Plaintiff v First and Second Defendants

2 By his 1982 will, the testator left the matrimonial home on trust for his wife to reside therein rent free during her lifetime and after her death for his daughter Shondra and, by cl.4B(d) of the 1982 will, gave the rest of his real and personal property upon trust, as to the income therefrom, for his wife for life, and, upon the death of his wife:

"(i) UPON TRUST as to all those my shares in the capital of L.R.F. INVESTMENTS PTY. LTD. and all those my units in the unit trust which owns the property known as "The Resort", Surfers Paradise for my said son absolutely;

(ii) UPON TRUST as to the balance of my Residuary Estate for my said daughter absolutely..."

3 The testator's wife survived him and did not die until the year 2007.

4 At the date of his death, the testator's estate included 5000 ordinary $2 shares in LRF Investments Pty Ltd ("LRF Investments"), 800 shares in Featherock Proprietary Limited ("Featherock") and one ordinary $1 share each in five companies that were involved in a business which may be identified as "Budget Self Storage." The shares in LRF Investments and the five shares in the Budget Self Storage companies were listed in the Inventory lodged with the probate application. However the testator's 800 shares in Featherock were not listed in that Inventory.

5 By operation of cl.4B(d) of the 1982 will, after the death of the testator's wife, Blair became entitled to the 5000 shares in LRF Investments and Shondra became entitled to the one share in each of the five Budget Self Storage companies.

6 In this proceeding, Blair contends that the testator at all relevant times intended that he should inherit the whole of the testator's business interests and that Shondra's entitlement to the shares in the Budget Self Storage companies is the result of a mistake that requires correction by the Court. Blair claims revocation of the probate of the 1982 will and a re-grant of probate of the said will but with the deletion of the words "in the capital of L.R.F. INVESTMENTS PTY LTD" so that all of the testator's shares would then pass to Blair. Alternatively, Blair seeks to have the 1982 will construed so as to have the same consequence.[4]

7 The testator was born on 15 March 1915 and was a boilermaker by trade. He had a younger brother, John Maxwell Fry ("Max"). The testator and Max went into business together. The testator was the "ideas man" and Max was the "details man." The testator was innovative and a strategist and also enjoyed "getting his hands dirty" in construction. Max was also a strategist but he was a more meticulous person who generally handled the paperwork and administration.

8 From about 1948, the testator and Max carried on a general engineering business under the name "Lenmax." During the early 1950s, they developed a specialty in building petrol tankers and, for this purpose, constructed a factory in Brooklyn. They then stopped constructing petrol tankers and developed a design and construction business based on a new idea of mobile concrete agitators servicing large building projects. This business was successful and, in a short time, they developed a related business for the design and construction of concrete batching plants.

9 In the early to mid 1960s, the testator and Max developed a business for the supply of ready-mixed concrete known as "Supermix." Subsequently, the testator and a number of business associates (one of whom was Sir Thomas Maltby) recognised a use for lightweight scoria (a volcanic rock) in the mixing of lightweight concrete, in lieu of the conventional bluestone aggregate. The testator found a source for this material at a site in Anakie, north of Geelong, and land was leased and a quarry established.

10 Featherock was the original company associated with the resulting scoria business that was developed - it was incorporated on 3 May 1962. At some stage, the testator and Max bought out their business associates utilising their company, Lenmax Constructions Pty Ltd. As a result, Lenmax Constructions Pty Ltd came to hold 17,199 of the 18,001 issued shares in Featherock. However, the testator had apparently originally himself held 800 shares in Featherock and he continued to hold those shares in his own name until his death.

11 Blair was born on 31 December 1948 and he commenced working for the testator and his uncle at the Anakie quarry site in 1966. The testator and Blair built the plant that was to operate at the quarry and, at that time, were the only employees of the operating company, Featherock Industries Pty Ltd ("Featherock Industries").

12 In 1967, Blair continued to work at the quarry and in 1968 he became the quarry manager, living in a bungalow on the quarry site. At around this time, the testator bought for Shondra a hairdressing business carried on in Smith Street, Collingwood.

13 By the early 1970s, the "Featherock" business had grown into a very successful enterprise.

14 A firm of accountants, for convenience I will refer to the firm as McDonald Carter, had been acting for the businesses conducted by the testator and Max. Mr Malcolm Moore Hardy joined McDonald Carter in 1972. Mr Hardy learned that the various companies operating the businesses conducted by the testator and Max were owned, either directly or indirectly by two holding companies of the testator and Max respectively, namely, LRF Investments and JMF Investments Pty Ltd ("JMF Investments"). Mr Hardy testified that he took over the accountancy work for the businesses and had frequent contact, over the years, with the testator, Max and Blair.

15 Blair married in 1972. A new quarry manager was appointed and Blair took over as manager of a company called Concrete Control Pty Ltd that the testator and Max had acquired and that operated a concrete testing and research laboratory.

16 In 1976, Blair started working as a sales manager for the Featherock quarry business. By this time, the testator had reduced his activities in his various businesses. The Featherock business continued to do quite well but its cash flow was being used to support the Lenmax business that, for various reasons, was experiencing considerable difficulties. The testator and Max sought advice from Bent & Cougle, and, as a result, the Lenmax business ceased operation, the Brooklyn factory was sold but the quarry business continued in operation while reaching an arrangement with creditors for repaying its then debts under a schedule of repayments. Blair continued as sales manager for the quarry business and sought new markets and developed a particular business of the supply of materials for road base construction. In addition, the Supermix business was sold and the concrete control research business was closed.

