Palethorpe v The Public Trustee of Queensland & Ors [2011] QSC 335

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - jurisdiction and discretion of the Court - statutory powers under s 33 Succession Act 1981 to rectify will to reflect testamentary intentions - where application brought more than six months after testator's death - where testator's will contained a clause bequeathing to the applicant "my unit at 2/55 Hill Parade, Clontarf" - where the testator owned three units at that address -- whether clerical error made - whether will gave effect to testator's instructions

Land Title Act 1994 (Qld), s 60

Succession Act 1981 (Qld), s 33

Succession Act 2006 (NSW), s 27

Sustainable Planning Act 2009 (Qld), s 7, s 10(1), s 232, s 235, s 597

Sustainable Planning Regulation 2009 (Qld), reg 9

Wills Act 1968 (ACT), s 12A

Wills Act 1936 (SA), s 25AA

Wills Act 1997 (Vic), s 31

ANZ Trustees Ltd v Hamlet [2010] VSC 207

Ashton v Ashton [2010] QSC 326

Bakranich v Robertson [2005] WASC 12

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

In the Estate of Epheser Deceased [2000] SASC 311

Lockrey v Ferris [2011] NSWSC 179

McCorley & Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Norman Pakleppa & Ors [2005] QSC 83

Perpetual Trustees WA Ltd v Riverwest Pty Ltd [2004] WASC 81

Public Trustee of Queensland v Roberts [2004] QSC 199

Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339

Rawack v Spicer [2002] NSWSC 849

Re Allen [1988] 1 Qd R 1

Re Bryden [1975] Qd R 210

Re Dippert [2001] NSWSC 167

Re Estate of Maree Kaye McLennan [2011] QSC 331

Re Leaver [1996] QSC 28; [1997] 1 Qd R 55

Re Morris [1971] P 62

Re Segelman [1996] Ch 171

Wesley v Wesley [1998] SASC 7054; (1998) 71 SASR 1

Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412; [1992] 3 All ER 204

Vescio v Bannister [2010] NSWSC 1274

Official Solicitor for the Public Trustee for the first respondent

**[1] The applicant, Helen Christine Palethorpe, brings an originating application pursuant to s 33 Succession Act 1981 (Qld) ("the Act"), for rectification of the will dated 15 December 2009 ("the Will") of the late Melita Sylvia Keith ("the deceased").

[2] The applicant was a friend of the deceased, who first met the deceased when she was a tenant of the deceased's unit at 2/55 Hill Parade, Clontarf in 2004. The applicant was subsequently appointed by the deceased to be her personal/health attorney by an Enduring Power of Attorney on 15 December 2009. The deceased also appointed the Public Trustee (the first respondent) as her financial attorney.

[3] The deceased, who was born on 14 November 1939, was a widow and had no children. The second respondents, Lisa Jenny Carson and Kym Gallitz are the deceased's nieces and are her only known relatives. They have resided in Melbourne since 1981.

[4] At the deceased's death, on 30 January 2010, her estate consisted of:**

House at 26 Osborne Terrace, Deception Bay $270,000.00

**[5] The property at 55 Hill Parade, Clontarf, which was purchased by the deceased in May 2001, comprised three home units, which, as it seems the deceased was aware, were on one title.

[6] By cl 6.01 of the Will, a specific bequest was made of a unit at 55 Hill Parade, Clontarf to the applicant. The clause is in the following terms:**

"I GIVE to my friend HELEN PALETHORPE of 11 Lauderdale Court, Kippa-Ring my unit at 2/55 HILL PARADE CLONTARF QUEENSLAND and all my household furniture and household effects (other than motor vehicles) therein at my death."

By cl 6.02 the deceased gifted "my house and land at 15 Kagara Street, Kippa-Ring and all my household furniture and household effects (other than motor vehicles) therein" to Frank Harder. By cl 6.03 the deceased gifted "my house and land at 26 Osbourne Terrace, Deception Bay and all my household furniture and household effects (other than motor vehicles) therein" to Luafulu Papa. The residue was gifted to the second respondents equally.

**[7] The originating application seeks an order that cl 6.01 be rectified in effect so that cl 6.01 is deleted and replaced with a clause in the same terms, save that it specifies a bequest of the "units at 55 Hill Parade, Clontarf", in lieu of the "unit at 2/55 Hill Parade, Clontarf". As counsel for the applicant acknowledged, the consequence of the gift of only unit 2 is that units 1 and 3 fall into residue to be distributed to the second respondents.

[8] The crux of the applicant's case was that, recognising that at the time the deceased gave instructions she owned the whole of 55 Hill Parade, she intended to give and gave instructions that there be a gift to the applicant of the whole of that property comprising the three units, instead of one of the three units. It was contended that, to the extent that the Will provided for a gift of only one unit, it contained an error and did not give effect to the deceased's instructions. Moreover, it was contended that, as the units were all on one title, unit 2 was not able, at the date of the instructions given by the deceased, to be gifted separately.

[9] The application is opposed by the second respondents, who are separately represented from the estate.

