TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

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.

Doe v Hiscocks [1839] EngR 65; (1839) 5 M & W 363: 151 ER 154; Re Waller; White v Scoles (1899) 80 LTR 701, applied.

Judgment Number: [2001] TASSC 64

1 The respondent made application to the Court pursuant to the Rules of Court 1965, O65, r1, now the Rules of Court 2000, r90. She claimed to have an interest in the estate of the late Owen Forrest Lord, by virtue of his will dated 30 March 1993. Mr Lord ("the testator") died on 6 July 1998 and his will was admitted to probate on 29 September 1998. The appellant, Ian Hopwood, is the sole executor and trustee of the testator's estate. The respondent, and the appellants Ian Hopwood and Andrew Hopwood, are all children of Raymond Hopwood. The other appellant, Jennifer Tucker, was a great niece of the deceased.

2 The critical clause in the testator's will provides:

"I APPOINT the said IAN HOPWOOD to be the sole Executor of this my Will and the Trustee of my Estate and I hereinafter refer to him as 'my Trustee' which expression I DECLARE shall mean and include the Trustee or Trustees for the time being of this my Will whether original or substituted 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 The respondent claimed that she was the person referred to in that clause as "LEN HOPWOOD". The learned judge at first instance found in favour of the respondent and, by answering the questions put to him in the originating application, determined that the respondent is entitled to a one quarter share in the estate of the testator pursuant to his will dated 30 March 1993. The appellants have brought this appeal from that determination.

4 Although the contentious clause in the deceased's will describes the four beneficiaries as "grandsons", none of them were grandchildren of the deceased. The first three beneficiaries' father, Raymond Hopwood, was not the testator's son but his nephew. It appears that the testator and his wife, Gladys Beatrice Lord, took Raymond Hopwood into their home when he was only a few months old and thereafter raised him as their son. He is still alive. He filed an affidavit upon the hearing in the Court below upon which he was not cross-examined. In it, he deposed that the testator and his wife had no children of their own, and regarded him as their son. He also deposed that he lived with the testator and his wife until he married, and of that marriage, there are three children. It was common ground that there was no person called Len Hopwood, or at least, no such person was known to anyone concerned with this litigation. It was also common ground that the first and second named appellants and the respondent, regarded the deceased, and treated the deceased, as their grandfather. They called him "Uncle Boy" and his wife was called "Auntie Glad".

5 In his affidavit, Raymond Hopwood also deposed that the deceased told him "on many occasions" prior to his death words to the effect "when I die it's all yours" but no provision was made for him in the will. Drawn by a solicitor, or an employee of a solicitor, it provides for the whole of the estate to pass to the testator's wife, but should she predecease him, the whole of the estate is to pass in accordance with the terms of the contentious clause, which I have already set out.

6 Mrs Lord did predecease the testator. Her will is identical to that of the testator's will except that the primary beneficiary was her husband. As he survived her, he took the whole of her estate, but Mrs Lord's will contained a residual clause in identical terms to the clause in the testator's will that is the subject of the proceedings.

7 The appellant, Ian Hopwood's affidavit contains these two paragraphs:

"6 I spoke to the late Mr Lord shortly after the late Mrs Lord's funeral, and advised him that his will included a beneficiary in the name of Len Hopwood. He told me that there was no error in his will as there was no such person as Len Hopwood.

7 Approximately 13 years prior to his death, Mr Lord requested that I become his executor. Subsequent to that time the late Mr Lord discussed with me on several occasions his estate and who was to benefit from it. Whenever the matter was discussed he made reference to the specific exclusion of Raymond Hopwood and my sister Lyn Cuthbertson. He told me on several occasions that Mrs Cuthbertson was not to be benefited as she had 'married a millionaire'."

8 The learned judge at first instance correctly posed the question for himself as to whether the Court can determine whom the testator intended to refer to by the words "Len Hopwood". In doing so he also correctly, in my respectful view, articulated the principle that:

"... 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 ...".

9 His Honour then referred to a number of cases in which it was held that a false description of a beneficiary did not vitiate a gift. This is the case, even when the description of the beneficiary contains multiple mistakes. His Honour referred to Beaumont v Fell [1723] EngR 2; (1723) 2 P Wms 141: 24 ER 673; Ryall v Hannam [1847] EngR 702; (1847) 10 Beav 536: 50 ER 688; Re Waller; White v Scoles (1899) 80 LT 701.

