Re Finch (deceased)

Case [2018] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Thomas Henry Finch (dec’d) [2018] QSC 16

PARTIES:

In the Will of THOMAS HENRY FINCH (dec’d)

FILE NO/S:

BS No 10273 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

  Supreme Court at Brisbane

DELIVERED ON:

13 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2017

JUDGE:

Lyons SJA

ORDERS:

Orders:

1. Pursuant to Section 33(3) Succession Act 1981, the time for the making of an application for an order to rectify the Will of Thomas Henry Finch, deceased dated 29 October 2012 is extended to allow this Application to be heard.

2. Pursuant to Section 33(1) Succession Act 1981, clause 4(a) of the Will of the said deceased dated 29 October 2012 is rectified by deleting therefrom the words “Any real property owned by me at the date of my death” and inserting in lieu the words “My house”.

3. Pursuant to Section 33(4) Succession Act 1981, a certified copy of this Order be attached to the Letters of Administration with the Will of the said deceased granted to the Administrator on 11 May 2017.

4. The Court declares that , upon the proper construction of the Will of the said deceased, as rectified by this Order, the deceased’s relocatable home at 21 Regency Street, Gold Crest Manors, 17 Pappas Way West, Nerang passes under the gift in clause 4(a) of the Will.

5.   I will hear the parties as to costs.

CATCHWORDS:

SUCCESSION – application for extension of time for rectification  – where the deceased died over three and a half years ago – whether it is just and proper for the court to exercise its statutory discretion to extend time – whether the application is necessary to resolve the distribution of the estate

SUCCESSION – MAKING OF A WILL – STATUTORY POWER OF RECTIFICATION – where the deceased owned a relocatable home – where the deceased owned no real property – where the Will referred to ‘real property’ - whether the Will as executed carries out the intentions of the deceased

SUCCESSION – MAKING OF A WILL – construction of a will– where the deceased owned a relocatable home – where the deceased owned no real property – where the Will referred to ‘real property’ - whether upon the proper construction of the Will the relocatable home passes under the gift in clause 4(a) of the Will


Succession Act 1981 (Qld) s 33, s 33C, s 33I

Bird v Bird [2002] QSC 202

Dore (as executor of the will of W H  B Chenhall dec’d) [2006] QCA 494

Fell v Fell (1922) 31 CLR 268

McBride v Hudson (1962) 107 CLR 604

Palethorpe v The Public Trustee of Queensland & Ors [2011] QSC 335

Perrin and Others v Morgan and Others [1943] AC 399

The Public Trustee of Queensland v Smith [2009] 1 Qd R 26

Terence John McCorley and David John Lewis (as executors of the Will of Vera Rachel Pakleppa (deceased)) v Norman Pakleppa [2005] QSC…

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AGLC
Re Finch (deceased) [2018] QSC 16
Case
[2018] QSC 16
Decision Date

CaseChat Overview and Summary

In the matter of the estate of Thomas Henry Finch, deceased, an application was brought before the court for an extension of time to rectify the Will of the deceased and to construe a particular clause of the Will. The deceased passed away over three and a half years prior to the application being made. The application sought an extension of time for rectification as well as the rectification itself and a declaration as to the construction of a specific clause of the Will. The court was required to determine whether it was just and proper to extend the time for making the application for rectification and whether the application was necessary to resolve the distribution of the estate. Additionally, the court had to decide whether the Will as executed carried out the intentions of the deceased and whether, upon proper construction, the relocatable home of the deceased passed under the gift in clause 4(a) of the Will.

The court found that different rules applied to the admissibility of evidence for the application for rectification and the application for construction. While extrinsic evidence could be relied upon in rectification applications, a more rigid approach applied in relation to construction applications. The court also noted that s 33C of the Succession Act 1981 allowed for the admission of extrinsic evidence to interpret a will if the language was ambiguous or made the will meaningless. However, evidence of the deceased’s intention was not admissible to establish any of the circumstances that made the will ambiguous in the light of surrounding circumstances. The court held that the paragraphs in contention were not admissible as they related to the post-testamentary intention of the deceased and not the instructions given to the deceased’s solicitor. The court further found that the application for rectification was necessary to resolve the distribution of the estate and that it was just and proper to extend the time for making the application.

Pursuant to Section 33(3) of the Succession Act 1981, the time for the making of an application for an order to rectify the Will of Thomas Henry Finch, deceased, dated 29 October 2012, was extended to allow this Application to be heard. Clause 4(a) of the Will of the said deceased was rectified by deleting the words “Any real property owned by me at the date of my death” and inserting in lieu the words “My house.” A certified copy of this Order was to be attached to the Letters of Administration with the Will of the said deceased granted to the Administrator on 11 May 2017. The court declared that, upon the proper construction of the Will of the said deceased, as rectified by this Order, the deceased’s relocatable home at 21 Regency Street, Gold Crest Manors, 17 Pappas Way West, Nerang passed under the gift in clause 4(a) of the Will. The parties were to be heard as to costs.

Orders

Orders of the court

Orders:

1. Pursuant to Section 33(3) Succession Act 1981, the time for the making of an application for an order to rectify the Will of Thomas Henry Finch, deceased dated 29 October 2012 is extended to allow this Application to be heard.

2. Pursuant to Section 33(1) Succession Act 1981, clause 4(a) of the Will of the said deceased dated 29 October 2012 is rectified by deleting therefrom the words “Any real property owned by me at the date of my death” and inserting in lieu the words “My house”.

