Re the Will of the Late Stanko Zulj
[2014] TASSC 14
•21 March 2014
[2014] TASSC 14
COURT: SUPREME COURT OF TASMANIA
CITATION: Re the Will of the Late Stanko Zulj [2014] TASSC 14
PARTIES: ZULJ, Drago
v
PENAVIC, Milena
ROGIC, Jadranka
In the Matter of the Will of the late
STANKO ZULJ
FILE NO: 811/2009
DELIVERED ON: 21 March 2014
DELIVERED AT: Hobart
HEARING DATE: 17 March 2014
JUDGMENT OF: Tennent J
CATCHWORDS:
Succession – Making of a will – Statutory power of rectification – Whether applicant discharged onus of satisfying court as to testator's intentions at the time will made.
Wills Act 2008 (Tas), s42(1).
Lockrey v Ferris [2011] NSWSC 179, referred to.
Aust Dig Succession [1081]
REPRESENTATION:
Counsel:
Applicant: K B Procter SC
Respondents: C Groves
Solicitors:
Applicant: Murdoch Clarke
Respondents: M+K Dobson Mitchell Allport
Judgment Number: [2014] TASSC 14
Number of paragraphs: 20
Serial No 14/2014
File No 811/2009
DRAGO ZULJ v MILENA PENAVIC, JADRANKA ROGIC
IN THE MATTER OF THE WILL OF THE LATE STANKO ZULJ
REASONS FOR JUDGMENT TENNENT J
21 March 2014
Drago Zulj ("the applicant") seeks an order that the will of his brother, Stanko Zulj ("the testator") be rectified pursuant to the Wills Act 2008 ("the Act"), s42(1). For the reasons which follow, that application is refused.
The Act, s42(1), provides as follows:
"42 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 beyond reasonable doubt that 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."
The testator's will (omitting signatures and substituting a typed date for that which was hand written) provided as follows:
"I STANKO ZULJ of Roseberry in Tasmania Storeman declare this to be my last Will and Testament
1.I REVOKE all former wills and testamentary dispositions heretofore made by me.
2.I APPOINT my brother DRAGO ZULJ of 5 Aber Grove, Mount Druitt in New South Wales to be the sole Executor and Trustee of this my Will.
3.I GIVE DEVISE AND BEQUEATH the whole of my estate of whatsoever nature and wheresoever situate to my brother DRAGO ZULJ ON TRUST to sell call in and convert into money the same or such parts thereof as shall not consist of monies and from the net proceeds of such sale collection calling in and conversion and my ready monies ON TRUST to pay thereout my just debts funeral and testamentary expenses and any probate or estate duty payable in connection with my Estate
IN WITNESS whereof I have hereunto set my hand this 31st day
of August Two Thousand
SIGNED by the said Testator as and for his
last will and testament in the presence of
us both present at the same time who at his
request in his presence and in the presence
of each other have hereunto signed our
names as attesting witnesses"
There is no dispute that this document was signed by the testator and that his signature was witnessed by Stephen Fitzallen and Nikki Goninon. Both at the time were employed at the Roseberry post office.
The applicant submits that the form of the will is as a result of a clerical error, and that it should be rectified by adding the following words after the words, "my Estate" in the last line:
"and after payment therefrom of those expenses, I GIVE DEVISE AND BEQUEATH the net residue of my estate to my brother, the said DRAGO ZULJ, absolutely."
The testator had six other siblings apart from the applicant, all of whom live in Europe. All have been made aware of the application to rectify. Two, Milena Penavic and Jadranka Rogic, were represented in these proceedings and opposed the application. The other siblings communicated with the Court by letter but were not formally represented. Their names were called at the beginning of the hearing and none appeared.
If the order as sought by the applicant is not made, there will be an intestacy.
The evidence relied on by the applicant was as follows:
- an affidavit of Paul Joseph McGrath sworn 3 September 2009 (pars9, 12 and 14 were struck out);
- a second affidavit of Mr McGrath sworn 20 October 2009;
- a third affidavit of Mr McGrath sworn 10 September 2013;
- an affidavit of Stephen William Fitzallen sworn 19 October 2009 (par2 was struck out and par8 was taken de bene esse following an objection);
- an affidavit of Nikki Susan Aitken (formerly Goninon) sworn 29 October 2009.
