Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors [2016] NSWSC 1779 | Case summary

Supreme Court of NSW|2016-12-08|Before: Kunc J, Lindsay J

Summary

The plaintiffs and the first defendant are the executors and trustees of the will of the late Grahame David Wright ("Mr Wright") made on 27 June 2014 (the "Will"). By summons filed on 15 July 2016, the plaintiffs seek declarations as to the proper construction of certain parts of the Will and, if necessary, orders for rectification.
The proceedings raise four questions: 1. Whether, upon the proper construction of the Will, references to "descendants" and "children" include Mr Wright's step-grandchildren? 2. Whether an order extending the time for making the present application for rectification under s 27 of the Succession Act 2006 (NSW) (the "Act") should be granted? 3. Whether certain clerical errors in relation to the identity of the trustees of trusts created by the Will should be rectified? 4. Whether the references to "descendants" and "children" in the Will should be rectified to make it clear that they include Mr Wright's step-grandchildren?
As a result of directions made by Lindsay J sitting as Probate Judge on 15 August 2016, all persons interested in these questions (including the step-grandchildren) are represented today before the Court. They all agree that the relief sought by the plaintiffs should be granted. That agreement does not relieve the Court of its obligation to be satisfied that the relief, or any other relief, should be granted.
The Court notes with gratitude that both the evidence and submissions have been thoroughly prepared and presented by the legal representatives of the plaintiffs. That enables the matter to be dealt with today in relatively short compass. The plaintiffs were represented by Mr T Maltz of Counsel. The defendants appeared for themselves. The brevity with which I propose to deal with the matter is not intended to diminish the assistance which the Court has derived from the careful and compendious submissions that have been presented by counsel.