3. Pursuant to Section 33(4) Succession Act 1981, a certified copy of this Order be attached to the Letters of Administration with the Will of the said deceased granted to the Administrator on 11 May 2017.

4. The Court declares that , upon the proper construction of the Will of the said deceased, as rectified by this Order, the deceased’s relocatable home at 21 Regency Street, Gold Crest Manors, 17 Pappas Way West, Nerang passes under the gift in clause 4(a) of the Will.

5. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In addition to the application for rectification there is also an application for construction of the Will. In this regard it is necessary to consider the provisions of s 33C of the Act as follows;“33C Use of evidence to interpret a will (1) In a proceeding to interpret a will, evidence, including evidence of the deceased’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it— (a) meaningless; or (b) ambiguous on the face of the will; or (c) ambiguous in the light of surrounding circumstances. (2) However, evidence of the deceased’s intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c). (3) This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.” At the hearing an issue arose as to the admissibility of the entire affidavit sworn by Ms Bazely on 10 November 2017,[13] which Counsel for Ms Bazley sought to rely on in support of the application for rectification and the application for construction of Clause 4(a) of the Will. Whilst the entire affidavit is objected to by Counsel for Mr Gregory Finch, who is one of the original executors appointed under the Will, the essence of the objection relates to paragraphs 8 – 16 of that affidavit and specifically relates to the rectification application. In this regard Counsel argues that the law prior to the 2006 amendments in relation to rectification is set out in the decision of Terence John McCorley and David John Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Norman Pakleppa & Ors[14] where Fryberg J referred to the relevant principles and stated that where it is established that a deceased has read the will the presumption that the deceased knew and approved the contents of the will is a very strong one and can only be rebutted by the clearest evidence. Counsel argued that decision stated that the best evidence in support of an application for rectification is confined to the actual instructions given to the deceased’s solicitor and held that “It is not appropriate for a court to entertain general evidence of the deceased’s actual intentions at earlier stages or subsequently to the completion of the will.”[15][13] Court Document 25. [14] [2005] QSC 83.[15] Terence John McCorley and David John Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Norman Pakleppa & Ors [2005] QSC 83 at [6]. Accordingly Counsel argues therefore that the post-testamentary intention of the deceased and the subsequent expression of his desire that Ms Bazley should inherit the relocatable home are not admissible. The paragraphs in contention were objected to on the basis of relevance. In particular it is argued that in relation to the rectification application they are merely the opinion of Ms Bazley as to the intention of the deceased, and have “nothing to do with the instructions provided by the Deceased for his Will”[16] as required by s 33(1)(b) of the Act. [16] Outline of Submissions filed on behalf of Gregory Finch on 16 November 2017 at [10].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the purpose of this ruling it is necessary to remember that different rules apply in relation to the admissibility of evidence with respect to the application for rectification and the application for construction. This is due to historical factors and the fact that a court considering the construction of a will was generally restricted to considering the contents of the will in order to ascertain the intention of the deceased whereas the court sitting in its probate jurisdiction investigates the intention of a deceased particularly in relation to testamentary capacity and may consider evidence of a deceased’s intention as part of that function. The history is conveniently summarised by AA Preece in Lee’s Manual of Queensland Succession Law:[18] “Judicial separation of the construction function from the probate function: The jurisdiction of the court exercising its interpretative function has an entirely different history from the jurisdiction of the court exercising its probate function. Those two jurisdictions are now merged in the Queensland Supreme Court. In early medieval times they were both the preserve of the ecclesiastical courts. Later, however, for many centuries it was the Court of Chancery which performed the interpretative function, and the ecclesiastical courts the probate function. Those centuries of separate jurisdiction and function gave rise to marked differences of judicial attitude. In particular the probate court developed a more rigid approach towards matters of form than the Court of Chancery and a less rigid approach to the admissibility of extrinsic evidence.”[18] Preece, Lee’s Manual of Queensland Succession Law, 7th ed (2013) p 353. Citations removed. Accordingly, whilst extrinsic evidence could be relied upon in rectification applications, a more rigid approach applied in relation to construction applications. A construction court was not concerned with extrinsic evidence of intentions except if it came within one of the exceptions at common law. As Preece noted “Until 2006, no significant attempt had been made to codify the general rules of construction of wills”.[19] In 2006 a new s 33C was inserted in the Succession Act which set out some general rules but as Preece noted the new provisions were not meant to detract from any existing means of interpretation, noting that the section;“….relates only to the admission of extrinsic evidence, including direct evidence of the intention of the deceased, something that has traditionally been very restricted, and makes it clear that this section is not intended to subtract from any existing means of interpretation. Furthermore it adds comparatively little in the way of new means of interpretation. Admission of direct evidence under para (1)(b) is already permitted under the principle of equivocation or latent ambiguity. Admission of direct evidence under para (1)(c) is already permitted under the armchair rule, or a combination of it and the preceding rule. Para (1)(a) appears to break new ground. However, subs (3) ensures that the ‘floodgates’ remain firmly closed to the application of extrinsic evidence to contradict the words of the will.”[20] [19] Preece, Lee’s Manual of Queensland Succession Law, 7th ed (2013) p 355. [20] Preece, Lee’s Manual of Queensland Succession Law, 7th ed (2013) p 355. Citations removed.