[10] The originating application was filed on 29 March 2011. A rectification application must be made within six months of the testator's death (s 33(2) of the Succession Act 1981), however the Court may extend that time (s 33(3)). The originating application was not filed within six months of the deceased's death. However, the estate has not been distributed and none of the respondents oppose an extension of time being granted. In the circumstances, leave to bring the application out of time is granted.**

Section 33 of the Succession Act 1981 (Qld)

[11] Section 33(1) of the Succession Act 1981 provides:

"The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator's intentions because -

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

[12] Section 33 was introduced as part of substantial amendments to the Act which came into effect on 1 April 2006 and which enacted the legislative reforms recommended by the National Committee for Uniform Succession Laws in its Consolidated Report to the Standing Committee of Attorneys-General on the Law of Wills: see Queensland Law Reform Commission Miscellaneous Paper No. 29 Dec 1997.[1] Equivalent legislation to s 33 is found in other jurisdictions: see s 12A Wills Act 1968 (ACT), s 31 Wills Act 1997 (Vic), s 27 Succession Act 2006 (NSW), cf s 25AA Wills Act 1936 (SA) which is in broader terms.[2]

[13] I note that in the applicant's written submissions, in the alternative to an order for rectification, the applicant applied for the matter to be dealt with as one of construction. In this regard, it was submitted that there is no separate or different evidence which would be received on the construction application which would not be receivable on the rectification application. The applicant submitted that on either basis, the property at 55 Hill Parade should pass to the applicant, given that the deceased owned three units at 55 Hill Parade, Clontarf, which comprised the whole of 55 Hill Parade, which were on one lot and that there was good evidence that the deceased intended to gift the entirety of 55 Hill Parade, not a distinct part of it, to the applicant. It was submitted that the construction application would require that cl 6.01 of the deceased's will be read and construed (consistently with the order that is sought for rectification) as if it read:

"I GIVE to my friend HELEN PALETHORPE of 11 Lauderdale Court, Kippa-Ring my units at 55 HILL PARADE CLONTARF QUEENSLAND and all my household furniture and household effects (other than motor vehicles) therein at my death."

**[14] However, the applicant did not seek to amend the originating application to seek orders as to the construction of the Will. Indeed, counsel for the applicant expressly disavowed that course. Rather, counsel submitted that the authorities indicated that in considering whether an order for rectification should be made, it is relevant to consider what the testator's actual intentions were and in that regard, the rules in relation to construction were equally apposite.

[15] The applicant's submissions that, in the alternative to an order for rectification, the matter should be dealt with as one of construction without the need to amend to originating application to seek orders in respect of the construction of the Will, misconceives the nature of the jurisdiction in s 33 of the Succession Act. Although s 33 does require the Court to consider the testator's intentions and to construe the will in the context of s 33, this is directed to considering whether clerical error or failure to give effect to the testator's instructions is demonstrated.

[16] In that regard, I note that in ANZ Trustees Ltd v Hamlet [2010] VSC 207, Pagone J in considering the operation of the Victorian provision, observed at [3] that:**

"... 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 a 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."

"It may be, therefore, that there are circumstances when the power in s 31 of the Act can be exercised where the proper construction of the Will 'means the same as the clause as rectified,' but it is still necessary for a court to be satisfied that the Will, as properly construed, 'does not carry out the testator's intentions' for one of the two reasons specified in the section. Whether or not a court will be satisfied in those terms will depend upon the particular circumstances of the case and the particular Will in question but, in my view, it is not appropriate for a court simply to assume that the power to order rectification 'obviates the need for an interpretation or construction of the document'. That does not mean that a party seeking rectification is always obliged to seek orders for the construction of the Will but it does mean that the statutory condition upon which the court's power depends must be satisfied. In some cases the error will be so apparent that the condition will easily be satisfied making it unnecessary to seek orders construing the Will. In other cases it may be prudent for orders to be sought concerning the proper construction of the Will if for no other reason than to ensure that the parties to the proceeding may rely upon (or be bound by) the construction given by the court and by the formal orders and declarations of the court. " (footnotes omitted)

[18] In Vescio v Bannister [2010] NSWSC 1274, Barrett J explained at [12]-[15] the need, in context of the identical New South Wales provision, for the court to be satisfied that the will, as properly construed, does not carry out the testator's intentions:

"Implicit in [the section] is an assumption that the testator gave 'instructions' as to the content of the will. 'Instructions' are, of their nature, communicated by one person to another with a view to compliance or obedience by that person ...

Having ascertained 'the testator's instructions', the court must construe the will as executed and compare its effect, according to its proper construction, with those instructions ... Only if some discrepancy appears can an order be made under [the section]; and the only permissible order is one that causes the will to be in a form that carries out the testator's 'intentions'.

It follows that the court must also make findings about the 'intentions' of the testator - necessarily, of course, the 'intentions' existing when the will was made. It is those 'intentions' that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the 'intentions' of the testator correspond, as to content, with the 'testator's instructions'. I say this because, in the ordinary course, a testator's intention is that his will should implement the instructions he gives for its preparation. It is with that intention that [the section] is concerned. This seems to have been assumed in ... Lawlor v Herd [2010] QSC 281." (emphasis added)

**[19] Likewise, in Hamlet, Pagone J said at [3] in respect of the Victorian legislation that it "requires the Will to be construed and to be found upon its proper construction not to give effect to the instructions of the testator."

[20] The remarks made in Vescio v Bannister and Hamlet are apposite in relation to s 33 of the Succession Act 1981.**

[21] In Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 Qd R 26, Atkinson J at [47] stated that under s 33 of the Succession Act 1981, the court is required to engage in a four stage process:

(2) Does the will fail to give effect to the testator's instructions?

(3) If either or both of the above have occurred, has this caused the will not to carry out the testator's intentions?

(4) If so, the court may rectify the will to carry out those intentions.

[22] I accept the submissions made by counsel for the first respondent that the authorities establish the following principles which are pertinent in the present case:

(a) There is a difference between ascertaining the testator's intention as to the effect of the words used in the Will and ascertaining the testator's intention as to whether or not those words should appear in the Will. It is the latter enquiry which is relevant: Hinds v Collins [2005] QSC 362; [2006] 1 Qd R 514 at 516. It is not sufficient for the purpose of an order for rectification to establish that the testator would not have wanted property to go in a way that, in the events which have happened, a particular clause results in property going: Re Dippert [2001] NSWSC 167 at [17]; Hamlet at [14].