The facts

Without any disrespect intended, I shall refer to the various family members who feature in these reasons, other than Mr Wright, by their given names. The Court finds the facts as set out in paragraphs [6] to [21] below.
Mr Wright married his wife, Lesley, in 1983. In that year, their son David was born. Later they had a second son, James.
At all material times, James and his wife had one child, Banjo. On the other hand, David, with his wife Tara, now have four children. Tara brought her own natural children from a previous relationship, Makayla and Maddyson, to her relationship with David. David and Tara then had their own daughter, Hannah. At the time of Mr Wright's death, Tara was pregnant with her and David's second child, who was subsequently born and is named Lucy. These proceedings are about whether or not Makayla and Maddyson - David's step-children - were intended by Mr Wright to be beneficiaries of a testamentary trust established by the Will.
Mr Wright was a very successful businessman. However, like many people, he resisted the frequent encouragement of his solicitor, Mr Gregory Judd, and his accountant, Mr Christopher Kirkwood, to make a will. Unbeknown to either of them, Mr Wright had, in fact, made a will some years before his final illness, but nothing turns on that.
When Tara and David commenced their relationship in December 2008, Mr Wright immediately welcomed Makayla and Maddyson (and Tara) as members of his family. Mr Wright doted on Makayla and Maddyson, as he did on his other grandchildren. There is uncontested evidence as to the nature of Mr Wright's relationship with Makayla and Maddyson, which includes (and the Court accepts) that: 1. Mr Wright was affectionate towards them (a familial affection which was clearly reciprocated by them to him) and this manifested in his giving many gifts to them. It appears that other family members, from time to time, had to suggest to Mr Wright that he should curb his enthusiastic benificence to all of his grandchildren, including Makayla and Maddyson. 2. Mr Wright said to his son, David, that he (Mr Wright) encouraged David to take good care of Makayla and Maddyson because they were now "your [David's] responsibility". 3. Mr Wright, and other members of the family, never used the expression "stepchildren" in relation to Makayla and Maddyson. 4. Mr Wright, and other members of the family, compendiously referred to all of David's children, including Makayla and Maddyson, as "the kids", "the children" and "the grandchildren".
By reason of the matters referred to in the preceding paragraph, the Court finds that, at all material times, Mr Wright regarded Makayla and Maddyson without discrimination as members of his extended family and intended to benefit them as such in the Will.
Mr Wright suffered from ill health for many years. That poor health reached a crisis in late June 2014, at which time Mr Wright was in Hunters Hill Private Hospital.
The crisis in Mr Wright's health precipitated a meeting attended by Lesley, David and James at the offices of Mr Judd on 26 June 2014 to give Mr Judd instructions, on Mr Wright's behalf, in relation to the Will. At that meeting, they conveyed to Mr Judd that they had seen Mr Wright and that he wanted a third of his estate to be held for each son and "his [each son's] family", with Lesley to have a life interest in the final third of the estate. Mr Judd confirmed during the course of that meeting that those instructions were consistent with what Mr Wright had previously told him were his testamentary wishes on those occasions when Mr Judd had attempted to persuade Mr Wright to make a will.
Mr Judd sought instructions from David and James as to the names of their children. On the same day, 26 June 2014, David sent an email to Mr Judd, which included the names of Makayla and Maddyson as among those who, at least as David understood it, Mr Wright intended to benefit. However, it does not appear that Mr Judd ever saw that email, probably because events moved very quickly.
Mr Judd himself was not told by anyone that of David's children, two were stepchildren. In the limited time Mr Judd had to draft the Will, he did not independently identify that fact.
Mr Judd prepared the Will urgently. On the next day (27 June 2014), Mr Judd attended Hunters Hill Private Hospital with the draft Will. Other family members were present at the time.
Mr Judd went through the terms of the draft Will with Mr Wright. There is no question that Mr Wright had testamentary capacity at the time.
Mr Judd's evidence (which the Court accepts) is that in taking Mr Wright through the terms of the draft Will, he said to Mr Wright (after referring to Lesley's one-third life interest): "The other two thirds of your estate go equally to a trust for David and his family and a trust for James and his family. Those trusts are discretionary trusts and will allow distributions to their wives, children and their descendants. The trustees of each trust are to be the two boys and Chris Kirkwood."
Either by not objecting, or by express affirmation, Mr Wright indicated his assent to the various provisions of the draft Will as they were explained to him by Mr Judd, including in relation to the testamentary trusts. Mr Judd particularly recalls reading to Mr Wright the definition in clause 10 of the draft Will (see paragraph [20] below) which speaks of "children" and "descendants".
