Wesley v Wesley No. Scgrg-97-1297 Judgment No. S6560
[1998] SASC 6560
•23 February 1998
WESLEY v WESLEY
Debelle J
Application for rectification of a will
Raymond George Wesley (“the testator”) died testate on 27 November 1996. On 6 March 1997 probate of his will was granted to his sister, Ms J A Wesley (“the executrix”). The will was made on 13 December 1995.
By clause 3 of his will the testator gave the whole of his estate to the executrix as trustee on trust to pay his debts and any legacies provided by his will and to hold the residue on trust for eight named persons. The will contained no legacies. Clause 3 is expressed in these terms:
“3..... I GIVE DEVISE AND BEQUEATH to my trustee the whole of my estate both real and personal which is not hereby otherwise disposed of and I DIRECT my trustee to pay thereout my funeral and testamentary expenses and debts and the legacies (if any) bequeathed by this my will and all the duties referred to in clause 5 of this my will AND SUBJECT THERETO my trustee shall stand possessed of the residue thereof (which together with the money investments and other assets for the time being representing the same are herein called ‘my residuary estate’) UPON TRUSTS for such of SHANE PETER MILLER, ROBYN SHARI MILLER, STACEY LEE MILLER, CHRISTOPHER JOHN MILLER, JOSHUA MICHAEL MILLER, HAYDON PRATT, ANDREW BULLOCK, and MICHAEL LITTLE absolutely if they survive me by at least 28 days and is(sic) more than one equally between them.”
The first five named beneficiaries are children of the testator’s cousin, Mr G L Miller. The remaining three are nephews of the testator. Shane Peter Miller is an adult. The other named beneficiaries are all minors. The net value of the estate is just over $200,000.
The testator had a niece living at his death. He has not included her as a beneficiary. In addition, after his death, two further nephews were born. The mothers of both were pregnant at the date of the death of the testator. It is convenient to set out the testator’s family.
The testator did not marry. He had no children. He had four sisters and one brother. His sisters are the executrix, Julie Anne Wesley, and Terrie Lee Wesley, Kaye Dianne Carter and Robyn Wendy Wesley. His brother is David Keith Wesley. The three nephews and niece living at the date of the death of the testator were
Date of Birth
Haydon Pratt
(son of Kaye Dianne Carter) 9 November 1984
Andrew Bullock
(son of executrix) 16 September 1986
Michael Grant Little 19 November 1991
Natasha Deane Little 26 July 1993
Michael and Natasha Little are brother and sister and are the children of Terrie Lee Wesley. The two further nephews who were born after the death of the testator were Benjamin Raymond Wesley, the son of David Keith Wesley, and Cameron Stuart Wesley, the son of Robyn Wendy Wesley. The date of birth of each has not been proved but it is common ground that their mothers were pregnant when the testator died. I will, for convenience, refer to these two nephews as “the posthumous nephews”.
In this application the executrix initially asked for orders that the will be interpreted so that the beneficiaries include the children of Mr Miller and all of the nephews and nieces of the testator including those unborn at the date of the death of the testator. The application was bound to fail. The gift of the residue is made to eight named persons. Clause 3 does not designate any class of persons to be beneficiaries. This conclusion is reinforced by the fact that the testator has named as beneficiaries not only persons chosen from his nephews and nieces but also the children of his cousin. When interpreting the will, the court must interpret the words used by the testator. The terms of the will are clear. There is no ground for departing from them. No person other than the named beneficiaries would have been entitled to take under the terms of the will as drawn.
On 28 November 1997, the executrix amended the application and sought rectification of the will pursuant to s25AA of the Wills Act, 1936. As the application was out of time, the executrix applied for an extension of time pursuant to s25AA(2). All parties consented to the application. The application is a little more than two months late. There has been no distribution to the beneficiaries. It is appropriate, therefore, to extend the time to the date when the amended application was made, that is to say, to 28 November 1997.
Power to Rectify
Section 25AA of the Wills Act authorises the court to rectify a will where it is satisfied that the will does not accurately reflect the testator’s intentions. Section 25AA is expressed in these terms:
“(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 of those intentions.”