17 Mr Quinn had been admitted to practice as a barrister and solicitor of the Supreme Court of Victoria in 1967 and was admitted to partnership in the then firm of solicitors of Oswald Burt & Co in 1972. In the course of his practice, he was introduced to the testator and to Max in the late 1960s or early 1970s by one Mervyn O'Keefe, the then business manager of the Fry businesses. When Mr Quinn first started acting for the testator and for Max, their company Lenmax Constructions Pty Ltd was conducting their main business operation. Mr Quinn first met the testator at the premises of Lenmax Constructions in Brooklyn and he first met Blair at the Anakie quarry where Blair was then working.

18 Mr Quinn testified that, as time went by, he became the sole solicitor looking after the affairs of the testator. In the course of doing so, Mr Quinn learned that the testator and Max each had family companies, LRF Investments, and JMF Investments respectively, which equally "owned" the various businesses conducted by the testator and Max.

19 In or prior to November 1977, the testator instructed Mr Quinn to prepare a will for him. Mr Quinn prepared the will and the testator attended the offices of Oswald Burt & Co on 30 November 1977 and executed the will ("1977 will") in the presence of a solicitor and a clerk in that firm.

20 The 1977 will provided that, after the payment of debts and expenses, the whole of the estate should be held upon trust as to the income therefrom for the testator's wife during her lifetime and, upon her death:

"UPON TRUST as to all those my shares in the capital of L.R.F. Investments Pty. Ltd. for my son absolutely and as to the rest, residue and remainder of my Residuary Estate for my daughter absolutely..."

21 Mr Quinn testified that any file in relation to the 1977 will (and also any file in relation to the 1982 will) had been destroyed in accordance with the then practice of the firm to destroy files after a period of at least 7 years. Mr Quinn said that he did not have a detailed recollection of the circumstances in which he received instructions from the testator for his 1977 will but that he had a clear recollection that the testator instructed him to prepare a will which would, inter alia, appoint Blair and himself as executors, give the testator's wife a life interest in the estate and, upon the death of his wife, give all of his business assets to Blair and the rest of his estate to Shondra. In cross-examination, Mr Quinn said that "the gist of his instructions" was to put all the business assets across to Blair. I accept that the relevant effect of the testator's instructions for his 1977 will given to Mr Quinn was that he wished his business assets to go to Blair but it is not possible to come to any view as to the actual words used by the testator at that time or even to form any conclusion as to the general nature of the language that he might have used when conveying those instructions.

22 Mr Quinn testified that, when he prepared the 1977 will, he believed that all of the testator's business assets were held by LRF Investments. Indeed, at the time of the 1977 will, so far as appears from the evidence, the only shares held by the testator were 5000 shares in LRF Investments and 800 shares in Featherock.

23 It is perhaps not surprising that both the testator and Mr Quinn apparently overlooked the testator's anomalous personal holding of 800 shares in Featherock, which, as I have explained, the testator had held for many years. It seems not unlikely that the testator had forgotten about these shares. Mr Hardy said that the testator showed interest in his "investments" but not necessarily the minutiae of his shareholdings.[5] Further, it appears that Mr Quinn was unaware of this small personal shareholding.

24 Mr Quinn deposed that, if he had had any doubts that all of the testator's business assets were owned through LRF Investments, he would either have prepared a will containing a disposition with words covering all of the deceased's shares in any company used by him to carry on business or, perhaps, he would have checked with the testator's accountants to find out precisely what shares he owned and then would have dealt with them specifically.

25 In cross-examination, Mr Quinn said that, although he had no recollection, at some point he would have sat down with the testator and said "Well, here's your will" and then he would have told him what was in it and asked him whether he was happy with that, and then he would have arranged for the 1977 will to be signed.

26 In or about 1977, Blair was about to travel to North America for a friend's wedding. He told the testator and Max that he would look around to see if there were other new businesses that they could develop, commenting to them that they needed another business so as to avoid being held to ransom by trade unions and the building industry. The quarry business had then recently been involved in a serious and expensive dispute with the unions. Whilst in the USA, Blair saw some self-storage complexes (then called "mini-storage"). Blair was attracted to this concept and investigated how this business was conducted. On his return to Australia, Blair spoke enthusiastically of the self-storage business idea with the testator and with Max but they were both sceptical. Blair returned to the USA and did further research into the self-storage business which was then undergoing substantial growth in that country. On his return, he persuaded the testator and Max to go ahead with such a business, although they remained cautious and persuaded Blair initially to lease rather than purchase premises.

27 Blair negotiated a lease of a building in West Melbourne and a self-storage business, only the second to open in Melbourne, was commenced there. Blair was involved in building the storage cubicles.

28 In August 1979, a shelf company, the name of which was changed to Melbourne Mini Storage Pty Ltd, was acquired from the firm of Middletons, Oswald Burt & Co (as was then the name of the firm). On 13 August 1979, the testator, Max and Blair were appointed as directors and Max was appointed as secretary. The Annual Return of Melbourne Mini Storage Pty Ltd, which was filed on 21 October 1980 and signed by Max and Blair as directors, shows that, as at 27 September 1979, there were three issued ordinary shares of $1, one each held by Max, Blair and the testator respectively.

