Sykes v Sykes - [2010] SASC 356

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
SYKES v SYKES
[2010] SASC 356
Reasons for Decision of The Honourable Justice Gray
24 December 2010
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
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
Application for rectification of a codicil and for grant of probate of a will and the codicil - clause 1 of codicil an absolute revocation clause, which on its face would revoke the will - validity of codicil was put in issue in the proceedings - issues between parties subject to consent and order made by Master in terms of minutes presented to him - procedural concerns arose upon sealing of that order - matter referred to Judge of Court.
Held: codicil does not accurately reflect the testator's intentions - codicil rectified, by removing clause 1, pursuant to section 25AA of the Wills Act 1936 (SA) and admitted to probate - will admitted to probate - insofar as is necessary, codicil admitted to probate pursuant to section 12(2) of the Wills Act.
Wills Act 1936 (SA) s 8, s 12(2) and s 25AA, referred to.
Re Hennekam (2009) 104 SASR 289; Wesley v Wesley (1998) 71 SASR 1; Re Estate of Epheser [2008] SASC 311; Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75; Wheatley v Edgar [2003] WASC 118; Tsagouris v Bellairs [2010] SASC 147; Guardian Trust and Executors Co of New Zealand Ltd v Darroch and Ors [1973] 2 NZLR 143; Fell v Fell (1922) 31 CLR 268; Hamersley v Newton (2005) 30 WAR 568, considered.

SYKES v SYKES
[2010] SASC 356
CIVIL
GRAY J.
Introduction

This is an application for rectification of a codicil dated 5 March 2006,[1] and for a grant of probate of a will dated 7 December 2001 and of the rectified codicil.
[1] Pursuant to section 25AA of the Wills Act 1936 (SA).
The validity of the codicil dated 5 March 2006 was put in issue during the proceedings. Questions were raised regarding the testamentary capacity of the deceased at the time of signing the codicil, in addition to allegations of particular vulnerability to influence. These issues were resolved between the parties.
On 13 October 2010 a Master of this Court made orders in terms of minutes presented to him by the parties. Those orders were expressed to be made by consent. The orders were to the effect that:
·the will and codicil be admitted to probate; and
·the codicil be rectified; and
·as to costs; and
·terms of compromise agreed between the parties be made a rule of…

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.

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Details

Case: [2010] SASC 356
Decision Date: 24 December 2010

CaseChat Overview and Summary

In Sykes v Sykes, the deceased, Kathleen Sylvia Sykes, died on 30 August 2006, leaving behind a will dated 7 December 2001 and a codicil dated 5 March 2006. The will appointed Geoffrey George Sykes and Judith Ann Sykes as executors and provided for the division of the estate equally among the deceased's seven children, with Geoffrey having the right to reside in the deceased's house until a specified vesting date. The codicil, drafted by Geoffrey, attempted to amend the will by revoking all earlier wills and testamentary dispositions, granting Geoffrey absolute ownership of the deceased's house, furniture, and effects, and requiring him to remunerate the other six siblings $30,000 each within two years of the deceased's death. Clause 5 of the codicil directed that all other documentation, except for the vesting period, should remain as stated in the original will.

The legal issues before the court were whether the codicil should be rectified by omitting clause 1, the revocation clause, to accurately reflect the deceased's intentions, and whether the codicil should be admitted to probate. The court considered section 25AA of the Wills Act 1936 (SA), which allows the court to rectify a will if it does not accurately reflect the deceased's testamentary intentions. The court also had to determine whether the codicil was validly executed, given that the witnesses printed their names rather than signing them.

The court found that the codicil did not accurately reflect the deceased's intentions and should be rectified by removing clause 1. The court was satisfied that the deceased intended the codicil to be an amendment to her will, rather than a complete revocation of it. The court also determined that the codicil should be admitted to probate, despite the informal execution by the witnesses. The court concluded that the codicil, once rectified, contained the deceased's testamentary intentions and that she intended it to constitute a codicil to her will.

The court made orders to rectify the codicil by deleting clause 1, grant probate of the will and codicil to Judith Ann Sykes, dismiss the caveat lodged by the second defendant, and order that amended terms of compromise reached between the parties be made a rule of court. The court also made orders as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I arrived at the view that the orders sought should be made; namely, that the will dated 7 December 2001 be admitted to probate, and the codicil dated 5 March 2006 too be admitted to probate, the latter being rectified by deleting therefrom in its entirety clause 1. I made the orders on 10 December 2010. These are my reasons. Background The testator, Kathleen Sylvia Sykes died on 30 August 2006, aged 88 years. Her husband, Raymond Sykes, died in 1999. Together they had seven children, who are all party to this action. Geoffrey George Sykes and Judith Ann Sykes are the plaintiffs. The defendants are Paul Raymond Sykes, Kevin Thomas Sykes, Cherie Kay Dorman, Rayleen Sylvia Nicholson and David Matthew Sykes. By way of affidavit, Geoffrey deposed to having lived with and cared for his mother since 1993 until the time of her moving into Residential Care in May 2006. Two testamentary documents were found after the death of the deceased: the 7 December 2001 will and the codicil dated 5 March 2006. By the 2001 will, the deceased appointed Geoffrey and Judith as executors. Geoffrey was given the right to reside in the deceased’s house and have use of her household furniture until a day referred to as the “vesting date”, defined by clause 3.1 of the will to be the first of the date of death or marriage of Geoffrey, or the second anniversary of the testator’s death. Subject to that right, the whole of the estate was to be divided equally between the deceased’s seven children. The will was drawn by lawyers. The 5 March 2006 codicil purports on the one hand to be an amendment to the deceased’s last will and testament, but on the other, by way of clause 1 of the document, purports to revoke all earlier wills and testamentary dispositions. By clause 2, the codicil appoints the same executors as the 2001 will, Geoffrey and Judith. It gives the deceased’s house, furniture and effects to Geoffrey absolutely. It records a “solemn oath” given by Geoffrey to the deceased that he would within two years following the deceased’s “bereavement”, renumerate to his six siblings $30,000.00 each, in “full settlement of the valuation of my estate”. Clause 5 is in the following terms:I DIRECT that all other documentation (With exception to Clause 3 Vesting Period) as is set out in my original Last Will and Testament is to remain as stated. Geoffrey drafted the codicil. Consideration The issue that immediately arises is whether the codicil should be rectified by omitting clause 1, the revocation clause, so as to accurately reflect the intentions of the deceased. The application for rectification seeks to invoke the jurisdiction of the Court pursuant to section 25AA of the Wills Act 1936 (SA). This section relevantly provides:(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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

