The Estate of Stephen Michael Tester - [2017] NTSC 83

CITATION:The Estate of Stephen Michael Tester [2017] NTSC 83
PARTIES:THE ESTATE OF STEPHEN MICHAEL TESTER
TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:PR 131 of 2017 (21740494)
DELIVERED ON:  21 November 2017
DELIVERED AT:  Darwin
WRITTEN SUBMISSIONS:              6 October 2017
JUDGMENT OF:  HILEY J
CATCHWORDS:

SUCCESSION – Wills, probate and administration – clerical error – where formal will prepared by Solicitor is inconsistent with draft will prepared by Testator - application for rectification under s 27 Wills Act 2000 (NT) – held will did not carry out the intentions of the testator and did not give effect to testators instructions – will rectified by amendment
Wills Act 2000 (NT) s 27(1)
Administration of Justice Act 1982 (UK) s 20(1)
Succession Act 1981 (Qld) s 31(1)
Long v Long [2004] NSWSC 1002; Re Allen [1988] 1 Qd R 1; Re Hess [1992] 1 QD R 176; Re Segelman (Deceased) [1995] 3 All ER 676; Rawack v Spicer [2002] NSWSC 849; Wordingham v Royal Exchange Trust Co Ltd [1992] 3 All ER 204, referred to.
REPRESENTATION:
Counsel:
Applicant:N Aughterson
Solicitors:
Applicant:Ronald Edwin Lawford
Judgment category classification:    B
Judgment ID Number:  Hil1713
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Estate of Stephen Michael Tester [2017] NTSC 83

No. PR 131 of 2017 (21740494)
THE ESTATE of STEPHEN MICHAEL TESTER

CORAM: HILEY J
REASONS FOR DECISION ON REFERENCE BY THE REGISTRAR
(Delivered 21 November 2017)
Introduction

