Lockrey v Ferris

Background Facts 13The testator was born in November 1918. He was aged 91 years at the date of his death. 14The testator had never been married and he had no children. 15Although there is no specific evidence about this, I think it can be safely assumed, bearing in mind the age of the testator at the date of his death, that his parents did not survive him. 16The testator was one of five children. He was survived by only two of his four siblings, namely his sister, Marjorie Olive Lockrey ("Mrs Lockrey") and his brother, Gordon Seddon Brown ("Mr Brown"). There was evidence that one of his siblings, Jack, died in the 1930's at the age of 12 years and that the other, Keith, died in 2002. 17The evidence also reveals that Jack had no children or other issue. Keith had two children, one of whom was present at the hearing. 18Mr Stone was a friend of the testator for about 15 years prior to the testator's death. Mr Ferris had known, and been friends with, the testator for over 45 years. 19At a pre-trial directions held before me on 3 February 2011, I suggested that notice of the proceedings ought to be given to those persons whose interests might be affected by the determination of the claims of the parties. I had in mind, the next of kin, being persons entitled on intestacy who might wish to appear to argue in favour of an intestacy. 20There is evidence that written notice of the proceedings was given to Mrs Lockrey and to Mr Brown. (I should note that Mrs Lockrey is the mother of the Plaintiff.) 21Subsequently, Mr Brown stated, in writing, in a document headed "Consent by Affected Person", that he consented to the rectification of Clause 3(d) of the Will by the addition of the words "as should survive me" after the address of Mr Ferris. In effect, this means that he consents to the share that would have passed to Mr Stone passing to Mr Ferris. In these circumstances, there was no appearance, by, or on behalf of, Mr Brown, at the hearing. 22Mrs Lockrey's attorney, her daughter, Janice Beazley, acknowledged having read the contents of documents provided to her by the Plaintiff. She arranged for a solicitor to attend the second pre-trial directions hearing on 14 February 2011, but he did not state, then, the nature of his instructions. 23At the hearing, Mr D. Carbone, solicitor, again appeared on behalf of Mrs Lockrey. He handed up (and I marked as an exhibit), Mrs Lockrey's written Consent by Affected Person, which was in virtually identical terms to the Consent provided by Mr Brown. 24I was informed, from the Bar table, that as beneficiaries who would be entitled on an intestacy, each of Keith's children did not consent to the share which would have passed to Mr Stone, passing to Mr Ferris. This information followed a request that instructions be obtained, in light of the consent of the two siblings of the testator. 25Otherwise, numerous citations have been issued to the beneficiaries named in the Will and in the codicil. No other beneficiary filed an appearance, or otherwise sought to be joined as a party to the proceedings. In those circumstances, it seemed unnecessary to seek to have someone appointed to represent the interests of the other beneficiaries whose shares might be enlarged by the failure of the gift to Mr Stone. I am satisfied that counsel for the Plaintiff put the arguments in favour of those beneficiaries.

Instructions for the Will 26The person who drafted the Will predeceased the testator. 27The Plaintiff's evidence, however, reveals that: (a)The testator used the services of his business friend, Barry Aubin, of B& M Property Transfers, to help prepare the Will. (b) Mr Aubin was a conveyancer and not, apparently, a solicitor. (c) In about early June, 2002, Mr Aubin telephoned the Plaintiff, whom he also knew, and for whom he had done work, and informed him that the testator was with him and that "he's got me doing his Will". (d) Investigations carried out by the Plaintiff, with a current principal of B & M Property Transfers, reveals that there are no files, or other details, relating to the Will. No documents have been located at its offices, despite an extensive search. 28It follows that there is no evidence, other than the Will itself, going to any instructions that the testator may have given Mr Aubin. Importantly, it is not known what, if any, instructions were given by the testator about what was to occur in the event that either beneficiary referred to in Clause 3(d) predeceased the testator. 29The Plaintiff gives some evidence that, following Mr Stone's funeral, in January 2008, he spoke to the testator, who stated he had remembered Mr Stone in his Will. When asked what would happen to that now that Mr Stone was dead, the testator replied: "It will all go back into the estate". The parties agree that this conversation is not relevant to the intentions of the deceased at the time he made the Will.