It is apparent that the application is made pursuant to section 12(2), insofar as is necessary as a result of the fact that the two witnesses to the signing of the 2006 codicil printed their names rather than signed them. As can be seen from the terms of the section above, section 8(d) provides that the witnesses must “attest and sign” the will. Insofar as it is necessary for me to do so,[6] I would make an order that the document be admitted pursuant to section 12(2) of the Wills Act. On the evidence before me I have no hesitation in being satisfied that the document once rectified contains the testamentary intentions of the deceased and that the deceased intended the document to constitute a codicil to her will. [6] It may be that a printed name is sufficient: an alternative means of “signing” may be acceptable for the purposes of section 8, including through a mark or initials of the person: see In the Will of Harrington (1884) 6 ALT 84. Wills may validly be attested where the witness signs his or her name in the ordinary way, or makes a mark intended to represent his or her name: see for example Harrison v Harrison (1803) 32 ER 324; Oi Lin Muk Sang v Goo Tin (1911) 28 WN (NSW) 102. In the context of the signature of a testator, the relevant consideration is whether what is being presented as a signature was written by the testator with the intention that it should operate as a signature and provide authentication of the document as his or her will: see Re Male [1934] VLR 318 at 320.Conclusion Having regard to the foregoing, I made orders to the following effect:·The codicil dated 5 March 2006 be rectified by deleting therefrom clause 1 in its entirety. ·Probate of the will and codicil be granted to Judith Ann Sykes. ·The caveat lodged in the matter by the second defendant be dismissed. I made orders as to costs and further ordered that amended terms of compromise reached between the parties be made a rule of court.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The 5 March 2006 codicil purports on the one hand to be an amendment to the deceased’s last will and testament, but on the other, by way of clause 1 of the document, purports to revoke all earlier wills and testamentary dispositions. By clause 2, the codicil appoints the same executors as the 2001 will, Geoffrey and Judith. It gives the deceased’s house, furniture and effects to Geoffrey absolutely. It records a “solemn oath” given by Geoffrey to the deceased that he would within two years following the deceased’s “bereavement”, renumerate to his six siblings $30,000.00 each, in “full settlement of the valuation of my estate”. Clause 5 is in the following terms:I DIRECT that all other documentation (With exception to Clause 3 Vesting Period) as is set out in my original Last Will and Testament is to remain as stated. Geoffrey drafted the codicil. Consideration The issue that immediately arises is whether the codicil should be rectified by omitting clause 1, the revocation clause, so as to accurately reflect the intentions of the deceased. The application for rectification seeks to invoke the jurisdiction of the Court pursuant to section 25AA of the Wills Act 1936 (SA). This section relevantly provides:(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. Section 25AA of the Wills Act is a device 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.[2] As is clear from the terms of section 25AA, the testator’s actual intentions are essential to found an order for rectification.[3] Such evidence is now before me. [2] Re Hennekam (2009) 104 SASR 289 at [36].[3] See for example Wesley v Wesley (1998) 71 SASR 1; Re Estate of Epheser [2008] SASC 311. One of the subscribing witnesses to the 2006 codicil deposed to the circumstances of the execution of that document. The witness further deposed to the deceased telling her that she wanted to amend her will so that the benefit of her house would pass to Geoffrey for all the caring he had done for her. It was deposed that the deceased’s desire to amend her will “was consistent with my understanding of her affection for Geoffrey and desire to benefit him.” The witness had taken the deceased for outings approximately every six weeks for about 15 years prior to the deceased’s death. The witness deposed that often on those occasions the deceased would express her concern of ensuring that Geoffrey would have a home after her death. Finally, the witness deposed to the deceased appearing to understand and approve the contents of the codicil before signing it, and that she observed the deceased to be lucid and free of any confusion. I am satisfied, despite the earlier, now not pursued, challenge to testamentary capacity, that there is sufficient evidence for me to be satisfied that the earlier challenge raises no material concern regarding capacity.[4] [4] Despite the withdrawal of the challenge in this respect, the above state of satisfaction is important when testamentary capacity is raised inter partes: see Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 (Simmonds J); Wheatley v Edgar [2003] WASC 118 (EM Heenan J); Tsagouris v Bellairs [2010] SASC 147.