(b) The due execution of a will raises the presumption that the testator knew and approved of its contents: Re Bryden [1975] Qd R 210 at 212-3, Public Trustee of Queensland v Roberts [2004] QSC 199, McCorley & Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Norman Pakleppa & Ors [2005] QSC 83 at [6].

(c) Although the standard of proof is the civil standard, to rebut this presumption the applicant must discharge "a heavy burden" by means of "clear and convincing proof" of the testator's actual intention:, Hinds v Collins [2005] QSC 362; [2006] 1 Qd R 514 at 516 [3] and Ashton v Ashton [2010] QSC 326 at [31].

(d) As the Court's enquiry is directed to whether the will does not carry out the testator's intentions because a clerical error was made or whether the will did not reflect the testator's instructions, evidence of statements made by the testator about intentions earlier or later than the giving of the instructions is generally inadmissible: see Public Trustee of Queensland v Smith at [64]. [4] This was also the position under the repealed s 31: see McCorley & Lewis per Fryberg J at [6]:

"It is not appropriate for a court to entertain general evidence of the testator's intentions at earlier stages or subsequently to the completion of the will."

In a similar vein, Wilson J observed in Public Trustee of Queensland v Roberts [2004] QSC 199 at [6]:

"The best (if not only) evidence on which the Court will act is that of the person who took instructions for the will. Generally it will not receive evidence of the testator's actual intentions at an earlier stage or subsequently to the completion of the will."

**[23] The applicant was a tenant of unit 2 at 55 Hill Parade between 2004 and 2006. The applicant's mother then occupied the unit between 2006 and May 2009. In May 2009, the deceased commenced residence in that unit and the applicant's mother moved into an adjacent unit. The applicant became a regular visitor to her mother and as a consequence, formed a friendship with the deceased.

[24] The evidence reveals that the deceased had little contact with Ms Carson until about May 2007, when they started to correspond. She does not seem to have had any significant contact with Ms Gallitz.

[25] There is evidence that the deceased sent a letter to Ms Carson asking her to be "her next of kin and taking over things for her in the last months of her life." The applicant's evidence was that this letter was sent in June 2009. Ms Carson, however, gave evidence that she received it in October or November 2009. The applicant's evidence was that the deceased told her that Ms Carson had declined her request, whereas Ms Carson says that she "accepted instantly". The letter is no longer available. The applicant's evidence was that after this, the deceased told her that her nieces "don't have time for me in their lives" and that she ceased contact with them. Ms Carson on the other hand, while admitting that the deceased's letters became less frequent after this time, attributed that to the deceased's failing health.

[26] It seems that the deceased first saw Mr Ian Kent, of the Public Trustee, in relation to preparing a will on 9 March 2009, at which time she was at the Redcliffe Hospital in the Palliative Care Ward. He took handwritten notes in his consultation with the deceased which he later threw away, after preparing the computerised entry of the consultation. The deceased stated that her assets included properties at 15 Kagara Street, Kippa-Ring, 26 Osborne Terrace, Deception Bay and 56 Hill Parade, Clontarf (as the deceased apparently erroneously referred to her property). The deceased did not mention that the property at Hill Parade comprised units. She said she was a widow with no children and mentioned only one niece, whom she had never seen, as her closest relation. Mr Kent recorded contemporaneously after his meeting with the deceased, that the deceased had no idea as to who she wanted to name as beneficiaries and that she had the names and addresses of a few friends in a notebook but indicated that she was not particularly close to any of them. She stated that she was considering charities. He also recorded, "She was surprised (shocked) to be told that if she died without a will, that her niece could possibly inherit her whole estate. (She thought it would go to the Government)." His recollection was that she did not want her niece to receive the whole estate and he described her as "flabbergasted" that her niece could inherit her estate if she did not have a will.

[27] Ms Diaz was a care provider who provided care to the deceased from early 2009 onwards. She gave evidence that she visited 55 Hill Parade with the deceased and of a conversation she had with the deceased where the deceased explained to her that her set of flats was "on one property". The deceased told her how happy she was with the applicant and her mother and the assistance that they gave her. She gave affidavit and oral evidence that some time in winter or autumn of 2009 the deceased told her that she wanted the applicant to have "this property", which she understood as referring to 55 Hill Parade (and which was the subject of specific objection dealt with below). In cross-examination she accepted that she had difficulty remembering what was said and that the deceased may have said that she would like to leave "property" to the applicant or "something to Helen".

[28] About two weeks before executing the Will on 15 December 2009, the deceased went to the Public Trustee's Redcliffe office to make a will. She came with a female companion and was seen by Kelly-Mae Maller, who had been employed as a Wills Officer since 1995 and had extensive experience in taking instructions and preparing wills for execution. Ms Maller declined to make a will for the deceased on that day because she was unable to say what properties she owned or to whom she wanted to leave them. Ms Maller's evidence was that the deceased "had with her a small book which was like an address book or a diary and she continually flipped through it from front to back, apparently trying to find the names of the persons to whom she wanted to leave property. This went on for some time." In those circumstances, and given that she was concerned about the deceased's testamentary capacity, Ms Maller told the deceased that she should think more about this and obtain a medical certificate about her capacity.

[29] I should say that I do not consider that any of this evidence is particularly relevant to the task the Court must embark on for the purposes of s 33 of the Succession Act, a matter I will return to in dealing with objections made to particular parts of the affidavit material.**

**[30] On 15 December 2009, Ms Maller was asked to visit the deceased in the Redcliffe Hospital Palliative Care Unit to make a will and Enduring Power of Attorney for her. She went to the hospital with a co-worker, Maxine Unsworth. There is no issue about the deceased's capacity on that day.