The Will 30The following matters should be noted about the Will: (a) In Clause 3, the testator gave "all" his "real and personal property not hereby or by any Codicil otherwise disposed of" to the Plaintiff "to pay debts funeral and testamentary expenses and all probate and other duties"; (b) The testator defined what was left after that payment as "my residuary estate"; there was, otherwise, no residuary clause; (c) the "residuary estate" was divided into 100 equal parts, a different number of parts being given to five separate, and distinct, categories of beneficiaries (totalling 37 beneficiaries in all); those categories were "my brother and my sister" (8 parts), "my nephews and nieces" (45 parts), "the children of the children of [my sister, Marjorie Olive Lockrey]"; (the Will referred to the children of three of the children of Marjorie Olive Lockrey, whilst the codicil referred to the children of her fourth child) (20 parts); "my friends" (3 parts) and finally, "charitable institutions" (24 parts); (d) Clauses 3(a), (b) and (e), provide for the shares to be divided equally between the named beneficiaries; (e) Clauses 3(c) and (d) do not state how the shares are to be divided between the beneficiaries named; there are no words included such as "between" or "amongst" before the two named beneficiaries; (f) Clause 3(a) provides for the gift to the named beneficiaries "as survive me and if more than one in equal shares"; Clause 3(b) refers to any nephew, or niece, predeceasing the deceased leaving a child, or children, surviving, sharing the share his, her, or their parent would have taken had such parent survived; Clause 3(e) refers to the share or shares payable to an institution which is dissolved or ceasing to exist being "paid to the other institution or institutions entitled to receive a share"; (g) Clauses 3(c) and 3(d) have no express accrual, or substitution, provision, in the event that any beneficiary named therein predeceases the testator; there is no reference to whether the beneficiaries named take as joint tenants, or as tenants in common, and in the latter case, in what shares they take; (h) Clause 5 speaks of any interest of any person, if subject to that person living to a specified point in time, or age, or both, being a contingent interest and one which does not vest until he or she shall live to the specified point in time or age or both.

The Proceedings 31The Plaintiff did not commence the proceedings until 13 months after the death of the deceased. 32In the Summons, the Plaintiff relevantly claims: "1. A determination of the question whether on the true construction of the will of the late Henry Lloyd Brown ["the Testator"] dated 14 June 2002 ["the Will"] and the Codicil dated 24 July 2002, and in the events that have happened, the gift of a share of 3/100 th part of the residue of the Estate to Anthony Stone ["Stone"] contained in Clause 3[d] of the Will, Stone having predeceased the Testator:- (a) is to be construed as being part of Brian Alexander Ferris' ["the Defendant"] share of the residue; he having survived the Testator; or (b) is to be construed as falling into residue; or (c) if neither [a] nor [b], how such share should be applied. 2. Declaration that the Plaintiff as executor of the Deceased's estate be at liberty to distribute the estate in accordance with the determination of the court in paragraph 1 above." 33In the Cross-Claim, the Defendant relevantly claims: "1. A declaration that the testator intended by clause 3(d) of the Will to devise 3 of 100 equal shares of his residuary estate to such of Anthony Stone and Bruce Alexander Ferris as should survive him. 2. An order extending the time for making an application for rectification up to and including the date of the filing of this cross-summons. 3. An order that the Will be rectified by: (i)the deletion of the word "as" appearing between the words "such" and "my" in the second line of clause 3(d) of the Will and in its place inserting the word "of"; (ii)inserting the words "as shall survive me" after the word "Hurstville" in clause 3(d) of the Will." 34The hearing proceeded by reading the affidavits relied upon by each party. There was no cross-examination of any deponent. Counsel then spoke to the written submissions, which had been filed, and served, in accordance with previous directions, and which submissions I shall leave with the court file. 35The parties agreed that the share which would have passed to Mr Stone either: (i) passes to Mr Ferris; (ii) lapses and passes on intestacy to the next of kin; or (iii) is divided between the 98.5/100 remaining shares.