On 17 August 2017 the applicant filed an application seeking that probate of the will of the late Stephen Michael Tester (the Testator) dated 28 April 2017 (the Will), be granted to her and that “an amendment be made to the Will” (the Application). The effect of the amendment sought is to gift $1,000 to Mr Tom Tester instead of the $25,000 gifted to him in the Will.
The Application was accompanied by documents that usually accompany applications for probate, and two affidavits in support of correction to the Will, one by the solicitor who prepared the Will, Ronald Edwin Lawford, [1] the other by the applicant, Irene Lorraine Bruninghausen, who was appointed executor under the Will.[2] The Registrar has referred the Application to the Court. The applicant has subsequently provided the Court with written submissions,[3] amended affidavits in support of correction to the Will,[4] and a copy of email exchanges between Mr Lawford and Mr Tom Tester (the emails).[5]
This is in effect an application for rectification of the Will under s 27 of the Wills Act 2000 (NT). Section 27(1) provides:
If the Court is satisfied that a will does not carry out the intentions of the testator because:
(a) a clerical error was made: or
(b) the will does not give effect to the testator’s instructions,
the Court may make an order to rectify the will so it carries out the testator’s intentions.
Relevant Facts
Ms Bruninghausen, a retired legal practitioner, had known Stephen Tester for 27 years. He was a close friend and neighbour of hers. When Stephen Tester was diagnosed with cancer in May 2016 he asked Ms Bruninghausen if she would be his executor. She said yes and told him that he would have to make a will. When she subsequently reminded him about this he said that he was in the process of preparing a will on his laptop with the assistance of draft forms available on the internet.
Ms Bruninghausen was interstate for some five months and returned early on 22 April 2017 as Mr Tester had been told that he did not have long to live. His mother and two of his brothers, Sam and Toby Tester, had travelled to Darwin from the United Kingdom to say their goodbyes and were to leave Darwin to return home on 26 April 2017. Ms Bruninghausen says that Mr Tester was not willing to discuss his will or see a lawyer while they were there.
The following day Ms Bruninghausen had a long conversation with Mr Tester and he agreed to see a lawyer about his will the next day. Ms Bruninghausen made an appointment for them to see Mr Lawford the next day.
On the morning of 28 April, Mr Tester telephoned Ms Bruninghausen from Royal Darwin Hospital and asked her to cancel the appointment with Mr Lawford, which she did. A few hours later Mr Tester’s partner, Ms Irene Roziana, and a friend, came to Ms Bruninghausen’s house and gave her a three page document (described in the affidavits as the informal will) and asked her to take it to the lawyer. She understood the document to be a printed version of the draft will prepared by Mr Tester on his computer.
At the bottom of the first two pages was provision for signatures by “Stephen Tester” and a witness, but no signatures. At the end of the document, on the third page, was typed the word “Signed”, below that a dotted line and below that the words “Stephen Tester”. On the dotted line was a handwritten signature.
The document contained considerable detail concerning the distribution of Mr Tester’s assets most of which was to go to Ms Irene Roziana, identified as his spouse. These included the proceeds of sale of two units in Bakewell, his superannuation benefits and the residue of his estate after paying out a number of legacies. It identified the names and telephone numbers of seven people (one of whom was Ms Bruninghausen) and amounts ranging between $3,000 and $20,000 which were “for the recipients to have a beer on me.” It then identified eight people under the heading “Direct Family” and stated specific amounts opposite the names of all but Irene Roziana. On the first three lines, opposite each of the names “Michael and Jean Tester (Mum & Dad)”, “Sam” and “Toby” was the figure $25,000. On the next three lines were, respectively, the words “Tom - $1,000”, “Nick - $3,000” and “Jane - $1,000”. On the last line were the words “Nona (Irene Roziana) – All remaining monies” and a telephone number. The document then stated that Ms Bruninghausen was to be the executor of the will and “will have power of attorney over all my affairs”. It contained other instructions for example regarding the sale of a unit, a house and a car, and login and password details.
At about 1pm Ms Bruninghausen telephoned Mr Lawford and told him that she had the informal will made by Mr Tester and that his advice was needed as to its validity. She then attended on Mr Lawford at about 1.30pm. She told him that it was urgent as Mr Tester might die at any minute. Mr Lawford read the three page document and advised Ms Bruninghausen that it would be prudent to have a new will drafted to encompass the wishes expressed in the document and to have it properly executed if Mr Tester was capable of knowing what he was signing.
Mr Lawford then drafted a will for execution by Mr Stephen Tester. Mr Lawford says that draft was based on the content of the informal will. The draft included 14 gifts of money to separate individuals, namely the seven “recipients [who were] to have a beer on me” and the seven people listed under the heading “Direct Family” against whose names specific dollar amounts were specified. With one exception, the gifts allocated to each individual were the same in the draft, and ultimately the Will, as they were in the informal will.
The exception was that the gift in favour of his brother Tom Tester was shown in the draft will, and ultimately the Will, to be $25,000, not $1,000 as was stated in the informal will. The applicant maintains that in preparing the formal will there was a transcription error in relation to that gift.
Mr Lawford says that he drafted the Will under extreme pressure of time, believing that Mr Stephen Tester was likely to be further medicated that afternoon and be left semiconscious at best. He drove to Royal Darwin Hospital and arrived there at about 2.45pm. He interviewed Mr Tester and concluded that he had testamentary capacity. Mr Tester appeared to just skim through the draft will over a period of ten seconds, made the one correction and then signed both of the two copies provided to him. The correction was in relation to one of the 14 individual gifts, replacing the words “My Brother Nick” with the words “My sister Nicola”.[6] After both copies were signed and witnessed, Mr Lawford handed one copy to Mr Tester, which he immediately handed to Ms Bruninghausen. Mr Lawford asked Mr Tester whether he wished to have a copy of the will left with him and, in response, he shook his head.
Mr Tester died on 5 July 2017.[7] Ms Bruninghausen, as executrix, read the will that evening and saw the error referred to in paragraph [12] above. She contacted Mr Lawford the next day and advised him of the typographical error.