29 Mr Quinn testified and I accept that his firm's practice, when a shelf company was purchased, was to provide to the accountant the certificate of incorporation, any change of name, any further certificate of incorporation on a change of name, the articles of association, the appointment of directors, a copy of the notice of registered office and the transfers of the subscriber shares in blank. It would seem that the shareholdings in any shelf company were organised by Mr Hardy in consultation with either Max or Blair - indeed Mr Hardy testified that he predominantly dealt with Max in relation to such matters.

30 The West Melbourne premises opened for business in November 1979. Blair was the manager and was generally present from 8am to 5pm on weekdays and from 10am to 2pm at weekends. Occasionally the testator helped out when Blair was busy with duties relating to the continuing quarry business. The West Melbourne business was successful and the profits were ploughed back into the business.

31 In 1980, a second site was leased in Clifton Hill and Blair was again involved in the construction of the storage cubicles. The testator and Max had an existing company, Challenge Cook Australia Pty Ltd, that was used to conduct the Clifton Hill self-storage business. The company's name was changed to Eastern Mini Storage Pty Ltd. The shareholders in that company were LRF Investments (one share) and JMF Investments (one share). On 20 January 1981, one share was allotted to Blair.

32 In 1981, the two self storage businesses were trading well and Blair identified a site in Canterbury Road, Bayswater at which he wished to open a further self-storage business. Blair persuaded the testator and Max that this site should be purchased and it was. A shelf company was acquired from Middletons Oswald Burt and the shelf company's name was changed to Budget Self Storage (Bayswater) Pty Ltd. The directors were the testator and Max (as from 12 October 1981) and, in addition, Blair (as from 30 October 1981). The shareholders in Budget Self Storage (Bayswater) Pty Ltd, according to its Annual Return as at 30 December 1983 were LRF Investments (one share), JMF Investments (one share) and Blair (one share). I would infer that this was the shareholding position in October 1981 after the shelf company was acquired - at any rate, it was not until some time between 1 January 1985 and 29 December 1985 that one each of two of the three issued shares in the Bayswater company came to be held by the testator and Max in their own names.

33 The Bayswater site was about 4 acres of vacant land and was purchased by the Bayswater company which then erected a building containing self-storage cubicles on the site. Blair was involved in building cubicles for this building in 1982 and in 1983.

34 Shortly after the time in 1981 that the name Budget Self Storage (Bayswater) Pty Ltd was adopted as the company name for the Bayswater business, the name of Melbourne Mini Storage Pty Ltd was changed to Budget Self Storage (West Melbourne) Pty Ltd and the name of Eastern Mini Storage Pty Ltd was changed to Budget Self Storage (Clifton Hill) Pty Ltd.

35 In or about 1981 or early 1982 the testator and Blair each purchased a unit apartment in a development known as "The Resort" in Surfers Paradise. Sometime after this purchase, the testator told Blair that he was going to see Mr Quinn to revise his will and he asked Blair to accompany him.

36 They saw Mr Quinn twice in his office. On the first occasion the testator gave Mr Quinn instructions about his will. Blair testified that he remembered the testator telling Mr Quinn that he wanted his wife to have the house for her life, that the businesses were to go to Blair as well as the interests in the Queensland properties and that the rest of the estate was to go to Shondra. Blair further testified that the testator told Mr Quinn that Blair was to be an executor and that Mr Quinn was to be the other executor and that Mr Quinn said that he would prepare the will.

37 Mr Quinn deposed, by affidavit, that he had no specific recollection of taking instructions for the 1982 will but that he did recall the instructions given to him which were "to make a change to give Blair [the testator's] interest in a property at Surfers Paradise as well as the businesses." In cross-examination, Mr Quinn said that he believed what would have happened was that the testator telephoned him and said that he wanted Blair also to have the units in the unit trust for the property at Surfers Paradise. Mr Quinn said that, comparing the two wills, what he believed that he did was simply get the previous will out and make the appropriate alteration to give Blair the unit at Surfers Paradise "without enquiring as to whether all of [the testator's] business assets were still in the name of LRF [Investments] at this point."

38 I am satisfied that Blair's testimony was correct when he said that he and the testator saw Mr Quinn in his office when the testator gave Mr Quinn instructions for his 1982 will. Mr Quinn's suggestion that he received the instructions on the telephone was not based upon any recollection but was simply speculation. It is also evident that the testator must have given instructions to Mr Quinn not only in relation to the provision as to the apartment in Surfers Paradise but also as to the nature of the provision to be made for his wife.[6] However I was not persuaded that either Blair or Mr Quinn had any reliable recollection of the actual words used by the testator when giving instructions. The testimony by Blair that the testator told Mr Quinn that the businesses were to go to Blair as well as the interests in the Queensland properties was, in my view, simply a reconstruction of what he believed to be the intended effect of the will and what he knew, in a general way, to have been the continuing intention of the testator. I take a similar view of Mr Quinn's statement in his affidavit that the testator told him to make a change to give Blair the interest in a property at Surfers Paradise "as well as the businesses" and I think it more likely, as Mr Quinn suggested in cross-examination, that the testator simply told him of the changes that he wanted to his will. I note that at this time the testator still held the 5000 shares in LRF Investments and the 800 shares in Featherock that he had held at the time of making the 1977 will. However, in addition, the testator held one share in Budget Self Storage (West Melbourne) Pty Ltd which represented a one-third interest in the West Melbourne self-storage business.

39 I also note here that Blair and Mr Quinn were named as executors in both the 1977 and the 1982 wills. However the 1977 will made no special reference to any residence for the testator's wife should she survive him, whereas the 1982 will, in cl.3, contained specific provisions on that subject. In addition, as I have already indicated, the 1982 will provided for the testator's units in the unit trust which owned "The Resort" to pass to Blair upon the death of the testator's wife.