Preliminary Matter 36Although, there is distinction between a suit for construction, and a suit for rectification, of a will, and there have been cases in which it is suggested that they should be dealt with separately (e.g. Estate of Max Frederick Dippert [2001] NSWSC 167 (at [20]), I am of the view that, since the Civil Procedure Act 2005, both matters may be decided in the one proceedings. 37One commentator has described the legislative power that enables the court to rectify a will as "obviating the need for an interpretation or construction of the document" (David M Haines, Construction of Wills in Australia (2007) at [1.6]). 38I respectfully agree with the view expressed by Pagone J in ANZ Trustees Limited v Hamlet & Ors [2010] VSC 207 at [3]: "the power in provisions such as s 31 of the Act does not remove the need for the proper construction of a Will and is not an optional alternative for the proper construction of the terms of a Will. Indeed, it is a condition precedent to the exercise of the power in s 31 that the court be satisfied that the Will does not carry out the testator's intentions and that this satisfaction be based on one of two specified reasons namely, either that a clerical error was made or that the Will does not give effect to the testator's instructions. The existence of the second of these conditions requires the Will to be construed and to be found upon its proper construction not to give effect to the instructions of the testator." 39In this case, there was no submission that the two issues should be dealt with in separate hearings. The only discussion related to which should be dealt with first, the claim for rectification or the claim for construction. 40In this regard, the parties submitted that the rectification issue should be determined first. It seems to me, however, whilst different approaches may be taken to which should be dealt with first, in this case, it would be more convenient to determine the construction issue first, and then, if necessary, determine the rectification suit. 41In this case, there was no evidence able to be read on one suit that could not be read on the other.

Construction of the Will - Principles 42There was no real dispute as to the principles that apply in construing a Will. 43What has been described as the ten 'incontestable principles' for the construction of wills, described by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273-275, should be remembered, as they are, for the most part, as apt today as they were almost 90 years ago: "(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 Chelmsford, L.C, in Abbott v Middleton , 7 H.LC at p 88; Lord Wensleydale, ib., p 114. 2 (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 , 13 AC 294 at p 301; Ward v Brown , 31 T.L.R p 545; Buckley, LJ, in Kirby-Smith v Parnell , (1903) 1 Ch at p 489.) (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 , 11 Moo. P C. 526 at p 543; Hawkins on Wills (2nd ed), at p 6). (4) "An inference cannot be made that does not necessarily result from all the will taken together" - Sir R P Arden, M.R, in Upton v Lord Ferrers , 5 Ves Jun 801 at p 804. "A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed" (James, LJ, in Crook v Hill , 6 Ch App p 311). (5) "We cannot give effect to any intention which is not expressed or plainly implied in the language of (the) will" (Lord Watson, in Scale v Rawlins , (1892) AC 342 at pp 344-345). "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 , 2 Cl & F. 194 at p 237.) (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, LJ, in Pride v Fooks, 3 De G. & J 252 at p 266). (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, VC., in Hope v Potter , 3 K. & J 206 at p 209). (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 , 2 Cl & F. at p 243. (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 , 2 Cl & F. at pp 240 and 241. (10) "The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills" (Lord Shaw in Lightfoot v Maybery , (1914) AC 782 at p 802). "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, LJ, in Kirby-Smith v Parnell , (1903) 1 Ch 483 at p 489)." 44More recently, In Coorey v Coorey (NSWSC, 22 February 1986, unreported), Powell J (as his Honour then was) said, in a passage approved by Bryson J in Perpetual Trustee Co. Ltd v Wright, Re Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18, at 33; and repeated again by Hamilton J in Hatzantonis v Lawrence [2003] NSWSC 914; by Gzell J in Peoples v Simpson [2005] NSWSC 355; and by Hamilton J, again, in Arnott v Leong [2009] NSWSC 187; and by Campbell JA in Fairbairn v Varvaressos [2010] NSWCA 234 at [19]: "... It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect of the scheme so revealed." 45In Muir v Winn [2009] NSWSC 857, Bryson AJ added: "24 It is necessary to seek to understand the scheme of a testator's dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important." 