[31] Ms Maller had taken a computer and a printer with her. She recalled the meeting as she had difficulty getting the printer to work and ended up spending a long time with the deceased. The computer had on it the Public Trustee's standard will making software, "Chameleon", with which Ms Maller was very familiar. This displays a questionnaire which is answered by clicking on boxes or typing in information. When the questionnaire is completed, the will can be printed.

[32] Ms Maller's evidence was that, in the presence of Ms Unsworth, she worked through the questionnaire inserting information provided by the deceased. The questionnaire had a section dealing with address details. Ms Maller asked the deceased where she lived and the deceased replied that she "lived in a unit at 2/55 Hill Parade, Clontarf". Ms Maller asked the deceased if she owned that unit and the deceased said that she did. Ms Maller asked the deceased if she owned any other real property and she replied that she owned property at 15 Kagara Street, Kippa-Ring and 26 Osborne Terrace, Deception Bay. At no time did the deceased say that she owned the other Hill Parade units.

[33] In respect of that part of the questionnaire headed "Assets" there was a sub-heading "House/Land location", which Ms Maller completed on the basis of what the deceased told her with three entries, being "as above" (referring to the residential address given by the deceased of 2/55 Hill Parade, Clontarf recorded on page 2), 15 Kagara Street, Kippa-Ring and 26 Osborne Parade, Deception Bay.

[34] That part of the questionnaire required a value to be inserted for each property. Ms Maller asked the deceased to give her an estimate of the value of the properties. The value of $370,000 was recorded for the property described "as above" being the residential address, 2/55 Hill Parade, Clontarf referred to on page 2.

[35] The questionnaire also contained a section headed "Distribution". In her affidavit Ms Maller stated:**

"[15] When we got to the 'Distribution' section of the questionnaire, I recall that the deceased told me that she wanted to give something to Helen Palethorpe. I completed the first three questions under the heading 'Distribution' and then came to the box entitled 'Description', in which I was required to insert the gift to be made to Ms Palethorpe. I asked the deceased what she wanted to leave Ms Palethorpe and she said: 'my unit'. She did not say 'my units'. Had she done so, I would have asked her what 'units' she was talking about, as she previously had mentioned only the one 'unit' at 2/55 Hill Parade.

[16] Although it does not appear on the print-out of the questionnaire, the software displays an icon next to the 'Description' box. Clicking on that icon displays a drop-down menu containing a number of options for the wording of the gift to be inserted in the 'Description' box. 'KMM-2' is a print-out of this drop-down menu. By default, the program inserts the deceased's residential address in the options displayed in the menu. As appears from 'KMM-2', one default wording for the gift is 'my house and land 2/55 Hill Parade, Clontarf.' I selected that option and then manually altered it to read 'my unit at 2/55 Hill Parade, Clontarf' as the deceased had previously told me that she lived in a unit at that address.

[17] I then completed the rest of the questionnaire. I saved the questionnaire and printed out the will. I read the hard copy of the will to ensure there were no obvious mistakes and then gave it to the deceased, asking her to read it and ensure she was happy with it. I cannot now recall if she requested any changes but, if she did, I would have made them. The deceased then executed the will in my presence and Maxine Unsworth's presence and we witnessed the will."

[36] Ms Maller conceded that given the time which has passed since her consultation with the deceased in December 2009, she was unable to recall the precise words used when the deceased was giving instructions for the bequests in her will, except that she was clear that the deceased used the words "my unit" in giving instructions in respect of the bequest to the applicant. Ms Maller accepted that, when referring to the properties at 15 Kagara Street, Kippa-Ring and 26 Osborne Terrace, Deception Bay, the deceased may have used the words "my property" or "my place" or some other generic description. But she maintained that the words "my unit" were used in giving instructions for the gift to the applicant and gave the following answers when cross-examined on that matter by counsel for the applicant:

"You can't now recall, sitting here in Court today, that the deceased, when she was giving you instructions for the gift to Helen Palethorpe - not her residential address, for the gift - you can't recall that she used the words "my unit" to describe the property at Clontarf to Helen Palethorpe? -- She said she wanted to leave a gift to Helen.

She might well have said to you "I will leave - I want to leave my property at Clontarf to Helen Palethorpe"? -- No, I asked her what she wanted to leave Helen and she said "my unit".

Okay. What I'm suggesting to you is sitting here now today, you can't possibly recall whether she might have described the property at Clontarf as "my place at Clontarf to Helen" or "my property at Clontarf to Helen" or "my place at Hill Parade". Do you agree with me? -- I am not sure.

... but in the same way that she might just as easily have described the property at Kippa-Ring very generically and said "my property at Kippa-Ring", you would have rightly then transcribed 15 Kagara Street, Kippa-Ring into the gift, wouldn't you? -- Correct.

So if she had said to you "my property at Clontarf to Helen Palethorpe", you then went back and looked in your notes, you saw that she lived in a property at Clontarf and you transcribed that into the gift? -- Correct.

And that could be what has happened on this occasion, that she didn't say the words "my unit", she said some other description of the property, such as "my property at Clontarf"? -- No, she said "my unit".

You're absolutely confident, hand on heart, sitting here in Court today that she used the word "my unit"? -- Correct.

You're absolutely confident, hand on heart, sitting here in

Court today that she used the word "my unit"? -- Correct."

