Trenberth v Trenberth - [2014] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TRENBERTH & ANOR v TRENBERTH
[2014] SASC 50
Reasons for Decision of The Honourable Justice Nicholson
10 April 2014
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
The plaintiffs (two of six sons of the deceased) commenced proceedings seeking rectification of the last will of the deceased executed 2 February 2011. The defendant (another of the six sons and also acting on behalf of the other three) by defence and counterclaim challenged the validity of the 2 February 2011 document and propounded alternatives. The dispute was resolved shortly before trial. In accordance with the terms of the settlement, orders of the Court granting probate of the 2 February 2011 will in solemn form and rectifying that will in the manner as sought by the plaintiffs were jointly applied for. The central issues before the Court concerned whether the evidence justified the making of such orders independently of the parties’ consent.
Held: orders in the terms as sought, for a grant of probate of the will executed 2 February 2011 in solemn form and for the will to be rectified, granted.
Wills Act 1936 (SA) s25AA; Probate Rules 2004 (SA) rules 52.06, 52.08, 52.09 , referred to.
In the Estate of Kirs (1990) 55 SASR 61; Kuhl v Liebcheschel [1933] SASR 423; Tsagouris & Anor v Bellairs & Ors [2010] SASC 147; Wheatley v Edgar [2003] WASC 118; Executor Trustee Australia Ltd and Ors v Henderson [2006] SASC 82; Banks v Goodfellow (1870) LR 5 QB 549; Wesley v Wesley (1998) 71 SASR 1; Stephen Mark Dawes (Deceased) [2011] SASC 236, considered.

TRENBERTH & ANOR v TRENBERTH
[2014] SASC 50
Civil
NICHOLSON J.
Introduction

These reasons principally concern an application for rectification of the last will of the deceased, Trevor Paul Trenberth, dated 2 February 2011 (the “last will”). A further issue arises as to whether probate of the will should be granted in common or solemn form.
The deceased died on 16 December 2011 in Tumby Bay, South Australia. He was divorced and was survived by six sons; Anthony Kym Trenberth, Christopher Mark Trenberth, Trevor Dale Trenberth, Robin Paul Trenberth, Jonathon Dene Trenberth and Michael Charles Trenberth. According to the last will, Anthony, Christopher and Trevor have been appointed executors and trustees “jointly or the survivor of them”. Anthony and Christopher are the first and second plaintiffs, respectively, in this matter and Trevor is the defendant. However, at a directions hearing, counsel for the defendant indicated, to the effect, that Trevor was defending the plaintiffs’ claim on behalf of himself and the remaining three brothers, Robin, Jonathon and Michael and that counsel’s instructing solicitor was representing all four brothers for the purpose of this litigation.
The deceased had made a number of earlier wills, the terms of which are not relevant to these proceedings. As at the date of the last will the deceased was the registered proprietor of the following four parcels of land located in Tumby Bay, South Australia.
·4 Tumby Terrace, Tumby Bay, South Australia;
·John Street, Tumby Bay, South Australia;
·3 Tumby Terrace, Tumby Bay, South Australia; and
·2 North Terrace, Tumby Bay, South Australia.
There is no express mention in the last will of the 2 North Terrace property. It may be that this was because the deceased was in the process of negotiating its sale to the second plaintiff, Christopher. In any event, on 31 January 2011, the deceased’s interest in 2 North Terrace, Tumby Bay was transferred to Christopher and his wife for a sale price of $180,000.
On 19 and 24 January 2011, the deceased met with a lawyer, Catherine Jayne Leis, in order to provide instructions for a new will. On 2 February 2011 the deceased attended the offices of Ms Leis and executed the will she had prepared. Ms Leis and a Linda Heather Cockburn apparently witnessed the execution of the will. That will, dated 2 February 2011, was the final will executed by the deceased prior to his death. Its substantive terms were as follows.