46It is necessary, in relation to the estate of a person who dies after 1 March 2008, to refer, on the question of construction, to the Succession Act 2006, which so far as is relevant, by s 32 provides: "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. (2) Despite subsection (1), evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will." 47In this case, it is accepted by the parties that there was no extrinsic evidence that could be used to construe the Will. 48Before leaving consideration of the construction of the Will, it is necessary to consider the concept of a "class gift". 49Black's Law Dictionary , 6 th Edition, (1991), defines "class gift" (at 249) as "A gift of an aggregate sum to a body of persons uncertain in number at time of the gift, to be ascertained at a future time, who are all to take in equal, or other definite proportions, the share of each being dependent for its amount upon the ultimate number." 50In Halsbury's Laws of Australia , Vol 50, it is said: "Prima facie a class gift is a gift to a class of persons included and comprehended under some general description and bearing a certain relation to the testator or another person or united by some common tie. Thus, where a testator divides his residue into as many equal shares as he shall have children surviving him, or predeceasing him leaving issue, and gives a share to, or in trust for, each such child, the gift is to a class. There may also be a class compounded of persons answering one or other of alternative descriptions, for example 'the children of A and the children of B', or 'the children of A who attain twenty-one and the issue of such as die under that age'." 51In G L Certoma, The Law of Succession in New South Wales , 3rd ed, (1997), the learned author summarised, at 178, the operation and purpose of the rule relating to class gifts as follows (omitting citations): "Examples of class gifts are 'to my grandchildren', 'to my grandchildren A, B and C and such of my grandchildren hereafter born', 'to A, B, C and D if living'. The essence of a class gift is that if a potential member of the class cannot take, the shares of the remaining members are increased and so there is no question of the gift becoming partly undisposed of. The potential member may not be able to take for any one of a number of reasons such as death before the testator or before attaining a vested interest, express exception or revocation by the testator, attestation of the will, or the felonious killing of the testator. A true class gift must be distinguished from a series of independent gifts to the members of a class, the difference being that in the latter case the gift of each member of the class is quantified from the beginning as if each person had been given a separate gift and if any such gift fails it does not augment the shares of the remaining members of the class but passes as part of the residue or on intestacy as the case may be, for example, a gift equally to 'my nine grandchildren' or 'to the three children of A'. Gifts to several persons by name, number or reference are not usually true class gifts." 52This passage was referred to, with approval, in Arnott v Leong at [13]. 53In Re Chaplins' Trust (1863) 12 WR 147, 148, Page-Wood VC held: "A gift to a class...is a gift to a set of persons all filling one common character, or holding some definite position, and a gift to a number of residuary legatees does not thereby constitute them a class. Where there is a gift to children as tenants in common this is a gift to a class as tenants in common, the members of the class not being ascertained until the death of the testator. In the same way a gift to executors as such, being made to them in that capacity, is a gift to them as a class, and on the death of one of the persons named in the testator's lifetime, his share will not lapse, but go to the survivors." 54In Pearks v Moseley (1880) 5 App Cas 714 at 722-723, Lord Selborne LC said: "A gift is said to be to a "class" of persons, when it is to all those who shall come within a certain category or description defined by a general or collective formula, and who, if they take at all, are to take one divisible subject in certain proportionate shares; and the rule is, that the vice of remoteness affects the class as a whole, if it may affect an unascertained number of its members." 55In Bentinck v Duke of Portland (1877) 7 Ch D 693 at 698, Fry L.J. said: "It is a class gift where the total and ultimate amount of the share to be taken by any one donee cannot be ascertained until all the persons who are to take, and the ultimate proportions in which they are to take, are finally ascertained." 