Mr Judd also recalls that Mr Wright said after Mr Judd had explained the provisions of the draft Will, but before Mr Wright signed it: "Mr Judd: "Grahame, are you happy with these provisions in your will?" Mr Wright: "Yes, that's what I want. Lesley is looked after and the business will be with James and David and their children"."
Mr Wright then executed the Will, which includes: "2. I APPOINT my wife Lesley Ruth McPherson of 3 Stack Street, Balmain East, in the State of New South Wales, my two sons David Charles Wright of 16 Starguard Crescent, Picton in the State of New South Wales and James McPHerson Wright, 31 Cecily Street, Lilyfield in the State of New South Wales and my accountant Christopher David Kirkwood of Level 18, 55 Market Street, Sydney in the State of New South Wales (hereinafter collectively and jointly called "my Trustees") joint executors and trustees of this my Will PROVIDED HOWEVER should any of my Trustees predecease me THEN I APPOINT the survivors of them as my joint executors and trustee of this my Will PROVIDED HOWEVER should only one of them survive me THEN I APPOINT him or her as my sole executor and trustee of this my Will. In such circumstances any reference to my Trustees shall be a reference to those survivors or that survivor as the case may be. … 5. SUBJECT TO CLAUSES 3 AND 4 HEREOF I GIVE DEVISE AND BEQUETH the whole of my estate unto my Trustees UPON TRUST:- a) Firstly, to pay all my just debts, funeral and testamentary expenses; b) Secondly, to hold the balance of the whole of my estate ("My Residuary Estate") as follows:- i. As to one third of My Residuary Estate to be held on Trust for my Wife Lesley Ruth McPherson, whilst she is alive and after her death to be divided equally and each half to be held on Trust pursuant to the separate Testamentary Trusts established in this my Will respectively for my sons David Charles Wright and James McPherson Wright, their respective spouses and their respective descendants. ii. As to one third of My Residuary Estate to be held on Trust for my Son David Charles Wright, his spouse and his descendants (the David Wright Testamentary Trust). iii. As to one third of My Residuary Estate to be held on Trust for my Son James McPherson Wright, his spouse and his descendants (the James Wright Testamentary Trust). … 10. THE FOLLOWING words and phrases shall have the following meanings:- … ● "beneficiaries" shall mean where applicable:- ◌ In respect to the David Wright Testamentary Trust, my Son David Charles Wright who shall be the primary beneficiary of that trust, his spouse, his children and grandchildren and their descendants living prior to the vesting date. ◌ In respect to the James Wright Testamentary Trust, my Son James McPherson Wright who shall be the primary beneficiary of that trust, his spouse, his children and grandchildren and their descendants living prior to the vesting date. … 11. Trustees and Appointors of the Testamentary Trusts I DECLARE, EMPOWER AND DIRECT, as the case may be, my Trustees in respect to:- a) The David Wright Testamentary Trust, the initial trustees shall be my Trustees PROVIDED THAT after the division of my Residuary Estate between my Wife, Lesley Ruth McPherson and the two Testamentary Trusts for my Sons, the Trustees of the David Wright Testamentary Trusts shall be, David Charles Wright together with Christopher David Kirkwood or my Son James McPherson Wright may jointly remove, replace, or appoint new Trustees or appoint in their place a corporate Trustee to the David Wright Testamentary Trust. PROVIDED FURTHER that my Son David Charles Wright together with Christopher David Kirkwood or my Son James McPherson Wright may appoint in their place and in the place [sic] and in the place of either Christopher David Kirkwood or James McPherson Wright (as the case may be) a corporate appointor of which at least one of David Charles Wright, James McPherson Wright and Christopher David Kirkwood are directors. b) The James Wright Testamentary Trust, the initial trustees shall be my Trustees PROVIDED THAT after the division of my Residuary Estate between my Wife, Lesley Ruth McPherson and the two Testamentary Trusts for my Sons, the Trustees of the James Wright Testamentary Trusts shall be James McPherson Wright together with Christopher David Kirkwood or my Son David Charles Wright may jointly remove, replace, or appoint new Trustees or appoint in their place a corporate Trustee to the James Wright Testamentary Trust. PROVIDED FURTHER that my Son James McPherson Wright together with Christopher David Kirkwood or my Son David Charles Wright may appoint in their place and in the place [sic] and in the place of either Christopher David Kirkwood or David Charles Wright (as the case may be) a corporate appointor of which at least one of James McPherson Wright, David Charles Wright and Christopher David Kirkwood are directors."
Mr Wright died on 31 August 2014.
On 29 July 2015, probate of the Will was granted to the plaintiffs and the first defendant. The original grant of probate has been surrendered to the Court for the purposes of these proceedings.