4.My executors hold my estate on trust to give as follows:
a)    One half (50%) of my real property at 4 Tumby Terrace, Tumby Bay, South Australia to my son, CHRISTOPHER MARK TRENBERTH in recognition of his financial and non financial contributions to that property;
b)    One half (50%) of my real property at John Street, Tumby Bay, South Australia to my sons, TREVOR DALE TRENBERTH AND MICHAEL CHARLES TRENBERTH as tenants in common in recognition of their financial and non financial contributions to that property;
c)    The balance of my estate, after payment of my liabilities in my name, funeral and testamentary expenses to my six sons ANTHONY KYM TRENBERTH, CHRISTOPHER MARK TRENBERTH, TREVOR DALE TRENBERTH, ROBIN PAUL TRENBERTH, JONATHON DENE TRENBERTH AND MICHAEL CHARLES TRENBERTH equally as tenants in common.
5.I direct that all of my real property be independently valued by a licensed valuer agreed between the executors.
6.I direct that my son ANTHONY KYM TRENBERTH have first option to retain my real property at 3 Tumby Terrace, Tumby Bay South Australia to form part of all (subject to the value of the estate) of his entitlement to one sixth share of my estate as detailed in paragraph 4 herein.
7.I direct that my sons TREVOR DALE TRENBERTH AND MICHAEL CHARLES TRENBERTH have first option to retain the balance my real property at John Street, Tumby Bay South Australia as tenants in common to form part or all (subject to the value of the estate) of their entitlement to a one sixth share of my estate as detailed in paragraph 4 herein.
It can be seen that options to retain (or receive in specie as part of an entitlement) certain real property interests were granted to Anthony (with reference to 3 Tumby Terrace) and to Trevor and Michael (with reference to John Street).[1] However, nothing was included in this respect concerning Christopher and 4 Tumby Terrace. Christopher has at all terms maintained that the deceased intended him to have a similar entitlement. This gave rise to the plaintiffs’ claim for rectification of the will.
[1] By identifying this matter in these terms, I do not purport to offer a construction of any of the terms of the will.
Legal proceedings
On 23 January 2012, a caveat was filed on behalf of the first plaintiff in the Supreme Court registry, requiring that no grant of probate be made in relation to the deceased’s estate without notice being provided to him. On 13 March 2012, a second caveat was filed on behalf of the defendant in the same terms. The second caveat was warned by the plaintiffs on 20 March 2012.
A notice of warning to caveat requires a caveator to enter an appearance within 21 days and to either declare the particulars of any interest they have in an estate that is contrary to that of the caveatee or, if they have no contrary interest, show cause as to why a grant of probate should not be sealed in favour of the caveatee.[2] It is not readily apparent what response in this respect was provoked by the warning.
[2] See rules 52.06, 52.08 and 52.09 of the Probate Rules 2004 (SA).
In any event, legal proceedings were instituted by the plaintiffs by way of a summons and statement of claim filed on 31 August 2012. By their second statement of claim filed 24 April 2013, the plaintiffs sought, inter alia, the following orders:
1.An order that the Court shall pronounce for the force and validity of the last Will of Trevor Paul Trenberth deceased dated 2 February 2011 in solemn form of law.
2.An order pursuant to s. 25AA of the Wills Act, 1936 that the Will be rectified by insertion of a clause as follows:
“I direct that my son CHRISTOPHER MARK TRENBERTH have first option to retain my real property at 4 Tumby Terrace, Tumby Bay.” or such other rectification as the Court may deem fit to give effect to the deceased’s testamentary intention as pleaded in paragraph 3.e above.
The defendant, in his second defence and counterclaim filed 29 July 2013, alleged that the wills purportedly executed by the deceased on 31 March 2008 and 2 February 2011 were executed at a time when the deceased was not of sound mind, memory and understanding and thereby lacked testamentary capacity. The defendant’s counterclaim sought an order granting probate of a will dated 21 April 2004 in solemn form, or in the alternative, of the will dated 31 March 2008.
The plaintiffs’ basis for seeking the order for rectification was that this would accurately reflect the intention of the deceased at the time the 2 February 2011 will was executed. In support of this assertion, the plaintiffs referred to an intention expressed by the deceased to his lawyer, Ms Leis, at a time shortly prior to the drafting of the document. This expressed intention was asserted to be to the effect that he wanted Christopher to have an option to retain, as his share of the residue, the balance of the deceased’s interest in 4 Tumby Terrace not otherwise devised to Christopher.