56The concept of a gift to a class of persons was very plainly described by Lord Macnaghten in Kingsbury v Walter & Ors [1901] AC187 at 191: "When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting the body as individuals, and so you can see that he intended that if one or more of that body died in his lifetime, the survivors would take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator." 57Thus, a gift to a class is characterized by the use of a term descriptive of the persons to be included in the class. But there may be a class gift notwithstanding that one, or more, persons are individually named: see, Kingsbury , at 192, per Lord Davey. However, a direct reference to specific individuals ordinarily suggests that they are to take as particular persons, and not because they answer a description ( Tompkins v Simmons & Ors (1931) 44 CLR 546 at 557, per Dixon J). 58In In re Peacock deceased, Midland Bank Executor and Trustee Co Ltd v Peacock [1957] Ch 310 the words of the residuary gift were: "Upon trust for such of them my said wife Gladys Peacock my stepson Stanley Abbott Peacock and my son Douglas Peacock as shall survive me and attain the age of twenty-one years and if more than one in equal shares as tenants in common absolutely and if one only then the whole to that one." 59Upjohn J (after referring to the decision of Maugham J in In re Woods [1931] 2 Ch 138) said, at 314: "It may not strictly be a class gift, for the wife, stepson and son all respectively stand in a different relation to the testator, but so far as lapse is concerned the testator has made it abundantly clear that this gift is tantamount to a class gift. It is a gift to a "group"... but for the purposes of lapse it has the characteristics of a class gift ." 60His Lordship added, at 316: "It can, in my judgment, be no valid ground of distinction that this is a gift not strictly to a class but to a group."

The Statutory Scheme - Rectification 61Section 27 of the Succession Act provides: "(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." 62The proceedings to rectify have not been brought within 12 months of the deceased's death. However, it is clear that final distribution has not been made. 63In this case, the Plaintiff neither consents to, nor opposes, the time period for the making of the application for rectification being extended. Thus, the question which might arise, is whether the court considers it necessary to extend the period of time for the making of the application. Unlike s 29A of the Probate & Administration Act 1898, that is the sole requirement in determining the extension of the time period. "Sufficient cause" for not having made the application within time no longer has to be established. 64The application may be brought after probate has been granted: The Estate of Cecil Douglas Brisbane (NSWSC, Powell J, 19 June 1992, unreported); Huszar (Re Estate of) [1999] NSWSC 388; Rawack v Spicer [2002] NSWSC 849. 65Section 27 provides that "[T]he Court may". "May" is permissive; it is not directory, or mandatory. There is nothing in the circumstances contemplated by the section that leads to the conclusion that the Court must rectify the Will. 66It is a condition precedent to the exercise of the power in s 27 that the Court be satisfied that the Will does not carry out the testator's intentions and that this satisfaction be based on one of two specified reasons, namely, either that a clerical error was made, or that the Will does not give effect to the testator's instructions. 67It is clear then, that the Court must make findings about the "intentions" of the testator because, until it does, it cannot be satisfied that the Will does not carry out those intentions. Thus, what it was that the testator intended concerning the part of the will that is to be rectified must be established. What must be shown is the actual intention, not what the intention probably would have been had the testator thought about the matter. 68The intention must be examined as at the date of the Will, not the date of death: Re Estate of Spinks; Application of Mortensen and Eassie (NSWSC, Needham J, 22 August 1990, unreported); and in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales , (NSWCA, 12 December 1991, unreported) at 5; Rawack v Spicer at [27] - [28]; Vescio v Bannister (Estate of the late Betty Tait ) [2010] NSWSC 1274 at [5]. 69Rawack v Spicer was cited, with approval, by Barrett J in Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002. His Honour then went on to say: "9 The important point is that the court must be satisfied, according to the balance of probabilities, as to not only a negative proposition (that the testatrix did not intend the will to be in the form it eventually took) but also a positive proposition (that the testatrix intended the will to be in the form for which the plaintiff contends). This is the effect of the statute and, as Sheller JA observed in Mortensen v State of New South Wales (unreported, NSWCA, 12 December 1991), the court's task is to give effect to the language of the section without paying "over much regard to the principles evolved by equity as part of the doctrine of rectification". 