Consideration of the application
The will was prepared by a solicitor, Paul McGrath, in Burnie. He did not remember the testator or any of his dealings with him, and has no file or note of any instructions. He said his usual practice was to take instructions about how a testator intended his estate to be disposed of, and then have a clerk prepare the will. He would then check the draft will and, if it was in order, arrange for it to be signed. He accepts that the will as drawn did not finally dispose of the testator's estate, and that it is probable the clerk who prepared it did not prepare the will properly and that he did not check it properly.
The will was witnessed by two witnesses working in Rosebery. It must be inferred that Mr McGrath's office sent the will to the testator in Roseberry and he asked the two witnesses, both of whom worked at the local post office, to witness his signature on the will. Neither of those witnesses had any recollection of witnessing the will. Neither was able to say that they saw the testator read the document before it was signed. Both indicated that the testator spoke and understood English well. He appeared to be able to read English, although Mr Fitzallen indicated the testator occasionally had problems with writing and had problems at times with official documents.
Mr Fitzallen said in his affidavit at par8 that:
"Stanko would often talk to me about his family. He told me that he was going to leave everything to his brother Drago because he liked to help his family. Stanko had assisted in putting Drago's children through school and higher education. He used to say this is what family did, not like we Australians."
For this application to succeed, the applicant must satisfy the Court beyond reasonable doubt that the will referred to in par[3] does not carry out the testator's intentions because a clerical error was made.
Hallen AJ dealt with an application such as the present in Lockrey v Ferris [2011] NSWSC 179. The New South Wales legislation is slightly different in that the onus of proof on an applicant seeking to have a will rectified is on the balance of probabilities. However, the principles with which his Honour dealt are apposite here. At par[73], his Honour said:
"Thus, the three questions posed by the section are, first, what were the testator's actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error …".
What were the testator's actual intentions?
The testator's intentions must be determined at the time of the making of the will. In this case, there is no direct evidence at all of what the testator's intentions were at the time of the making of the will. In par8 of Mr Fitzallen's affidavit set out above, he purports to give evidence about statements made to him by the testator about his wishes. However, that material cannot be relevant to this application. It is not placed in time, and there is nothing to indicate that any of the statements said to have been made by the testator have any temporal connection with the time at which the will was made.
Counsel for the applicant submitted that, despite the lack of direct evidence, the Court could draw an inference as to the testator's intentions from the wording of the will he signed, and the fact that he went to a solicitor to have a will drawn. I accept that, from the fact that the testator took the trouble to engage a solicitor to draw his will, he did not intend that his estate be dealt with as an intestacy.
Counsel for the applicant submitted that the will as drawn contained only the name of the applicant, and bequeathed the estate to him, albeit on trust. He submitted that, had the testator intended that others, apart from the applicant, would also benefit from his estate, he would have been alerted to the fact there was a problem when no other names appeared in the will. Since he signed the will as presented, there was obviously no such problem. He saw the will, he saw the applicant's name and he signed the will. The Court can, it was submitted, confidently draw an inference that the testator's intention was to benefit the applicant alone.
Counsel for the respondents submitted that the wording of the will as drawn clearly stated that the estate was to be held on trust by the applicant. Because of that, other inferences were open as to what the testator may have intended to be the ultimate disposition of his estate. The applicant had, on the available evidence, simply not discharged the onus imposed upon him by the Act.
With respect I agree. For the applicant to succeed he must satisfy the Court beyond reasonable doubt as to the testator's intentions at the time he made the will. The evidence is sadly lacking as to those intentions. Since the inference sought to be relied upon by the applicant is not the only inference which might be drawn from the wording of the will, in my view the applicant has failed to discharge the requisite onus.
The applicant has in effect failed at the first hurdle, and it matters not whether there was a clerical error. Having said that, there can be little doubt in my mind that there has been a clerical error. The will names the applicant as sole executor. It then gives the estate to him upon trust to call in the estate and pay debts. There are no other words beyond that save for the attestation details. There is not even a full stop after the last word in the body of the document. Clearly a properly drawn will required more, and it is simply not there. The will as drawn failed to give effect to anything.
Outcome
The application is dismissed.
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