40 Blair testified that a short time after the first meeting he returned with the testator and the 1982 will was executed by the testator but that he (Blair) did not remember very much about that visit. Blair testified that neither of the meetings with Mr Quinn took very long. Mr Quinn had no recollection of this meeting, either - but, on being pointed to the fact that the witnesses to the will were both solicitors with Middletons Oswald Burt & Co, Mr Quinn testified that he may well have been present at the same time and "I certainly would have gone through the will with [the testator] before he signed it." Mr Quinn said that he would have gone through the clause in which LRF Investments was referred to or that he may have said to him "Here's the clause that has been changed...everything else is the same as in your previous will." Mr Quinn indicated that he really could not remember but that "I would have had a discussion about the will prior to him signing it." However, having given the foregoing evidence, counsel then pointed out that he had mistakenly referred Mr Quinn to the witnesses to the 1977 will instead of the witnesses to the 1982 will. Mr Quinn then noted that the witnesses to the 1982 will were his then secretary and another partner in the firm and he said that the 1982 will would have been executed in his office and he would have gone through the will with the testator but he acknowledged that he had no recollection in specific terms of any discussions with the testator that had occurred at that time.

41 There is no satisfactory evidence about what was said by Mr Quinn or by the testator on the occasion when the 1982 will was executed by the testator in Mr Quinn's office. However I accept Mr Quinn's evidence that he would have gone through the will with the testator. I am satisfied, therefore, that the words "as to all those my shares in the capital of L.R.F. Investments Pty Ltd" must have been drawn to the testator's attention. Although the evidence is that the testator was not interested in the minutiae of his shareholdings, it is not suggested and it seems highly improbable that he was unaware of the existence of LRF Investments or that he was unaware that LRF Investments was his holding company. I am satisfied that the testator understood and knew and approved of the provision in the 1982 will giving all his shares in LRF Investments to Blair, just as I consider that he had the same state of mind when executing his 1977 will. Even if (contrary to this finding) the attention of the testator was not drawn to the words "as to all those my shares in the capital of L.R.F. Investments Pty Ltd" in his 1982 will (or for that matter in his 1977 will), I consider that he would have approved of the insertion of those words had they been drawn to his attention because the testator must have believed that LRF Investments was the holding company for his business interests.[7]

42 After September 1982 (when the testator had made his 1982 will), Blair continued to open new self-storage businesses.

44 At the date of the testator's death, the testator held, in addition to the shares that he had held at the time of making the 1982 will, one share in each of four other companies. Those companies were Budget Self Storage (Bayswater) Pty Ltd, Budget Self Storage (Braeside) Pty Ltd, Budget Self Storage (Geelong) Pty Ltd and Budget Self Storage (Tullamarine) Pty Ltd. Each of these four shares represented a one-third interest in the respective self-storage businesses conducted by these companies. As a result, by virtue of the provisions of the 1982 will, Shondra was prima facie entitled, upon the death of her mother, to one share in each of these four companies together with the one share in Budget Self Storage (West Melbourne) Pty Ltd that the testator had held at the time of the 1982 will. These shares represented a substantial part (although not all) [8] of the testator' interests in the self-storage businesses.

45 On 16 April 1986, Middletons Oswald Burt filed an application for probate of the 1982 will on behalf of the executors appointed by the will, Blair and Mr Quinn. The probate application was handled by Elizabeth McCrae who at that time was a partner in the firm. The Inventory, which was exhibited to the affidavit of the executors sworn 14 April 1986, identified the shares forming part of the personal estate of the testator as comprising 5000 shares in LRF Investments, and one share in each of five Budget Self Storage companies.[9] Neither Blair nor Mr Quinn noticed that the testator's shares in the Budget Self Storage companies would not ultimately pass to Blair under the will but, rather, would pass to Shondra.

46 After the death of the testator, Blair continued to manage the self storage businesses and he purchased the interests of his uncle Max. He thus came to own two-thirds of the self storage businesses.

47 The testator's widow did not die until 2007 but, in 2005, Blair and Mr Quinn first realised that the testator's shares in the Budget Self Storage companies would not pass to Blair under the provisions of the will. This realisation apparently occurred when, in the course of Blair receiving advice as to the restructuring of the various companies so as to reduce the incidence of land tax, it was drawn to his attention by another legal practitioner in Middletons.

48 The plaintiff submitted that the 1982 will, by limiting the description of the testator's shares to the shares in LRF Investments, failed to give effect to the intention of the testator to ultimately leave all of his business interests to Blair.

49 The originating motion contained applications both to the court of probate and to the court of construction. However the primary application at trial was made in the Court's probate jurisdiction. The plaintiff sought that the original grant of probate of the 1982 will be revoked and that probate of the said will be granted to the plaintiff but omitting from cl.4B(d)(i) the words "in the capital of L.R.F. Investments Pty Ltd." It was submitted that this would give effect to the testator's intention by passing all of the testator's shares, and hence all of his business interests, to Blair.

50 The plaintiff submitted that it was by virtue of Mr Quinn's error that the testator's said intention was not carried into effect in the drafting of the 1982 will. Mr Quinn had followed the terms of the 1977 will, not appreciating that to use the expression "in the capital of L.R.F. Investments Pty Ltd" would have the effect of excluding some of the testator's business interests that existed in 1982. The use of these words of limitation had the effect, in the circumstances, that the terms of the will were in direct conflict with the testator's intention to pass all of his business interests to Blair.

