Re Hennekam - [2009] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
In the Estate of HENDRIKUS IGNATIUS HENNEKAM (DECEASED)
[2009] SASC 188
Judgment of The Honourable Justice Gray
2 July 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - DOCUMENT NOT EXECUTED BY MAKER
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL
Referral from Registrar pursuant to Rule 77 of the Probate Rules 2004 - deceased and his wife instructed officer of Public Trustee to prepare "mirror" wills - wills signed in presence of two witnesses - deceased inadvertently signed will prepared for his wife and she signed will prepared for the deceased - whether appropriate to utilise section 12(2) of the Wills Act to admit will to probate - whether rectification power in section 25AA of the Wills Act preferred.
Held: will of deceased as signed by his wife on 14 July 2004 to be admitted to probate - testamentary intention of deceased clear - appropriate to utilise section 12(2) of the Wills Act in the circumstances - section 25AA of the Wills Act also available.
Probate Rules 2004 (SA) s 64 and s 77; Wills Act 1936 (SA) s 12(2) and s 25AA; Wills, Probate and Administration Act 1898 (NSW) s 18A and s 29A; Succession Act 1981 (Qld) s 9 and s 10, referred to.
In the Estate of Blakely (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Ryan (1986) 40 SASR 305; In the Estate of Sutton (1989) 51 SASR 150; In the Estate of Gillespie (Unreported, Supreme Court of New South Wales, Powell J, 25 Oct 1991); In the Will of Goward [1997] 2 Qd R 54; In Re Thomson (Unreported, Rockhampton, Demack J, 2 February 1995); K-Generation v Liquor Licensing Commission (2009) 252 ALR 471; In the Estate of Springfield (1991) 23 NSWLR 535, considered.

In the Estate of HENDRIKUS IGNATIUS HENNEKAM (DECEASED)
[2009] SASC 188
Testamentary Causes Jurisdiction
GRAY J

This is a referral by the Registrar of Probates pursuant to Rule 77 of the Probate Rules 2004 (SA).
Introduction
Hendrikus Ignatius Hennekam died on 24 August 2008. In 2004, the deceased and his wife gave instructions to an Officer of Public Trustee for new wills to be prepared. The wills were prepared in accordance with those instructions. The wills were “mirror” wills, each appointing Public Trustee as executor and providing for the whole estate to pass to the spouse of the testator, with a substitution for children in the event that the spouse did not survive. In the event the spouse did not survive for twenty-eight days, each document provided that the whole of each estate should be divided in equal shares between the named beneficiaries, the seven children of the deceased and his wife.
On 14 July 2004 the deceased and his wife executed their wills in compliance with the relevant formalities. Both wills were signed in the presence of two witnesses who also signed. However, inadvertently the deceased signed the will prepared for his wife and she signed the will prepared for the deceased.
Having regard to the foregoing, the testamentary intention of the deceased is apparent. The execution of a will in compliance with the formalities demonstrates that the deceased did not intend to die intestate. The deceased intended the document inadvertently signed by his wife to be his will, notwithstanding the fact he did not sign it but instead signed the will prepared for his wife.
The deceased’s wife died on 8 September 2007. No grant of probate was necessary in her estate. The error with respect to the execution of the wills only became apparent after the death of the deceased.
No other will or testamentary document of the deceased has been located other than a previous will made by the deceased dated 11 September 1986, appointing Public Trustee as sole executor and trustee. The 2004 will contained a revocation clause, revoking all former wills and codicils of the deceased. The beneficiaries under both the deceased’s will and his wife’s will are identical and no one is adversely affected by the application for probate. The persons who would benefit under the 1986 will are also the children, as the 1986 will provided the same substitute beneficiaries as the 2004 will, excepting if one of the deceased’s sons did not survive the deceased.
The seven children of the deceased are the only children of the deceased and all of them survived the deceased. They are all adults and sui juris.
