Re Estate Johnson, Deceased
[2014] NSWSC 512
•02 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Re Estate Johnson, Deceased [2014] NSWSC 512 Hearing dates: 14 April 2014 and thereafter in chambers Decision date: 02 May 2014 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: 1. Declaration (pursuant to s 8 of the Succession Act 2006 NSW) to the effect that the deceased intended a document prepared for his execution to form his will notwithstanding that, at the time mirror wills of himself and his wife were executed, he erroneously executed the document prepared as his wife's will.
2. Order that probate of the will prepared for the deceased's execution, and intended by him to form his will, be granted, in solemn form, to his widow as the executrix named in the document.
3. Ancillary orders, including family provision orders made under chapter 3 of the Succession Act, to give effect to an agreement for settlement of proceedings.
Catchwords: Succession - Wills Probate and Administration - Mirror wills prepared for, and executed by, husband and wife - Signatures of both duly witnessed - By mistake, husband and wife each signed will prepared for the other - Probate sought of husband's will - Effect may be given to testamentary intentions of deceased either by admission of the document prepared for the deceased to probate as an informal will (pursuant to Succession Act 2006 NSW, s 8) or by rectification of the document signed by the deceased (pursuant to s 27 of the Act) - Document prepared for deceased, but not in fact signed by him, admitted to probate as informal will. Legislation Cited: Succession Act 2006 NSW, s 8, s27 Cases Cited: Estate of Daly [2012] NSWSC 555 8 ASTLR 48 [11], [19], [20]
In the Estate of Gillespie (Powell J, 25 October 1991, unrep)
Public Trustee v Smith (Hodgson J, 5 November 1993)
In the Estate of Hennekan (Deceased) (2009) 104 SASR 289Texts Cited: - Category: Principal judgment Parties: Kylie Anne Farr (plaintiff)
Michelle Louise Johnson (second plaintiff)
Scott Matthew Johnson (third plaintiff)
Vicki-Liane Margaret Johnson (defendant)Representation: Counsel:
JT Kearney (defendant)
Solicitors:
Lamrocks (plaintiffs)
McIntosh Mcphillamy & Co (defendant)
File Number(s): 2012/00369255
Judgment
On 23 July 2003 Markham (also known as Mark) Clifford Johnson ("the deceased") and his wife, Vicki-Liane Margaret Johnson (the defendant), now his widow, executed mirror wills, prepared by the same solicitor, on their joint instructions.
The deceased died on 2 September 2012.
After his death it became apparent that, on 23 July 2003, the deceased and the defendant had each executed the form of will prepared for the other.
That is abundantly clear from a comparison of the two instruments executed on 23 July 2003. It is confirmed by affidavits sworn, respectively, by the defendant and by each of the two witnesses who attested both forms of will. One of the attesting witnesses was the solicitor who drafted the wills. The other was his legal secretary.
It is beyond doubt that: (a) the document prepared for the deceased, but executed by the defendant, states the testamentary intentions of the deceased; (b) the deceased intended that document to form his will; (c) the document was not executed by the deceased in accordance with Part 2.1 (especially ss 6-7) of the Succession Act 2006 NSW as a will of the deceased; and (d) the form of will in fact executed by the deceased does not carry out his intentions because a clerical error was made in the process of execution of the mirror wills, and the will in fact executed by him does not give effect to his instructions.
Prima facie, these findings of fact are sufficient to attract one or the other, or both, of s 8 and s 27 of the Succession Act as a means of giving effect to the will prepared for the deceased's execution.
Those sections are in the following terms:
"8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
(5) This section applies to a document whether it came into existence within or outside the State.
27 Court may rectify a will
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator's instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.
(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made."
In Estate of Daly [2012] NSWSC 555; 8 ASTLR 48 White J, at [11], recognised that both sections are arguably potential sources of power to deal with the problem at hand. At [19]-[20], he also recognised that in earlier NSW cases (specifically, In the Estate of Gillespie (Powell J, 25 October 1991, unreported) and Public Trustee v Estate of Smith (Hodgson J, 5 November 1993, unreported) an equivalent of s 27 has been utilised to effect a solution. Nevertheless, at [21]-[27] and for reasons similar to those articulated in In the Estate of Hennekan (Deceased) (2009) 104 SASR 289, his Honour held that the correct course in such a case is to deploy the provisions of s 8, not s 27.
As a matter of form, an order for rectification under s 27 takes the document actually signed by a deceased person and rectifies it by incorporation of the deceased's intended text in lieu of the text of the document signed.
As a matter of form, a decision made under s 8 adopts the text intended to be signed, but erroneously not signed, as the operative instrument and ignores the signature of the person who in fact signed it.
Both forms of determination lead to the same practical outcome. In conformity with the legislative purpose of the underlying sections, their common object is to give substantive legal effect to a testator's intention.
