Succession - Wills probate and administration - Construction and effect of testamentary dispositions - Mistake or misdescription - In respect of object of gift - Misdescription as to relationship, Christian name, surname and sex.

First Respondent: E R Henry Wherrett & Benjamin

Judgment Number: [2000] TASSC 92

1 This is an application that was made pursuant to the Rules of the Supreme Court 1965 ("the 1965 Rules"), O65, r1 whereby the applicant seeks a determination of the question whether she is entitled to a share in the estate of the late Owen Forest Lord ("the deceased"). The deceased was her great uncle. He died on 6 July 1998. His last will was made on 30 March 1993. It has been admitted to probate. The first respondent is his executor and trustee.

2 The deceased left his whole estate to his wife, but she predeceased him. Clause 3 of his will made provision for that eventuality, and contained a substitutional gift in the following terms:

"... AND I GIVE DEVISE AND BEQUEATH the whole of my Estate both real and personal of whatsoever nature or kind and wheresoever situate and of or to which I shall be possessed or entitled at the date of my death unto my Trustee UPON TRUST for my grandsons the said IAN HOPWOOD, ANDREW HOPWOOD, LEN HOPWOOD and my great niece JENNIFER TUCKER for their own respective use and benefit absolutely as tenants in common in equal shares."

3 There was no one known to the deceased by the name of Len Hopwood. The deceased did not have any children or grandchildren. However, he and his wife brought up their nephew Raymond John Hopwood, and he has three children named Ian Hopwood, Andrew Hopwood, and Lynn Cuthbertson (nee Hopwood). They are respectively the first respondent, the second respondent, and the applicant. The applicant contends that the gift to "Len Hopwood" ought to be interpreted as a gift to her, even though (a) her Christian name is not Len but Lynn; (b) her surname has been Cuthbertson, not Hopwood, ever since her marriage 21 years ago; and (c) she is not a grandson of the deceased but a great niece. The first and third respondents contend that the gift to "Len Hopwood" is void for uncertainty. In so contending for his own benefit, the first respondent is acting inconsistently with his duties as executor and trustee of the estate, but I need say no more about that.

4 Mr Stevens submitted on behalf of the first and third respondents that the Court has no jurisdiction, on the basis that the only remedy available to the applicant is an action for rectification of the will pursuant to the Wills Act 1992. Such an action would now be statute barred. Under that Act, s47, if the Court is satisfied that there can be no reasonable doubt that a deceased person made an error in expressing testamentary intentions in his or her will, and as to the nature and effect of the error, the Court may revoke a grant of probate and substitute a fresh grant subject to such directions as appear to be necessary in order to give effect to the testamentary intentions of the deceased. Mr Stevens submitted that the enactment of this provision had the effect of impliedly repealing any earlier legislative provision as to the re-writing of wills so that, after the commencement of the 1992 Act, it was not open to the applicant to apply under O65, r1 for a determination to the effect that the gift to "Len Hopwood" ought to be interpreted as a gift to her. He argued that the 1965 Rules, O74A, which was made pursuant to the Wills Act, s49, was inconsistent with the provisions of O65, r1, and impliedly repealed that rule, or at least limited its operation so that it cannot apply in this case. Mr Stevens relied on the body of case law relating to the implied repeal of statutes by later inconsistent statutes. The 1965 Rules were not a statute but delegated legislation. However, an Act containing provisions that are inconsistent with an item of delegated legislation will render the latter invalid or ineffective: Pearce and Geddes, Statutory Interpretation in Australia, 4th ed, par 7.16.

5 The relevant provision in the 1965 Rules have been repealed and replaced by the Supreme Court Rules 2000 ("the 2000 Rules"). By virtue of the 2000 Rules, Sch 4, cl 2(2), those Rules now apply to this proceeding. Since the jurisdictional question concerns the status of the relevant provisions in the 1965 Rules at the time this application was filed, I will refer to the old Rules for the purpose of determining that dispute. There is no substantial difference between the relevant provisions of the 1965 Rules and the corresponding provisions in the 2000 Rules.

6 The relevant provisions in O65, r1 read as follows:

"Any trustee and any executor or administrator of a deceased person, and any person claiming to be interested in the relief sought as a creditor of a deceased person or as a devisee or legatee or one of the next-of-kin of a deceased person, or as otherwise taking a beneficial interest in the property of a deceased person, or as a cestui que trust under the trust of any deed, will, or other instrument, or as taking any beneficial interest in any property subject to any trust, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable before a judge in chambers for such relief of the nature or kind following as may by the summons be specified, and as the circumstances of the case may require, that is to say, the determination without an administration of the estate or trust of any of the following questions or matters: -

(a) Any question affecting the rights or interests of the person claiming to be a creditor, devisee, or legatee, or one of the next-of-kin of the deceased person, or otherwise beneficially interested in his property, or cestui que trust under the trust, or beneficially interested in the property subject to the trust;".