The Referral
The application for an order admitting the will, in the deceased’s name but executed by his wife, to proof, was made pursuant to section 12(2) of the Wills Act 1936 (SA) (as amended) and Rule 64 of the Probate Rules.
It is convenient at this point to set out the relevant statutory sections in full. Section 12 of the Wills Act provides:
(1)A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.
(2) Subject to this Act, if the Court is satisfied that—
(a)a document expresses testamentary intentions of a deceased person; and
(b)the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
(3)If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
(4)This section applies to a document whether it came into existence within or outside the State.
(5)Rules of Court may authorise the Registrar to exercise the powers of the Court under this section.
Section 25AA(1) of the Wills Act outlines the power of the Court to rectify a will if it does not accurately reflect the testamentary intentions of a deceased person:
(1)If the Court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the will be rectified so as to give proper expression to those intentions.
(2)An application for an order under this section must not, except with the consent of the Court, be made more than six months after the grant of probate or letters of administration.
(3)Nothing in this section affects the operation of section 29 of the Trustee Act 1936.
The referral of this application to the Court is in relation to the correct manner in which to resolve the difficulty of “mirror” wills in light of the conferral of powers in sections 12(2) and 25AA(1) of the Wills Act. The Registrar has drawn attention to the procedure applied in South Australia in such circumstances since the 1983 decision of In the Estate of Blakely.[1] The Registrar has also drawn attention to doubts expressed about the correctness of Blakely by interstate authority.
[1] In the Estate of Blakely (1983) 32 SASR 473.
Blakely involved a will, which was in the name of the husband, but signed by the wife. White J admitted the will signed by the wife to probate as the will of the husband pursuant to section 12(2) of the Wills Act.[2] White J considered whether the then provisions of section 12(2) were wide enough to warrant an order that the wife, as intended executrix of the husband’s will, be granted probate notwithstanding the absence of his signature on his will, and if so, whether such order should be made.
[2] In the Estate of Blakely (1983) 32 SASR 473.
The terms of section 12(2) at that time provided:
A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.
White J construed section 12(2) in the context of further provisions of the Wills Act:
It will be noted that s. 8(1) requires a will to be “in writing and executed” in the manner following, but the requirements as to execution and witnesses are both “Subject to this Act”. A will could hardly be admitted to probate if it had not been reduced to writing of some kind, so the phrase “Subject to this Act”, must refer to the will being “executed in the manner following”. There are two aspects to execution – execution by the testator and execution by the witnesses. If the court is otherwise satisfied by strong evidence “that there can be no reasonable doubt that the deceased intended the document to constitute his will”, there does not seem to be any reason in logic why the husband’s signature on the wife’s will should not be notionally transposed to his will and deemed to be his signature thereon. After all, that is where he intended to place his signature; and he went to the trouble and expense of ensuring that he did just that. It was intended to be an act of publication in the presence of his wife and solicitor and the solicitor’s secretary.
White J canvassed several examples whereby despite a lack of signature on a will, a court might nonetheless be satisfied that “there can be no reasonable doubt that the deceased intended the document to constitute his will”, before concluding that in the circumstances he was so satisfied:[3]
Even if some signature by the deceased is thought to be necessary, it was sufficient, in my opinion, if, as here, he placed his signature in some place from which his intention to constitute a particular piece of paper his will is beyond doubt. I hold that his signature on the wife’s document (which he thought to be his will) was such a signature. He wrote his signature; he intended it to be appended to the engrossed, approved and physically present will, the document now submitted for a grant of probate. I am satisfied that “there can be no reasonable doubt that the deceased intended the document (now produced for probate) to constitute his will”.
I order that the husband’s will, the document in the name of the husband, be admitted for probate as if his signature and the signatures of the two witnesses, all appearing on the wife’s will, all appeared on the husband’s will, and as if the wife’s signature were expunged therefrom.