The essence of White J's reasoning, in refusing to find a solution in s 27, is expressed in his judgment, in Estate of Daly, at [25]-[27]:
"25. Section 27 would not confer power to make the orders sought in the amended summons. Before there can be an order for rectification there must first be a will. If no order were made under s 8, the document expressed to be the last will of the deceased [wife], but not signed by her, could not be rectified by omitting the signature of Henri Georges Daly [her husband] and deeming the document to have been signed by the deceased because the document in question would never have been the valid will of the deceased (Succession Act, s 6). If an order is made under s 8, no rectification is necessary.
26. On the authority of In the Estate of Gillespie and Public Trustee v Smith, I could make the orders originally sought in the summons by rectifying the document signed by the deceased, if she intended it to be her will, so the document conformed with her intentions. But I respectfully doubt the basis of those decisions. They proceed on the premise that the piece of paper signed by the deceased was his or her will that could be rectified to conform with his or her intentions. But consistently with the decisions in In the Goods of Hunt (1875) LR 3 P&D 250, In the Estate of Meyer [1908] P 353 and In re Petchell (decd) (1945) 46 W.A.L.R. 62, the deceased never intended the paper she signed to be her will, but intended to put her signature on a different document. To treat her signature as her will and then rectify the contents of the piece of paper she signed is at least artificial, as Gray J said in In the Estate of Hennekam (deceased) [(2009) 104 SASR 289 at [36]-[37]. It is more than artificial. Section 27 is premised on there being a valid will, which there would not be in the absence of an order under s 8.
27. I agree with Gray J in In the Estate of Hennekam (deceased) that the appropriate course is to admit to probate the document the deceased intended to be her will, notwithstanding its lack of due execution, pursuant to s 8 of the Succession Act, and not to make an order under s 27."
This reasoning turns upon a characterisation of facts (by reference to Hunt, Meyer and Petchell) in a manner having the effect of denying that a deceased person in such a case intended the paper signed by him, or her, to be a will at all. Objective, primary facts about what was done, and not done, by the deceased person ground a conclusion that, in my opinion, gives insufficient weight to a need to take into account the process of will-making in which the deceased person did sign a form of will, intending it to be his or her will, albeit that the terms of the document signed were mistakenly believed to be those of another, contemporaneous, proximate document.
Personally, I have no difficulty in deployment of either s 8 or s 27 as a means of reaching the same substantive outcome. For my part, subject always to a due consideration of the particular facts of each case, I accept that a document signed in error by a deceased person in a case such as the present can properly be described as a will of the deceased for the purpose of engagement of the Court's power to order that it be rectified.
I am untroubled by older judgments written in the context of legislation that did not include provisions equivalent to those that can be found in ss 8 and 27. In each of Hunt, Meyer and Petchell the presiding judge expressed regret that the manifest intention of a mistaken will-maker could not be given legal effect by a grant of probate. Each judge viewed facts through the prism of legislation that did not include an equivalent of ss 8 and 27. The objective, primary fact that, in each case, a deceased person had admittedly executed a document in the form of a will, intending to execute a will, but executing the wrong will, was thought to be fatal because the "will" signed was not in the terms intended to operate as the deceased's will. The legislation governing each case was (implicitly, if not expressly) perceived to allow no leeway.
In light of ss 8 and 27 it is not necessary, in the present case, to discount to nothing the objective, primary fact that the deceased did sign a document intending it (albeit mistakenly) to operate as his will. In my opinion, what the deceased signed was "will" enough to constitute a "will" within the meaning of s 27. That proposition is no less true because the document mistakenly signed by the defendant, instead of him, was the "will" that he, in fact, intended to operate and it can be given effect by virtue of s 8.
Whether s 8 or s 27 is deployed in the service of the deceased's testamentary intentions is, in these proceedings, a matter for discretionary judgement, not a matter of jurisdiction. Both sections are engaged by the underlying facts. Both are available to give legal effect to the deceased's intentions.
As a matter of administrative convenience, I propose to make orders pursuant to s 8 designed to admit to probate the text of the document prepared for the deceased's execution, and intended to be (but not in fact) signed by him.
In taking that course, I do not disclaim s 27 as a source of power to achieve the same substantive outcome of giving effect to the deceased's testamentary intentions. On the contrary, I attach importance to recording that, on the facts of a case similar to the present one, s 27 is, in my opinion, available to be deployed if that proves to be the more convenient course.
Having made this point, it is not necessary for me to do more than to say that, having reviewed the evidence, I am satisfied that orders I have been invited to make in disposition of the current proceedings following a settlement of them can, and should, be made.
Those orders provide for a grant of probate to the defendant, in solemn form, of the form of will which the deceased intended to be his will, coupled with family provision orders (under chapter 3 of the Succession Act) in favour of some members of the deceased's family.
The Court proceeds on the basis that all persons who have an interest in the estate, or who were eligible to apply for family provision relief in respect of it, acquiesce in the orders to be made.
Accordingly, I make orders in accordance with short minutes order proffered to the Court, with the consent of all other parties, by counsel for the defendant.
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Decision last updated: 02 May 2014
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