7 The originating application in this case expressly invoked O65, r1. The applicant could equally have relied upon O63, r1, which read as follows:

"Any person claiming to be interested under a deed, will, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested. "

8 Pursuant to the Civil Process Rules 1985, the reference in each Rule to an originating summons was required to be treated as a reference to an originating application.

9 It can be seen at once that the provisions of O65, r1 and O63, r1 are very wide in their scope, and that many different sorts of applications could be made under those rules apart from applications for the determination of questions of construction relating to wills.

10 In Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10, Barton J adopted the following statement as the test for whether a statutory provision is impliedly repealed:

"The Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, ie, the repeal must, if not express, flow from necessary implication."

11 There will be situations when provisions that appear to conflict are in fact intended to operate in parallel. See, for example, Trade Practices Commission v BP Australia Ltd [1985] FCA 391; (1985) 62 ALR 151 at 158.

12 The intention of Parliament in providing for the rectification of wills in the Wills Act, s47, was made clear in the relevant second reading speech in the following passage (Hansard, House of Assembly, 27 May 1992, p1494):

At present the equitable doctrine of rectification does not apply to wills. As the rules of extrinsic evidence do not admit any unattested evidence from outside the will unless the error is apparent on the face of the will the court is powerless to rectify it even though extrinsic evidence may clearly show what the error was. The only power which a court has is to exclude from a will any provisions which have been inserted without the testator's knowledge and approval; for example, because of fraud or by reason of mistake, inadvertence, or misunderstanding. Such provisions may be omitted but the significant thing is that nothing may then be inserted into the will to rectify the position. So words or whole clauses may be removed simply leaving a blank in the will, even though it is obvious what ought to be inserted to fulfil the testator's intention.

There is absolutely no reason why the power of rectification should not extend to wills. The bill therefore contains provisions enabling the court to rectify a will where there is no reasonable doubt that the deceased person made an error in expressing testamentary intentions in the will and as to the nature and effect of the error. In making a determination regarding this, the Supreme Court will be able to admit extrinsic evidence of the testator's dispositive intention."

13 When a written contract defectively expresses the true intentions of the parties, a court of equity has the power to make an order for the rectification of the document so as to express the true intentions of the parties. However, when it is apparent on the face of a document that a literal interpretation of it will lead to some absurdity or inconsistency that can be cured by altering a word or phrase, the courts will be prepared to interpret the document as if so altered, without any application being made for an order for rectification. See, for example, Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, in which "inconsistent herewith" was read as "not inconsistent herewith"; Re United Pacific Transport Pty Ltd [1968] Qd R 517, in which "mortgagee" was read as "mortgagor"; and Dalgety Ltd v John J Hilton Pty Ltd [1981] 2 NSWLR 169 at 172, in which "on" was read as "and". These cases illustrate the proposition that the rectification of a document is something distinct from interpreting a document so as to give effect to the parties' true intentions. There will be times when giving effect to the intentions of the parties can only be achieved by an order for rectification, for example, when there has been a significant omission from the document. There will be other times when an application for rectification could be made but would be unnecessary because the courts are prepared to interpret the document so as to give effect to the parties' intentions. In each of the three reported cases that I have cited, it would have been appropriate, but unnecessary, for rectification to have been sought.

14 Prior to any legislation permitting the rectification of wills, a great many cases were reported in which inaccurate descriptions of beneficiaries in wills were interpreted as referring to individuals whom the courts found were intended to be benefited by the testators in question. See Theobald on Wills, 13th ed, par 807. What the courts have done for many years in such situations is to make findings, where possible, as to whom the testator intended to benefit, and to interpret the words of the will accordingly. That involves an exercise in interpretation, as distinct from rectification. As the then Attorney-General made clear in the second reading speech from which I have quoted above, Parliament made available the remedy of rectification in relation to wills so that justice could be done in cases in which no remedy would otherwise be available. It surely does not follow that the existing remedies, whereby the Court could be asked to interpret inaccurate words in a will, were intended no longer to be available. In my view, the new remedy of rectification can operate in parallel with the old remedies, just as rectification and interpretation operate in parallel in contract law, and was intended to do so. I therefore reject Mr Stevens' submission that the Court lacks jurisdiction.

15 Although the deceased did not know anyone named Len Hopwood, I infer from the fact that four names were used in the clause in question that he must have intended his estate to be shared amongst four individuals in the event of his wife predeceasing him. The respondents are three of those four individuals. The question is whether the Court can determine whom the testator intended to refer to by the words "Len Hopwood". In such a situation, courts are most reluctant to hold a gift void for uncertainty, and will use every endeavour to ascertain whom the testator intended to refer to: Re Newman [1967] VicRp 22; [1967] VR 201 at 203; Re Edwards [1981] VicRp 76; [1981] VR 794 at 795; Public Trustee v Butters B24/1994 per Zeeman J at 3.