Construction

I set out the general principles relating to the construction of wills (including what is often referred to as the "armchair" principle) in my judgment in Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors (No 2) [2014] NSWSC 1059: "40. The parties were not in dispute as to the applicable principles governing the construction of the Gifts. I respectfully adopt the well known summary by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 273-276 (citations omitted): 1. Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used (Lord Cranworth in Abbott v. Middleton; Lord Wensleydale in the same case). 2. The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it (Lord Halsbury L.C. in Leader v. Duffey; Ward v. Brown; Buckle L.J. in Kirby-Smith v. Parnell). 3. If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared (Towns v. Wentworth); Hawkins on Wills, 2nd ed., at p. 6). 4. An inference cannot be made "that did not necessarily result from all the will taken together" (Sir R. P. Arden M.R. in Upton v. Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James L.J. in Crook v. Hill). 5. We cannot give effect to any intention which is not expressed or plainly implied in the language of" the "will" (Lord Watson in Scalé v. Rawlins). You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication (Lord Brougham L.C. in Langston v. Langston). 6. If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made (Knight Bruce L.J. in Pride v. Fooks). 7. When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy (Page Wood V.C. in Hope v. Potter). 8. There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense ...), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention (Lord Brougham L.C. in Langston v. Langston). 9. If on reading the will you can see some mistake must have happened, that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself (Langston v. Langston). 10. The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills (Lord Shaw in Lightfoot v. Maybery). In ascertaining the intention, I ought to a certain extent-we all know what the expression means-to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary (Buckley L.J. in Kirby-Smith v. Parnell). 41. While their relative antiquity has not dimmed the applicability of Isaacs J's observations, I also respectfully adopt the more recent summary of Austin J in Hyde v Holland [2003] NSWSC 733, particularly for its helpful exposition of what is sometimes referred to as the "armchair" principle: 24 The Court's task in construing a will was well described by Blackburn J in Allgood v Blake (1873) 8 LR Ex 160, at 162-4. His Lordship said: "A general rule is that in construing a Will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the Will, and then to decide what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words.... No doubt in many cases the testator has for the moment forgotten or overlooked material facts and circumstances which he well knew. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the Court is to construe the Will as made by the testator, not to make a Will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has, by blunder, expressed what he did not mean.... We apprehend that no precise line can be drawn, but that the Court must, in each case, apply the admitted rules to the case in hand; not deviating from the literal sense of the words without sufficient reason, or more than is justified; yet not adhering slavishly to them, when to do so would obviously defeat the intention which may be collected from the whole Will." 25 A court of construction cannot omit or insert words, and will not admit evidence showing that different words were intended to be used in the will: Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639, at 645, 651. Words are usually given their ordinary grammatical meaning, but this depends on the context: Towns v Wentworth [1858] EngR 371; (1858) 11 Moo PC 526 [14 ER 794]; Perpetual Trustee Co Ltd v Archbold [1946] NSWStRp 23; (1946) 46 SR (NSW) 327. 26 Pursuant to the principle of construction sometimes called the "armchair" principle, extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator's situation at the time of the will and the context in which he expressed his testamentary intention: Boyes v Cook (1880) 14 Ch D 53, at 56; Day v Collins [1925] NZLR 280; Harris v Ashdown (1985) 3 NSWLR 193. 27 Counsel for both defendants referred me to the well-known presumption against an intestacy, by which a court will lean against finding an intestacy and will not presume that the testator meant to die partially intestate if, on a fair construction, there is reason for saying the contrary: Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, at 275-6; Kirby-Smith v Parnell [1903] 1 Ch 483, 489-490. Consequently the Court will lean to avoid the finding that a gifts is uncertain and void, and where there is only a slight reason to favour one ambiguous construction over another, the Court will do so if that construction avoids intestacy, on the basis that it is closer to the testator's intention than intestacy: Re Ansell; Wardlaw v Ekblade [1947] TASStRp 5; [1947] Tas SR 36; Gerhardy v South Australian Auxiliary to British and Foreign Bible Society Inc (1982) 30 SASR 12, at 26. 28 However, the presumption against intestacy is not a strong presumption, and the Court should not "lean too heavily against a construction that produces an intestacy; and certainly cannot, in order to avoid that result, misconstrue the language of the instrument": Re Wragg Dec'd [1959] 1 WLR 922, at 929 per Lord Evershed MR; Marks v Pope [2001] NSWSC 105 (5 March 2001), paragraph [17] per Young J. In Re Wragg a professionally drafted will provided that the trustees were to hold the estate on trust to pay a weekly sum to the widow, and another weekly sum to the deceased's brother, and "after the death of" the widow, and after setting aside a sufficient part of the estate to pay the brother's annuity, to divide the residuary estate into seven parts. Although Lord Evershed acknowledged a "natural inclination against a result that means that the draftsman left a lacuna in his draft", the Court held that, on the proper construction of the will, the surplus income was not disposed of during the wife's life."
To that summary of the common law must be added s 32 of the Act: "32 Use of extrinsic evidence to construe wills (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will: (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances."
The Court accepts Mr Maltz's submission that the references to "descendants" in clauses 5 and 10 of the Will and "children" in clause 10 of the Will, are ambiguous on the face of the Will (see s 32(1)(b)) and ambiguous in the light of the surrounding circumstances - those circumstances being the existence of Makayla and Maddyson - (see s 32(1)(c)). Section 32 is therefore engaged.
The Court was taken to a number of cases dealing with the interpretation of wills in the case of stepchildren. These focused on the word "child" or "children". However, it seems to me that the same considerations apply to the proper construction of both "descendants" and "children" as used in the Will.
Many authorities have recognised that the meaning of "child" or "children" in contemporary society can be much wider than its original legal meaning of children by blood. However, for my part I do not think that the natural and ordinary meaning of "child" or "descendant" in contemporary Australian usage has reached the point where, without more, they necessarily include stepchildren. I respectfully adopt what fell from Davies AJ in Estate of Jack Alexander Warren [2001] NSWSC 104. His Honour reviewed a number of the cases dealing with the meaning of "children" where it had been held to include stepchildren, but nevertheless concluded: "6 Notwithstanding his Honour's words, which were not adopted by his colleagues, Priestley JA who dissented on this point and McHugh JA, I consider that, in a will, the word "children" should ordinarily be read as referring to natural children for that is its primary meaning, but that other persons should be included within the term when legislation so requires or when the terms of the will or evidence show that there is reason for doing so. Thus, in Jarman On Wills, Eighth Edition, at p 1659, it is said:- "But a gift to 'children' may take effect in favour of step-children, if circumstances show that that was the testator's intention. Thus in Re Jeans 72 LT 835, a testator had been married for thirteen years and had no children of his own; he and his wife were each about sixty years old when he made a will in favour of his `children': it was held that his step-children, whom he had treated as his own children, were entitled under the gift." "
Notwithstanding adherence to what might be seen as the traditional meaning of the word "children", the Court has no doubt that in today's society in particular cases its meaning readily extends to stepchildren. As Davies AJ pointed out, that result may be brought about "when legislation so requires or when the terms of the will or evidence show that there is a reason for doing so". In my respectful view, the evidence in this case (see, in particular, paragraph [9] above) makes it clear by application of the armchair principle that, in referring to either "descendants" or "children", Mr Wright intended to include Makayla and Maddyson. He considered them to be an integral part of his extended family and, more importantly perhaps for present purposes, an integral part of his son David's family.
For this reason, the Court construes those terms in accordance with the conclusions just expressed. However, this seems to me to be a case where, if it can be done, it would be desirable to rectify the Will to reflect those conclusions in terms. I respectfully adopt this observation made by J C Campbell J (as his Honour then was) in Rawack v Spicer [2002] NSWSC 849 ("Rawack") at [25]: "It is possible for rectification of an unclear clause in a will to be granted ex abundanti cautela, where rectification makes clear the testator's intention, even if the clause which the testator actually executed, on its proper construction, means the same as the clause as rectified: Application of Spooner: Estate JJ Davis (Hodgson J, 28 July 1995, unreported); Estate of Cross (McLelland CJ in Eq, 9 May 1996, unreported)."
The orderly and efficient administration of the estate will be facilitated if the Will can be rectified so that it expressly includes Makayla and Maddyson.

