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…

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.

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Details

Case: [2003] NSWSC 556
Decision Date: 27 June 2003

CaseChat Overview and Summary

The case of Public Trustee v Permanent Trustee Co Ltd was heard in a relevant Australian court where the Public Trustee sought to challenge the interpretation and potential rectification of a will. The dispute centred on whether the will contained a misdescription of certain property and whether the court should order rectification of the will. Additionally, the Public Trustee sought leave to bring a claim outside the statutory time limit. The opposing party, Permanent Trustee Co Ltd, contested both the misdescription and the application for leave to proceed out of time.

The primary legal issues the court had to address were whether the will indeed contained a misdescription of the property in question and, if so, whether rectification was warranted. Rectification of a will is an equitable remedy that allows for correction of a written instrument to reflect the true intentions of the testator. The court also had to consider whether the Public Trustee's application to bring the claim outside the statutory time limit should be granted. This involved an examination of the principles and discretion involved in extending such time limits under the relevant legislation.

In its reasoning, the court meticulously examined the language of the will and the surrounding circumstances to determine whether there was a clear misdescription of the property. The court found that the will did indeed contain an error that misdescribed the property. However, the court balanced this finding against the principle that rectification should only be granted when there is clear and convincing evidence of the true intentions of the testator. Given the evidence, the court concluded that the will could be rectified to accurately reflect the testator's intentions. Furthermore, the court exercised its discretion to grant leave for the claim to be brought outside the statutory time limit, considering the merits of the case and the public interest in ensuring that the testator's true intentions were honoured.

The final orders of the court mandated the rectification of the will to accurately describe the property as intended by the testator. Additionally, the court granted leave to the Public Trustee to proceed with the claim despite the limitation period, enabling the rectification to take place.

Orders