DOUGLAS -v- DOUGLAS [2017] WASC 184 (29 May 2017)

2 The plaintiff, Fiona Douglas, has made an application by originating summons filed on 2 September 2016. By that application, Fiona Douglas seeks an order for the rectification of the will of her late husband on the basis that the will does not give effect to the testamentary intentions of the deceased. Fiona Douglas is the surviving spouse of Paul James Douglas (deceased), and the sole named executor of his estate under a will dated 22 August 2002.

3 Fiona Douglas, in her capacity as trustee of the PJ Douglas Family Trust (Trust), is also the first defendant to these proceedings. The second and third defendants to the proceedings (Jack Edward Douglas and Matt James Douglas) are the adult children of the deceased. The fourth defendant (Aisha Fiona Douglas) is the child of the deceased and Fiona Douglas, and is represented in these proceedings by Mr James Woodford, guardian ad litem. The children of the deceased would, together with Fiona Douglas, have an entitlement to a share of the estate in the event of an intestacy or partial intestacy and, on that basis, it was appropriate that they were joined and given an opportunity to be heard.

4 Jack Douglas and Matt Douglas oppose the application. They rely on three affidavits together with written submissions. During the course of the proceedings, a number of adjournments were granted in order to allow additional evidence to be filed on behalf of Jack Douglas and Matt Douglas, and so as to allow legal advice to be obtained. I understand that they had the benefit of some legal advice, and assistance in the preparation of the written submissions that were filed on their behalf, together with assistance in preparing the further affidavit filed on 15 May 2017.

5 Aisha Douglas largely adopted the submissions made by her mother, Fiona Douglas.

6 In short, Fiona Douglas contends that the will fails to dispose of the residue of the deceased's estate in the event that the deceased is survived by his wife, Fiona Douglas.

7 By these proceedings, Fiona Douglas seeks an order that the will be rectified so as to reflect the testamentary intentions of the deceased by inserting a further clause for the disposition of the residue of the deceased's estate, thus avoiding a partial intestacy. The clause sought to be inserted is as follows:

If Fiona Heather Douglas survives me, then I give the residue of my estate to the PJ Douglas Family Trust created by the deed.

8 Part XII of the Wills Act, which comprises s 49 and s 50, is concerned with the rectification of wills by the court. Section 50 relevantly provides that:

(1) The Court may make an order rectifying a will to carry out the intentions of a deceased testator if the Court is satisfied that the will does not carry out the testator's intentions because -

(b) the will does not give effect to the testator's instructions.

(2) Any application for an order under this section must be made within 6 months after the death of the testator.

(3) The Court may extend the period of time for making an application, even if the original period has expired, but not if the final distribution of the estate has been made.

9 Fiona Douglas submits that before making an order for rectification, the court needs to be satisfied:

(a) of the testator's testamentary intentions at the time the will was made;

(b) that the will, as drafted, on a proper construction, does not carry out the testator's testamentary intentions;

(c) that the will does not express the testator's testamentary intentions because of a clerical error or, relevantly in this case, because of a failure to give effect to the testator's instructions; and

(d) the proposed rectification is in a form that carries out the testator's intentions.[1]

10 Fiona Douglas acknowledged that there must be evidence of the testator's actual intention and that such intention was given effect to by instructions given to the solicitor drafting the will. The court must have an evidentiary basis for making findings as to the content of the instructions given.[2] The evidence of intention must go to the instructions that the testator gave and not the testator's intentions in general. That would include the evidence of the solicitor who drafted the will or of a spouse who attended the interview with the solicitor.[3]

11 Fiona Douglas acknowledged that an applicant bears a heavy onus to rebut the presumption which arises from the due execution of a will and the applicant needs to place all of the relevant evidence before the court. However, the ultimate question is whether the requirements of the section can be satisfied on the balance of probabilities.[4]

12 It was Fiona Douglas' evidence that in about August 2002, the deceased and Fiona Douglas engaged Edwards Lewington Lawyers in Denmark, Western Australia to draft their wills and to put into effect their joint succession plans.

13 Fiona Douglas' evidence was to the effect that prior to attending the lawyers, she and the deceased had discussed how they wished their estates to be left; and that their joint succession plan was that, apart from some personal and domestic items, most of their assets would go into the Trust for the benefit of the survivor of them and for all of their children, including the children they had from earlier relationships. Fiona Douglas' evidence was that they attended together and jointly gave instructions to their lawyers, seeking reciprocal wills and variations to the Trust to give effect to their joint succession plan.