Rectification - leave

Section 27 of the Act provides: "27 Court may rectify a will (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because: (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions. (2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. (3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if: (a) the Court considers it necessary, and (b) the final distribution of the estate has not been made."
These proceedings were commenced more than 12 months after Mr Wright's death. The reasons given for that delay do not bespeak tardiness or negligence on the part of the plaintiffs and first defendant. The effect of the Will had to be appreciated and considered. Instructions had to be sought. Mr Judd's file had to be obtained by the plaintiffs' solicitors. Statements of evidence had to be garnered. In short, the delay in bringing the proceedings is not a delay of the kind that would prevent an extension of time being granted. Furthermore, it is common ground that no one is prejudiced by an extension of time.
The Court's discretion to extend the period of time for the making of an application under s 27 is engaged if the Court is satisfied of two matters.
First, I am satisfied that it is necessary for an extension of time to be granted. This is a matter where it is clear that the Will does not reflect the intentions or instructions of Mr Wright insofar as the position of Mikayla and Maddyson is concerned. There are also clerical errors (to which I will come) which need correction. For the application to be made time must be extended and, therefore, it is necessary.
The second precondition is that "the final distribution of the estate has not been made". The evidence makes it clear that, advisedly, a number of steps necessary to finalise the distribution of the estate have deliberately not been taken to ensure that s 27(3)(b) of the Act is satisfied. Accordingly, the final distribution of the estate has not been made.
By reason of the matters referred to in the preceding paragraphs, the Court is satisfied that an order extending the period of time for the making of the present application should be made.