10 His Honour then said that the critical question was whether the Court could be satisfied as to the identity of the intended beneficiary and the quantity of mistakes was only relevant if they were so many that the Court was unable to make a finding as to whom the testator intended to benefit. His Honour then said:

"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."

11 Prior to its amendment, the notice of appeal contained three grounds. Each asserted only that general error occurred in making the determination that the respondent was entitled to a quarter of the testator's estate. The notice of appeal was amended and ten new grounds were added. Determination of those ten grounds will make it unnecessary to give separate consideration to the first three grounds.

12 Grounds 4, 6, 8 and 9 of the notice of appeal as amended, provide:

"4 That the learned primary Judge erred in law in concluding that in an exercise of interpretation, and without recourse to rectification, this Honourable Court can correct a description of a beneficiary which is mistaken as to that person's christian name, surname, sex and relationship with the deceased.

6 That the learned primary Judge erred in fact or alternatively in law in concluding that the respondent was intended to benefit under the will by finding that the deceased must have had someone in mind as the third of the four beneficiaries referred to in clause 4 of the will when either there was no evidence to base such a finding or alternatively the finding was against the weight of such evidence as there was.

8 That the learned primary Judge by finding (by way of inference) that the solicitor who drew the will must have misunderstood the deceased's instructions when there was no evidence from which such an inference could be drawn.

9 That the learned primary Judge erred in finding (by inference) that the deceased in giving instructions to the solicitor who drew the will referred to a female named Lynn, when there was no evidence from which such an inference could be drawn."

13 Rectification is now permitted by the Wills Act 1992, s47, but only upon an application made either upon the application for grant of probate or within three months thereafter. On behalf of the appellants, Mr Tree submitted that the learned trial judge did not interpret the will of the deceased but, without authority to do so, in effect, rectified it. The duty of the Court in a case such as this was well articulated by Wright J in In re Duffy 10/1997 at 5:

"The cardinal duty of the Court is to construe the will so as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances as known to the testator at the time the will was made (Perrin v Morgan [1943] AC 399 at 420 per Lord Romer). If necessary this permits the court to give a construction which is prima facie contrary to the literal sense of particular words or expressions, and to imply words or expressions which appear to have been omitted by mistake. It does not permit the court to fashion a new will which is plainly contrary to express declarations of intent or purpose contained in the will or to redistribute the estate in an apparently fairer or more equitable manner (Re Lourie deceased [1968] NZLR at 541). The court does not have power to rectify the document or indulge in unsubstantiated speculation (Re Smith deceased, Veasey v Smith and Another [1947] 2 All ER at 708; Re Whitrick deceased, Sutcliffe v Sutcliffe and Others [1957] 2 All ER at 467). Rather than declaring questioned dispositions void for uncertainty, apparent ambiguities may be resolved if a sufficiently sound foundation for doing so can be discovered from the terms of the will as a whole and the admissible extrinsic evidence."

14 Mr Tree did not submit that the testator intended to make a gift that failed. His submission was that because no part of the descriptive words fits the respondent, the issue of ascertaining the intention of the testator simply does not arise. He submitted that because no part of the description was correct, a construction point did not arise. A rectification point may well arise but, of course, it is too late for that now.

15 It is correct, as was submitted by Mr Tree, that, absent statutory authority such as that enacted by the Wills Act, s47, the Court cannot rewrite the testamentary provisions in wills that come before it for construction. See Re Whitrick deceased; Sutcliffe v Sutcliffe & Ors [1957] 2 All ER 467; Re Follett (deceased); Barclays Bank Ltd v Dovell [1955] 2 All ER 22.

16 The cases concerning a misdescription of a beneficiary are legion. See Jarman on Wills (8 ed) at 1236 et seq; Theobald on Wills (14 ed) 335 et seq. Little profit is to be gained from minutely examining these cases. Each turns upon its own facts. In cases of ambiguity, and, as no person answers the description "Len Hopwood", this is such a case, the principle to be applied was well expressed in the following terms by Lord Abinger in Doe v Hiscocks [1839] EngR 65; (1839) 5 M & W 363 at 367 - 368: [1839] EngR 65; 151 ER 154 at 156:

"The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his words. But as his words refer to facts and circumstances respecting his property and his family, and others whom he names or describes in his will, it is evident that the meaning and application of his words cannot be ascertained, without evidence of all those facts and circumstances. To understand the meaning of any writer, we must first be apprised of the persons and circumstances that are the subjects of his allusions or statements; and if these are not fully disclosed in his work, we must look for illustration to the history of the times in which he wrote, and to the works of contemporaneous authors. All the facts and circumstances, therefore, respecting persons or property, to which the will relates, are undoubtedly legitimate, and often necessary evidence, to enable us to understand the meaning and application of his words."

