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 356CIVIL
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…
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- Case
- [2010] SASC 356
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.