[37] After further extensive cross-examination the following exchange occurred:

"Ms Maller, is it likely that in fact what has happened when you have been taking the instructions for the gift to Ms Palethorpe is this: the deceased has identified the property at Clontarf by some more generic description, that is by description such as "my place at Clontarf" or "my place at Hill Parade", and what you've done, understandably, is transcribed her residential address into this gift? --

Because you believed she only owned that one property at Clontarf? -- Correct."

[38] In re-examination, Ms Maller clarified that response which seems at odds with her other evidence by explaining the actual process by which the instructions concerning the gift to the applicant were incorporated into the questionnaire for the purpose of completing the Will:

"Why did you alter the drop-down dialogue box from, "My house and land at 2/55 Hill Parade" to "My unit at 2/55 Hill Parade"? -- Because the deceased said that's what she wanted to leave to Helen, was her unit.

And why did you change it to unit for Hill Parade, Clontarf? -- Because the deceased said that's what it was, was a unit at -----

When did she say that to you? When did she say to you, "I want to leave my unit at 2/55 Hill Parade", or whatever it was she said? -- When we were up to the start of distribution, that's when she said, "I want to leave my friend Helen something." I said, "What is it that you want to leave her?"

What did she say? -- "I want to leave her my unit."

[39] Ms Unsworth, who as I have mentioned, was present with Ms Maller when the instructions for the deceased's will were taken, also gave evidence. She said that Ms Maller asked the deceased where she lived, to which the deceased replied she lived in a unit at 2/55 Hill Parade, Clontarf. Ms Unsworth recalled that the appointment took longer than usual because there were problems with Ms Maller's printer. She recalled the deceased stating that the nieces were receiving some funds and that she had properties located at Deception Bay, Kippa-Ring and Clontarf. In her oral evidence, she referred to the deceased describing the latter in terms of "the unit that she was in at Clontarf". The deceased stated that she wanted to give one of her properties to the pastor of her church and a property to another person. She was trying to work out which person would benefit from receiving which property. (In her oral evidence, Ms Unsworth stated that in respect of the Deception Bay and Kippa-Ring properties, the deceased "was debating who to give which property to".) In her affidavit she stated that the deceased said she wanted to leave her unit at 2/55 Hill Parade, Clontarf to Helen and that she did not recall the deceased mentioning that the property at Clontarf was a multi-unit property or that she owned any other property at that address. When cross-examined in respect of the bequest to the applicant, Ms Unsworth was emphatic that the deceased had only specified a gift of unit 2 at 55 Hill Parade, Clontarf:

"When she was talking about the gift to Helen Palethorpe she referred to it in a more generic way as her property at Clontarf or her Hill Parade property?-- No, she said it was her unit.

How is it that you can remember now that she used the word "my unit"?-- Because that's what she said. That's - she did say "unit" and that's when - when she gave her address it was unit 2."

[40] In cross-examination, Ms Unsworth reiterated what she had stated in her affidavit, that the deceased made no mention of any other units at 55 Hill Parade, Clontarf which led to the following exchange:

"So recognising that the deceased failed to identify those units, it's likely, isn't it, that when she was identifying the gift to Ms Palethorpe she actually identified it by a fairly generic description, that is, she referred to it as ... her property at Hill Parade and you and Miss Maller have assumed that it's unit 2?-- She said unit 2. That was her address.

She said that in response to the question about her residential address?-- That's right, yes.

But she didn't say - identify unit 2 specifically when she was giving the gift to Miss Palethorpe?-- Well, that's what she said, her unit, unit 2.

She didn't say unit 2/55 Hill Parade to Miss Maller when she was giving the instructions for the gift?-- She said she was leaving her unit."

[41] The deceased was seen by Ms Lathrope of the Public Trustee on 19 January 2010, about a month after the instructions for the Will were given, and only two weeks prior to her death. Ms Lathrope enquired as to what real property was owned by the deceased, as opposed to the deceased's residential address. The deceased stated that she owned real property at 15 Kagara Street, Kippa-Ring, 26 Osborne Terrace, Deception Bay and 55 Hill Parade, Clontarf. Ms Lathrope recalls that the deceased identified that she owned the three separate units at that address. The deceased was able to identify that unit 2 was her principal place of residence, whereas units 1 and 3 were rented.

**[42] The first respondent submitted that the court's jurisdiction under s 33 is constrained in that it is a precondition to the exercise of the court's power under s 33 that the will does not carry out the testator's intention because of one of the two matters specified in s 33. Consequently the admissible evidence is limited to that concerning the giving of instructions to Ms Maller on 15 December 2009 and events closely related thereto. Objection was therefore taken by the first respondent to the following evidence:

(a) Paras 21, 22 and 26 of the affidavit of the applicant which states:**

" [21] During my conversation with Sylvia in October 2009 she told me that she trusted that when she got really sick, I would ensure her wishes were adhered to. She then started to talk about her will. She said 'I will not be leaving my nieces any of my properties they don't have time for me'. Sylvia also said 'I have not heard from Kim at all'.

[22] Sylvia also made me make her a promise that Morgan Rouse, the owner of the adjoining flats, would never get his hands on the Hill Parade property. She expressed this to be her 'dying wish'. She said 'I know that your mother really likes Morgan, but I don't like him. He's angered me years ago trying to get me to sell Hill Parade but I do not want him to ever own it. He is very arrogant'. Sylvia was becoming quite upset as she was talking to me, so to appease her I replied 'No Sylvia, I will never let him get them'. ...

[26] Sylvia did tell me at different times that she would leave me a property and that she would leave Pesi a property. She had promised her Kagara Street, Kippa-Ring property to Pesi and her Deception Bay property to me."

(b) Para 17 of the affidavit of Ms Diaz which states:

"I also remember one Sunday when I was picking up Melita from Hill Parade to drive her to church we were discussing her properties and she said to me (with reference to Hill Parade) ' I would like to give this property to Helen'. By this I understood she was referring to the whole property."