[3] In the Estate of Blakely (1983) 32 SASR 473 at 480.
Several authorities since Blakely have confirmed that section 12(2) of the Wills Act is available notwithstanding the absence of any signature on the document.[4]
[4] See eg In the Estate of Williams (1984) 36 SASR 423; In the Estate of Ryan (1986) 40 SASR 305; In the Estate of Sutton (1989) 51 SASR 150.
In particular, the Full Court In the Estate of Williams[5] approved Blakely. King CJ observed:
Conflicting views have been expressed, in the cases cited by Legoe J., by Judges of this Court as to whether s. 12(2) is available to save the validity as a will of a document which does not bear the signature of the deceased. The issue is, however, res integra for this Full Court. The question for decision has been fully discussed by Legoe J. and Cox J. in their reasons for judgment and for that reason and for the further reason that I fully agree with the reasoning of White J. in In the Estate of Blakely deceased, I can state my views quite briefly. Indeed I wish only to add a strictly textual point.
I am unable to agree with the contention that the words “has not been executed with the formalities required by this Act” imply that there must be a signature to the document. I think that the relevant meaning of the word “execute” is the third meaning given in the English Oxford Dictionary (1961), namely “to go through the formalities necessary to the validity of (a legal act, e.g. a bequest, agreement, mortgage etc.). Hence to complete and give validity to (the instrument by which such act is effected) by performing what the law requires to be done, as by signing sealing etc.” To execute a document is to do what the law requires to be done to give validity to the document. Section 8 sets out the legal requirements or formalities for execution of a will. If those formalities are not complied with, there is no execution. Execution and signature are, of course, not synonymous. When this is borne in mind, the answer to the present problem becomes clearer. Execution is the validation of a document by going through the formalities required by law for that purpose. The notion of execution of a will other than in accordance with the formalities prescribed by s. 8, is therefore a self-contradictory notion. It follows that the saving effect of s. 12 is only required and is only operative when the will has not been executed. Signature is simply one of the formalities required by the Act for valid execution. There is no reason, as a matter of construction or logic, to differentiate between signature and any other formalities for execution required by s. 8. All that is required for the operation of s. 12(2) is that there should be “a document purporting to embody the testamentary intentions of a deceased person” and that the Court “is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will”.
Legoe J commented:[6]
A variant to the requirement of a signature arose recently in a s. 12(2) case, when a husband and wife signed their “mirror” wills, but by mistake or inadvertence signed the incorrect document. In In the Estate of Blakely, deceased White J. held on the notice of motion that there was no reasonable doubt that the deceased husband intended the document signed by his wife to constitute his will. In applying s. 12(2) his Honour found the circumstances of intention to constitute the document as his will were “so convincing a grant of probate of the husband’s will would not be likely to open the floodgates to all types of unmeritorious applications”.
And Cox J said:[7]
It is obvious that the new s. 12 was intended to free the Act of some of the rigidity that was introduced by s. 8 and its predecessor, and I do not see any reason for supposing that Parliament intended to give relief where, for instance, there was an informality in the attestation clause but to deny it where (as in In the Estate of Blakely, deceased) the would-be testator inadvertently omitted to sign the document. In my opinion, the availability of s. 12(2) is not confined to the case of a document that bears the signature of the person who intended it to be his will.
[5]    In the Estate of Williams (1984) 36 SASR 423 at 424-425.
[6]    In the Estate of Williams (1984) 36 SASR 423 at 430-431.
[7]    In the Estate of Williams (1984) 36 SASR 423 at 437.
It is to be noted that Blakely was decided before the enactment of section 25AA of the Wills Act and the consequent availability of the rectification power.
In the New South Wales decision of In the Estate of Gillespie,[8] Powell J expressed doubt as to the correctness of the decision in Blakely. In that case Powell J applied the New South Wales rectification power (section 29A of the Wills, Probate and Administration Act 1898 (NSW)) to rectify a will signed by the husband.