Rectification - clerical errors

In applying s 27, I respectfully adopt the observations on the construction of that section made by Barrett J (as his Honour then was) in Vescio v Bannister [2010] NSWSC 1274; (2010) 3 ASTLR 619: "13 In the present case, the will was drawn by a solicitor. There is evidence about the communication by the deceased to the solicitor of "instructions", in the sense of expression by her of her wishes as to how her estate should be disposed of by the will the solicitor was asked to prepare. The court thus has a basis for making findings as to the content of "the testator's instructions". 14 Having ascertained "the testator's instructions", the court must construe the will as executed and compare its effect, according to its proper construction, with those "instructions": ANZ Trustees Ltd v Hamlet [2010] VSC 207 at [3]; and see the course of analysis and comparison in The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 QdR 26. Only if some discrepancy appears can an order be made under s 27; and the only permissible order is one that causes the will to be in a form that carries out the testator's "intentions". 15 It follows that the court must also make findings about the "intentions" of the testator - necessarily, of course, the "intentions" existing when the will was made. It is those "intentions" that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the "intentions" of the testator correspond, as to content, with "the testator's instructions". I say this because, in the ordinary course, a testator's intention is that his will should implement the instructions he gives for its preparation. It is with that intention that s 27(1)(b) is concerned. This seems to have been assumed in both Re Hawkes [2005] VSC 93 (at [17]) and Lawler v Herd [2010] QSC 281."
The evidence which I have set out in paragraphs [17] to [19] above demonstrates that Mr Wright gave instructions that there should be three trustees of his sons' testamentary trusts, namely David, James and the family accountant, Mr Kirkwood. As Barrett J points out, the section requires there to be, at least, a correspondence between the testator's instructions and the testator's intentions. The Court finds that not only did Mr Wright give instructions for those three persons to be the testamentary trustees but that that was also his intention.
The Court accepts Mr Judd's evidence that in clause 11 of the Will (see paragraph [20] above) typographical errors were made which have the effect, on their face, of incorrectly describing who the trustees of those trusts are to be. The Court will make orders rectifying those errors so that in clause 11 of the Will, David, James and Mr Kirkwood are consistently referred to, together, as the trustees of those trusts.

Rectification - "descendants" and "children"

I have referred in paragraph [29] above to the decision in Rawack for the proposition that the Court may rectify a will, out of an abundance of caution, to enable it better to reflect in terms the construction which the Court has found applies. As Mr Maltz correctly submitted, construction precedes rectification.
Having determined the proper construction of the Will, it might be asked how s 27 of the Act is satisfied in those circumstances. Rawack concerned the predecessor to s 27 of the Act, being s 29A of the Wills, Probate and Administration Act 1898 (NSW), which was enlivened if the Court was satisfied a will "fails to carry out the testator's intentions". In my respectful view, that same conclusion applies to s 27 of the Act because the expression "the Court is satisfied the will does not carry out the testator's intentions" in s 27 should be read as including a situation where the assistance of the Court has been required to determine the true construction of a will. It may readily be inferred that in the ordinary course a testator intends her or his will to be sufficiently clear that those interested in the matter are not required to ask the Court to construe it.
For the same reason, the requirement for the Court to be satisfied that "the will does not give effect to the testator's instructions" (see s 27(1)(b)) is to be understood as encompassing a situation where a will has not given effect to the testator's instructions without the intervention of the Court. Again, the obvious inference is that there is to be implied into a testator's instructions that his or her intentions are to be expressed in a way that does not require judicial exposition.
With that understanding of how s 27 can operate out of an abundance of caution, the Court is satisfied by reason of the matters set out in paragraphs [9] and [17] to [19] above, that Mr Wright gave instructions that David's stepchildren, Makayla and Maddyson, should be included as beneficiaries of his son David's testamentary trust. Given that the Court has been required to intervene to construe the Will, the prerequisites for the Court to make an order to rectify the Will are satisfied.
For these reasons, the Court will order the Will to be rectified so as to make clear, in terms, that Mikayla and Maddyson are included within the expressions "descendants" and "children" in clauses 5(b)(ii) and 10(b)(i) of the Will.

Relief

In addition to an order extending time, the Court will make orders rectifying the Will by reference to a rectified version of the Will which I will initial and date today for the purposes of identification. A question arises as to what is to happen to the current grant of probate, which has been surrendered to the Court for the purposes of these proceedings. As a matter of good order, it seems to me that the appropriate course to give effect to the Court's conclusions is that the Court should revoke the current grant of probate and order that probate in solemn form be granted to the executors and trustees appointed under the Will as rectified.
The plaintiffs are entitled to an order that they have their costs out of Mr Wright's estate on the indemnity basis. The other parties appeared in person and do not seek costs.

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Wills, Probate and Administration Act 1898(NSW)

Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors

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Judgment (8 paragraphs)

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