to have the will made at a time when she was in Malaysia. Mrs Rintoul had the will prepared by Shearn Delamore & Co, a firm of solicitors of which her husband had been a partner before he retired in 1967. Mrs Rintoul was illiterate in both Malay and English. She spoke Malay well but she did not have the same facility with the English language. Shearn Delamore & Co did not have access to the earlier will of 25 August 1980, which had been prepared by Mrs Rintoul’s Sydney solicitors, Conway Maccallum.

17 Mrs Langmaid said in her statement that Malay was the language spoken at home when she lived there with her father and Mrs Rintoul. The will was in English. Mrs Rintoul would not have been able to read it. We do not know whether it was read to her in English or in Malay but, either way, there was room for error, the draftsman taking the address, 24 Harriet Street, West End, to be that of the house, whilst Mrs Rintoul understood it to be the address of the beneficiary.

18 There was evidence from a number of solicitors of Shearn Delamore & Co. They gave evidence of a system of preparation of wills including interpretation which they considered would prevent error. However, error occurs all the time, even in the best run businesses and professions. A great deal of litigation arises because of error. I would not accept that the solicitors in Shearn Delamore & Co. were so proficient as to exclude error. In particular, there was potential for error because Mrs Rintoul’s instructions were given to Dato Khoo and his instructions or notes, which we do not have, went to another solicitor who prepared the will according to his understanding of the matter. When prepared, the will was read to Mrs Rintoul, either in Malay or English, but she would not have been able to read the document.

19 The following paragraphs of Dato Khoo’s affidavit are relevant:

“4. In early 1989 the deceased visited me and in the course of our discussion said words to the effect:

“I am having difficulties with my daughter, Margaret. I would like to make a new Will”.


The deceased then proceeded to discuss with me her thoughts and intentions in words the exact nature of which I do not recollect.

…

7. I am of the view that the Will of the deceased dated 22 February 1989 clearly reflects the intentions which she had explained to me on the day I took her to meet the other solicitors in my office.”

I am not able to give weight to para 7 of that affidavit for Dato Khoo was not able to recall the details of his instructions.

20 As Dato Khoo explained, the relationship between Mrs Rintoul and Mrs Langmaid was, at the time, difficult. This point was reflected in the 1989 will for the will excluded Mrs Langmaid from Mrs Rintoul’s residuary estate.

21 There is adequate evidence before the Court that Mrs Langmaid was a person deserving of Mrs Rintoul’s benefaction. At the time of her statement in 1993, she was unemployed and had been unemployed for the previous seven years. Her entire capital amounted to only $30,000. She was the one child of the family. Both parents had expressed the view that the home at Umina would go to her.

22 Mr Bringolf gave evidence that he had had discussions with Mrs Rintoul about the Umina house. He had suggested that she sell the house and move to Sydney. Mr Bringolf said that each time he made the suggestion she would respond “I can’t sell the house. I have left the house to Margaret”. Mr Bringolf suggested to Mrs Rintoul that she could buy another house and leave that to Mrs Langmaid. Mrs Rintoul disagreed with that view and never sold the Umina house. In a letter dated 23 May 1989 from Conway Maccallum to Mrs Langmaid, Mrs Langmaid was described as “Mrs Rintoul’s next of kin”.

23 This evidence strongly supports the conclusion that the will contained a misdescription of Mrs Rintoul’s home. The opportunity for misdescription was present because of Mrs Rintoul’s illiteracy, her difficulties with the English language and the fact that the will was drawn up, not by the solicitors in Sydney who were handling her affairs at that time and who had drawn the 1980 will, but by Shearn Delamore & Co, a firm which had no access to the earlier will.

24 Counsel for the cross-defendant submitted that the Court should not lightly rectify a misdescription unless the Court had a firm satisfaction not only that there was a misdescription but as to what Mrs Rintoul had intended. Counsel referred to the fact that although clause two of the will devised “my house known as No. 47 Jalan Ataman, Kepong Garden, Kuala Lumpur” to a Thai Temple, Mrs Rintoul had other real property in Malaysia, the details of which are not before the Court. That property may not have been a house. Counsel submitted that Mrs Rintoul may have intended that that property to be the subject of the gift to Mrs Langmaid. In my view, it is highly improbable that Mrs Rintoul intended to leave to Mrs Langmaid real property in Malaysia, when Mrs Langmaid was living in Australia. Moreover, it is highly improbable that Malaysian solicitors would have failed properly to identify a house in Malaysia. I am satisfied that clause 3 of the 1989 will was intended to replicate clause 5 of the 1980 will and that the description given of the property was intended by Mrs Rintoul to be the address of the beneficiary.

25 I am of the view that leave to amend the cross-claim should be granted. The substance of the claim was made in the cross-claim filed prior to the grant of probate. A sufficient cause for the delay in formally seeking rectification is that counsel for the cross-claimant only recently formed the view that abundance of caution justified seeking rectification.

26 In the circumstances the Court makes the following orders:-

1. Grants leave to the cross-claimant to amend the cross-claim.
2. Orders that the will of the late Meh Tiap Rintoul dated 22 February 1989 be rectified by replacing the words “No 24 Harriet Street, West End, QLD Brisbane” in paragraph 3 with the words “366 Ocean Beach Road, Umina, NSW 2257”.
3. Orders that the Probate of the said will of the late Meh Tiap Rintoul be brought into Court as soon as practicable for noting the said rectification upon the Probate.
4. Orders that the parties’ costs on an indemnity basis be paid out of the estate of the late Meh Tiap Rintoul.

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Last Modified: 06/30/2003