[8] In the Estate of Gillespie (Unreported, Supreme Court of New South Wales, Powell J, 25 Oct 1991).
In Gillespie, mirror wills were prepared for husband and wife, but through inadvertence each signed the document intended for signature by the other. On the husband's death, probate was sought of the document prepared for execution by the deceased but which had in fact been executed by his wife.
Section 18A of Wills, Probate and Administration Act 1898 (NSW) is in the same terms as its South Australian equivalent, section 12(2); any deficiency in the formal requirements of a valid will can be overcome if the court is satisfied as to the deceased's intention that the document in question should constitute his or her will. Nevertheless, Powell J was not prepared to proceed under that section in granting probate of the document in question:
I have some doubt as to whether the provisions of s12(2) of the South Australian Act, or of s18A of the Act, which are intended to preserve, as valid, a testamentary act which would otherwise fail for want of formality, permit one to go as far as did White J in In the Estate of Blakely, a doubt which appears as if it may have been shared by the Law Reform Commission in its Report on "Wills Execution and Revocation" (LRC 47 1986), for, in footnote 8 on p 76, the Commissioners, after referring to such cases as Re Meyer, Re Petchell, Guardian, Trust and Executors Company of New Zealand Limited v Inwood and Re Brander observed “If there were a general power of rectification (see Chapter 7) this type of mistake could also be overcome by resort to it.”
Powell J instead relied on section 29A of the Wills, Probate and Administration Act which empowered the court to rectify a document “so as to carry out the testator's intentions”:
The proposed “general power of rectification”, which has no counterpart in the South Australian Act, has since been conferred on the Court by the provisions of s29A of the Act, which are as follows: “29A. (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 intentions. (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 subs(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. (4) Nothing in this section renders the executor of the estate of a testator liable for having distributed the assets, or any part of the assets, of that estate if the executor has complied with s92. (5) Nothing in subs(4) prevents a person who becomes a beneficiary in respect of assets of the estate of a testator by virtue of an order under this section from recovering the assets if the assets have, or any part of the assets has, been distributed. (6) In this section – ‘executor’ includes a person to whom letters of administration are granted with the will annexed.”
So far as I am aware, there has been only one prior attempt (Estate of Nina Spinks - Application of Mortensen and Eassie Needham AJ 22nd August 1990 (unreported)) to invoke the provisions of s29A of the Act, the attempt, on that occasion, being unsuccessful. This notwithstanding, it seems to me that, it being transparently clear that the form of Will which the Deceased in fact executed did not correctly record his testamentary intentions, this is a case in which it is proper to invoke the powers contained in s29A of the Act.
The provisions of section 29A enabled Powell J to order that the document in fact signed by the deceased be rectified so that it conformed in all respects with the document originally intended to be signed by the deceased; all the substantive parts of the document signed by the deceased were deleted and the provisions of the other document were inserted.

Since the decision of Gillespie, section 25AA of the Wills Act (SA) was enacted.
The Queensland Court in In the Will of Goward[9] also considered the factual circumstance where a husband and wife each inadvertently executed the will of the other. In that case, Williams J distinguished Blakely and held that neither of the Queensland informal wills or rectification provisions were wide enough to admit either will to probate.
[9] In the Will of Goward [1997] 2 Qd R 54.
In Goward, the applicant relied on the provisions of section 9 of the Succession Act 1981 (Qld), which provided:
A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in the testator's presence and by the testator's direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that -
(a) the court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the court is satisfied that the instrument expresses the testamentary intention of the testator; and
(b) the court may admit extrinsic evidence including evidence of statements made at anytime by the testator as to the manner of execution of a testamentary instrument.
Section 10 focused on the signature to a will and relevantly provided:
(1)a will, so far only as regards the position of the signature of the testator on the will, is not invalid if the signature is so placed at, after, following, under, beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as the testator's will.