(c) Exhibit SB2 of the affidavit of Ms Blackburn which is a copy of a handwritten note found in the deceased's bag which is undated and states:

15 Kagara St, Kippa-Ring House & contents to Pesi Pepi Papa

**[43] In my view the objections to all of this material were properly taken. They are not relevant to the matters for consideration under s 33. And even if they were admissible they would be of little weight given that they reflect intentions of the deceased at differing earlier times to the time when instructions for the Will were provided.

[44] Objection is also taken to para 3 of the affidavit of Mr Austen, the real estate agent involved in the purchase of 55 Hill Parade (who stated that he informed the deceased that the three flats at 55 Hill Parade were on one title) insofar as it states "I am satisfied that she knew that the consequences of this were that she could not just sell one unit at a time." The objection is taken on the basis that those words are mere opinion or speculation. Further, there is no basis given as to why Mr Austen held that view. In my view the objection is well founded and that evidence is inadmissible.

[45] Objection was taken by the applicant to the following evidence:

(a) paras 7, 8 , 12, 19, 20 and 21 of the affidavit of Ms Carson;

[46] It is not necessary to set out those paragraphs in full. They concern peripheral matters concerning relationships between the deceased and the second respondent's mother (the deceased's sister). Ms Carson's uncertainty as to the true state of health of the deceased and communications between Ms Carson and a friend of the deceased Zenta Lukaa. I consider these objections properly taken for the same reasons outlined in relation to the first respondent's objections. They concern matters extraneous and irrelevant to the issue for consideration under s 33.**

Consideration of s 33 of the Succession Act

**[47] The applicant submitted that the court's first task is to ascertain what was the basic scheme which the deceased had conceived for dealing with her estate, and then to construe the Will, if possible, to give effect to that scheme. The scheme in this case was simple, her three properties to three identified persons, and the residue to her nieces. It was argued that it was therefore reasonably open to the court to conclude that the deceased's instructions were to gift the property at Clontarf or the property at Hill Parade to the applicant, rather than to gift Unit 2/55 Hill Parade to the applicant. The applicant emphasised that Ms Maller conceded that she could not be confident that the deceased had used the words "my unit" despite what was in her affidavit and, despite maintaining at the beginning of her evidence that the deceased had used those words, she conceded that it was correct that what had likely happened was that she had simply transcribed the deceased's residential address into the gift to the applicant. Ms Maller had used the expression "my unit" to distinguish the property from the "house and land" description contained in the Chameleon system. [5]

[48] Reference was made by the applicant to the approach taken by the court in In the Estate of Epheser Deceased [2000] SASC 311. However, caution must be taken in respect of that authority given that the provision for rectification there under consideration is in broader terms than that in s 33 of the Succession Act.**

[49] As to rectification for clerical error, Williams on Wills (2002, 8th ed) states at [6.2]:

"It has been stated that the term 'clerical error' means an inadvertent error made in the process of recording the intended words of the testator in drafting or in the transcription of his will. Thus where a solicitor failed to include a clause in a later will which was intended to mirror a clause in an earlier will which it replaced, it was held to be an error made in the process of recording the intended words of the testatrix. The will was rectified to include the omitted clause.[6] The introduction of a clause which is inconsistent with the testator's instructions in circumstances in which the draftsman has not applied his mind to its significance or effect is also a 'clerical error' for the purposes of this provision.[7]"

[50] In Re Segelman [1996] Ch 171, Chadwick J considered the meaning of 'clerical error' in the context of the comparable UK legislation. His Honour referred (at 184) to a passage from Mortimer's on Probate Law and Practice (1927, 2nd ed. at 91-92), cited with approval by Latey J in Re Morris [1971] P 62 at 80, where a distinction is made between two types of cases:

"First. Where the mind of the draftsman has really been applied to the particular clause, then, whether the error has arisen from the fact that he misunderstood the instructions of the testator, or, having understood the instructions, has used inappropriate language in seeking to give effect to them, the testator who executes the will is - in the absence of fraud - bound by the error so made as if it were his own, even if the mistake were not directly brought to his notice; and the court will not omit from the probate the words so introduced into the will.

Secondly. Where the mind of the draftsman has never really been applied to the words of the particular clause, and the words are introduced into the will per incuriam, without advertence to their significance and effect, by a mere clerical error or engrosser, the testator is not bound by the mistake unless the introduction of such words was directly brought to his notice."

**[51] In Re Estate of Maree Kaye McLennan [2011] QSC 331, I adopted that approach in considering the issue of clerical error for the purposes of s 33 of the Succession Act. In McCorley & Lewis at para [6] Fryberg J accepted as correct the proposition that a clerical error may thus occur when, "the draughtsman has never really applied his mind to words introduced or omitted and never adverted to their significance and effect".

[52] The applicant argued that the evidence demonstrated that the deceased knew that she owned three units at 55 Hill Parade, Clontarf and when asked by Ms Maller where she lived, she correctly identified that she lived at only one of those units. Ms Maller, it was submitted, then mistakenly assumed that that was the only property which the deceased owned at that address for the purpose of identifying the gift to the applicant. Ms Maller was most likely not using the deceased's words when she adopted the nomenclature "my unit" but rather was seeking to distinguish the unit's status from the precedent description "house and land" contained in the Public Trustee's Chameleon system. The applicant argued that to find otherwise would be to assume that, when the deceased was asked to identify her assets by Ms Maller, she entirely neglected to take into account two other units which she owned at the same address at Hill Parade, Clontarf and that such a significant mistake was inconsistent with what she had previously said to Mr Kent on 9 March 2009 and subsequently told Ms Lathrope on 19 January 2010. The deceased had also told Ms Diaz that she intended to leave Hill Parade to the applicant. Moreover, the deceased had expressed the intention to leave properties to certain named persons and "funds" to her nieces.