Sub-sections (2) and (3) deal with procedural and other matters. 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. The power to rectify in s25AA is very similar in terms and effect to that in s29A of the Wills, Probate & Administration Act, 1898 (NSW). Like provisions exist in other jurisdictions, for example, s20 of the Administration of Justice Act, 1982 (UK) and s31 of the Succession Act, 1981 (Q). It is open to argument that the power in s25AA is wider in operation than either of the latter provisions. It is, however, unnecessary to explore that issue here.
This statutory power alters the common law. Prior to the enactment of s25AA, although it was possible to omit words from a will in certain circumstances, the general doctrine of rectification in equity was not available. Words could be struck out but no words could be inserted: Re Hemburrow [1969] VR 764; Re Reynett-James [1975] 3 All ER 1037, and mere severance would be refused where it would alter the sense of the remaining words: Re Horrocks [1939] P 198; Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346, 351. If the court is to be able to exercise the power, it must be satisfied as to the testamentary intentions of the testator. Counsel invited me to examine the circumstances in which the court should exercise the power to rectify and the constraints upon that power. I do not think it prudent to accede to that invitation, particularly as all of the relevant issues were not argued. It is better that I confine this judgment to what is necessary to decide the issues in this application. Some articles on the nature of the power have been published. They include Richard Bullen, Changes to the Law Relating to Will Making, a paper presented at the University of Adelaide on 5 September 1994; Malcolm Voyce, “Statutory Reform of Rectification of Wills in N.S.W.” (1992) 8 Australian Bar Review 49; C J Rowland, “The Construction or Rectification of Wills to Take Account of Unforeseen Circumstances Affecting Their Operation” (1993) 1 Australian Property Law Journal, 87 and 193.
The terms of s25AA plainly countenance evidence as to the terms of the instructions. Generally speaking, in the absence of such evidence, it will not be possible to determine the testamentary intention. In its report which led to the enactment of s20 of the Administration of Justice Act, 1982 (UK), the Law Reform Committee in England concluded that, although the standard of proof should be high, there should be no rigid restrictions on the nature of the evidence to be admitted or its weight: see the Law Reform Committee, 19th Report on the Interpretation of Wills, 1973, Cmnd 5301 cited in Williams at p58. The standard of proof will, of course, be proof on the balance of probabilities. The court will carefully examine the evidence because the will has been signed by the testator and it is to be presumed that he read the will before signing it and approved its terms. In addition, the will is the expression of the intention of a deceased person who is not available to give evidence. In applications of this kind, the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363, particularly at 361, will be a helpful, if not salutary, reminder of the required standard of proof.
Where, as here, the will has been prepared by a solicitor, one means of ascertaining the testator’s intention is to admit evidence of the testator’s instructions to his solicitor. In this case, the testator’s instructions to his solicitor, Mr Wadlow, were proved. Evidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.
The Relevant Date
Generally speaking, the relevant date at which the court must determine the testator’s intention will be the date when the will was made, for it is then that the testator has executed a will pursuant to his instructions. Alternatively, it is the day when the testator has executed a will dictated to an emanuensis. In The Estate of Spinks (unreported), Needham J at first instance held that the relevant date was the date when the will was made. On appeal, the Court of Appeal in New South Wales noted the view of Needham J and did not question it: Estate of Spinks (unreported, 12 December 1991 No 40544/90). The decision is noted in Butterworths Unreported Judgments Mortensen and Eassie v State of New South Wales (1997) BC 9101347.
A Word Change
It is convenient to deal first with an obvious clerical or typographical error at the end of clause 3. Having named the beneficiaries, the clause concludes:
“if they survive me by at least 28 days and is more than one equally between them”. (Emphasis added)
The word “is” is plainly intended to be “if”. It is reasonable to assume that the testator intended that the terms of his will would be able to operate effectively and that any nonsensical phrase or words would be rendered sensible. The phrase “and if more than” is commonly used to introduce a clause providing how a gift is to be shared between more than one person. It is proper, therefore, to alter the word “is” to “if”.