(2)without limiting the generality of subsection (1), the validity of a will is not affected by reason of the fact -
(a) that the signature of the testator does not follow, or is not immediately after, the foot or end of the will; or ...
(3)the signature of the testator on a will does not operate to give effect to a disposition or direction that is underneath or follows that signature, or that is inserted in the will after that signature is made.
(4)in this section, reference to the signature of the testator shall, in relation to a will signed by a person by the direction of a testator, be read as references to the signature of that person.
In finding that the terms of section 9 were not wide enough to admit the will to probate, Williams J referred to the decision of Demack J in In Re Thomson,[10] which also involved the absence of a signature on a will. The facts of that case were remarkably similar. Husband and wife each gave instructions for the preparation of a will. When they later attended at the office of the Public Trustee to execute their respective wills, through inadvertence, they each signed the other's will. Demack J was prepared to assume that the document prepared for execution by the husband expressed his testamentary intention. It was, however, signed by his wife. In the course of his reasons, Demack J stated:
It would seem to me ... that this document clearly expresses the testamentary intention of the deceased. It seems also likely that as the same two witnesses to the signatures appear on each document, that the parties were all present together when the documents were signed so that what was done was done in the presence of two witnesses who were present at the same time and those two witnesses are described as public servants. What is lacking is any signature of Mr Thomson on the document which expresses his testamentary intention. On that document his wife's signature appears and his signature appears on her document. The court is given wide powers under s9 to admit to Probate a testamentary instrument executed in substantial compliance with the formalities prescribed where the document expresses the testamentary intention of the testator. It seems to me that s9 and s10 together make it clear that there must be some signature or other mark of the testator on the actual document to indicate acceptance of its contents.
S10 sets out a range of circumstances about where the signature may appear and these permit the Will to be valid. The whole tenor of s10 is that there must be some kind of acceptance that is recorded on the document and that acceptance should be in the form of a signature of some kind. Consequently, it seems to me that the document that was signed on 8 December cannot in any way be admitted to Probate because the non- compliance with the provisions of s[9] is so fundamental that the Will must be treated as a nullity.
Williams J approved of this approach and also considered that where there is no signature on a will, there is no valid testamentary instrument:[11]
With respect, I agree with that approach. Particularly when read with s10, it is a fundamental requirement of s9 that there be some signature associated with the document evidencing the deceased's adoption of it. Once that position is reached the court can have recourse to the substantial compliance provisions of s9, and the facilitative provisions of s10, in order to determine to what extent there is a valid testamentary instrument. But where there is no signature there can be no valid testamentary instrument.
In coming to that conclusion I am comforted by the fact that the well respected academic author on succession law Mr W A Lee (Manual of Queensland Succession Law, 4th Edition, para315) is of the same view. Though he generally appears to advocate a more liberal application of s9 than has hitherto been adopted by Queensland Judges, it does not extend to this situation: "It sometimes happens that a person by mistake executes someone else's will. Usually the mistake occurs when a husband and wife execute their wills at the same time but they get mixed-up in the signing process. The better view is that such execution is defective, since the testator could hardly be said to have known and approved of the contents of the will which was actually executed, and further could hardly have intended to execute that instrument at all."
The decision in Goward has limited implications in relation to the operation of the South Australian provisions. The terms of section 12(2) of the Wills Act (SA) are much broader than those of section 9 of the Queensland statute.
[10] In Re Thomson (Unreported, Rockhampton, Demack J, 2 February 1995).
[11] In the Will of Goward [1997] 2 Qd R 54 at 58-59.
As outlined, section 12(2) of the Wills Act (SA) provides that any deficiency in the formal requirements of a valid will can be overcome if the court is satisfied that the document expresses the testamentary intentions of a deceased person and the deceased intended the document to constitute his or her will. In comparison to the position in Queensland, in South Australia, there is no necessity for “substantial compliance” with the formalities.