[53] Counsel for the applicant emphasised that Ms Maller accepted that the Chameleon system automatically imported the deceased's residential address into the specific bequests, and she had to then change the description. This it was submitted strongly suggests that the error made at cl 6.01 was a clerical error. Ms Maller agreed that the deceased did not use the words "my house and land at 15 Kagara Street" or the words "my house and land at 26 Osborne Terrace" as those words appear in clauses 6.02 and 6.03 of the deceased's will. Rather, those are words used in the precedent of the Chameleon program. By a clerical error, the deceased's residential address, rather than the address of her unit block was inserted in cl 6.2.

[54] The second respondents' submissions were that there was no clerical error in the drafting of the Will in that the terms of cl 6.01 reflected the instructions given by the deceased, namely that the applicant be given "my unit", being unit 2/55 Hill Parade, Clontarf, which was the effect of the evidence of Ms Maller and Ms Unsworth. Counsel for the first respondent submitted that the uncontradicted evidence was that Ms Maller did advert to what was inserted into cl 6.01 in that when completing the questionnaire she selected the option "my house and land at 2/55 Hill Parade" and consciously altered it to "my unit". Accordingly, there was no mere clerical error in the use of the word "unit". Indeed, the Will maker intended to use the word "unit" and consciously adverted to the significance and effect of doing so. I accept Ms Maller's evidence was that she deliberately chose the word "unit" for insertion into cl 6.01 and that this was because that was the instruction given to her. In the circumstances, I accept the respondents' submissions that there was no evidence to support a conclusion that a clerical error had occurred in the present case.**

[55] The first respondent submitted that to succeed, the applicant must show not only that the Will does not express the deceased's instructions, but also that the deceased intended the Will to be in the form for which she contends: see Lockrey v Ferris [2011] NSWSC 179 at [69].

[56] Even if, contrary to my ruling, statements by the deceased on other occasions suggesting an intention to leave the whole of 55 Hill Parade to the applicant are admissible, I would not consider that evidence to be of much weight. Firstly, as was said in Wesley v Wesley [1998] SASC 7054; (1998) 71 SASR 1 at 5, "it is not uncommon in human experience for a testator to give divergent accounts of his Will to different persons either to maintain harmony or to curry favour with family or friends" . Indeed, as the first respondent pointed out in its submissions referring to Lord Eldon's observation in Pemberton v Pemberton (1807) 13 Ves 301, few declarations "deserve less credit than those of men as to what they have done by their wills. The wish to silence importunity, to elude questions from the persons who take it upon themselves to judge of their own claims must be taken into consideration."

[57] Moreover, whatever the deceased may have said on other occasions about the applicant having 55 Hill Parade, the deceased was uncertain about this as late as early December 2009, when she first saw Ms Maller. And even if the document at exhibit SB2 were admissible, it would simply be evidence indicating that at some unknown date the deceased was thinking of leaving 55 Hill Parade to "Pastor Frank". Furthermore, the evidence of the applicant in para 26 of her affidavit that the deceased told her at different times that she would leave a property to her and a property to "Pesi" is inconsistent with any assertion that the deceased intended to give the applicant the whole of 55 Hill Parade. The applicant's own evidence was merely that the deceased had told her that she intended to give the applicant the Deception Bay property in her Will. Ms Diaz's evidence is unclear as to when the conversation referred to in para 17 of her affidavit occurred. If anything, the evidence to which objection was taken by the first respondent indicated that over a period of time the deceased had changed her mind about how she would dispose of her estate and who would receive it. The note which was found in her purse or handbag and the applicant's own evidence were two examples of how she had changed her mind between who would receive which property.

[58] Further, I agree with the first respondent's submission that, even if one proceeds on the basis that the deceased knew all three units at 55 Hill Parade were on one title, that is insufficient to prove the applicant's case. It does not follow that a layperson thereby would believe that she could not leave only one of the units to the applicant. At most this means that, if advised of the obstacles to her leaving only one unit to the applicant, she may have given different instructions.

[59] The terms of the clause are clear and unambiguous. A further difficulty in concluding that the Will did not reflect the deceased's instructions is that the deceased was given the Will, which plainly stated that the applicant was left "my unit at 2/55 Hill Parade", to read before she signed it, which she did in Ms Maller's presence. The deceased had the opportunity if she did not intend to limit what would pass under cl 6.01 to unit 2 to correct that, however, she did not inform Ms Maller that that was not what she had intended.

[60] What Ms Maller recalled about how the deceased referred to the other two properties when she gave instructions for clauses 6.02 and 6.03 sheds little light on the instructions for cl 6.01. The best evidence in that regard is that of Ms Maller and Ms Unsworth. I accept that the effect of Ms Maller's evidence is that the deceased told her that she lived in a unit at 2/55 Hill Parade and that her instructions were that she wanted to leave "her unit" to the applicant. While she did make a concession that she had transcribed the residential address into the questionnaire concerning the bequest to the applicant, Ms Maller convincingly clarified any uncertainty about that part of her evidence in re-examination. Her evidence that the deceased's instruction was that the gift to the applicant was of the unit at 2/55 Hill Parade was also the unequivocal evidence of Ms Unsworth.

[61] In my view there is no "clear and convincing proof" that the Will does not give effect to the deceased's instructions.

[62] The application for rectification is therefore refused.