51 The plaintiff submitted that the Court had the power in its probate jurisdiction as it existed prior to the enactment of the Wills Act 1997 (Vic)[10] to "rectify" a will by the process of granting probate and omitting words that were not known to and approved by the testator.

52 The first and second defendants ("the trustees") made written submissions but were otherwise excused from the trial. The trustees made reference to what they submitted were a number of relevant principles. First, they referred to the principle that, where an error was a mistake of law or an error in drafting, being a matter where the draftsman was empowered by the testator to use his own judgment, the testator was bound by the mistake.[11] Secondly, they referred to the principle that the Court would not omit words where the effect would be to alter the sense of the remaining words.[12] Thirdly, they referred to the specific precautionary principle that a Court would not displace the terms of a document read by or to the testator and executed by him as his last will in the absence of clear and compelling evidence.[13] Finally, the trustees pointed to the fact that the plaintiff's claim involved an application to revoke a grant of probate made more than 20 years ago - revocation of a grant was always discretionary and delay was a relevant discretionary factor.

53 On the other hand, it was submitted on behalf of the third defendant that the Court ought not be satisfied on the evidence that it was the testator's intention to pass all of his business interests to Blair or that that intention was conveyed by the testator to Mr Quinn. That submission was coupled with an emphasis on the discretion of the Court to refuse to revoke probate after such a long delay, especially where the application was made by one of the persons to whom probate had been granted in the first place. Alternatively, the third defendant in substance submitted that, even if the testator had conveyed to Mr Quinn that his intention was to pass all of his business interests by will to Blair, there was no error in the actual words adopted by Mr Quinn and the plaintiff was not entitled to have words deleted that accorded with the testator's intention just because those words, in the circumstances, did not go far enough to fully effectuate that intention.

54 In Morrell v Morrell,[14] a jury found that a testator had instructed that all his B shares should be given to his nephews but that the word "forty" was introduced by mistake before the word shares several times and that this was not read over to the testator. On this factual basis, the Court granted probate with the word "forty" deleted.

55 In Briscoe v Baillie Hamilton,[15] the solicitor who drew the will of the testatrix mistook the extent of her interest in certain landed estates, and the will as executed devised only her "undivided moiety of and in" the said estates. The Court, notwithstanding that a draft of the will had been sent to the testatrix for her approval, found as a fact that the testatrix did not know and approve of the clause as drawn, and directed that the restrictive words should be eliminated from the probate. Jeune P said[16] that if it could be proved that a will had been really brought to the mind of a testator and had been duly executed it was difficult, perhaps impossible, to hold that anything contained in the will was a mistake - but it was a question of fact whether in any particular case the will was really brought to the notice of the testator.

56 In Perpetual Trustee Company v Williamson,[17] the testatrix gave written instructions for her will by inserting names in spaces left in a draft will prepared from earlier verbal instructions. Her written instructions were that her personal estate was to be given to Agnus Maude Clift with the exception of her library which was to be equally divided between Joan Clift and Jean Williamson. A mistake was made in reading those instructions and the will was drawn up so as to leave the library to be equally divided between Betty Jean Clift, the daughter of Agnus Maude Clift and Jean Williamson. The mistake by the solicitors was to read "Joan" as "Jean" and then to wrongly identify the person as Betty Jean Clift mentioned elsewhere in the will. Further, in her written instructions, the testatrix gave the residue of her estate to "14 nieces and nephews Williamson and Clift." The solicitors wrongly assumed that the 14 nephews and nieces were the children of her brother and sister John Alexander Williamson and Agnus Maude Clift and described the nieces and nephews as the children of those two siblings, whereas in fact there was a further brother Francis Walter Williamson with children.

57 Harvey CJ in Eq[18] said that different considerations applied to the two mistakes and he referred to Mortimer on Probate (2nd ed. p.91) which stated:

"It is a matter of some difficulty to extract some definite principle from the cases on this subject, but it is submitted that they establish the following rules: 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 on the part of the draftsman or engrosser, the testator is not bound by the mistake unless the introduction of such words was directly brought to his notice."

58 Harvey CJ went on to say that the first proposition in Mortimer was too widely stated and was opposed to the case of Briscoe v Baillie Hamilton and that the correct principle was:[19]

"Where the mistake is the deliberate act of the solicitor and the testator has not had the matter directly brought to his notice the question whether the mistake must be treated as the mistake of the testator must turn, in my opinion, upon the nature of the mistake made. If the error is a mistake of law or error in drafting those being matters in which the draftsman is empowered by the testator to use his own judgment, then the testator is bound by the mistake."

59 Applying those principles to the facts of the case, the Court in Perpetual Trustee Company v Williamson considered that the first mistake, being a misreading of the testatrix's writing, did not involve any judgment by the draftsman. The words inserted in error "Betty Jean" could therefore be omitted although the Court could not insert the word which was intended to be there (i.e. "Joan").[20]

60 As to the other mistake, the Court considered that the mistake was the omission of the name of F.W. Williamson as a parent whose children were included in the gift. The Court was asked to strike out all words other than "amongst nephews and nieces Williamson and Clift" (it was conceded that the word 14 could not be inserted) - however this would have led to the exclusion of the married nieces who were intended to take. The Court said:[21]

"Even if the exclusion of the words suggested did happen to reproduce the testatrix's meaning that would be purely an accident. The case seems to me covered by the case of Harter v Harter (LR 3 P&D 11). In that case the instructions were to deal with "the residue"; the draftsman by mistake expressed this as "the residuary real estate," inadvertently omitting the words "and personal." Sir James Hannen refused to amend the will for purposes of probate. He held the mistake was really one of omission and that though the omission of the word "real" would effect the intention that would be only by accident and not permissible. It was within the draftsman's authority to expand the word "residue" into "residuary real and personal estate"; the will as he drew it was correct as far as it went, but omitted to dispose of the residuary personal estate.