16 In some cases of misdescription or misnomer, it is possible to apply the principle falsa demonstratio non nocet, whereby a false description of an individual does not vitiate the gift to that individual if his or her identity can be ascertained with certainty. See Morrell v Fisher [1849] EngR 1242; (1849) 4 Exch 591 at 604 - 605; Cowen v Truefitt Ltd [1899] 2 Ch 309; Public Trustee v Butters (supra) at 3. Thus, in this case, the misdescription of the first two respondents by the deceased as his grandsons did not vitiate the gifts to them. However, as Mr Stevens has pointed out, there is no scope for the application of that principle in the case of the gift to "Len Hopwood", since there is neither a person by that name nor any grandson of the deceased. Mr Stevens submitted that the gift to a so-called grandson named Len Hopwood must fail because no part of the description or name was accurate. However, there is no authority for the proposition that a court can only interpret a gift as referring to a particular individual if, to some extent, that individual was accurately named or described in the will.

17 There are a number of reported cases in which findings have been made that testators intended to benefit particular individuals whom they described using incorrect Christian names, or incorrect surnames, or incorrect familial relationships. This case is unique since the applicant contends that the will contained mistakes as to her relationship with the deceased, her Christian name, her surname, and her sex.

18 There are a number of reported cases in which testators have been held to have made multiple mistakes in their descriptions of intended beneficiaries. In Beaumont v Fell [1723] EngR 2; (1723) 2 P Wms 141, 24 ER 673, it was held that the testator had made a mistake both as to a legatee's Christian name and surname, describing Gertrude Yardley as Catharine Earnley. In Ryall v Hannam [1847] EngR 702; (1847) 10 Beav 536, 50 ER 688, Lord Langdale MR held that a testator had made a mistake as to the Christian name and sex of his intended beneficiary, describing John Abbott as "Elizabeth Abbott, a natural daughter of Elizabeth Abbott, of the Parish of Gillingham, single woman". This description also involved a mistake as to the status of the beneficiary's mother, who had married before the making of the will. In Re Waller (1899) 80 LT 701, the English Court of Appeal held that a gift to "the daughters of my late friend Ignatius Scoles, deceased" was intended to refer to the sisters of Ignatius Scoles, who was still living, and who happened to be a Roman Catholic priest. It is clear from these cases that the critical question is whether the court can be satisfied as to the identity of the intended beneficiary. The quantity of mistakes as to the names and circumstances of the intended beneficiary is significant only if there are so many mistakes that the court is unable to make a finding as to whom the testator intended to benefit.

19 In this case, there is no reason to think that the deceased intended the gift to "Len Hopwood" for any individual other than the applicant. As the deceased was born in 1908, he must have been 84 or 85 years old when he made his will on 30 March 1993. I infer from the fact that the will referred to the non-existent Len Hopwood that the solicitor who drew the will must have misunderstood the deceased's instructions. The names "Len" and "Lynn" are so similar that I infer that the solicitor must have misunderstood the deceased, and taken him to be referring to a male named Len when he was really referring to a female named Lynn. I infer that the people referred to in the will as "my grandsons the said IAN HOPWOOD, ANDREW HOPWOOD, LEN HOPWOOD" were the deceased's surrogate grandchildren Ian, Andrew and Lynn, the children of Raymond John Hopwood, whom he brought up as if he were his son. Given that the deceased must have had someone in mind as the third of the four beneficiaries referred to in the relevant clause, given that this is a rational explanation for the reference to a grandson named Len Hopwood, and given that there is no other rational explanation for such a gift, I have come to the conclusion that the deceased must have intended to benefit the applicant.

20 The file of the solicitor who made the will is within the power or control of the first respondent. He chose not to make it available for inspection by the solicitors for the applicant. Counsel for the applicant, Mr Spence, relying on Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, submitted that I should infer that the solicitor who drew the will could not give any evidence that would be of benefit to the respondents. There was no evidence as to whether the solicitor in question was ever interviewed by the respondents' solicitors, nor as to whether that solicitor was willing to be interviewed, swear an affidavit, or give evidence. In those circumstances, I am not prepared to draw an inference adverse to the respondents. It is a pity that I have had to make this decision without the benefit of evidence as to the quality of the instructions the testator gave to his solicitor and other circumstances concerning the making and execution of the will. However, the evidence that I do have has been sufficient to satisfy me on the balance of probabilities that the deceased intended to benefit the applicant, despite the undesirable lack of evidence as to what passed between him and his solicitor.

21 The questions asked in the originating application are as follows:

"1 Whether Lynn Cuthbertson, the above named Applicant, is entitled to a share in the estate of the Late Owen Forest Lord pursuant to the said deceased's Will bearing date the 30th day of March 1993.

2 If the answer to 1 above is in the affirmative, then in what proportions the Applicant is entitled to so share."

22 For the reasons stated above, I determine that the answers to those questions are as follows:

2 She is entitled to one quarter of the estate of the deceased.