Having regard to the authorities, both section 12(2) and section 25AA of the Wills Act are available in South Australia in the circumstances of this case. As noted, the decision in Gillespie is distinguishable and the conclusions of the Queensland Court in In the Will of Goward have limited application.
In light of the availability of both sections 12(2) and 25AA, it is appropriate to have regard to extrinsic materials as an aid to the interpretation of the statutory provisions to assist in the ascertainment as to which section is utilised most suitably in the circumstances. [12]
[12] K-Generation v Liquor Licensing Commission (2009) 252 ALR 471 at [51] - [53].
The second reading speech in relation to section 12(2) highlights that the section is primarily concerned with “saving” documents which have not complied with the necessary formalities but which nevertheless were intended to be a will:
The provisions of this Bill follow from the recommendations of the twenty-eighth report of the Law Reform Committee of South Australia, relating to the reform of the law on intestacy and wills. These amendments provide that, in cases where a document clearly is intended to be a will but fails to comply with some legal technicality, it may be treated as a will and admitted to probate.
Section 12(2) is a general dispensing power to admit to probate a document that, although not in compliance with the statutory formalities, was nevertheless intended to constitute a will.
The recommendations of the South Australian Law Reform Committee which informed the insertion of section 12(2) were as follows:[13]
At present the requirement of the Wills Act (with certain minor exceptions) is that the signature of the testator must be placed at the foot or end of the will. There are a number of cases in which a testator does not do so, either because he misunderstands the instructions on a printed form or because he thinks that writing his name at the beginning is a signature, as indeed it quite often is, for any one or another of a number of reasons based on ignorance or inadvertence. Nevertheless, he has intended to die testate and not intestate and it is not to the law’s credit that he ends up as an intestate person where everything points to the fact that he intended to die testate.
…
It would seem to us that in all cases where there is a technical failure to comply with the Wills Act, there should be a power given to the Court or Judge to declare that the will in question is a good and valid testamentary document if he is satisfied that the document does in fact represent the last will and testament of the testator….
[13] South Australian Law Reform Committee, Relating to the Reform of the Law on Intestacy and Wills, Report Number 28 (1974) at 10-11.
The remedial nature of section 12(2) was emphasised by King CJ in In the Estate of Williams. In relation to the interpretation of section 12(2) King CJ commented:[14]
[14] In the Estate of Williams, deceased (1984) 36 SASR 423 at 425.
There is no reason, as a matter of construction or logic, to differentiate between signature and any of the other formalities for execution required by s. 8.
…
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s. 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
Having regard to the foregoing, it is clear that the Parliamentary intention informing the insertion of section 12(2) was to alleviate injustices occasioned by a rigid application of the law in relation to the observance of the relevant formalities in the execution of wills. As the notable academic Professor John Langbein has observed:[15]
Discretion is the coin of section 12(2): The court is given discretion to vary the ordinary course of probate law for the purpose of preventing injustice.
…
Graham, the first section 12(2) case, sounded the theme that has echoed through the later case law. The purpose of section 12(2), Jacobs, J. said, “is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will.”
(footnotes omitted)
[15] John Langbein, ‘Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law’ (1987) 87 Columbia Law Review 1 at 11 and 34.
The potential for inequitable results was highlighted by the 1986 Report of the New South Wales Law Reform Commission,[16] parts of which Powell J extracted in his judgment in In the Estate of Springfield:[17]
[16] New South Wales Law Reform Commission, Community Reform Program: Wills – Execution and Revocation, Report Number 47 (1986).
[17] In the Estate of Springfield (1991) 23 NSWLR 535 at 541-542 (Powell J).
Because most of the common law world adopted the English Wills Act 1837 there are reported cases in many jurisdictions attesting to the Act’s capacity to produce inequitable results in particular cases. Examples of wills declared invalid in such circumstances include:
*wills where the testator inadvertently forgot to sign;
* wills where a witness inadvertently forgot to sign;
*wills where a husband and wife inadvertently signed the will prepared for the other;
*wills where the testator was too sick to turn his head and watch the witness sign, although they were in the same room;
*wills where the attesting witnesses were not present at the same time when the testator signed or acknowledged the will.