[63] I should refer to a further issue that arose in the course of submissions as to the meaning of cl 6.01 of the Will. The first respondent submitted that it is not without meaning, and it is not absurd or impossible of performance. It was submitted by the first respondent that two approaches are available. Firstly, it was submitted that the Court can order that unit 2 and an appropriate cartilage of land be held in trust for the applicant absolutely: see Re Leaver [1996] QSC 28; [1997] 1 Qd R 55. Alternatively, it was submitted that, as Mr Smith deposed in his affidavit, the executor can, by registering a Building Format Plan, place each unit on a separate title and transfer unit 2 to the applicant.

[64] The first respondent contended that the issue was whether, to use the language of Derrington J in Re Leaver at 68, the disposition by the Will of part only of an unsubdivided lot is prohibited by a relevant statute. Re Leaver concerned a gift by codicil of a house and garage, being part of a larger area of land, in circumstances where subdivision to separate the house and garage from that larger area was not permitted under the relevant Town Plan. Derrington J said at pp 58, 59, 61:**

"It is not that, as with the Land Sales Act 1984, a disposition ... of part of land without approved subdivision is prohibited and made void, or, as with the Local Government Act 1936 - 1982, which has now been superseded, the sale and certain other dealings with ... land without approved subdivision is forbidden and the transaction made conditional on such approval. It is only that subdivisional approval cannot be obtained under the Local Government (Planning and Environment) Act 1990, which however does not expressly prohibit or forbid any dealings with part of land that has not been subdivided in accordance with it ...

... An equitable interest can arise by way of constructive trust in respect of part of land that cannot be subdivided ...

While equity will usually not come to the aid of a party where the transaction is prohibited by law ... the absence of any prohibition of the transaction, as distinct from the inability of the executor to complete it at law, would avoid this impediment ...

The devises ... are not void and constitute a gift of the house and garage ... together with a cartilage of the land on which they stand and the surrounding area sufficient for the purpose of residence to be held on trust ... for the (beneficiary) absolutely ..."

**[65] The first respondent submitted that similarly, in the present case, the relevant legislation, the Sustainable Planning Act 2009 ("SPA") does not "expressly prohibit or forbid any (relevant) dealings with part of land that has not been subdivided in accordance with it". In SPA, subdivision is called "reconfiguring a lot" (s 10(1)), and "reconfiguring a lot" is "development" (s 7). All development is "exempt development" unless it is prescribed by a regulation to be otherwise (s 232). Reg 9 Sustainable Planning Regulation 2009 prescribes what is and is not exempt development (see Schedule 3, Part 1). Reconfiguring a lot by a building format plan (i.e. what used to be called strata titling) is exempt development. No development permit is required for exempt development (s 235). SPA does not prohibit exempt development without local authority approval (see ss 597ff). Mr Smith in his affidavit stated that in the present case a building format plan would be required to put the units on separate titles, i.e. "exempt development". Although Re Leaver was distinguished in Perpetual Trustees WA Ltd v Riverwest Pty Ltd [2004] WASC 81 (but followed in Bakranich v Robertson [2005] WASC 12) unlike the position in Queensland, the statutory regime in Western Australia contains a provision which provides that "a person shall not, without the approval of the Board, ... subdivide ... land ..." (see Riverwest at [110]). The first respondent's principal submission was thus that the disposition in cl 6.01 of the Will was not prohibited by the SPA.

[66] Further, in regard to s 60 of the Land Title Act 1994, there was no argument in Re Leaver that that provision rendered void, or forbad, a testamentary disposition of the type now under consideration. Indeed, while s 60 provides that a transfer of part of a lot may not be registered, it does not prohibit or forbid the disposition by Will of part only of an unsubdivided lot. To use Derrington J's language, it merely created an inability on the part of the executor to complete the disposition at law.[8] That is, it concerns the method of registering an interest in a lot, not what rights can be created in a lot. Because s 60 does not forbid the testamentary disposition, it does not prevent equity intervening to create a trust in aid of the disposition.[9] The first respondent submitted that, should the beneficiaries of the trust instruct the trustee to subdivide 55 Hill Parade so as to create separate titles for each flat, s 60 will pose no impediment at law to the completion of the intended gift. However, that is not a matter which should be of concern on this rectification application.**

1. An extension of time within which to bring the Originating Application is granted.

2. The rectification order sought in paragraph 1 of the Originating Application is refused.

[1] These recommendations extended the jurisdiction of the Court with respect to rectification of wills previously contained in s 31 of the Act. That provision remedied a long standing deficit in the law whereby a Probate Court was permitted to delete provisions shown to have been made by mistake, but not to insert or add the intended provision in lieu thereof: Re Allen [1988] 1 Qd R 1 at 3.

[2] Section 25AA Wills Act 1936 (SA) provides:

"(1) If the court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the court may order that the will be rectified so as to give proper expression to those intentions."

[3] The same approach is taken in other jurisdictions: to the same effect is Hamlet at [14] regarding the Victorian provision and Rawack v Spicer [2002] NSWSC 849 at [30]- [31] regarding the NSW legislation.

[4] In it also the approach taken in other jurisdictions, see for example Lockrey at [67]-[68].

[5] The valuation obtained by the first respondent as at 30 March 2010 indicates that market value for the whole of 55 Hill Parade was $600,000. I note that the local authority valuation for the whole of 55 Hill Parade was $190,000: Affidavit of Ms Lathrope exhibit RL-1 at page 18. This was pointed to by counsel for the applicant as suggesting that the deceased's estimate of value for the 55 Hill Parade property was for the entirety of 55 Hill Parade and as reflecting her intention to leave the entire property to the applicant.

[6] Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412, [1992] 3 All ER 204.

[7] Re Segelman [1996] Ch 171.