The matter was set down for trial commencing 7 April 2014. At a hearing on 4 April 2014 the Court was informed that the six sons of the deceased, being the three parties to this matter and the three non-party siblings, had entered into a deed of family arrangement. As part of the settlement arrived at:
(i)all were in agreement that the will dated 2 February 2011 is to be admitted to probate in solemn form; and
(ii)there was now no opposition to the plaintiffs’ application for rectification of the will.
I received written submissions by the plaintiffs dealing with these two issues and heard brief oral submissions from counsel for both the plaintiffs and the defendant. I was provided with an agreed set of proposed orders in the terms of the orders I now intend to make as set out at the end of these reasons.
The written materials before the Court relevant to the two issues now before the Court were as follows.
(1)the pleadings;
(2)an affidavit of the deceased’s solicitor, Catherine Jayne Leis, sworn 2 April 2014;
(3)an affidavit of Anthony Kym Trenberth and Christopher Mark Trenberth sworn 20 July 2012;
(4)exhibit P1 being the original document headed “Last Will” in the name of Trevor Paul Trenberth (the deceased) and apparently executed on 2 February 2011; and
(5)a proposed form of consent orders.
Admission to probate
The first question that arises for determination in this matter is whether the deceased’s last will, dated 2 February 2011, should be admitted to probate in solemn form, consistent with the joint intention of the parties.
Wills can be proved in either common form or solemn form. These two alternative modes of proving a will, and the circumstances in which they are appropriate, were considered by Legoe J in In the Estate of Kirs.[3] According to his Honour, the issue of solemn form proof arises where the underlying question is whether or not the relevant will constitutes a valid testamentary instrument.
Wills are proved in solemn form in a probate action … where the main, and generally the sole, question for the determination of the court is whether a will is or is not, either in whole or in part, valid as a testamentary instrument. The will is propounded in the action to which persons, interested under another will or an intestacy, are made parties (or are cited to see the proceedings) and for the validity of which the court pronounces after hearing the evidence. On the other hand a will is proved in common form:
(i) where its validity is not contested and
(ii) where the court allows it to be admitted after a hearing or motion or summons.
[3] (1990) 55 SASR 61 at 68.
Once made, a grant of probate in either form becomes an order of the Court.[4] However, different consequences flow from probate granted in common form when compared with probate granted in solemn form, as summarised by Gray J in Tsagouris & Anor v Bellairs & Ors.[5]
A grant of probate in common form, or a non-contentious grant, is usually made by the Registrar of Probates, and provides a valid authority to the executor who is named in the document to deal with the assets of the estate as directed, and to exercise the powers of that office. It is, however, inherently revocable. The grant in this respect is not conclusive, and any person whose interest is adversely affected by the grant will remain entitled to have the will proved in solemn form.
On the other hand, a grant of probate in solemn form, or a contentious grant, seeks to decide finally, and as against the whole world, whether a particular will is the last valid will of the deceased. If that is achieved, the grant is not revocable, and has the same legal status as a judgment. The grant is usually made in circumstances where the validity of the will is challenged on the grounds that the testator lacked testamentary capacity, the will was not duly executed, or that it was not the last will of the deceased.
[4] Kuhl v Liebcheschel [1933] SASR 423 at 425.
[5] [2010] SASC 147 at [35] – [36] (citations omitted).
The parties in this matter collectively accede to a grant of probate in solemn form of the 2 February 2011 will. However, prior to agreement being reached on this issue, allegations were raised inter partes concerning the deceased’s testamentary capacity at the time of executing this last will. This has led to a situation in which the application for grant of probate in solemn form, although consensual, is to some extent clouded by previous allegations of the deceased’s want of testamentary capacity about which there is limited evidence.
The question that arises is whether the pleaded allegations of testamentary incapacity, although no longer pressed,[6] ought to preclude a grant of probate in solemn form. That question fell for consideration by Gray J in Tsagouris.[7] His Honour referred, with approval, to an analysis of the problem by Heenan J in Wheatley v Edgar.[8] Gray J said this.
[6]    The agreed proposed form of order in this respect is that “by consent the Cross-Action is dismissed”.
[7]    Ibid at [37] – [38] (citations omitted).