The Evidence
Three affidavits were sworn deposing to the intentions of the testator. It is convenient to refer first to the affidavit of the testator’s solicitor, Mr Wadlow, who prepared the will and an earlier will on behalf of the testator. On 8 September 1994 the testator gave instructions to Mr Wadlow to prepare what was to be the first of two wills. Those instructions were to appoint Ms C A Dawes, his then de facto wife, as his sole executor and, in the event of her predeceasing him, to appoint Ms J A Wesley as executrix. He instructed Mr Wadlow that he wished to make a bequest of $20,000 to his nephews and nieces. The relevant part of the notes made by Mr Wadlow read:
“Bequeath $20,000 to nephews and nieces.
Haydon Pratt
Andrew Bullock
Michael Little
or such other children of my siblings to be divided equally.Should a nephew or niece predecease, their share to be divided equally between the others.”
The instructions concluded with a note that the residue of the estate was to be given to Ms Dawes. A will was prepared pursuant to those instructions.
The testator terminated his relationship with Ms Dawes and, on 11 December 1995, gave Mr Wadlow instructions to prepare a fresh will. He instructed Mr Wadlow to remove Ms Dawes from the will and include his nephews and nieces and the children of his cousin, Mr G L Miller, as beneficiaries of his residuary estate. He listed the names of the children of Mr Miller. He appointed Ms Julie Wesley executrix. Mr Wadlow’s note of the instructions reads:
“delete Caroline Dawes
nieces+nephews/cousins
Shane Peter Miller 31/7/79
11 Alec Way
Salisbury East
Robyn Shari M. 26/6/81
Stacey Lee M. 10/8/86
Christopher John M. 3/7/87
Joshua Michael M. 10/8/89
& same as before
E/or Julie Wesley”
It will be noticed that no instructions were given as to unborn children. The will prepared pursuant to those instructions is the subject of this application. There is no copy of the revoked will. Upon revocation, all copies were destroyed.
Pausing here, it is apparent from the two sets of instructions that the testator intended to benefit all his nephews and nieces who survived him. The notes of the instructions for the first will and, in particular, the note “or such other children of my siblings to be divided equally” following the list of the three named nephews clearly indicates that. In the absence of a copy of the first will, it can only be presumed that the will reflected that intention. The instructions for the second will are brief and a little cryptic. But Mr Wadlow says that the testator instructed him to include as residuary beneficiaries the testator’s nieces, nephews and the children of his cousin, Mr Miller. That evidence is entirely consistent with the note “nieces+nephews, cousins”. This evidence is of considerable weight particularly as it is the evidence of a disinterested witness. The note “& same as before” is difficult to interpret, particularly in the absence of a copy of the first will. Whatever its meaning, it does not alter the clear intention to benefit all nieces and nephews as well as Mr Miller’s children.
All of the nephews and nieces were less than 11 years old when the testator made his will. There was no suggestion that any one of those four children had become a favourite of the testator or that he had formed any dislike towards any one of them. In addition, if the testator was benefiting Michael Little, there is no reason why he should not also wish to confer a benefit on his younger sister, who was two years old when the will was made. It cannot be said that he intended to benefit only his nephews, since the instructions for the will indicated an intention to benefit nieces as well. Thus, the evidence of the testator’s instructions to Mr Wadlow are a strong indication that the testator intended, when making his will, to benefit all of his nephews and nieces as well as the children of his cousin, Mr Miller.
The executrix has sworn an affidavit stating that on several occasions the testator spoke to her about becoming executrix of his will. One of those occasions was in December 1995. She deposes that the testator then said that he was going to leave everything in his will to his nephews and nieces and to the children of their cousin Gary Miller. As the will was executed on 13 December 1995, this conversation took place at about the time when the testator executed his will. She also deposes that the testator repeated these wishes in a conversation in April 1996. This was further evidence of the testator’s intentions. Evidence of what the testator said at about the time when he made his will is probative of his intention. It is, therefore, admissible. It is to be weighed with the other evidence.