For these reasons I am of opinion that no alteration can be made of the will so far as the residuary clause is concerned."

61 In Taylor v Kershaw,[22] a solicitor drew a will in which the testatrix gave the residue of her estate "for such charitable institution or institutions or other charitable or benevolent object or objects in Preston and district" as her trustees might select. Due to the use of the word "or" between the word "charitable" and the word "benevolent" the gift was void for uncertainty. It was alleged that the mistake was due to a typist's error and it was sought to have the probate in common form revoked and probate granted in solemn form with the omission of the word "or". It was held by the English Court of Appeal that there was no evidence cogent enough to justify the alteration of the will and that, as the effect of omitting the word "or" would be to depart from the intention of the testatrix by limiting the objects of the residuary gift to those that were benevolent as well as charitable, there was no jurisdiction to make the alteration asked for.

62 In the reasons for judgment of Sir Wilfrid Greene MR (with whom Finlay and Luxmoore LJJ agreed) it is mentioned that the solicitor, some 12 years after the date of the will, allegedly discovered a so-called typist error and commented that "the allegations made twelve years after the event call for strict and convincing proof."[23] At trial there was evidence that the will was not read over to the testatrix before she signed it. It is also stated that "the fact that a testator or the draftsman employed by him is mistaken as to the legal effect of the language which he uses is, of course, no ground for altering the will for the purpose of procuring the legal result desired..."[24] The Court's analysis of the evidence shows that it was not persuaded that the error was a typist error rather than an error by the draftsman who was not aware at the time of the significance of using the word "or".

63 The principle of law was stated by the Court of Appeal as follows:[25]

"The jurisdiction of the Court of Probate to grant probate of a will textually different to the actual document signed by the testator is a strictly limited one. If the testator himself approved the words to which he put his signature (and the presumption is that he approved them), those words must stand. If the words were selected by a draftsman to whom the testator confided the task of drafting his will, similarly the words so selected must stand, even if the testator was ignorant of the actual words used. The mistake of the testator or of the draftsman employed by him as to the legal effect of the words used is immaterial. The jurisdiction, where it exists, is admittedly confined to the exclusion of words and does not extend to the insertion of words, since the insertion of words would run counter to the provisions of the Wills Act."

64 The Court of Appeal in Taylor v Kershaw went on to say[26] that, even if the use of the word "or" was a typist's error, the deletion of "or" would not achieve the intention of the testatrix because it would limit the class of charitable institutions and objects. The intention of the testatrix could only be achieved by striking out the word "benevolent" as well (presumably, that word was not inserted in error, in the relevant sense, as it was a word deliberately chosen by the draftsman - that solution was not sought at trial). The Court of Appeal said that the jurisdiction did not extend to altering a will, under the guise of omission, so as to affect the sense of the words deliberately chosen by the testator or his draftsman .[27]

65 In In re Tait, deceased,[28] Lowe J explained the underlying principle as follows:[29]

"The Wills Act requires the expression of testamentary intentions to be in statutory form. Hence if the extrinsic evidence discloses that a disposition has been omitted from a testator's will the Court cannot give effect to the omitted provision, since to do so would contravene the statutory requirement of due form. No such objection applies where there is matter included by mistake. If the mistaken matter is in such case omitted by the Court, what remains is still in the statutory form. Probably not all cases cited can be reconciled, but I think there is no case in which the matter has been discussed on principle which is contrary to what I have said."

66 In Osborne v Smith,[30] Kitto J said,[31] concerning the jurisdiction of the court of probate:

"It is undoubted law that a court of probate has jurisdiction, in an appropriate case, to grant probate, or administration c.t.a. in respect of a portion only of a document which has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied, as, for example, where by fraud or mistake there has been included in the instrument words which in truth were not part of the testator's will: Rhodes v. Rhodes. "In that case you may strike out the passage, because he did not know it was there or intend that it should be, and therefore it was not his will in any sense of the word": Morrell v. Morrell. In Rhodes v. Rhodes, however, Lord Blackburn, for the Privy Council, expressed doubt as to whether words could be rejected under this principle where the result would be to alter the sense of those which remained. "For", he said, "even though the Court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute a new instrument; and there seems much difficulty in treating the will after its sense is thus altered as valid within the 9th section of the 7 Will. 4 & 1 Vict. c. 26, the signature at the end of the will required by that enactment having been attached to what bore quite a different meaning". That the doubt thus expressed was well-founded the Court of Appeal held in a considered judgment in the case of In re Horrocks; Taylor v. Kershaw. The will there under consideration contained a gift for objects described as "charitable or benevolent". Evidence was given that the word "or" was inserted by a mistake on the part of the typist to whom the solicitor dictated the will, the solicitor having used the word "and". In order to save the gift from the invalidity which would result from the use of "or", the Probate Court was asked to strike that word out. The Court of Appeal considered that the alleged mistake had not been established by the evidence, but went on to hold that even if it had been established the case would not have fallen within the jurisdiction to exclude from the probate a portion of a document which otherwise was proved as a will. The reason was that "charitable", with its full meaning, was the choice of the testatrix herself; the word "benevolent", with its full meaning, was the choice of the draftsman to whom she had committed the task of drafting the will and by whose choice of the word she was in the circumstances bound; and the word "or" could not be deleted without making the words "charitable" and "benevolent" qualify one another so that neither would then carry its full meaning. The fact that the actual intention of the testatrix would thereby be effectuated was not regarded as justifying a step which would produce this result. The principle which was applied--and whether it was applied correctly or not is not to the point--was expressed in the words: "the cases in which the Court has decreed probate with the omission of words, phrases or clauses have all been cases where the matter omitted was, so to speak, self-contained and its omission did not alter the sense of what remained".

