Fell v Fell

1. On 13 December 2018 the late Margaret Mary Tassie (the deceased) executed a document described as her last will (the will), having engaged Snedden Hall and Gallop Lawyers (SHG) to assist her with that task.

2. In discussions with her lawyer at the time she requested that SHG be appointed as her executor, providing cogent reasons for that request. The will was prepared accordingly and executed by the deceased after the document had been reviewed with her.

3. In relation to the appointment of SHG the will provided at clause 2: I appoint a director of Snedden Hall and Gallop Pty Ltd of 43-49 Geils Court Deakin in the Australian Capital Territory, or a director or principal of any successor of Snedden Hall and Gallop Pty Ltd, to be my executor and trustee.

4. The will was otherwise valid with reference to the requirements of s 9 of the Wills Act 1968 (ACT) (Wills Act).

5. An application for probate of the estate of the deceased was filed in this Court on 20 December 2024. The probate registry subsequently raised a requisition dated 31 March 2025, on the basis that the wording in clause 2 of the will may be void for uncertainty.

6. This Application in Proceeding was filed in response to the requisition. It seeks an order under s 12A of the Wills Act 1968 that the will is rectified to replace clause 2 with the following wording: I appoint Julia Astrid Bridgewater, a director of Snedden Hall and Gallop Pty Ltd of 43-49 Geils Court Deakin in the Australian Capital Territory, to be my executor and trustee.

7. In support of the application the applicant reads two affidavits of Julia Astrid Bridgewater, affirmed on 14 April 2025 and 10 June 2025.

8. I am satisfied on the basis of the evidence before me that the deceased clearly intended that SHG would be appointed as her executors, and understood that as a consequence of their appointment in that capacity they would be entitled to charge for their professional services provided in acquitting that role.

9. The residual questions are: (a) Is the will, or a part of the will, in its present form void for uncertainty; and if so (b) Is it appropriate for the court to exercise its discretion to rectify the will under s 12A. Applicable Law

10. Section 12A is in the following terms: 12A Rectification (1) If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator’s intentions. (2) The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator’s probable intention if satisfied that— (a) any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will): (i) the circumstances or events were not known to, or anticipated by, the testator; (ii) the effects of the circumstances or events were not fully appreciated by the testator; (iii) the circumstances or events arose or happened at or after the death of the testator; and (b) because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects. ... (7) In this section: order for rectification means an order inserting material in, or omitting material from, the probate copy of a will. personal representative, in relation to a deceased person, means the executor of the will of the deceased person or the administrator of the estate of the deceased person (including the public trustee and guardian when administering the estate of the deceased person under the Administration and Probate Act 1929, section 87B, 87C or 88). probate copy, in relation to a will of a deceased person, includes the copy of the will— (a) annexed to letters of administration of the estate of the deceased person; or (b) used in administering the estate of the deceased person under the Administration and Probate Act 1929, section 87B; or (c) annexed to an election to administer the estate of the deceased person under that Act, section 87C; or (d) annexed to an order granted to collect and administer the estate of the deceased person under that Act, section 88. Applicable principles

11. There is ample authority for the proposition that the partners of a law firm may be appointed as executors: see for example Re Horgan (deceased) [1969] 3 All ER 1570; [1971] P 50 (Horgan). However, in Horgan the form of appointment differed from that used in this case. It read (at 61): I appoint the partners at the date of my death in the firm of [X] … or the firm which at that date has succeeded to and carries on its practise to be the executors and trustees of this my will (and I express the wish that two and only two of them shall prove my will and act initially in its trusts).

12. In the present case, the will in question purports to appoint “a partner” of the firm as opposed to “the partners or any one of them”.

13. A will must be incapable of any clear meaning before it will be voided for uncertainty: NSW Trustee and Guardian v Attorney General in and for the State of NSW [2012] NSWSC 1282; 9 ASTLR 196 at [30]. In Fell v Fell (1922) 31 CLR 268 from 273, Isaacs J set out a set of principles described as “incontestable” in the construction of a will: (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. (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. (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. (4) An inference cannot be made "that did not necessarily result from all the will taken together". A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed. (5) We cannot give effect to any intention which is not expressed or plainly implied in the language of the "will". "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. (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. (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. (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 commonsense…), 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. (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. (10) The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills. 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. (Emphasis in original, citations omitted.)

14. In Jones v Robinson [2019] NSWSC 932 at [45], after quoting with approval the passage above, Sackar J observed: It is therefore tolerably clear that the misuse of language should not too readily defeat the deceased's otherwise clear intentions.

15. On the topic of the appointment of alternative executors, in the matter of In the Estate of Rea Costello (deceased) [2014] SASC 134 at [7], Grey J stated: A clause in a will appointing executors in the alternative without additional words indicating the circumstances in which they are to be appointed is void for uncertainty.

16. His Honour cited two English cases in support of that proposition: Re Baylis’s Goods (1862) 2 Sw & Tr 613, where the issue was the appointment of “any two of my sons”; and Re Blackwell’s Goods (1877) 2 PD 72, where the issue was the appointment of “one of my sisters”. Those authorities were also cited with approval in In the Estate of John Wentworth Varley (deceased); In the Estate of Jacques Johan Veldhius [2007] SASC 420 at [19].

Consideration

17. I am satisfied that the inability to determine whether the deceased intended to appoint a particular director of SHG or alternatively, any one of the directors, renders the subject clause incapable of any clear meaning. I am however satisfied that it was the clear intention of the deceased that any director of the firm of SHG should fill the role of executor of her estate, and it is therefore appropriate for the court to exercise its discretion under s 12A to rectify the will so as to give effect to her intentions.

Orders

18. I make the following orders: (1) The last will of the deceased dated 13 December 2018 is rectified such that the existing clause 2 is replaced with the following words: (a) “I appoint Julia Astrid Bridgewater, a director of Snedden Hall and Gallop Pty Ltd of 43-49 Geils Court Deakin in the Australian Capital Territory, to be my executor and trustee.” (2) The registrar is directed to do all things and take all steps necessary to grant probate of the will of the deceased to Julia Astrid Bridgewater. (3) The costs of the application are to be paid out of the estate on a solicitor client basis.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: