34 Ms Nash sought to draw from Mr Long's evidence the foundation of a finding that Mrs Long, in effect, signed whatever Mr Long asked her to sign and that she never had any independent intention of her own as to the content of her will; also that Mr Long gave instructions to the solicitors regarding Mrs Long's will not necessarily with her authority. I do not consider any such finding to be warranted. I accept that Mr Long had all the contact with the solicitors as to the preparation of the 1989 and 1994 wills. But I am satisfied, by Mr Long's evidence and the surrounding circumstances, that Mrs Long acquiesced in that and that the instructions Mr Long gave to the solicitors represented not only his intentions but also those of Mrs Long.
35 Mr and Mrs Long were married in 1942. By 1994, they had been husband and wife for more than 50 years. As Mr Long said in cross-examination, "My wife and I had a mutual loving relationship for 50 years, and we totally respected each other". He also said, as quoted above, "My wife was no fool". Mrs Long had worked from leaving school to age 65. She held clerical positions from middle age to her retirement. For a couple of years when younger, she had, with a friend, operated a small lending library and an adjoining cake shop. Mr Long had worked in commercial positions for the whole of his career and, at the time of his retirement, held a senior managerial post.
36 Ordinary experience would suggest that many women of that generation might be inclined to defer to their husbands in matters such as contact with solicitors. But it by no means follows that such women lack independence of thought or do not say what they think - merely that the exercise of such independence is likely to occur within the confines of the home and the marriage, without necessarily being obvious to outsiders. There is no reason to question Mr Long's evidence that he and his wife discussed together how their various wills should be framed, particularly as changes in the circumstances of their children occurred. Nor is there reason to question Mr Long's evidence that the instructions he gave to the solicitors represented the wishes of both of them, with Mrs Long's no less prominent than those of Mr Long so far as disposition of Mrs Long's estate was concerned. I accept his evidence that Mrs Long saw all letters to and from the solicitors and the various draft wills. I also accept that, with Mr and Mrs Long living in retirement at Hawks Nest, several hours' drive from Ebsworth & Ebsworth's office in Sydney, the fact that instructions were by letter and telephone, rather than face to face, is unexceptionable.
37 I am satisfied that Mrs Long saw Ms Buntine's letter of 15 February 1994 to Mr and Mrs Long enclosing drafts corresponding with the wills as eventually executed. That letter formed a sound basis for an opinion of or belief by a recipient and reader of the letter that, under the form of will prepared for Mrs Long, the "entire estate" would pass to Mr Long if Mrs Long died first. The matter was stated there in simple and straightforward terms. The message conveyed by the letter would, in all probability, not have been questioned by a layperson reading the form of will. Lawyers are, of course, attuned to the difference between "personal estate" and "real estate". Non-lawyers are not. A layperson reading clause 2 of what became Mrs Long's will may well not have appreciated that it did not (or may not) pass what the letter referred to as the "entire estate". The form of words was expansive: "… all my personal estate of whatsoever nature and kind and wheresoever situated to which I shall be entitled or over or in relation to which I shall have any power of disposition at the time of my death". A reader not versed in the finer points of legal phraseology might well regard the words following "personal estate" as designed to ensure that the provision was fully comprehensive in its operation and did not leave anything out; while the word "personal" in the expression "my personal estate" could easily have been seen as a synonym for "own" - so that the reference was to "my own estate". The first meaning of "personal" in the New Shorter Oxford English Dictionary (1993) is, after all:
"Of, pertaining to, concerning or affecting a person as an individual (rather than as a member of a group or of the public, or in a professional capacity etc.); individual; private; one's own."
38 Mr Long said that he read the clause in question and thought it dealt with the whole estate. There is no reason to think that Mrs Long could or would have formed a different view.
39 In short, a reading of clause 2 by Mrs Long would most likely not have aroused any suspicion that the will as drafted differed in meaning, in this aspect, from the brief description given in the letter of 15 February 1994; nor is there any evidence that any such suspicion actually arose.
Findings
40 It is established on the balance of probabilities, first, that when Mrs Long executed her will on 8 March 1994, she had seen the letter of 15 February 1994 in which the effect of the will was described as being that Mr Long "inherits the entire estate should Mrs Long predecease him"; second, that such a mode of disposition had been adopted in Mrs Long's wills of 1982 and 1986; third, that the instructions for the preparation of what became Mrs Long's 1989 will, by referring to "alterations in my will and that of my wife" and saying nothing about any change to the gift in favour of Mr Long should he survive, contemplated continuation of the mode of disposition in the 1986 will; fourth, that there was a mistake in the drafting of the 1989 will in that clause 2 referred to "personal estate" instead of "real and personal estate" thus leading to an entirely incongruous situation in which there would have been an intestacy as to real estate if Mr Long had not survived Mrs Long by the requisite period and clause 2 had been construed as not extending to real estate; fifth, that the solicitor who prepared what became Mrs Long's 1994 will honestly believed that the gift to Mr Long under clause 2 thereof encompassed the entirety of Mrs Long's estate; sixth, that that solicitor communicated her belief to Mrs Long by the letter of 15 February 1994; and, seventh, that there was nothing on the face of the form of the 1994 will that would have caused a person without legal training to regard it as being, in the material area, at odds with the description of it in the letter of 15 February 1994.
41 The court is accordingly satisfied, for the purposes of s.29A of the Wills Probate and Administration Act 1898, that the positive intention of Mrs Long was that clause 2 of her will dated 8 March 1994 should refer to "all my real and personal estate", being the "entire estate" mentioned in the 15 February 1994 letter, and not merely to any lesser part of that of that "entire estate" comprehended by the words "my personal estate".
A matter possibly relevant to discretion
42 I should add that it is not, to my mind, entirely beyond doubt that, if the court were called upon to construe clause 2 of Mrs Long's 1994 will, it would hold that the clause failed to dispose of real estate. The dispositive words are "give devise and bequeath". As a noun, "devise" refers to "that group or collocation of words reduced into writing which operates as a disposition of the testator's lands": Swinton v Bailey (1878) LR 4 App Cas 70 at p.79 per Lord Penzance. As a verb, "devise" refers to disposition of a testator's realty: Hall v Hall [1891] 3 Ch 389 at p.392 per Fry LJ. This, plus the expansive and comprehensive form of words immediately following "my personal estate" and the common meaning of "personal" to which I have referred at paragraph [37] above, may justify a finding that clause 2 operates upon the entire estate, although significant contrary indications would come from the addition of an express reference to real estate in the otherwise corresponding form of words in clause 7 and the fact that the will was prepared by a lawyer who must be presumed to know the significance of the legal terminology: see In re Cook; Beck v Grant [1948] Ch 212 at p.216 per Harman J.
43 I raise this question not because it requires an answer in the present proceedings but to make the point that the possibility that rectification is not needed does not stand in the way of the making of a rectification order as sought. In that respect, I consider the circumstances of the present case to be the same as those considered by Hodgson J in Application of Spooner; Estate J J Davis (unreported, NSWSC, 28 July 1995):
"Having regard to the way the codicil was expressed, it is arguable that, notwithstanding the mistaken deletion of CL4(i), the codicil, on its true construction, does indicate an intention that John Therry-Ward have a life tenancy of the house. This intention might be gleaned from the words "add to this clause" and "also" which appear in the substituted CL4(i), and from the terms of the added CL4(a). It might be argued that, if that is the true construction of the codicil, then it does not fail to carry out the testator's intentions.
I have come to the view that that would be too narrow a construction of s29A(1). It seems to me that the codicil does fail to carry out the testator's intentions, even if the codicil, on its true construction, makes the gift of the life tenancy of the house to Mr Therry-Ward. This is because it was the testator's intention to leave in the will the subCL(i), which the codicil was expressed as deleting; and also because the codicil made it a matter of doubt as to what was its effect whereas, clearly, the deceased's intention was to make a will which expressed with appropriate clarity what was to happen to her property.
The view that rectification is available in these circumstances has some support in relation to rectification of contracts from the Privy Council decision in Standard Portland Cement Co v Goode (1982) 57 ALJR 151 at 154, where the Privy Council expressed the view that, although the contract in question had the intended effect on its true construction, the appellant was entitled to rectification 'ex abuntanti cantela'. In my view, it is appropriate in this case to give rectification on the same basis."