On 19 July 2017 Mr Lawford sent an email to Mr Tom Tester advising him that he had made an error when preparing the formal will and requesting him to accept the $1000 instead of $25,000 and agree to the Will being corrected accordingly. This would avoid the additional expense and necessity of a formal application to the Court. After Mr Lawford had sent two more emails, Mr Tom Tester replied, on 11 September, that he had spoken to his father and “he is not overly happy that the will is to be edited and changed as Steve was alive for 10 weeks after the date the will was signed and thinks the current official will should stand.”
Relevant Law
Section 27(1) of the Wills Act is virtually identical to s 20(1) of the Administration of Justice Act 1982 (UK), which provides:
If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence
(a) of a clerical error; or
(b) of a failure to understand his instructions
it may order that the will shall be rectified so as to carry out his intentions.
In Wordingham v Royal Exchange Trust Co Ltd,[8] it was held that the term “clerical error”, in the UK legislation, means:
an error made in the process of recording the intended words of the testator in the drafting or transcription of the will. That meaning is to be contrasted with an error made in carrying his intentions into effect by the drafter’s choice of words and with a mistaken choice of words because of a failure to understand the testator’s instructions, a circumstance covered by sub-s (l)(b).
The Queensland legislation is to similar effect as s 27(1) of the Wills Act and s 20(1) of the UK Administration of Justice Act,[9] although expressed differently. Section 31(1) of the Succession Act 1981 (Qld) provides:
As from the commencement of this Act the court shall have the same jurisdiction to insert in the probate copy of a will material which was accidently or inadvertently omitted from the will when it was made as it has hitherto exercised to omit from the probate copy of a will material which was accidently or inadvertently inserted in the will when it was made.
The reference to the Court’s previous jurisdiction to omit material which was accidently or inadvertently inserted in a will is a reference to the earlier more limited probate jurisdiction which only enabled a court to delete words, but not to add words, to a will in order to correct a mistake in a will.[10] Even then, words could be deleted only where they were a product of a clerical error or did not reflect the testator’s instructions.[11] There could be no rectification where the testator was aware of the words used, but simply misunderstood their effect,[12] or where the effect of the deletion would be that the remaining words changed the testator’s intentions.[13]
In Re Allen, referring to s 31(1) of the Succession Act 1891 (Qld), Thomas J stated:
It may be that the evidence capable of satisfying its requirements will be confined to the actual instructions given to the solicitor (or to the facts and circumstances immediately preceding the writing of the will) and to the exposure of the error. Certainly, evidence of that kind will be the best evidence to support an application under s 31. However, it seems to me as a rule it will not be appropriate for a court on an application of this kind to entertain general evidence of the testator’s general intentions at earlier stages or, indeed, subsequently to the completion of the will.[14]
In Re Hess Williams J stated that the instructions given to the solicitor “would always be central to an application invoking s 31”.[15] There is a presumption that where a testator has read the will, he or she knew and approved of its contents.[16]
Consideration
I agree that when the formal will was prepared there was a clerical error and, also, it did not give effect to the testator’s instructions. The informal will clearly shows an amount of $1,000 to be gifted to Mr Tom Tester. Mr Lawford, the testator’s solicitor, has acknowledged that the relevant entry of $25,000 in the formal will does not accord with his instructions.[17] That is supported by the affidavit evidence of Ms Bruninghausen.[18]
Despite the presumption referred to in [21] above, the affidavit evidence of the testator’s solicitor Mr Lawford is that in the present case Mr Tester “appeared to skim read [the will] over a period of 10 seconds”, before making the one correction referred to at paragraph [13] above. Mr Tester would have been entitled to assume that the various amounts appearing in the formal will, prepared by his solicitor, were the same as those in the informal will. In the circumstance of signing the Will in a hospital, and given that the two gifts immediately above that for Tom Tester were for $25,000, it is evident that he overlooked the amount of the gift. Also, the obvious correction that was made (from “brother” Nick to “sister” Nicola) appeared immediately below the gift to Tom Tester, which could well have served as a distraction. It is evident that Mr Tester did not subsequently read the Will and so was not in a position to discover any error.
In addition to the fact that the informal will only allowed for a gift of $1,000 to Tom Tester, there is other evidence to the effect that a clerical error was made and that the Will did not give effect to Mr Tester’s instructions. There was only a matter of hours between the handing over of the informal will and its transformation into a formal will, making any change of mind much less likely. Secondly, there were differences as between the gifts given to Mr Tester’s siblings. While $25,000 was given to each of Sam and Toby, only $3,000 was given to Nicola and $1,000 to Jane. Mr Tester’s executrix, Ms Bruninghausen, states that a week or so after signing the Will, Mr Tester told her that of his siblings he had always been closer to Toby and Sam and that is why the amounts that he had left to them were so much greater than the amounts he had left to the others.[19] Thirdly, Ms Bruninghausen also states: “I am certain that if Steve had intended to make such a substantial change in the amount to be left to Tom Tester he would definitely have talked to me about it and he did not”.[20]
Disposition
Accordingly I am satisfied that the Will does not carry out the intentions of the testator because a clerical error was made. I am also satisfied that the Will does not give effect to the testator’s instructions to his solicitor. I consider it appropriate to make an order rectifying the Will.
I order that the will of the late Stephen Michael Tester dated 28 April 2017 be rectified by removing the reference to “$25,000” opposite the name of Tom Tester in paragraph 11 of the Will and replacing it with “$1,000”.
I direct the Registrar to grant probate of the will as so rectified to the applicant if the Registrar is satisfied that other relevant requirements have been met.
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[1] Affidavit of Ronald Edwin Lawford promised 17 August 2017.