17 See In re Smalley; Smalley v Scotton [1929] 2 Ch 112. The argument put by the appellant was, in substance, put by the respondent in Re Waller; White v Scoles (1899) 80 LTR 701. The argument was rejected by the Court of Appeal. In that case, no person answered the description in the will, but the task of the court was described by Lindley MR at 702 as being to:

"... cast about and see who, if anyone, was known to the testator whose name could have been by mistake put as Ignatius."

18 Although Mr Spence, counsel for the respondent, placed great emphasis on the expression "cast about", and submitted that the Court had a very wide duty, I doubt if it means any more than look at all the terms of the will and all the circumstances surrounding the testator as disclosed by the admissible evidence.

19 In the application of the principle set out in Doe v Hiscocks to the facts of this case, it is necessary to bear in mind, on the one hand, that the Court cannot rewrite the testator's will but, on the other hand, the Court should be reluctant to hold a gift void for uncertainty. I would respectfully adopt the words of Starke J in Re Newman deceased [1967] VicRp 22; [1967] VR 201 at 203:

"To be void for this reason [difficulty in interpreting the ambiguity] it must be utterly impossible to put a meaning upon it. The Court is furthermore reluctant to hold a gift void for uncertainty, and adopts the benevolent rule that if there is ever so little reason in favour of one construction of an ambiguous gift more than another, the adoption of the construction so favoured is at least nearer the intention of the testator than that the whole disposition should be void and the persons entitled on an intestacy let in."

See also Re Edwards deceased; Turner v Roberts [1981] VicRp 76; [1981] VR 794.

20 Contrary to Mr Tree's submission, this case does involve a construction of a will. Clearly, the testator intended four persons to be his beneficiaries. Four different names were used. The issue is whether the Court can ascertain the identity of all four of those beneficiaries from the words of the testamentary instrument and the admissible evidence. That is a construction issue. In one instance, the beneficiary is correctly named and correctly described. In two instances, the beneficiaries are correctly named, but incorrectly described as grandsons. Nonetheless, the admissible evidence clearly discloses that those two beneficiaries were regarded as, and treated by the testator as, his grandsons. It is clear that the testator intended those two named persons to be his beneficiaries notwithstanding the misdescription of them as his grandsons.

21 With respect to "Len Hopwood", the evidence discloses that the respondent was called Lynn Hopwood until she married in 1979 and thereafter she was known as Lynn Cuthbertson. Her relationship to the testator was exactly the same as that of the other two incorrectly described male beneficiaries. The testator's will was not written by the testator himself, but by a solicitor, or an employee of a solicitor. It is likely that the testator, aged 84 or 85 when he made his will, gave oral instructions for its content. It is highly significant that, when spoken, the words Lynn and Len sound not dissimilar. The testator's wife made her will three days after the testator made his. It is curious that she made the same mistake by naming as a beneficiary a person who did not exist. This lends to the conclusion that the reference to "Len Hopwood" was due to an error in the transmission of instructions just as the learned judge at first instance postulated. It is a great pity, as the learned judge observed, that the solicitor who took the instructions to make the wills of the testator and his wife was not called to give evidence. From the cross-examination of the executor and trustee, Ian Hopwood, it appears that this solicitor is alive and able to give evidence. It also appears from the same source that there is a file which may well contain notes of those instructions, but despite the respondent's requests to see those notes, the executor instructed the solicitor that he or she was not to produce them to the respondent. Prima facie, it would seem that this approach was inconsistent with Ian Hopwood's duty as an executor of a will containing an ambiguous clause.