[8] [2003] WASC 118 at [24] and [26].
The precise issue that arises in the present proceeding is the effect of the withdrawal of the claims made inter partes but before the hearing, regarding the deceased’s testamentary capacity at the relevant time. The Court is now faced with an application for a grant of probate in solemn form, where there were allegations of want of testamentary capacity, a withdrawal of those allegations, and limited evidence before the Court with respect to the allegations.
The analysis by EM Heenan J in Wheatley v Edgar in the Supreme Court of Western Australia is apposite. That case involved an application for a grant in solemn form of a will of the deceased. At issue between the parties was the testamentary capacity of the deceased. A compromise was reached between the parties, and the issue before the Court was whether a grant of probate should or could be made in those circumstances, and if it could be made, whether it should be a grant in common form or in solemn form. After analysing the authorities, EM Hennan J concluded:
In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.
.  .  .  .
[W]hen a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.
In order for a grant of probate in solemn form to be made, the Court must first be satisfied that the will constitutes a valid testamentary instrument, even in circumstances where there has been a compromise between the parties as to its admission to probate. This requires adequate proof that the will has been duly executed.
In order to prove due execution of the will, evidence may be provided on affidavit.[9] On the basis of the uncontested matters deposed to by the lawyer responsible for drafting the deceased’s last will, Ms Leis, I am satisfied of due execution.
[9] Executor Trustee Australia Ltd and Ors v Henderson [2006] SASC 82 at [30] (Perry J).
In her affidavit Ms Leis deposes to two meetings with the deceased on 19 and 24 January 2011 at which the drafting of his last will was discussed. She also deposes to various instructions provided by the deceased at, or around, these dates as to the desired contents of the will itself. Ms Leis also deposes to the due execution by the deceased of this last will on 2 February 2011 in the presence of the two recorded witnesses, present at the same time.
Given the finality that follows a grant of probate in solemn form, a Court should proceed cautiously when making such an order, especially in circumstances where, as in this case, issues of testamentary incapacity have been raised. That being said, there is no evidence before the Court to suggest that the deceased lacked testamentary capacity at the time of executing the last will. Furthermore, all of the deceased’s six sons, all of whom stand to benefit under the will or under a previous will or pursuant to an intestacy, are before the Court in one capacity or another. None has chosen to bring forward any evidence to suggest testamentary incapacity.
The previous allegations made by the defendant with respect to the deceased’s testamentary capacity remain simply allegations. In any event, the terms of the will itself and the matters deposed to in the affidavit of Ms Leis, in particular as to the instructions provided by the deceased, support a finding that the deceased had a proper comprehension of the nature of the act of making a will and its effects, the extent of the property of which he was disposing and the claims to which he ought to give effect. As I have indicated, there is no evidence of any disorder of the mind bearing on these issues, in the manner as more fully described in Banks v Goodfellow.[10]
[10] (1870) LR 5 QB 549 at 565 (Sir Alexander Cockburn LCJ).

I am satisfied that the last will of the deceased was duly executed, and that a grant of probate should issue to the named executors in solemn form.
Rectification
The second issue that arises for determination in this matter, and notwithstanding the agreement of all interested parties, is the question of rectification.
Section 25AA of the Wills Act 1936 (SA) provides:
25AA—Power of rectification
(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.
(3)Nothing in this section affects the operation of section 29 of the Trustee Act 1936.
When exercising its powers under section 25AA a Court is to identify and focus on a deceased’s actual testamentary intentions.[11] The relevant date for the assessment of the deceased’s testamentary intentions is the date of execution of the will in question being, in this case, 2 February 2011.
[11] Stephen Mark Dawes (Deceased) [2011] SASC 236 at [34].
The questions to be determined by the Court in carrying out its function under section 25AA were summarised by Debelle J in Wesley v Wesley.[12]
When an application is made to rectify a will it will be necessary for the court to determine the meaning of the will, determine the testamentary intention of the deceased, determine whether the will accurately reflects that intention, and, if not, determine whether the will can be rectified and in what terms.
[12] (1998) 71 SASR 1 at 4.