[2] Affidavit of Irene Lorraine Bruninghausen promised 17 August 2017.

[3] Applicant’s Outline of Submissions filed 9 October 2017 (the written submissions).

[4] Amended Affidavit of Ronald Edwin Lawford promised 9 October 2017 and Amended affidavit of Irene Lorraine Bruninghausen promised 6 October 2017.

[5] Emails dated 19 July, 26 July and 7 August 2017 from Mr Lawford to Mr Tom Tester, and email dated 11 September 2017 from Mr Tom Tester to Mr Lawford.

[6] He had wrongly assumed that Nick was a male and thus Mr Tester’s brother.

[7] See Death Certificate and Amended affidavit of Ronald Edwin Lawford at [9].

[8] [1992] 3 All ER 204 at 210. See also, Re Segelman (Deceased) [1995] 3 All ER 676 at 686.

[9] See Re Allen [1988] 1 Qd R 1 at 3 (Re Allen); Re Hess [1992] 1 QD R 176 at 180 (Re Hess).

[10] See, for example, Re Hemburrow [1969] VR 764; In the Estate of Wesley (deceased) (1998) 71 SASR 1 at 4; Lesses (Deceased) [2013] SASC 23 at [21].

[11] See, for example, Re Phalen (Deceased) [1971] 3 WLR 888.

[12] See, for example, Collins and Tuffley v Elstone [1893] P 1, Estate of Beechv Public Trustee [1923] P 46; Re Horrocks, Taylor v Kershaw [1939] P 198 at 216; Fry v Georges [2009] VSC 220 at [63].

[13] See, for example, Osborne v Smith (1960) 105 CLR 153; Re Hemburrow [1969] VR 764; Re Hess [1992] 1 QD R 176 at 183, 187; Re Horrocks, Taylor v Kershaw [1939] P 198.

[14] See also Rawack v Spicer [2002] NSWSC 849 at [26], where it is stated: “What one must look for is an error which has occurred in the transcription of the will” and, at [27] “It is the intention of the testator at the time of making the Will that matters, not the intention at some later time”. See also Long v Long [2004] NSWSC 1002 at [8].

[15] Re Hess at 185.

[16] See Re Hess at 191 per Ambrose J. In that case it was held that the court below was entitled to conclude on the evidence that the testator did not notice the error in the Will and, accordingly, rectification was allowed.

[17] Amended affidavit of Ronald Edwin Lawford at [9].

[18] Amended affidavit of Irene Lorraine Bruninghausen at [7] and [12].

[19] This is also evidenced by the fact that Sam and Toby Tester travelled from the UK to see him before he died.

[20] Amended affidavit of Irene Lorraine Bruninghausen at [13].