22 Starting from the proposition that the testator intended someone to benefit when he made the gift to "Len Hopwood", and applying the principle that a failure of a gift for uncertainty is to be avoided if possible, a person of common sense would say that the only reasonable explanation for both the testator and his wife using the same name of a person who does not exist, was that the solicitor misheard, or in some other way, mistook the instructions of both the testator and his wife and interpreted "Lynn" as "Len". Once that error is seen as the only reasonable explanation for the gift, it is easy to see how the description "grandsons" and the surname "Hopwood" were attributed to all the children of Raymond Hopwood. Apart from the content of par7 of the first appellant's affidavit set out above, to which I shall return, there was nothing in the evidence to suggest any reason why the testator, and for that matter, his wife, would have wished to prefer two of the "grandchildren" over the third.

23 Grounds 4A and 5 of the amended notice of appeal provide:

"4A The learned primary Judge erred in law in finding that the deceased OWEN FORREST LORD intended to benefit Lynn Cuthbertson under his Will, without exposing his Honours reasons for either:

(a) refusing to act in accordance with the uncontested evidence of Ian Hopwood that she was specifically excluded from the deceased's estate and not intended to benefit under it; or

5 That the learned primary Judge erred in fact or alternatively in law by failing to have any or any sufficient regard to the evidence of Ian Hopwood that the deceased OWEN FORREST LORD did not intend the respondent to benefit under his estate."

24 These two grounds concern pars6 and 7 of the affidavit of the appellant Ian Hopwood that I have already set out. Although Mr Hopwood was cross-examined on his affidavit, the matters deposed to in those two paragraphs were not challenged in any respect. It is also relevant to these two grounds that there was also no challenge to the statement deposed to by Raymond Hopwood and to which I have already made reference, that the testator told him "on many occasions" that when he died "it's all yours".

25 Not only was all this evidence not challenged by cross-examination, none of it was referred to even in passing, by either counsel during closing submissions to the learned judge at first instance. Notwithstanding this, it is now contended that the failure of the learned judge at first instance to refer to this evidence in his reasons for judgment constituted an error of law. Further, it is contended that a failure to have regard to, or sufficient regard to, the facts deposed to in those paragraphs by the appellant Mr Ian Hopwood, leads to the conclusion that the determination of the court below was erroneous.

26 First of all, the duty of a judicial officer to give reasons is well settled and in this respect I venture to repeat what I said in Sielito v C and J S 45/1998 at 2 - 3:

"The law with respect to the obligation imposed on a judicial officer to give reasons for his or her decision is well settled. It is reflected in the well known and often quoted passage from Pettitt v Dunkley [1971] 1 NSWLR 376 at 382:

'In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.'

In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, Kirby P (as he then was) said:

'This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judges' conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this court discharge its functions, if an appeal is brought to it.'

See also Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158; Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 and Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) 3 NSWLR 378 at 386. The propositions set out in the passages quoted above have been applied by this Court. See, eg, Australian Securities Commission v Schreuder A79/1994; Burr v Strickland A67/1995. What constitutes sufficient reasons will depend upon the nature of the case under review."

27 Those propositions of law have been reaffirmed in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

28 There is no obligation on a trial judge to refer to every piece of evidence. The reasoning of the learned judge at first instance is clearly exposed and is challenged by the grounds of appeal with which I have already dealt. The facts deposed to in pars6 and 7 of Mr Hopwood's affidavit played no part, or no persuasive part, in that reasoning process. That they should have done is a matter of complaint by ground 5, but the fact that they did not and were not specifically referred to in the reasons, does not mean that those reasons were inadequate as a matter of law. There is no substance in ground 4A.

29 There is no obligation on a judge to accept a piece of evidence simply because it is not disputed. See Re Gear Deceased [1964] Qd R 528; Taylor v Ellis [1956] VicLawRp 72; [1956] VLR 457 and Cole v The Commonwealth of Australia [1962] SR(NSW) 700.

30 The evidence in Mr Hopwood's affidavit, pars6 and 7, was not so crucial to the determination that a failure to give it weight vitiated the determination. It was just another piece of evidence. Indeed, one might say that the significance of this evidence in the determinative process is indicated by the attention given to it by counsel in the court below. More importantly, there were good reasons for neither referring to it, nor relying upon it in any way. Paragraph 6 of Mr Hopwood's affidavit is inherently unlikely and makes no sense. Without any explanation as to how he was aware of the contents of the testator's will prior to the testator's death, Mr Hopwood deposed that he told the testator that there was an error in his will and that the testator responded that there was no error because there was no such person as Len Hopwood. That is an inherently improbable state of affairs. If Mr Hopwood read the will and saw the name "Len Hopwood", it is likely that he might have asked the testator who he meant as there was no person called "Len Hopwood". But evidence that he told the testator that he had made a mistake and that the testator told him that he intended to name a non-existent person as a beneficiary, is so inherently unlikely that no judicial officer would give it any weight.

