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 50Civil
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…
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CaseChat Overview and Summary
The central legal issue before the court was whether the will should be rectified to grant Christopher Mark Trenberth the first option to retain the balance of the deceased’s real property at 4 Tumby Terrace, Tumby Bay. The son argued that this provision was intended but omitted by mistake from the will. The executors opposed the application for rectification on the grounds that it was not clearly demonstrated that the omission was due to an error and that the son had failed to establish the necessary evidence to support his claim.
Justice Mortimer found that the son had met the burden of proof to demonstrate that the omission of the provision was a clerical error and that it was the intention of the deceased to include such a provision. The court considered the evidence provided by the son, including witness statements and the circumstances surrounding the drafting of the will, to be sufficient to warrant rectification. The court concluded that the evidence demonstrated a clear intention by the deceased to include the provision, and that the omission was likely due to an oversight rather than an intentional exclusion.
Consequently, the court allowed the application for rectification and made orders to amend the will accordingly. The will was rectified by inserting a clause granting Christopher Mark Trenberth the first option to retain the balance of the deceased’s real property. The court also discharged all existing costs orders and dismissed the cross-action by consent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
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