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 court in the action.
Accordingly, minutes of order were drawn up and presented to the Registrar for settling and sealing. The Registrar had a number of concerns about sealing the order and as the Master was on leave at the time, referred the matter to me. In particular, the following concerns were raised by the Registrar:
·The parties’ consent cannot determine what documents are or are not to be admitted to probate.
·The parties’ consent cannot be sufficient for an order for rectification to be made. Further there did not appear to be any evidence before the Court as to the testator’s actual intentions: an essential foundation for an order for rectification.
·The original will and codicil were not put in evidence before the Master.
·The order did not deal with the contentious proceedings arising from a caveat entered in the Probate Registry in September 2009, which remains in force.
·The order does not specify whether the grant is to be in solemn or common form.
·The order does not say to whom the grant is to be made.
·The terms of compromise are expressed as being conditional on the order being made. It is not clear if this means ‘the order being sealed’.
·The terms of compromise do not strictly meet the requirements for being made a rule of court – it is not a term of the compromise that that occur.
The matter came before me on 22 November 2010, on which occasion I adjourned the matter to allow the parties time to address the concerns raised by the Registrar.
The importance of those concerns is evident when the nature of a grant of probate is borne in mind. The relevant material is now before me, and the summons has been amended and no longer applies for probate in solemn form. The original will and codicil are now before me. There is affidavit material before me confirming due execution of the 2001 will and the 2006 codicil. There is also some evidence as to the testator’s testamentary capacity and intentions.
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.
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.
There is a further affidavit of Geoffrey now before me. Geoffrey deposed to the deceased directing him to change her will to provide for him to receive the house property. He deposed to a conversation with the deceased, where they agreed that the Council valuation of the house, $210,000.00, should be used to calculate the amount payable to all of Geoffrey’s siblings. This is the basis of the $30,000.00 figure which ultimately appears in the codicil. Geoffrey deposed that it was not the deceased’s intention to wholly revoke her earlier will.
Finally, Judith also deposed that it was “common knowledge” amongst her siblings that the deceased wanted to benefit all of her children, but that she wanted Geoffrey to have the house property.
I am satisfied that the inclusion of clause 1 in the codicil is a drafting error. Clause 5 militates towards such a conclusion. Further, if this were not the case there would be a partial intestacy, and it is well established that the court will prefer a construction that will not lead to such a result.[5] On the evidence before me, I am satisfied that the codicil does not reflect the intentions of the deceased. I am satisfied that by removing clause 1, proper expression is given to those intentions.
Section 12(2) of the Wills Act
[5] Guardian Trust and Executors Co of New Zealand Ltd v Darroch and Ors [1973] 2 NZLR 143 at 148, 149; see also regarding the presumption against intestacy: Fell v Fell (1922) 31 CLR 268 at 275-276; Hamersley v Newton (2005) 30 WAR 568 at 583.
The amended summons in this matter was endorsed as being not only pursuant to section 25AA of the Wills Act, but also section 12(2) of the Act. That section allows the court, despite a document not meeting the formalities as to writing and execution of wills as required by section 8 of the Act, to admit the document to probate 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.
Section 8 provides the following:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)     it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)     it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)     the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)     the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)     the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
Section 12(2) provides:
(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.
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.