31 Paragraph 7 refers to statements made by the testator "on several occasions" after 1985. The testator made his will eight years after 1985 and as no detail is given as to when those statements were made, all of them may well have been before the will was made. If the testator said on each occasion that Raymond Hopwood and the respondent were not going to take a share in the estate, he may well have changed his mind by 1993 when the will was made. More importantly, par7 of Mr Hopwood's affidavit, in so far as it is evidence that the testator's stated intention was not to benefit Raymond Hopwood is contrary to the unchallenged evidence of Raymond Hopwood that the testator told him that it would all be his. In these circumstances, it is not surprising that neither counsel nor the learned judge at first instance made no reference to Mr Ian Hopwood's affidavit, pars6 and 7 as the evidence is clearly unreliable.

"7 That the learned primary Judge erred in fact or alternatively in law in concluding that the respondent was intended to benefit under the will in that he failed to give any or any sufficient weight to the gender specific description of beneficiaries in clause 3 of the will."

33 I have already dealt with this ground, but should make special reference to Mr Tree's submission that the will was drawn so as to differentiate between the sex of the two classes of beneficiaries. His submission was that the learned judge at first instance failed to place any weight upon the use of the word "grandsons" and, that had he done so, he would not have interpreted "Len Hopwood" to mean "Lynn Hopwood". The submission was that the gender specific description made it likely that the testator was intending to benefit a male person. There may well have been some substance in this submission if the description "grandsons" had been an accurate description of the other two male beneficiaries and if there had been another male whom the testator might have had in contemplation. But there was no suggestion that there was any other person who might have been within the contemplation of the testator when he made the gift to "Len Hopwood" other than the only sibling of the appellants Ian and Andrew Hopwood.

34 In my view, no ground of appeal is made out and the appeal should be dismissed.

35 The appellants, beneficiaries of the estate of the late Owen Forest Lord ("the deceased") seek review of answers given to an originating application made by the respondent seeking answer to the interpretation of the will of the deceased.

"... 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."

37 The deceased had neither children nor grandchildren. The respondent at the time of the making of the will was neither named "Len" or "Hopwood".

38 On 30 March 1993 the deceased executed his will. He appointed Ian Hopwood sole trustee, although the will, cl 4, declared the grant of power to be vested in "trustees".

39 He provided, in the event that his wife predeceased him, for a residual bequest in accordance with the above cl 3.

40 On 2 April 1993, Gladys Lord made a similar will appointing the same trustee and making an identical bequest. Her will was prepared by the same solicitors who had prepared her husband's will and contained the same error in the admixture of the terms "trustee" and "trustees". Significantly the terms of her will, cl 3, stated:

"... 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 JENNIFER TUCKER for their own respective use and benefit absolutely as tenants in common in equal shares".

41 The will of the deceased described Jennifer Tucker as a "great niece", whilst that of Gladys Lord, as a "grandson". The wills made by the same solicitors were in near identical terms. It is a reasonable inference that the discrepancies were those caused by the solicitors rather than the testator or testatrix.

42 The deceased and his wife had neither children nor grandchildren. They had raised, as their own, Raymond John Hopwood who had three children named Ian, Andrew and Lynn. The argument of the appellants is that the term stated in the will, "Len Hopwood", could not be taken to refer to "Lynn Cuthbertson" who is one of the children named "Len Hopwood" at her time of birth. There is no doubt that a "Lynn Hopwood" was the sister of Ian and Andrew Hopwood at the time each became the child of Raymond Hopwood.

43 The learned primary judge determined that the respondent was the person referred to in the will of the deceased.

44 The notice of appeal lodged by the brothers and cousin of the respondent claims error upon the grounds which include:

"1 That the learned trial Judge erred in law and/or in fact in his interpretation of the will of the late Owen Forest Lord in concluding that the reference to the grandson named Len Hopwood in Clause 3 of the will was an indication that the said deceased intended to benefit the respondent.

2 That the learned trial Judge erred in fact and/or in law in failing to interpret the will to the effect that the gift to the person described as Len Hopwood in Clause 3 of the said will was void for uncertainty.