Section 12(2) is designed to combat these inequities.
Section 25AA was one of a number of amendments to the Wills Act introduced in 1994. These amendments followed the earlier referred to report of the New South Wales Law Reform Commission,[18] and legislative trends in other states in relation to the codification of powers of rectification.
[18] New South Wales Law Reform Commission, Community Reform Program: Wills – Execution and Revocation, Report Number 47 (1986).
The parliamentary intention informing the amendments is clear:[19]
[19] South Australia, Parliamentary Debates, House of Assembly, 24 March 1994, 557-558 (SJ Parker, Deputy Premier).
The genesis for the changes came largely from the Registrar of Probates and the judges of the Supreme Court together with suggestions from the Law Society. Many of the changes have been the subject of a report by the New South Wales Law Reform Commission.
…
Rectification
The final matter dealt with by the Bill is the matter of rectification. In the general law where that form of a document does not truly reflect the stated intention of the party or parties to it, the equitable doctrine of rectification enables the court to correct the document to express those intentions. The principles of rectification are well settled and accepted. The party seeking rectification must provide clear and convincing proof of error and must clearly establish what form the document was intended to take. The Court currently has the power to correct mistakes in wills but that power is more circumscribed than the equitable doctrine of rectification. The UK, QLD, NSW and ACT have all now included a specific power of rectification. This Bill therefore provides that rectification of a will is available wherever a court is satisfied that the will is so expressed that it fails to carry out the testator[‘]s intentions.
In large part this Bill brings the South Australian law in relation to wills into line with the law which applies in other jurisdictions.
Shortly after the insertion of section 25AA into the Wills Act it was noted by an academic commentator:[20]
Gillespie and Bray raise the question of an overlap of the ambit of s25AA and that of s12(2). The particular mistake in Gillespie, a husband inadvertently signing his wife’s mirror will instead of his own, occurred in In the Estate of Blakely.
White J ordered
that the husband’s will, the document in the name of the husband, be admitted for probate as if his signature and the signature of the two witnesses, all appearing on the wife’s will, all appeared on the husband’s will, and as if the wife’s signature were expunged therefrom.[21]
This of course amounts to a notional rectification but it must be questioned whether s 12(2) authorises an order in such terms – it allows a document to be admitted to probate notwithstanding that it “has not been executed with the formalities” not as if it had been. The question is raised whether a South Australian Court would now deal with such a case under s 25AA rather than s12(2). Notwithstanding the New South Wales case it would seem that s12(2) is more appropriate than s 25AA: the latter is concerned with mistake as to the meaning on the contents of the will not one as to its formal validity. Furthermore there is the possibility, subject to the relevant Rule of Court, that the sort of situation in Blakely could be dealt with under s12(2) by the Registrar, whereas s25AA can be invoked only by the Supreme Court.
[20] Richard Bullen, ‘Changes to the Law in South Australia relating to Will Making’, (1994) 16 Adelaide Law Review 269, at 280-281.
[21] In the Estate of Blakely (1983) 32 SASR 473 at 480.
Having regard to the materials outlined above, it is appropriate to utilise section 12(2) in the circumstances before this Court. The legislative intention demonstrates that these circumstances are precisely the “mischief” to which the section is directed. Section 12(2) is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. In contrast, section 25AA is a devise to enable the court to correct a document which does not accurately reflect the testator’s intentions. It is generally concerned with rectifying mistakes as to the meaning or the contents of the will.
In my view, to delete the portions of the will of the deceased’s wife which the deceased actually signed so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution.
I direct that the will of the deceased as signed by his wife on 14 July 2004 be admitted to probate.