10 In Trimmer v Lax; Estate M A Fresen (unreported, NSWSC, Hodgson J, 9 May 1997), it was pointed out that a plaintiff in a proceeding of this kind must show the deceased's actual intention, not just what he or she would have intended if thought had been given to the matter." 70Although the standard of proof on the issue is on the balance of probabilities, clear and convincing proof is required: ( Re Estate of Dippert [2001] NSWSC 167 at [34]); Rawack v Spicer at [30] - [31]. 71The meaning of " testator's intentions " was considered in Re Swain [2008] NSWSC 1343: " 25 Section 29A refers to the intention of the testator. In Mortensen v New South Wales (NSWCA, 12 December 1991, unreported) Sheller JA, with whom Mahoney and Meagher JJA agreed, said that s 29A: "is available for mistakes, not for lack of vision or perception or knowledge. It is a section directed at mistakes in expressing the testator's intentions." 26 In that case the testatrix had made it manifestly clear that she did not want her money to "go to the government" which for all intents and purposes meant she did not want to die intestate. However, there was a failure of one of the gifts she made and the result was that there was a partial intestacy. It was argued that the testatrix's intentions were that no monies should go to the government, and accordingly the will should be rectified. 27 The Court of Appeal, like Needham J at first instance, dismissed the application. Sheller JA said that it would seem on the evidence that the will was so expressed as not to carry out the testatrix's intentions. However, the section does not only require the court to find that fact, but also to find that the court can rectify the will "as to carry out the testator's intention". In the Mortensen case even though the intentions were that no monies should pass to the government, the testatrix had not indicated which of the possible options she would wish to pursue had she realised that her primary gift failed. Accordingly, the will could not be rectified." 72If there is no evidence to show what the testator's intention was in the event of certain things happening, the Court cannot rectify the will. 73Thus, the three questions posed by the section are, first, what were the testator's actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the testator gave instructions in connection with the will, to comply with those instructions?

Consideration 74The fact of executing a will with the necessary formality, establishes that the testator did not intend that his estate would be distributed on intestacy: In the Estate of Epheser Deceased [2008] SASC 311 at [50]. It is clear also, from the terms of Clause 3 of the Will, that his intention was to deal with the whole of his estate in the Will and that he did not intend any part to be distributed on intestacy. 75The evidence also establishes that the testator recalled, three years later, that he had made the Will and, at least, its contents so far as they related to Mr Stone. This also is consistent with the deceased's intention to have the Will deal with his estate. 76On the construction issue, neither counsel expressly submitted that the gift in Clause 3(d) to Mr Stone and Mr Ferris was to them as joint tenants, since the clause was silent as to whether they took the gift as joint tenants, or tenants in common, and because there were no words of division such that they took in "equal shares". 77It was, however, pointed out by counsel that there were no words of division or distribution in the Clause, such that they took in equal shares. 78The appearance of the Clause, with a new line, commencing after the address of Mr Stone, and before the inclusion of the name and address of the Defendant, was also highlighted. 79In Williams on Wills , C.H Sherrin, R F D Barlow and R A Wallington (eds), 7th ed, (1995), at 767, it is said: "Where property is given to several persons concurrently, the questions whether those persons take as joint tenants or tenants in common, and in the latter case, in what shares they take, depend on the context of the whole will. Prima facie they take as joint tenants, but it has been said that, in considering the context, anything in the slightest degree indicating an intention to divide the property negatives the idea of a joint tenancy, and in a case of ambiguity the court leans to the construction which creates a tenancy in common in preferences to that which creates a joint tenancy." 80There is merit in reading Clause 3(d) with this principle of construction in mind. 81Even if I were not to use that principle in construing the Will, I am of the view that the testator's "scheme" is very clear. The testator wanted the beneficiaries identified in separate, and distinct, categories, of which there were 5, to inherit all of the shares that were to pass to the beneficiaries named in that individual category. 