3 That the learned trial Judge erred in failing to interpret the will of the late Owen Forest Lord according to law.

7 That the learned primary Judge erred in fact or alternatively in law in concluding that the respondent was intended to benefit under the will in that he failed to give any or any sufficient weight to the gender specific description of beneficiaries in clause 3 of the will."

45 These grounds of appeal can be encapsulated into a critique of spelling, gender and change of matrimonial status. Part of the argument of the appellants is the change of name by virtue of law or custom of marriage ought deprive a person of status or legal entitlement because of a requirement, no longer necessary, that a person loses a name by reason of a state or religiously required ceremony. A name is a form of description and does not change the identity of the person (Informal v The Chief Electoral Officer A4/1992).

46 A textual analysis of the terms of the bequest demonstrates that the term "grandson" is incorrect. Had the description of the respondent been "Lynn" it would be easy to discern intent and an executor or court would have little difficulty in discerning that the testator had provided for his grandchildren. Reference to the respondent's married name causes less difficulty. "Hopwood" was the proper surname of the respondent at the time she was treated by the testator as a grandchild. Change by virtue of custom does not destroy her identity. As was said in Re T [1962] 3 WLR 1477 at 1480:

"It is of course well known that a person's surname is a conventional name and forms no part of his true legal name".

"In general it may be said that where there is a name at baptism and a native surname, those are the true names, unless they have been overridden by the use of the names assumed and generally accredited" (Sullivan v Sullivan [1818] EngR 533; 2 Hag Con 238 at 249[1818] EngR 533; , 161 ER 728 at 733).

47 A search of public records would easily establish that the respondent assumed the surname "Cuthbertson" through the custom of marriage. The name search would disclose that she had previously possessed or assumed the surname "Hopwood" and that the names belonged to the same person. Although there has been a discontinuance of the use of the earlier name (In re Neeld; Carpenter v Inigo-Jones & Ors [1962] Ch 643) there remains identity. Greater difficulty occurs in relation to the misdescription of the Christian name (Halsbury, 3rd ed, Vol 29 par 783-4).

48 Yet, the similarity in sound between "Len" and "Lynn" makes it easier to conclude that there has been a misdescription or misspelling. Textual analysis would permit the reading:

"Upon trust for my grand... the said Ian Hopwood, Andrew Hopwood, L..n Hopwood."

49 A person seeking to interpret the above would exclude the words "granddaughters" or "grand nieces" since the gender of the first two named persons is known. The words "grandson" and "grand nephews" could not be excluded since the gender of the third person is unknown. If that person became aware that the testator had raised three children as his own and that one of those children was female, he or she would readily insert the term "grandchildren". Even if the Christian name of the third person was not known insertion of the name "Lynn" would be a reasonable surmise. The converse has equal validity. If one possesses the information that the testator raised three children, two of whom being "Ian Hopwood" and "Andrew Hopwood", then it is apparent that the third name would be that of the remaining child whose Christian name was "Lynn". The misdescription of the term "grandsons" in relation to Ian and Andrew would be recognised as a term of status adopted by the testator because that is how he regarded them.

50 The meaning of the terminology used is clear and cannot be obscured by sophistry.

51 A stronger argument exists to meet the claim that "... the gift to the person described as Len Hopwood in Clause 3 of the said will was void for uncertainty".

52 Courts ought be reluctant to find uncertainty if the meaning of the words employed can be interpreted in accordance with the circumstances known to the maker of a document (Re Newman [1967] VicRp 22; [1967] VR 201, Re Edwards decd; Turner v Roberts [1981] VicRp 76; [1981] VR 794, Public Trustee v Butters & Anor B24/1994, Re O'Mara; O'Mara v O'Mara (1909) 10 SR(NSW) 67.

53 The learned primary judge did not employ the methodology of textual analysis, but he reached an identical conclusion. He commenced with the general proposition:

"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."

54 He then proceeded to draw inferences from the term of the will and the undisputed surrounding circumstances. The process of reasoning was:

(1) the use of four names in the clause showed that the testator intended his estate to be shared amongst four individuals;

(2) the misdescription of Ian and Andrew Hopwood as grandsons did not vitiate the bequest to them;

(3) courts have made findings "that testators intended to benefit particular individuals whom they described using incorrect Christian names, or incorrect surnames, or incorrect familial relationships";

(4) multiple mistakes do not necessarily render a will void through uncertainty in cases where:

"... 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";

(5) the similarity of the words "Len" and "Lynn" is such that he could more readily draw an inference of mistake;

(6) the use of the term "grandsons" required the conclusion that the intended beneficiaries were surrogate children and (consistent with proposition (5)) referred to "grandchildren";

55 The reasoning employed by the learned primary judge was appropriate, supported by authority and, in my opinion, correct.