In determining the testamentary intentions of the deceased in this matter, and whether they have been accurately reflected in his last will, matters deposed to by Ms Leis are again of assistance. On the basis of her affidavit, I make the following findings.
Ms Leis met with the deceased on 19 January 2011 and received instructions to prepare a new will on his behalf. During the meeting Ms Leis took handwritten notes recording the instructions provided to her by the deceased, which included the following:
Re 4 Tumby Tce – he gifts 3/5 to Chris to recognise his contributions to the property – the balance to be gifted to all 6 boys w/- Chris to have option to retain it & pay out other beneficiaries (i.e. he already owns 1/6 of the balance and pays out the others).
The deceased told Ms Leis that he wanted his will to recognise the financial contribution that his son, Christopher, had made to the premises at 4 Tumby Terrace. The deceased told Ms Leis that it would be unfair if Christopher’s financial contributions were not returned to him in some way because he had expended his own money in improving the property which had in turn increased its value.
At the January 19 meeting the deceased also gave Ms Leis a copy of a previous will dated 31 March 2008. That will contained an option for Christopher to acquire 4 Tumby Terrace. That will also contained options in favour of other sons to acquire other properties.
Following the meeting, Ms Leis prepared a draft will and provided it to the deceased on 20 January 2011 for review. By way of oversight, Ms Leis omitted to include an option to retain 4 Tumby Terrace in favour of Christopher in accordance with her understanding of the deceased’s instructions.
The deceased met with Ms Leis again on 24 January 2011. Again, she took handwritten notes of the instructions provided to her by the deceased. Those notes included the following:
We amended his will to reflect that Chris have a 50% share of Tumby Terrace & Mike and Dale 25% each of Johns Street.
The deceased did not provide any instruction to Ms Leis contrary to his previous instruction with respect to an option for Christopher to retain 4 Tumby Terrace. The previous draft will was amended by Ms Leis to incorporate the fresh instructions. A copy of the amended draft was then provided to the deceased. That was the document executed by the deceased on 2 February 2011.
The evidence of Ms Leis, as deposed to in her affidavit, has not been challenged. I am satisfied that this evidence does disclose an intention by the deceased to the effect that Christopher was to be given the option to “retain” the 50 per cent interest in 4 Tumby Terrace, not directly devised to him, as part of his entitlement to a one sixth share in the balance of the estate. At no stage after having instructed Ms Leis to that effect is it evident that the deceased resiled from that position. The time when the deceased directed his attention to the 4 Tumby Terrace property to reduce the initially proposed devise to Christopher from three fifths to one half was the time he would have been expected to have also changed his instructions concerning the option to retain, had he wished to do so. He did not do so. The oversight was in the drafting by Ms Leis not in the giving of the instructions by the deceased. I am satisfied that the deceased’s intentions in this respect, as expressed in his instructions on 19 January 2011, continued until the time of execution of the last will some two weeks later on 2 February 2011.
I am also satisfied that rectification of the will in the terms sought by the parties in their proposed order 1 (see below) is consistent with the effect and overall scheme of the will which also includes options to retain real property interests in cognate terms in favour of Anthony, Trevor and Michael.
The joint application for rectification will be allowed.
Conclusion
I make orders, in terms of the proposed draft orders provided by the parties, with respect to the last will of the deceased dated 2 February 2011:
THE COURT PRONOUNCES for the force and validity of the last will and testament of TREVOR PAUL TRENBERTH late of 29 Elfrieda Street Tumby Bay in the State of South Australia, Counsellor deceased being the script bearing the 2^nd day of February 2011 referred to in the affidavit of the Plaintiffs dated 20 August 2012 filed in this action and propounded on behalf of the Plaintiffs.
AND THE COURT ORDERS:
1.That the will of TREVOR PAUL TRENBERTH be rectified by the interpolation immediately after clause 6 of the following words:
6A.I direct that my son CHRISTOPHER MARK TRENBERTH have first option to retain the balance of my real property at 4 Tumby Terrace Tumby Bay, South Australia to form part or all (subject to the value of the estate) of his entitlement to a one sixth share of my estate as detailed in paragraph 4 herein.
2.That there be no order as to costs in this action and all existing costs orders be discharged.
3.By consent, the Cross-Action is dismissed.