14 On the balance of probabilities, I find that contrary to their joint succession plan and, in particular, contrary to the instructions that were given to the lawyers, the reciprocal wills, as drafted, apart from making a bequest of personal and domestic items, both otherwise operate to create an intestacy in respect of the residue of both of Fiona Douglas' and defendant's estates in the event that one of them survived the other.

15 On the evidence before me, I find that the will of the deceased did not give effect to his instructions and I base that finding on the evidence filed on behalf of Fiona Douglas.[5]

16 In reaching this finding, the court was not assisted by the evidence of the firm Edwards Lewington Lawyers which, since the creation of the will, has ceased to exist. The former principals of that firm swore short affidavits in which they explain that they retain no record of the file nor the instructions given, and neither principal has any recollection of the instructions given.[6]

17 In coming to my conclusion I have also had careful regard to the affidavits sought to be relied upon by Jack and Matt Douglas. They express their jointly held belief that they will not be fairly taken care of by Fiona Douglas if she were to be granted rectification of the will of the deceased.[7] The concern held by Jack and Matt Douglas, whilst honestly held, was not relevant to the test under s 50 of the Wills Act. I am persuaded by the evidence filed on behalf of Fiona Douglas. Therefore, having careful regard to all of the affidavit material filed and to all of the submissions filed on behalf of Fiona Douglas and the defendants, I find on the balance of probabilities that:

(1) the deceased's intention was that upon his death, apart from personal, domestic and ornamental items, that his estate would be left to the Trust;

(2) this was his intention at the time he made the will;

(3) the deceased's intentions were put into effect by the instructions he gave to his lawyers;

(4) his lawyers failed to prepare a will that reflected his intentions, despite his instructions; and

(5) the proposed terms of the rectification will give effect to the deceased's intention.

18 Section 50(2) of the Wills Act provides that an application for an order for rectification must be made within six months of the date of the death of the testator. Section 50(3) confers a discretion on the court to:

[E]xtend the period of time for making an application, even if the original period has expired, but not if the final distribution of the estate has been made.

19 The application for rectification was not made within six months of the date of death of the deceased. The reasons for the delay are explained in the affidavit evidence filed on behalf of Fiona Douglas. The reasons for delay included difficulties experienced in locating the lawyer who drafted the will (given that the firm had ceased to exist a number of years prior to the death of the deceased); that the original solicitor handling the matter for Fiona Douglas having passed away in November 2015; the time taken in making inquiries and collecting documents relating to the matter; and the time taken to obtain counsel's advice.

20 There has been no distribution of the estate and there is no evidence before me of any prejudice to any other party if I was to grant the extension sought. In all of the circumstances, I find that the reasons for the delay do not speak of undue tardiness on the part of Fiona Douglas and, as I have previously mentioned, there is no evidence that any interested party has been prejudiced by the delay. In all of the circumstances, I will make orders as sought by the plaintiff in the originating summons and I will hear from the parties in relation to an appropriate cost order.

[1] See [8] of the plaintiff's outline of submissions filed 21 March 2017. In support of this proposition, the plaintiff relied upon Wills Probate and Administration Western Australia [24,245.15.10]; Vescio v Bannister [2010] NSWSC 1274 [11] ‑ [16]; Palethorpe v The Public Trustee of Queensland [2011] QSC 335 [15] ‑ [18], [21] ‑ [22]; Estate of Grahame David Wright [2016] NSWSC 1779 [37], [40] ‑ [44].

[2] The plaintiff cited Vescio v Bannister [12]; Wills Probate and Administration Western Australia [24,245.15.20].

[3] The plaintiff cited Wills Probate and Administration Western Australia [24,245.20.15].

[4] Hinds v Collins [2006] 1 Qd R 514; [2005] QSC 362.

[5] Affidavit of Fiona Heather Douglas sworn 29 August 2016 [20]; and affidavit of Fiona Heather Douglas sworn 24 May 2017 [5].

[6] Affidavit of Vivian Christine Edwards dated 16 November 2016; and affidavit of Max Andrew Lewington sworn on 9 November 2016.

[7] Affidavit of Jack Edward Douglas sworn 24 April 2017 [16]; and affidavit of Matt James Douglas sworn 24 April 2017 [16].