56 Grounds 4A and 5 of the amended notice of appeal state:

"4A The learned primary Judge erred in law in finding that the deceased OWEN FORREST LORD intended to benefit Lynn Cuthbertson under his Will, without exposing his Honours reasons for either:

(a) refusing to act in accordance with the uncontested evidence of Ian Hopwood that she was specifically excluded from the deceased's estate and not intended to benefit under it; or

5 That the learned primary Judge erred in fact or alternatively in law by failing to have any or any sufficient regard to the evidence of Ian Hopwood that the deceased OWEN FORREST LORD did not intend the respondent to benefit under his estate."

57 The appellants rely on the affidavit of Ian John Hopwood, pars6 and 7, which state:

"6 I spoke to the late Mr Lord shortly after the late Mrs Lord's funeral, and advised him that his will included a beneficiary in the name of Len Hopwood. He told me that there was no error in his will as there was no such person as Len Hopwood.

7 Approximately 13 years prior to his death, Mr Lord requested that I become his executor. Subsequent to that time the late Mr Lord discussed with me on several occasions his estate and who was to benefit from it. Whenever the matter was discussed he made reference to the specific exclusion of Raymond Hopwood and my sister Lyn Cuthbertson. He told me on several occasions that Mrs Cuthbertson was not to be benefited as she had 'married a millionaire'."

58 The deponent was not cross-examined on his affidavit, but no party relied upon the material in support of their argument. There was a conflict between the above, par7, and the affidavit of Raymond John Hopwood, the father of Ian, par7, where he averred that:

"7 On many occasions Owen Lord stated to me words to the effect 'when I die its all yours'. He also on many occasions asked me to be his executor but due to the closeness of our relationship I did not feel that was appropriate."

59 There was no cross-examination of Raymond John Hopwood. Another passage of the affidavit of Raymond John Hopwood averred that:

"6 My children treated Owen and Gladys Lord as their grandparents and the Lords treated my children as their grandchildren. My children called Owen Lord 'Uncle Boy' and Gladys Lord 'Auntie Glad'."

60 On the primary argument of the appellants, a bequest by Ian Hopwood to Owen Lord in the terms "to my grandfather 'Uncle Boy'" ought fail because of uncertainty.

61 As to the reference that the deceased had been told of the error in the will, it could be properly said that on its face, without testing, it lacks credibility. Mrs Lord died on 4 November 1997 and Owen Lord on 13 July the following year. Ian Hopwood averred that:

"Upon reading her will it became apparent that there was an error in it in that it referred to a beneficiary in the name of Len Hopwood. Myself, my brother Andrew Hopwood and the said Len Hopwood were also incorrectly described in the will as grandsons."

62 The funeral referred to by Raymond John Hopwood occurred on 18 November 1997. It is likely that the terms of the will were known to the beneficiaries, who included the testator Owen Lord, and the mistake in the will of Gladys Lord discovered. It is inherently unlikely that Raymond Hopwood knew that there had been an identical mistake made in the will of Owen Lord as of the date of the funeral. But there is a more fundamental flaw in the purport of the affidavit. If Owen Lord was made aware of the error, he had ample time to correct it. It is reasonable to accept that he was content to leave the will as it was since he knew its meaning or he had forgotten about the matter and remained content until his death with the terms of his will. If he was not made aware then the evidence of Raymond John Hopwood on this point has no weight. The learned primary judge was not required to accept the evidence contained in the affidavit merely because the deponent was not cross-examined (Ian Rumney Office Equipment Pty Ltd v The State of Tasmania [1998] TASSC 6). The trial was primarily conducted by way of affidavit and documentation, and failure by the respondent to require cross-examination of a deponent does not mean that the learned primary judge was required to prefer that evidence to the documentary material and the interpretation which he placed on it. Given the interpretation which could properly be made of the testamentary disposition, he was not required to proffer the general assertion made by the deponent.

63 The grounds are not sustained. I would dismiss the appeal.

64 I have had the advantage of reading the reasons for judgment prepared by Underwood J. I agree with them. The appeal should be dismissed.