82I do not think that the testator intended, by the Will, that if any part of the gift made to the persons, or institutions, identified in one category, lapsed because one of the beneficiaries named predeceased him, that the other categories would be enlarged, or that any share would pass to his next of kin, on intestacy. This is demonstrated clearly by the contents of Clause 3(a), (b) and (e). No reason was advanced why the testator would wish a different result in respect of Clause 3(d). I have been unable to think of one. 83Furthermore, when one considers the number of shares given to each category, one can see that the testator carefully considered the division of his estate. To his surviving siblings, who are elderly, and are unlikely to have a financial need that was great, he gave 8 shares; his nephews and nieces, who were likely to be of an age where provision for them would be by way of advancement, received 45 shares between them; his long-time friends, who were not related by blood, received 3 shares; his great nieces and great nephews, with whom he may have had a closer relationship, and who were younger, received 20 shares between them; finally, the charitable institutions received 24 shares between them. 84In this regard, I am satisfied that the gift in Clause 3(d) is tantamount to a class gift with the result that the survivor, the Defendant, takes. 85In my view, upon the true construction of the Will, all of the shares referred to in Clause 3(d), which would have passed to Mr Stone had he not predeceased the deceased, pass to the Defendant absolutely. 86Although, in light of my conclusion on construction, it is unnecessary to express any view on the rectification issue, in case I am wrong on the issue of construction, I state that I am not satisfied that the testator expressed any actual testamentary intentions to Mr Aubin, the draftsman of the Will. What his instructions were is impossible to glean. There is no evidence of any conversation with Mr Aubin and there are no notes, or written records, of what the testator may have said. There is nothing that occurred at the time that he made the Will that would justify me inferring that he had any expressed particular intention about what would happen in the event that one of the beneficiaries named in Clause 3(d) did not survive him. There is simply no basis for determining what the testator said on this topic, or if he said anything at all. 87Without knowing what, if anything, the testator communicated to the draftsman of the Will, I am unable to conclude that s 27 applies, and cannot, therefore, order rectification of Clause 3(d). It is, therefore, unnecessary, for me to decide whether there was a clerical error, and if so, whether it is necessary to extend the time period for making the application for rectification. 88It follows, that I do not propose to make an order rectifying the Will in the way sought by the Defendant. Accordingly, the claim for rectification will be dismissed. 89I order that, upon the true construction of the Will, the 3 shares in Clause 3(d) of the Will pass to the Defendant absolutely. 90I dismiss the Cross-Claim.

Costs 91The parties to the proceedings agreed that the Plaintiff's costs, calculated on the indemnity basis, and the Defendant's costs, calculated on the ordinary basis, should be paid, and that as the issues for determination were, in effect, caused by the testator, that those costs should be paid out the estate, as a testamentary expense, rather than out of the proceeds of the three shares of the estate the subject of dispute. 92Costs are, of course, entirely in the discretion of the court. I am of the view that the order contemplated by the parties is appropriate in the circumstances of this case. I am fortified in reaching this conclusion by Murdocca v Murdocca (No 2 ) [2002] NSWSC 505, at [61], in which Campbell J, as his Honour then was, noted: "The question of what is included in testamentary expenses was examined by Harvey J in Allen v Attorney-General [15 SR 41, at 43-4]. They include the expenses of getting in the testator's assets, and of ascertaining who the persons are to whom it is the executor's duty to hand over the various portions of the testator's property. Any costs incurred for the purpose of identifying these persons, whether it be occasioned by obscurities in the will or by difficulties arising dehors the will, are testamentary expenses: Re Baumgarten [82 LT 711]; Re Hall-Dare [1916] 1 Ch 272]; and (apart from anything in the will or by statutory rule provided) are payable before the residue is ascertained: Re Giles [55 LT 51]." 93I therefore make the order agreed by the parties. 94I have not made an order for costs of any other party. I note that no order was sought by, or on behalf of, Mr Brown. Mr Carbone, the solicitor for Mrs Lockrey, specifically, stated that he did not seek any costs.

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