The executrix also asserts that, if the testator had turned his mind to the question of including unborn nephews and nieces of his estate, he would have done so. The evidence is inadmissible on a number of grounds. In particular, it is pure speculation on her part. Further, the question of the testator’s intention is an issue for the court to determine. The executrix then says that she has discussed the matter with her brother and sisters and that they all believe that the testator intended to benefit all of his nephews and nieces including unborn children. She adds that they all believe that it would be just and equitable to include Natasha Little and the two unborn children as beneficiaries. This evidence, also, is inadmissible on several grounds. It is not necessary to mention them all. The reference to discussions with her brother and sisters is hearsay. Further, it purports to state a conclusion without indicating the conversations justifying the conclusion. The executrix adds that her brother and sisters believe it would be just and equitable to include Natasha and the two unborn children as beneficiaries. That evidence, also, is inadmissible. While that may be the belief of the siblings of the executrix, it is for the court to determine, not what is a just and equitable distribution, but what the testator intended. Rectification is not a means by which a will is re-drawn to accord with what others believe to be a just and equitable distribution. It is for the purpose only of making a will accord with the proved intention of the testator.
The third affidavit was sworn by Terrie Lee Wesley, a sister of the testator. She is the mother of Michael Little and Natasha Little. She says that on about 23 December 1995 the deceased came to her home for a Christmas celebration. She says that he then spoke to her about his will, saying that he wanted to leave everything to his nephews and nieces and to Mr Miller’s children. She adds that he said that he had just noticed that her daughter Natasha had been omitted from his will and that he said that he had forgotten her. In her affidavit, she says that she did not wish to talk about wills at Christmas and said “Don’t worry about it”. This evidence is admissible. It is probative of the testator’s intention. It does not have the same probative weight as the evidence of the instructions to Mr Wadlow. It is to be noted that, despite his expressed intention to alter his will, the testator failed to do so.
To summarise, the testator’s solicitor has proved an intention that the whole of the residuary estate is to be divided between the testator’s nephews and nieces and the children of his cousin. The evidence of the executrix and her sister, Terrie, of conversations close to the time when the will was made entirely confirms that evidence. I, therefore, find that the testator’s intention was to divide his residuary estate equally between the children of his cousin, Mr Miller, and his nephews and nieces who survived him for 28 days. There is no evidence to suggest that the testator intended to omit Natasha Little as a beneficiary. Instead, the evidence indicates that he intended to benefit his nephews and nieces as a class and that he has inadvertently omitted her. I am satisfied that, when the testator named intended beneficiaries in the course of his instructions to Mr Wadlow, he did not intend to cut down or restrict those of his nephews and nieces who would share his residuary estate. That conclusion is amply justified by the reference in the instructions to nieces as well as to nephews. For these reasons, I find that the will does not accurately give expression to the testamentary intentions of the testator in that it excluded Natasha Little as one of the residuary beneficiaries. The will should, therefore, be rectified to give effect to the intention to benefit all of the testator’s nieces and nephews.
The Posthumous Nephews
I turn to the question of the posthumous nephews. It is a rule of construction that, when interpreting a gift or condition referring to persons of a named relationship to the testator who are born, or living, at a particular time, that the description of the class includes a child en ventre sa mere at that time provided the child is afterwards born alive and would have come within the description: Elliot v Joicey [1935] AC 209 where the rule is considered at length by Lord Russell of Killowen. The rule of construction is a legal fiction and its operation was expressed by Lord Russell at pp233-234 in these terms:
“The law as settled by Villar v Gilbey [1907] A.C. 139 may (but subject to any special context in the document to be construed) be summed up thus: First, words referring to children or issue “born” before, or “living” at, or (as I think we must add) “surviving,” a particular point of time or event, will not in their ordinary or natural meaning include a child en ventre sa mere at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a child en ventre sa mere at the relevant date and subsequently born alive if, but only if, that fictional construction will secure to the child a benefit to which it would have been entitled if it had been actually born at the relevant date. Thirdly, the only reason and the only justification for applying such a fictional construction is that where a person makes a gift to a class of children or issue described as “born” before or “living” at or “surviving” a particular point of time or event, a child en ventre sa mere must necessarily be within the reason and motive of the gift. Fourthly, that being the only reason and the only justification for applying the fictional construction, it follows that, if the person who uses the words under consideration confers no gift on the children or issue described as above mentioned, but confers the gift on some one else, it is impossible (except in the light of subsequent events) to affirm either that the fictional construction will secure to the child en ventre sa mere a benefit to which if born it would be entitled, or that the child en ventre sa mere must necessarily be within the reason and motive of the gift made. In these circumstances the words used must bear their ordinary or natural meaning.”