This proposition has recently been accepted by this Court in Ebert v. The Union Trustee Company of Australia Ltd. and is fully borne out by the authorities. Only a few of them need be mentioned. The cases of In re Duane and Fulton v. Andrew provide clear illustrations of the kind of case in which a clause may be omitted from probate without altering the sense of what is left. In each, it was a residuary gift which was omitted. In Morrell v. Morrell, a single word was omitted, but again every remaining word had precisely the sense it had before the omission, so that the will with the word omitted was exactly what the testator had believed he was signing. The case of Goods of Schott is similar." (citations omitted)

67 In Re Hemburrow, deceased,[32] Gillard J stated the principles as follows:[33]

"There is a strictly limited jurisdiction in the court of probate to grant probate of a will textually different from the actual document signed by the testatrix: Re Horrocks; Taylor v Kershaw, [1939] P 198, at p. 216; [1939] 1 All ER 579; Re Tait, [1957] VicRp 57; [1957] VR 405; [1957] ALR 862; Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153; [1961] ALR 831. Unless there is persuasive evidence to the contrary, it is presumed by and from the execution of a will that a testatrix knew and approved of the content of her will. Nevertheless, if it can be clearly established that by inadvertence, mistake or deception some word had been written into a will, the court has jurisdiction to grant probate of a will omitting the word so inserted. But there is no jurisdiction in the court to enable it to insert words omitted by inadvertence or mistake, by the testatrix or her draftsman: Harter v Harter (1873) LR 3 P & D 11.

Equally, the court in granting probate is not entitled to omit a word or words from the will, the result of which would be to alter the sense of those which remained: Rhodes v Rhodes (1882) 7 App Cas 192, at p. 198; Re Horrocks, supra, ([1939] P) at pp. 218-20; Osborne v Smith, supra, (105 CLR), at p. 160.

"The cases in which the court has decreed probate with the omission of words, phrases or clauses have all been cases where the matter omitted was, so to speak, self-contained and its omission did not alter the sense of what remained": per Lord Greene, MR, ([1939] P), at p. 219, in Re Horrocks (see also Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50; (1960) 104 CLR 346, at p. 351; [1960] HCA 50; [1960] ALR 691)."

68 In Re Hemburrow, the testatrix intended to give the whole of her real estate and the residue of her personal estate on certain trusts but the draftsman left out the words "the residue of my personal estate." The executor sought to propound the will with the word "real" omitted which would have had the effect of achieving the intention of the testatrix because the words "the whole of my estate" would have carried all of her real estate and the residue of her personal estate. But Gillard J found a number of problems with that solution. There was no evidence to rebut the presumption that the testatrix intended the word "real" to be inserted - the presumption of knowledge and approval had not been rebutted. A word intended to be inserted could not be omitted merely because that would result in more effectively carrying out the intention and instructions of the testatrix. The omission of the word "real" would also remake the will by altering the sense of what remained.

69 In In re Morris deceased,[34] the testatrix wished to alter certain provisions in her will - clause 7 contained 20 pecuniary legacies each commencing with a roman numeral in brackets - her intention was only to deal with clause 7(iv) but the codicil drawn up revoked the whole of clause 7. On the basis that it was a draftsman's slip not noticed by the testatrix, the Court granted probate omitting the numeral 7 as being the nearest to give effect to the testatrix's intention. Latey J emphasised that this was a case of a mere clerical error where the draftsman, knowing the testatrix's instructions and intentions, made a slip in giving effect to them. It was not a case of the draftsman exercising a discretion in the use of phraseology and deliberately choosing a particular form of words. The Court deleted "7" while recognising that a court of construction would still have problems to resolve.

70 Putting aside statutory reforms not here relevant, it is evident that the jurisdiction assumed by the court of probate in relation to the deletion of particular words or dispositions contained in a will and the governing principles thereof are long established and limited.[35]

71 In my view, the plaintiff is not entitled to the relief sought because, as I have found, the very words that the plaintiff seeks to have deleted from the will on a re-grant of probate were known and approved of by the testator. Thus, the presence of the words "in the capital of L.R.F. Investments Pty Ltd" is not a mistake or error within the meaning of the relevant legal principles. As was stated by the English Court of Appeal in Taylor v Kershaw[36] "[i]f the testator himself approved the words to which he put his signature...those words must stand."

