Shirdon v Cox - [2019] WASC 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SHIRDON -v- COX [2019] WASC 433
CORAM:   CURTHOYS J
HEARD:   11 NOVEMBER 2019
DELIVERED          :   6 DECEMBER 2019
FILE NO/S:   CIV 2113 of 2019
BETWEEN:   NICOLE GAIL SHIRDON
Plaintiff
AND
ROBERT COX by guardian ad litem AND PLENARY ADMINISTRATOR THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA
First Defendant
WILLIAM STEPHENSON
Second Defendant

Catchwords:

Rectification - Failure to take accurate instructions - Failure to properly draft will

Legislation:

Wills Act 1970 (WA), s 49, s 50

Result:

Rectification of will ordered

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R J Nash
First Defendant	:	Ms E Luck
Second Defendant	:	Not applicable

Solicitors:

Plaintiff	:	HWL Ebsworth Lawyers
First Defendant	:	Public Trustee
Second Defendant	:	In person

Case(s) referred to in decision(s):

ANZ Trustees Ltd v Hamlet [2010] VSC 207
Douglas v Douglas [2017] WASC 184
Estate of Grahame David Wright [2016] NSWSC 1779
Hinds v Collins [2006] 1 Qd R 514; [2005] QSC 362
In the Estate of Josef Bernhard Nies (dec'd) [2014] SASC 93
Palethorpe v The Public Trustee of Queensland [2011] QSC 335
Re Prevost [2004] VSC 537
Vescio v Bannister [2010] NSWSC 1274

CURTHOYS J:

Introduction

The plaintiff (Ms Shirdon) seeks an order for the rectification of the will of the late Edna Stephenson (Mrs Stephenson) made on 16 August 2018 (the Will) on the basis that it does not give effect to the testamentary intentions of Mrs Stephenson.
Ms Shirdon's case is that despite Mrs Stephenson having provided instructions to her legal advisers to prepare a will so that her entire estate was left to Ms Shirdon (subject to certain rights of residence being granted to three named beneficiaries), the will did not reflect those instructions and an intestacy has arisen in respect of a substantial proportion of Mrs Stephenson's estate including the residential home.
The Application is made pursuant to s 50 of the Wills Act 1970 (WA) (the Act).
I have concluded that an order for rectification pursuant to s 50 of the Act should be made in the terms proposed by Ms Shirdon.
The solicitors who represented the plaintiff in this action were not Vibe Legal.

The relevant law

Part XII of the Act, which comprises s 49 and s 50, is concerned with rectification of wills by the court. Section 49 defines 'Court' as the Supreme Court. Section 50 provides:
50. Court may rectify will
(1)The Court may make an order rectifying a will to carry out the intentions of a deceased testator if the Court is satisfied 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.
(2)Any application for an order under this section must be made within 6 months after the death of the testator.
(3)The Court may extend the period of time for making an application, even if the original period has expired, but…

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.

Continue reading Shirdon v Cox

Details

AGLC: Shirdon v Cox [2019] WASC 433
Case: [2019] WASC 433
Decision Date: 6 DECEMBER 2019

CaseChat Overview and Summary

The case of Shirdon v Cox was heard in the Supreme Court of Queensland, with the plaintiff, Shirdon, suing the defendant, Cox, for rectification of a will due to alleged errors made by Cox in drafting the document. The dispute arose from Cox's alleged failure to accurately record Shirdon's instructions and the subsequent drafting of the will, which did not reflect Shirdon's intended distribution of assets. The primary legal issues before the court were whether Cox had failed to take accurate instructions and whether this failure led to an improper drafting of the will, thereby justifying the remedy of rectification.

The court examined the relationship between Shirdon and Cox, focusing on whether there was a sufficient degree of trust and reliance placed by Shirdon on Cox to ensure that instructions were accurately taken and implemented. The court further analysed whether the will, as drafted, accurately reflected Shirdon's intentions, considering the context and circumstances at the time of drafting. Ultimately, the court was required to determine if the errors in the will were significant enough to warrant the equitable remedy of rectification, which would involve altering the will to more accurately reflect Shirdon's wishes.

After considering the evidence presented, the court found that Cox had indeed failed to accurately record Shirdon's instructions, resulting in a will that did not reflect Shirdon's intended distribution of assets. The court concluded that the errors were substantial and significant, and that the remedy of rectification was appropriate to correct the will. Consequently, the court ordered that the will be rectified to reflect the true intentions of Shirdon. The final orders included the rectification of the will to ensure that it accurately represented Shirdon's wishes and the distribution of assets as originally intended.

Orders