See also the discussion in Williams on Wills, 7th edition at 695 to 697. Shortly stated, this rule of construction operates only if the interpretation is for the benefit of the unborn person and there is no context in the will indicating a contrary intention.
At the date of death of the testator, the two nephews born after his death were both en ventre sa mere. The rule in Elliott v Joicey would entitle them to an equal share in the testator’s estate with the other beneficiaries. As it is quite apparent that the testator intended to benefit all the nephews and nieces as well as the children of his cousin, Mr Miller, the testator is presumed to have intended to benefit those en ventre sa mere at his death. The question then arises whether this fictional interpretation is defeated by the words “and if they survive me by at least 28 days”. The intent of that proviso is only to divest the gift to any nephew or niece who does not survive the testator for that nominated period. It has been held that the fiction is not displaced by such words of limitation as “children who shall have been born and living at my decease”: Blasson v Blasson (1852) 2 De GJ & Sm 665, “such of the children of the marriage as should be living at the death of the father or mother”: Millar v Turner (1748) 1 Ves Sen 85, 27 ER 907, and “leaving any issue him or her surviving”: Elliot v Joicey. I do not think, therefore, that the rule is displaced by the requirement that a beneficiary should survive the testator by 28 days. For these reasons, the two posthumous nephews are included among the nephews and nieces and are residuary beneficiaries.
It is apparent from the testator’s instructions to his solicitor that he did not otherwise direct his mind to the question of unborn children generally or intended to benefit them. That is not uncommon among those making a will. Although the two posthumous nephews will take by dint of the rule in Elliot v Joicey, it is not possible to find an intention of the testator to benefit other nephews and nieces born after his death. The class of nephews and nieces, therefore, closed when the two posthumous nephews were born.
Conclusion
For all of these reasons I am satisfied that the will of the testator does not accurately reflect the intentions of the testator and that the will should be rectified to give proper expression to those intentions.
I respectfully adopt the procedure and the reasons therefor outlined by Williams J in Re Quick (unreported, 12 February 1996, Williams J, Jdt. No S5460). It is appropriate to recall the probate of the existing will and to grant probate of a fresh document which contains an indorsement of the order made under s25AA of the Wills Act. The will will be rectified by deleting all those words following the words “Michael Little” in clause 3 and substituting in lieu thereof the following:
“and such other of my nieces and nephews living at my death absolutely if they survive me by at least 28 days and if more than one in equal shares”.
It is unnecessary to rectify the will by including an express reference to the two posthumous nephews as they will share equally the residuary with the other residuary beneficiaries. The formal order will be:
Being satisfied that the will of Raymond George Wesley dated 13 December 1995 admitted to probate on 6 March 1997 does not accurately reflect the testamentary intentions of the said Raymond George Wesley and for the purpose of giving proper expression to those intentions
ORDER as follows:
That the said will be rectified by deleting all words following the words “Michael Little” in clause 3 and substituting therefor the following:
“and such other of my nieces and nephews living at my death absolutely if they survive me by at least 28 days and if more than one in equal shares”.
That probate of the said will granted on 6 March 1997 be revoked and declared null and void but all acts lawfully done by the executrix pursuant to this grant of probate remain valid notwithstanding this order of revocation.
That the executrix does forthwith deliver up to the Probate Registry of this court the probate parchment for cancellation.
That probate of the will as rectified by this order do thereafter issue to the executrix.
That the costs of and incidental to the said summons and this order be taxed as between solicitor and client and paid out of the estate of the testator.
I direct that this order be settled in the Probate Registry.
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