72 The further principle is that, if the words were selected by a draftsman (in this case Mr Quinn) to whom the testator confided the task of drafting his will, and the words did not result from a mistake by the draftsman concerning the testator's instructions (as opposed to a mistake about their legal effect), the words so selected must stand, even if the testator was ignorant of the words used. In the present case, the words sought to be deleted did not result from any kind of a mistake concerning the testator's instructions but, rather, reflected those instructions, even if they did not go far enough. So that, even if (contrary to my finding) the words were not known and approved of by the testator, there was still no error as would justify their deletion. The draftsman's error was not his insertion of the words "in the capital of L.R.F. Investments Pty Ltd," but his omission to insert additional words. The draftsman failed to cover any other shares, either then held by the testator or that might in the future be held by him, by, say, using an additional "catch-all" phrase such as "and any other shares that I may hold in companies used by me to conduct business."

73 There would have been a further difficulty with the relief sought by the plaintiff even if the foregoing obstacles had been overcome. The deletion of the words "in the capital of L.R.F. Investments Pty Ltd" would result in a disposition by the testator of "all those my shares" to Blair. The deletion would alter the sense of the words that remain and this is contrary to principle.[37] The remaining words would cover all shares in any companies, including listed companies, and thus potentially be wider than the testator's intention to pass his own business interests to Blair. In fact, the testator at his death had no such outside investments but that is a matter of "accident."[38]

74 The plaintiff raised an alternative argument, if his claim in the probate jurisdiction failed, relating to the construction of the will. The argument was not seriously canvassed, although not abandoned. The plaintiff's contention was that the words in the 1982 will "all those my shares in the capital of L.R.F. Investments Pty Ltd" should be interpreted as referring to all of the testator's shares in any company. It was common ground that s.22A of the Wills Act 1958 (then applicable) was of no assistance unless any evidence of the testator's intention to be effected or which had been effected by the will assisted in resolving an ambiguity contained in the will or showed that there was a latent ambiguity in the will which needed to be resolved. The plaintiff briefly submitted that the evidence showed that the testator used the words "all those my shares in the capital of L.R.F. Investments Pty Ltd" as a shorthand reference for describing all of his business interests and that the will should be interpreted accordingly. I do not consider that the evidence supports this submission. Further, there is no ambiguity created by the said words and the evidence of the testator's intention to pass his business interests to Blair does not create one. In my opinion, there is no basis for the construction point mentioned, albeit without much enthusiasm, by the plaintiff.

75 For those reasons, the plaintiff's application by originating motion is dismissed.

[1] I will refer to the plaintiff as such or as "Blair".

[2] The first and second defendants were appointed, and the original executors removed, as trustees of the estate, by order of this Court on 7 February 2008.

[3] I will refer to the third defendant as such or as "Shondra".

[4] Thus, the plaintiff invokes the jurisdiction of the court of probate and the court of construction - this was done by means of a single originating motion filed 28 May 2008 - but the defendants did not object to this mode of procedure.

[5] I note also that, as Mr Hardy explained in evidence, Featherock held the head lease of the quarry from the owners of the land and had granted a sub-lease to another Featherock company and that Featherock always traded at approximately break even - it was not a profitable trading company but was there to protect "the principal asset" (the head lease).

[6] See para [39] below.

[7] That belief was substantially correct both in 1977 and in 1982.

[8] Some of the testator's interests in the self-storage businesses were in fact held through LRF Investments.

[9] The 800 shares in Featherock were still overlooked.

[10] It was common ground that s.31 of the Wills Act 1997 (Vic) was inapplicable because the testator had died before the commencement of s.52 of that Act - see s.52(4) of the Wills Act 1997 (Vic).

[11] Citing Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153, 159.

[12] Citing In re Horrocks (deceased); Taylor v Kershaw [1939] P 198; Re Hemburrow [1969] VicRp 98; [1969] VR 764.

[13] Citing In re Tait deceased [1957] VicRp 57; [1957] VR 405.

[14] (1882) 7 PD 68.

[15] [1902] P 234.

[16] [1902] P 234, 237.

[17] (1929) 29 SR (NSW) 487.

[18] (1929) 29 SR (NSW) 487, 489-490.

[19] (1929) 29 SR (NSW) 487, 490.

[20] The person "Clift" could then be identified by the Court of Construction as Joan Clift.

[21] (1929) 29 SR (NSW) 487, 491.

[22] In re Horrocks (deceased); Taylor v Kershaw [1939] P 198.

[23] [1939] P 198, 208.

[24] [1939] P 198, 209.

[25] [1939] P 198, 216.

[26] [1939] P 198, 217.

[27] [1939] P 198, 218.

[28] [1957] VicRp 57; [1957] VR 405.

[29] [1957] VicRp 57; [1957] VR 405, 410. See too what was said by Martin J at 413-414.

[30] [1960] HCA 89; (1960) 105 CLR 153.

[31] [1960] HCA 89; (1960) 105 CLR 153, 159-161.

[32] [1969] VicRp 98; [1969] VR 764.

[33] [1969] VicRp 98; [1969] VR 764, 764-5.

[34] [1971] P 62.

[35] See Williams & Mortimer: Executors, Administrators and Probate, pp. 154-158 (1970 - being the 3rd edition of Mortimer on Probate) and Williams, Mortimer and Sunnucks: Executors, Administrators and Probate, pp.185-188 (2000 - being the 6th edition of Mortimer on Probate).

[36] [1939] P 198, 216.

[37] Re Hemburrow deceased [1969] VicRp 98; [1969] VR 764, 764-5 and cases therein cited.

[38] Perpetual Trustee Company v Williamson (1929) 29 SR (NSW) 487, 491; In re Horrocks (deceased); Taylor v Kershaw [1939] P 198, 218.